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Full text of "International law challenges : homeland security and combating terrorism"

International Law Studies 



Volume 81 



International Law Challenges: 
Homeland Security and Combating Terrorism 



Thomas McK. Sparks and Glenn M. Sulmasy 

Editors 




,*. .. _ 



3* 



Naval War College 
Newport, Rhode Island 
2006 



International Law Studies 



Volume 81 



Library of Congress Cataloging-in-Publication Data 

International law challenges : homeland security and combating terrorism / 
Thomas McK. Sparks and Glenn M. Sulmasy. 
p. cm. — (International law studies ; v. 81) 

Includes index. 

ISBN- 13: 978-1-884733-38-3 (hardcover) 1. War (International law) 2. War, 
Maritime (International law) 3. International law — United States. 4. National 
security — United States. 5. Courts-martial and courts of inquiry — United States. 
6. Terrorism — Prevention. I. Sparks, Thomas McK. II. Sulmasy, Glenn M., 1966- 
KZ6355.I58 2006 
341— dc22 

2006028536 



Table of Contents 



International Law Challenges: 
Homeland Security and Combating Terrorism 



Foreword ix 

Introduction xi 

Preface xiii 

Part I: Keynote Address 

I The International Dimensions of Homeland Security 

Ryan P. Stiles 3 

Part II: Comparative Approaches to Security and 
Maritime Border Control 

II Comparative Approaches to Security and Maritime Border Control 

Dale Stephens 19 

III European and German Security Policy and International Terrorism 

Torsten Stein 31 

Part III: The Proliferation Security Initiative in the Maritime Domain 

IV The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

Wolff Heintschel von Heinegg 55 

V Limits on the Use of Force in Maritime Operations in Support of 

WMD Counter-Proliferation Initiatives 
Craig H.Allen 77 

VI The Proliferation Security Initiative in the Maritime Domain 

StuartKaye 141 



Part IV: Current Issues in Occupation Law 

VII Is There a "New" Law of Intervention and Occupation? 

Leslie C. Green 167 

VIII Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

Fred Abrahams 201 

IX Treatment and Interrogation of Detained Persons 

David E. Graham 215 

X Liberation and Occupation: A Commander's Perspective 

FabioMini 221 

Part V: Military Commissions 

XI Military Commissions: Old Laws for New Wars 

William K. Lietzau 255 

XII Military Commissions: Constitutional, Jurisdictional, and Due Process 

Requirements 
Jordan J. Faust 289 

XIII Military Commissions — Kangaroo Courts? 

Charles H. B. Garraway 303 

Part VI: The Right of Self-Defense in the Global War on Terrorism 

XIV Using Force Lawfully in the 21st Century 

David B. Rivkin, Jr. and Lee A. Casey 319 

XV The Gulf War: 1 990-2004 (And Still Counting) 

Yoram Dinstein 337 

XVI The Right of Self-Defense in the Global Fight against Terrorism 

Christoph Muller 351 

XVII The Legality of Operation Iraqi Freedom under International Law 

Michael N. Schmitt 367 



VI 



Part VII: Targeting Terrorists 

XVIII Debating the Issues 

Kenneth Roth and Robert F. Turner 395 

Appendix A 

Contributors 419 

Index 427 



vn 



Foreword 



The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish learned essays, treatises, and articles that 
contribute to the broader understanding of international law. This volume, the 
81st of the series, contains papers addressing the issues discussed and debated at a 
colloquium hosted here at the Naval War College from June 23 to 25, 2004, entitled 
International Law Challenges: Homeland Security and Combating Terrorism. 

This colloquium's charter was to study and debate various international law issues 
affecting homeland security, homeland defense, and the combating of terrorism. 
Renowned international law scholars and practitioners of all stripes — academics, 
military officers, government officials, and those representing various political per- 
suasions — participated in collegial but often spirited and always fruitful discussions 
and examinations of these issues. A vastly increased understanding and appreciation 
of the role of international law in the ever-changing 21st century resulted. 

This colloquium received generous support from the Israel Yearbook on Hu- 
man Rights; the Roger Williams University Ralph R. Papitto School of Law, Bristol, 
Rhode Island; the Lieber Society on the Law of Armed Conflict of the American So- 
ciety of International Law; the Pell Center for International Relations and Public 
Policy of Salve Regina University, Newport, Rhode Island; and the Naval War Col- 
lege Foundation. Without this much-appreciated support, this noteworthy and 
highly productive event would not have been possible. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations, and the 
Commandant of the Marine Corps, I extend our sincere thanks and appreciation 
to the participants, contributing authors, editors, and supporting organizations for 
their contributions to this successful gathering and to the publication of this out- 
standing addition to the historic "Blue Book" series. 



J. L. SHUFORD 

Rear Admiral, U.S. Navy 

President, Naval War College 



Introduction 



In June 2004, the Naval War College hosted a colloquium entitled International 
Law Challenges: Homeland Security and Combating Terrorism. This colloquium 
was made possible with the support of the Israel Yearbook on Human Rights; the 
Roger Williams University Ralph R. Papitto School of Law, Bristol, Rhode Island; 
the Lieber Society on the Law of Armed Conflict of the American Society of Inter- 
national Law; the Pell Center for International Relations and Public Policy of Salve 
Regina University, Newport, Rhode Island; and the Naval War College Founda- 
tion. Without the support and assistance of these organizations, this event would 
not have been the success that it was, and this volume would not be before you as it 
is. I sincerely appreciate their support. 

As noted in the Introduction to Volume 79 of the "Blue Book" series, the events 
of 9/ 1 1 brought home to the United States that, perhaps unlike any time in the past, 
the "tyranny of distance" could not be relied upon to protect its citizens from 
harm. That volume, International Law and the War on Terror, contained the pro- 
ceedings of a colloquium hosted by the Naval War College in June 2002. 

This colloquium, held two years later, examined actions taken since then, e.g., 
the Proliferation Security Initiative, a response to the growing challenge posed by 
the proliferation of weapons of mass destruction, their delivery systems, and re- 
lated materials worldwide; and measures initiated to increase the control and secu- 
rity of maritime borders. Additionally, with the growing insurgency and increasing 
terrorist acts in Iraq, issues of occupation law, which the United States had last ap- 
plied following World War II, played a prominent role in the discussions of the col- 
loquium participants. 

I thank the editors — Captain Thomas Sparks, US Coast Guard and Com- 
mander Glenn Sulmasy, US Coast Guard — for their substantial efforts in the pub- 
lication of this volume. I also would like to recognize two long-time supporters of 
the Naval War College and the International Law Department, whom they credit 
with completing "the lion's share of the substantive editing of this volume": Profes- 
sor Emeritus Jack Grunawalt and Captain Ralph Thomas, JAGC, US Navy (Ret.). 
Without question, their dedication, conscientiousness, and perseverance were 
principally responsible for the production of this volume. Additionally, I thank the 
conference coordinator, Commander Glenn Sulmasy, US Coast Guard, for his su- 
perb efforts in organizing the event. 



Additionally, a special thank you is necessary to Rear Admiral Jacob Shuford, 
President of the Naval War College; Dr. James F. Giblin, Jr., the College's Provost; 
and Dr. Kenneth Watman, Dean of the Center for Naval Warfare Studies, for their 
leadership and support in the planning and conduct of the conference and the pub- 
lication of this volume. 

The "Blue Book" series is published by the Naval War College and distributed 
throughout the world to academic institutions, libraries, and both US and interna- 
tional military commands. This volume, International Law Challenges: Homeland 
Security and Combating Terrorism, is a fitting and necessary addition to the series as 
the United States and its coalition partners continue to wage this "long war." 



DENNIS L. MANDSAGER 
Professor of Law & Chairman 
International Law Department 



xn 



Preface 



In the summer of 2004, a sense of normalcy had returned to the homeland of the 
United States. One could say the "sleeping giant" that had awakened on 9/11 
had fallen back "asleep." Military victories in Afghanistan and in Iraq had been 
achieved. Operation Enduring Freedom (OEF) and Operation Iraqi Freedom 
(OIF) were officially declared as examples of military successes. Domestically, the 
USA PATRIOT Act had been passed and was implemented. The reorganization of 
the government had occurred and the National Security Strategy of 2002 had be- 
come part of US strategic culture. US Northern Command (NORTHCOM) had 
been created. Establishment of the Department of Homeland Security resulted in 
the merging of 22 federal government agencies and a department staffed by over 
177,000 personnel. Bringing the war on terror to the enemy overseas was seen as 
necessary to protect the homeland. This new war, one that mixes law enforcement 
and armed conflict, was the challenge of the 21st century and the United States was 
preparing for a long-term struggle. The Bush Administration clearly articulated its 
belief that in "taking the fight" to the terrorists overseas, our homeland would be 
more secure. 

With this in mind, legal scholars, practitioners, judge advocates and warriors 
gathered in Newport, Rhode Island at the US Naval War College in late June to re- 
view, debate, and challenge the myriad legal issues surrounding the evolving reality 
of the Global War on Terror. 

The need for a reasoned, rational legal regime to enhance domestic security be- 
came critical after 9/11. Jihadists, and the Global War on Terror itself, do not fit 
squarely into existing laws or custom. The predominant enemy we now fight is 
neither warrior nor criminal but a hybrid of both. In addition, the war being 
waged is at times against lawful combatants (e.g., the armed forces of Iraq) and at 
times against entities deemed illegal combatants. Some of these "enemy combat- 
ants" would have protections afforded by the law of armed conflict and some 
would not. A growing nexus between international law and the concept of home- 
land security had emerged. Ambiguity as to this intersection of international law 
and national security law (homeland security) provided a unique backdrop for 
two and a half days of intense debate and intellectual exchange on the seminal le- 
gal issues of our times. 

The Honorable Ryan Stiles, Associate Counsel to the President and Deputy 
Counsel to the White House's Homeland Security Council, initiated the debate 



Preface 

with a discussion of the relationships between international law and homeland se- 
curity. He further articulated the need for the Global War on Terror to be viewed as 
warfare and one not suited for a law enforcement response — a different tack from 
pre-9/1 1 approaches to combating terror. His talk set the stage for what turned out 
to be a recurring, stimulating debate during the colloquium. 

The case is made that it is critical for US (and Western) policy makers to under- 
stand that the Global War on Terror is in fact a war and not a law enforcement ac- 
tion. The events of 9/1 1 arguably displayed the manifest failure of employment of a 
law enforcement response to the threats of international terror. Some have gone so 
far as to claim that the West's previous law enforcement only responses created, in 
large part, the bold actions taken by al-Qaeda at the end of the 20th century and the 
beginning of the 21st. The colloquium revealed, however, that considerable angst 
and cynicism remains regarding some of these assertions. Nonetheless, most 
agreed that the magnitude of the events of 9/11 and the repeated world-wide at- 
tacks and attempted attacks of the jihadists (primarily al-Qaeda) have demon- 
strated the relative weakness of past approaches and have fueled demands for new 
policies and tactics that continue today. 

In its response, the US government offered new, sometimes controversial ap- 
proaches. The colloquium brought together military and civilian experts, all lead- 
ers in their respective fields, to assess and debate these approaches and the legal 
issues that dominated the military liberation of Iraq and the regime change that 
was underway as the colloquium began, e.g.: 

• Maritime border security issues; 

• The law of the sea and the Proliferation Security Initiative (PSI); 

• Application of the law of armed conflict to certain military operations and 
occupations; 

• Lawfulness of the military commissions underway in Guantanamo Bay, 
Cuba; 

• The new strategy of "pre-emption" and anticipatory self-defense; and 

• The lawfulness of targeting individual terrorists which was the subject of a 
spirited debate between Mr. Kenneth Roth, Executive Director of Human Rights 
Watch and Professor Bob Turner of the Center for National Security of the 
University of Virginia School of Law. 

A special highlight of the colloquium was an address by the Assistant Secretary 
of Defense for Homeland Defense, the Honorable Paul McHale. His description of 
the coordination between the combatant commander (NORTHCOM) and the 



xiv 



Thomas McK. Sparks and Glenn M. Sulmasy 



Department of Homeland Security was most informative and appreciated by the 
participants. 

It was a privilege to have so many fine representatives from myriad perspectives 
present to challenge these critical issues. Assembling this international group over 
the previous year was certainly not an easy task, but when our distinguished panel- 
ists from around the world were gathered together the fruits of that effort were very 
apparent. Exploring the nexus between homeland security and international law 
made for an invigorating experience. Scholars and representatives from across the 
political spectrum made for lively discussions. 

Sincere thanks must go to Professor Emeritus Jack Grunawalt and Captain 
Ralph Thomas, JAGC, US Navy (Ret.) for their tireless efforts on behalf of the Na- 
val War College and this "Blue Book" in particular. Their knowledge of the issues 
and editing skills were critical in making this book a reality. Also, a special thanks to 
Professor Dennis Mandsager for his foresight in directing an exploration of this 
evolving area of the law. 



Thomas McK. Sparks Glenn M. Sulmasy 

Captain, US Coast Guard Commander, US Coast Guard 



xv 



PARTI 



KEYNOTE ADDRESS 



I 



The International Dimensions of 
Homeland Security 



Ryan P. Stiles* 



As I think we all know from the news and recent statements by both Attorney 
General Ashcroft and Secretary Ridge, we are entering an unprecedented 
period of threat as we go into the summer; a threat that is projected to continue 
through this November's elections. So what we're doing here has practical implica- 
tions and will apply in the real world where terrorists routinely flout international law. 

My goal for this morning is not to overlap with the discussions of the panels that 
will occupy much of the next three days of this conference. They will address many 
of the supporting issues regarding international implications of homeland secu- 
rity. My goal is to frame the debate: how, from a US Government perspective, the 
Bush Administration looks at homeland security and its objectives, and then to 
look at some specific ideas and concepts about how homeland security interacts 
with the international dimensions. 

To frame the debate we must define homeland security. I think many people 
unfortunately skip that first definitional issue. The United States definition of 
homeland security is found in President Bush's July 2002 National Strategy for 
Homeland Security, 1 which was released as part of the Administration's proposal 
for creating a Department of Homeland Security. If you haven't read it, I encour- 
age you to do so. The Strategy defines homeland security as "a concerted national 



Deputy Counsel, Homeland Security Council, the White House. 



The International Dimensions of Homeland Security 

effort to prevent terrorist attacks within the United States, reduce America's vul- 
nerability to terrorism and minimize the damage and recovery from attacks that do 
occur." 2 Each piece of this definition is attached to a specific concept that requires 
additional analysis. 

"Concerted national effort." Obviously the federal government has a critical role 
to play in homeland security. Yet the federal government alone cannot possibly 
protect the United States from future terrorist attacks. The Administration's ap- 
proach to homeland security is based on the principles of shared responsibility and 
partnership with Congress, state and local governments, the private sector and the 
American people. 

The concept of the first responder is one of the critical issues and one of the most 
difficult concepts in homeland security because the federal government is often 
not the first responder. In many cases, it will never be the first responder because 
anywhere from 80 to 90 percent of our critical infrastructure is in the hands of state 
and local governments, and the private sector. 3 

The federal government depends not only on partnerships with state and local 
governments but additionally with the private sector. It is a daunting task to coor- 
dinate all of those things, including such challenges as incompatible communica- 
tion equipment. Federal government entities must be able to communicate with 
the first responders who inevitably have their own independent and different com- 
munications systems. 

"Prevent." The first priority of homeland security is to prevent terrorist attacks. 
Post-9/1 1, the Federal Bureau of Investigation (FBI) (and the Department of Jus- 
tice (DOJ) as well) transformed itself from being a traditional law enforcement 
agency to making its number one goal the prevention of terrorist attacks. That ne- 
cessitates a shift in concept and a shift in tactics for the FBI; that shift is a good one. 

It also makes the Department of Justice and the FBI's tasks significantly more dif- 
ficult. Furthermore, it makes it increasingly difficult when we respond and deal with 
individual terrorists in the United States. In the past, most law enforcement consisted 
simply of investigation and response to terrorist attacks. If a terrorist attack occurred, 
the DOJ and FBI would investigate, identify the perpetrators, and put them on trial. 
This responsive mode did have limited success and did produce some convictions. 

Now, however, the Department of Justice's success in accomplishing its new 
mission is challenged, if measured by a conviction rate, because now their intent is 
to prevent those attacks in the first place. By interrupting terrorist attacks before 
they occur, the DOJ will not have that clear chain of evidence that produced post- 
attack convictions. Now intent must be established before an attack occurs. That 



Ryan P. Stiles 

means by necessity that the Department of Justice is probably going to lose a lot 
more cases in the short-term since they don't have the evidence trail they were able 
to produce during the post-attack trials because the plot has indeed been foiled. 

That's not necessarily a bad thing, however. The Department of Justice is metic- 
ulous about which cases they bring to trial and which they don't. It is not a decision 
made by the individual US Attorney offices. Each terrorism case is scrutinized both 
in those offices and by the Criminal Division at Main Justice in Washington, D.C. 

"Terrorist attacks." Homeland security is focused on terrorism in the United 
States. Terrorism is defined in the United States in a variety of ways but a definition 
that captures some of the core concepts of terrorism would be "any premeditated 
unlawful act, danger to human life or public welfare that is intended to intimidate 
or coerce civilian populations or governments." 4 

This definition captures the core concepts shared in the various iterations of the 
United States Code. As I'm sure many of the international practitioners here know, 
defining terrorism in the first instance is probably one of the most pressing prob- 
lems facing the international community. 

The United States has attempted to define the term at least for those who carry 
out attacks in this country. I think one of the key challenges for the international 
community is to develop an agreed upon definition of "terrorism." It is nearly im- 
possible to eradicate something without having a definitional basis of what it is 
that's to be eradicated. 

"Reducing America's Vulnerability." The United States is an ever- evolving, ever- 
changing target. As we shore up our defenses in one area, terrorists exploit vulnera- 
bilities in other areas. A good example of that was a program called the Transits 
Without Visa Program that was shut down by the federal government in the sum- 
mer of 2003 because of some specific intelligence that terrorists may be looking at 
that program as a way to enter the United States. 5 

An example of that program is an individual flying from South America to Eu- 
rope who stops over in the United States for a connecting flight. Traditionally that 
person wasn't required to have a visa to "transit" the airport in the United States. 
However, that presented a seam for terrorists to exploit because they wouldn't have 
to go through the screening process with the Department of State or Department of 
Homeland Security. Thus, an individual could get on a plane in another country 
and, in some instances, land at an airport in the United States and simply walk un- 
challenged right out of the airport. 

So you had a double vulnerability. One, terrorists would be on planes, which we 
know they like to use to attack the United States; and two, operationally they enter 



The International Dimensions of Homeland Security 

the country in a fairly easy fashion. The United States has now closed that gap, al- 
though 1 do think a more secure program is probably in the offering at some point. 

Once that program was ended, the terrorists looked for new vulnerabilities. So it 
is a constant challenge to make sure that when closing one gap or seam, new gaps 
and seams are not created. Avoiding new vulnerabilities is of great concern to those 
in the White House. Accordingly, when conducting our policy evaluations we 
work hard to ensure that the new, fresh policies do not inadvertently open a bigger 
seam when we close a smaller one. 

"Minimizing the damage." As I mentioned at the outset, the greatest chance to re- 
spond effectively and minimize loss of life resides with our first responders, gener- 
ally not with federal government entities. We're working with our state and local 
governments and the private sector to make sure they have their own homeland se- 
curity plans to deal with whatever event may occur. 

"Recovery." It is the intent of the United States Government to build and maintain 
various financial, legal and social systems that will ensure recovery from all forms 
of terrorism. 

Responding to attacks on the homeland has been a vexing problem for the 
United States for the last 40 or 50 years. The old thinking about what type of attack 
would occur was focused primarily on nuclear strikes. Under that conceptualiza- 
tion, there would be the strike, the government would have to go somewhere, 
emerge at some later date and then repopulate the institutions. 

Of course with the nuclear strike it was assumed that there would be an advance 
warning of an impending attack, so that continuity of government operation plans 
were premised on having some period of time to make preparations for the attack. 

Now we have an entirely different model for attack and recovery: a "no-notice" 
event potentially aimed at decapitating the United States Government, to include 
the President and his staff, the cabinet departments, Congress and others. That 
model also means that we must look at other methods of making sure that our in- 
stitutions survive because we're not going to be able to have 24 hours or even five or 
six hours to place those in key leadership positions in secure places. 

Homeland security and national security are two obviously related concepts. But 
there is a core distinction. National security looks towards guaranteeing the sover- 
eignty and independence of the United States with the values and institutions in- 
tact. This is slightly different from "homeland security." To provide the 
overarching strategy to ensure our national security, President Bush issued the Na- 
tional Security Strategy of the United States. 6 If read together with the National 



Ryan P. Stiles 

Strategy for Homeland Security \ you'll see they reflect an integrated concept, and 
that homeland security is a concept — not just a Department. 

Within the concept of homeland security are the Continuity of Operation plans 
mentioned earlier; Critical Infrastructure and Protection, which is principally ex- 
ercised within the United States, although some infrastructure is shared with Can- 
ada and Mexico, and defense against weapons of mass destruction (WMD). These 
obviously have to be dealt with if they enter the United States, but once they arrive 
on our shores we're already in trouble. Thus, much of the WMD efforts are focused 
overseas as we combat terrorism. 

Another weapon of great concern is MANPADS (man-portable air defense sys- 
tems). These short-range, ground-to-air missiles are one of the greatest threats to 
aviation around the world today. They're cheap, increasingly available on the black 
market, and exist in large numbers. Civil aircraft are virtual "sitting ducks" to ter- 
rorists who possess MANPADS. The United States is working to strengthen secu- 
rity over existing stockpiles and to prevent their continued proliferation. We are 
also working on measures to reduce the vulnerability of both military and civil air- 
craft to these weapons. 

Prior to the establishment of the Department of Homeland Security (DHS) on 
November 25, 2002, funding for what we today call homeland security was spread 
throughout the government. But even in fiscal year 2003, the first year following the 
Department's establishment, only 51 percent of what the Office of Management and 
Budget considers homeland security spending was spent at DHS. 7 For fiscal year 
2004, that figure is up to about 60 percent. In terms of actual total dollars, funding 
dramatically increased after September 11th, with about twice as many dollars de- 
voted to homeland security in fiscal year 2003 as compared to the preceding year. 

One organization of which you may be unaware is the Homeland Security 
Council (HSC). In October of 2001, the President created the Office of Homeland 
Security within the White House. Governor Tom Ridge became its head as a White 
House-appointed official. 8 Then when Congress created the Department of 
Homeland Security, Governor Ridge became "Secretary" Ridge and left the White 
House to become a cabinet secretary. 

At the same time, the Office of Homeland Security transformed into the Home- 
land Security Council. The HSC's primary role is to serve as confidential adviser to 
the President on homeland security matters in much the same way as the National 
Security Council does on national security and foreign policy matters. 

The Homeland Security Council's member's primary responsibility is to coor- 
dinate interagency efforts to ensure that the homeland is safe. HSC members work 
closely with the DHS staff, but also spend much of their time working with col- 
leagues at the Department of State, Department of Justice, and the Central 



The International Dimensions of Homeland Security 

Intelligence Agency. The reason, of course, is that the Department of Homeland 
Security can't do homeland security at the federal level by itself. It must coordinate 
its functions with those of other government agencies. Those functions are often 
based on funding priorities. I suspect I surprise no one when I say those agencies 
often don't agree on the best way forward. When that occurs a mediator is required 
and that's generally the role of the HSC. 

The Homeland Security Council was built on the concept of the National Secu- 
rity Council, 9 which was created in 1947 by the National Security Act. The NSC 
and HSC are parallel organizations and sit side by side; one coordinating national 
security, the other homeland security. The NSC has no operational capacity, nei- 
ther does the HSC. We simply try to resolve disputes and push efficient policy 
decision-making to secure the homeland. 

America must pursue a sustained, steadfast, and systematic international 
agenda to counter the global terrorist threat and improve our homeland security. If 
the United States is 100 percent effective in homeland security, we will still have 
failed because most of the threats will be emerging overseas. If we aren't working 
cooperatively with our other States — our international partners — then we have 
really no chance at preventing terrorists from reaching our borders. If we can't 
screen cargo before it gets here, if we can't screen passengers before they step off the 
plane, ultimately we will lose the fight because those individuals will find methods 
to attack us even if we're secure within the borders. Thus the international agenda 
for homeland security is extremely important. We have to win our "away" games as 
well as our "home" games. 

The following table lists the major homeland security initiatives with interna- 
tional dimensions. 

Major Homeland Security Initiatives with International Dimensions 

• Create "Smart Borders" 

• Combat fraudulent travel documents 

• Increase security of international law enforcement cooperation 

• Intensify international law enforcement cooperation 

• Help foreign nations fight terrorism 

• Expand protection of transnational critical infrastructure 

• Amplify international cooperation on homeland security S&T 

• Amplify international cooperation in response to attacks 

• Review international obligations to international treaties and laws 



8 



Ryan P. Stiles 

Many of these initiatives don't touch on the military components, which are 
more "overseas combating terrorism" than "homeland combating terrorism." I do 
this intentionally because I think our later panels will speak to those issues. 

I also wanted to emphasize the international dimensions in a lot of projects that 
probably don't have a lot of visibility and are unknown to most people. The first is 
the creation of Smart Borders. We have a 5,500-mile border with Canada, a 1,900- 
mile border with Mexico, and 95,000 miles of shoreline. According to the 2000 
census each and every year the United States admits 500 million people, including 
330 million non-citizens through our borders. 10 

Our Smart Borders initiative must be able to deal with that flow of people, as 
well as the 1 1.2 million trucks and 2.2 million rail cars that cross the border annu- 
ally. The Department of Homeland Security is spearheading the effort to create 
Smart Borders. America requires a border management system to keep pace with 
its expanding trade, while protecting the United States and its territories not only 
from terrorist attacks, but also illegal immigration, illegal drugs and other 
contraband. 

The future of Smart Borders must integrate actions abroad to screen goods and 
people prior to their arrival in sovereign US territory. The border control agencies 
of the federal government also must have seamless information chain systems that 
permit communication among and between themselves and federal, state, and lo- 
cal law enforcement communities. 

I want to address two specific programs within the Smart Borders initiative. 
One is the US-VISIT program that deals with land borders into the United States. 
The law requires that an automated entry/exit program be implemented at the 50 
busiest land ports of entry by December 3 1 , 2004 and all ports of entry by Decem- 
ber 31, 2005. 

The 50 busiest land ports of entry process 94 percent of the foreign visitors who 
enter and exit the United States through established border crossing. The concept 
of US-VISIT, which is being run by the Department of Homeland Security, is a 
continuum of security measures that begin before an individual enters the United 
States and continue through arrival and departure from the United States. 

US-VISIT incorporates eligibility determinations made both by the Depart- 
ment of Homeland Security and, of course, the Department of State. Using 
biometrics such as finger scans and digital photographs, DHS will determine 
whether the person applying for entry to the United States is the same person who 
is issued the visa by the Department of State. 

Additionally, the biometric and biographical data are checked against a watch 
list, thereby improving DHS's ability to make admissibility decisions, as well as the 
Department of State's ability to make visa determinations. US citizen entry 



The International Dimensions of Homeland Security 

procedures are currently in place at 115 airports and 14 seaports. This year US- 
VISIT will be expanded to the 50 busiest land ports. 

Since US-VISIT was launched in January 2004, it has already achieved some 
successes — mostly in the non-terrorist area to include drug smugglers, gangsters, 
and child molesters. Since the US Government stood up DHS, the Department of 
State has intercepted more than 200 people with prior suspected criminal or immi- 
gration violations. They include convicted rapists, drug traffickers, convicted armed 
robbers and numerous individuals committing visa fraud. The "non-terrorists" of 
today are creating pathways for the entry of bona fide terrorists of tomorrow. 

Another important initiative to create smart, secure borders is addressed in sec- 
tion 343 of the Trade Act of 2002, as amended by section 108 of the Maritime 
Transportation Security Act, which requires that regulations be promulgated pro- 
viding for the transmission to US Customs and Border Protection through an elec- 
tronic data interchange system. The new system will provide information 
concerning cargo that is brought into or taken out of the United States prior to ar- 
rival or departure. This helps target specific cargos for potential, especially biologi- 
cal and chemical, weapons for inspection when they arrive at our borders. Of 
course, we can't have trucks backed up for miles on the Mexican border awaiting 
entry. If we wait until the cargo arrives at the point of entry to see what's on the 
manifest, we will have failed. We also will have failed our international partners be- 
cause we will not have helped them facilitate their own internal economic stability. 

A second major initiative is combating fraudulent travel documents. The De- 
partment of Justice, in conjunction with the Department of State, is spearheading 
this effort. They announced a new program that will contribute substantially to 
travel document security and our ability to impugn the movement of terrorists and 
other criminals. During the processing of travelers at ports of entry, if a hit occurs 
against the Interpol database, the hit will be verified with US authorities before ac- 
tion is taken against a bearer of such a passport. This is a significant step in the di- 
rection of curbing not only terrorism but also identity theft and other types of 
identity fraud. Travel document fraud, including the fraudulent application and 
use of the US passport, represents a serious and growing threat to our national se- 
curity. However, it is not the individual who has stolen them who is necessarily the 
terrorist or expected terrorist. Often they are middlemen who steal passports and 
passport numbers, create fraudulent documents and sell them to the terrorists. 

So we can't only concentrate on who we know or suspect of being international 
terrorists. We have to go at the middlemen who are facilitating the preparation of 
those fraudulent travel documents. Currently the Interpol database contains 1.6 
million records reported by 41 different participating member countries. Of the 
1.6 million records, approximately 60 percent are passports while 40 percent are 

10 



Ryan P. Stiles 

national identification documents. The United States has provided about 300,000 
documents to that Interpol database. Although this is a relatively new initiative, it 
has had great success with the number of entries into the database increasing 
rapidly. 

Contained within the initiative to combat fraudulent travel documents is the is- 
sue of biometric passports. The Administration has asked Congress to pass legisla- 
tion to extend for two years the October 26, 2004 deadline by which countries must 
produce biometric passports to participate in the Visa Waiver Program. The prob- 
lem is when Congress passed the law establishing the October 26, 2004 deadline it 
didn't have a complete understanding of what is required to produce an effective 
biometric passport. Biometric passports address a key weakness in our system for 
identifying terrorists. There are really two concepts. First, is the person standing 
before me the person that is identified in the travel documents? Second, is that per- 
son a good guy or bad guy? 

If you fail at either one of those ends, you aren't going to catch known and sus- 
pected terrorists. A person may have perfectly good travel documents that aren't 
on any watch list. But if that person is someone other than the individual he pur- 
ports to be, the validity of the travel documents is meaningless. That is the issue 
biometric passports are trying to address. 

It is estimated that 13 million visitors from visa waiver countries enter the 
United States each year. Travelers from visa waiver countries are allowed to enter 
the United States for up to 90 days for business or pleasure using only a passport. 

Our international partners tell us this is one of the key issues for them because it 
permits entry to citizens of those countries that the Department of State and De- 
partment of Homeland Security has determined as having secure documents. The 
Visa Waiver Program allows citizens of those countries easier entry into the United 
States. They don't have to go through the extended visa process. They can come in 
simply with their passport. We're working hard with our international partners to 
make sure this program continues in place while those countries come up with the 
technology and the decision-making necessary to continue to participate in the 
Visa Waiver Program. 

The next issue I want to address is the increase in security of international ship- 
ping containers through a program called Container Security Initiative (CSI). 
Containerized shipping is a critical component of global trade because about 90 
percent of the world's trade is transported in cargo containers. 11 

In the United States almost half of incoming trade by value arrives by containers 
on board ships. Nearly seven million cargo containers arrive on ships and are 
offloaded in U.S. seaports every year. In post-September 1 1th America, Container 
Security Initiative programs are key components to our homeland defense, based 

11 



The International Dimensions of Homeland Security 

on the idea that it makes sense to extend our zone of security outward so that 
American borders are the last line of defense and not the first. 

Through CSI, maritime containers that pose a risk of compromise by terrorists 
are identified and examined at foreign ports before they are shipped to the United 
States. In so doing, the United States hopes to prevent terrorist attacks from being 
carried out by preventing the arrival of dangerous materials to the United States in 
the first instance. 

CSI consists of four core elements: (1) using intelligence to identify and target 
containers that pose a risk; (2) prescreening those containers that pose a risk in the 
port of departure rather than the port of arrival in the United States; (3) using de- 
tection technology to screen containers that pose a risk; and, finally, (4) using 
smarter, tamper-resistant containers. 

Obviously this would be an impossible initiative without our international part- 
ners. When we look to our international partners, despite what you may read on 
occasion, we have tremendous cooperation on all levels in all these initiatives I've 
discussed. They're brought into the decision-making process in the first instance 
and their considerations are taken into account. I think for the most part we've 
done a good job in working both through multilateral and bilateral negotiations to 
make sure their concerns are addressed. 

Intensifying international law enforcement cooperation occurs on many levels. 
Perhaps the most important area is terrorist financing; the ability to freeze assets. 
The Patriot Act 12 greatly assists our international efforts to freeze assets, but obvi- 
ously law enforcement cooperation occurs at intelligence and other levels as well. 

I must again emphasize that the United States is committed to coordinating 
with our international partners to combat terrorism. As part of that coordination, 
the United States provides specialized training and assistance to help build the ca- 
pability to combat terrorism. This occurs not only for military forces but also in the 
civilian agencies. Additionally, the United States hosts seminars to help our inter- 
national partners draft their legislation, and to provide assistance regarding issues 
like MANPADS and bioweapons. The United States also provides equipment from 
time to time and science and technology advice on enhancing border security. 

We're also expanding the protection of transnational critical infrastructure, es- 
pecially with Canada and Mexico. As the events of August 2003, when failures in 
the power grid caused blackouts in large areas of northeastern United States and 
Ontario, Canada bore out, if you have an event in the United States that cascades to 
our neighbors, that is a big problem. 

But it is a greater problem if it were to be part of a terrorist attack preventing first 
responders who rely on the power grid to respond and execute their initiatives. Be- 
cause we share such a large border with our friends in Canada and Mexico, a lot of 

12 



Ryan P. Stiles 

our security, especially cybersecurity and obviously electrical security, crosses that 
border. So we work with them to help make sure that those systems are more se- 
cure from terrorist attack. 

We also amplify international cooperation on homeland security through sci- 
ence and technology, a key concept being biosensors and also sensors of nuclear ra- 
dioactive material. We work on science and technology with our international 
partners and once that technology is developed, we provide that to those friendly 
nations as well so that we can assist them in combating terrorism on their own 
shores as well as here. Other countries which haven't yet been targeted by terrorism 
still have an interest in ensuring that biological, chemical and nuclear weapons 
aren't being transited through their country. 

We also work on improved cooperation and response to attacks. Last May, the 
United States staged a massive terrorist attack simulation to test our new plans. Ca- 
nadian officials were involved in role playing. The scenario provided for simulated 
terrorist attacks in Seattle and Chicago. The hypothetical Chicago attack occurred 
at a Chicago Bulls-Toronto Raptors basketball game. 

After the game the Raptors and their supporting contingent got back on their 
plane and returned to Canada, only then to realize that an attack had been carried 
out. So they had already spread the agent that was released in Chicago. This simula- 
tion allowed for cross-national planning on how the two countries could carry out 
a coordinated response, e.g., determining whether or not the border could be or 
should be shut down. 

The United States, at the federal government level, looks to make sure we're po- 
sitioned to deal with almost any imaginable scenario. We've gotten very good at 
doing "red cell" planning to hypothesize the full variety of attacks, although there is 
still considerable room for improvement. We'll never know until the next attack 
occurs, but the United States Government is very focused on making sure that 
there are preparations made for any kind of attack. 

Finally, reviewing international obligations, international treaties and laws. 
We also work on a bilateral basis to negotiate and renegotiate Mutual Legal Assis- 
tance Treaties (MLATs). These assist US law enforcement agencies in gathering 
and exchanging information and evidence with foreign authorities for use in 
criminal trials. 

We have many different international fora we can use to secure our interna- 
tional objectives. Obviously the United Nations plays an important role, as well as 
the Organization of American States and other regional groups, the G-8, and the 
International Civil Aviation Organization (ICAO). 

One of the great concerns of the G-8 is the MANPADS threat. ICAO handles 
biometric passport issues. I am too technically illiterate to assist the determination 

13 



The International Dimensions of Homeland Security 

of whether there should be a 32-bit contactless chip embedded in a passport, but I 
do know we must have one uniform, worldwide readable document so we don't 
have some countries developing a technical form of passport. 

In conclusion, as President Bush states, "We will not achieve these goals over- 
night [But] we will prevail against all who believe they can stand in the way of 

America's commitment to freedom, liberty, and our way of life." 13 But as we strive 
to reach those goals a key component is our international efforts. We will not se- 
cure America if we only secure the homeland from within our hard borders. We 
have to work with our international partners. We've had great success so far and we 
continue to hope to have that kind of success in the future. 

Now many critics have said that the war on terror is not a winnable war, but the 
same critics said that about the Cold War as well. We must eradicate terror as an ac- 
cepted tactic in warfare. Some people say again that's impossible, but I ask you to 
compare other forms of warfare and tactics that were previously acceptable and 
widespread, but now, for the most part, have been eradicated or substantially re- 
duced as a tactic of war. Look at slavery, piracy, and genocide. Today these are 
among the universal crimes, but for hundreds, if not thousands, of years these were 
looked upon as acceptable methods of conducting war. 

It's going to take a long time to drive terrorism into the same dustbin, but the US 
Government is giving its best to put an end to this evil. We again thank our interna- 
tional partners for their help in making us secure in our homeland and we will con- 
tinue to work with them to secure theirs as well. Thank you. 

Notes 

1. Office of Homeland Security, National Strategy for Homeland Defense (July 2002), available 
at http://www.whitehouse.gov/homeland/book/. 

2. Id. at 2. 

3. Homeland Security Presidential Directive/Hspd-17, Critical Infrastructure Identification, 
Prioritization, and Protection U 3 (Dec. 17, 2003), available at http://www.whitehouse.gov/ 
news/ releases/2003/ 1 2/print/2003 1 2 1 7-5.html. 

4. National Strategy for Homeland Security, supra note 1, at 2. 

5. The Transit Without Visa program was suspended on August 2, 2003. US Department of 
Homeland Security, Press Release, Aug. 2, 2003 ("Recent specific intelligence indicates that 
terrorist groups have been planning to exploit these transit programs to gain access to the U.S. or 
U.S. airspace without going through the consular screening process."), available at http:// 
travel.state.gov/visa/visa_1248.html. 

6. Various news organizations reported that the classified "Continuity of Operations" Plan was 
activated after 9/11. See, e.g., Barton Gellman & Susan Schmidt, Shadow Government Is at Work 
in Secret; After Attacks, Bush Ordered 100 Officials to Bunkers Away From Capital to Ensure Federal 
Survival, WASHINGTON POST, Mar. 1, 2002, at AOL 



14 



Ryan P. Stiles 

7. Office of the President of the United States, The National Security Strategy of the United 
States (Sept. 2002), reprinted in 2002 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL 
LAW 947, available at http://www.whitehouse.gov/nsc/nss.pdf. 

8. Office of Management and Budget, 2003 Report to Congress on Combating Terrorism 3 
(Sept. 2003), available at http://www.whitehouse.gov/omb/inforeg/2003_combat_terr.pdf. 

9. Id. 

10. Homeland Security Presidential Directive- 1 , Organization and Operation of the Homeland 
Security Council (Oct. 29, 2001), available at http://www.whitehouse.gov/news/releases/ 2001/ 
10/2001 1030-l.html. 

11. For information on the Bush Administration's organization of the National Security 
Council, see National Security Presidential Directive- 1, Organization of the National Security 
Council System (Feb 13, 2001), available at http://www.fas.org/irp/offdocs/nspd/nspd- 1. htm. 

12. National Strategy for Homeland Defense, supra note 1, at 21. 

13. Id. at 12. 

14. Pub. L. No. 107-56, 115 Stat. 272 (2001). 

15. George W. Bush, The White House, July 16, 2002, in National Strategy for Homeland 
Defense, supra note 1 . 



15 




PART II 



COMPARATIVE APPROACHES TO SECURITY 

AND 
MARITIME BORDER CONTROL 



II 



Comparative Approaches to Security and 
Maritime Border Control 



Dale Stephens' 



Remarkably perhaps, the question of maritime border protection attracted an 
unprecedented level of political debate during the course of the Australian 
federal election of November 2001, ultimately becoming a significant issue in de- 
ciding the outcome of that contest. Indeed, the election became, in essence, a refer- 
endum on the Federal Government's revised policy concerning strict maritime 
border protection measures designed to prevent the influx of illegal migrants arriv- 
ing by sea into Australia. This issue was principally ignited by the Australian Gov- 
ernment's stance in denying the admission into Australia of 433 illegal migrants 
rescued by the Norwegian container ship MV Tampa ] in August of that year and 
the subsequent passage by the Australian Parliament, on September 26, 2001, of 
omnibus border protection legislation that provided for a robust legal regime. 2 
This new legislative scheme infused the Australian Defence Force (ADF) with sig- 
nificantly greater authority to intercept and remove suspected illegal entry vessels 
from Australia's maritime zones. There is no doubt that the reverberations of the 
attacks of September 11, 2001 (hereinafter referred to as 9/11), which were in- 
tensely felt within Australia at the time, also heavily influenced approaches to the 



* Commander, Royal Australian Navy. The views expressed in this article are those of the author 
alone and do not necessarily represent the views of the Australian Government, the Australian 
Defence Force, or the Royal Australian Navy. 



Security and Maritime Border Control 



issue of maritime border protection by both the Government and the Australian 
population. Such reverberations, in conjunction with the emotions generated by 
the Bali bombings of October 2002, 3 continue to largely influence approaches to 
maritime border protection issues within the Australian body politic, though not 
without criticism by significant segments of the Australian public. 

The unprecedented level of political debate relating to maritime border protec- 
tion at the time of the election has been matched by an equally intense academic 
debate as to the lawfulness of actions taken by the ADF in intercepting incoming 
vessels carrying unlawful immigrants and denying them entry into Australia. The 
lawfulness of the actions undertaken by the ADF in implementing the Govern- 
ment's stringent border protection policies were also the subject of domestic litiga- 
tion (which occurred while such operations were ongoing) within the Australian 
Federal Court, as well as a fulsome and comprehensive Senate Inquiry following 
the 2001 election. 

The legal issues, which have been hotly debated with respect to these events, are 
possibly familiar to an American audience. They concern questions of constitu- 
tional capacity, especially the extent of executive power to direct military opera- 
tions under the constitution in the face of potentially contrary legislative direction. 
They also touch on issues of international law relating to law of the sea rights and 
obligations and, of course, issues concerning the incorporation of international 
law within domestic law and the priority of either domestic or international law in 
operational decision making. 

The Australian Defence Force and its Law Enforcement Role 

The Australian Defence Force generally, and the Royal Australian Navy (RAN) in 
particular, have a solid tradition of exercising law enforcement powers on behalf of 
the Commonwealth Government. Unlike restraints imposed upon parts of the US 
military, there is no comparable Posse Comitatus Act 4 limitation on the use of the 
ADF or RAN to enforce federal law. To the contrary, provisions of Australian 
Commonwealth law specifically authorize military members to exercise necessary 
law enforcement powers. Indeed, when the issue was peripherally raised in a con- 
stitutional context in the 1970s, a justice of the High Court of Australia noted in 
dicta that he could not conceive of any inherent limitation on the use of the ADF to 
enforce laws of the Commonwealth Government. 5 Such a reflection is entirely con- 
sistent with Australian constitutional interpretive methodology dating to the 
1920s, which has traditionally given full effect to the terms of Commonwealth 
laws provided they are based upon a requisite head of constitutional power. Con- 
comitantly, the courts have been slow to impose any implied personal rights or 

20 



Dale Stephens 

obligations arising from the Constitution which might act to restrict ADF law en- 
forcement capacity. Indeed, there is no equivalent of the Fifth or Fourteenth 
Amendments to the US Constitution in the Australian Constitution nor is there 
the same historical experience that led to the passage of the Posse Comitatus Act in 
the United States, namely post-Civil War Reconstruction and the fear of martial 
excess. 6 

As a result of the broad constitutional capacity of the ADF to enforce Common- 
wealth laws, there has developed a relatively large, though disparate, corpus of law 
that guides RAN maritime law enforcement operations, particularly that of the pa- 
trol boat force operating off of northern Australia. In essence, the ADF has respon- 
sibility under Commonwealth legislation for such diverse areas as fisheries, 
customs, migration, and quarantine control, and more generally for issues such as 
anti-piracy. Notwithstanding this broad range of subject matter, the powers exer- 
cisable by the ADF differ according to the particular subject, thus the specific piece 
of legislation under which operations are being conducted will shape the powers 
and responsibilities of ADF officers. Importantly, there exist significant differences 
between various applicable pieces of legislation. 

Fisheries enforcement has traditionally occupied the central focus of ADF law 
enforcement operations and has involved both major and minor RAN vessels. 
Thus, Australia routinely deploys a major fleet unit to its territories of Heard and 
McDonald Islands located in the Southern Indian Ocean (approximately 4100 ki- 
lometers southwest of Perth, Western Australia) to intercept major foreign fishing 
vessels engaged in wide-scale commercial fishing activities. Such deployments have 
led to some dramatic enforcement actions including one in particular, which is be- 
lieved to be the longest hot pursuit in recorded history. 7 More generally, fisheries 
enforcement largely occurs in the northern Australian Exclusive Economic Zone 
(EEZ) with respect to lower scale illegal fishing activity. For example, in the first 
four months of 2004, there were 48 interceptions of foreign illegal fishing in that 
region. 8 With respect to customs enforcement, the ADF usually acts in conjunction 
with the Australian Federal Police, typically focusing on maritime drug interdic- 
tion operations. In 2003 for example, the RAN deployed a guided missile frigate 
with a contingent of Special Air Service (SAS) troops on board to successfully in- 
tercept a North Korean freighter that had landed 150 kilograms of heroin on the 
southern Australian mainland. 

MV Tampa and Border Protection 

As previously mentioned, the Tampa incident generated considerable debate 
within Australian political and legal circles. The timing of that incident, coinciding 
as it did with 9/11, witnessed a subtle revision of approach regarding the question 

21 



Security and Maritime Border Control 



of illegal entry — from one of mere migration control to one with greater national 
security overtones. This in turn has influenced the nature of legal analysis of the in- 
ternational and domestic legal rights that may be exercised in maritime border 
control actions and has influenced contemporary policy and legal choices. 

The MV Tampa Case 

On August 26, 2001, the Norwegian container ship Tampa rescued 433 people 
from a grossly overloaded and sinking Indonesian-flagged wooden-hulled vessel in 
the Indian Ocean. That vessel had been attempting to reach Australia from Indo- 
nesia as part of a people-smuggling operation and, accordingly, the persons on 
board did not possess lawful entry visas. Having rescued the crew and passengers, 
the Tampa's Norwegian master intended to return them to an Indonesian port to 
disembark them, when a decision was made to divert to Australian territory. The 
master then sought to drop them at Christmas Island, an Australian territory close 
to Indonesia. Representatives of the Australian Government contacted the ship 
and informed the master that the ship did not have permission to enter Australian 
waters and could not disembark the migrants. The master responded by claiming 
that some of the migrants on board were suffering from dire medical emergency 
and thus relied upon the right of "distress" to demand entry into the port facilities. 
Australian authorities countered by preparing medical teams to fly out to the vessel 
to address the alleged medical emergencies. During the course of planning the pro- 
vision of medical assistance, the ship steamed into the Australian territorial sea sur- 
rounding Christmas Island and was then boarded by 45 SAS soldiers who traveled 
by fast boat to the vessel. Through a dramatic standoff during the next few days, the 
vessel was visited by the Norwegian Ambassador to Australia who received a note 
from the migrants outlining their assertions of refugee status. Proceedings were si- 
multaneously filed in the Federal Court by public interest lawyers seeking an order 
of habeas corpus to compel the Australian Government to bring the migrants into 
Australian jurisdiction. The Government sought to prevent such access. The mi- 
grants appeared to be from a number of countries, including Afghanistan, Iraq, 
Kuwait, Sri Lanka and Pakistan. 

After several days, the illegal migrants were voluntarily transferred to an Austra- 
lian naval vessel and transported to the island nation of Nauru where representa- 
tives of Australia and the United Nations High Commissioner for Refugees 
(UNHCR) subsequently processed their applications. The Australian Government 
was aware that this was the commencement of a wave of vessels carrying persons 
seeking refugee status and ultimately implemented Operation Relex, which was 
designed to prevent entry into Australian internal waters by such craft. 9 Approxi- 
mately a dozen vessels attempted to transport illegal migrants to Australia 

22 



Dale Stephens 

following the Tampa incident; the ADF/RAN successfully intercepted all of these 
vessels. 10 

Legal Issues Raised 

The ability to intercept vessels carrying unlawful migrants is addressed within the 
1982 United Nations Convention on the Law of the Sea (Law of the Sea Conven- 
tion) in Article 33, which permits a coastal State the authority to exercise "the con- 
trol necessary" within the contiguous zone to prevent infringement of 
immigration laws. Accordingly, as a matter of international law there can be no 
question of attracting state responsibility on the part of the coastal State for the in- 
terference with navigational rights of vessels infringing such laws. Additionally, 
such authority exists, a fortiori, in the territorial sea where Article 19(g) expressly 
notes that the loading/unloading of persons contrary to coastal State immigration 
laws "is prejudicial to the peace, good order or security" of that State and consti- 
tutes passage which, under Article 25, a coastal State may "take the necessary steps" 
to prevent. 

The difficulty confronting the Australian action lay with the application of do- 
mestic law concerning ADF powers. The Australian Migration Act provided for a 
highly formalized procedure with which "Commanders" of duly commissioned 
ships were required to comply in order to exercise powers relating to the detention 
of illegal immigrants. Moreover, the Act seemed to generally contemplate that per- 
sons detained would be conveyed into Australian Migration Act jurisdiction (i.e., 
land territory) rather than removed from it. On the day SAS forces boarded the 
Tampa, the SAS were not acting in accordance with powers pursuant to the Migra- 
tion Act. They were neither duly appointed "Commanders" for the purposes of the 
Act nor were they in command of a commissioned ship as required by the Act, but 
rather were acting pursuant to specific Government direction under the executive 
power of the Constitution. This executive power is exercisable in circumstances of, 
inter alia, national security and is identical to the type of power President Truman 
unsuccessfully sought to exercise in the Youngstown case. 1 1 The difficulty facing the 
Commonwealth in relying upon the executive power in the context of the Tampa 
interception was that it was squarely the type of situation described by Justice Jackson 
in the Youngstown case as being one where the Legislature had passed specific legis- 
lation, which essentially directed an incompatible regime. As with the result 
reached in the Youngstown case, it seemed to be a very precarious basis upon which 
to base military action. Indeed, a single Judge of the Australian Federal Court that 
decided the Tampa case in the first instance determined the matter against the 
Commonwealth. 12 Subsequently, however, the matter was decided in favor of the 
federal Commonwealth Government on appeal by a 2-1 majority. 13 The opinion of 

23 



Security and Maritime Border Control 



one the majority Justices on appeal expressly acknowledged that the Common- 
wealth possessed sufficient constitutional authority by use of the executive power 
to prohibit illegal entry in terms that seemed to correlate such denial with national 
security goals. It was a remarkably wide reading of prerogative powers and, signifi- 
cantly, was handed down on September 16, 2001. It seems very plausible that the 
events of 9/1 1 did influence judicial thinking, especially as the author of the opin- 
ion envisaging such a wide interpretation of prerogative powers was not expected 
to have decided the matter in the way he did. 14 

The decision has been criticized by some academic commentators for failing to 
properly have regard to implicit international obligations contained within the 
1951 Refugee Convention 15 to which Australia is party. 16 Indeed, the issue seems to 
have been discussed in the literature as highlighting new and possibly intractable 
tensions between national security concerns arising from the "war on international 
terrorism" and humanitarian obligations to accord basic procedural rights to all 
unlawful migrants arriving by sea so as to properly determine who may have a bona 
fide claim to refugee status. 

It is against this background that the border protection legislation that was 
passed in September 2001 maybe better understood. 17 Under the current domestic 
legal regime outlined in the Migration Act, the ADF is empowered to intercept all 
vessels suspected of containing unlawful migrants entering the contiguous mari- 
time zone and may remove such vessels either to a nominated third country pro- 
cessing center or simply to a "place" seaward of the contiguous zone. This latter 
method of removal necessarily gives rise to potential objections under the Law of 
the Sea Convention with respect to the capacity to detain, and indeed tow, foreign- 
flagged vessels across international waters. There are a number of answers that 
might be offered to such objections. First, while Australia has ratified the Law of the 
Sea Convention, there exists no mechanism of self-executing treaty implementa- 
tion within Australia such as exists within the United States. Accordingly, while 
some aspects of the Law of the Sea Convention have been incorporated into Aus- 
tralian domestic law, it is certainly not a comprehensive incorporation and there is 
no inconsistency with the amended Migration Act legislative powers to remove 
such vessels. This does not, of course, answer potential questions of state responsi- 
bility that might arise from interfering with freedom of navigation rights of the flag 
State of the vessel, yet notwithstanding ADF actions there has yet to be any kind of 
claim raised by any nation State that has alleged breach of such obligations. Sec- 
ond, and in partial answer to the first issue, the practice to date has been to tow only 
those vessels with Indonesian nationality under the terms of a "letter of notice" 
provided to Indonesia advising of such intent to return Indonesian flagged vessels 
carrying unlawful migrants. The return of such vessels to the 12nm edge of the 

24 



Dale Stephens 

Indonesian coast under Operation Relex was observed by Indonesian authorities 
without protest and Australian international lawyers have characterized this for- 
bearance as "constructive acquiescence." 

The issue of unlawful immigration and border control mechanisms has neces- 
sarily been brought into sharper relief in the context of the war against terrorism. 
Notwithstanding the navigational regime contemplated in the Law of the Sea Con- 
vention pertaining to the application of immigration laws in the contiguous zone 
and territorial sea only, the general jurisdictional rules of international law con- 
cerning both territorial and prescriptive jurisdiction relating to national security 
controls does admit to an extended reach of application beyond these maritime 
zones. Under these principles it is entirely arguable to admit to the extra territorial 
application of migration controls that might be exercised within international wa- 
ters where this is deemed to be a necessary incident of preserving national security 
interests. Indeed, the skein of authority emanating from a US Court of Appeals and 
the US Supreme Court, respectively, in the Nippon Paper 18 and Hartford Fire 19 
cases would seem to lend support for such reach, at least in circumstances where 
the intent of foreign actors is to unlawfully interfere with domestic activities and 
their conduct in fact produced or is likely to produce a substantial effect. More 
trenchantly, the adoption of United Nations Security Council Resolution 1373 20 
on September 28, 2001 would seem to provide ample Chapter VII authority to 
override objections of navigational interference reflected in the Law of the Sea 
Convention. Resolution 1373 deals with international terrorism in the context of 
the post-9/11 environment. Article 2(g) thereof calls upon States, acting under 
Chapter VII authority, to "prevent the movement of terrorists or terrorist groups 
by effective border controls." Pursuant to Articles 25 and 103 of the Charter, which 
demand compliance with such decisions and provide for the overriding of incon- 
sistent provisions contained in any international agreement, such a stipulation 
could readily displace navigational rights of vessels carrying unlawful migrants in 
circumstances where there is a suspicion of terrorist connection. The requisite level 
of suspicion of terrorist connection required to authorize action need not neces- 
sarily be high. The academic Derek Jinks has persuasively argued that in the con- 
text of international terrorism the rules of state responsibility have been applied by 
virtue of both Resolution 1373 and international consensus to significantly lower 
the threshold of attribution between private actors and the State in circumstances 
where the State merely harbors or supports such actors. 21 Such a development fur- 
ther dilutes the original tests promulgated by the International Court of Justice 
(IC) in the Nicaragua case 22 and the International Criminal Court for the Former 
Yugoslavia in the Tadic appeal 23 regarding attribution criteria. While such an ap- 
proach may be critiqued for being both under and over inclusive, 24 it nonetheless 

25 



Security and Maritime Border Control 



grounded offensive military action in Afghanistan in 2002 and thus opens the door 
for consideration of lesser forms of control mechanisms. If such action is accept- 
able in the context of offensive military operations then surely it permits a State to 
tighten maritime border controls beyond the traditional limits of the contiguous 
zone and thus authorize preventative action within international waters where this 
is deemed necessary to preserve both national and international security. That 
such a proposition relies upon the authority of Resolution 1373, as it does, is hardly 
revolutionary. As far back as 1949 in the ICJ's Corfu Channel decision, the highly 
respected Judge Alvarez pointedly acknowledged the capacity of the Security 
Council to vary maritime navigational rights where this was necessary to preserve 
international peace and security and fully accepted the consequential diminution 
of sovereign rights that such actions might entail. 25 Indeed, as evidenced by the 
Certain Expenses 26 and Namibia 27 decisions of the ICJ, the challenge of interna- 
tional lawyers today seems not so much as deciding what the Security Council can 
do, but rather determining the limits of what it may not do. 28 

The clash between national security measures as applied in the context of border 
control actions and humanitarian aspirations of those seeking asylum and human 
rights obligations of the coastal State does raise uncomfortable conundrums. In the 
current environment of the war on terrorism, States such as Australia are choosing 
to accord national security and the orderly processing and screening of asylum 
seekers within countries of origin (rather than on the shores of Australia) a higher 
priority. While such a choice might be criticized on both legal and policy 
grounds, 29 it is not altogether unique within the domestic jurisprudence of a num- 
ber of countries who have faced similar issues. The US Supreme Court in Sale v. 
Haitian Centers Council 30 for example, in an 8-1 majority decision determined 
that high seas interdiction of Haitian asylum seekers did not attract obligations un- 
der the Refugee Convention 31 as the Court construed neither the Convention nor 
supporting US domestic law as applying beyond territorial boundaries of the 
United States. 32 Similarly, the UK Court of Appeal in the recent 2002 decision of A 
v. Secretary of State for the Home Department 33 determined that measures adopted 
by the UK Government following 9/11 to detain and expel non-nationals dero- 
gated from a host of international human rights guarantees (detention policies and 
rights to a fair trial) but were nonetheless acceptable as derogations which could be 
justified in times of public emergency. What is intriguing in that instance was that 
the UK Government's detention of non-nationals was directed more at the threat 
such non-nationals posed to the United States than the United Kingdom, but 
nonetheless such actions were unanimously upheld by the Court. 



26 



Dale Stephens 

Multilateral Cooperation 

While invocation of national security measures to inform approaches to maritime 
border control suggest a theme of arrogant unilateralism, this is not necessarily the 
case. The experience of maritime law enforcement by Australia within the region 
has been one of exceptionally constructive co-operation. This has been particularly 
pronounced with Australia's near neighbors such as Papua New Guinea and Indo- 
nesia and more generally with countries situated in the South West Pacific under 
the Nuie Treaty, 34 but has also extended more broadly to countries situated within 
the Indian Ocean which was amply demonstrated by the South Tomi incident of 
early 200 1. 35 

In that instance, a Togolese registered vessel had engaged in illegal fishing activ- 
ity at Heard and Macdonald Islands and was pursued from the EEZ of those islands 
by an Australian Fisheries Authority vessel in a two-week hot pursuit that extended 
along the entire southern length of the Western Indian Ocean to the coast of South 
Africa. During the course of the pursuit offers of warship assistance were received 
from French authorities who occupied the French possession of Kerguelen Island 
and, similarly, South African authorities who were exceptionally helpful when as- 
sistance was requested. In the event, an Australian military boarding team was dis- 
patched to South Africa and transited through that country for deployment upon a 
South African warship that met South Tomi as it rounded the Cape of Good Hope. 
With hastily prepared complementary rules of engagement and mutually agreed 
understandings of the legal issues involved, Australian military members (who 
were also authorized fisheries officers under the relevant legislation) successfully 
apprehended South Tomi from the flotilla of South African warships that had 
steamed out into international waters to intercept the vessel. An Australian steam- 
ing party was placed onboard South Tomi and the vessel returned back to Western 
Australia where the ship and catch were forfeited and the master prosecuted. From 
a Law of the Sea Convention perspective, the incident raised a number of interest- 
ing legal issues which included, in particular, the capacity of one nation to hand 
over hot pursuit to another nation while still maintaining law enforcement juris- 
diction upon apprehension. In that regard, the Convention merely makes refer- 
ence to "government ships" without mentioning the nationality of such ships as an 
integral criteria for hot pursuit. Similarly, the question of whether the skirting of 
South Tomi through the territorial sea of Kerguelen Island would have rendered 
the hot pursuit otiose even when the coastal State, in this case France, did not ob- 
ject to the continued pursuit. In any event, this latter issue was not in issue, for 
while South Tomi seemed intent on entering the French territorial sea at Kerguelen 
Island it eventually diverted its track and did not do so. 

27 



Security and Maritime Border Control 



The international legal issues thrown up by the South Tomi incident were never 
tested within international legal or diplomatic fora as Togo made no representa- 
tions on behalf of the vessel upon its arrest or subsequent prosecution. The issues 
nonetheless demonstrated the unilateral nature of many of the rights contained 
within the Law of the Sea Convention. It seemed a very odd outcome that notwith- 
standing the co-operation of so many nations in seeking to apprehend this vessel, 
that the terms of the Convention had, in theory at least, the capacity to defeat this 
intent. 

Conclusion 

The tightening of its maritime border control laws by the Australian Government 
has generated considerable academic criticism by those who validly rue the subor- 
dination of humanitarian priorities. Such measures have nonetheless been sup- 
portable under a sheath of domestic and international legal authority and, 
moreover, have proven to be extremely effective in stemming the tide of seaborne 
unlawful migrants. Australian embassies in countries of origin apply the very same 
tests for refugee status in those countries as would apply to the hapless asylum 
seeker washing up on Australian shores. 

The events of 9/1 1 and the associated war on terrorism continue to resonate in 
approaches to maritime security issues and have permitted the ascendancy of na- 
tional and international security measures which have the potential to override 
long standing navigational rights. The key in confronting international terrorism 
and ensuring adequate maritime border security is striving for multilateral cooper- 
ation rather than resolute reliance upon unilateral rights. The experiences of the 
ADF/RAN in undertaking law enforcement measures within our region in concert 
with countries such as South Africa, France and Papua New Guinea have amply 
demonstrated the magnificent ability to "force multiply" military means so as to 
secure common ends. Such co-operation is of course key to ensuring effective mar- 
itime border security and more broadly to ensuring a durable victory in this war we 
are fighting against the scourge of international terrorism. 

Notes 

1 . See infra note 9 and accompanying text. 

2. Border Protection (Validation and Enforcement Powers) Act 2001, available at http:// 
www.australianpolitics.com/parliament/legislation/01-08-29_border-protection-bill.shtml. 

3. The terrorist bombing occurred in Kuta, Indonesia on the Island of Bali on October 12, 2002. 
Among the 202 people killed in the attack were 88 Australian nationals. A description of the 
events of that tragic event is available at http://www.answers.com/topic/2002-bali-bombing. 



28 



Dale Stephens 

4. Act of June 18, 1878, § 15 (codified in 18U.S.Code§ 1385 (1994)). 

5. Gibbs J. in Li Chia Hsing v Rankin (1978), 141 COMMONWEALTH LAW REPORTS 182, 195. 

6. See generally Nathan Canestaro, Homeland Defense: Another Nail in the Coffin for Posse 
Comitatus, 12 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 99 (2003). 

7. The Uruguayan long-liner fishing vessel Viarsa /was sighted on August 7, 2003 fishing in the 
Australian Exclusive Economic Zone. A 6300 kilometer pursuit followed, which ended with the 
Viaras f s capture on August 28. See Illegal Boat Set to Dock, THE ADVERTISER (Adelaide, 
Australia), Sept. 30, 2003, at 24. An earlier second extended pursuit involved the South Tomi, a 
South African-registered, Spanish-owned trawler On March 29, 2001 the South Tomi was 
observed by an Australian Fisheries Management Authority vessel to be engaged in unlawful 
fishing in the Australian Exclusive Economic Zone near Heard and McDonald Islands. Ignoring 
an order to proceed to Fremantle, a 4100 kilometer pursuit ensued, with the South Tomi finally 
being captured on April 12. See 8000 KM Sea Chase - Pirate Trawler Caught After Hot Pursuit, 
THE DAILY TELEGRAPH (Sydney, Australia), Apr. 14, 2001, at 11; Fish Pirates Chased Across 
Ocean SAS Troops Pounce Out of Africa, COURIER MAIL (Queensland, Australia), Apr. 14, 2001, 
at 3. For a complete discussion of both events, see Erik Jaap Molenaar, Multilateral Hot Pursuit 
and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa I and the South Tomi, 19 
International Journal of Marine & Coastal Law 19 (2004). 

8. See generally Blitz On Illegal Fishing Boats Catches Nine Indonesian Vessel, Vol. 6, Issue No. 
22, WEEKLY DIAR.COM E-NEWSLETTER, available at http://www.diar.com/data/news04 
.htm#Anchor-May-59504. 

9. For a description of the MV Tampa incident and of Operation Relex, see Parliament of 
Australia: Select Committee Inquiry on a Certain Maritime Incident, Ch. 2, Operation Relex, 
available at http://www.aph.gov.au/senate/committee/mar.time_incident_ctte/report.htm. 

10. See Operation Relex, in Wikipedia, available at http://.wikipedia.org/wiki/Operation 
_Relex. 

11. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 

12. Victorian Council for Civil Liberties Inc. v. Minister for Immigration & Multicultural 
Affairs (2001) 110FCR452. 

13. Ruddockv.Vardarlis(2001) 110FCR491. 

14. See Penelope Mathew, Current Development: Australian Refugee Protection in the Wake of the 
Tampa, 96 AMERICAN JOURNAL OF INTERNATIONAL LAW 661, 662 (2002). 

15. Convention Relating to the Status of Refugees, July 25, 1951, 189 U.N.T.S. 150. 

1 6. See generally Penelope Mathew, International Association of Refugee Law Judges Conference: 
Address - Legal Issues Concerning Interception, 17 GEORGETOWN IMMIGRATION LAW JOURNAL 
221 (2003). 

17. The border protection legislation of September 2001 is a package of three separate acts 
pertaining to border protection issues that were enacted by the Australian Parliament in the 
wake of the terrorist attacks of 9/1 1. That package includes the Migration Legislation (Excision 
from Migration Zone) Act 2001, the Migration Amendment (Excision from Migration Zone) 
(Consequential Provisions) Act 2001, and the Border Protection (Validation and Enforcement 
Powers) Act 2001. See also supra note 2. 

18. United States v. Nippon Paper Industries Co., Ltd., 109 F.3d 1 (1st Cir. 1997), cert, denied 
522 U.S. 1044. 

19. Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993). 

20. SC Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001), availableat http://daccessdds.un.org/ 
doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement. 



29 



Security and Maritime Border Control 



21. Derek Jinks, State Responsibility for Sponsorship of Terrorist and Insurgent Groups: State 
Responsibility for the Acts of Private Armed Groups, 4 CHICAGO JOURNAL OF INTERNATIONAL 
LAW 83 (2003). 

22. Military and Paramilitary Activities (Nicar v. US), 1986 ICJ 14 (June 27). 

23. Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY 1999), available at http://www.un.org/icty/ 
tadic/appeal/judgement/tad-aj9907 1 5e.pdf. 

24. Jinks, supra note 19, at 92-4. 

25. Corfu Channel (Merits) (U.K. v. Alb.), 1949 I.C.J. 4, 41 (Dec. 15). 

26. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory 
Opinion, 1962 I.C.J. 157 (July 20). 

27. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South 
West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Opinion, 1971 
I.C.J. 16 (June 21). 

28. Jose E. Alvarez, Judging the Security Council 90 AMERICAN JOURNAL OF INTERNATIONAL 
Law 1 (1996). 

29. Mathew, supra note 14. 

30. Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993). 

3 1 . Convention Relating to the Status of Refugees, supra note 13. 

32. See Mathew, supra note 14, at 667-8, where the author criticizes the reasoning adopted by 
the majority in that instance. 

33. [2002] EWCA Civ 1502 Case No: C/2002/1710 of Oct. 25, 2002. 

34. Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South 
Pacific Region, July 9, 1992, 32 INTERNATIONAL LEGAL MATERIALS 136 (1993), available at 
http://fletcher.tufts.edu/multi/texts/niue.txt. 

35. Supra note 7. 



30 



Ill 



European and German Security Policy 
and International Terrorism 



Torsten Stein* 



German security policy cannot be separated from that of the European Union, 
especially when it comes to border controls as one of its principal elements. 
Since the 1970s, the European Union (then the European Economic Community 
(EEC)) has been engaged in harmonizing the Member States' security policy, 
which has, in the light of the ongoing European integration, become one of its pri- 
mary goals, especially with regard to the enlargement of the European Union, which 
took place on May 1, 2004. The importance of both European and transatlantic co- 
operation in this field cannot therefore be overemphasized, particularly since the 
events of September 11, 2001, which have confronted all States with a new threat. 1 
The most prominent feature of the threat posed by international terrorism is the 
changed profile of its perpetrators: Al Qaida, and the persons and organizations as- 
sociated with it, is not confined to nations, regarding either its members or its aims. 
The offenders are recruited from various countries and together constitute an in- 
ternationally organized structure of terrorism, of which all Western societies can 
be victims, as witnessed last in Madrid. From a sociological point of view, this in- 
ternational terrorist structure differs from all known criminal groups. The 



* Professor of International, European Union and Comparative Constitutional Law and 
Director, Institute of European Studies (Law Department), University of Saarland, Saarbnicken, 
Germany. 



European and German Security Policy and International Terrorism 

spectrum reaches from illiterate religious fanatics to highly educated businessmen 
with international experience. 2 The focus of this article shall therefore be on the de- 
velopment of border controls and their effectiveness in the fight against interna- 
tional terrorism. 

Legal Regime for Security Policy and Border Controls in Europe and Germany 

The ongoing European integration has brought Europe's citizens not only eco- 
nomical, but also great personal freedom, a development which found its climax in 
the introduction of EU citizenship by the Maastricht Treaty on European Union. 3 
But by granting those freedoms, a need for coordinating justice and home affairs 
became obvious. Starting with the Naples Agreement on the Cooperation of Cus- 
toms Services in 1967, 4 informal governmental cooperation in the area of justice 
and home affairs has evolved. In this context, the TREVI Group, 5 mandated to 
combat terrorism, illegal immigration and organized crime, and composed of ex- 
ecutives of the Member States' respective authorities, was created. The Single Eu- 
ropean Act of 1986, 6 which introduced the concept of the Single Market, brought 
about the need to create a balance between market freedoms and security interests, 
especially as far as controls of the EEC's external borders and the creation of a com- 
mon European asylum and immigration policy were concerned. 

The Schengen Regime 

Due to the difficult and tedious process of reconciling policies in the area of justice 
and home affairs, France, Germany and the Benelux countries concluded the 1985 
Schengen Agreement 7 with a view to abolishing controls at the internal borders, 
harmonizing measures in the area of visas and asylum policy, and creating police 
and judicial cooperation. The 1990 Schengen Implementation Agreement (SLA) 8 
codified the abolishment of internal border controls, laid down the procedure for 
controls at the external borders, and provided common rules for issuing short- 
term visas and for determining jurisdiction for asylum requests according to the 
Dublin Agreement. 9 The SIA came into force in 1995. The most interesting fea- 
tures of the SIA for the topic of this article are the introduction of cross-border 
pursuit and shadowing and of the "Schengen Information System" (SIS). The lat- 
ter is a computerized network allowing the Member States' police authorities to ex- 
change data on wanted persons as well as stolen goods, e.g., cars. The weak point of 
the SIS is that it is designed to serve only 18 Member States. Therefore, the Euro- 
pean Community Council, at the urging of the Schengen Executive Council 10 (the 
primary organ created by the Schengen Agreements), directed that a second-gen- 
eration Schengen Information System (SIS II) be developed that would take into 

32 



Torsten Stein 



account new developments in information technology and update the system with 
new capacity criteria. 1 1 However, SIS II has not yet been implemented, due to techni- 
cal difficulties. The foregoing agreements, as well as the legal instruments decreed by 
the Schengen organs, collectively constitute the Schengen Regime, which is now ap- 
plicable in all EU Member States except the United Kingdom and Ireland. 12 

The Treaty of Amsterdam, 13 which first stipulated the creation of an area of free- 
dom, security and justice as one of the EU's goals, 14 incorporated the Schengen Re- 
gime into the European Union. 15 The provisions of the Schengen Regime were 
transferred in 1999 16 to the respective legal bases of the Treaty Establishing the Eu- 
ropean Community (TEC) 17 and the Treaty on European Union (TEU). 18 A new 
Title IV on visa, asylum, immigration and other policies related to the free move- 
ment of persons was inserted into the TEC. Since then, the statutory basis for EC 
and EU measures in the areas of justice and home affairs that was before to be 
found in the Schengen Regime can now be found in the TEC and in the TEU. 19 Ac- 
cordingly, the Schengen Regime forms part of the acquis communautaire, which 
the accession States must adopt. Exceptions apply only to the United Kingdom and 
Ireland as States that originally did not sign the Schengen Agreements, as well as 
Denmark, who opted out of some parts of the Maastricht Treaty establishing the 
European Union in 1992. 

Since most of the measures adopted on the grounds of TEC/TEU provisions, ex- 
cept for regulations, need to be transformed into national law by the Member 
States, both EC/EU measures and national laws coexist, but also intertwine. 
Sparked by the innovations of the Amsterdam Treaty, the Council of the European 
Union decided, while meeting in Tampere, Finland in 1999, that the creation of an 
area of freedom, security and justice should be given the same importance as the 
realization of the Single Market. The area of security thus should comprise fighting 
cross-border crime, drug trafficking, illegal immigration and terrorism as the neg- 
ative aspects resulting from the area of freedom. The European Commission was 
mandated to create a scorecard, which, at regular intervals, would show the prog- 
ress in creating an area of freedom, security and justice. 

Europol- Agreement 

Police cooperation between Member States was and is to date a significant aspect of 
an area of security. Therefore, the European Drugs Unit was set up as early as 1995 
as part of the TEU's police and judicial cooperation, 20 enabling Member States to 
exchange and analyze information on criminal acts and assisting national police 
authorities in combating crime. However, the Drugs Unit was subsequently man- 
dated with further competencies in the areas of drug trafficking, illegal dealing of 
radioactive and nuclear materials, illegal immigration, trafficking in human 

33 



European and German Security Policy and International Terrorism 

beings, illegal moving of automobiles and money laundering. The exchange of in- 
formation with the Drugs Unit was carried out via liaison officers in each Member 
State, who had to comply with the respective national laws protecting personal 
data; therefore personal data could not be stored directly with the Drugs Unit. In 
1999, the European Drugs Unit was replaced by the European Police Office 
(Europol), which was established on the basis of the 1995 Europol Agreement. 21 
Europol has essentially the same competencies as its predecessor, the Drugs Unit, 
but it maintains a computerized information system, which is fed with data di- 
rectly from the Member States. Furthermore, personal data can be stored with 
Europol, on condition that it is only used to investigate serious crime falling into 
Europol's competencies. In addition, personal data fulfilling these conditions can 
be processed to third countries and their authorities, subject to an international 
agreement or in a situation affecting vital interests of a Member State or if immi- 
nent danger must be averted. 22 The agreement with the third country must include 
provisions on the type of data to be transmitted, on its recipient and on the purpose 
for which it is required. Also, the question of liability in the case of unauthorized or 
wrongful processing of data needs to be regulated. Should these requirements be 
met, the transfer of data is possible, but limited to law enforcement agencies. How- 
ever, these agencies are obliged to delete the transferred data as soon as they are no 
longer required for the specific purpose intended. 23 

Eurojust 

Besides enhancing police cooperation, the Council of European Union, at its meet- 
ing in Tampere in 1999, decided to expand judicial cooperation in order to im- 
prove the fight against organized crime and agreed on the creation of an agency in 
which prosecutors, judges or police officers with comparable authority would join 
forces. To this end, Eurojust was established in 2002. 24 Article 3 of the Council De- 
cision states that the purpose of Eurojust is to coordinate and facilitate investiga- 
tions and law enforcement between the respective Member States' authorities. 
Article 4, in turn, provides that Eurojust's competence extends to the same forms 
of crime as that of Europol, but in addition Eurojust is mandated to deal with spe- 
cial forms of crime such as computer crime, fraud and corruption, money launder- 
ing as well as unlawful practices causing damage to the environment. Article 14 
authorizes Eurojust to process personal data, but mandates maintenance of a mini- 
mum level of data protection as stipulated in the Council of Europe Agreement of 
January 28, 1981. 25 Furthermore, pursuant to Article 19 of the Council Decision, 
personal data must be deleted if it is wrong or incomplete. This also applies to per- 
sonal data no longer required for the original purpose. 



34 



Torsten Stein 



In order to ensure the effectiveness of police and judicial cooperation, Eurojust 
works closely with Europol and can exchange information to this end. 26 Moreover, 
Eurojust is empowered to conclude cooperation agreements, including provisions 
for the exchange of personal data, with third countries, competent institutions un- 
der the TEU/TEC, international organizations and law enforcement agencies of 
third countries, subject to approval by the Council. 27 

The coming years will determine if the judicial cooperation practiced through 
Eurojust will stand the test of time. In the long run, a truly effective information 
network between investigative and law enforcement agencies within the European 
Union can only be achieved by concluding a formal cooperation agreement be- 
tween Eurojust and Europol, as envisaged in the Council Decision 28 and by giving 
those two agencies access to the SIS, as currently planned. 29 

Legal Instruments in the Fight against Terrorism 

The danger posed by terrorist attacks carried out with nuclear, biological and 
chemical weapons, as well as conventional weapons, calls for determined action by 
all Western States; international terrorism can only be fought by extensive and op- 
timized international cooperation. 

European Level 

As early as 1995 the EU-US Action Plan 30 was established to foster cooperation in 
the fight against the global threats of organized crime, terrorism and drug traffick- 
ing. On a European level, the Council of the European Union, at its Vienna meet- 
ing in December 1998, adopted an Action Plan for implementing the Amsterdam 
Treaty provisions on building an area of freedom, security and justice. 31 The Ac- 
tion Plan underscored the fight against terrorism as one of the EU's aims. Special 
emphasis was also placed on the central role of Europol as an important instru- 
ment of enhanced cooperation between the Member States. However, the mea- 
sures foreseen in the EU Action Plan, as well as the existing measures intended to 
realize an area of security, e.g., provisions of the Schengen Regime and the Europol 
Agreement, did not prove to be effective; a fact that was tragically affirmed by the 
attacks of September 11, the planning of which took place in Germany and re- 
mained undetected. The new security threat called for advanced countermeasures 
on the part of both the European Union and the European Community, as well as 
at the national level in order to confer the necessary competencies upon the au- 
thorities responsible for protecting the population and fighting the latent danger. 
Therefore, the Council of the European Union at its extraordinary meeting of 
September 21, 2001 agreed on an Action Plan specifically aimed at combating 

35 



European and German Security Policy and International Terrorism 

terrorism, The Action Plan included enhanced police and judicial cooperation. 
These were to be facilitated by the introduction of the European Arrest Warrant 
(the creation of which had already been anticipated at the 1999 Tampere meeting), 
a uniform definition of terrorism, and the creation of a list of terrorist organiza- 
tions, as well as the formation of joint investigation teams and of an anti-terrorism 
unit within Europol. In addition, it was decided that security measures for air 
transportation and quality controls for security at airports should be enhanced. 

In fulfilling both UN Security Council Resolution 1373 of September 18, 2001 
and the guidelines set out by the Action Plan of September 21, 2001, the Council 
adopted two Common Positions on combating terrorism and on the application of 
certain measures to this end. 32 According to an update of June 27, 2003, these 
Common Positions contain, in addition to a definition of "terrorist act," a list of 
52 persons and 34 groups that are subjected to enhanced police and judicial coop- 
erative scrutiny and whose funds and assets are to be frozen. Based on the Com- 
mon Positions, the Council adopted a decision on police and judicial cooperation 
in criminal matters under Title VI of the TEU, 33 which defines the scope of admin- 
istrative assistance in preventing and combating terrorist attacks. Thus, every 
Member State has to establish a specialized authority within its police service hav- 
ing access to all information relating to terrorist offenses. These authorities are 
then required to forward the information to Europol and Eurojust. 

For the purpose of EC-wide implementation of the Common Positions, the 
Council of the European Union issued a Regulation "on specific measures directed 
against certain persons and organizations in combating terrorism." 34 The list at- 
tached to this Regulation names 26 persons and 23 organizations whose funds and 
other assets are to be frozen. The Regulation was subsequently extended, 35 pursu- 
ant to a Council of the European Union Common Position of May 27, 2002, 36 to 
specifically apply to persons and organizations connected to Osama bin Laden, the 
Al Qaida network and the Taliban. Since the Member States' national laws and 
measures were partially in need of improvement, the Council issued a decision in 
November 2002 37 aimed at reassessing those laws in order to attain higher effi- 
ciency in combating terrorism. 

One legal instrument expected to show great effect in fighting terrorism is the Eu- 
ropean Arrest Warrant, 38 which is designed to replace the political and administrative 
phases of the old extradition process with one single court procedure. It constitutes the 
first palpable realization of the principle of mutual recognition in criminal law matters, 
which was agreed upon by the European Council in Tampere in 1999. 

As regards criminal law, a 2002 Council Framework Decision 39 on combating 
terrorism is of vital importance, since for the first time a move towards harmoniz- 
ing the Member States' criminal laws was made in the sense that minimum 

36 



Torsten Stein 



standards for terrorist offenses and their elements, and for law enforcement, were 
defined. The need for such a decision becomes obvious when it is considered that 
as late as 200 1 , only six EU Member States had incorporated provisions on terrorist 
offenses into their criminal laws. 40 With this Framework Decision, the European 
Union has laid a foundation for a comprehensive system of combating terrorism, 
whereby the Member States' law enforcement agencies, assisted by Europol, 
Eurojust and the SIS, can improve the effectiveness of their investigations. 41 How- 
ever, the Framework Decision has not been fully implemented into all Member 
States' national laws. As of March 2004, only eight Member States had imple- 
mented it, although Article 1 1 of the Framework Decision had set a deadline of De- 
cember 21, 2002. This puts the events of March 11, 2004 in Madrid into an even 
more tragic light. 

National Level 

Measures to combat the terrorist threat have also been taken on the national level, 
principally through the implementation of EU decisions. This article will focus on 
Germany as an example. The German Law on Combating Terrorism, which came 
into force on January 1, 2002, created a statutory basis for further measures and for 
enhanced cooperation between the various existing German security authorities. 42 

The Federal Office for the Protection of the Constitution (Bundes- 
verfassungsschutz), as one of Germany's principal security agencies, was tasked to 
investigate cases involving organizations opposed to the idea of international under- 
standing and peaceful coexistence of peoples. That agency now has the power to de- 
mand information on bank accounts and their holders from banks or other financial 
service providers. Thus, financial transactions to and from organizations with ex- 
tremist or suspicious attitudes can be disclosed and further support for those orga- 
nizations cut off. In addition, further competencies for disclosure of information 
by telecommunication and mail service providers as well as airlines were created, 
some of which were transferred to the Federal Intelligence Service (Bundes- 
nachrichtendienst) and to the Naval Intelligence Service (Marineabschirm- 
dienst). 43 At the same time, all the measures just mentioned are subject to a strict 
control regime by impartial bodies. 44 

Another agency endowed with new investigative and executive authority is the 
Federal Office of Criminal Investigation (Bundeskriminalamt). That agency can 
now directly intervene in cases of information technology (IT) sabotage, as one of 
the potential fields of future terrorist attacks, without further consultation with 
other agencies. If it has an initial suspicion of an offense, it can now initiate its own 
investigations and use its own resources for gathering information, especially in 



37 



European and German Security Policy and International Terrorism 

the areas of terrorism and IT sabotage, while working together closely with other 
security agencies. 

The Federal Border Police (Bundesgrenzschutz) has been granted power for 
training and deploying armed sky marshals. 45 Furthermore, in the interest of air 
security, the provisions of the air transportation law were altered to allow the rein- 
forcing of controls and quality standards at and around airports, as well as the use 
of military aircraft to shoot down hijacked airplanes as a last resort. The latter pro- 
vision permits for the first time the deployment of the Federal Army (Bundeswehr) 
within Germany in other than disaster operations. It was passed against strong op- 
position. The need for such a competence became all too obvious on January 5, 
2003 when a deranged man commandeered a motorized glider, circled over Frankfurt/ 
Main for several hours and threatened to crash the plane into the building of the 
European Central Bank. Fortunately, the plane did not have to be shot down by the 
summoned F-4 pursuit planes — no legal basis existed for such an action then 46 — , 
since the perpetrator gave up after three hours and safely landed the plane. The re- 
inforced control standards at airports now include checking the reliability of airport 
employees. To this end, the air security authorities can obtain unlimited disclosure 
of information from the Federal Central Register (Bundeszentralregister). 47 

Similarly, the Law on the Review of Security Measures introduced strict control 
and security measures in order to prevent sabotage of other vital or militarily im- 
portant installations. In the future it will be possible to explore the personal and 
economic background of employees in nuclear plants and other focal points of 
critical infrastructure. The Federal Office of Criminal Investigation therefore keeps 
in close contact with the respective operators of the relevant facilities in order to 
update the security assessment and optimize both protective measures and the 
flow of information. 48 

This new and intensified investigative work resulted in 182 criminal investiga- 
tions of individuals with Islamic backgrounds between September 2001 and Febru- 
ary 2004. Seventy of those were led by the Federal Office of Criminal Investigation 
and 1 1 2 by the regional police (Landespolizeien), the latter maintaining a close co- 
operation with the competent federal authorities. The Federal Office of Criminal 
Investigation alone investigated 25,600 hints and traces, taking advantage of the 
changed provisions in the Code of Criminal Procedure (Strafprozessordnung), 
which allow a simplified procedure and advanced competencies for intercepting 
correspondence, including telephone, cell phone, and e-mail contacts. However, 
the Federal Constitutional Court (Bundesverfassungsgericht) 49 declared some 
portions of the latter competencies unconstitutional. 

In order to guarantee an adequate and constitutionally sound criminal convic- 
tion, the German Criminal Code (Strafgesetzbuch) had to be adapted to the new 

38 



Torsten Stein 



circumstances, therefore new provisions were inserted into the code. Previously 
only membership in a terrorist group constituted an offense, so that the courts 
could not adequately react to terrorism in its new, international dimension. With 
insertion of the new provisions into the Criminal Code it is now possible to convict 
foreign offenders — especially members of Al Qaida. 50 

The investigations initiated between 2001 and 2004 led to several severe sen- 
tences and some criminal proceedings are still under way. The weaknesses of the 
new provisions and the difficulty of their latent infringement of the rule of law, 
which is highly protected in Germany, becomes especially apparent in the case of 
Mounir al Motassadeq (a member of the Hamburg group of Al Qaida terrorists 
who prepared and carried out the attacks of September 11), whose verdict was 
overruled and remanded due to insufficient evidence. 51 Cases like that of 
Motassadeq demonstrate that all States have to join in a closer cooperation (in this 
case it was alleged that the United States had evidence it did not make available to 
the German court) so that the efforts of the single nation State in building up pres- 
sure against terrorist organizations through criminal convictions and adequate 
court sentences will produce the intended effect. 

Before repression of crimes committed, however, comes prevention of terrorist 
attacks. Preventive measures on the federal level in Germany were taken, inter alia, 
in the field of financing of terrorist groups. Identifying the financial sources fund- 
ing terrorists and preventing financial transactions are critical aspects of combat- 
ing terrorism. Also in this area, the complexity and diversity of transaction paths 
call for coordinated cooperation of security agencies and the financial sector, on 
both national and international levels. On the multinational level, the Financial 
Action Task Force (FATF), 52 of which 30 States besides Germany are members, has 
adopted a total of eight special recommendations on combating the financing of 
terrorism. In August 2002, Germany became the first State within Europe to fully 
implement the guidelines of the FATF, as well as the corresponding provisions of 
EU directives on money laundering, into its national law. 53 That legislation assigns 
special importance to the role of the Financial Intelligence Unit (FIU) within the 
Federal Office of Criminal Investigation. 54 The FIU functions as a central office for 
investigative leads, for matching of international measures and for informing other 
national or European authorities about methods of fighting money laundering or 
other means of support for Islamic organizations. Nonetheless, finding evidence of 
planned financial support of terrorist attacks remains a very difficult task despite 
new competencies enabling authorities to acquire information on account holders 
and transactions from financial institutions. Still, principal features of transaction 
methods were successfully identified and cut off. Given the complex and shrouded 
paths of monetary transactions, further isolation of international terrorism's 



39 



European and German Security Policy and International Terrorism 

financial sources requires intensive international cooperation among States and 
exchange of information between their respective counterterrorism authorities. 

Border Controls 

In addition to breaking up terrorist groups already existing within the European 
Union, preventing the entry of terrorists into the territory of EU Member States is 
another point of focus, and shall be the main one under scrutiny here. In this con- 
text, one needs to consider the fact that in a territory without internal customs and 
immigration borders, such as the greater part of the European Union due to the 
Schengen Regime, the State penetrated by a terrorist organization is not necessarily 
the State that is the target of attack. 

The European Council is responsible for the adoption of uniform measures for 
control of the EU's external borders. 35 The Schengen Implementation Agreement 
(SIA) defines the external borders of the European Union as all land, sea and air 
borders of Member States that are not internal borders. 56 However, Member States 
are not precluded from concluding separate arrangements with third nations, as 
long as those agreements are in accordance with Community Law. 57 

Specific measures for the control of the EU's external borders are detailed in the 
SIA. 58 A Member State confronted with the entry of a third country national must 
comply with the SIA mandate that the security interests of all other Member States 
have to be taken into account pursuant to Community Law. 59 Therefore, third 
country nationals can be denied entry if they constitute a danger to the public or- 
der, national security or international relations of any Member State. To this end, 
the Member States have drawn up a common list of wanted persons, from which 
the names of individuals to be denied entry are transferred to the SIS and thereby 
made available to all Member States. In order to be put on this common list, per- 
sons have to fulfill the criteria set out in the SIA (prison sentence of at least one 
year, suspicion of having committed a serious crime, severe breach of entry and/or 
exit regulations), 60 and there has been compliance with national procedural rules. 

All persons are subject to controls regarding their entry/exit, stay and work 
documents. 61 In every case, their identity must be verified. 62 Third country na- 
tionals are subject to a stricter control than EU citizens, 63 they generally have to 
submit to separate customs clearance procedures. In exceptional cases, i.e., for hu- 
manitarian reasons, if national interests or international commitments are con- 
cerned an individual Member State can grant entry to third country nationals 
irrespective of fulfillment of the requirements just mentioned. However, the entry 
in those cases is limited to the sovereign territory of the Member State concerned. 64 



40 



Torsten Stein 



External borders may only be crossed at border checkpoints and during their re- 
spective designated passing hours. 65 

In order to comply with the foregoing provisions, the Member States concerned 
must monitor the boundaries of the external border and deploy specially trained 
border patrols to this end. 66 The latter is quite a problem regarding the EU's new 
Eastern border, since border fortification and patrol are largely inadequate. 

What is more, all available technical resources must be applied in identifying 
terrorists in order to achieve effective detection and defense against terrorism. In 
particular, the identity of visa applicants and other persons entering the territory of 
a Member State of the European Union must be effectively assessed, since reliable 
identification is the basis for all further measures. As far as passport and visa con- 
trols are concerned, responsibility is divided between the Council of the European 
Union and the Member States. The Council is responsible for establishing general 
rules governing short-term visas (up to three months). 67 Competence over long- 
term visas remains with the individual Member State. The Council has specified 68 
those third countries whose nationals must be in possession of a visa in order to en- 
ter the European Union, as well as those countries that are exempt from visa obli- 
gations. In order to qualify for a visa waiver, third countries must fulfill certain 
criteria regarding illegal immigration, public order and security, especially danger 
of terrorist attacks. The EU's external relations do, of course, also play an impor- 
tant role in assessing whether a visa waiver will be granted. In certain cases, Mem- 
ber States can permit exemptions from visa obligations. 69 

The Council is also responsible for laying down procedural rules for the issuing 
of short term visas, particularly with regard to subject matter, jurisdiction of the is- 
suing authority, and material requirements. 70 Jurisdiction for visa issuance lies 
with the diplomatic or consular representative of the Member State of destina- 
tion. 71 Details can be found in the Common Consular Instruction (Gemeinsame 
Konsularische Instruktion) of the Common Handbook of the Schengen States. 72 

The Council also made provisions for the design of short-term visas. 73 The Euro- 
pean Commission proposes the details of visa design. The security criteria for 
short-term visas include the appearance of an unforgeable visa and the informa- 
tion to be entered on it. 74 

In the area of seafaring, a Council of the European Union directive establishes 
registration formalities for ships entering and leaving ports of the Member States 75 
(largely based upon an International Maritime Organization Agreement of 
1965 76 ), and on the issuance of visas at the border, including those for sailors in 
transit. 77 The latter prescribes reporting requirements of Member States' authori- 
ties responsible for visas in the case of signing in and signing off of ships lying in 
ports of the Schengen area. Additional qualifications for entry into the Schengen 

41 



European and German Security Policy and International Terrorism 

area must be fulfilled between the competent authority and the shipping company/ 
shipping agent in order to obtain a visa at the border. These procedures guarantee 
the exchange of security-relevant information, in particular through the SIS, be- 
tween the Member States. 78 

In the area of identification, special attention is accorded to biometrics. The reg- 
istration of biometrical data (fingerprints, face, hand and iris screening) and their 
inclusion in passports or visas can allow for positive identification of notorious ter- 
rorists and violent enemies of Western societies, and therefore pave the way for ap- 
propriate countermeasures. Moreover, they constitute an effective means for 
allocating documents to their owner. On the EU level, the European Commission 
proposed introducing digitalized photographs into EU Member States' passports. 

Germany envisages the use of biometrics in three important fields: border con- 
trols for entry, in visas and other residence permits, and in passports and national 
identification documents. The necessary amendments to the relevant laws (Pass- 
und Personalausweisgesetz) have already been enacted. Together with the use of 
biometrics, entry procedures can be extensively facilitated and accelerated by in- 
troducing an automated, computer-assisted border control process. 79 A corre- 
sponding pilot project began operation at Frankfurt airport at the beginning of 

2004. However, the introduction of biometrical passports prescribed by the United 
States for maintaining the visa waiver program vis-a-vis EU citizens, is taking longer 
than expected. The initial deadline of October 26, 2004 was extended to October 26, 

2005, and has now been extended for a second time. The current deadline is Octo- 
ber 26, 2006. It is therefore undecided whether the former visa requirements for 
entry into the United States are going to be reintroduced. 

Considering this development, the essential need for harmonizing the EU's ex- 
ternal border controls on a high standard becomes all too obvious. It cannot be in 
the interest of the European Union to have terrorists circumvent the high-tech 
border controls of one Member State by entering a neighboring State not applying 
the same technical standards for border controls. What is more, the coordination 
among the States must include harmonizing the applied biometrical methods. Last 
but not least, biometrics is a relatively new technology subject to uncertainties and 
avoidable errors, which could be eliminated by joint efforts in exchanging infor- 
mation and experience between the States involved in the interest of an optimized 
outward protection. Germany, therefore, strives for greater cooperation in this 
area within the European Union, and with its G8 partners. 80 

Within the context of this cooperation, the forwarding of personal data on pas- 
sengers embarked on transatlantic flights is a matter of current importance and 
needs to be mentioned here. As of February 5, 2003, and pursuant to the US Avia- 
tion Transportation and Security Act of 2001, the US Bureau of Customs and 

42 



Torsten Stein 



Border Protection and the US Transportation Security Administration require air- 
lines to provide access to so-called "PNR" (Passenger Name Record) data for inter- 
national flights. Provision of this data by European Union airlines conflicts with 
European Union laws and regulations, 81 both because no specific authority therein 
allows for such transfer and because it has not been determined that the data will be 
"adequately protected" by the receiving authority as defined by European Com- 
munity law. 82 What is more, US authorities, by accessing the personal data of EU 
citizens, encroach upon the sovereignty of EU Member States without being au- 
thorized to do so under public international law. 

In order to both create a legal basis for the justified security interests of the 
United States and to ensure adequate data protection to which the EU citizens are 
entitled, the European Commission has proposed that an agreement be entered 
into between the European Community and the United States. 83 Such an agree- 
ment would meet the legal requirements of the European Community pertaining 
to data transfer and would justify the encroachment upon the Member States' sov- 
ereignty. Furthermore, the Commission has determined that the proposed agree- 
ment would guarantee adequate protection of personal data as mandated by the 
applicable European Parliament Directive. 84 The Council signed this agreement at 
the end of May 2004 over the protests of the European Parliament. The European 
Parliament argues that the agreement violates the Treaty Establishing the Euro- 
pean Community, 85 since it purports to amend the relevant Directive 86 which, as a 
legal instrument adopted according to the procedure set forth in Article 251 of that 
treaty, requires European Parliament approval for amendment. Accordingly, the 
European Parliament has decided to bring the matter before the European Court of 
Justice. A majority of members of the European Parliament deems the right of access 
to PNR-data granted to US authorities to be too broad, since the agreement makes 
no reference to the extent of data protection mandated by European Community 
law, 87 especially with regard to a potential transfer of the data to third countries. 

Although the basic criticism of granting a right of transferring personal data to 
the US authorities as being too far reaching maybe justified, one needs to take into 
account the fact that the European Commission has obtained guarantees from the 
US Bureau of Customs and Border Protection in the form of a self-commitment 88 
for appropriate use of the data and that the current state of affairs — transfer of per- 
sonal data without any legal basis — is simply unacceptable. 

Intrastate Countermeasures in Case of a Terrorist Threat 

As soon as terrorists have been identified, either on the basis of European and inter- 
national cooperation or as a result of the extended national competencies, further 



43 



European and German Security Policy and International Terrorism 

procedures become the responsibility of the Member State concerned. Therefore, 
the authority to deny German visa and residence permits in a simplified procedure 
was enhanced by adapting the provisions of the 1990 Aliens Act (Aus- 
landergesetz) 89 to accord with the Law against Terrorism (Terrorismusgbekamp- 
fungsgesetze). 90 Enemies of society and its democratic foundations who are ready 
to use or appeal for violence in pursuing their goals are now explicitly prohibited 
from obtaining a visa. In addition, the use of unforgeable features in national 
identification documents and residence permits has been enhanced by legislation. 

Since the provisions of the Asylum Procedure Act (Asylverfahrensgesetz) 91 have 
been amended so as to include registering fingerprints, photographs, and, in the 
future, biometrical data of asylum seekers, it is now possible to save voice record- 
ings of asylum seekers, thus providing information on their country of origin. Fur- 
thermore, these data can now be stored for up to ten years after irrevocability of the 
asylum decision and can be processed by the police and security authorities for 
identification purposes in a simplified procedure. The main aim in this area is to 
standardize and simplify the procedure, as well as to make it more automatic, while 
maintaining an adequate level of data protection. 

Pursuant to the new Immigration Act, which was finally agreed on in June 2004, 
after the first version had been declared unconstitutional by the German Supreme 
Court (Bundesverfassungsgericht) on formal grounds, an admitted asylum seeker 
who is a member of a terrorist organization or an organization supporting terror- 
ists can be deported in a simplified procedure. The new Immigration Act 92 entered 
into force on January 1, 2005, and contains stricter rules on arrest and extradition 
of foreign terrorists or extremists endangering Germany's internal security. If ex- 
tradition is impossible due to the potential of torture or implementation of the 
death penalty by the country of destination, notification requirements and con- 
straints on the freedom of movement can be applied in order to maintain control 
over the potential danger. 

Apart from the measures already taken on the basis of the EU Action Plan, Ger- 
many continues to campaign for further initiatives to enhance transnational co- 
operation within the Council of the European Union, especially on improving 
information flows, identification systems and searches for wanted terrorists (pro- 
file search). In this context, it needs to be mentioned that the success in combating 
cross-border terrorist networks depends on concerted and determined action of 
the international community. The cooperation within international organizations 
and fora, such as the United Nations, G8, 93 NATO or OSCE (Organization for 
Security and Co-operation in Europe) 94 is therefore of paramount importance. 
The Council Recommendation on joining the G8 network of contact points with 
24-hour service for combating high-tech crime 95 is just one example of this 

44 



Torsten Stein 



cooperation. In addition, bilateral agreements and informal cooperation in iden- 
tifying, arresting, prosecuting and sentencing terrorists continue to be necessary 
on the international level. A further aim of the German Law against Terrorism is 
to protect the population as well as possible and to minimize the vulnerability of 
key points of infrastructure. However, the competencies created need to be used 
continuously and with determination. Particularly in the areas of air security and 
infrastructure protection, measures taken to date have brought about an easing of 
tension. Close cooperation between the Department of the Interior, other security 
authorities and the operators of key infrastructure facilities, as well as airlines, 
warrant both continuous updating on the threats faced and the development of 
suitable strategies for countermeasures. 

While terrorist act prevention is the main focus of the measures addressed in 
this article, optimizing crisis management after a terrorist attack requires at least as 
much attention. Civil protection plays a central role in this context. According to 
an Action Plan of the German Department of the Interior, key infrastructure facili- 
ties, i.e., all organizations and institutions of vital importance for the population — 
especially energy and water facilities, the breakdown of which can cause a long last- 
ing shortage of supply, material disturbance of public security and other dramatic 
consequences for the population and the State's structures — are the center of at- 
tention in this context. In the event of extensive catastrophes, attacks or other crisis 
situations, federal and regional (Lander) civil protection resources need to be com- 
bined. For this purpose, the new federal Bureau for Civil Protection (Bundesamt 
fur Bevolkerungsschutz und Katastrophenhilfe) was created as a further pillar of 
national security. The new bureau began its work in May of 2004. It can avail itself 
of the Joint Information Center of the German Federal State and the Regions 
(Gemeinsames Melde-und Lagezentrum des Bundes und der Lander, (GMLZ)), 
which began operations in the autumn of 2002 and which can coordinate crisis 
management (both information and countermeasures) in the scenarios men- 
tioned above. 96 

For information and warning purposes, the GMLZ can utilize the German Emer- 
gency Information System (Deutsches Notfallvorsorge-Informationssystem), 
which provides the public with precautionary information about rescue, evacuation 
and supply via the Internet and telephone hotlines. In the case of an extraordinary 
emergency situation (e.g., an attack on a nuclear plant), a satellite based warning sys- 
tem, in place since October 2001, can, within seconds, issue public warnings to be 
broadcast on all public television and radio stations. The Department of the Inte- 
rior is currently engaged in the development of other possible warning systems, 
such as alerting phones or clocks, and coordinating protection measures. Together 
with its European neighbors, Germany is developing defense concepts and 

45 



European and German Security Policy and International Terrorism 

participates in joint exercises that form part of the program on the improvement of 
cooperation in preventing and fighting terrorist threats of a chemical, biological, 
radiological or nuclear nature (e.g., EURATOX 2002, a simulation exercise involv- 
ing radiological and chemical fallout resulting from a terrorist attack). 

More attention is increasingly being paid to computer network attack, the rela- 
tively new form of information technology terrorism. Since most of the vital facili- 
ties of infrastructure — from traffic lights to nuclear plants — are computerized, 
defense against attacks on these systems, the consequences of which can be cata- 
strophic, must have utmost priority. In Germany, the Federal Bureau for Security 
in Information Technology (Bundesamt fur Sicherheit in der Informationstech- 
nik) examines the potential sensitivity of critical infrastructure and prepares those 
systems for defense against terrorist interference by creating framework plans or by 
directly cooperating with the systems' operators. 

The last element of the Department of the Interior's Action Plan is fighting ter- 
rorism at its roots. Defense against Islamic terrorism is most effective at its finan- 
cial and ideological source. Isolating terrorists from their ideological and economic 
support should be not the last, but the foremost goal of both national and interna- 
tional measures in fighting terrorism. 

Conclusion 

The Coalition against Terror must cooperate closely in order to respond effectively 
to the new "asymmetric" threats our nations face today. But it needs also to advo- 
cate respect for and advancement of human rights in the countries that form the 
cultural base for international terrorism and to build up political pressure against 
oppressive regimes. By fostering democratic reforms and the development of the 
rule of law, as well as by handing over power to the oppressed peoples themselves, 
terrorist structures can more often than not be destroyed at the root, and true fa- 
natics can be cut off from their sources. It is beyond doubt that international coop- 
eration at its highest level in this area is of paramount importance. The European 
Union and its Member States take their international responsibilities seriously and 
are therefore involved in Operation Enduring Freedom in Africa and in the Gulf of 
Oman, are part of the Coalition against Terror in Afghanistan, and demonstrate 
great material and personnel commitment to the International Security Assistance 
Force for a sustainable pacification of Afghanistan. 

The fact that the European Union is not the "United States of Europe," there- 
fore having to share competencies and jurisdiction not with federated but sover- 
eign States, creates some difficulties and sometimes delay in achieving the 
necessary measures. But there can be no doubt that the European Union and its 

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Torsten Stein 



Member States will live up to their international responsibilities in the future and 
will remain a true and reliable partner of the Free World. 

Notes 

1. Oliver Lepsius, Liberty, Security and Terrorism: The Legal Position in Germany \ 5 GERMAN 
Law Journal 436 (2004). 

2. Otto Schily, German Secretary of the Interior, address at the opening of the 7th European 
Police Congress entitled "Fighting Terrorism and Protecting the Population" 
(Terrorismusbekampfung und Bevolkerungsschutz), Bonn, Feb. 16, 2004. 

3. Treaty on European Union, Maastricht, Feb. 7, 1992, Official Journal of the European Union 
(OJ 1992, C 191), Jul 29, 1992, full text available at http://Europa.eu.int/en/record/int/ 
title7.html. 

4. Naples Agreement on the Cooperation of Customs Services, Sep. 7, 1967. 

5. See European Parliament Fact Sheet 4.11.3, Police and Customs Cooperation, which notes 
that: 

Formal police cooperation between the Member States' representatives began in 1976 
with the creation of working parties known as 'Trevi groups.' Its main subjects were 
terrorism and the organization and training problems of police departments. By 1989 
there were four working parties, on terrorism, police cooperation, organized crime and 
the free movement of persons, headed by a group of senior civil servants responsible for 
preparing decisions for the Council of Ministers. This system prefigured the 
intergovernmental structure set up by the Schengen agreements and the Treaty of 
Maastricht. 

Fact Sheet 4.1 1.3 is available at http://www.europarl.eu.int/factsheet/4_l l_3en.htm. 

6. Single European Act, Sep. 9, 1985, Official Journal of the European Union (OJ 1987, L 169), 
Jun. 29, 1987, available at http://europa.eu.int/abc/obj/treaties/en/entrl4a.html. 

7. Agreement between the Governments of the Benelux Economic Union, the Federal Republic 
of Germany and the French Republic on the Gradual Abolition of Checks at their Common 
Borders, June 14, 1985, Joint Ministerial Gazette, 1986, at 77. 

8. Convention Applying the Schengen Agreement of 14 June 1985 Between the States of the 
Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the 
Gradual Abolition of Checks at their Common Borders, June 19, 1990, available at http:// 
www.privacy.org/pi/intl_orgs/schenen_agreement.txt. 

9. Convention Determining the State Responsible for Examining Applications for Asylum 
Lodged in One of the Member States of the European Communities, Jun. 15, 1990, Official 
Journal of the European Union (OJ 1997, C 254/1), Aug. 19, 1997. 

10. Schengen Convention Executive Committee Decision (SCH/Com-ex (97)) 24, Official 
Journal of the European Communities (OJ 2000, L 239/442), Sep. 22, 2000. 

11. Council of the European Union Regulation No. 2424/2001 On the Development of the 
Second Generation Schengen Information System (SIS II), Official Journal of the European 
Communities (OJ 2001, L 328/4), Dec. 13, 2001. 

12. Italy joined the Schengen Agreements in 1990, Spain and Portugal in 1991, Greece in 1992, 
Austria in 1995, and Denmark, Finland and Sweden in 1996. 

13. Treaty of Amsterdam Amending the Treaty of European Union, the Treaties Establishing 
the European Communities and Related Acts, Mar. 29, 1996, Official Journal of the European 



47 



European and German Security Policy and International Terrorism 

Union (OJ 1997, C 340), Nov. 10, 1997, available at http://www.europarl.eu.int/topics/treaty/ 
pdf/amst.en.pdf. 

14. Treaty on European Union, supra note 3, art. 2. 

15. See Treaty of Amsterdam, supra note 13, Protocol on the Incorporation of the Schengen- 
acquis into the EU framework. 

16. See Official Journal of the European Communities (OJ 1999, L 176), Oct. 10, 1999; amended 
(OJ 2000, L9/32), Jan. 13, 2000. 

17. Treaty Establishing the European Community, Mar. 25, 1957, full text of the treaty, as 
amended, available at http://europa.eu.int/abc/obj/treaties/en/entoc05.htm. 

18. Supra note 3. 

19. Arts. 61f and 29f, respectively. 

20. Council of the European Union Joint Action, Mar. 10, 1995, Official Journal of the 
European Union (OJ 1995, L 62), Mar. 20, 1995. 

21. Council of the European Union Act Drawing Up the Convention on the Establishment of a 
European Police Office, Jul. 26, 1995, Official Journal of the European Communities (OJ 1995, C 
316), Nov. 27, 1995. 

22. Council of the European Union Act Adopting Rules Governing Transmission of Personal 
Data by Europol to Third States and Third Bodies, Mar. 12, 1999, Official Journal of the 
European Communities (OJ 1999, C 88), Mar. 30, 1999. 

23. Jan Ellerman, EUROPOL aufdem Weg zu einem, europaische FBI"?, in ZEITSCHRIFT FUR 
EUROPAISCHE STUDIEN 561 (2002). 

24. Council of the European Union Decision Setting Up Eurojust With a View to Reinforcing 
the Fight Against Serious Crime, Feb. 28, 2002, Official Journal of the European Communities 
(OJ 2002, L 63), Mar. 6, 2002. 

25. Council of Europe Convention for the Protection of Individuals with Regard to Automated 
Processing of Personal Data, Jan. 28, 1981, European Treaty Series No. 108. 

26. Council of the European Union Decision, supra note 24, art. 26(1). 

27. Id., art 27(3). 

28. Id., art 26(1). 

29. Council of the European Union Regulation No. 871/2004 Concerning the Introduction of 
Some New Functions for the Schengen Information System Including in the Fight Against 
Terrorism, Apr. 29, 2004, Official Journal of the European Union (OJ 2004, 1 162/29), Apr. 30, 
2004. 

30. Joint EU-US Action Plan, Dec. 3, 1995, available at http://www.eurunion.org/partners/ 
actplan.htm. 

3 1 . Action Plan of the Council and the Commission on How Best to Implement the Provisions 
of the Treaty of Amsterdam on an Area of Freedom, Security and Justice, Dec. 3, 1998, Official 
Journal of the European Communities (OJ 1999, C 19), Jan. 23, 1999. 

32. Council of the European Union Common Position on Combating Terrorism, Dec. 27, 2001, 
Official Journal of the European Communities (OJ 2001, 1 344/90, 2001/930/CFSP), Dec. 28, 
2001, and Council of the European Union Common Position on the Application of Specific 
Measures to Combat Terrorism, Dec. 27, 2001, Official Journal of the European Communities 
(OJ 2001, L 344/93, 2001/931/CFSP), Dec. 28, 2001. 

33. Council of the European Union Decision on the Implementation of Specific Measures for 
Police and Judicial Cooperation to Combat Terrorism in Accordance with Article 4 of Common 
Position 2001/931/CFSP, Dec. 19, 2002, Official Journal of the European Communities (OJ 
2003, L 16), Jan. 22, 2003. 



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Torsten Stein 



34. Council of the European Union Regulation No. 2580/2001 on Specific Restrictive Measures 
Directed Against Certain Persons and Entities With a View to Combating Terrorism, Dec. 27, 

2001, Official Journal of the European Communities (OJ 2001, L 344/70), Dec. 28, 2001. 

35. Council of the European Union Regulation No. 881/2002 Imposing Specific Restrictive 
Measures Directed Against Certain Persons and Entities Associated With Usama bin Laden, the 
Al-Qaida Network and the Taliban . . . , May 27, 2002, Official Journal of the European 
Communities (OJ 2002, L 139/9), May 29, 2002. 

36. Council of the European Union Common Position Concerning Restrictive Measures 
Against Usama bin Laden, Members of the Al-Qaida Organisation and the Taliban . . . , May 27, 

2002, Official Journal of the European Communities (OJ 2002, L 139/4), May 29, 2002. 

37. Council of the European Union Decision Establishing a Mechanism for Evaluating the Legal 
Systems and their Implementation at National Level in the Fight Against Terrorism, Nov. 28, 
2002, Official Journal of the European Communities (OJ 2002, L 349/1), Dec. 24, 2002. 

38. Council of the European Union Framework Decision on the European Arrest Warrant and 
the Surrender Procedures Between Member States, Jun. 13, 2002, Official Journal of the 
European Communities (OJ 2002, L 190/1), Jul. 18, 2002. 

39. Council of the European Union Framework Decision on Combating Terrorism, Jun. 13, 
2002, Official Journal of the European Communities (OJ 2002, L 164/3), Jun. 22, 2002. 

40. Germany, France, Spain, Italy, Portugal and the United Kingdom. 

41. See Eugenia Dumitriu, The E. U. 's Definition of Terrorism: The Council Framework Decision 
on Combating Terrorism, 5 GERMAN LAW JOURNAL 585 (2004). 

42. Law on Combating Terrorism (Terrorismusbekampfungsgesetz), Jan. 9, 2002, Federal Law 
Gazette (BGB1. 1 2002) 361-363. 

43. Mat 363, 364. 

44. Lepsius, supra note 1. 

45. Supra note 42, art. 6. 

46. On June 18, 2004, the German Parliament adopted the Law on Adjustment of Air Security 
Tasks (Gesetz zur Neuregelung von Luftsicherheitsaufgaben - Luftsicherheitsgesetz), Federal 
Gazette (BGB.L I 2005) 78, which, in part, amended the Air Transportation law 
(Luftverkehrsgesetz), Federal Gazette (BGBI. I 1999) 550. In addition, in Article 14, paragraph 3 
it provided authority to shoot down aircraft as a last resort. The Federal Constitutional Court 
(Bundesverfassungsgericht), however, annulled that provision on February 15, 2006 (Case No. 1 
BvR 357/05, not yet published) for lack of constitutional competence and for violation of 
Article 2 (right to life) and Article 1 (human dignity) of the Constitution. 

47. Air Transportation Law , as amended, supra note 46, art. 29d. 

48. For a critical view on the adopted measures, see Verena Zollner, Liberty Dies by Inches: 
German Counter-Terrorism Measures and Human Rights, 5 GERMAN LAW JOURNAL 469 (2004). 

49. BVerfG first senate, judgement of Mar. 3, 2004, re.:l BvR 2378/98, 1 BvR 1084/99, reprinted 
in NEUE JURISTISCHE WOCHENSCHRIFT 999-1022 (2004). 

50. Lepsius, supra note 1. 

51. Christoph Safferling, Terror and Law — Is the German Legal System Able to Deal with 
Terrorism? — The Bundesgerichtshof (Federal Court of Justice) Decision in the Case Against El 
Motassadeq, 5 GERMAN LAW JOURNAL 515 (2004). 

52. Established in 1989, the Financial Action Task Force (FATF) is an intergovernmental body 
whose purpose is the development and promotion of policies, both at the national and 
international levels, to combat money laundering and terrorist financing. FATF information 
source is available at http://www.fatf-gafi.org/pages/0,2987,en_32250379_32235720_l_l 
_l_l_l,00.html. 



49 



European and German Security Policy and International Terrorism 

5}. Law on Combating Money Laundering (Geldwaschegesetz), August 2002, BGBI. 

54. /</.,para. 5. 

55. Treaty Establishing the European Community, supra note 17, art. 62(a). 

56. Schengen Implementation Agreement, supra note 8, art. 1. 

57. Treaty Establishing the European Community, supra note 17, art. 62(b). 

58. Schengen Implementation Agreement, supra note 8, arts. 3-8. 

59. ML, art 6(2). 

60. /(/..art. 96(2). 

61. /t/., art. 6(a). 

62. /<i.,art. 69(2)(b). 

63. W.,art.6(2)(c). 

64. Id., art. 5(2). 

65. Id., art. 3. 

66. Id., art. 6(3) and (4). 

67. Treaty Establishing the European Community, supra note 17, art. 62(2)(ii). 

68. Council of the European Union Regulation No. 539/2001 Listing Third Countries Whose 
Nationals Must be in Possession of Visas When Crossing External Borders and Those Whose 
Nationals are Exempt, Mar. 15, 2001, Official Journal of the European Communities (OJ 2001, L 
81/1), Mar. 21,2001. 

69. fc£,art 4. 

70. Schengen Implementation Agreement, supra note 8, art. 12(2)(b)(ii). 

71. Id., art. 12(2) and (3). 

72. Decision of the Schengen Executive Committee on the Compilation of a Manual of 
Documents to Which a Visa May be Affixed, Apr. 28, 1999 (SCH/Com-ex(99)14), Official 
Journal of the European Communities (OJ 2000, L 239/298), Aug. 22, 2000, as amended by 
Council of the European Union Regulation No. 539/2001, supra note 68, art. 7. 

73. Council of the European Union Regulation No. 1683/95 Laying Down a Uniform Format 
for Visas, May 29, 1995, Official Journal of the European Union (OJ 1995, L 164), July 14, 1995; 
as amended by Council of the European Union Regulation No. 334/2002 Amending Regulation 
No. 1683/95 Laying Down a Uniform Format for Visas, Feb. 18, 2002, Official Journal of the 
European Communities (OJ 2002, L 53/7), Feb. 23, 2002; last amended by European Union Act 
Concerning the Conditions of Accession of the Czech Republic, et al, and the Adjustments to the 
Treaties on which the European Union is Founded, Official Journal of the European 
Communities (OJ 2003, L 236/33), Sep. 23, 2003, at 718-725. 

74. Council of the European Union Regulation No. 1683/95, supra note 73. 

75. European Parliament/Council of the European Union Directive No. 2002/6/EC On 
Reporting Formalities for Ships Arriving In and/or Departing From Ports of the Community, 
Feb. 18, 2002, Official Journal of the European Communities (OJ 2002, L 67/31), Sep. 3, 2002. 

76. Convention on Facilitation of International Maritime Traffic, Apr. 9, 1965, 18 U.S.T. 411, 
T.I.A.S.6251. 

77. Council of the European Union Regulation No. 415/2003 On the Issue of Visas at the 
Border, Including the Issue of Such Visas to Seamen in Transit, Feb. 27, 2003, Official Journal of 
the European Union (OJ 2003, L 64/1), Mar. 7, 2003. 

78. For more detailed information on port security, see Hans- Werner Rengeling, Zur Sicherung 
der Seehafen gegen terroristische Anschlage aufgrund neuer internationaler europaischer und 
deutscher Regelungen, DEUTSCHES VERWALTUNGSBLATT 589 (2004). 

79. Law on Combating Terrorism, supra note 42, arts. 7 and 8. 



50 



Torsten Stein 



80. The G8 consists of Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and 
the United States. 

81. See European Parliament/Council of the European Union Directive No. 95/46 On the 
Protection of Individuals with regard to the Processing of Personal Data and on the Free 
Movement of Such Data, Oct. 24, 1995, Official Journal of the European Communities (OJ 1995, 
L 281/31), Nov. 23, 1995, and Council of the European Union Regulation No. 2299/89 On a 
Code of Conduct for Computerized Reservation Systems, July 24, 1989, Official Journal of 
European Communities (OJ 1989, L 220/1), July 29, 1989. 

82. European Parliament/Council of the European Union Directive No. 95/46, supra note 81, 
art. 25(1) and (2). 

83. European Commission Staff Working Paper, An EC-U.S. Agreement on Passenger Name 
Record (PNR), SEC(2004)81. 

84. E.g., European Parliament/Council of the European Union Directive No. 95/46, supra note 
81, art. 25(1) and (2). 

85. Treaty, supra note 17, particularly art. 300 (1) and (2). 

86. E.g., European Parliament/Council of the European Union Directive No. 95/46, supra note 
81. 

87. Particularly Article 8 of the European Convention on Human Rights, Nov. 4, 1950, available 
at http://www.hri.org/docs/ECHR50.htm; Article 6 (2) of the Treaty on European Union, supra 
note 3; and Article 286 of the Treaty Establishing the European Community, supra note 17. 

88. See Undertakings of the Department of Homeland Security Bureau of Customs and Border 
Protection (CBP), available at http://www.statewatch.org/news/2004/feb/08eu-CAPPS%20II 
.htm. 

89. Aliens Act, July 9, 1990 (BGBI, 1354). 

90. Supra note 42. 

91. Asylum Procedure Act (Rev.), Bundesgesetzblatt (Federal Law Digest) BGBI. I, 1361), July 
27, 2002, available at http://www.luscomp.org/gla/statutes/AsylVFG.htm. 

92. Immigration Act (Auswartigesetz), Bundesgesetzblatt (Federal Law Digest)(BGBI), Jan. 1, 
2005. 

93. Supra note 80. 

94. The OSCE currently has 55 participating States. 

95. Council of the European Union Recommendation On Contact Points Maintaining a 24- 
Hour Service for Combating High-Tech Crime, June 25, 2001, Official Journal of the European 
Communities (OJ 2001, C 187/5), July 3, 2001. 

96. See Secretary of the Interior address, supra note 2. 



51 



PART III 



THE PROLIFERATION SECURITY INITIATIVE 
IN THE MARITIME DOMAIN 



IV 



The Proliferation Security Initiative: 
Security vs. Freedom of Navigation? 

Wolff Heintschel von Heinegg* 

Introduction: Object and Purpose of the Proliferation Security Initiative 

The Proliferation Security Initiative (PSI) was announced by President Bush 
in Krakow, Poland, on May 31, 2003. ' It is generally conceived of as a US re- 
action to the So San incident that occurred in December 2002 and that involved a 
Cambodian-registered vessel en route to Yemen suspected of illicitly transporting 
weapons of mass destruction (WMD) components that were ultimately destined 
for Iraq. 2 As a matter of fact, the intercepting Spanish frigates, upon boarding and 
searching, discovered SCUD missile parts on board the vessel. However, the So San 
was released after it had become clear that the missiles, though coming from North 
Korea, were destined for Yemen. 

The announcement by President Bush triggered a series of meetings of the 
(originally eleven and now fifteen 3 ) States participating in the initiative. During the 
Brisbane meeting they seemed to be prepared to follow a proactive course of action 
with the aim to effectively impede and stop shipments of WMD, delivery systems, 
and related materials. 4 However, a far more cautious approach was chosen during 
the Paris meeting in September 2003. There the participating States agreed upon 
the so-called "Interdiction Principles" which, in general terms, provide the politi- 
cal basis for unilateral or concerted activities aimed at the prevention of WMD 
proliferation. 5 It needs to be emphasized here that PSI is neither a treaty nor some 



* Charles H. Stockton Professor of International Law, US Naval War College. 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

form of an international body, least of all an international organization. It is to be 
seen as a concerted effort by the participating States to supplement, not to substi- 
tute, existing treaties and regimes dealing with the problem of WMD prolifera- 
tion. 6 

PSI's ultimate goal is to effectively "interdict the transfer or transport of WMD, 
their delivery systems, and related materials to and from states and non-state actors 
of proliferation concern." The term "states and non-state actors of proliferation 
concern" refers to 

[T]hose countries or entities that the PSI participants involved establish should be 
subject to interdiction activities because they are engaged in proliferation through: ( 1 ) 
efforts to develop or acquire chemical, biological, or nuclear weapons and associated 
delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD, 
their delivery systems, or related materials. 7 

As regards "states of proliferation concern" it is more or less evident that this 
term refers to Iran and North Korea and to other States striving to acquire WMD 
and their delivery systems. 8 At first glance, the term "non-state actors of prolifera- 
tion concern" seems to cover transnational terrorists and their organizational 
structures. However, in view of the fact that transnational terrorism is subject to a 
special international regime the correct understanding is that it relates to all pri- 
vate persons, like the notorious Pakistani Dr. Khan, 9 and entities involved in 
clandestine proliferation activities, regardless of a terrorist background. There- 
fore, PSI is not to be mistaken for an exclusively counter-terrorism activity. While 
the Initiative may trigger concerted actions of the participating States if there are 
reasonable grounds to suspect that, e.g., WMD transported on board a vessel are 
ultimately destined to a terrorist group, its scope is certainly not limited to such 
scenarios. 

The means by which the participating States intend to reach the Initiative's goal 
comprise: exchange of information; if necessary, modification of the respective do- 
mestic law and of international law; and "specific action." 

Of course, exchange of information is subject to the protection "of the confi- 
dential character of classified information." Still, the principal readiness of the par- 
ticipating States to rapidly exchange information should not be underestimated 
because the information concerned is usually classified and not too easily shared 
with other States even if they are close allies. Equally important, and far from being 
a matter of course, is the willingness of the participating States to modify their do- 
mestic law in order to enable them to fulfill their commitments under the Initia- 
tive. If the modification of domestic rules does not suffice because rules and 



56 



Wolff Heintschel von Heinegg 



principles of international law prove either insufficient or an obstacle for the Initia- 
tive's objectives, the participating States have to be prepared to take the necessary 
steps on the international level. First efforts in that respect have been initiated by 
the United States and may eventually result in an amendment of the 1988 Conven- 
tion for the Suppression of Unlawful Acts Against the Safety of Maritime 
Navigation 10 at the end of 2005. n 

The Initiative's core commitments, however, are laid down in Interdiction Prin- 
ciple 4 on "specific action," i.e., the participating States will: 



Not transport or assist in the transport of WMD; 



Board their own vessels in their respective internal waters and territorial sea areas as 
well as on the high seas, if there is reasonable ground for suspicion that they are 
engaged in proliferation activities; 

Consider to provide consent to boarding of their vessels by the authorities of other 
participating States; 

Take measures against foreign vessels in the sea areas covered by their territorial 
sovereignty and in their respective contiguous zone; and 

Take measures against foreign aircraft in their respective national airspace. 

At first glance, none of these commitments seems to imply insurmountable legal 
problems — the more so because the participating States have stressed that their in- 
terdiction activities will be "consistent with . . . relevant international law and 
frameworks, including the UN Security Council." Indeed, international lawyers 
seem to widely agree that in view of its rather limited scope PSI finds a sufficient 
basis in the existing law. 12 This is certainly correct insofar as interdiction measures 
are taken against vessels and aircraft belonging to one of the participating States. 
Vessels flying a State's flag and aircraft bearing a State's markings are subject to 
that State's sovereignty. 13 Accordingly, they may be visited and searched by that 
State's organs in sea areas and in airspace not covered by the territorial sovereignty 
of another State. The said position is also correct if the flag or home State has con- 
sented to interdiction measures by another State 14 or if the foreign vessel or air- 
craft is traveling in the internal waters or national airspace of a participating 
State. 15 However, some doubts remain with regard to interdiction measures taken 
against foreign vessels within the territorial sea because the rules of the law of the 
sea on enforcement measures by the coastal State are less clear than they seem to 
be. These questions will be addressed in the second part of this article. Moreover, 



57 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

the question arises whether States participating in PSI are excluded from interdict- 
ing foreign vessels and aircraft in high seas areas and in international airspace. It is 
true that, according to the wording of the Interdiction Principles agreed upon in 
Paris, there is no indication that they are prepared to interdict the transport of 
WMD and related material in those areas if on board a vessel or aircraft not be- 
longing to one of them. Still, this does not necessarily mean that the participating 
States have for once and for all excluded that possibility. Therefore, the third part 
of this paper will deal with the legality of interdiction measures on the high seas 
and in international airspace. However, before dealing with these legal problems it 
is important to first establish the relationship of PSI and the international anti- 
proliferation regime. As will be shown in the first part, the Initiative is far from be- 
ing a fundamentally novel approach by States sharing a common concern with re- 
gard to the threat posed by the proliferation of WMD and their delivery systems. 
Some of the voices raising (legal) concerns with regard to PSI seem to ignore the 
fact that a comparatively small group of States has a long history of close coopera- 
tion with the aim of preventing the proliferation of WMD and their delivery sys- 
tems. PSI is but a small tessera in the mosaic that is the international anti- 
proliferation regime. 

The International Anti-Proliferation Regime 

It is a fact all too often ignored that there already exists a rather sophisticated inter- 
national regime aimed at the prevention of the proliferation of WMD. This regime 
covers not only nuclear weapons and nuclear material but also chemical and bio- 
logical weapons, including their components, as well as delivery systems and the 
related technology. It consists of "hard law obligations" and of a number of supple- 
menting agreements of a merely political character. Most of those formal and in- 
formal agreements pertain to specific weapons and materials. It should be 
mentioned, however, that there are three further instruments that are based on a 
comprehensive approach but that will not be dealt with here because they only in- 
directly contribute to counter-proliferation of WMD: the International Ship and 
Port Facility Code (ISPS Code), 16 the Container Security Initiative (CSI), 17 and the 
"Customs-Trade Partnership Against Terrorism" (C-TPAT) Program. 18 

Nuclear Weapons and Nuclear Material 

According to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons 
(NPT), 19 nuclear-weapon States are prohibited from making available, either di- 
rectly or indirectly, to non-nuclear-weapon States "nuclear weapons or other nu- 
clear explosive devices" (Article I). Non-nuclear-weapon States, in turn, are under 

58 



Wolff Heintschel von Heinegg 



an obligation not to "manufacture or to otherwise acquire such weapons or de- 
vices" (Article II). According to Article III, paragraph 1, a non-nuclear-weapon 
State is obliged to "accept safeguards, as set forth in an agreement to be negotiated 
and concluded with the International Atomic Energy Agency (IAEA) in accor- 
dance with the Statute of the International Atomic Energy Agency and the 
Agency's safeguards system, for the exclusive purpose of verification of the fulfill- 
ment of its obligations assumed under" the NPT. The IAEA has safeguards agree- 
ments in force with more than 145 States around the world. Most of these are 
comprehensive safeguards agreements concluded pursuant to the NPT. Other 
types of agreements are known as item or facility safeguards agreements and vol- 
untary offer agreements. Also in place is a Model Additional Protocol to safeguards 
agreements that grants the IAEA complementary verification authority. 20 

The NPT-IAEA system is supplemented by the Zangger Committee and by the 
Nuclear Suppliers Group (NSG), both informal groups of States that aim at 
strengthening the counter-proliferation efforts. The Zangger Committee 21 was 
formed in 1971 and consists of 35 States. Its main task is to harmonize the interpre- 
tation of nuclear export control policies by specifying the meaning of Article III, 
paragraph 2, of the NPT. Accordingly, the so-called "trigger list" 22 relates to source 
or special fissionable materials and to equipment or materials especially designed 
or prepared for the processing, use, or production of special fissionable materials. 
By interpreting and implementing Article III, paragraph 2, the "trigger list" helps 
to prevent the diversion of exported nuclear items from peaceful purposes to nu- 
clear weapons or other nuclear explosive devices. Such material may only be ex- 
ported by one of the participating States if three conditions are met: ( 1 ) non- 
explosive use assurance, (2) observance of the IAEA safeguards requirement, and 
(3) commitment to re-transfer. The Nuclear Suppliers Group 23 comprises 40 nu- 
clear supplier countries. It seeks to contribute to the non-proliferation of nuclear 
weapons through the implementation of guidelines for nuclear exports. In view of 
NSG's informal character the guidelines are not legally binding; they are, however, 
implemented by the participating governments that take the necessary decision at 
the national level according to their respective domestic law. 

Finally, there are two draft conventions that, if ever accepted by a representative 
number of States, will certainly contribute to strengthening the international re- 
gime against the proliferation of nuclear weapons and of nuclear material: the 
Draft Convention for Suppression of Nuclear Terrorism (CNT) 24 and the Draft 
Fissile Material Cut-Off Treaty (FMCT). 25 

The Draft CNT would exclusively address acts by individuals. Therefore, its 
scope would not include the issue of the non-proliferation of nuclear weapons or 
nuclear threats posed by States or intergovernmental organizations. States parties 



59 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

would be obliged to cooperate in preventing or prosecuting acts of nuclear terror- 
ism by, inter alia, adopting necessary legislative and technical measures to protect 
nuclear material, installations and devices, and to forestall unauthorized access to 
them by third parties. It would supplement the 1980 Convention on the Physical 
Protection of Nuclear Material. 26 

Fissile material, e.g., enriched uranium, is a key component in the development 
of nuclear warheads. After the General Assembly of the United Nations had passed 
a resolution on the prohibition of fissile material for nuclear weapons or other ex- 
plosive devices 27 an ad hoc committee was established by the Conference on Disar- 
mament in 1998, with a view to negotiating a treaty banning the production of 
fissile material for nuclear weapons. While it is unclear whether the work on the 
FMCT will produce results, the FMCT would cap the amount of fissile materials in 
nuclear weapons States and non-parties to the NPT. However, it would not apply 
to plutonium and Highly Enriched Uranium for non-explosive purposes and to 
non-fissile material (e.g., Tritium). It would not address existing stockpiles. 

Chemical and Biological Weapons 

Chemical weapons and biological weapons are governed by the 

1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, 
Poisonous or Other Gases, and of Bacteriological Methods of Warfare (GP 

1925), 28 

1972 Convention on the Prohibition of the Development, Production and 
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their 
Destruction (BTWC), 29 and 

1993 Convention on the Prohibition of the Development, Production, 
Stockpiling and Use of Chemical Weapons and on Their Destruction (1993 

CWC). 30 

The Australia Group (AG) 31 is an informal arrangement of 39 States and the Euro- 
pean Commission which aims to allow exporting or transshipping countries to 
minimize the risk of assisting chemical and biological weapon (CBW) prolifera- 
tion. Its task is to ensure, through licensing measures on the export of certain 
chemicals, biological agents, and dual-use chemical and biological manufacturing 
facilities and equipment, that exports of these items from their countries do not 
contribute to the spread of CBW. 



60 



Wolff Heintschel von Heinegg 



Delivery Systems 

With regard to WMD delivery systems, there is no treaty or other legally binding 
instrument either prohibiting or restricting the transfer of such delivery systems or 
of related technologies. However, there are three informal arrangements aiming at 
the prevention of their proliferation. 

The Missile Technology Control Regime (MTCR) 32 is an informal non-treaty 
association of 34 States that have agreed on the prevention of the proliferation of 
missiles, unmanned aerial vehicles (UAVs) and of related technologies. Similar to 
the Zangger Committee and the NSG, the MTCR is functioning on the basis of 
guidelines that are amended by an Equipment and Technology Annex. In addition, 
the Hague Code of Conduct against the Proliferation of Ballistic Missiles (HCOC) 
was adopted in November 2002. 33 The object and purpose of the HCOC is to curb 
the proliferation of WMD-capable ballistic missiles and to exercise maximum re- 
straint in developing, testing, and deploying such missiles. 34 

Security Strategies of NATO, the United States and the European Union 

At the end of this overview of the international regime it needs to be emphasized 
that proliferation of WMD and their delivery systems has been identified as a ma- 
jor security threat in NATO's new Strategic Concept of April 1999, 35 in the US Na- 
tional Security Strategy of September 2002, 36 and in the European Security Strategy 
of December 12, 2003. 37 The US National Strategy to Combat Weapons of Mass 
Destruction of December 2003 provides that: "U.S. military and appropriate civil- 
ian agencies must possess the full range of operational capabilities to counter the 
threat and use of WMD by states and terrorists against the United States, our mili- 
tary forces, and friends and allies." The EU member States, according to the Euro- 
pean Security Strategy, have recognized that "[a]ctive policies are needed to 
counter the new dynamic threats. We need to develop a strategic culture that fos- 
ters early, rapid, and when necessary, robust intervention." 

Moreover, the European Union has adopted the EU Strategy Against Prolifera- 
tion of Weapons of Mass Destruction which provides for a strengthened identifica- 
tion, control and interception of illegal trafficking in WMD. Hence, the European 
Union is prepared to adopt "common policies related to criminal sanctions for ille- 
gal export, brokering and smuggling of WMD-related material"; to consider "mea- 
sures aimed at controlling the transit and transshipment of sensitive materials"; 
and to support "international initiatives aimed at the identification, control and 
interception of illegal shipments." 38 

The EU approach towards the proliferation issue may be less proactive than the 
US approach. Still, both EU strategies clearly indicate that the European Union will 



61 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

not restrict itself to diplomatic means but that it is prepared to also make use of 
armed force whenever this may prove necessary. 

PSI as a further Cornerstone of the International Counter-Proliferation 
Regime 

It has been shown that PSI is a common effort of a group of States that fits well into 
the already existing counter-proliferation regime. 39 Subject to the final determina- 
tion of its legality under international law, PSI is without doubt to be considered an 
additional step towards an effective prevention of the proliferation of WMD and 
their delivery systems. Its informal character enhances the participating States' 
ability to flexibly react to proliferation activities by States and individuals of con- 
cern and thus contributes to an effective implementation of their national and in- 
ternational security strategies. 



Chemical 
Weapons 



PSI 




NPT 



AG 

GP 1925 

WMD 

Threat 




Biological 
Weapons 



PSI 



MTCR 



ZC 



NSG 

r ^ 



HCOC 

Wassenaar 



Nuclear 
Weapons 



Delivery 
Systems 



Figure 1: PSI as Part of the International Counter-Proliferation Regime 
Interdicting the Transport of WMD in the Territorial Sea 

The success of PSI is, of course, dependent on the firm political will of the partici- 
pating States. However, some of them, e.g., Russia and Germany, have continu- 
ously stressed that their active participation in the Initiative presupposes the 
legality of the measures taken under international law. As long as interdiction mea- 
sures are taken in the respective territories, national airspaces, and internal waters 
they are in conformity with international law. 40 The same holds true if ships and 



62 



Wolff Heintschel von Heinegg 



aircraft are intercepted in international sea areas and in international airspace ei- 
ther by, or with the consent of, their respective flag or home State. 41 

However, when it comes to intercepting foreign vessels within the territorial sea, 
the question arises whether the law of the sea provides a sufficient legal basis. It 
needs to be emphasized that interference with foreign shipping, even if it occurs in 
the territorial sea of the intercepting State, will always have to be measured against 
the freedom of navigation, especially against the well-established right of innocent 
passage. Since all States participating in PSI are heavily dependent upon free sea 
lanes and unimpeded maritime commerce, they will certainly not too easily in- 
fringe upon those freedoms and rights. The precedent they set may be copied by 
other States and could contribute to a new form of "creeping jurisdiction" that may 
ultimately prove counterproductive. It is, therefore, vital for PSI that interdiction 
measures are in compliance with the regime of the territorial sea as set forth in the 
1982 United Nations Convention on the Law of the Sea 42 (1982 LOS Convention) 
and in the corresponding customary law. 43 

Without prejudice to the inherent right of self-defense, the right of coastal States 
to interfere with foreign vessels in their territorial sea is regulated in Articles 25 and 
27 of the 1982 LOS Convention. 44 According to the latter provision, the coastal 
State may exercise its criminal jurisdiction on board a foreign ship, i.e., it may ar- 
rest persons, conduct investigations, and temporarily detain the vessel, if crimes 
have been committed on board during passage that impact upon the coastal State. 
In view of the fact that coastal States are entitled to prevent infringement of, inter 
alia, their customs, fiscal, immigration and sanitary laws and regulations (Article 
21, paragraph 1), enforcement measures taken against vessels suspect of transport- 
ing WMD, WMD components or delivery systems, do not seem to pose any prob- 
lems. If the States participating in PSI enact legislation prohibiting the transport of 
such material they would be in a position to enforce these regulations against sus- 
pect vessels. It may, however, not be left out of consideration that the mere breach 
of the domestic (criminal) law of the coastal State will justify the exercise of its 
criminal jurisdiction only in cases where the crime has been committed on board a 
ship passing through the territorial sea after leaving the coastal State's internal wa- 
ters (Article 27, paragraph 2). If the vessel concerned has not left a port of the 
coastal State the exercise of criminal jurisdiction, according to Article 27, para- 
graph 1, is limited to one of the following cases: 

(a) if the consequences of the crime extend to the coastal State; 

(b) if the crime is of a kind to disturb the peace of the country or the good 
order of the territorial sea; 



63 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

(c) if the assistance of the local authorities has been requested by the master 
of the ship or by a diplomatic agent or consular officer of the flag State; or 

(d) if such measures are necessary for the suppression of illicit traffic in 
narcotic drugs or psychotropic substances. 

In the context of PSI, the coastal State will therefore be obliged to prove that the 
prohibited transport of WMD and related material meets the conditions of either 
subparagraph (a) or (b). An analogy to subparagraph (d) is not justified in view of 
the restricted scope of that exception. In view of the fact that the coastal State's en- 
forcement jurisdiction in the territorial sea is in principle complete, 45 and in view 
of the dangerous character of such cargoes, the coastal State will in most cases be in 
a position to provide sufficient evidence that the said conditions are met. Still, it 
should not be left out of consideration that there is no general and complete prohi- 
bition of the transport of such material. Therefore, the coastal State that wishes to 
interdict the transport of WMD through its territorial sea should give prior notifi- 
cation of its domestic legal rules prohibiting such transports. 46 

If the crime has been committed before entry into the territorial sea and if the 
ship, proceeding from a foreign port, is only passing through the territorial sea 
without entering internal waters, the coastal State may not take any steps on board 
the ship. 47 However, this rule will in most cases not be an obstacle for interdiction 
measures because the transport of WMD or of delivery systems constitutes a per- 
manent crime, i.e., the perpetration continues during passage. 

Finally, the question remains whether the coastal State would be entitled to take 
enforcement measures against foreign vessels by referring to a "non-innocent" 
passage if there is no domestic law or regulation prohibiting the transport of the 
items in question. According to Article 25, paragraph 1, of the 1982 LOS Conven- 
tion, the coastal State "may take the necessary steps in its territorial sea to prevent 
passage which is not innocent." Article 19 of the Convention provides that passage 
is not innocent if it is "prejudicial to the peace, good order or security of the coastal 
State" (paragraph 1) or if the vessel is engaged in one of the activities listed in Arti- 
cle 19, paragraph 2. Transporting missiles or WMD is not mentioned in paragraph 
2 which, e.g., the United States considers "an exhaustive list of activities that would 
render passage not innocent." 48 Accordingly, some authors have serious doubts as 
to whether interdiction measures may be based upon the assumption of the non- 
innocent character of the transport of WMD. 49 However, this position is not very 
convincing. According to UN Security Council Resolution 1540 50 "proliferation of 
nuclear, chemical and biological weapons, as well as their means of delivery, con- 
stitutes a threat to international peace and security." Daniel Joyner argues, 



64 



Wolff Heintschel von Heinegg 



therefore, that it "should be relatively unproblematic ... for coastal states to justify 
overcoming seagoing vessels' right of innocent passage through their territorial 
waters when there is a reasonable basis for suspicion that they are involved in pro- 
liferation." 51 Although the coastal State's reaction, according to Article 25, para- 
graph 1, will be limited to "preventing" such innocent passage, this does not mean 
that the suspect vessel may only be ordered to immediately leave the territorial sea. 
Such a restriction merely applies in cases of warships not complying with the 
coastal State's laws and regulations because warships, even if within a foreign terri- 
torial sea, enjoy sovereign immunity. 52 With regard to merchant vessels that do not 
enjoy sovereign immunity, the coastal State will therefore be entitled to take all 
necessary steps, including the arrest of the vessel and seizure of its cargo. 53 

Interference with Foreign Vessels and Aircraft in High Seas Areas 

As seen, the interdiction measures agreed upon in the Paris Interdiction 
Principles 54 are consistent with existing international law. 55 The participating 
States do not yet envisage interdiction activities in high seas areas or in interna- 
tional airspace unless their own vessels and aircraft are concerned or unless the flag 
or home State has consented in a boarding or interception by another participating 
State. As a matter of fact, such consent was the legal basis for the interception the 
BBC China in September 2003. 56 Consent, including presumed consent, will also 
be the decisive legal argument for the interception, boarding, search, diversion, 
and arrest of Liberian- and Panamanian-flagged vessels according to bilateral 
agreements concluded by the United States with the two States. 57 The same holds 
true for an amendment of the 1988 Convention for the Suppression of Unlawful 
Acts Against the Safety of Maritime Navigation (SUA Convention) 58 that is ex- 
pected to be agreed upon in the end of 2005. 

It needs to be emphasized here that no considerable legal problems are involved 
if there are reasonable grounds for suspicion that a vessel encountered on the high 
seas (or a civil aircraft in international airspace) is engaged in the transport of 
WMD and their delivery systems and that the cargo is destined to transnational ter- 
rorists. There is today widespread agreement that in case of a terrorist background 
interception, boarding, search, or arrest of vessels and aircraft finds its legal basis 
either in the (inherent) right of self-defense or in the international law of counter- 
measures (in combination with United Nations Security Council Resolution 1373 
(2001) 59 ). 

However, it remains to be seen whether the PSI States would be entitled to also 
interdict the transport of WMD on the high seas or in international airspace if 



65 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

there is neither a terrorist background nor a (presumed) consent by the flag or 
home State. 

Law of the Sea 

Merchant vessels on the high seas are subject to the sovereignty of their respective 
flag State. 60 The same holds true with regard to civil aircraft in international air- 
space. 61 Therefore, third States are not entitled to interfere with such vessels and 
aircraft unless such interference is justified by the consent of the flag or home State 
or by a special agreement. 62 There is, as yet, no express treaty prohibition of the 
transport of WMD and their delivery systems. 63 Moreover, such activities may not 
be equated with piracy. 64 Therefore, the only provision of the 1982 LOS Conven- 
tion serving as a basis for interdicting such transports in high seas areas is Article 
1 10, paragraph 1 (d) and (e). Hence, as was the case in the So San incident, 65 the 
vessel must be without nationality or, though flying a foreign flag or refusing to 
show its flag, it must, in reality, be of the same nationality as the intercepting war- 
ship. It remains to be seen whether the proposed amendments of the SUA 
Convention 66 will also result in a modification of the LOS Convention or contrib- 
ute to the emergence of a new rule of customary international law. At present, 
however, the international law of the sea does not provide a legal basis beyond the 
scope of Article 1 10 of the 1982 LOS Convention. 

Self- Defense 

As in cases with a terrorist background, the right of self-defense will serve as a legal 
basis if the conditions triggering that right are met. Hence, if the transport of 
WMD is sufficiently linked to a given threat of an armed attack its interdiction will 
be justified, because there will be a "necessity of self-defense, instant, overwhelm- 
ing, leaving no choice of means, and no moment of deliberation." 67 This will be the 
case if a merchant vessel is sailing in the immediate vicinity of the outer limit of a 
State's territorial sea and if there are reasonable grounds for suspicion that there is 
a nuclear weapon on board. Under the right of self-defense the coastal State will 
certainly be entitled to take all necessary measures, including the capture of the ves- 
sel, in order to effectively counter the threat. 68 The same holds true if the suspect 
vessel is destined to a third State whose government has shown an aggressive atti- 
tude and has given sufficient evidence that it would make use (or would consent in 
the use) of WMD as soon as it disposes of such weapons. Accordingly, the Cuban 
Quarantine could have been justified as a necessary measure of preemptive/ 
interceptive 69 — not preventive — self-defense. 70 It may well be that in some near or 
distant future the customary right of self-defense will also apply to less immediately 
threatening circumstances. The US National Security Strategy may then be 

66 



Wolff Heintschel von Heinegg 



characterized as the first precedent contributing to a progressive development of 
international law. For the time being, however, coercive measures of a purely pre- 
ventive character are not in compliance with the right of self-defense. The mere 
shipment of WMD and their delivery systems will in most cases not meet the three- 
fold test of immediacy, necessity and proportionality. 71 Hence, except for extraor- 
dinary circumstances, an extension of PSI to interdictions of foreign vessels and 
aircraft in the high sea and in international airspace cannot be based upon the right 
of self-defense. 72 It needs to be emphasized that any extensive interpretation, claim 
or application of the right of self-defense to situations traditionally not covered by 
that right may serve as a welcome precedent for other States. Even if they display a 
certain conduct that the PSI States are unwilling to tolerate, the latter will be in a 
most unpleasant and difficult situation because they will certainly be reminded of 
their prior conduct. Moreover, all States, including the PSI States, should be aware 
of the tremendous achievements of the past three years. Prior to September 11, 
200 1 most international lawyers and governments would have agreed that the right 
of self-defense does not apply to attacks by a group of private persons. Today no- 
body would doubt that this is the case. A further extension of the right of self-de- 
fense to situations not meeting the test of imminence would not only be premature 
but, ultimately, counterproductive. 

Counter-Measures Short of Serf-Defense 

However, the above findings do not rule out the possibility of a further legal basis 
justifying the interdiction of WMD transports on the high seas and in international 
airspace that is all too often left out of consideration: counter-measures short of 
self-defense. 

Admittedly, in its Resolution 1540 the UN Security Council has not authorized 
the boarding or capture of vessels and aircraft suspected of transporting WMD and 
their delivery systems. 73 Had the Security Council provided such an authoriza- 
tion — either in general terms or with regard to vessels and aircraft of a given na- 
tionality — the resolution would be a perfect legal basis. 74 However, the continuous 
plea for an express authorization by the Security Council whenever security issues 
are at stake is unrealistic. It is based upon an erroneous perception of the UN sys- 
tem of collective security. Of course, a functioning institutionalization of the use of 
force, including measures short of self-defense, may be an ideal worth working for. 
However, at present the system is far from perfect. It would amount to wishful 
thinking to believe that, e.g., the People's Republic of China will ever vote in favor 
of a Security Council resolution aimed at the proliferation activities by North Ko- 
rea and authorizing the interdiction of North Korean ships and aircraft suspected 
of being engaged in such transports. Moreover, the present system of international 

67 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

law is far from excluding unilateral or multilateral action outside the UN system of 
collective security. 

Be that as it may, with Resolution 1540 there now exists a legally binding docu- 
ment that unambiguously specifies the obligations of all States with regard to the 
prevention of the proliferation of WMD by non-State actors. Contrary to the views 
expressed by some politicians 75 and international lawyers 76 the Security Council is 
not limited in making use of its powers under Chapter VII of the UN Charter in sit- 
uations in which a specific State threatens the peace. In other words, the Security 
Council may, in view of its primary responsibility for peace and international secu- 
rity, act as a quasi-legislator if the only means to counter a threat to the peace is a 
general and abstract resolution. The international community has not protested 
against either Resolution 1373 or Resolution 1540, thus acquiescing in the perfor- 
mance of such powers. 

It may be recalled that, in Resolution 1540, the Security Council, acting under 
Chapter VII, has identified a series of obligations with regard to the prevention of 
WMD proliferation by non-State actors 77 : 

1 . [A] 11 States shall refrain from providing any form of support to non-State 
actors that attempt to develop, acquire, manufacture, possess, transport, 
transfer or use nuclear, chemical or biological weapons and their means 
of delivery; 

2. ... all States, in accordance with their national procedures, shall adopt 
and enforce appropriate effective laws which prohibit any non-State 
actor to manufacture, acquire, possess, develop, transport, transfer or 
use nuclear, chemical or biological weapons and their means of delivery, 
in particular for terrorist purposes, as well as attempts to engage in any of 
the foregoing activities, participate in them as an accomplice, assist or 
finance them; 

3. ... all States shall take and enforce effective measures to establish 
domestic controls to prevent the proliferation of nuclear, chemical, or 
biological weapons and their means of delivery, including by establishing 
appropriate controls over related materials and to this end shall: 

(a) Develop and maintain appropriate effective measures to account for 
and secure such items in production, use, storage or transport; 

(b) Develop and maintain appropriate effective physical protection 
measures; 

68 



Wolff Heintschel von Heinegg 



(c) Develop and maintain appropriate effective border controls and law 
enforcement efforts to detect, deter, prevent and combat, including 
through international cooperation when necessary, the illicit 
trafficking and brokering in such items in accordance with their 
national legal authorities and legislation and consistent with 
international law; 

(d) Establish, develop, review and maintain appropriate effective 
national export and trans-shipment controls over such items, 
including appropriate laws and regulations to control export, transit, 
trans-shipment and re-export and controls on providing funds and 
services related to such export and trans-shipment such as financing, 
and transporting that would contribute to proliferation, as well as 
establishing end-user controls; and establishing and enforcing 
appropriate criminal or civil penalties for violations of such export 
control laws and regulations .... 

Accordingly, every State that either allows or otherwise — actively or passively — as- 
sists in the transport of WMD and their delivery systems by non-State actors will 
violate its international obligations under Resolution 1540. A justification based 
on an assertion that the State in question does not possess the necessary means to 
comply with its duties is immaterial because Resolution 1540, in paragraph 7, 
specifically: 

Recognizes that some States may require assistance in implementing the provisions of 
this resolution within their territories and invites States in a position to do so to offer 
assistance as appropriate in response to specific requests to the States lacking the legal 
and regulatory infrastructure, implementation experience and/or resources for 
fulfilling the above provisions. 

Therefore, a State that knowingly allows the transport of WMD and of their deliv- 
ery systems or that does not intervene by preventing such transports on board ves- 
sels flying its flag or on board aircraft bearing its markings commits an 
internationally wrongful act. According to the well-established principles of the 
law of State responsibility, 78 as codified in the 2002 rules prepared by the Interna- 
tional Law Commission (ILC), 79 the State injured by a violation of international 
law is entitled to take the necessary countermeasures in order to either induce the 
wrongdoer to comply with its obligations or to reestablish the legal status quo ante 
instead of the delinquent State. 80 Since all forms of WMD proliferation activities by 
non-State actors are to be considered a threat to peace and international security 

69 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

and since the vast majority of States, including the People's Republic of China, 
agrees that such activities pose a considerable danger, the category of "injured 
State" is not limited to potential target States. Consequently, countermeasures and 
reprisals involving visit, search and capture may be taken against vessels and air- 
craft for the mere reason that they are flying the delinquent State's flag or that they 
are bearing that State's markings (genuine link). However, in view of the impor- 
tance of the freedom of navigation and overflight such measures must be necessary 
and strictly proportionate. That will only be the case if there are reasonable 
grounds for suspicion that the vessels or aircraft concerned are indeed engaged in 
illicit activities of WMD transportation, i.e., that they are acting without the legal 
authority of any State. 81 

Conclusions 

There are some who are skeptical about the Proliferation Security Initiative, which 
they consider a too proactive and, thus, dangerous undertaking. 82 However, they 
also agree that proliferation of WMD and their delivery systems constitutes a con- 
crete threat to international security. Still, they are not prepared to admit that the 
Initiative has been built on a sound legal basis. PSI, as it now stands, is in perfect 
conformity with both the international law of the sea and, though in exceptional 
cases only, the right of self-defense. Its legal basis has further been strengthened by 
UNSC Resolution 1540, thus enabling the participating States to extend their inter- 
diction activities to the high seas and to international airspace. A fortiori, they may 
interdict transports of WMD and their delivery systems in areas covered by their 
respective territorial sovereignty, i.e. in their national airspace and in their territo- 
rial sea areas. Such interdictions — wherever conducted — presuppose that there 
are reasonable grounds for suspicion that the vessel or aircraft is engaged in prolif- 
eration activities not legally authorized by any State. The freedom of navigation is a 
principle far too important and vital for the national economies and for national 
and multilateral security interests to be interfered with easily. 

Of course, the silver bullet is a treaty based approach. As seen, the United States 
has succeeded in concluding bilateral agreements with the two most important flag 
of convenience States — Liberia and Panama. 83 It is to be expected that further bi- 
lateral agreements will follow, thus enabling the US Coast Guard to effectively in- 
terdict the transport of WMD and of WMD-related cargoes by non-State actors. If 
the IMO member States succeed in amending the 1988 SUA Convention there will 
be a multilateral treaty serving as a further legal basis. However, the States of the 
highest proliferation concern, e.g., North Korea and Iran, will hardly be prepared 
to conclude or accede to such treaties. For an indefinite period of time, 

70 



Wolff Heintschel von Heinegg 



interdictions involving those States and their shipping and aviation will have to be 
based upon the rules and principles identified in this article. In view of their highly 
delicate character they should, however, be conducted in a most cautious and re- 
stricted manner. 

Notes 

1. US Department of State, Proliferation Security Initiative, Sept. 15, 2003, available 
at http://www.state.gOv/r/pa/ei/rls/24134.htm. See also Contemporary Practice of the United 
States, Proliferation Security Initiative for Searching Potential WMD Vessels, 98 AMERICAN 
Journal of International Law 355 (2004). 

2. For a discussion of the facts surrounding the So San incident, see Threats and Responses: Arms 
Smuggling; Scud Missiles Found on Ship of North Korea, NEW YORK TIMES, Dec. 1 1, 2002, at Al; 
P. Kerr, U.S. Stops Then Releases Shipment ofN. Korean Missiles, http://www.armscontrol.org/ 
act/2003_01-02/yemen_janfeb03.asp (last visited Feb. 8, 2005). 

3. The original eleven PSI participating States are: Australia, France, Germany, Italy, Japan, the 
Netherlands, Poland, Portugal, Spain, the United Kingdom, and the United States. Canada, 
Norway, Russia, and Singapore now also belong to the core group. Denmark and Turkey 
participated only in some of the meetings. 60 additional States have reportedly agreed to 
cooperate on an ad hoc basis. 

4. At the Brisbane meeting (July 2003) the participants agreed on (a) a global initiative with 
global reach, (b) direct, practical measures to impede the trafficking in WMD, missiles and 
related items, (c) interdicting shipments of these items at sea, in the air or on land, and (d) 
robust and creative steps to prevent trafficking in such items. See Special Press Summary: 
Proliferation Security Initiative Meeting, available at http://www.vic-info.org/RegionsTop.nsf/ 
0/f5d0afl0159ebd530a256d65000a5571?OpenDocument (last visited Feb. 8, 2005). 

5. US Department of State, Proliferation Security Initiative: Statement of 
INTERDICTION PRINCIPLES, http://www.state.gov/t/np/rls/fs/23764.htm (last visited Feb. 6, 
2005) [hereinafter Interdiction Principles]. 

6. This has been repeatedly emphasized by former Undersecretary of State, John Bolton. See The 
New Proliferation Security Initiative — an Interview with John Bolton, http://www.armscontrol 
.org/aca/midmonth/November/Bolton.asp (last visited Feb. 6, 2005). 

7. Interdiction Principles, supra note 5, Principle 1. 

8. For an assessment of the North Korean weapons program, see John Chipmann, International 
Institute for Strategic Studies (IISS) Director, available at http://www.iiss.org/showdocument 
.php?docID=324. On February 11, 2005 North Korea announced that it possesses nuclear 
weapons. For an overview of the Iranian nuclear program, see http://www.iaea.org/NewsCenter/ 
Focus/Iaealran/index.shtml (last visited Feb. 12, 2005). Libya was a "State of proliferation 
concern" until Muammar el-Qaddafi abandoned the WMD program in late 2003. 

9. Dr. Abdul Qadeer Khan is known as the father of Pakistan's nuclear weapons program. 
However, he also was involved in an extensive international network for the proliferation of 
nuclear technology and know-how. The network sold centrifuges to enrich uranium, uranium 
hexafluoride, and technological know-how to Iran, Libya and North Korea. 

10. Mar. 10, 1988, 1678 U.N.T.S. 221, reprinted in 27 INTERNATIONAL LEGAL MATERIALS 668 
(1988). 

11. See infra p. 65 and note 58. 



71 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

12. Robert M. Chesney, The Proliferation Security Initiative and Weapons of Mass Destruction 
Interdiction on the High Sea, 13 NATIONAL STRATEGY FORUM REVIEW 5 (Fall 2003), reprinted in 
25 NATIONAL SECURITY Law REPORT 5, 5-8 (Oct. 2003); Erin Harbaugh, The Proliferation 
Security Initiative: Counterproliferation at the Cross Roads, III STRATEGIC INSIGHTS, Issue 7 (July 
2004), available at http://www.ccc.nps.navy.mil/si/2004/jul/harbaughJul04.asp (last visited Feb. 
8, 2005); Daniel H. Joyner, The PSI and International Law, 10 THE MONITOR 7 (Spring 2004), 
available at http://www.uga.edu/cits/documents/pdf/monitor-sp-2004.pdf; Michael Byers, 
Policing the High Seas: The Proliferation Security Initiative, 98 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 526-545 (2004); Christian Schaller, Die Unterbindung des Seetransports 
von Massenvernichtungswaffen, SWP-STUDIE (May 2004). Doubts as to the Initiative's legality 
are raised by Benjamin Friedman, The Proliferation Security Initiative: The Legal Challenge, 
Bipartisan Security Group, Global Security Institute (September 2003), available at http:// 
www.nautilus.org/DPRKBrifingBook/terrorism/PSI-brief.html#top. 

13. Schaller, supra note 12, at 9. The flag State principle was characterized as "the most 
venerable and universal rule of maritime law" by the US Supreme Court in Lauritzen v. Larsen, 
345 U.S. 571 (1953) . See also S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7). 

14. See, inter alia, Byers, supra note 12, at 529; Chesney, supra note 12, at 6. It should be noted, 
however, that there is no general agreement whether the consent of the flag State is necessary or 
whether the master's consent would suffice. 

15. Joyner, supra note 12, at 8. 

16. The International Maritime Organization's (IMO) Diplomatic Conference of December 
2002 adopted the ISPS Code by amendments to Chapters V and XI of the International 
Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47, T.I.A.S. 9700. The full text of 
the ISPS Code, formally entitled the International Code for the Security of Ships and of Port 
Facilities, is available at http://www.turkloydu.org/EN/SEA7ISPS-Code-en.pdf. 

1 7. CSI was announced by the US Commissioner of Customs and Border Protection in January 
2002 as a means to extend the US zone of security outward so US borders are the last line of 
defense, not the first. Through CSI, US customs authorities may examine suspect containers in 
the port of origin of participating States. At present, CSI has been implemented in 34 
international ports. For a discussion of CSI and a current listing of participating ports, see 
Homeland Security, Container Security Initiative (CSI), available at http://www.globalsecurity 
.org/security/systems/carg-inspect.htm. See also John F. Frittelli, Maritime Security: Overview of 
Issues 5 (2003), Congressional Research Service Report RS21079, available at http://fas.org/sgp/ 
crs/RS2 1079.pdf (last visited Feb. 8, 2005). 

18. C-TPAT allows for better cooperation between US customs authorities and private 
enterprises. See US GENERAL ACCOUNTING OFFICE, GAO-03-770, CONTAINER SECURITY 
Expansion of Key Customs Will Require Greater Attention to Critical Success 
FACTORS (2003), available at http://www.gao.gov/new.items/d03770.pdf (last visited Feb. 8, 
2005). See also J. Ashley Roach, Container and Port Security: A Bilateral Perspective, 18 THE 
International Journal of Marine and Coastal Law 341 (2003). 

19. July 1, 1968, 21 U.S.T. 483; 729 U.N.T.S. 161; T.I.A.S. 6839 (entered into force Mar. 5, 1970). 

20. The texts of the safeguards agreements and additional protocol are available at http://www 
.iaea.org/Publications/Documents/Infcircs/Others/infl53.shtml (last visited Feb. 10, 2005). 

2 1 . For an overview of the Zangger Committee, see http://www.zanggercommittee.org. 

22. The term means that the export of listed items "triggers" IAEA safeguards as a condition for 
supply. The "trigger list" and the Zangger Committee's understandings are published by the 
IAEA in its Information Circular 209 (INFCIRC/209) entitled "Communication Received from 
members regarding the Export of nuclear material and of Certain Categories of Equipment and 



72 



Wolff Heintschel von Heinegg 



Other Materials", available at http://www.iaea.org/Publications/Documents/Infcirs/Others/ 
inf209.shtml. 

23. For an overview of the Nuclear Suppliers Group, see http://www.nuclearsuppliersgroup.org. 

24. The text of the CNT is available at http://www.fas.org/nuke/control/nt/docs/ (last visited 
Feb. 8, 2005). 

25. For an overview and assessment of the FMCT, see http://www.fas.org/nuke/control/fmct/ 
(last visited Feb. 8, 2005). 

26. Mar. 3, 1980, T.I.A.S. 11080 (entered into force Feb. 8, 1987). 

27. G.A.Res. A/RES/48/75, Dec. 16, 1993, available at http://www.un.org/documents/ga/res/48/ 
a48r075htm. 

28. June 17, 1925, 26 U.S.T. 571, T.I.A.S. No. 8061; reprinted in DOCUMENTS ON THE LAWS OF 
WAR 158 (Adam Roberts & Richard Guelff eds., 3d ed. 2000). 

29. Apr. 10, 1972, 1015 U.N.T.S. 164; T.I.A.S. No. 8062, reprinted in THE LAWS OF ARMED 
CONFLICTS 137 (Dietrich Schindler & Jiri Toman eds., 3d. ed. 1988) (entered into force on Mar. 
26, 1975). 

30. Jan. 13, 1993, 1975 U.N.T.S. 469, reprinted in 32 INTERNATIONAL LEGAL MATERIALS 800 
(1993). For an overview of the work of the Organisation for the Prohibition of Chemical 
Weapons, see http://www.opcw.nl/. 

31. An overview of the AG and a listing of its members is available at http://www.australiagroup 
.net/en/intro.htm. 

32. A discussion of the MTCR and a current listing of its members are available at http:// 
www.mtcr.info. 

33. The text of the HCOC is available at http://projects.sipri.se/expcon/hcocfinal.htm or http:// 
www.minbuza.nl/default.asp?CMS_ITEM=MBZ460871 (last visited Feb. 8, 2005). See also US 
Department of State, Fact Sheet, International Code of Conduct Against Ballistic 
Missile Proliferation (2004), available at http://www.state.gOv/t/np/rls/fs/27799.htm (last 
visited Feb. 9,2005). 

34. Christer Ahlstrom, Non- Proliferation of Ballistic Missiles: The 2002 Code of Conduct, 
Stockholm International and Peace Institute Yearbook 749 (2003). 

35. The Strategic Concept is the product of NATO Alliance's Strategic Concept, which was 
approved by the Heads of State and Government participating in the meeting of the North 
Atlantic Council in Washington, D.C., on April 23 and 24, 1999. Paragraph 22 provides: 

The proliferation of NBC weapons and their means of delivery remains a matter of 
serious concern. In spite of welcome progress in strengthening international non- 
proliferation regimes, major challenges with respect to proliferation remain. The 
Alliance recognises that proliferation can occur despite efforts to prevent it and can 
pose a direct military threat to the Allies' populations, territory, and forces. Some states, 
including on NATO's periphery and in other regions, sell or acquire or try to acquire 
NBC weapons and delivery means. Commodities and technology that could be used to 
build these weapons of mass destruction and their delivery means are becoming more 
common, while detection and prevention of illicit trade in these materials and know- 
how continues to be difficult. Non-state actors have shown the potential to create and 
use some of these weapons. 

36. According to the National Security Strategy of the United States, the comprehensive 
approach to combat WMD includes "proactive counterproliferation efforts," "strengthened 
nonproliferation efforts to prevent rogue states and terrorists from acquiring the materials, 
technologies, and expertise necessary for weapons of mass destruction," and "effective 
consequence management to respond to the effects of WMD use, whether by terrorists or hostile 



73 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

states." Office of the President of the United States, The National Security Strategy 
of the United States 14 (2002). 

37. The text of the European Security Strategy is available at http://ue.eu.int/uedocs/ 
cmsUploaa778367.pdf (last visited Feb. 8, 2005). The EU Strategy reads, in pertinent part, as 
follows: "Proliferation of Weapons of Mass Destruction is potentially the greatest threat to our 
security. . . . The most frightening scenario is one in which terrorist groups acquire weapons of 
mass destruction. In this event, a small group would be able to inflict damage on a scale 
previously possible only for States and armies." 

38. The text of the Strategy Against Proliferation is available at http://www.sipri.org/contents/ 
expcon/eu_wmdsrrategy.pdf. 

39. Seema Gahlaut, The PSI Will Parallel the Multilateral Export Control Regimes, 10 THE 
Monitor 12 (Spring 2004). 

40. See supra notes 12 and 13. 

41. See Joyner, supra note 14. 

42. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 833 U.N.T.S. 396,reprmted 
in 21 INTERNATIONAL LEGAL MATERIALS 1261 (entered into force Nov. 16, 1994) [hereinafter 
1 982 LOS Convention ] . See also the Agreement Relating to the Implementation of Part XI of the 
United Nations Convention on the Law of the Sea of 1 December 1 982 , UN Doc. A/RES/48/263 
of Aug. 17, 1994, available at http://www.un.org/Depts/los/convention_agreements/texts/ 
unclos/closindxAgree.htm (entered into force July 28, 1996). 

43. The rules of the 1982 LOS Convention on the territorial sea and on innocent passage are 
generally considered to be customary in character. Hence they are binding on all States. For an 
appraisal of the customary character, see especially the Joint Statement by the United States of 
America and the Union of Soviet Socialist Republics, Jackson Hole, Wyoming, Sep. 23, 1989, 
reprinted in 28 INTERNATIONAL LEGAL MATERIALS 1444 (1989) [hereinafter US-USSR Joint 
Statement]. 

44. In the context of PSI, Article 28 of the 1982 LOS Convention on civil jurisdiction is, if at all, 
of only minor relevance. 

45. Robin R. Churchill & Alan V. Lowe, The Law of the Sea 98 (3d ed. 1999); Schaller, 
supra note 12, at 11. 

46. This will regularly be achieved by making use of a Notice to Mariners and by a Notice to 
Aviators. The obligation to notify is based on the assumption that interference with foreign 
shipping will, a priori, constitute an infringement upon the flag State principle and the right of 
innocent passage. For a general duty to warn third States' shipping of dangers within the 
territorial sea, see Corfu Channel (UK v. Albania), Merits, 1949 I.C.J. 4, 22 (Apr. 9). 

47. 1982 LOS Convention, supra note 42, art. 27 (5). Note, however, that this restriction does 
not apply to cases provided for in Part XII of the Convention pertaining to the protection of the 
marine environment or with respect to violations of laws and regulations adopted in accordance 
with Part V (the EEZ). 

48. See Joint US-USSR Statement, supra note 42, ^ 3. 

49. Friedman, supra note 12, at 3. 

50. UN Doc. S/RES/1540 (2004) of Apr. 28, 2004. 

51. See Joyner, supra note 12, at 8. 

52. 1 982 LOS Convention, supra note 42, art. 30. Sovereign immunity of warships is specifically 
recognized in Article 236. See also The Schooner Exchange v. McFadden & Others, 1 1 U.S. 1 16 
(1812). 

53. CHURCHILL & LOWE, supra note 45, at 98; Joyner, supra note 1 2, at 8; Schaller, supra note 1 2, 
at 12. 



74 



Wolff Heintschel von Heinegg 



54. Supra note 5. 

55. The same view is taken by Byers, supra note 12, at 529; Joyner, supra note 12, at 8; and 
Schaller, supra note 12, at 19. 

56. For the facts surrounding the interception and boarding of the BBC China, see Mark Esper 
& Charles Allen, The PSI: Taking Action Against WMD Proliferation, 10 THE MONITOR 4, 6 
(Spring 2004). 

57. Agreement between the Government of the United States of America and the Government 
of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of 
Mass Destruction, Their Delivery Systems, and Related Materials by Sea, Feb. 11, 2004, available 
at http://www.state.gOv/t/np/trty/32403.htm. Amendment to the Supplementary Arrangement 
between the Government of the United States of America and the Government of Panama to the 
Arrangement between the Government of the United States of America and the Government of 
Panama for Support and Assistance from the United States Coast Guard for National Maritime 
Service of the Ministry of Government and Justice, May 12, 2004, available at http:// 
www.state.gOv/t/np/trty/32858.htm. 

58. 1678 U.N.T.S. 221, reprinted in 27 INTERNATIONAL LEGAL MATERIALS 668 (1988). The 
proposed amendment will include a criminalization of the transport of WMD and their 
components and rules on (a presumed) consent by the flag State to interception measures if 
there are reasonable grounds of suspicion that the vessel is engaged in such activities. 

59. Rudger Wolfrum, Fighting Terrorism at Sea: Options and Limitations under International 
Law, in NEGOTIATING FOR PEACE. LIBER AMICORUM TONO ElTEL 649-668 (Jochen A. Frowein 
et al. eds., 2003); Wolff Heintschel von Heinegg, Current Legal Issues in Maritime Operations: 
Maritime Interception Operations in the Global War on Terrorism, Exclusion Zones, Hospital Ships 
and Maritime Neutrality, 34 ISRAEL YEARBOOK ON HUMAN RIGHTS 151 (2004). 

60. See the references supra note 12. 

61. Bin Cheng, Air Law, in I ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 66, 69 (Rudolf 
Bernhardt ed., 1992). 

62. E.g., according to the bilateral agreements between the United States on the one side and 
Liberia and Panama on the other side {supra note 57). 

63. Subject to an amendment to the 1988 SUA Convention at the end of 2005. 

64. Transport of WMD even if performed for private ends will not meet the conditions laid 
down in Article 101 of the LOS Convention. Moreover, there is no indication — either in State 
practice or in the literature — of an emerging consensus to that effect. 

65. See the references supra note 2. 

66. Supra note 58. 

67. Robert Y. Jennings, The Caroline and McLeod Cases, 32 AMERICAN JOURNAL OF 
INTERNATIONAL Law 82, 91 (1938). For an appraisal of the Caroline formula, see YORAM 
Dinstein, War, Aggression and Self-defence 169 (3d ed. 2001). 

68. For such a scenario, see Byers, supra note 12, at 532. 

69. For the concept of interceptive self-defense, see DINSTEIN, supra note 67, at 219. 

70. Carl Q. Christol & Charles R. Davis, Maritime Quarantine: The Naval Interdiction of 
Offensive Weapons and Associated Materiel to Cuba, 1962, 57 AMERICAN JOURNAL OF 
International Law 525 (1963). 

71. For these legal limits of the right of self-defense, see DINSTEIN, supra note 67, at 207. 

72. Friedman, supra note 12, at 5; Byers, supra note 12, at 532, 540; Schaller, supra note 12, at 20; 
Joyner, supra note 12, at 7; Harbaugh, supra note 12, at 5; Chesney, supra note 12 at 7. 

73. U.N.S.C. Res. 1540 (Apr. 28, 2004). 

74. Byers, supra note 12, at 531; Schaller, supra note 12, at 17. 



75 



The Proliferation Security Initiative: Security vs. Freedom of Navigation? 

75. E.g., in September 2004 the chairperson of the Swiss Department of Foreign Affairs, 
Micheline Calmy-Rey, criticized the Security Council for gradually usurping the role of a "world 
legislator" in referring to UNSC Resolution 1373. 

76. E.g., Klaus Dicke, Weltgesetzgeber Sicherheitsrat (Kommentar), in 49 VEREINTE NATIONEN 
163, 168(2001). 

77. In a footnote to the Resolution, the term "non-State actor" is defined as an "individual or 
entity, not acting under the lawful authority of any State in conducting activities which come 
within the scope of this resolution." 

78. For an assessment of the customary character of the rules and principles of State 
responsibility it suffices here to refer to IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL 
LAW 419 (6th ed. 2003); Karl Zemanek, Responsibility of States: General Principles, in IV 
Encyclopedia of Public International Law 219, 221 (Rudolf Bernhardt ed., 2000). 

79. G.A. Res. A/RES/56/83, Jan. 28, 2002, Annex: Responsibility of States for internationally 
wrongful acts. 

80. Article 49 of the ILC rules reads as follows: 

1. An injured State may only take countermeasures against a State which is 
responsible for an internationally wrongful act in order to induce that State to comply 
with its obligations under part two. 

2. Countermeasures are limited to the non-performance for the time being of 
international obligations of the State taking the measures towards the responsible State. 

3. Countermeasures shall, as far as possible, be taken in such a way as to permit the 
resumption of performance of the obligations in question. 

Note, however, that the restriction in paragraph 1 is not part of customary international law 
because States have continuously claimed a right to resort to counter-measures in order to 
reestablish the legal status quo ante in cases in which the obliged State has been either unwilling 
or unable to comply with its international obligations. 

81. For a similar argument in the context of counter-terrorism, see Heintschel von Heinegg, 
supra note 59. 

82. E.g., Friedman, supra note 12, passim; Harbaugh, supra note 12, passim. 

83. See supra note 59. 



76 



V 



Limits on the Use of Force in Maritime 
Operations in Support of WMD 
Counter-Proliferation Initiatives 



Craig H. Allen* 

We could have other missile crises in the future — different kinds, no doubt, and under 
different circumstances. But if we are to he successful then, if we are going to preserve our 
own national security, we will need friends, we will need supporters, we will need coun- 
tries that believe and respect us and will follow our leadership. 

Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis 1 

Introduction 

On May 31, 2003, President Bush invited a number of like-minded States to 
join in a Proliferation Security Initiative (PSI) to counter the proliferation 
of weapons of mass destruction (WMD) and prevent them from falling into the 
hands of rogue regimes and terrorist organizations. 2 In the following year, the 
United States, together with eight NATO allies 3 and Australia, lapan, and Singa- 
pore, participated in a series of PSI planning sessions, experts' meetings, exercises 
and operations to develop and refine the initiative. On September 4, 2003, the PSI 
participating States adopted a Statement of Interdiction Principles (reproduced in 



* Judson Falknor Professor of Law, University of Washington School of Law, Seattle, 
Washington. After the paper was submitted, the Chairman of the Joint Chiefs of Staff issued a 
new instruction which superseded CJCS Inst. 3 12 1.01 A on which this article was based. 



Limits on the Use of Force 



Appendix I), in which they agreed to "take specific actions in support of interdic- 
tion efforts regarding cargoes of WMD, their delivery systems, or related materi- 
als." 4 The "specific actions" are to include vessel boardings at sea and in port. All 
such boardings are to be conducted in compliance with applicable international 
and national laws. 5 Soon after the PSI was released, three open registry nations, 
Panama, Liberia and the Marshall Islands, which collectively represent more than 
half of the world's shipping capacity by tonnage, entered into bilateral agreements 
with the United States that will allow the United States to conduct PSI boardings of 
vessels flagged in those States while in international waters. 6 Cyprus, Croatia and 
Belize soon entered into similar agreements. By the time of the first anniversary 
meeting of the PSI States in Krakow, Poland on May 31 2004, sixty- two States had 
signaled their support for the PSI and the Russian Federation had joined the origi- 
nal group of core participants. 7 The 9/11 Commission embraced the PSI and rec- 
ommended that it be extended. 8 In addition, the United Nations Security Council 
legitimated the core principles of the PSI by unanimously passing Resolution 1540 
(reproduced in Appendix II), calling on all States to criminalize possession of 
WMD by, or the transfer or transport of WMD to, non-State actors. 9 The resolu- 
tion stopped short of conferring on non-flag-States any new interdiction authority 
over vessels engaged in transporting WMD and delivery systems on the high seas. 10 
A proposal to add WMD interdiction authority to the 1988 Convention for the 
Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) 11 
is presently under consideration. 12 

As the PSI matures, maritime boardings under the Statement of Interdiction 
Principles may present a number of practical and legal issues. The first, an impor- 
tant but non-legal issue, is the safety of the boarding teams, who will be exposed 
not only to the risks associated with boarding potentially noncompliant vessels at 
sea (rather than in the comparative safety of a port), but might now also face the 
risk of exposure to radiological, biological or chemical materials and explosive de- 
vices. The second issue, which is related to the first, concerns the adequacy of 
boarding platforms, equipment and trained personnel to conduct the necessary 
detection, surveillance, screening, boarding, searching and seizure of vessels, car- 
goes and crews, while also carrying out the multitudinous other missions already 
imposed on the armed forces. 13 The third issue that could be presented in some 
cases concerns the scope of a State's authority to board and search foreign vessels in 
its ports and coastal waters, or to permit other States to conduct boardings in their 
coastal waters, and the authority of States other than the flag State to intercept, in- 
terrogate, board and seize vessels on the high seas, with or without consent of the 
flag State or master of the vessel or the authority of a UN Security Council resolu- 
tion. The fourth area requiring examination will arise in cases where illicit WMD 



78 



Craig H. Allen 

or missile delivery materials are discovered during a boarding, and concerns the 
handling and disposition of those materials and the possible actions to be taken 
against the vessel and the owner and crew found to be involved in transporting 
WMD. The final issue — and the subject of this paper — concerns the legal limits on 
the use of force in carrying out WMD interception operations. Analysis of some of 
these questions has taken on added urgency in light of the fact that some US critics 
of the 1982 UN Convention on the Law of the Sea 14 have urged the US Senate not to 
consent to accession to the treaty, in part because in the critics' opinion the terms 
of the treaty would undermine the PSI. 15 

Depending on the vessel's location, flag and type, the threat level presented, and 
the goals of the mission, maritime detection, interception and enforcement opera- 
tions in support of the PSI may involve a variety of Department of Defense (DoD) 
and/or Department of Homeland Security (DHS) platforms and personnel. At-sea 
measures to intercept vessels suspected of transporting WMD by DoD or DHS 
could potentially be carried out under one or more of the following frameworks: 
(1) boardings conducted pursuant to consent by the vessel's flag State, the coastal 
State or vessel master; (2) maritime interception operations (MIO) to enforce em- 
bargoes imposed under the operative terms of a resolution by the UN Security 
Council or similar authority; 16 (3) "expanded" maritime interception operations 
(E-MIO); 17 (4) maritime law enforcement operations (MLE); 18 (5) the peacetime 
right of approach and visit; 19 (6) the customary law of countermeasures (self- 
help); 20 (7) the right of individual or collective self-defense; or (8) the belligerent's 
right of visit and search for contraband under the law of neutrality. 

Vessel interceptions and boardings by naval vessels are generally carried out by 
visit, board, search and seizure (VBSS) teams drawn from the US Maritime 
Forces. 21 Boarding teams from US Navy platforms may include Navy, Marine 
Corps and Coast Guard personnel. Coast Guard interception and boarding teams 
may also operate from Coast Guard boats or cutters or from allied naval vessels. In 
most cases, Coast Guard law enforcement detachments (LEDETs) on naval vessels 
serve under the operational or tactical control of the cognizant Coast Guard com- 
mand authority when conducting boardings. 22 In cases not calling for law enforce- 
ment measures, however, the LEDET may operate under DoD control, under the 
Coast Guard's statutory authority to provide assistance to other agencies. 23 

Experience has shown that interceptions and boardings by Navy and Coast 
Guard units occasionally require the use of force to overcome noncompliance or 
in self-defense. A number of standing and situation-specific documents promul- 
gated by competent authorities establish doctrine and provide guidance applica- 
ble in situations involving the use of force during interception and boarding 
operations by DoD and Coast Guard units. 24 At the same time, international law 

79 



Limits on the Use of Force 



and US municipal law impose limits on the use of force. Which laws and doctrines 
apply will depend on the particular situation, though some principles apply in vir- 
tually all situations. This article examines the legal limits on the use of force in 
maritime interception and law enforcement operations. It first provides the reader 
with an introduction to the nature of maritime interception and boarding opera- 
tions, before turning to an examination of the international and US authorities re- 
garding the use of force at sea. It then applies those authorities to situations that 
might arise in the course of WMD maritime interception operations. 

Nature of Maritime Interception and Boarding Operations 

WMD maritime interception operations by the United States can be traced back at 
least as far as the 1962 quarantine proclaimed by President Kennedy and enforced 
by the US Navy to halt the shipment of Soviet offensive missiles to Cuba. 25 Navy 
doctrine notes that the term "quarantine" was later dropped from the planning ter- 
minology in favor of maritime interception operations. 26 Contemporary maritime 
interception operations by the Navy are characterized by: ( 1 ) the source of their le- 
gal authority (usually a UN Security Council resolution); (2) the principle of pro- 
portionality between means and ends; (3) the principle of impartiality; 27 and (4) a 
commitment to effectiveness. 28 Only the National Command Authorities 
("NCA") (the President or Secretary of Defense) can authorize US forces to con- 
duct MIO. 29 Once the NCA approves US participation, the Chairman of the Joint 
Chiefs of Staff designates the combatant commander for the relevant geographic 
area to carry out the MIO. 30 The authorization will address the level of force that 
may be used to carry out the MIO, the cargo or ships within the MIO prohibition, 
the geographic limits of the operation and the disposition of any cargo or ships 
found to be in violation of the governing resolution. Planning such operations is 
inevitably influenced by political constraints and resource limits. 

Typically, the interception of a vessel suspected of transporting WMD or deliv- 
ery systems will be based on an intelligence finding which is later developed 
through surveillance and reconnaissance, before moving to the "stop-and-search" 
phase of MIO. 31 For example, a vessel observed loading suspicious cargo in a port 
might later be tracked by satellite, aircraft, radar, surface ship, submarine, or sea- 
bed sensors. When the vessel is encountered by an intercepting vessel or aircraft, it 
will be visually inspected for evidence of identity and flag. Visual surveillance 
might be followed by a radio inquiry, to determine or confirm its name, registry, 
homeport, last port, next port, cargo and passengers. 32 The information obtained 
can then be checked against available information and intelligence databases. The 
vessel's registry might also be confirmed with the flag State (if cooperative), and its 

80 



Craig H. Allen 

claimed next port of call might be contacted to determine whether the vessel has 
filed an advance notice of arrival and a copy of its cargo manifest. If suspicions re- 
main, the vessel may be ordered to heave to and stand by for a boarding. 

A VBSS team 33 consisting of Navy and perhaps Marine Corps and Coast Guard 
LEDET personnel may be sent over by small boat or helicopter. If the MIO on 
scene commander concludes the boarding will be opposed or non-compliant, 34 
the VBSS team may be augmented by special operations forces. 35 SEAL and Marine 
Corps Maritime Special Purpose Force (MSPF) members assigned to helicopter 
assault force teams are trained to fast-rope from helicopters to the deck of the 
ship (vertical take-downs), engage and neutralize any hostile forces aboard, and 
gain control of the vessel. 36 Throughout the boarding, supporting helicopters 
hover overhead, with snipers stationed to provide cover to the boarding team. 
Alternatively, special operations personnel may "breach" the suspect vessel by 
small boat. 37 

When the suspect ship is under control, a chemical, biological and radiological 
(CBR) team and/or explosive ordnance disposal (EOD) team might be placed 
aboard to sweep the vessel before the VBSS boarding begins. Once the VBSS team is 
aboard, all personnel on the boarded vessel are accounted for by the VBSS security 
team, and the sweep team conducts an initial safety inspection (ISI) to confirm the 
boarding can be conducted safely. 38 The VBSS team members then examine the 
vessel's registry and cargo documents. Under some circumstances, the boarding 
may extend to a search of all man-sized spaces, and an inspection of the cargo. In 
rare cases, the vessel may be diverted to a port or other sheltered location for a 
more detailed examination. 39 Diversion may be necessary to search a vessel trans- 
porting containerized cargo since at-sea container inspections are at best diffi- 
cult. 40 If the boarding team has grounds for inspecting such cargo, the better alter- 
native is often to divert the vessel to a port. Diversion may also be ordered if contra- 
band is discovered. If evidence of a crime is discovered in the course of a visit, 
boarding or search personnel with law enforcement authority (the Coast Guard 
LEDET or foreign law enforcement agents) may be called on to arrest the offenders 
and seize the vessel and cargo. 

Authority for and Limits on the Use of Force in 
Maritime Interceptions and Boardings 

Any given approach and boarding operation on a vessel to intercept WMD or de- 
livery systems could combine elements of the maritime interception and maritime 
law enforcement doctrines. Depending on the response by the master and crew of 
the suspect vessel, such operations can also raise questions regarding the source of 

81 



Limits on the Use of Force 



the applicable rules on any use of force by the Navy, Marine Corps and Coast 
Guard members of the team. 41 The authority to conduct an interception and 
boarding 42 must be distinguished from the authority for using force in such opera- 
tions. The authority to use force in an interception, boarding, search and seizure 
may derive from (1) a State's right under customary international law and the 
State's municipal law to use force as necessary to carry out law enforcement ac- 
tions; (2) a UN Security Council resolution providing such authority; 43 (3) the 
State's inherent right of self-defense recognized in Article 51 of the UN Charter; 44 
or (4) the unit's or individual's right of self-defense. Depending on the circum- 
stances, the exercise of force may be governed by international law, the laws of the 
boarding State (the constitution, statutes and regulations) and any doctrine and 
guidance promulgated by the service or services carrying out the operation. The 
common denominator running through all those authorities is the mandate that 
any action taken must be necessary to achieve a legitimate end and is reasonable 
under the circumstances. As Chief Justice John Marshall opined in a Hovering Act 
case two centuries ago, other States will oppose measures that are unreasonable, 
but if a State's enforcement measures are "reasonable and necessary to secure their 
laws from violation, they will be submitted to." 45 

US Doctrines on Use of Armed and Police Force 

In addition to limits on the use of force under international law and the Constitu- 
tion and statutes of the United States (discussed below), members of the DoD and 
DHS must comply with applicable directives regarding the use of force issued by 
their command authorities. 46 At the outset, a distinction must be made between 
rules of engagement (ROE) and rules and policies on the use of force. 47 As more 
fully explained below, ROE are generally established by appropriate national and 
subordinate command authorities to guide the armed forces in the use of force in 
carrying out the national and homeland defense missions. The rules on the use of 
force (RUF) for DoD elements and the Coast Guard Use of Force Policy (CGUFP) 
are established by competent authorities to provide guidance on the use of force in 
carrying out law enforcement and other civil support missions in support of home- 
land security that do not call for the traditional use of armed force. It is also impor- 
tant to recognize that not every use of force by a member of the armed forces 
constitutes an application of "armed force" under the UN Charter and the law of 
armed conflict. 48 The focus of this article is on "police" force directed against pri- 
vate vessels or individuals who may be involved in transporting WMD, not 
"armed" force against the territorial integrity or political independence of a State. 49 
The article takes the position that it is the mission, not the uniform worn by the 



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Craig H. Allen 

actor, that determines how the force should be classified and which doctrine con- 
trols that use of force. 

Rules of Engagement (ROE) 

Rules of engagement are "directives that a government may establish to delineate 
the circumstances and limitations under which its own naval, ground and air 
forces will initiate and/or continue combat engagement with enemy forces." 50 Ade- 
quate ROE appropriate to the situation are vital to mission success and protection 
of United States and allied assets. Even so, readiness, training and implementation 
deficiencies can prove devastating, as was learned in the 1983 terrorist bombing of 
the Marine barracks in Beirut, Lebanon, 51 and re-learned following the al Qaeda 
attack on USS Cole in 2000. 52 Members of the armed forces are well aware that any 
failure to obey controlling ROE is punishable as an orders violation under the Uni- 
form Code of Military Justice (UCMJ). 53 Additionally, a service member who vio- 
lates the applicable ROE may lose affirmative defenses to assault or homicide 
charges under the UCMJ. 54 However, the fact that official conduct may have vio- 
lated an internal agency directive does not mean the conduct was unreasonable un- 
der the Fourth Amendment or a violation of international law. 55 

Although much of the ROE doctrine and guidance is classified, a few general 
comments can be made. The ROE applicable to a given situation is typically drawn 
from national and subordinate command authorities, and may include rules pro- 
mulgated by joint or combined command authorities. The three commonly cited 
bases for ROE are national policy objectives, operational requirements and the rel- 
evant law. The ROE include the Standing Rules of Engagement (SROE), which in- 
cludes both self-defense and mission accomplishment rules, and any supplemental 
rules of engagement for specific operations, missions or projects. 56 The SROE ap- 
ply to military operations outside the territorial jurisdiction of the United States, 
even during peacetime. 57 The ROE also govern actions to be taken by US forces 
during military homeland defense (HD) operations in the territorial jurisdiction of 
the United States. 58 ROE do not apply to members of the armed forces when con- 
ducting military assistance to civil authorities missions, including missions in sup- 
port of civil law enforcement agencies (discussed below). 59 Under some 
circumstances the SROE are also applicable to Coast Guard units. 60 

Naval units participating in multinational operations might find themselves op- 
erating under limitations imposed by the UN Security Council, 61 the NATO Rules 
of Engagement 62 or some other form of combined ROE. 63 Like other ROE, the 
rules for naval units participating in multinational operations will include mission 
accomplishment and self-defense ROE. 64 The need for common ROE doctrine in 



83 



Limits on the Use of Force 



such operations has long been recognized; 65 however, the challenges of developing 
ROE for multinational forces can be daunting. 66 

ROE must conform to the relevant international and national law. 67 "Interna- 
tional law" includes applicable international human rights laws in peacetime and 
international humanitarian law during an armed conflict. In should be noted that 
for strategic, operational and policy reasons the applicable ROE may well be, and 
frequently are, more restrictive than international or national law would require. 
In most cases, compliance with the ROE should constitute compliance with the ap- 
plicable law. An exception to that rule of thumb might arise in operations governed 
by ROE prepared at a multinational level. Such combined ROE must of course 
comply with all relevant international law; however, the national laws of any given 
participant might be more restrictive. Potentially, a service member's action might 
be found to have been in compliance with the combined ROE, but not with the 
member's more restrictive national laws. Such disparities are best avoided through 
careful ROE drafting and implementation training. 68 

The SROE make it clear that they do not limit a commander's inherent author- 
ity and obligation 69 to use all necessary means available and to take appropriate ac- 
tion in self-defense of the commander's unit and other US forces in the vicinity. 70 
Self-defense is limited by the principles of necessity and proportionality. 71 The cur- 
rent ROE provisions on self-defense direct that: 

When the use of force in self-defense is necessary, the nature, duration, and scope of 
the engagement should not exceed that which is required to decisively counter the 
hostile act or demonstrated hostile intent and to ensure the continued protection of US 
forces or other protected personnel or property. 72 

Program-specific doctrine may supplement or amplify the rules set out in the 
SROE. 73 For example, to address the need for naval security personnel to deter- 
mine whether approaching vessels possess a hostile intent in the post-Cole envi- 
ronment, the Secretary of Defense and Chief of Naval Operations have 
promulgated directives authorizing the use of warning shots against such threats. 74 

DoD Rules for the Use of Force (RUF) 

In addition to its principal national security mission, the Department of Defense 
has long provided support to civilian law enforcement agencies and to civil author- 
ities. 75 However, in part because the Posse Comitatus Act of 1879 (PCA) prohibits, 
with some exceptions, the direct use of the armed forces (other than the Coast 
Guard) to enforce US laws, 76 the use of force by members of the armed forces 
within the territory of the United States is restricted. 



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Craig H. Allen 

Under the Joint Doctrine for Homeland Security (under development at the 
time this was written), DoD identifies two homeland security (HS) mission areas: 
homeland defense (HD), with air, land and maritime components, and civil sup- 
port (CS). 77 CS includes military assistance to civil authorities (MACA), which is 
further broken down into military assistance for civil disturbances (MACDIS), 
military support to civil authorities (MSCA) and military support to civil law en- 
forcement agencies (MSCLEA). 

The SROE recognize that not all situations involving the use of force are armed 
conflicts under international law. 78 DoD has now promulgated Rules for the Use of 
Force (RUF) that address selected DoD mission areas not calling for the traditional 
use of armed force. RUF refer to directives issued to guide US forces on the use of 
force during CS operations in the territorial jurisdiction of the United States in 
support of the HS mission area. The use offeree by US military forces deployed on 
CS missions within the territorial jurisdiction of the United States is not governed 
by ROE. DoD forces deployed on CS missions are instead bound to adhere to the 
RUF. 79 RUF directives applicable in MACA operations may take the form of mis- 
sion execute orders, deployment orders, memoranda of agreement, or plans. 80 
Those RUF may be established by the deployment order or memorandum of 
agreement, or by the Chairman of the Joint Chiefs of Staff instruction on the "Rules 
on the Use of Force by DoD Personnel Providing Support to Law Enforcement 
Agencies Conducting Counterdrug Operations in the United States." 81 RUF are re- 
strictive, detailed and sensitive to political concerns, in recognition of the fact that 
the CS mission area is characterized by restraints on weapons, tactics and levels of 
force. RUF are subject to change during operations. As a result, DoD policy directs 
military commanders to consult with their judge advocates to draft written RUF 
guidance and design and implement an appropriate RUF training program, to en- 
sure military forces under their command understand the RUF procedures. 82 

USCG Use of Force Policy (CGUFP) 

Congress has long recognized that effective maritime enforcement of laws and 
treaties requires that the Coast Guard be authorized to use force when necessary to 
carry out its enforcement of laws and treaties mission. Two federal statutes ex- 
pressly address the use of force by the Coast Guard. The first, 14 U.S.C. § 637, 
which was amended in 2004, addresses the use offeree to stop a vessel "liable to sei- 
zure or examination" by the Coast Guard. 83 The second, 14 U.S.C. § 89, establishes 
the general law enforcement authority of Coast Guard boarding officers and au- 
thorizes such officers to "use all necessary force to compel compliance." In exercis- 
ing the authority conferred by either statute, Coast Guard personnel and, in some 



85 



Limits on the Use of Force 



situations, supporting DoD platforms and personnel, must comply with the Coast 
Guard's Use of Force Policy (CGUFP). 

The CGUFP is set out in the agency's Maritime Law Enforcement Manual, 
which is designated "for official use only." 84 The CGUFP must be adhered to by all 
of the following while conducting Coast Guard missions, exercising the right of in- 
dividual self-defense, and in situations where the SROE do not apply: (1) all Coast 
Guard personnel (military, civilian and contract security), (2) all Coast Guard ves- 
sels and Coast Guard aircraft specifically authorized by the Commandant of the 
Coast Guard to use force, (3) all non-Coast Guard personnel onboard a Coast 
Guard unit, (4) all non-Coast Guard units or personnel operating under Coast 
Guard tactical control (TACON) or operational control (OPCON). 85 Coast Guard 
personnel follow the CGUFP even when the Coast Guard is not the lead federal 
agency. 86 Coast Guard personnel do not, under any circumstances, apply foreign 
use of force policies. 87 US Navy units operating under Coast Guard OPCON or 
TACON conducting law enforcement support operations follow the CGUFP for 
employing warning shots and disabling fire. Under those circumstances, the provi- 
sions of 14 U.S.C. § 637 (discussed below) extend to the naval unit. 88 Navy units 
follow the SROE and/or mission specific ROE or RUF for all other purposes. 89 

The CGUFP includes provisions for the use of force against noncompliant ves- 
sels and against individuals. The provisions applicable to the use of force against 
individuals take the form of a "use of force continuum" that distinguishes between 
non-deadly force and deadly force. Deadly force is defined as any force that is likely 
to cause death or serious physical injury. 90 Only that force reasonably necessary 
under the circumstances may be used. Force shall not be used where assigned du- 
ties can be discharged without the use of force. However, there is no duty to retreat 
to avoid law enforcement situations justifying the use of force, including deadly 
force. Like the SROE, the CGUFP emphasizes that covered personnel always have 
the inherent right to use all available means necessary to defend themselves or an- 
other from physical harm. 91 

The CGUFP provisions applicable to the use of force against noncompliant 
vessels 92 address both the conditions for, and modalities of, using force to stop a 
vessel in a law enforcement situation. The provisions do not apply to vessel-on- 
vessel use of force in self-defense. 93 In applying the CGUFP it is important to recog- 
nize that US practice differs in some respects from the practices of other nations. 
Some States categorically reject the use of force to stop noncompliant vessels for 
minor offenses or for offenses not involving public safety, such as fisheries viola- 
tions. Other States apply the twin principles of necessity and proportionality in de- 
termining whether the use of force is appropriate to overcome a vessel's non- 
compliance. It is also important to recognize that in the United States any use of 



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Craig H. Allen 

force, other than in self-defense, generally requires case-specific approval by the 
operational or tactical commander, who might well decline to approve the use of 
force even in situations where it would be permitted under the CGUFP. 

Under the CGUFP and 14 U.S.C. § 637, warning shots are considered a "signal" 
to a vessel to stop, not a use of force. 94 Warning shots are only used after other sig- 
naling methods have been tried without success. Warning shots are not used 
against aircraft or under circumstances where their use might endanger any person 
or property. Generally, warning shots are not used unless the enforcement units 
have the capability to deliver disabling fire if the warning shots are ignored. Dis- 
abling fire is the firing of ordnance at a vessel with the intent to disable it, with min- 
imum injury to personnel or damage to the vessel. Under the CGUFP, disabling 
fire is to be discontinued when the vessel stops, is disabled, enters the territorial sea 
of another State, or the situation changes in a manner that introduces substantial 
risk to those aboard the noncompliant vessel. 95 

14 U.S.C. § 637 (reproduced, with 2004 amendments, in Appendix III) ex- 
pressly authorizes disabling fire under limited circumstances and provides for an 
indemnity of vessel commanding officers called on to use disabling fire. 96 Dis- 
abling fire may be used against vessels subject to "examination" or "seizure." Dur- 
ing the so-called "Rum War" of the Prohibition era, the Coast Guard used warning 
shots and disabling fire on numerous occasions to interdict vessels attempting to 
smuggle alcohol into the United States. 97 The need for forcible interdiction mea- 
sures arose again in the late 1970s, as Coast Guard and Navy units ranging in size 
from 82-foot patrol boats to 530-foot cruisers responded to a surge in maritime 
drug smuggling operations. 98 Air and surface assets trained and equipped for as- 
signment to the Coast Guard's Operation New Frontier 99 employ relatively novel 
means of stopping noncompliant vessels. The operation, which employs cutter- 
deployable, specially equipped high-speed over-the-horizon (OTH) boats and 
Coast Guard Helicopter Interdiction Tactical Squadron (HITRON) MH-68A 
("Sting Ray") helicopters, establishes a coordinated method to chase down and, if 
necessary, forcibly disable "go-fast" vessels engaged in unlawful activity. 

US Constitutional and Statutory Limits on the Use of Force 

Enforcement actions within the United States, including its territorial sea, or 
those involving US vessels beyond the territorial sea, or involving US nationals on 
foreign vessels beyond the territorial sea, are constrained by the US Constitu- 
tion. 100 When the Constitution applies, it is clear that Congress cannot by statute 
(e.g., 14 U.S.C. § 637 or 14 U.S.C. § 89) authorize what the Constitution forbids. 101 
Nevertheless, the US Supreme Court has recognized that application of the consti- 
tutional standards to maritime searches and seizures authorized by Congress 

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might vary from applications to similar actions carried out under the differing con- 
ditions prevailing on land. 102 The Fourth Amendment to the Constitution pro- 
vides that the right of the people to be secure in their persons, houses, papers, and 
effects against unreasonable searches and seizures shall not be violated and that no 
warrant authorizing such a search or seizure shall be issued in the absence of prob- 
able cause. 103 The Fifth Amendment further provides that the government may not 
deprive any person of their life, liberty or property without due process of law. 104 
Both amendments potentially play a role in maritime interdiction and enforce- 
ment actions. 105 Constitutional violations may lead to suppression of evidence, 
dismissal of charges and even suits for damages against the officers responsible for 
the violations. To ensure compliance with the constitutional limits, the Supreme 
Court has repeatedly emphasized the duty of law enforcement agencies to provide 
their officers with use of force training. 106 

The Fourth Amendment seizure provision may be triggered by the seizure of a 
person, a vessel or property or papers on the vessel. Plainly, the Fourth Amend- 
ment applies to the actual arrest of a person by a law enforcement officer. An arrest 
must be based on probable cause and it must be conducted in a reasonable manner. 
"Excessive" force is by definition unreasonable. Allegations of excessive force dur- 
ing a detention or arrest typically arise in suits for damages against an enforcement 
officer, 107 or the officer's employing agency. On occasion, a defendant charged 
with assaulting a law enforcement officer will assert in defense an argument that 
excessive force by the enforcement officer justified self-defense measures in re- 
sponse. 108 Where a defendant was subjected to "torture, brutality, and similar out- 
rageous conduct" rising to the level that violates due process the court might even 
dismiss the charges against the defendant. 109 

Actions by law enforcement officers that fall short of an actual arrest may never- 
theless rise to the level of a "seizure" implicating the Fourth Amendment. 1 10 For ex- 
ample, the Supreme Court has held that an "investigatory stop," although not an 
arrest, is a seizure subject to the Fourth Amendment's reasonableness require- 
ment. However, such stops may be justified by a "reasonable suspicion" falling 
short of the probable cause that would be needed for an arrest. 111 An officer con- 
ducting a so-called "Terry stop" may forcibly detain the individual if necessary. 112 
The Supreme Court has made it clear, however, that any use of force by the govern- 
ment to effect a seizure must be reasonable under the Fourth Amendment. 113 As a 
result, the reasonableness test is the standard by which a claim of excessive force in 
any seizure (including mere investigatory stops) will be measured. 114 In defining 
the contours of the reasonableness test the Supreme Court recognized: "police offi- 
cers are often forced to make split-second judgments — in circumstances that are 
tense, uncertain, and rapidly evolving — about the amount of force that is necessary 

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in a particular situation." 115 Accordingly, the Court held, the reasonableness of the 
officer's belief as to the appropriate level of force should be judged by that on-scene 
perspective. 116 The Court has articulated a three-part balancing test that turns on 
the severity of the crime at issue, whether the suspect posed an immediate threat to 
others and whether the suspect was actively resisting arrest or attempting to evade 
arrest by flight. 117 If an officer reasonably, but mistakenly, believes that a suspect is 
likely to fight back, the officer is justified in using more force than might in fact be 
needed. 118 

The Supreme Court has held that the reasonableness requirement for searches 
under the Fourth Amendment does not apply to actions by US law enforcement 
personnel acting outside US territory, when the action is taken against a non- 
national of the United States. 119 Moreover, the reasonableness of foreign searches 
involving US nationals or vessels is judged by reference to the law of the place 
where it was conducted. 120 Some writers argue that the Fourth Amendment might 
still apply extraterritorially to a case alleging excessive force in the seizure of a non- 
national. 121 Extraterritorial conduct by law enforcement officers amounting to 
"deliberate and unnecessary lawlessness" has on one occasion led the court to dis- 
miss the charges against the defendant. 122 Alternatively (or additionally), such con- 
duct may be analyzed under the applicable international human rights laws 
discussed below and the principles of State responsibility. 

International Law Limits on the Use of Force 

Earlier, this article highlighted the distinction between the two common usages of 
the term "force." It was suggested that when the UN Charter speaks of "force" in 
Articles 2(4) and 41, 123 it is referring to military force (aggressive and defensive; in- 
dividual and collective) by one State or its proxies against another State. The term 
is also used, in a very different context, to refer to the means used by authorized 
government vessels and their agents to compel individuals to comply with enforce- 
ment actions. 124 Such "police force" is not directed against a State and does not 
constitute "armed force," nor does it violate the LOS Convention provisions re- 
serving the seas for "peaceful purposes" 125 and requiring States to refrain from the 
use of force in any manner inconsistent with the UN Charter. 126 Nonetheless, it is 
possible that some acts conducted in the course of a law enforcement action against 
a vessel might be construed as an act of aggression; 127 perhaps even a casus belli in 
former times. 128 It is also important to bear in mind that international law imposes 
stricter limits on the use of force against aircraft than against vessels. Use of force 
against civil aircraft while in flight would likely violate the Montreal Convention 
protocol and federal law. 129 



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The exercise of law enforcement authority outside the territorial limits of the 
State is limited under international law. 130 Under international law, the use of force 
in actions not amounting to armed conflict may be authorized or limited by 
treaty, 131 such as a bilateral boarding agreement 132 or the 2005 Protocol to the SUA 
Convention, 133 customary international law and general principles of law. For the 
most part, international law is directly implicated only in incidents involving con- 
duct directed against the nationals, vessels or aircraft of another State. 134 Interna- 
tional human rights law, including the International Covenant on Civil and 
Political Rights (ICCPR), 135 may apply even to conduct by a State directed at one of 
its own nationals. 136 Article 7 of the ICCPR, in language closely paralleling the 
Eighth Amendment of the US Constitution, prohibits torture and cruel, inhuman 
or degrading treatment or punishment. Article 9, echoing the Fifth Amendment, 
provides that no one shall be subjected to "arbitrary" arrest or detention, nor may 
the State deprive them of their liberty except on such grounds and in accordance 
with such procedures as are established by law. 

When an interception and boarding is carried out under authority of a multilat- 
eral or bilateral agreement, the agreement itself may authorize or limit any use of 
force. Such is the case with the PSI boarding agreements entered into by the United 
States. 137 Similarly, the draft SUA Protocol includes an express provision on the use 
of force during any action authorized within its framework. 138 Any use of force 
other than in self-defense is therefore restricted to measures authorized by the 
treaty, as modified by any later case-specific verbal agreements. 139 The interplay of 
conventional and customary law on the use of force in maritime law enforcement 
operations is demonstrated by three leading cases. The first case, concerning the 
Vm Alone, arose under a bilateral boarding treaty, but also briefly examines the use 
of force under customary law. 

The Vm Alone (1929) 

The starting point for examining the international law limits on the use of force 
against a foreign vessel by maritime law enforcement authorities is the arbitration 
commission decision in the dispute arising out of the sinking of the auxiliary-pow- 
ered schooner Vm Alone on March 22, 1929. 140 The dispute arose after the Coast 
Guard cutter USCGC Wolcott intercepted the British flag (Canadian registered) 
vessel Vm Alone on March 20, 1929, anchored between 8 and 15 miles off the coast 
of Louisiana (the distance offshore was disputed by the parties). A 1924 treaty be- 
tween the United States and Great Britain authorized the United States to board 
British flag vessels suspected of liquor smuggling while in close proximity to the US 
coast. 141 Both governments agreed that the Vm Alone was "unquestionably" a no- 
torious smuggling vessel, which transported liquor from Belize and the Bahamas 

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Craig H. Allen 

for delivery to contact boats off the US coast, while staying just outside the US terri- 
torial sea. 142 The contact boats then ran the liquor ashore, in violation of the Na- 
tional Prohibition Act. When the cutter Wolcott approached, the master of Ym 
Alone, asserting the US Coast Guard had no jurisdiction over his vessel, weighed 
anchor and began to flee southwest toward Mexico. The Wolcott fired across the 
vessel's bow and into the rigging, but the Ym Alone continued to flee. Over the next 
two days, the Wolcott followed the vessel in hot pursuit, eventually enlisting the as- 
sistance of two other Coast Guard cutters, the Dexter and the Hamilton. On March 
22, 1929, after the chase had taken the vessels more than 200 miles from the US 
coast, the cutter Dexter closed in on the Ym Alone and once again ordered the vessel 
to heave to for boarding. After the master refused, the Dexter fired across the ves- 
sel's bow then into the sails and rigging. The Dexter then ceased fire and once again 
ordered the vessel to stop or it would be sunk. According to the Coast Guard, the 
master of the Ym Alone then brandished a pistol and told the Dexter that he would 
forcibly resist any attempt to board his vessel. The Dexter then resumed fire, this 
time into the hull of the Ym Alone, sinking the vessel about thirty minutes later. 
The master and crew of the Ym Alone jumped into the water as the vessel sank. The 
Coast Guard recovered all but one of the crewmen. That crewman, a French na- 
tional, drowned before he could be recovered. 

The arbitration panel appointed by the United States and Canada concluded 
that, assuming the United States had jurisdiction over the Ym Alone under the 1 924 
treaty; the Coast Guard was justified in using "necessary and reasonable force for 
the purpose of effecting the objects of boarding, searching, seizing and bringing 
into port the suspected vessel; and if sinking should occur incidentally, as a result of 
the exercise of necessary and reasonable force for such purpose, the pursuing vessel 
might be entirely blameless." 143 The commissioners went on to conclude that the 
cutter's act of intentionally sinking the Ym Alone was not justified under either the 
1 924 treaty or any other principle of international law. 144 Three observations are in 
order. First, the commission resolved the case under what they understood to be 
the prevailing international law standard. Second, the "reasonable and necessary 
force" standard articulated by the commissioners applied to all phases of the inter- 
ception, from boarding through seizure. 145 Finally, the commission did not at- 
tempt to flesh out its "reasonable and necessary" standard, other than to draw 
distinction between a sinking that was incidental and one that was intentional, nor 
did it explain whether the nature of the suspected offense (suspicion of liquor 
smuggling) was a factor to be considered in weighing the necessity or proportion- 
ality of the force used. It was sufficient for the commissioners to determine that the 
Coast Guard's decision to intentionally sink the Ym Alone under the circumstances 
exceeded that standard. 



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The Red Crusader (1961) 

Another commonly cited use of force case arose out of a 1961 enforcement action 
against the British fishing vessel Red Crusader by the Danish frigate Me/5 
Ebbesen. 146 On May 21, 1961, the trawler Red Crusader and several other fishing 
vessels were sighted near the Danish Faeroe Islands. The parties disputed the Red 
Crusader s exact position and whether it was engaged in fishing. Upon sighting the 
Red Crusader, the Niels Ebbesen signaled it to stop by signal searchlight and siren. 
When those signals went unheeded, the Dane fired a blank 40 mm warning shot 
across the Red Crusaders bow. The Red Crusader then stopped, and the Niels 
Ebbesen sent over a boarding party. The master of Red Crusader was notified that 
his vessel was under arrest and that he was to follow Niels Ebbesen into port. A two- 
man custody crew was placed aboard Red Crusader. After initially complying with 
the Danish frigate's instructions, the master of the Red Crusader changed his mind, 
locked up the custody crew and attempted to flee with its embarrassed hostages. 
When the Red Crusader s attempted flight became apparent to the commanding 
officer of the Niels Ebbesen, the frigate fired two 127 mm warning shots (one astern 
and one to starboard), accompanied almost immediately by a sound signal (Morse 
Code "K") to stop. Two minutes later, it fired warning shots ahead of and to port of 
the Red Crusader, again closely followed by a whistle signal to stop. Fifteen minutes 
later, while Red Crusader continued to flee, the Niels Ebbesen fired solid (non-ex- 
plosive) shots at the vessel's scanner, mast, masthead light, hull and stem, while in- 
terspersing further warnings by loudhailer to stop. The vessel was damaged, but 
not sunk, and no one was injured. Britain protested the Danish action. The Com- 
mission of Enquiry later appointed by the two governments to investigate the mat- 
ter determined that: 

In opening fire at 03.22 hours up to 03.53 hours, the Commanding Officer of the Niels 
Ebbesen exceeded legitimate use of armed force on two counts: (a) firing without 
warning of solid gun-shot; (b) creating danger to human life on board the Red 
Crusader without proved necessity , by the effective firing at the Red Crusader after 
03.40. 

The escape of the Red Crusader in flagrant violation of the order received and obeyed, 
the seclusion on board the trawler of an officer and rating of Niels Ebbesen, and Skipper 
Wood's refusal to stop may explain some resentment on the part of Captain Selling. 
Those circumstances, however, cannot justify such violent action. 

The Commission is of the opinion that other means should have been attempted , 
which, if duly persisted in, might have finally persuaded Skipper Wood to stop and 
revert to the normal procedure which he himself had previously followed. 147 



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Craig H. Allen 

The commission did not specify what "other," non-deadly means would have been 
appropriate in this fisheries enforcement action. Nor did it categorically rule out 
the use of force that might create a danger to human life in cases of "proved neces- 
sity." 148 

Interestingly, the commission was also called upon to examine the propriety of 
the conduct of the British naval vessel HMS Troubridge, which intervened in the 
confrontation. The Danish government initially protested that Troubridge had in- 
terfered with legitimate law enforcement measures by Denmark when Troubridge 
interposed herself between the other two vessels. Although Denmark withdrew 
parts of the question from the commission, the commission nevertheless offered 
its opinion that Troubridge "made every effort to avoid any recourse to violence be- 
tween Me/5 Ebbesen and Red Crusader." 149 The commission went on to opine that 
"[s]uch an attitude and conduct were impeccable." 150 The two governments later 
agreed to mutually waive all claims and charges arising out of the incident. 151 

The M/V Saiga (1997) 

The most recent decision to examine the international law limits on the use of 
force in a maritime law enforcement boarding was issued in 1999 by the Interna- 
tional Tribunal for the Law of the Sea (ITLOS) in the "M/V Saiga" (No. 2) Case. 152 
The suit — the first case brought before the new ITLOS — was initiated by the flag 
State, Saint Vincent and the Grenadines ("St. Vincent"), against the coastal State, 
the Republic of Guinea. The dispute arose out the forcible arrest by Guinea of the 
St. Vincent flag vessel Saiga. Saiga was a coastal tanker that refueled fishing vessels 
at sea. On the day before the incident Saiga had delivered gas oil to three fishing 
vessels in waters 22 miles offshore from Guinea. Saiga then moved to a position 
just outside the Guinean exclusive economic zone to await the arrival of several 
more vessels. At about 0800 on October 28, 1997, Saiga was, in the words of the 
Tribunal, "attacked" by Guinean patrol boat P35 for an alleged violation of cus- 
toms laws. Armed officers from P35 then boarded the Saiga, seized the vessel and 
arrested the master and crew, firing their weapons at various times in the process. 
Saiga was taken to Conakry where the master was detained and the crewmembers' 
travel documents were confiscated. Two crewmen who were injured by gunfire 
during the boarding were later allowed to travel to Dakar for medical treatment. 

The Tribunal's first ruling in the matter concerned St. Vincent's application for 
prompt release of the Saiga and its crew upon the posting of reasonable security. 153 
The second decision concerned the merits and addressed a number of issues, in- 
cluding the use of force by the Guinean enforcement vessel. St. Vincent argued that 
Guinea's use of force in stopping and boarding the vessel was excessive and unrea- 
sonable. 154 St. Vincent pointed out that the Saiga was an unarmed tanker that was 

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almost fully laden with gas oil. The vessel was riding low in the water (and therefore 
easily boarded) and was capable of a speed of no more than ten knots. The crew of- 
fered no resistance. St. Vincent also called the Tribunal's attention to the fact that 
P35 fired live ammunition, using solid shots from large-caliber automatic weap- 
ons. In response, Guinea asserted that the P35 crew's actions were neither unrea- 
sonable nor unnecessary because the Saiga refused all visual, auditory and radio 
signals to stop. In its ruling, the Tribunal explained that: 

Although the Convention does not contain express provisions on the use of force in the 
arrest of ships, international law, which is applicable by virtue of article 293 of the 
[LOS] Convention, requires that the use of force must be avoided as far as possible and, 
where force is unavoidable, it must not go beyond what is reasonable and necessary in 
the circumstances. Considerations of humanity must apply in the law of the sea, just as 
they do in other areas of international law. 155 

The Tribunal concluded that the Guinean patrol vessel fired live ammunition at 
the Saiga without first issuing any of the signals and warnings required by interna- 
tional law and practice. Once aboard the Saiga, Guinean enforcement personnel 
fired their weapons indiscriminately, despite the fact that the crew of the Saiga of- 
fered no resistance and did not threaten the boarding team. In the process, two of 
the Saiga crewmembers were seriously injured and vital equipment in the vessel's 
radio room and engine room was damaged. The tribunal ordered the government 
of Guinea to make reparations to the vessel's flag State. It relied in part on the I'm 
Alone and Red Crusader cases as the basis for its ruling and held that Guinea's use of 
force before and after the boarding was excessive and endangered human life. 156 

In ruling against Guinea, the Tribunal also cited the enforcement provisions in 
the 1995 Straddling Fish Stocks Agreement, 157 which was not in effect at the time of 
the decision, and in any event would not have been controlling in this dispute. Ar- 
ticle 21 of the Straddling Fish Stocks Agreement provides a mechanism for States 
other than the flag State to exercise fisheries enforcement authority over foreign 
vessels on the high seas. Article 22 calls on parties conducting enforcement mea- 
sures under Article 21 to ensure that their duly authorized fisheries inspectors 
"avoid the use of force except when and to the degree necessary to ensure the safety 
of the inspectors and where the inspectors are obstructed in the execution of their 
duties." 158 The Tribunal concluded that Article 22 "reaffirmed" the "basic princi- 
ple concerning the use of force in the arrest of a ship at sea." 159 Because the above 
quoted Article 22 provision was later incorporated into the bilateral WMD board- 
ing agreements with Liberia and the Marshall Islands (discussed below), the Tribu- 
nal's construction of Article 22 could prove relevant in construing the WMD 
boarding agreements. 

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UN Guidance Documents 

Dire warnings on the continued use of deadly force in maritime interdiction and 
enforcement actions demonstrate a need for further development and clarification 
on the international limits on such actions. 160 It is clear that customary law prohib- 
its firing into a vessel without warning. Additionally, using gunfire to intentionally 
sink a fleeing vessel suspected of smuggling illegal liquor, at least without first at- 
tempting to disable it, violates the established rule that force must be necessary and 
reasonable. Such gunfire would almost certainly pose a threat to the lives of those 
aboard. 161 But the full contours of the legal limits on the use of police force at sea 
remain unclear. 162 In contrast to US law, international law has so far failed to rec- 
ognize explicitly that the level of force that is reasonable and appropriate under the 
circumstances will vary according to the nature of the violation and the impact al- 
ternative enforcement approaches will have on the legal regime's effectiveness. 163 
Force levels appropriate in interdicting a vessel engaged in narcotics trafficking 
might well be inappropriate to one suspected of violating fisheries laws in a coastal 
State's EEZ. 164 And the community interest in interdicting a WMD shipment un- 
der circumstances that threaten international peace and security could justify force 
levels that would be deemed excessive in response to a minor pollution incident. 
To be accurate, any contemporary statement of customary law must also account 
for a significant amount of State practice that is not easily reconciled with the broad 
statements made by the ITLOS in the M/V Saiga case. Finally, maritime use of force 
norms should be reexamined periodically in light of the progressive development 
in the law of State responsibility. 

In their text on the Law of the Sea, Professors Churchill and Lowe take the posi- 
tion that international law, as articulated by the arbitral tribunal in the Ym Alone 
Case, permits States to use only the "minimum force" necessary to compel compli- 
ance. 165 That position is generally consistent with the Basic Principles on the Use of 
Force and Firearms by Law Enforcement Officials adopted by the United 
Nations 166 for enforcement operations ashore. Drawing on Article 3 of the UN 
Code of Conduct for Law Enforcement Officials, 167 the Basic Principles state that 
"law enforcement officials may use force only when strictly necessary and to the ex- 
tent required for the performance of their duty." It generally argues against the use 
of firearms and asserts: 

Governments and law enforcement agencies should develop a range of means as broad 
as possible and equip law enforcement officials with various types of weapons and 
ammunition that would allow for a differentiated use of force and firearms. These 
would include the development of non-lethal incapacitating weapons for use in 
appropriate situations, with a view to increasingly restraining the application of means 
capable of causing death or injury to persons. For the same purpose, it should also be 

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possible for law enforcement officials to be equipped with self-defensive equipment 
such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, 
in order to decrease the need to use weapons of any kind. 168 

The commentary accompanying the Code of Conduct "emphasizes that the use of 
force by law enforcement officials should be exceptional." Although the Basic Prin- 
ciples are not binding in themselves, an argument can be made that when the UN 
Security Council authorizes enforcement measures under Article 41, with the pro- 
viso that such measures shall be carried out "in conformity with international stan- 
dards," the applicable standards might be construed to include the Basic Principles 
and Code of Conduct documents if the measures taken are in the nature of law en- 
forcement actions. 

Use of Force in Maritime PSI Interception Operations 

The law applicable to the use of force in maritime operations to intercept WMD 
and their delivery systems will vary according to the legal basis for the action. The 
limits on the use of force to interdict the shipment of an operational WMD under 
circumstances amounting to an imminent act of "armed aggression" within the 
meaning of Article 51 of the UN Charter, or the belligerent's right of blockade or 
visit and search under the laws of armed conflict and neutrality, will differ from 
those for enforcing a UN Security Council embargo, exercising a peacetime right of 
visit, conducting maritime law enforcement operations with respect to a vessel 
within the enforcing State's jurisdiction, or while acting with the consent of the flag 
State, coastal State or vessel master. The use of force without legal justification or in 
a manner that is unreasonable may lead to State responsibility under international 
law or liability under the State's municipal laws. 169 And, of course, any attempt in 
peacetime to assert jurisdiction or control over a warship or government-owned 
vessel used only on government non-commercial service would constitute a seri- 
ous breach of international law. 170 

The starting point in any examination of the use of force by US Maritime Forces 
during MIO and E-MIO operations is the applicable ROE. 171 However, because 
most ROE doctrine is classified, this analysis will focus on the relevant interna- 
tional and US laws and to some extent the Navy MIO Doctrine and CGUFP, both 
of which are unclassified. The authority to use force other than in self-defense is 
derivative. Force may only be legitimately employed under circumstances where 
the interdicting vessel (or aircraft) has the lawful authority to compel a vessel to 
submit to its jurisdiction or control. If the vessel or aircraft has jurisdiction to en- 
force applicable laws or a right to exercise some measure of control over a vessel, as 



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in an exercise of the right of approach and visit, the vessel or aircraft also has the 
right to use reasonable force if necessary to compel compliance. For example, a 
warship justified in exercising a right of visit (an "examination" under 14 U.S.C. § 
637) has the correlative right to use the necessary and reasonable force to compel 
compliance. 172 

If the WMD interception operation is carried out pursuant to a resolution of the 
Security Council, the measures available for enforcement derive from the resolu- 
tion itself and any other applicable basis for asserting jurisdiction and control, 
along with the relevant mission accomplishment ROE. It is not uncommon, how- 
ever, for Security Council resolutions to omit specific provisions on the use of force 
to enforce them. In construing and implementing the enforcement provisions of a 
Security Council resolution, it may be helpful to refer to the provisions of the Vi- 
enna Convention on the Law of Treaties ( VCLT) for guidance, even though they 
are not directly applicable to Security Council resolutions. 173 Article 31 of the 
VCLT instructs that a treaty shall be interpreted in good faith in accordance with 
the ordinary meaning to be given to its terms in their context and in light of its ob- 
ject and purpose. The ordinary meaning of the terms used in a Chapter VII resolu- 
tion by the Security Council may in some cases be determined by recourse to 
earlier resolutions by the Council, 174 analogous treaties, and any statements by 
States regarding their understanding of those terms. It should also be borne in 
mind that the primary object and purpose of any resolution issued under Chapter 
VII is to maintain or restore international peace and security. 175 Accordingly, any 
interpretation of the resolution should serve those ends. All members of the UN 
have an obligation to "accept and carry out" the decisions of the Council, in accor- 
dance with the Charter, giving such resolutions universal force. 176 Article 32 of the 
VCLT permits recourse to "supplementary" means of interpretation and the cir- 
cumstances of the treaty's conclusion to confirm the meaning determined by ap- 
plying Article 31 or to determine the meaning if application of Article 31 leaves the 
meaning ambiguous or obscure or leads to a result which is manifestly absurd or 
unreasonable. In some cases, an Article 32 approach to interpreting resolutions 
might justify resort to the record of any debate within the Security Council regard- 
ing the content and meaning of the resolution. In cases where the Council indi- 
cated in the resolution that it remains seized of the matter, recourse may always be 
made to the Council for clarification or supplementary guidance. 

In consensual boardings the use of force other than in self-defense must gener- 
ally be authorized by the consenting State. Operations conducted under authority 
of a bilateral boarding agreement with either the flag State or a coastal State in 
whose waters the vessel is located must comply with any limitations imposed by the 



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agreement. 177 The boarding agreements with Liberia and the Marshall Islands in- 
clude the following provisions on the use of force: 

Article 9 
Use of Force 

1 . All uses of force pursuant to this Agreement shall be in strict accordance with the 
applicable laws and policies of the Party conducting the boarding and applicable 
international law. 

2. Each Party shall avoid the use of force except when and to the degree necessary to 
ensure the safety of Security Force Officials and vessels or where Security Force 
Officials are obstructed in the execution of their duties. 

3. Only that force reasonably necessary under the circumstances may be used. 

4. Boarding and search teams and Security Force vessels have the inherent right to 
use all available means to apply that force reasonably necessary to defend themselves 
or others from physical harm. 

5. Whenever any vessel subject to boarding under this Agreement does not stop on 
being ordered to do so, the Security Force vessel should give an auditory or visual 
signal to the suspect vessel to stop, using internationally recognized signals. If the 
suspect vessel does not stop upon being signaled, Security Force vessels may take 
other appropriate actions to stop the suspect vessel. 178 

As noted earlier, paragraph 2 of this article mirrors the use of force provision in the 
Straddling Fish Stocks Agreement, which the International Tribunal for the Law of 
the Sea concluded "reaffirmed" the "basic principle on the use of force in the arrest 
of a ship at sea." 179 However, one important feature distinguishes boardings under 
the WMD boarding agreements with Liberia and the Marshall Island from those 
conducted under the Straddling Fish Stocks Agreement. The WMD boarding 
agreements expressly provide that the "authorization to board, search and detain 
includes the authority to use force in accordance with Article 9 of this Agree- 
ment." 180 No such authority is included in the Straddling Fish Stocks Agreement. 
Article 9 of the Liberia and Marshall Islands agreements applies by its own terms 
only to operations carried out under authority of the agreement. Article 9 does not 
control in boardings carried out under an alternative basis of authority, such as a 
right of approach and visit, or boardings conducted while the vessel is located in 
waters over which a coastal State has jurisdiction. 181 

The WMD boarding agreement with Panama takes the form of an amendment 
to an existing arrangement providing for cooperation in counter-narcotics detec- 
tion and interdiction. The Panama agreement differs in several respects from the Li- 
beria and Marshall Islands agreements. Like parallel provisions in the agreements 



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with Liberia and the Marshall Islands, Article X of the agreement with Panama pro- 
vides that the "authorization to board, search and detain includes the authority to 
use force." 182 However, Article XVII of the Panama agreement, which defines the 
limits on the use of force, differs in several respects. Article XVII draws on language 
common to bilateral counter-narcotics cooperative agreements (rather than the 
Straddling Fish Stocks Agreement), and adopts the prevailing international and na- 
tional law standard: 

Article XVII 

1 . All uses of force by a Party pursuant to this Supplementary Arrangement shall be 
in strict accordance with applicable laws and policies of that Party and shall in all 
cases be the minimum reasonably necessary under the circumstances, except that 
neither Party shall use force against civil aircraft in flight. 

2. Nothing in this Supplementary Arrangement shall impair the exercise of the 
inherent right of self-defense by law enforcement or other officials of the Parties. 183 

Article XVII does not include the paragraph common to Article 22 of the Strad- 
dling Fish Stocks Agreement and Article 9 of the Liberia and Marshall Islands 
WMD boarding agreements. It is also noteworthy that the agreements the United 
States concluded with Liberia and the Marshall Islands expressly include authority 
for boardings to be conducted by the US Navy, while the Panama WMD boarding 
agreement contemplates that, except in emergencies, boardings will be carried out 
only by "law enforcement" officials. 184 

Non-Forcible Measures to Stop and Board 

SQ3: "You should stop or heave to; I am going to board you." 185 

As mentioned earlier, when a PSI interception and boarding is undertaken under 
authority of a Security Council resolution, questions regarding the use of force 
must begin with the authorizing resolution (see discussion above). The resolution 
will serve as the foundation for the National Command Authorities' MIO authori- 
zation and the vessels' operational tasking directives and ROE. Those documents 
should provide clear directions on the use of warning shots and disabling fire, and 
perhaps vertical take-down procedures if such a capability exists. 186 All such guid- 
ance must conform to the relevant principles of international and national law. 

It is well established that under international law force may be used only when 
necessary. The necessity for using force can only be established by demonstrating 
that lesser means were attempted and failed to produce the needed compliance, 
or that those lesser means would have been impossible or futile under the circum- 
stances. The sequence of measures short of actual force must begin with an 



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identification of the enforcing vessel and its intentions. 187 In the M/V Saiga Case, 
the International Tribunal for the Law of the Sea identified at least two steps an 
enforcing vessel must take before using force against a noncompliant vessel. 188 
First, the vessel must be given an auditory or visual signal to stop using interna- 
tionally recognized signals. 189 If the signal is not heeded, the enforcing vessel is 
justified in firing one or more warning shots across the bow of the vessel in a 
manner likely to attract attention. Only if the signals and warning shots go un- 
heeded is the enforcing vessel justified, as a last resort and after further warning 
the noncompliant vessel, in using disabling fire. 190 Given the history of tribunals 
imposing on the enforcing State the burden of proving any use of force was nec- 
essary and reasonable, warnings given before firing warning shots or disabling fire 
should be recorded by videotape and audiotape when practicable. Prudent com- 
manding officers will also require their crew to document the legal bases for tak- 
ing interdiction or enforcement action against the suspect vessel before using 
force against the vessel. 

When it applies, 14 U.S.C. § 637 requires the enforcing vessel to display its pre- 
scribed ensign, pennant or other identifying insignia. 191 The suspect vessel is sig- 
naled by visual, auditory and electronic means. Traditional "visual" means include 
flag hoist and Morse Code flashing light signals taken from the International Code 
of Signals, such as the SQ3 signal quoted above. 192 Auditory signals may be given by 
loudhailer or megaphone and supplemented by siren or whistle signals to attract 
the attention of those on board the suspect vessel. If necessary, the enforcing ves- 
sel's intent may also be demonstrated by uncovering, readying and manning the 
ship's weapons (without training them on the suspect vessel). Throughout the en- 
counter, the enforcing vessel transmits radiotelephone calls to the suspect vessel 
over frequencies all vessels are required to monitor. The calls, which are commonly 
transmitted in English and any other language commonly used by vessels in the 
area or using internationally recognized signals for the International Code, 
informs the suspect vessel of the enforcing vessel's intent to board. 

If the signals and radio calls are ignored or the suspect vessel otherwise refuses to 
stop to permit boarding, the enforcing vessel may pursue one or more options in a 
progressive sequence. The Coast Guard MLEM prescribes a four-step approach for 
stopping noncompliant vessels. The sequence begins with "command presence," 
progresses to "low-level" and then "higher-level" tactics, and finishes, if necessary, 
with "disabling fire." 193 The Navy MIO Doctrine adopts a similar approach. It pre- 
scribes — subject to the applicable ROE and tasking orders — an ordered sequence 
of levels of force to be used against noncompliant vessels that escalates, if necessary, 
from "nonviolent" signals and maneuvers, to "deterrence" measures (warning 
shots), to a "show of force" (including disabling fire), and finally to "full force." 194 

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Craig H. Allen 

A variety of low-level force tactics designed to compel a fleeing vessel to stop 
have been tried over the years, including low level passes by aircraft; physically 
blocking or even "shouldering" the fleeing vessel; directing fire hose streams into 
the fleeing vessel's exhaust stack to flood the engine; deploying nets, lines and other 
devices designed to entangle the vessel's propellers; and severing the vessel's fuel 
line. Low-level tactics are seldom successful in persuading a determined 
noncompliant suspect, particularly on merchant vessels of the size likely to be 
transporting WMD. Moreover, some of the tactics might even expose the pursuing 
vessel or a nearby support vessel to added risks. For example, if the fleeing vessel 
circles or doubles back, any nets and lines deployed in the water earlier to entangle 
the fleeing vessel might endanger the pursuing vessel as it turns to continue the 
pursuit. 

If low-level tactics fail to induce the suspect vessel to comply, they may be fol- 
lowed by warning shots. Until recently, the federal statute governing the Coast 
Guard's use of force against noncompliant vessels expressly required that warning 
shots always be fired before the enforcing vessel employed disabling fire. Any fail- 
ure to first fire warning shots might have stripped the commanding officer of the 
indemnity provided by the statute. However, a 2004 amendment to 14 U.S.C. § 637 
introduced an exception to the requirement. The amended statute no longer re- 
quires that warning shots be given before disabling fire if the person in command 
of the enforcing vessel "determines that the firing of a warning signal would unrea- 
sonably endanger persons or property in the vicinity of the vessel to be stopped." 195 
It is important not to read too much into the 2004 amendment. To meet the stan- 
dards set by international law for the use of force in maritime enforcement actions, 
the use of disabling fire without prior warning shots would still have to be preceded 
by an effective means of warning the fleeing vessel that force will be used against the 
vessel if it fails to comply with the enforcing vessel's orders. 196 

The United States has long taken the position that a warning shot is a signal. 
Warning shots are not directed against the vessel or any person on board and do 
not constitute a use of force. Although international law is largely silent on the 
manner for firing warning shots, the CGUFP provides detailed guidance for Coast 
Guard platforms (and DoD platforms under Coast Guard TACON or OPCON). 
The CGUFP specifies the need for prior authorization from the operational or tac- 
tical commander, the visual, auditory and electronic warnings to be given to the 
vessel before firing the warning shot, the position and posture of the crew on the 
enforcing vessel, the choice of weapon and ammunition and the direction of fire 
relative to the suspect vessel. 197 Like the CGUFP, the Navy MIO Doctrine provides 
specific direction on pre-fire warnings, the choice of weapon and ammunition 
and the weapon targeting method. 198 The general directions set out in the MIO 

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Limits on the Use of Force 



Doctrine must be applied consistently with the mission accomplishment ROE and 
operational tasking directives. 

The use of warning shots to stop a vessel for boarding constitutes a "seizure" of 
the vessel in the constitutional sense and must therefore comply with the Fourth 
Amendment standard of reasonableness. The Court of Appeals for the Second Cir- 
cuit applied the reasonableness standard to a case involving the Coast Guard's use 
of warning shots against a Panamanian drug trafficking vessel on the high seas. The 
USCGC Tamaroa intercepted the 210-foot Panamanian mothership Roondiep fifty 
miles off Cape Cod and, with the consent of Panamanian authorities, ordered the 
vessel to heave to for boarding. 199 The Roondiep refused, and after twice warning 
the vessel by radio, Tamaroa fired warning shots across the vessel's bow using a .50 
caliber machine-gun. The Roondiep eventually stopped and in the boarding that 
followed the team discovered a large quantity of marijuana in the hold. The defen- 
dants appealed their convictions on grounds that the boarding and seizure violated 
the Fourth Amendment. After first rejecting the Government's argument that Pan- 
ama's consent provided an independent constitutional basis for the boarding, the 
Court of Appeals concluded that the interception was a reasonable investigatory 
stop and therefore did not violate the Fourth Amendment. 200 The Court then 
turned to the warning shots: 

The firing of warning shots to stop the Roondiep was not unreasonable, since 
reasonable force may be used if needed. The Roondiep had for some twenty minutes 
refused to stop upon request. The Coast Guard' firing of warning shots into the water 
in front of the ship appears to have been the least drastic way to force the ship to stop, 
and the shots were directly attributable to the Roondiep's refusal to submit to an 
authorized request to stop. 201 

It is not clear whether the court considered the warning shots a use of force, rather 
than just one of several acts to consider in determining whether the Coast Guard's 
seizure was reasonable under the circumstances. However, the court went on to 
hold that "the firing of warning shots appears to have been no more intrusive than 
the circumstances required to get the Roondiep to stop." 202 Accordingly, the Coast 
Guard's actions were held to be reasonable. 

Use of Force to Stop and Board 

SQ1: "You should stop or heave to; otherwise I shall open fire on you." 203 

The effectiveness of maritime legal regimes has long been a matter of concern. 204 
Even the most carefully crafted regime will fail to produce the desired public order 
if compliance is poor. Compliance is best achieved by a coordinated system of en- 
forcement that detects, interdicts and punishes violators, thereby deterring future 

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violations. Any regime that allowed a violator to escape interdiction and punish- 
ment by simply registering the vessel with a closed or uncooperative flag State that 
refuses all requests to board is unlikely to be effective against a determined adver- 
sary. As one experienced commentator observed, MIO patrols would be ineffective 
if the patrol vessels lack the right to use force if necessary to stop ships. 205 The late 
Professor Myres McDougal observed: 

The authority to prescribe law, to make law, if it is to have any meaning must carry with 
it the authority to apply the law, decide what it is in particular instances, and to enforce 

it Mr. Burke and I have collected the authorities on this for every type of area. It is 

our conclusion that you can be reasonably sure that states are authorized by 
international law to employ force when it is necessary to apply any law which they are 
authorized to make for the protection of their various exclusive interests. A 
comparable competence is established for the protection of the inclusive interests. . . . 
The principal point ... is that, by and large, the maintenance of order upon the oceans 
is a function of the application of force by the ships of nation-states. 206 

It has been shown that the legitimacy of using force to stop a vessel subject to the 
enforcing State's jurisdiction or control is well established under international 
practice, treaty law and US law. 207 Although some condemn the use of force in fish- 
eries and pollution enforcement actions as unreasonable and anachronistic, the 
need to preserve the authority to use force to compel compliance with the WMD 
non-proliferation regime is not so easily dismissed. Accordingly, at the interna- 
tional level a balance must be struck between the common interest in preserving 
freedom of navigation and limiting the use of force against vessels and their crews 
on the one hand, and the need to address the threat to international peace and se- 
curity posed by the proliferation of WMD and delivery systems into the hands of 
rogue regimes and renegade non-State actors. As Professor Shearer recognized 
when he put the Ym Alone decision in perspective in an earlier Blue Book series 
article: 

[T]he proportionality principle requires the enforcing State to weigh the gravity of the 
offense against the value of human life. Rum-running . . . did not strike the [ u Ym 
Alone"] commissioners as sufficient to warrant such drastic action. They did not have 
to consider other cases. It is suggested that fisheries, revenue, immigration and other 
regulatory offenses would fall into the same category. So might pollution offenses. This 
is not only because sending a vessel with dangerous cargoes or wastes on board to the 
bottom might only compound the danger, but because of the Convention scheme . . . 
under which the flag State can be required to take enforcement action against the 
delinquent vessel escaping immediate arrest. Other cases might justify the use of more 
vigorous, and perhaps ultimately deadly, force, such as piratical vessels, vessels carrying 
arms to dissidents in the enforcing State, or craft carrying large quantities of dangerous 

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drugs. These cases might be argued to have the character of self-defense or self- 
preservation more than of enforcement of regulatory laws. 208 

At the same time, any decision to use force at this early stage — to get aboard a sus- 
picious vessel — must take into account that in most such cases the enforcing vessel 
will not yet have probable cause to believe the vessel is engaged in illegal activities 
or activities that give rise to a right of self-defense or self-help. 

It has also been shown that use of force in MLE boardings may raise constitu- 
tional and statutory questions under US law. As with the firing of warning shots, 
the use of disabling fire by the Coast Guard to seize a vessel at sea must comply with 
the Fourth Amendment reasonableness standard. As the US Supreme Court ex- 
plained in Graham v. Connor, a case involving the use of force against an individ- 
ual, not a vessel, the court will consider the severity of the crime at issue, whether 
the suspect poses an immediate threat to others, and whether the suspect is actively 
resisting arrest or attempting to evade arrest by flight. 209 The reasonableness stan- 
dard, along with the governing international law standards, was applied to an inci- 
dent involving the use of disabling fire in a joint Navy-Coast Guard counter- 
narcotics boarding off the Bahamas. In the interdiction, the USS Kidd (DDG-993), 
operating with a deployed Coast Guard LEDET, fired warning shots then .50 cali- 
ber machine-gun disabling fire to stop a stateless vessel on the high seas (the inci- 
dent was the first use of disabling fire by a Navy ship in a counter-narcotics 
operation). Once aboard, the boarding team discovered over 57,000 pounds of 
marijuana on the vessel. 210 On an appeal by the defendants of their conviction on 
drug trafficking charges, the court concluded that "the boarding and the seizure 
were not in conflict with United States statutes, international treaties or conven- 
tions, or the Constitution." 21 ] Nothing in the court's decision suggests that the use 
of disabling fire to stop a fleeing vessel under those circumstances violates the 
Fourth Amendment. 

When the on scene commander or commanding officer has determined that a 
suspect vessel will present either an opposed boarding or a noncompliant board- 
ing the full range of use of force options described above may come into play. 212 
Those options may include the Coast Guard's "higher level" tactics 213 and dis- 
abling fire. "Disabling fire" refers to use of weapons to disable the ship without 
risk to the crew. The use of disabling fire by Navy and Coast Guard vessels con- 
ducting MLE operations is constrained by a variety of sources, including 14 U.S.C. 
§ 637, as amended in 2004, the CGUFP set out in the MLEM, any applicable bilat- 
eral boarding agreement and tasking directives by OPCON or TACON. If dis- 
abling fire is used, the enforcing vessel's method and choice of ammunition are 
limited by both service doctrine and international law. In the M/V Saiga Case, for 



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example, the International Tribunal for the Law of the Sea held that in its use of 
disabling fire the enforcement vessel should make every effort to ensure that life is 
not endangered. 214 Service doctrines typically require that the enforcing vessel at- 
tempt to disable the noncompliant vessel with smaller caliber weapons. Such a se- 
quence was followed by the Coast Guard cutter USCGC Boutwell in 1988 when it 
encountered the converted Panamanian supply ship Encounter Bay 600 miles off 
the coast of Washington. Boutwell first fired sixty .50 caliber machine-gun rounds 
into the drug trafficking vessel without any immediate effect. The Encounter Bay 
crew decided to comply with the boarding demand when Boutwell threatened to 
switch to the vessel's deck gun. 215 

Despite the general acceptance accorded to the use of disabling fire against ves- 
sels trafficking in drugs, as a practical matter few commanding officers or com- 
mand authorities are likely to be anxious to shoot at vessels suspected of 
transporting nuclear, biological or chemical weapons or precursors. Moreover, 
they will recognize that the typical merchant ship is often able to survive even pro- 
longed disabling fire by the weapons and ammunition allowed by the use of force 
doctrines. For example, in a 1990 interception of the 250-foot Panamanian 
freighter M/V Hermann suspected of transporting drugs, the Coast Guard cutter 
USCGC Chincoteague, with the consent of the flag State, fired over 130 rounds 
from the vessel's 20 mm gun and 600 rounds from an M-60 machine-gun into the 
vessel's engine spaces and rudder post. 216 Despite the two-hour assault by 
Chincoteague, they were unable to disable the vessel before it entered the territorial 
sea of Mexico, at which point the Chincoteague was legally bound to discontinue 
the pursuit. 

An effective alternative means of overcoming the suspect vessel's noncompli- 
ance or even opposition — often without endangering the crew or potentially dan- 
gerous cargo on the suspect vessel — is available if the enforcing vessel has the 
capability of deploying a helicopter-borne special operations force boarding 
team. 217 A vertical take-down may obviate the need for disabling fire against a 
noncompliant vessel and may therefore best meet the "reasonable and necessary 
force" test. 

The efficacy of the vertical take-down alternative was demonstrated in the 2002 
interdiction of the M/V So San by Spanish naval forces acting under the leadership 
of Spain's former Prime Minister Aznar. In response to United States and British 
intelligence, the Spanish frigate Navarra, operating in support of Operation En- 
during Freedom and seeking to prevent the escape of al Qaeda and Taliban forces 
from Afghanistan, intercepted the So San in the Indian Ocean approximately 600 
miles from the Horn of Africa. 218 No ship named So San appeared in any of the ves- 
sel registries. The vessel was flying no flag at the time of approach and displayed no 

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indication of its State of registry or homeport. In fact, a North Korean flag on its 
funnel had been painted over, as were the Korean characters for So San. The master 
of the vessel provided only cursory answers to radio questions from the Navarra. 
He indicated that his vessel was registered in Cambodia and was carrying a cargo of 
cement to Yemen. The government of Cambodia could only confirm that the ship 
matched the description of a vessel registered in Cambodia under a different 
name. 219 Concluding that the failure to fly a flag or display a name, together with 
the unverifiable claim of Cambodian registry, constituted reasonable grounds for 
suspecting that the ship was without a nationality (i.e., stateless), the Spanish frig- 
ate chose to exercise the internationally recognized right of a warship to "visit" a 
vessel on the high seas. 220 The right of visit entitles a warship to send over a boat or 
aircraft to verify the ship's right to fly its flag. 221 The So San captain refused to slow 
down or to allow Navarra to board. Navarra then fired warning shots in an attempt 
to stop the So San, but the warnings were ignored. In fact, the So San increased its 
speed, making it impossible to board the ship by small boat. After a six-hour stand- 
off, Navarra prepared a special operations team of Spanish Marines to conduct a 
non-compliant boarding. To facilitate a vertical takedown, snipers on the Navarra 
first shot away the guy wires on the So Sans main mast that would have endan- 
gered the team when they fast-roped from the helicopter to the deck of the ship. 
Their path cleared, the Spanish team was able to get aboard and secure the vessel 
for the right of visit boarding. Most legal experts agree that the circumstances justi- 
fied a right of visit boarding. 222 And none of those who concluded the boarding was 
legitimate questioned the Spanish decision to shoot out the vessel's obstructing cables. 
Had the Spanish lacked a vertical take-down capability, and therefore been forced 
to choose between resorting to disabling fire or forgoing the boarding, it is not clear 
whether the command authorities would have authorized disabling fire. 

Use of Force to Divert, Arrest and/or Seize 

It bears repeating that each progressive step in an interdiction from approach to 
seizure must be grounded in lawful authority. The authority to order a vessel to di- 
vert must be distinguished from a detention or formal seizure of the vessel. 223 Simi- 
larly, the mustering or temporary detention of persons aboard a vessel to facilitate 
a boarding must be distinguished from the arrest of persons whom a law enforce- 
ment officer has probable cause to believe committed a crime within the enforcing 
State's jurisdiction. The amount of force that may be "reasonable" for one form of 
seizure might be seen as unreasonable if used in another context. 

Even a cursory inspection of the international and national legal regimes appli- 
cable to WMD, their precursors and delivery systems will reveal they are riddled 
with gaps (the UN Security Council recognized as much when it passed Resolution 

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Craig H. Allen 

1540). As a result, a boarding team could find that the presence or transport of 
WMD components or delivery systems turned up by their laborious search do not 
violate any laws enforceable by the boarding State. 224 For example, once aboard the 
M/V So San, the Spanish boarding team uncovered fifteen SCUD missiles 225 and 
conventional (high explosive) warheads, along with parts to make eight more mis- 
siles and 23 barrels of chemicals (nitric acid) buried beneath tons of bagged ce- 
ment. The missiles, which were sold by the government of North Korea to Yemen, 
were not listed in the vessel's cargo manifest. Yet the legal analysts ultimately con- 
cluded that no applicable international law prohibited the sale or shipment of 
SCUD missiles from North Korea to Yemen. 226 Accordingly, there was no legal ba- 
sis for seizing the missiles, or taking further actions against the vessel or crew. The 
So San was released, to deliver its cargo to Yemen. 

In circumstances where neither the vessel nor any of its crew has violated WMD 
possession or transportation laws enforceable directly by the boarding State, the 
boarding State may nevertheless find that one or more individuals aboard the ves- 
sel are suspected of having committed an offense that falls within the extradite or 
prosecute provision of an applicable international treaty. Such clauses are com- 
mon in multinational terrorism conventions. Boarding teams and their com- 
manders must recognize that their power (and duty) to detain such persons is 
limited. The treaty obligation to prosecute or extradite is generally triggered only 
when a person suspected of committing an offense under the treaty is within the 
"territory" of a contracting party. 227 Such a provision would not justify apprehen- 
sion of a person on a foreign vessel for extradition to a third State. 228 On the other 
hand, the flag State may be under such an obligation if it is a party to a treaty requir- 
ing extradition. 229 Such cases — like those involving asylum requests — call for care- 
ful handling by the enforcing vessel's chain of command within the context of 
established interagency consultation procedures. 

Assuming the authority to divert, detain arrest or seize exists, the question arises 
regarding what force may be used to carry out those actions. Vessels employed in 
MIO or E-MIO operations must consult their mission accomplishment ROE and 
operational tasking directives. The reader will also recall that the Vm Alone com- 
missioners articulated an international law "necessary and reasonable force" stan- 
dard that applies to all steps in the encounter, including the boarding, search and 
seizure and bringing the vessel into port. 230 For Coast Guard boarding officers en- 
gaged in maritime law enforcement operations, 14 U.S.C. § 89 authorizes such offi- 
cers to use all force necessary to compel compliance. That statutory authority must 
be applied within the limitations imposed by the constitutional provisions dis- 
cussed above and the CGUFP. The CGUFP imposes limitations on the use of 
deadly force that are similar to, but more restrictive than, those in the Model Penal 

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Code. Section 3.07 of the MPC begins by addressing the use of any force (deadly or 
non-deadly) in making an arrest. It provides that force is justifiable if the arresting 
officer believes its use is immediately necessary to effect the arrest. The MPC then 
imposes limits on the use of deadly force, providing that deadly force is not justifi- 
able unless: (1) the arrest is for a felony; (2) the arresting officer believes that the 
force employed creates no substantial risk of injury to innocent persons; and (3) 
the arresting officer believes that the crime for which the arrest is made involved 
conduct including the use or threatened use of deadly force or the officer believes 
there is a substantial risk that the person to be arrested will cause death or serious 
bodily injury if his apprehension is delayed. 231 

The CGUFP is more restrictive than the MPC and better comports with the 
1985 Tennessee v. Garner test described above. 232 While the MPC is cast in the dis- 
junctive, requiring only that the felony for which the arrest is being made involve 
the threat or use of deadly force or that there be a substantial risk that the person 
being arrested will cause death or serious bodily injury if apprehension is delayed, 
the CGUFP only authorizes the use of deadly force to effect an arrest if there is 
probable cause to believe that "the suspect has committed a felony involving the 
use or threatened use of deadly force" and the "suspect is armed, or otherwise poses 
an imminent threat of death or serious physical injury to any person." 233 A separate 
provision of the CGUFP authorizes the use of force, including deadly force, when 
necessary to protect hazardous materials or deadly weapons from theft, sabotage or 
unauthorized control. 234 In addition, the boarding team has the inherent right to 
use force when necessary in self-defense. 

Use of Force in Self-Defense 

Throughout the approach and boarding it is important to distinguish the use of 
force to carry out the boarding, search and seizure from the use of force in self- 
defense. Regardless of the stage of the approach and boarding, the intercepting 
forces maybe faced with actions requiring the use of force in self-defense. The ROE 
identify four levels of self-defense: individual self-defense (which includes defense 
of others), unit self-defense, national self-defense, and collective self-defense. 235 
Individual self-defense is the act of defending oneself or another person by using 
force. Unit self-defense is the act of defending a particular unit of US forces, or 
other US forces in the vicinity, against a hostile act or demonstrated hostile intent. 
Responses to a ramming or attempted ramming of a Coast Guard or DoD vessel, or 
vessel under Coast Guard TACON, would be governed by the SROE on unit self- 
defense. 236 National self-defense is the act of defending the United States and, in 
some circumstances, US citizens and their property, and/or US commercial assets. 
Collective self-defense refers to the act of defending designated non-US forces or 

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Craig H. Allen 

designated foreign nationals and their property from a hostile act or demonstrated 
hostile intent. 

The SROE and CGUFP recognize the inherent right of an individual and a unit 
to act in self-defense, subject to the twin constraints of necessity and proportional- 
ity. 237 The definitions of necessity and proportionality in the self-defense context 
differ from parallel provisions in mission accomplishment ROE. "Necessity" for 
the use of force in self-defense exists when a hostile act occurs or when a force or 
terrorist exhibits hostile intent. 238 "Proportionality" in the self-defense context re- 
fers to measures that are reasonable in intensity, duration and magnitude to the 
perceived or demonstrated threat, based on all the facts known to the commander 
at the time. 239 The SROE make it clear that "all necessary means available" may be 
used in self-defense. 240 Although the meaning of that phrase is classified, it can be 
said that when the hostile force no longer represents an imminent threat, the right 
to self-defense ends. Mission accomplishment ROE written to supplement the 
SROE do not limit the commander's inherent authority and obligation to act in 
self-defense. 241 Intentionally sinking the Ym Alone (discussed above) was held to be 
excessive as an enforcement measure for a non-violent crime (smuggling alcohol). 
For those familiar with the ruthless determination of some modern traffickers in 
narcotics and illegal arms it is easy to imagine a circumstance in which it might be 
necessary to intentionally sink a trafficking vessel in self-defense. 

The authority to exercise national or collective self-defense is generally more re- 
strictive. 242 The doctrine of unit self-defense is well established. In the Marianna 
Flora, the Supreme Court recognized that a warship has no duty to flee or wait until 
she is crippled before defending herself with force. Writing for the Court, Justice 
Story held that the warship commander's duty under such circumstances is plain: 
it is to "oppose force to force, to attack and to subdue the vessel." 243 Justice Story 
went on to explain that the commander: 

had the flag of his vessel to maintain, and the rights of his cruiser to vindicate. To have 
hesitated in what was his duty to his government called for on such an occasion, would 
have been to betray (what no honourable officer could be supposed to indulge) an 
indifference to its dignity and sovereignty. 244 

The Court then upheld the boarding and seizure of the approached vessel, not for 
piracy but for the very act of firing on a US warship without legal justification. 245 
The Court of Appeals for the Ninth Circuit recently extended that principle, hold- 
ing that a threat to open fire on the Coast Guard if its agents attempted to board 
provided independent grounds for seizing the vessel. 246 



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The "no-duty-to-retreat" rule has been incorporated into Coast Guard doc- 
trine, though it also acknowledges that under some circumstances temporary with- 
drawal might prove to be the wiser alternative, to provide time for the arrival of 
additional assets or personnel or to reduce tensions. 247 Similarly, under the SROE 
guidelines on "de-escalating the situation," when time and circumstances permit, a 
hostile force should be warned and given an opportunity to withdraw or cease any 
threatening activities. 248 

Conclusion 

UN Security Council Resolutions 1 373 and 1 540 provide stark warning of the grave 
threat to international security posed by global terrorism and the proliferation of 
WMD and their delivery systems. For some, the resolutions also demonstrate that 
the presumption in the 1945 UN Charter that nation-States will hold a monopoly 
on the large-scale use of force must be reevaluated. It is too soon to predict whether 
those resolutions will eventually serve as the basis for new crimes of universal juris- 
diction or progressive development of the right of approach and visit under the law 
of the sea. In the meantime, while the Security Council monitors progress on the 
implementation of its terrorism and counter-proliferation resolutions, nations 
participating in the PSI and those cooperating with them will move forward with a 
pragmatic and adaptive program to counter the growing threat posed by the con- 
junction of global terrorism and WMD proliferation. Given the physical nature of 
most WMD and delivery systems of concern and the likely routes they will follow 
from their sources to intended users, the PSI must include a maritime interception 
component if it is to succeed. To be effective, maritime interception must include 
provisions for using reasonable force when necessary to overcome non-compli- 
ance. As both a legal and practical matter, the enforcing vessel cannot simply con- 
tinue a pursuit indefinitely. 249 Even an enforcing vessel with unlimited fuel and 
patience — and no other pressing mission — must terminate its pursuit if the pur- 
sued vessel enters the territorial sea of a third State, unless that State consents to an 
enforcement action in its waters or such action is authorized by an applicable reso- 
lution of the UN Security Council. 250 

International law and the national laws of the States participating in PSI mari- 
time operations impose limits on the use of force. Through the Statement of Inter- 
diction Principles, the PSI participants have pledged to conform their operations 
to international and national law. The exact contours of that law have yet to be fully 
defined. For example, customary law has yet to expressly acknowledge that as the 
threat to international or national security increases higher levels of force in en- 
forcement measures may be justified. Cases involving the use of force in fisheries 

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enforcement are inapposite where the danger of ineffective enforcement is not 
merely over-fishing, but rather permitting nuclear, biological or chemical weapons 
to come into the possession of a rogue regime or terrorist group. Even if the law 
were fully developed, it would not lessen the need for use of force policies and case- 
by-case decision-making grounded in informed risk assessment and management 
principles. The risk of using disabling fire against a vessel carrying WMD or com- 
ponent materials, and the low probability of success, cast serious doubt on whether 
such measures are likely to be employed. Accordingly, innovative methods, such as 
vertical take-downs or breaches of non-compliant vessels by small boat, may be- 
come an increasingly common feature of maritime interception operations. Both 
options expose the boarding team members to greater risk from the nature of the 
operation and potential opposition by the boarded vessel; however, the risk to 
global security posed by a course of passive inaction is likely to be even greater. 

A given PSI interception may implicate national defense, homeland security 
and/or law enforcement mission responsibilities. Accordingly, US maritime forces 
and their legal advisers must be prepared to apply what are often subtle distinctions 
among three distinct but sometimes overlapping systems of rules governing the use 
of force at sea. Policy makers and planners for PSI participating States must bear in 
mind that in framing a use of force approach for what will often be a combined op- 
eration they must strive to fashion an approach that recognizes that national atti- 
tudes on the use of force in maritime boardings may differ, even when they are 
grounded in universally applicable Security Council resolutions. The execution of 
those use of force policies will also shape and influence customary law on the use of 
force and on State responsibility in the years to come. 



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Appendix I 

ye | 

Interdiction Principles for the Proliferation Security Initiative 

PSI participants are committed to the following interdiction principles to establish 
a more coordinated and effective basis through which to impede and stop ship- 
ments of WMD, delivery systems, and related materials flowing to and from states 
and non-state actors of proliferation concern, consistent with national legal au- 
thorities and relevant international law and frameworks, including the UN Secu- 
rity Council. They call on all states concerned with this threat to international 
peace and security to join in similarly committing to: 

1. Undertake effective measures, either alone or in concert with other 
states, for interdicting the transfer or transport of WMD, their delivery 
systems, and related materials to and from states and non-state actors of 
proliferation concern. "States or non-state actors of proliferation 
concern" generally refers to those countries or entities that the PSI 
participants involved establish should be subject to interdiction activities 
because they are engaged in proliferation through: ( 1 ) efforts to develop 
or acquire chemical, biological, or nuclear weapons and associated 
delivery systems; or (2) transfers (either selling, receiving, or facilitating) 
of WMD, their delivery systems, or related materials. 

2. Adopt streamlined procedures for rapid exchange of relevant 
information concerning suspected proliferation activity, protecting the 
confidential character of classified information provided by other states 
as part of this initiative, dedicate appropriate resources and efforts to 
interdiction operations and capabilities, and maximize coordination 
among participants in interdiction efforts. 

3. Review and work to strengthen their relevant national legal authorities 
where necessary to accomplish these objectives, and work to strengthen 
when necessary relevant international law and frameworks in 
appropriate ways to support these commitments. 

4. Take specific actions in support of interdiction efforts regarding cargoes 
of WMD, their delivery systems, or related materials, to the extent their 
national legal authorities permit and consistent with their obligations 
under international law and frameworks, to include: 



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Craig H. Allen 

a. Not to transport or assist in the transport of any such cargoes to or 
from states or non-state actors of proliferation concern, and not to 
allow any persons subject to their jurisdiction to do so. 

b. At their own initiative, or at the request and good cause shown by 
another state, to take action to board and search any vessel flying 
their flag in their internal waters or territorial seas, or areas beyond 
the territorial seas of any other state, that is reasonably suspected of 
transporting such cargoes to or from states or non-state actors of 
proliferation concern, and to seize such cargoes that are identified. 

c. To seriously consider providing consent under the appropriate 
circumstances to the boarding and searching of its own flag vessels by 
other states, and to the seizure of such WMD-related cargoes in such 
vessels that may be identified by such states. 

d. To take appropriate actions to ( 1 ) stop and/or search in their internal 
waters, territorial seas, or contiguous zones (when declared) vessels 
that are reasonably suspected of carrying such cargoes to or from 
states or non-state actors of proliferation concern and to seize such 
cargoes that are identified; and (2) to enforce conditions on vessels 
entering or leaving their ports, internal waters or territorial seas that 
are reasonably suspected of carrying such cargoes, such as requiring 
that such vessels be subject to boarding, search, and seizure of such 
cargoes prior to entry. 

e. At their own initiative or upon the request and good cause shown by 
another state, to (a) require aircraft that are reasonably suspected of 
carrying such cargoes to or from states or non-state actors of 
proliferation concern and that are transiting their airspace to land for 
inspection and seize any such cargoes that are identified; and/or (b) 
deny aircraft reasonably suspected of carrying such cargoes transit 
rights through their airspace in advance of such flights. 

f. If their ports, airfields, or other facilities are used as transshipment 
points for shipment of such cargoes to or from states or non-state 
actors of proliferation concern, to inspect vessels, aircraft, or other 
modes of transport reasonably suspected of carrying such cargoes, 
and to seize such cargoes that are identified. 



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Appendix II 
United Nations Security Council Resolution 1540 (2004) 252 

Security Council 
4956th Meeting (PM)* 

The Security Council, 

Affirming that proliferation of nuclear, chemical and biological weapons, as well as 
their means of delivery,** constitutes a threat to international peace and security, 

Reaffirming, in this context, the Statement of its President adopted at the Council's 
meeting at the level of Heads of State and Government on 31 January 1992 (S/ 
23500), including the need for all Member States to fulfil their obligations in rela- 
tion to arms control and disarmament and to prevent proliferation in all its aspects 
of all weapons of mass destruction, 4 

Recalling also that the Statement underlined the need for all Member States to re- 
solve peacefully in accordance with the Charter any problems in that context 
threatening or disrupting the maintenance of regional and global stability, 

Affirming its resolve to take appropriate and effective actions against any threat to 
international peace and security caused by the proliferation of nuclear, chemical 
and biological weapons and their means of delivery, in conformity with its primary 
responsibilities, as provided for in the United Nations Charter, 

Affirming its support for the multilateral treaties whose aim is to eliminate or pre- 
vent the proliferation of nuclear, chemical or biological weapons and the impor- 
tance for all States parties to these treaties to implement them fully in order to 
promote international stability, 

Welcoming efforts in this context by multilateral arrangements which contribute to 
non-proliferation, 

Affirming that prevention of proliferation of nuclear, chemical and biological 
weapons should not hamper international cooperation in materials, equipment 
and technology for peaceful purposes while goals of peaceful utilization should not 
be used as a cover for proliferation, 



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Craig H. Allen 

Gravely concerned by the threat of terrorism and the risk that non-State actors** 
such as those identified in the United Nations list established and maintained by 
the Committee established under Security Council resolution 1267 and those to 
whom resolution 1373 applies, may acquire, develop, traffic in or use nuclear, 
chemical and biological weapons and their means of delivery, 

Gravely concernedby the threat of illicit trafficking in nuclear, chemical, or biologi- 
cal weapons and their means of delivery, and related materials,** which adds a new 
dimension to the issue of proliferation of such weapons and also poses a threat to 
international peace and security, 

Recognizing the need to enhance coordination of efforts on national, subregional, 
regional and international levels in order to strengthen a global response to this se- 
rious challenge and threat to international security, 

Recognizing that most States have undertaken binding legal obligations under trea- 
ties to which they are parties, or have made other commitments aimed at prevent- 
ing the proliferation of nuclear, chemical or biological weapons, and have taken 
effective measures to account for, secure and physically protect sensitive materials, 
such as those required by the Convention on the Physical Protection of Nuclear 
Materials and those recommended by the IAEA Code of Conduct on the Safety and 
Security of Radioactive Sources, 

Recognizing further the urgent need for all States to take additional effective mea- 
sures to prevent the proliferation of nuclear, chemical or biological weapons and 
their means of delivery, 

Encouraging all Member States to implement fully the disarmament treaties and 
agreements to which they are party, 

Reaffirming the need to combat by all means, in accordance with the Charter of the 
United Nations, threats to international peace and security caused by terrorist acts, 
Determined to facilitate henceforth an effective response to global threats in the 
area of non-proliferation, 

Acting under Chapter VII of the Charter of the United Nations, 

1. Decides that all States shall refrain from providing any form of support to non- 
State actors that attempt to develop, acquire, manufacture, possess, transport, 



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transfer or use nuclear, chemical or biological weapons and their means of 
delivery; 

2. Decides also that all States, in accordance with their national procedures, shall 
adopt and enforce appropriate effective laws which prohibit any non-State actor to 
manufacture, acquire, possess, develop, transport, transfer or use nuclear, 
chemical or biological weapons and their means of delivery, in particular for 
terrorist purposes, as well as attempts to engage in any of the foregoing activities, 
participate in them as an accomplice, assist or finance them; 

3. Decides also that all States shall take and enforce effective measures to establish 
domestic controls to prevent the proliferation of nuclear, chemical, or biological 
weapons and their means of delivery, including by establishing appropriate 
controls over related materials and to this end shall: 

(a) Develop and maintain appropriate effective measures to account for and 
secure such items in production, use, storage or transport; 

(b) Develop and maintain appropriate effective physical protection 
measures; 

(c) Develop and maintain appropriate effective border controls and law 
enforcement efforts to detect, deter, prevent and combat, including through 
international cooperation when necessary, the illicit trafficking and brokering 
in such items in accordance with their national legal authorities and legislation 
and consistent with international law; 

(d) Establish, develop, review and maintain appropriate effective national 
export and trans-shipment controls over such items, including appropriate 
laws and regulations to control export, transit, trans-shipment and re-export 
and controls on providing funds and services related to such export and trans- 
shipment such as financing, and transporting that would contribute to 
proliferation, as well as establishing end-user controls; and establishing and 
enforcing appropriate criminal or civil penalties for violations of such export 
control laws and regulations; 

4. Decides to establish, in accordance with rule 28 of its provisional rules of 
procedure, for a period of no longer than two years, a Committee of the Security 
Council, consisting of all members of the Council, which will, calling as 
appropriate on other expertise, report to the Security Council for its examination, 



Craig H. Allen 

on the implementation of this resolution, and to this end calls upon States to 
present a first report no later than six months from the adoption of this resolution 
to the Committee on steps they have taken or intend to take to implement this 
resolution; 

5. Decides that none of the obligations set forth in this resolution shall be 
interpreted so as to conflict with or alter the rights and obligations of State Parties 
to the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and 
the Biological and Toxin Weapons Convention or alter the responsibilities of the 
International Atomic Energy Agency or the Organization for the Prohibition of 
Chemical Weapons; 

6. Recognizes the utility in implementing this resolution of effective national 
control lists and calls upon all Member States, when necessary, to pursue at the 
earliest opportunity the development of such lists; 

7. Recognizes that some States may require assistance in implementing the 
provisions of this resolution within their territories and invites States in a position 
to do so to offer assistance as appropriate in response to specific requests to the 
States lacking the legal and regulatory infrastructure, implementation experience 
and/or resources for fulfilling the above provisions; 

8. Calls upon all States: 

(a) To promote the universal adoption and full implementation, and, where 
necessary, strengthening of multilateral treaties to which they are parties, 
whose aim is to prevent the proliferation of nuclear, biological or chemical 
weapons; 

(b) To adopt national rules and regulations, where it has not yet been done, 
to ensure compliance with their commitments under the key multilateral non- 
proliferation treaties; 

(c) To renew and fulfil their commitment to multilateral cooperation, in 
particular within the framework of the International Atomic Energy Agency, 
the Organization for the Prohibition of Chemical Weapons and the Biological 
and Toxin Weapons Convention, as important means of pursuing and 
achieving their common objectives in the area of non-proliferation and of 
promoting international cooperation for peaceful purposes; 



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(d) To develop appropriate ways to work with and inform industry and the 
public regarding their obligations under such laws; 

9. Calls upon all States to promote dialogue and cooperation on non- 
proliferation so as to address the threat posed by proliferation of nuclear, chemical, 
or biological weapons, and their means of delivery; 

10. Further to counter that threat, calls upon all States, in accordance with their 
national legal authorities and legislation and consistent with international law, to 
take cooperative action to prevent illicit trafficking in nuclear, chemical or 
biological weapons, their means of delivery, and related materials; 

11. Expresses its intention to monitor closely the implementation of this 
resolution and, at the appropriate level, to take further decisions which may be 
required to this end; 

12. Decides to remain seized of the matter. 



* The 4955 th Meeting was closed. 

** Definitions for the purpose of this resolution only: 

Means of delivery: missiles, rockets and other unmanned systems capable of deliv- 
ering nuclear, chemical, or biological weapons, that are specially designed for such 
use. 

Non-State actor: individual or entity, not acting under the lawful authority of any 
State in conducting activities which come within the scope of this resolution. 

Related materials: materials, equipment and technology covered by relevant multi- 
lateral treaties and arrangements, or included on national control lists, which 
could be used for the design, development, production or use of nuclear, chemical 
and biological weapons and their means of delivery. 



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Appendix III 

14 U.S.C. § 637 
Stopping vessels; immunity indemnity for firing at or into vessel 

(a) (1) Whenever any vessel liable to seizure or examination does not stop on 
being ordered to do so or on being pursued by an authorized vessel or authorized 
aircraft which has displayed the ensign, pennant, or other identifying insignia 
prescribed for an authorized vessel or authorized aircraft, the person in command 
or in charge of the authorized vessel or authorized aircraft may, after a gun has 
been fired by the authorized vessel or authorized aircraft as a warning signal fire at 
or into the vessel which does not stop. 

(2) Before firing at or into a vessel as authorized in paragraph ( 1 ), the person in 
command or in charge of the authorized vessel or authorized aircraft shall fire a 
gun as a warning signal, except that the prior firing of a gun as a warning signal is 
not required if that person determines that the firing of a warning signal would 
unreasonably endanger persons or property in the vicinity of the vessel to be 
stopped . 

(b) The person in command of an authorized vessel or authorized aircraft and all 
persons acting under that person's direction shall be indemnified from any 
penalties or actions for damages for firing at or into a vessel pursuant to subsection 
(a). If any person is killed or wounded by the firing, and the person in command of 
the authorized vessel or authorized aircraft or any person acting pursuant to their 
orders is prosecuted or arrested therefor, they shall be forthwith admitted to bail. 

(c) A vessel or aircraft is an authorized vessel or authorized aircraft for purposes of 
this section if — 

( 1 ) it is a Coast Guard vessel or aircraft; or 

(2) it is a surface naval vessel or military aircraft on which one or more 
members of the Coast Guard are assigned pursuant to section 379 of title 10t 
or. 



* As amended in 2004 by PUB. L. No. 108-293, § 205 (2004). Underlined sections were added in 
2004. Strikeouts indicate sections deleted in 2004. 



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(3) subject to subsection (d), it is a naval aircraft that has one or more 
members of the Coast Guard on board and is operating from a surface naval 
vessel described in paragraph (2). 

fd) ( 1 ) The inclusion of naval aircraft as an authorized aircraft for purposes of this 
section shall be effective only after the end of the 30 - day period beginning on the 
date the report required by paragraph (2) is submitted through September 30, 

{2} Not later than August 1, 2000, the Secretary of Defense shall submit to the 
Committee on Armed Services of the House of Representatives and the 
Committee on Armed Services of the Senate a report containing 

(A) an analysis of the benefits and risks associated with using naval air- 
craft to perform the law enforcement activities authorized by subsection 

{B} an estimate of the extent to which the Secretary expects to imple - 
ment the authority provided by this section; and 

{G} an analysis of the effectiveness and applicability to the Department 
of Defense of the Coast Guard program known as the "New Frontiers" 
program. 

(d) Report- The Commandant of the Coast Guard shall transmit a report annually 
to the Committee on Commerce, Science, and Transportation of the Senate and 
the Committee on Transportation and Infrastructure of the House of 
Representatives describing the location, vessels or aircraft, circumstances, and 
consequences of each incident in the 12-month period covered by the report in 
which the person in command or in charge of an authorized vessel or an 
authorized aircraft (as those terms are used in section 637 of title 14, United States 
Code) fired at or into a vessel without prior use of the warning signal as authorized 
by that section. 

Notes 

1 . Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis 123 (1969). 

2. See 2004 Report of the Secretary-General, Oceans and the Law of the Sea, at 40-41, para. 162, 
U.N. Doc. A/59/62 (2004). 

3. NATO members participating in the PSI since its inception include France, Germany, Italy, 
the Netherlands, Poland, Portugal, Spain and the United Kingdom. Canada and Norway joined 
several months later. 



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4. Interdiction Principles for the Proliferation Security Initiative, Sept. 4, 2003, para. 1 , available 
at http://www.state.gOv/t/np/rls/fs/23764.htm. 

5. Id. para. 4. 

6. See Agreement Between the Government of the United States of America and the 
Government of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of 
Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By Sea, Feb. 11, 
2004 [hereinafter United States-Liberia Bilateral WMD Boarding Agreement], at http:// 
www.state.gOv/t/np/trty/32403.htm; Amendment to the Supplementary Arrangement Between 
the Government of the United States of America and the Government of the Republic of Panama 
to the Arrangement Between the Government of the United States of America and the 
Government of the Republic of Panama for Support and Assistance from the United States Coast 
Guard for the National Maritime Service of the Ministry of Government and Justice, May 12, 
2004 [hereinafter United States-Panama Bilateral WMD Boarding Agreement], at http://www 
.state.gov/t/np/trty/32858.htm; Agreement Between the Government of the United States of 
America and the Government of the Republic of the Marshall Islands Concerning Cooperation 
to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and 
Related Materials by Sea, Aug. 13, 2004, [hereinafter United States-Marshall Islands Bilateral 
WMD Boarding Agreement], at http://www.state.gOv/t/np/trty/35237.htm. 

7. Wojciech Moskwa, Bush Seeks to Broaden Fight Against Spread of WMD, REUTERS, June 1, 
2004, available at http://www.reuters.com/newsArticle.jhtml?type=politicsNews&storyID 
=530982 1 &src=rss/ElectionCoverage&section=news. 

8. Final Report of the National Commission on Terrorist Attacks Upon the United 
STATES 381 (2004). The commission concluded the "PSI can be more effective it if uses 
intelligence and planning resources of the NATO alliance. Moreover, PSI membership should be 
open to non-NATO countries. Russia and China should be encouraged to participate." The PSI 
was always open to non-NATO States. And well before the commission entered its final report, 
Russia had already joined the PSI and China appeared to have no interest in joining. 

9. U.N. Security Council Res. 1540, U.N. Doc. No. S/RES/1540 (2004). In Resolution 1373, the 
Council had earlier called on all States to, inter alia, act to eliminate the supply of weapons to 
terrorists. U.N. Security Council Res. 1373, para. 2(a), U.N. Doc. No. S/RES/1373 (2001). 

10. Reportedly China agreed to support the resolution only after a provision that would have 
permitted interdiction at sea was removed. Warren Hodge, Ban on Weapons of Doom is Extended 
to Qaeda-Style Groups, NEW YORK TIMES, Apr. 29, 2004. 

11. Convention for the Suppression of Unlawful Acts against the Safety of Maritime 
Navigation, Mar. 10, 1988, 1678 U.N.T.S. 221, S. TREATY DOC. NO. 101-1 (1989), reprinted in 27 
International Legal Materials 672 (1988). 

12. Calvin M. Lederer, Developments Involving the Convention on the Suppression of 
Unlawful Acts Affecting Maritime Navigation, 2004 YEARBOOK OF THE COMITE MARITIME 
INTERNATIONAL 45, 50. See also Counter-Proliferation: Practising to Provoke, THE ECONOMIST, 
Sept. 20, 2003, at 41. 

13. The commanding officer of a US Navy cruiser described the typical MIO tempo of 
operations in the Persian Gulf this way: "During MIO, a single Navy ship can expect to run boat 
ops 15 to 18 hours a day, provide three to four six-man security teams, two 12-man (VBSS) 
teams, and in general ride herd on an average of 10 to 15 merchant ships daily." Chris Nichols, 
SWO Life: Operation Enduring Freedom and Philippine Sea (CG-58), SHIPMATE, Mar. 2002, 
available at http://www.usna.com/News_Pubs/Publications/Shipmate/2002/03/SWO.htm. 

14. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/ 
122 (1982), 1833 U.N.T.S. 3; S. TREATY DOC. 103-39 (1994), reprinted in 21 INTERNATIONAL 



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LEGAL MATERIALS 1261 (1982) [hereinafter LOS Convention]. The United States is not yet a 
party. 

15. For testimony rebutting those claims, see Senate Foreign Relations Committee, Report on 
the United Nations Convention on the Law of the Sea, S. EXEC. REP. No. 108-10, at 49, 64, 97, 
103 & 11 1-12 (Mar. 11,2004). 

16. The term "maritime interception operations" has taken on a variety of meanings over time. 
It was originally used in a narrow sense to refer only to naval operations taken to enforce the UN 
Security Council resolutions imposing embargoes. The Navy now defines MIO as the "legitimate 
action of denying suspect vessels access to specific ports for import or export of prohibited goods 
to or from a specified nation or nations, for purposes of peacekeeping or to enforce imposed 
sanctions." See US Navy, Maritime Interception Operations, ^ 1.5.12, NTTP 3-07.1 1/CGP 3- 
07. 1 1 ( 2003 ) [ hereinafter Navy MIO Doctrine] . The Navy MIO doctrine does not apply to naval 
blockades in time of war. Id. U 1.3. In fact, Navy doctrine acknowledges there are "crucial 
differences between MIOs and belligerent acts of interdiction such as blockade and visit and 
search during international armed conflict." See US Navy, Naval Doctrine for Military 
Operations Other-Than-War, H 3.2.2.1, NWP 3-07 (1998) [hereinafter Navy MOOTW 
Doctrine]. 

17. "Expanded MIO," when authorized by the Secretary of Defense, are designed to intercept 
targeted personnel or material that pose an imminent threat to the United States. E-MIO may 
involve multinational forces and may be implemented even when sanctions have not been 
imposed. See Navy MIO Doctrine, supra note 16, ^ 1.5.6. 

1 8. The Coast Guard defines "law enforcement" as "all Coast Guard functions or actions carried 
out pursuant to the legal authorities described in" the Maritime Law Enforcement Manual. See 
US Coast Guard, Maritime Law Enforcement Manual, 1 4.A.2, COMDTINST M16247.1C 
(2003) [hereinafter Coast Guard MLEM]. 

19. See LOS Convention, supra note 14, art. 110. 

20. "Countermeasures" are directed at another State to coerce the State to comply with 
international law. Historically, they included both non-forcible and forcible counter-measures. 
Forcible countermeasures are now limited by the United Nations Charter. See RESTATEMENT 
(THIRD) FOREIGN RELATIONS LAW OF the United States § 904(2) (1987) [hereinafter 
RESTATEMENT]; Corfu Channel (U.K. v. Alb.) 1949 I.C.J. 4, 35 (Apr. 9) (rejecting the U.K. 
argument that it had a right to intervene and clear mines in the Albanian territorial sea to 
facilitate innocent passage of U.K. warships). See also Professor Heintschel von Heinegg's article, 
The Proliferation Security Initiative: Security vs. Freedom of Navigation, which is Chapter IV in 
this volume, at 56. As Professor McDougal pointed out in an earlier Blue Book volume, the use of 
force in law enforcement activities does not constitute forcible self-help. See Myres S. McDougal, 
Authority to Use Force on the High Seas, in READINGS IN INTERNATIONAL LAW FROM THE NAVAL 
WAR COLLEGE REVIEW 1947-1977, at 551, 557-58 (Richard B. Lillich & John Norton Moore 
eds., 1980) (Vol. 61, US Naval War College International Law Studies). 

21. The term "US Maritime Forces" includes the Navy, Marine Corps and Coast Guard. See 
Navy MOOTW Doctrine, supra note 16, at 1-1. 

22. See 10 U.S.C.A. § 379 (West 2005). 

23. The fact that a given boarding is conducted under the MIO/VBSS framework does not 
indicate the nature or scope of the boarding or the legal authority on which it relies. Similarly, 
the fact that a Coast Guard LEDET accompanies a Navy VBSS team does not necessarily indicate 
the boarding falls within the maritime law enforcement rubric. See Navy MIO Doctrine, supra 
note 16, H 2.2.4. The Memorandum of Understanding Between the Department of Defense and 
Department of Transportation [now Homeland Security] on the Use of USCG Capabilities and 



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Craig H. Allen 

Resources in Support of National Military Strategy (Oct. 3, 1995) defines five categories of the 
Coast Guard that may be made available to support the National Military Strategy, including, 
inter alia, maritime interception operations, peacetime military engagement and coastal sea 
control. 

24. The actions may also trigger an operational report (OPREP) or situation report (SITREP) 
message reporting requirement. See Chairman of the Joint Chiefs of Staff Manual 3150.05 
(series); Chairman of the Joint Chiefs of Staff Manual 3150.3 (series); Office of the Chief of Naval 
Operations Instruction 3100.6 (series). 

25. Proclamation No. 3504, 27 FEDERAL REGISTER 10,401 (Oct. 23, 1962). The Proclamation 
authorized the use of force only in cases of failure or refusal to comply, after reasonable efforts 
had been made to communicate directly with the vessels, or in cases of self-defense, and then 
only to the extent necessary. 

26. See Navy MOOTW Doctrine, supra note 16, at 3-2 n.4. NATO prefers the phrase Maritime 
Interdiction Operations (MIOPs). In the United States "interdiction" is defined as activities 
designed to "divert, disrupt, delay or destroy" the adversary's potential to inflict harm before it 
can be used effectively against friendly forces. See Joint Chiefs of Staff, Joint Pub 3-03, Joint 
Interdiction Operations (1997). 

27. The principle of impartiality is also manifested in the 1982 LOS Convention's articles 
banning discrimination. See, e.g., LOS Convention, supra note 14, arts. 24(1 )(b), 25, 26, 42(2), 
52(2) & 227. 

28. Navy MIO Doctrine, supra note 16, at 3-3. The principle of impartiality does not require 
that all vessels be stopped. Effectiveness is measured by the extent to which MIO furthers 
compliance with the sanctions. 

29. Id. at 3-4. 

30. Id. 

31. Intelligence, surveillance and reconnaissance are part of the larger integrated JC4ISR 
approach, which also includes joint command, control, communications and computing. See 
Joint Chiefs of Staff, Joint Publication 3-32, Command and Control of Joint Military 
Operations, at App. A (Second Draft, 25 June 2003), available at http://www.dtic.mil/doctrine/ 
jel/ddrraafftt_pubs/3_22sd.pdf. 

32. Enforcement vessels will no doubt recognize the security risks posed by requiring vessels to 
transmit sensitive information by radio transmissions that are easily intercepted by other vessels 
or shore stations. 

33. VBSS team members attend individual and team training to learn boarding procedures, 
vessel control tactics, levels of force, take-down procedures and search techniques. Team 
members are trained in non-lethal and lethal use of force techniques. See generally Navy MIO 
Doctrine, supra note 16, If 4.3.1 & App. H. 

34. The Navy distinguishes between "opposed" boardings and "noncompliant" boardings, the 
former of which present a higher risk. See id. J 1.5. Special operations forces are always used in 
opposed boardings, and may be used in noncompliant boardings. Ship's force VBSS teams are 
not authorized to conduct opposed boardings, id. ^ 6.1, or noncompliant boardings on vessels 
with high freeboard. Id. ^ 6.6. 

35. Special operations forces may be drawn from a SEAL or MSPF team. The MSPF element 
within Marine expeditionary units (special operations capable) provides the direct action 
capability and carries out the VBSS mission in support of maritime interception operations. See 
Navy MOOTW Doctrine, supra note 16, ^ 3.2.2.5. On naval vessels without an embarked MEU, 
similar support may be available from a Marine security force battalion or one of its fleet 
antiterrorism security teams (FAST). 



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36. The effectiveness of this approach was demonstrated by a team of Navy SEALs and Marines 
that conducted a vertical take-down in the widely-studied interdiction of the Iraqi cargo ship Ibn 
Khahiun in the northern Arabian Sea in 1990. See Lois E. Fielding, Maritime Interception: 
Centerpiece of Economic Sanctions in the New World Order, 53 LOUISIANA LAW REVIEW 1191, 
1192 (1993); see also Robert E. Marabito, Maritime Interdiction: Evolution of a Strategy, 22 
Ocean Development and International Law 301 (1991). 

37. Navy MIO Doctrine, supra note 16, 1j 6.6.2. "Breaching" refers to boarding by small boat 
without the cooperation of the boarded vessel, and may require overcoming passive measures to 
obstruct the boarding. It is considered "extremely dangerous." Id. 

38. Id. 15.6.2.2. 

39. Diversions have been directly addressed in the context of the belligerents' right of visit and 
search. See SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT 
SEA 32, «1 121 (Louise Doswald-Beck, ed. 1995). At the time the Manual was written, some 
concluded that a right to compel diversion had not yet ripened into a rule of customary law. See 
Louise Doswald-Beck, Current Developments: The San Remo Manual on International Law 
Applicable to Armed Conflicts at Sea, 89 AMERICAN JOURNAL OF INTERNATIONAL LAW 192, 202 
(1995). 

40. Navy VBSS and Coast Guard LEDET teams have implemented a number of innovations to 
overcome the difficulties of at-sea container inspections, including the use of sophisticated 
climbing equipment and techniques. See Navy MIO Doctrine, supra note 16, Annex D, U D.5. 

41. The choice of rules can be even more complex if the operation includes military or law 
enforcement personnel from other nations. See Navy MIO Doctrine, supra note 16, Ifll 2.4 & 2.5. 

42. The legal authorities on which WMD interception operations may be founded are beyond 
the scope of this article. 

43. See Alfred H.A. Soons, Enforcing the Economic Embargo at Sea, in UNITED NATIONS 
Sanctions and International Law 307-24 (Vera Gowlland-Debbas et al. eds., 2001). 

44. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 993. See also Dieter 
Fleck, Rules of Engagement for Maritime Forces and the Limitation of the Use of Force Under the 
UN Charter, 31 GERMAN YEARBOOK OF INTERNATIONAL LAW 165 (1988). For an analysis of the 
self-defense arguments, see Michael Byers, Comment, Policing the High Seas: The Proliferation 
Security Initiative, 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 526-^45 (2004). The French 
commentators Dupuy and Vignes and their Iranian contributor Djamchid Momtaz argue 
against a right of self-defense on the high seas. RENE-JEAN DUPUY & DANIEL VIGNES, A 
Handbook on the New Law of the Sea 412-14 (1991). 

45. Church v. Hubbard, 6 U.S. (2 Cranch) 187, 235 (1804). 

46. See, e.g., US Navy Regulations (1990), arts. 0915 (use of force against another State) & 0914 
(violations of international law and treaties). 

47. It is sometimes said, even in introductory use of force training sessions, that there is little or 
no meaningful difference between the SROE, the RUF and the CGUFP. Staff judge advocates and 
law specialists must be alert to correct such simplistic assertions and their tendency to blur vital 
distinctions between the doctrines. The more difficult challenge will be to justify the need for 
multiple doctrines and the potential to inject confusion into one of the commander's most 
important planning and operational decisions. 

48. The distinction is implicit in the UN Security Council's Resolution 221 imposing an 
embargo on the former Rhodesia. Although not explicitly stated, the resolution was issued under 
Article 41 of the UN Charter, which is limited to measures not including the use of armed force. 
Nevertheless, the Council authorized the enforcing State to use force to compel compliance with 
the embargo. See U.N. Security Council Resolution 221, para. 5, U.N. Doc. S/RES/221 (1966) 



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(authorizing the United Kingdom to "prevent, by the use of force if necessary" the arrival of 
tankers in (Portuguese controlled) Beira). By Resolution 217 issued the year before, the Council 
had imposed an "embargo on oil and petroleum products" to Rhodesia. See U.N. Doc. S/RES/ 
217 (1965), para. 8. 

49. See PHILIP C. JESSUP, A MODERN LAW OF NATIONS 162 (1952). Judge Jessup took the 
position that a use of armed force violates Article 2(4) of the Charter only if it is directed against 
the territorial integrity or political independence of a State. 

50. See Joint Chiefs of Staff, Joint Publication 1-02, Department of Defense Dictionary of 
Military and Associated Terms, (Apr. 12, 2001, as amended through June 9, 2004) (emphasis 
added) [hereinafter DoD Dictionary]. 

5 1 . Despite the fact that the US embassy in Beirut had been bombed just six months earlier, the 
United States had not taken any additional precautions at the Beirut barracks, nor, reportedly, 
had the on scene commander requested an ROE review or revision. The incident raised serious 
questions about why, in such a high-risk environment, the sentries' weapons were not loaded. 

52. Bruce Berkowitz, The New Face of War: How War Will be Fought in the 2 1st 
CENTURY 1 17 (2003) (reporting that the safety of the Cole "depended totally on a handful of 
twenty-year-old sailors armed with unloaded M-16s, squinting into the noonday sun and trying 
to figure out why two guys in a skiff were waving at them as they approached"). 

53. Perhaps the best known case concerned General John LaVelle, USAF, commander of the 
Seventh Air Force in Viet Nam in 1971, who was relieved of command and demoted for charges 
relating to violations of applicable ROE and reporting requirements. See BERKOWITZ, id. at 151. 
More recently, an Illinois Air National Guard pilot received non-judicial punishment under 
Article 15 of the Uniform Code of Military Justice for, inter alia, violating the rules of 
engagement during Operation Enduring Freedom in Afghanistan. The flag officer who imposed 
the punishment found that the pilot "blatantly ignored the applicable rules of engagement and 
special instructions." See U.S. Pilot Found Guilty in 'Friendly Fire" Incident, CNN.COM NEWS, 
July 6, 2004, at http://www.cnn.com/2004/LAW/07/06/pilot.friendly.fire/. 

54. Self-defense is an affirmative defense under the Uniform Code of Justice. Rule for Courts- 
Martial (R.C.M.) 916(e), Manual for Courts Martial (2002). A similar rule applies in cases 
brought before the International Criminal Court (ICC). To prevail on a defense of self-defense 
before the ICC, the conduct must have been a "reasonable" response to an imminent and 
unlawful use of force. Rome Statute of the International Criminal Court, July 17, 1998, art. 
31(l)(c), U.N. Doc. A/CONF. 183/9, reprinted in 37 INTERNATIONAL LEGAL MATERIALS 999 
(1998) (the United States is not a party). The Rome Statute also limits the defense of obedience to 
orders. Responsibility for crimes falling within the Rome Statute is excluded only if the person 
acting under a legal obligation to obey orders (1) did not know the order was unlawful, and (2) 
the order was not manifestly unlawful. Id. art. 33. 

55. See United States v. Hensel, 699 F.2d 18, 28, 29 ( 1st Cir.), cert, denied, 461 U.S. 958 (1983). 

56. See Chairman, Joint Chiefs of Staff, Standing Rules of Engagement for U.S. Forces, CJCS 
Inst. 3121.01 (series). The SROE replaced what were known as the "Peacetime Rules of 
Engagement." Most of the 2000 version (CJCS Inst. 3 12 1.01 A) is classified, with the exception of 
Enclosure A, which sets out the SROE for self-defense [hereinafter CJCS 3 12 1.01 A]. Typically, 
ROE for joint operations are included in Appendix 8 (Rules of Engagement) to Annex C 
(Operations) of the applicable operation plan or operation order. 

57. See CJCSI 3121.01A, supra note 56, Encl. A, U 1(a) (SROE are applicable during "all military 
operations, contingencies, terrorist attacks, or prolonged conflicts outside the territorial 
jurisdiction of the United States"). An exception is made for US forces under the operational 
control of a multinational force. Id. J 1(c). 



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58. Joint Chiefs of Staff, Joint Publication 3-26, Joint Doctrine for Homeland Security, at III- 1 3, 
(Mar. 26, 2004 draft) [hereinafter Joint Doctrine for Homeland Security]. 

59. Id. at IV- 17. See also William J. Fenrick, Legal Limits on the Use of Force by Canadian 
Warships Engaged in Law Enforcement, 18 CANADIAN YEARBOOK OF INTERNATIONAL LAW 113- 
45(1980). 

60. See Coast Guard MLEM, supra note 1 8, ^ 4.E. 1 , which provides that Coast Guard units shall 
adhere to the SROE under the following conditions: ( 1 ) when the unit (wherever located and 
even if conducting a Coast Guard mission at the time) determines that it must take action in 
defense of itself or other US forces in the vicinity; (2) when the unit is under the tactical control 
of the DoD (for any purpose) when operating outside US territory (seaward of the 12 NM 
territorial sea); or (3) when engaged in national self-defense, as authorized by an authority 
designated in the SROE. The SROE authority to exercise "national self-defense" in the absence of 
express authorization does not currently extend to the Coast Guard. Id. at 4-3. 

61. See Navy MIO Doctrine, supra note 16, H 2.6.1. Naval doctrine acknowledges that the 
sanctioning body's resolution prescribes the level of force authorized in conducting MIO. 
However, "the wording is often ambiguous." Id. Accordingly, MIO units must also rely on 
national interpretations of the resolution and the ROE. 

62. North Atlantic Treaty Organization, NATO Rules of Engagement, MC362 (1999). 

63. US forces operating under the OPCON or TACON of a multinational force commander 
follow the mission accomplishment ROE of the multinational force if authorized by the National 
Command Authorities; however, they always retain the right to use necessary and proportional 
force for unit and individual self-defense in response to a hostile act or demonstrated hostile 
intent, just as they do when under Coast Guard OPCON or TACON. See CJCS Inst. 3 12 1.01 A, 
supra note 56, Encl. A, ffl| l.c & l.f. 

64. See Navy MIO Doctrine, supra note 16, Ifll 2.4 & 2.5. 

65. Richard Zeigler, Ubi Sumus? Quo Vadimus? Charting the Course of Maritime Interception 
Operations, 43 NAVAL LAW REVIEW 1 (1996). 

66. Mike Spence, Lessons for Combined Rules of Engagement, U.S. NAVAL INSTITUTE 
PROCEEDINGS, Oct. 2000, at 56-60 (observing that dealing with ROE is difficult enough when 
only one nation's armed forces are engaged; however, problems multiply rapidly when 
consistent ROE must be developed for multinational forces). 

67. It is the policy of the United States that the armed forces of the United States will comply 
with the "law of war" during all armed conflicts, however, such conflicts may be characterized. 
The "law of war" encompasses all international law for the conduct of hostilities that is binding 
on the United States or its individual citizens. See Secretary of Defense, DOD Directive 5100.77, 
DoD Law of War Program, Dec. 9, 1998; Chairman, Joint Chiefs of Staff, Implementation of the 
DOD Law of War Program, CJCS Instruction 58 10.0 IB, Mar. 25, 2002. 

68. See Navy MOOTW Doctrine, supra note 16, at 3-2. 

69. For the obligation, see Article 0914 of the US Navy Regulations (1990): 

On occasions when injury to the United States or to citizens thereof is committed or 
threatened in violation of the principles of international law or in violation of rights 
existing under a treaty or other international agreement, the senior officer present . . . 
shall take such action as is demanded by the gravity of the situation. In time of peace, 
action involving the use of force shall be taken only in consonance with the provisions 
of [Article 0915]. 

Article 0915 limits the use of force against another State to cases of self-defense against hostile 
acts or hostile intent directed against the unit and, when appropriate, in defense of US citizens, 
their property and US commercial assets in the vicinity. 



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70. CJCSI 3 12 1.01 A, supra note 56, End. A, at A-3. "Hostile act" and demonstrated "hostile 
intent" are defined at A-5. See generally Richard J. Grunawalt, The JCS Standing Rules of 
Engagement: A Judge Advocate's Primer, 42 AIR FORCE LAW REVIEW 245 (1997). See also Mike 
Palmer, Unwrapping the ROE Axle, U.S. NAVAL INSTITUTE PROCEEDINGS, May 2004, at 58 
(highlighting the inherent and independent force of self-defense ROE from mission 
accomplishment ROE). 

71. CJCSI 3121.01A, supra note 56, End. A, at U 5.f. 

72. Id. End. A, at 18(2). 

73. See, e.g., Navy MIO Doctrine, supra note 16, Annex D, 1 D.3.1 ("boarding team threat 
standing rules of engagement" for MIO boardings). 

74. See Secretary of Defense Directive of 16 May 2003; Chief of Naval Operations message 
3 1 1903Z July 2003. DoD considers warning shots a signal to an approaching vessel to stop; they 
do not constitute a use of force. 

75. See Joint Doctrine for Homeland Security, supra note 58, at GL-13. 

76. 18 U.S.C.A. § 1385 (West 2005). See also Annotation, Construction and Application of Posse 
Comitatus Act (18 U.S.C.A. § 1385), and Similar Predecessor Provisions, Restricting Use of United 
States Army and Air Force to Executive Laws, 141 AMERICAN LAW REPORTS, FEDERAL271 (2003). 
Although the PCA directly addresses only the Army (and later the Air Force), Congress directed 
the Secretary of Defense to promulgate regulations prohibiting the Navy and Marine Corps from 
directly participating in civilian law enforcement activities. 10 U.S.C.A. §§ 371-382 (West 2005). 

77. Joint Doctrine for Homeland Security, supra note 58, at 1-13 to 1-15. Navy civil support 
missions include measures to combat terrorism, counter-narcotics operations, national security 
special events, critical infrastructure and key asset protection, support for natural and manmade 
disasters response operations and for chemical, biological, radiological, nuclear and high yield 
explosive (CBRNE) consequence management. 

78. CJCSI 3 12 1.01 A, supra note 56, End. A, 1 l(i). The Naval Doctrine for Military Operations 
Other-Than-War distinguishes MOOTW involving the use/threat of force (combat) from 
MOOTW not involving the use/threat of force (noncombat). See Navy MOOTW Doctrine, 
supra note 16, at 1-2. Such operations often overlap with what are now referred to as Security and 
Stability Operations (SASO). MIO and counter-proliferation measures are categorized as 
MOOTW. Id. at 1-3 &1 3.2.2. 

79. W.atIV-17toIV-18. 

80. Joint Doctrine for Homeland Security, supra note 56, at GL-14. 

81. Id. at IV- 18. The applicable instruction is CJCSI 3 12 1.02 A, May 31, 2000. The instruction 
does not apply to US military units or personnel while under OPCON or TACON of the Coast 
Guard in support of counter-narcotics operations. Such units instead follow the SROE or 
CGUFP. See CJCSI 3121.02A, supra note 56, ffl[ 3.c & 3.e. 

82. Joint Doctrine for Homeland Security, supra note 56, at IV- 18. 

83. The amended version is reproduced (in redline format) in Appendix III of this article. 

84. Coast Guard MLEM, supra note 18, at 1-6. Portions of the MLEM are not releasable to 
foreign governments. Id. Chapter 4 is titled "Use of Force Policy and the Standing Rules of 
Engagement." Additional guidance is contained in the U.S. Coast Guard, Maritime Counter 
Drug and Alien Migrant Interdiction Operations (AMIO), COMDINST M16247.4/NWP 3-07.4 
(2000). 

85. "Operational control" is the authority to direct all aspects of military operations and 
training necessary to accomplish the mission. "Tactical control" is mission-specific or task- 
specific. It is defined as the command authority over assigned or attached units made available 
for tasking that is limited to the detailed direction and control of movement or maneuvers 



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within the operational area necessary to accomplish the missions or tasks assigned. Operational 
control includes tactical control. See DoD Dictionary, supra note 50. 

86. Coast Guard MLEM, supra note 1 8, ^ 3.C. 1 .a. 1 . 

87. W.14.B.l.a. 

88. 14 U.S.C.A. § 637(c) (West 2005). By the terms of the statute, it applies to naval surface 
vessels (or aircraft) on which one or more members of the Coast Guard are assigned pursuant to 
10U.S.C. §379. 

89. Coast Guard MLEM, supra note 18, at ^ E.2. 

90. W.1]4.B.3.b. See a/so MODEL PENAL CODE §3. 11 (2) (1985) [hereinafter MPC]. The Model 
Penal Code serves as a template for defining the elements of crimes and defenses for many 
jurisdictions and sets out several defenses to what would otherwise be crimes involving the use of 
force. The Code is not legally binding. 

91. Coast Guard MLEM, supra note 18, at 4-4. 

92. The CGUFP does not distinguish between "opposed" boardings and "noncompliant" 
boardings. See Coast Guard MLEM, supra note 18, U 4.A.3. 

93. See id. 1 4.B.3.b.5. 

94. The CGUFP prohibits warning shots other than against noncompliant vessels. Id. ^ 4.B.2.d. 

95. Id. at 4-14. Note that disabling fire is permitted even when there is a risk of "minimum" 
injury, but it will be discontinued if there is a "substantial" risk of injury. As phrased, the 
"substantiality" qualification apparently refers to the probability of risk, not its magnitude. 

96. Note that the statute provides for an indemnity, not immunity. The indemnity also extends 
to those acting under that commanding officer's direction for any penalties or actions for 
damages arising out of the action. 14 U.S.C.A. § 637(b) (West 2005). 

97. See, e.g., The I'm Alone Arbitration (Can. v. U.S.), 3 UNITED NATIONS REPORTS OF 
INTERNATIONAL ARBITRAL AWARDS 1609 (1933) (use of disabling fire); Ford v. United States, 
272 U.S. 593 (1924) (warning shots); United States v. 63 Kegs of Malt, 27 F.2d 741 (2d Cir. 1928) 
(warning shots); The Vinces, 20 F.2d 164 (E.D.S.C. 1927) (warning shots and disabling fire). 

98. See CHARLES M. FUSS, SEA OF GRASS: THE MARITIME DRUG WAR 1970-1990, at 69, 70, 1 16, 
159, 193 & 248 (1996). On October 10, 1980, the USCGC Point Francis became the first US vessel 
to use disabling fire against a drug smuggling vessel. 

99. See U.S. Coast Guard, Operation New Frontier Procedures Manual, COMDTINST 
M3 120.2 (2003) (public access is restricted because the manual is designated for official use 
only). 

100. See RESTATEMENT, supra note 20, § 721, comment c & note 2. 

101. In United States v. Hensel, 699 F.2d 18 (1st Cir. 1983), the court construed 14 U.S.C. § 89 
and its legislative history and concluded that Congress did not intend that the statute would 
authorize the Coast Guard to conduct searches that would violate international law. Id. at 27. 

102. See United States v. Villamonte-Marquez, 462 U.S. 579 (1983) (holding that Fourth 
Amendment was not violated when customs officers boarded a US vessel, pursuant to their 
authority under 19 U.S.C. § 1581(a) to go on board any vessel at any place in the United States 
and examine the vessel's documents without any suspicion of wrongdoing); see also United 
States v. Flores-Montano, 542 U.S. 149 (2004) (holding that Fourth Amendment does not 
require Customs officer to have "reasonable suspicion" to conduct a non-destructive search of a 
vehicle's fuel tank when vehicle crossed US border). 

103. U.S. CONST, amend. IV. 

104. U.S. CONST, amend. V. 

105. The Constitutional safeguards apply to interceptions and boardings even when the 
boarding does not have a law enforcement purpose. 



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106. See, e.g., Canton v. Harris, 489 U.S. 378 (1989); Collins v. Harker Heights, 503 U.S. 115 
(1992). 

107. See, e.g., Saucier v. Katz, 533 U.S. 194 (2001) (holding that officer had qualified immunity 
to suit for alleged excessive force); Gonzalez v. Reno, 325 F.3d 1228 (1 1th Cir. 2003). 

108. For example, a defendant charged with violating 18 U.S.C. § 111 (forcibly assaulting, 
resisting or impeding certain federal officers designated in 18 U.S.C. § 1114) might assert in 
defense that the defendant's use of force against the officer was justified by the officer's use of 
excessive force against the defendant. A person is not justified in resisting arrest by force on the 
ground that the arrest is unlawful. See MPC, supra note 90, § 3.04(2)(a)(i). 

109. See, e.g., United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert, denied, All U.S. 
1001 (1975). The Supreme Court has ruled that the illegality of a defendant's detention cannot 
deprive the government of the opportunity to prove his guilt. United States v. Crews, 445 U.S. 
453,474(1980). 

110. See Terry v. Ohio, 392 U.S. 1 (1968). But see United States v. Draper, 536 U.S. 194(2002) 
(holding that, under the circumstances presented, the presence of three police officers on a bus 
that was stopped did not constitute a seizure of the persons on the bus). 

111. Whenever a law enforcement officer has acted in a way that denies a person the freedom to 
walk away, a Fourth Amendment "seizure" has occurred. Terry, 392 U.S. at 16. The 
reasonableness of the officer's suspicion is determined by a "totality of the circumstances" test. 
United States v. Arvizu, 534 U.S. 266 (2002). The Fifth Circuit has held that the "reasonable 
grounds" standard applicable to a right of approach boarding (under Article 1 10 of the 1982 LOS 
Convention) satisfies the "reasonableness" test under the Fourth Amendment. See United States 
v. Williams, 617 F.2d 1063, 1083 (5th Cir. 1980) (applying Article 22 of the former 1958 
Convention on the High Seas). 

1 12. United States v. Gomez, 633 F.2d 999, 1006 (2d Cir. 1980). 

113. Tennessee v. Garner, 471 U.S. 1, 7-12 (1985) (holding that the use of deadly force to stop a 
fleeing suspect is only reasonable if the officer has probable cause to believe that the suspect poses 
a significant threat of death or physical injury to the officer or others). See also MPC, supra note 
90, § 3.07(b). 

114. Graham v. Connor, 490 U.S. 386, 388 (1989). 

115. Id. at 397. 

116. Mat 396. 

117. Id. 

118. Saucier v. Katz, 533 U.S. 194, 205 (2001). 

119. United States v. Verdugo-Uriquidez, 494 U.S. 259, 274-75 (1990); see also Zadvydas v. 
Davis, 533 U.S. 678, 693 (2001) (confirming it is "well established that certain constitutional 
protections available to persons inside the United States are unavailable to aliens outside of our 
geographic borders"). Some treaties of friendship, commerce and navigation (FCN) extend 
"national treatment" to nationals of the other State. Such treaties have been held to be self- 
executing. Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) (holding that the FCN treaty 
between the United States and Japan "operates of itself without the aid of any legislation"). 

120. United States v. Peterson, 812 F.2d 486, 491 (9th Cir. 1987) (holding that a foreign search is 
reasonable if it conforms to the requirements of foreign law). But see United States v. Bin Laden, 
132 F. Supp.2d 168, 186-87 (S.D.N.Y. 2001) (holding that Fifth Amendment protections 
relating to self-incrimination apply to the use, in a US court, of a statement obtained in a foreign 
custodial interrogation by US government agents because the Fifth Amendment "violation" 
occurs when the statement is used at trial, not when it was obtained). 

121. See RESTATEMENT, supra note 20, § 722, comment m & note 16. In Rasul v. Bush, 542 U.S. 
466 (2004), the Court held that the Guantanamo Bay Navy Base in Cuba, over which the United 
States exercises "complete jurisdiction and control" under the lease, falls within the territorial 

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jurisdiction of the United States for purposes of applying the habeas corpus statute, 28 U.S.C. § 
2241. Accordingly, a federal court with venue may determine whether the detainees are being 
held in custody in violation of the Constitution or the laws or treaties of the United States. The 
Supreme Court's holding so far does not extend to detentions at other overseas locations that are 
not under the "plenary and exclusive jurisdiction" of the United States. 

1 22. United States v. Toscanino, 500 F.2d 267, 274-75 (2d Cir. 1974). In Ker v. Illinois, 1 19 U.S. 
436 (1886), however, the Court held that a defendant who was forcibly abducted in Peru for trial 
in the U.S. was not entitled to have the charges dismissed on grounds that his right to due process 
was violated. See also Frisbie v. Collins, 342 U.S. 519 ( 1952); RESTATEMENT, supra note 20, § 433. 

1 23. Acting under Article 4 1 of the Charter, the Council cannot authorize "armed force." Armed 
force may only be authorized under Article 42. For some, that raises the question whether police 
force can be used to enforce council resolutions adopted under Article 41; however, the Security 
Council appears to have answered the question in the affirmative in its embargo resolutions 
against the former Rhodesia. See Soons, supra note 43, at 321. 

124. See Louis Sohn, Peacetime Use of Force on the High Seas, in THE LAW OF NAVAL 
OPERATIONS 38 (Horace B. Robertson, Jr. ed., 1991) (Vol. 64, US Naval War College 
International Law Studies). 

125. LOS Convention, supra note 14, art. 88. 

126. Id. art. 301. 

127. In 1974 the United Nations General Assembly attempted to define "aggression" by 
resolution. According to the Assembly's resolution, aggression is the use of armed force by a 
State against the sovereignty, territorial integrity or political independence of another State, or in 
any other manner inconsistent with the Charter of the United Nations, as defined by the 
resolution. U.N. General Assembly, Resolution 3314 (XXIX) of Dec. 14, 1974, G.A.O.R. 29th 
Sess., Supp. No. 31 (A/9631), at 142 [hereinafter Aggression Resolution]. For a discussion of the 
US position on defining "aggression" under the Rome Statute of the International Criminal 
Court, see UNITED STATES DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN 

International Law 2000, at 286-91 (2001). 

128. Britain's seizure of US merchant vessels was a principal cause of the War of 1812. Similarly, 
President Wilson sought a declaration of war after German submarines sank US merchant 
vessels at a time when the United States had declared its neutrality in World War I. Today, 
however, any response must be consistent with Articles 2(4) and 51 of the UN Charter, as 
construed by the International Court of Justice in the Military and Paramilitary Activities in and 
against Nicaragua decision and the Oil Platforms case. Military and Paramilitary Activities 
(Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) (merits), reprinted in 25 INTERNATIONAL LEGAL 

MATERIALS 1023 (1986); Oil Platforms (Iran v. U.S.), 2003 I.C.J. (Nov. 6) (merits), available 

at http://www.icj-cij.org/icjwww/idocket/iop/iopframe.htm. See also William H. Taft IV, Self- 
Defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295 (2004) 
(criticizing the court for its excursion into obiter dictum and criticizing the court's treatment of 
the armed attack and self-defense issues). Under the General Assembly definition, an "attack by 
the armed forces of a State on the land, sea or air forces, or marine or air fleets of another State" 
constitutes aggression. Aggression Resolution, supra note 127, art. 3(d). The definition appears 
to be limited to attacks on warships and naval auxiliaries. However, in its dispute with Canada 
over Canada's seizure of the F/VEstai on the high seas in 1995, Spain argued that Canada's use of 
warning shots to stop the vessel constituted a use of force in violation of Article 2(4) of the 
Charter. Fisheries Jurisdiction (Sp. v. Can.), 1998 I.C.J. 432, 465 (Dec. 4) (declining 
jurisdiction). See also D. P. O'CONNELL, II, THE INTERNATIONAL LAW OF THE SEA 804 (Ivan A. 
Shearer ed., 1984). However, nothing in the decision by the International Court of Justice in that 
case or by the International Tribunal on the Law of the Sea in the M/V Saiga case discussed below 
suggests that either tribunal considered the use of military weapons in stopping and boarding a 



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vessel to be an "armed attack" or an act of unlawful "aggression" in violation of Article 2(4) of 
the UN Charter or a violation of Article 301 of the LOS Convention. 

129. See Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 
Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570 ("Montreal Convention"); Protocol Relating to 
an Amendment to the Convention on International Civil Aviation, Montreal, May 10, 1984, 
reprinted in 23 INTERNATIONAL LEGAL MATERIALS 705 (1984). The United States is not a party 
to the 1984 protocol, presumably out of concern over its provisions for compulsory ICJ 
jurisdiction. Article 3 bis of the protocol requires States to refrain from using weapons against 
civil aircraft in flight. See also Aircraft Sabotage Act of 1984, codified in part at 18 U.S.C. § 32 
(criminalizing attacks on civil aircraft). Congress later made provisions for immunity in cases 
involving US assistance to foreign enforcement officials. See 22 U.S.C.A. § 2291-4. See also 
Phillip A. Johnson, Shooting Down Drug Traffickers, in LIBER AMICORUM PROFESSOR JACK 
GRUNAWALT 79 (Michael N. Schmitt ed., 1998) (Vol. 72, US Naval War College International 
Law Studies). 

130. See, e.g., LOS Convention, supra note 14, art. 73 (limiting enforcement measures available 
to coastal States in the EEZ). See also Continental Shelf (Tunis, v. Libya), 1982 I.C.J. 18, 230 (Feb. 
24) (Oda, J. dissenting) (predicting that disputes arising out of Article 73 enforcement activities 
will likely be excluded from the LOS Convention's compulsory dispute settlement provisions by 
virtue of Article 298 of the convention). 

131. See Agreement for the Implementation of the Provisions of the United Nations Convention 
on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of 
Straddling Fish Stocks and Highly Migratory Fish Stocks, Dec. 4, 1995, U.N. Doc. A/CONF.164/ 
37 (1995), S. TREATY DOC. NO. 104-24 (1996), reprinted in 34 INTERNATIONAL LEGAL 
MATERIALS 1542 (1995) [hereinafter the Straddling Fish Stocks Agreement]. Article 22 of the 
agreement limits the use of force in fisheries enforcement actions. 

132. See, e.g., United States-Liberia Bilateral WMD Boarding Agreement, supra note 6, art. 4(5) 
& art. 9. 

133. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety 
of Maritime Navigation, art. 8, para. 2 (adding Article 8bis to the SUA Convention), adopted Oct. 
17, 2005, IMO Doc. LEG/CONF.15/DC/1 [hereinafter 2005 Protocol to the SUA Convention"]. 
The new 2005 Protocol article provides that: 

When carrying out the authorized actions under this article, the use of force shall be 
avoided except when necessary to ensure the safety of its officials and persons on board, 
or where the officials are obstructed in the execution of the authorized actions. Any use 
of force pursuant to this article shall not exceed the minimum degree of force which is 
necessary and reasonable in the circumstances. 

134. See United States v. Postal, 589 F.2d 862, 870 (5th Cir.) ("the boarding of a vessel on the 
high seas by its flag state is not an international event. The consequences are solely a domestic 
matter. The boarding of a foreign vessel is, of course, a matter of international concern that 
might call for more restraint on the part of the boarding state."), cert, denied, 442 U.S. 832 
(1979). 

135. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 
[hereinafter ICCPR]; see also Convention Against Torture and Other Cruel, Inhuman and 
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States 
ratified the ICCPR in 1992 subject to five reservations, four understandings and four 
declarations. See S. REP. 102-123 (1992); 138 CONG. REC. 8070 (1992). 

136. See ICCPR, supra note 135, art. 2(1) (requiring States-parties to protect the defined rights of 
all individuals "within its territory and subject to its jurisdiction"); see also RESTATEMENT, supra 



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note 20, § 701. Application might turn on reservations and exceptions entered and the extent to 
which the convention is deemed to be self-executing. 

1 37. See, e.g., United States-Liberia WMD Boarding Agreement, supra note 6, art. 4(5) & art. 9. 
138.2005 Protocol to the SUA Convention, supra note 133, art. 8bis, para. 7. 

139. It is beyond the scope of this article whether an individual would have standing in a US 
court to object to enforcement actions by the United States that went beyond or were in 
contravention of an applicable bilateral boarding agreement with the flag State. 

140. The diplomatic correspondence, claims and briefs exchanged between the two 
governments are reprinted in DEPARTMENT OF STATE, ARBITRATION SERIES No. 2 (vol. 1-7), 
I'm Alone Case (1931-1935) [hereinafter I'm Alone Case]. The interim decision is also reported 
in the "I'm Alone" Arbitration (Can. v. U.S.). 

141. Convention for the Prevention of Smuggling of Intoxicating Liquors (United States-Great 
Britain), Jan. 23, 1924, reprinted in I'm Alone Case, supra note 140, vol. I, annex B. Article II of 
the Convention provided the US jurisdiction to board British vessels beyond US waters when 
within a distance from the coast the target vessel could traverse in one hour. Article IV provided 
for arbitration of disputes. 

142. Under customary law, by acting as a "mothership" supplying contraband to contact boats 
in violation of US laws, the Vm Alone might be said to be "constructively present" in US waters. 
The constructive presence doctrine is implicit in Article 111 of the 1982 LOS Convention and 
Article 23 of the 1958 Convention on the High Seas, both of which in describing the right of hot 
pursuit recognize that pursuit may be commenced if the pursued vessel "or one of its boats" is in 
the pursuing State's territorial sea or internal waters. See also MYRES S. McDOUGAL & WILLIAM 
T. BURKE, PUBLIC ORDER OF THE OCEANS 909-1 1 (1962, rev. 1987). Under the narrow view of 
the doctrine, a vessel is only constructively present when it works with its own boats to violate 
coastal State law. Under the broader view, the contact boats used to shuttle the illicit cargo to 
shore need not be from the mothership. See ROBIN R. CHURCHILL & A. VAUGHAN LOWE, THE 
LAW OF THE SEA 215-16 (3d ed. 1999). 

143. Joint Interim Report of the Commissioners, the I'm Alone Case ( 1933), supra note 140, vol. 
6, at 5. 

144. Id. Initially, the Commission concluded only that the intentional sinking was not justified 
by any provision of the 1924 treaty. Later, in their final report, they added that the sinking was 
not justified "by any principle of international law." Ultimately, compensation was denied to the 
owners on the ground that they were US nationals, but the arbitrators ordered the United States 
to apologize and pay $25,000 in compensation to the United Kingdom for its insult to the UK 
flag. Joint Final Report of the Commissioners, the I'm Alone Case (1935), supra note 140, vol. 7, 
at 3-4. 

145. Part V of the LOS Convention, which governs enforcement of marine resource laws in the 
EEZ, similarly limits "enforcement measures" available to the coastal State to those "necessary"; 
but it appears to take a broad view of necessity. Article 73 provides that the coastal State is 
authorized to "take such measures, including boarding, inspection and judicial proceedings, as 
may be necessary to ensure compliance with the laws and regulations adopted in conformity with 
this Convention." LOS Convention, supra note 14, art. 73 (emphasis added). This is functionally 
equivalent to the standard in 14 U.S.C. § 89 ("All necessary force to compel compliance"). Spain 
took a narrower view of Article 73 in its dispute with Canada over the 1995 seizure of the F/V 
Estai. Spain's counsel suggested in oral argument that because Article 73 does not expressly 
authorize the use of force, any use of force would violate international law. Fisheries Jurisdiction 
(Sp. v. Can.) (Oral argument for Spain by Counsel Sanchez on June 9, 1998), at http://www.icj- 
cij.org/icjwww/idocket/iec/iecframe.htm. 



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146. The Red Crusader Case (U.K. v. Den.), Comm'n of Enquiry, Mar. 23, 1962, 35 
INTERNATIONAL LAW REPORTS 485 (1962). The two governments agreed to establish a 
commission of enquiry to determine the vessel's location at the time of interception. 

147. Id. at 499 (emphasis added). 

148. The use of the phrase "proved necessity" suggests that the burden of proof was on 
Denmark. 

149. This conclusion may mean nothing more than that if the fleeing vessel's flag State 
intervenes and persuades the vessel to stop, the use of force is no longer necessary. Had the 
British intervention permitted Red Crusader to escape, it is not clear the British intervention 
would have been excused. 

150. Id. at 500. 

151. Id. 

152. The M/V "Saiga" (No. 2) Case (St. Vincent and the Grenadines v. Guinea) (Int'l Trib. Law 
of the Sea 1999) (merits), 120 INTERNATIONAL LAW REPORTS 143, reprinted in 38 
International Legal Materials 1323 (1999) [hereinafter The M/V Saiga]. 

153. Prompt release actions maybe brought under Article 292 of the LOS Convention to obtain 
the release of a vessel and crew upon payment of reasonable security. 

154. The M/V Saiga, supra note 152, U 153. 

155. W.I 155. 

156. Id. 1 153. 

157. Straddling Fish Stocks Agreement, supra note 131, art. 22. 

158. Id. art. 22(1 )(f). Before extending the Article 22 limits outside the fisheries enforcement 
context it might be useful to consider that some fisheries enforcement regimes do not even 
permit boarding officers to be armed while conducting boardings. See, e.g., Northwest Atlantic 
Fisheries Organization (NAFO), Conservation and Enforcement Measures, art. 24(8), 
NAFO FC Doc. 04/1 Serial No. N4936, available at http://www.nafo.ca/activities/FRAMES/ 
AcFrFish.html. Unarmed boardings would be unrealistic for vessels that might be engaged in 
trafficking in narcotics, weapons or humans, and any use of force policy must recognize the 
differing risk levels presented in the various contexts. 

159. The M/V Saiga, supra note 152, U 156. 

160. See Tim Zimmermann, If World War III Comes, Blame Fish, U.S. NEWS & WORLD REPORT, 
Oct. 21, 1996, at 59-60. The article reports that "fish are the reason that Russians are shooting at 
Japanese, Tunisians are shooting at Italians, and a lot of people are shooting at Spaniards." It 
goes on to report that three Thai fishermen were shot dead by Vietnamese maritime authorities, 
two Spaniards were injured by gunfire from a Portuguese patrol boat, Iceland authorized the use 
offeree to exclude Danish fishermen from its waters, and a Malaysian naval vessel fired on a Thai 
fishing boat, killing the master and his 14-year-old son. The United Kingdom dispatched naval 
frigates to protect British fishing boats during the several "cod wars" with Iceland from 1958 to 
1976. See also O'CONNELL, supra note 128, at 1071-72 n.67 (collecting cases and protests 
involving the use of force against US vessels and those of other States). 

161. The use of force to intentionally sink a vessel with persons aboard would constitute "deadly 
force" (force that is likely to cause death or serious physical injury). The standards for the use of 
deadly force are much more stringent than those applicable to stopping a noncompliant vessel. 

162. Recent decisions by the International Court of Justice highlight the importance of clarifying 
the burden and quantum of proof in such cases. See Oil Platforms, supra note 128 (Higgins, J., 
Separate Opinion, ffl| 30-39), reprinted in 42 INTERNATIONAL LEGAL MATERIALS 1334 (2003). In 
the S.S. Lotus case, the tribunal ruled that France, as the State challenging Turkey's exercise of 
jurisdiction, had the burden of proving that Turkey's action violated an applicable rule of 
international law. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9 (Sept. 7). 



133 



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163. The LOS Convention prescribes an effectiveness standard for enforcement. See, e.g., LOS 
Convention, supra note 14, art. 94(1) (establishing flag State's duty to "effectively" exercise its 
jurisdiction and control). 

164. For example, in 1964, the United States protested an incident that occurred 16 miles off the 
Soviet coast in which a Soviet vessel fired on the unarmed American merchant vessel Sister 
Katingo, apparently because the American vessel failed to clear customs before departing the 
Soviet port. The United States also protested a 1969 incident in which a Peruvian gunboat fired 
on an unarmed US tuna boat located 40 miles off the Peruvian coast, breaking the tuna boat's 
mast and radio antenna. The United States argued there was no justification under international 
law for firing on an unarmed fishing vessel. See O'CONNELL, supra note 128, at 1071-72 n.67. 

165. CHURCHILL & LOWE, supra note 142, at 461; see also O'CONNELL, supra note 128, at 1071- 
74 (also relying on the Vm Alone case). 

166. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, U.N. Doc. 
E/CN. 15/ 1996/ 16/ Add. 2 [hereinafter Basic Principles]. The Basic Principles declare themselves 
to be non-derogable, even in times of public emergency. Id. para. 8. Although the Basic 
Principles developed by the UN Economic and Social Council are not legally binding, the 
European Court of Human Rights treats them as if they were. See, e.g., Ocalan v Turkey [2003] 
Eur. Ct. H.R. 46221/99, 1 196. 

167. UN Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly 
Resolution 34/169, Dec. 17, 1997, U.N. Doc. A/RES/34/169 (1997) [hereinafter Code of 
Conduct]. 

168. Basic Principles, supra note 166, para. 2. The European Court of Human Rights held that 
the Government of Turkey bore responsibility for failing to equip its security forces with non- 
lethal force equipment when they responded to a large internal civil disturbance, leaving the 
forces no alternative to the use of deadly force. Giilec v. Turkey, [1998] Eur. Ct. H.R. 21 593/93, 1flj 
71,73,83. 

169. As noted above, under Articles 297 and 298 of the LOS Convention certain disputes 
concerning law enforcement or military activities may be exempt from the Convention's 
compulsory dispute settlement procedures. See LOS Convention, supra note 14, arts. 297 & 298. 
Private suits for damages may be subject to the defenses of sovereign immunity or the act of State 
doctrine. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) 
(dismissing suit by tanker owner for damage to vessel by Argentine naval gunfire). The act of 
State doctrine applies only to the State's acts within its territory, not to those occurring on the 
high seas. 

170. See LOS Convention, supra note 14, arts. 95 & 96. 

171. Navy MIO Doctrine, supra note 16, ffl| 2.4 & 2.5. 

172. See, e.g., HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 180 n.89 (Richard H. 
Dana ed, 8th ed. 1866) (George G. Wilson rev. ed. 1936) (the "right to stop a foreign vessel and 
visit her must carry the right to use the requisite force, if the exercise of the right is resisted. If not, 
it is not a right in any sense worth disputing"). 

173. Vienna Convention on the Law of Treaties, May 23, 1969, 1 155 U.N.T.S. 331, reprinted in 8 
International Legal Materials 679 (1969). The United States is not a party. 

174. For example, a WMD shipment to a suspected terrorist organization being transported by 
sea in the Persian Gulf area might implicate one or more resolutions on WMD proliferation, 
global terrorism and State-specific embargoes. 

1 75. See U.N. Charter, supra note 44, arts. 24( 1 ), 39 & 1 ( 1 ). 

176. Id. art. 25. The means by which a decision of the Council is to be "carried out" are not 
defined; however, they must be "in accordance with" the Charter, including the purposes and 
principles articulated in Articles 1 and 2. 



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Craig H. Allen 

177. Such boarding agreements are lex specialis and therefore control in any disputes between 
the parties. However, such agreements must be compatible with the LOS Convention. See LOS 
Convention, supra note 14, art. 293(1). 

178. See United States-Liberia Bilateral WMD Boarding Agreement, supra note 6, art. 9; United 
States-Marshall Islands Bilateral WMD Boarding Agreement, supra note 6, art. 9. 

179. The "M/V Saiga," supra note 152, 1 156. 

180. See United States-Liberia Bilateral WMD Boarding Agreement, supra note 6, art. 4(5). 

181. The boarding agreement expressly preserves the right of the parties to exercise the right of 
approach and visit under international law. See id, art. 4(4). 

182. Supplementary Arrangement Between the Government of the United States of America 
and the Government of the Republic of Panama to the Arrangement Between the Government 
of the United States of America and the Government of the Republic of Panama for Support and 
Assistance from the United States Coast Guard for the National Maritime Service of the Ministry 
of Government and Justice, Feb. 5, 2002, art. X, 2002 U.S.T. Lexis 51, available at http:// 
www.state.gOv/t/np/trty/32859.htm. Any use of force must comply with Article XVII of the 
agreement. 

183. Id. art. XVII. 

184. See id. art. 1(6) (a). The Panama Agreement permits WMD boardings by "auxiliary 
personnel" only when law enforcement personnel are not available. See United States-Panama 
Bilateral WMD Boarding Agreement, supra note 6, art. 1, para. 4 (revising Article XV of the 
existing agreement). 

185. U.S. National Imagery 8c Mapping Agency, International Code of Signals for Visual, Sound, 
and Radio Communications, NIMA Publ'n 102 (1969, rev. 2003), at 83 [hereinafter NIMA 
Publication 102]. 

186. Navy MIO Doctrine, supra note 16, U 2.4. In general, mission accomplishment ROE in 
MOOTW are more restrictive than in war. See Joint Doctrine for MOOTW, supra note 1 6, ^j I- 1 . 

187. The identification need not include the enforcing vessel's name. The vessel's (or aircraft's) 
nationality and status as a warship is sufficient. 

188. The "M/V Saiga,"supra note 152, U 156. 

189. Article 9 of the WMD boarding agreements between the United States, Liberia and the 
Marshall Islands incorporates a requirement for visual and auditory signals. 

190. The Tribunal ultimately concluded, on conflicting assertions, that Guinea had failed to 
warn the Saiga before opening fire. The "M/V Saiga," supra note 152, ^ 157. If warnings were 
given, P35 did not document the warnings by audiotape or videotape. The Tribunal did not 
identify which of the States had the burden of proof on the question whether warnings were 
given. 

191. There is no requirement to identify the vessel by name. US Coast Guard cutters and boats 
often display the rotating blue light associated with law enforcement vehicles. The light is 
expressly authorized only in Inland Waters. See 33 C.F.R. § 88.1 1 (2005). 

192. The International Code of Signals consists of alphanumerically coded signals that may be 
transmitted between vessels by radio, signal flags, semaphore or flashing light. The meaning of 
each signal is set forth in a readily available publication printed in several languages. See NIMA 
Publication 102, supra note 185. 

193. Coast Guard MLEM, supra note 18, J 4.3 & Table 4-1. 

194. Navy MIO Doctrine, supra note 16, | 6.6. Any decision to use "full force," which might 
include sinking the vessel, must be evaluated not only under the applicable mission 
accomplishment ROE but also governing international law standards, such as those set by the 
I'm Alone case. 

195. 14 U.S.C.A. § 637(a)(2) (West 2005). 



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196. In Lewin v. United States, the court of appeals rejected the defendant's claim that because 
the Coast Guard had failed to fire warning shots before firing into his vessel, unintentionally 
killing another crewman, the defendant was justified in resisting the boarding with "force." 
Although the court concluded that the former statutory requirement to fire warning shots 
should be "rigidly administered" "for the good of the service," it also concluded that it was 
"perfectly clear that the defendant knew his boat was being chased." Lewin v. United States, 62 
F.2d619, 620(lstCir. 1933). 

197. See Coast Guard MLEM, supra note 18, Tf 4.D & Table 4-1. 

198. Navy MIO Doctrine, supra note 16, 1 6.6.1.2. 

199. United States v. Streifel, 665 F.2d 414, 424 (2d Cir. 1981). 

200. Id. at 419. 

201. Id. at 424. The court quoted its earlier decision in United States v. Gomez: 

A law enforcement officer who has duly announced his authority and who has 
attempted to stop and question a suspect is not required "to simply shrug his 
shoulders," . . . and abandon his investigation. . . [T]he officer has the right to detain the 
suspect against his will. . . Indeed, the officer "is entitled to make a. forcible stop." 

633 F.2d 999, 1006 (2d Cir. 1980) (emphasis added), cert, denied, 450 U.S. 994 (1981). 

202. Streifel 665 F.2d at 424. 

203. NIMA Publication 102, supra note 185, at 83. 

204. The port State control regime is a response to the ineffectiveness of a regime that relies 
solely on flag State jurisdiction and control. 

205. Adam B. Seigel, Enforcing Sanctions: A Growth Industry, 46 NAVAL WAR COLLEGE REVIEW 
130, 132(1993). 

206. McDougal, supra note 20, at 557-58. Professor McDougal distinguished the use of force in 
law enforcement measures against private actors from forcible self-help and self-defense 
measures against States for violations of international law. He goes on to report "I'm ashamed to 
confess that at one time I lent my support to the suggestion that article 2(4) and the related 
articles did preclude the use of self-help less than self-defense. On reflection, I think that was a 
very grave mistake." Id. at 559. Colombos devoted a chapter to "forcible measures short of war 
used in time of peace." C. JOHN COLOMBOS, INTERNATIONAL LAW OF THE SEA ch. X (6th ed. 
1967). 

207. See, e.g., 14 U.S.C.A. § 637 (West 2005). 

208. Ivan A. Shearer, The Development of International Law with Respect to the Law Enforcement 
Role of Navies and Coast Guards in Peacetime, in THE LAW OF ARMED CONFLICT: INTO THE NEXT 
MILLENNIUM 429, 441 (Michael N. Schmitt & Leslie C. Green eds., 1998) (Vol. 71, US Naval War 
College International Law Studies). 

209. Graham v. Connor, 490 U.S. 386, 396 (1989); see also United States v. Hensel, 699 F.2d 18 
(1st Cir.) (use of force by Canadian enforcement vessels to board vessel smuggling marijuana), 
cert, denied, 461 U.S. 958 (1983). The stricter test set out in Tennessee v. Garner will control if the 
disabling fire would constitute "deadly force." See supra note 113. 

210. See Fuss, supra note 98, at 1 16. 

211. United States v. Del Prado-Montero, 740 F.2d 1 13, 1 16 (1st Cir.), cert, denied, 469 U.S. 1021 
(1984). The court also rejected a defense argument that the Navy's participation violated the 
Posse Comitatus Act, 18 U.S.C. § 1385, citing the former regulation authorizing Navy support 
for Coast Guard counter-narcotics operations in 32 C.F.R. § 213.10(c) [repealed]. See 740 F.2d 
at 116. 

212. The United States has adopted an escalating use of force approach that progresses from 
warning shots to disabling fire. Other States do not necessarily follow that order. For example, 
when a marijuana smuggling vessel failed to heed their warning shots, a Canadian enforcement 



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Craig H. Allen 

vessel fired two 12-gauge shotgun blasts into the vessel's pilothouse, where three or four of the 
crewmembers were located. No one was injured and the operator then stopped the boat. See 
United States v. Hensel, 699 F.2d 18, 22 (1st Cir.), cert, denied, 461 U.S. 958 (1983). 

213. The CGUFP includes limited provisions for non-lethal "higher-level" force tactics to 
overcome a vessel operator's refusal to comply with a boarding demand. The tactics seek to 
obviate resort to the more dangerous disabling fire alternative. The two non-lethal force means 
presently authorized include string-ball projectiles and rubber fin-stabilized munitions. Each is 
fired at the operator of the vessel from a 12-gauge shotgun, with the intent of disabling the 
operator long enough to allow the boarding party to get aboard. See Coast Guard MLEM, supra 
note 18, \ 4.D.3.C. & Table 4-1. Neither of the techniques is likely to be effective against the size of 
vessel likely to be engaged in transporting WMD or missile delivery systems. 

214. See The "M/V Saiga," supra note 152, \ 157. 

215. See 72 Tons of Marijuana Seized, NEW YORK TIMES, July 7, 1988. See also United States v. 
Cadena, 585 F.2d 1252 (5th Cir. 1978) (Coast Guard's use of machine-gun and deck gun fire to 
stop foreign-flag marijuana smuggling vessel 200 miles off Florida coast). 

216. See U.S. DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL 
LAW 1989-1990, at 452-56 (2003). Before resorting to disabling fire, the cutter signaled the 
fleeing vessel, sprayed water across the vessel's bow and down its stack and fired warning shots 
across its bow. 

217. The doctrine for use of helicopters by special operations forces is classified and will not be 
discussed here. See Navy MIO Doctrine, supra note 16, ^ 7.3.2.1. 

218. The facts are taken primarily from U.S. DEPARTMENT OF STATE, DIGEST OF UNITED STATES 
Practice in International Law 2002, at 1052-57 (2003). 

219. Although Cambodia could not verify the vessel's registration, it granted conditional 
consent to the boarding if the vessel was in fact registered in Cambodia. 

220. See LOS Convention, supra note 14, art. 110. See also Convention on the High Seas, Apr. 29, 
1958, art. 22, 13 U.S.T. 2312, 450 U.N.T.S. 

221. In exercising a right of visit boarding, the enforcing vessel is no longer limited to sending 
boarding teams over by small boat. In contrast to Article 22 of the 1958 Convention on the High 
Seas, which spoke only of sending a boarding team by boat, Article 110 of the 1982 LOS 
Convention expressly extends the right of visit to military aircraft and any other duly authorized 
ships or aircraft clearly marked and identifiable as being on government service. See LOS 
Convention, supra note 14, art. 110. 

222. See, e.g., Frederic L. Kargis, Boarding of North Korean Vessel on the High Sea, AMERICAN 
Society of International Law Insights, Dec. 12, 2002, at http://www.asil.org/insights/ 
insigh94.htm; Kevin Drew, Law Allows Search, But Does Not Address Seizure of Cargo, CNN.COM 
NEWS, Dec. 11, 2002 (quoting Professor John Norton Moore). 

223. See, e.g., United States v. Juda, 46 F.3d 961, 969 (9th Cir.) (holding that the Coast Guard was 
entitled to proceed to verify the ship's right to fly its flag by examining its documents and, if 
necessary, by an examination on board the ship; where the master refused and threatened to 
shoot at the Coast Guard boat "the Coast Guard was authorized to seize" the vessel), cert, denied, 
514 U.S. 1090 (1995); United States v.Kahn, 35 F.3d, 426, 430 (9th Cir. 1994) (holding that the 
Coast Guard may legally detain a vessel while awaiting consent of the flag State to exercise 
jurisdiction over the vessel). 

224. If evidence of criminal activity is discovered, the officials from the State conducting the 
boarding generally have two options: prosecute the individuals for violating the laws of the 
boarding State, or — in some circumstances — detain the individuals until they can be delivered 
to officials of another State with jurisdiction over the offense. As Chief Justice Marshall declared 
in 1825, "the Courts of no country execute the penal laws of another." The Antelope, 23 U.S. (10 
Wheat.) 66, 123(1825). 



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225. The missiles reportedly had a designed range of roughly 300 kilometers. The Missile 
Technology Control Regime (MTCR) defines Category I missiles (the most regulated class) as 
those capable of delivering at least a 500 kilogram payload to a range of at least 300 kilometers. 
See Missile Technology Control Regime, Equipment, Software and Technology Annex, Apr. 7, 
2004, p. 10, at http://www.mtcr.info/english/Annex2004.doc. 

226. Legal Maze over Scud Seizure, BBC NEWS WORLD ED., Dec. 11, 2002, at http:// 
news.bbc.co.uk/2/hi/middle_east/2565905.stm. 

227. See, e.g., International Convention for the Suppression of Terrorist Bombings, Dec. 15, 
1997, art. 6(4), U.N. Doc. A/RES/52/164, S. TREATY DOC. 106-6 (1999). The International Law 
Commission has long taken the position that a coastal State may not take custody of a person on 
board a foreign vessel in innocent passage through its territorial sea for purposes of extraditing 
that person to a third State. International Law Commission, Report to the General Assembly, 1956 
Yearbook of the International Law Commission, vol. II, at 275. 

228. See generally M. CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUT JUDICARE: THE 

Duty to Extradite or Prosecute in International Law (1995). 

229. For a discussion of extradition issues under the 1988 Convention for the Suppression of 
Unlawful Acts Against the Safety of Maritime Navigation, see DIGEST OF U.S. PRACTICE IN 
International Law 1989-1990, supra note 216, at 1 1 1-14. 

230. See supra note 145 and accompanying text. 

231. MPC, supra note 90, § 3.07. 

232. See supra note 113 and accompanying text. 

233. Coast Guard MLEM, supra note 18, 1 4.B.3.b.2. The MLEM also limits the use of deadly 
force to situations in which the suspect has failed to obey an order to halt, where such orders are 
feasible and their use would not increase the danger to the officer or others. Id. 

234. Id. 1 4.B.3.b.4. 

235. See CJCSI 3 1 2 1 .0 1 A, supra note 56, Encl. A, ^ 5; see also Coast Guard MLEM, supra note 1 8, 
14.A.5. 

236. Coast Guard MLEM, supra note 18, If J. 3. See also U.S. Coast Guard, Maritime Counter 
Drug and Alien Migrant Interdiction Operations, 1 7.15, COMDTINST M16247.4/NWP 3-07.4 
(2000). 

237. See CJCSI 3 12 1.01 A, supra note 56, Encl. A, 1 5.a; see also Coast Guard MLEM, supra note 
18,1U4.A.5,4.B.2 8cApp. J.3. 

238. See CJCSI 3 121. 01 A, supra note 56, at A-4 to A-5. The meaning of military necessity under 
the law of armed conflict is beyond the scope of this article. See generally ANNOTATED 
Supplement to the Commander's Handbook of the Law of Naval Operations 292 n.6 
( A.R. Thomas & James C. Duncan, eds., 1999) (Vol. 73, US Naval War College International Law 
Studies) [hereinafter ANNOTATED Supplement]. 

239. See CJCSI 3 1 2 1 .0 1 A, supra note 56, at A-4 to A-6. The meaning of proportionality under the 
law of armed conflict is beyond the scope of this article. See ANNOTATED SUPPLEMENT, supra 
note 238, at 294 n.7. 

240. See CJCSI 3 12 1.01 A, supra note 56, at A-2, A-3 & A-6. 

241. Id. Encl. A, 15(a). 

242. See id. Encl. A, 1 7. See also Coast Guard MLEM, supra note 18, 1 4.A.5 (note). 

243. The Marianna Flora, 4 U.S. (11 Wheat.) 1, 46 (1826). 

244. Id. 

245. Id. at 50. 

246. See United States v. Juda, 46 F.3d 961, 969 (9th Cir.), cert, denied, 514 U.S. 1090 (1995). See 
also Lewin v. United States, 62 F.2d 619 (1st Cir. 1933). 



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Craig H. Allen 

247. Coast Guard MLEM, supra note 18, ^| 4.B.2.a. The Model Penal Code provision on self- 
defense confirms this. See MPC, supra note 90, § 3.04(2) (b)(ii)(B). 

248. See CJCSI 3 12 1.01 A, supra note 56, End. A, 1 8.a(l). 

249. Australian fisheries enforcement vessels patrolling the Southern Ocean may be the 
exception. Australia has repeatedly demonstrated its commitment to effective enforcement of 
marine resource conservation laws through some of the longest "hot pursuits" of scofflaw vessels 
in history. See Erik Jaap Molenaar, Multilateral Hot Pursuit and Illegal Fishing in the Southern 
Ocean: The Pursuits of the Viarsa 1 and the South Tomi, 19 International Journal of Marine and 
Coastal Law 19 (2004) (reporting Australia's 21 -day, 3,900 mile pursuit of F/V Viarsa I and 14- 
day, 3,300 mile pursuit of F/V South Tomi). 

250. See RESTATEMENT, supra note 20, §§ 432-433; United States v. Conroy, 589 F.2d 1258, 
1267-68 (5th Cir. 1979) (upholding Coast Guard enforcement action in Haitian territorial sea 
with Haiti's consent). 

251. Sept. 4, 2003, available at http://www.state.gOv/t/np/rls/fs/23764.htm. 

252. U.N. Security Council Res. 1540, supra note 9. 



139 



VI 



The Proliferation Security Initiative in the 

Maritime Domain 



Stuart Kaye* 

Introduction 

The Proliferation Security Initiative (PSI) is one of a number of measures 
taken by the international community in response to the heightened con- 
cern over terrorism since the attacks on the United States on September 11, 2001. 
The PSI is essentially part of a preventative strategy to deny weapons of mass de- 
struction (WMD) to terrorist organizations by ensuring such weapons cannot be 
moved freely across the world's oceans. This article will seek to consider the impli- 
cations for the law of the sea, particularly the operation of the 1982 United Nations 
Convention on the Law of the Sea, 1 generated by the PSI, and the possible implica- 
tions of its vigorous pursuit. 

Content of the PSI 

The PSI was announced in Krakow, Poland on May 13, 2003 by President George 
W. Bush. 2 It initially was a cooperative venture between eleven States, 3 but has 
gradually widened its support base to include a number of additional States, in- 
cluding Russia. 4 In addition to this direct support, the PSI received tacit approval 
from States attending an international conference directed at international 



Dean, Faculty of Law, University of Wollongong, Australia. 



The Proliferation Security Initiative in the Maritime Domain 

security arrangements. This was demonstrated at the first anniversary meeting in 
Krakow on May 3 1 and June 1, 2004, which was attended by over sixty States. 5 

The thrust of the PSI is to prevent the proliferation of WMD by sea, land and air, 
although within the scope of this article, only the maritime aspect of the Initiative 
will be considered. The PSI is not a treaty, but rather a statement of intention on 
the part of participating States, and, of itself, it does not create formally binding in- 
ternational law obligations. Participating States have agreed to abide by a set of in- 
terdiction principles, set out in a formal Statement. The interdiction principles 
indicate States will undertake effective measures to combat the proliferation of 
WMD, delivery systems or related materials; 6 cooperate on information exchange 
and coordination of activities to combat such proliferation; 7 and review domestic 
and, if necessary, international law to strengthen these efforts. 8 

In terms of specific circumstances when interdiction will take place, the PSI pro- 
vides a number of instances, and these are worth extracting: 

Take specific actions in support of interdiction efforts regarding cargoes of 
WMD, their delivery systems, or related materials, to the extent their 
national legal authorities permit and consistent with their obligations under 
international law and frameworks, to include: 

a. Not to transport or assist in the transport of any such cargoes to or from 
States or non-State actors of proliferation concern, and not to allow any 
persons subject to their jurisdiction to do so. 

b. At their own initiative, or at the request of and good cause shown by 
another State, to take action to board and search any vessel flying their flag in 
their internal waters or territorial seas or areas beyond the territorial seas of 
any other State that is reasonably suspected of transporting such cargoes to 
or from States or non-State actors of proliferation concerns, and to seize 
such cargoes that are identified. 

c. To seriously consider providing consent under the appropriate 
circumstances to the boarding and searching of its own flag vessels by other 
States and to the seizure of such WMD-related cargoes in such vessels that 
may be identified by such States. 

d. To take appropriate actions to (1) stop and/or search in their internal 
waters, territorial seas, or contiguous zones (when declared) vessels that are 
reasonably suspected of carrying such cargoes to or from States or non-State 
actors of proliferation concern and to seize such cargoes that are identified; 

142 



Stuart Kaye 

and (2) to enforce conditions on vessels entering or leaving their ports, 
internal waters or territorial seas that are reasonably suspected of carrying 
such cargoes, such as requiring that such vessels be subject to boarding, 
search, and seizure of such cargoes prior to entry. 

e. At their own initiative or upon the request and good cause shown by 
another State, to ( 1 ) require aircraft that are reasonably suspected of carrying 
such cargoes to or from States or non-State actors of proliferation concern 
and that are transiting their airspace to land for inspection and seize any such 
cargoes that are identified; and/or (2) deny aircraft reasonably suspected of 
carrying such cargoes transit rights through their airspace in advance of such 
flights. 

f. If their ports, airfields, or other facilities are used as transhipment points 
for shipment of such cargoes to or from States or non-State actors of 
proliferation concern, to inspect vessels, aircraft, or other modes of transport 
reasonably suspected of carrying such cargoes, and to seize such cargoes that 
are identified. 9 

These principles fall into a number of specific categories, in relation to shipping. 
Firstly, PSI States agree to undertake measures to prevent shipments of WMD, and 
to cooperate with other participants to achieve this end. Ships suspected of carry- 
ing WMD destined for non-State actors may be stopped and searched in three cir- 
cumstances: where the ship flies the flag of a participating State in the PSI, either by 
the flag State itself, or in cooperation with other PSI States; where the ship is along- 
side in a port of a PSI participating State; and, where the ship is present in the inter- 
nal waters, territorial sea or contiguous zone of a participating State. As is evident 
in e. and f. above, similar provisions exist for aircraft, although only at airfields of a 
PSI State, or the national airspace of a PSI State. 

These categories were effectively widened in 2004, with bilateral agreements be- 
tween the United States on the one hand, and Liberia and Panama on the other, 
with a view to permitting US vessels to stop and search suspect vessels flagged in the 
latter two countries. 10 Liberia and Panama will not function as PSI States, but, in 
certain circumstances, they have agreed to allow the United States to inspect their 
flag vessels. 11 Subsequently, similar agreements have been concluded with a num- 
ber of other States, including Belize, Croatia, the Marshall Islands, and Cyprus. 12 

The PSI has also been the subject of consideration by the United Nations Secu- 
rity Council. On April 28, 2004, the Security Council unanimously adopted Reso- 
lution 1540 on the prevention of the proliferation of weapons of mass destruction 



143 



The Proliferation Security Initiative in the Maritime Domain 

to non-State actors. The Resolution provided that States could take all measures 
consistent with international law to prevent the proliferation of weapons of mass 
destruction, and that States were under an obligation to ensure that such weapons 
did not fall into the control of non-State actors. Significantly, there is no reference 
to interdiction of vessels, 13 so the Resolution falls short of the range of measures 
contemplated within the PSI; however it is clear the Resolution would render the 
shipping of weapons in the circumstances contemplated to be addressed by the PSI 
unlawful. 

Legal Justifications for Interdiction under the PSI 

The PSI draws its legal support from a number of bases, some of which are straight- 
forward and some that are more contentious. For this reason, it is necessary to con- 
sider each in turn. These will be done without reference to the positions of the PSI 
States per se, as they have largely simply asserted that the PSI itself is consistent with 
international law. 14 

Flag State Jurisdiction 

One of the oldest and most settled matters within the law of the sea is the notion 
that a flag State retains jurisdiction over a vessel flying its flag. 15 This provides the 
basis for the identification of jurisdiction and legal authority over ships in waters 
beyond national jurisdiction. This principle is acknowledged in the Law of the Sea 
Convention, and is reinforced by the requirement that where a ship owner seeks to 
change the registration of their ship, this can only take place in port. 16 This ensures 
that at sea, the flag State of a ship remains singular and constant, giving certainty in 
identification of the applicable law and authority aboard. 

The use of flag State jurisdiction under the PSI is entirely valid, as flag States 
clearly have the power to regulate affairs aboard vessels flying their flag, 17 and 
therefore can direct masters of such vessels to comply with lawful directions. Ac- 
cordingly, a flag State could direct a vessel flying its flag to heave to and be boarded 
by another PSI State's nationals, submit to search and make for a designated port in 
a PSI State. 18 With the authorization of the flag State, all the participating nations 
in the operation could be assured of the legality of their actions. 

Port State Interdiction 

The second approach to interdiction under the PSI is found through the medium 
of port State jurisdiction. A coastal State's ports are part of its internal waters, or at 
least can be made so under the Law of the Sea Convention. 19 Since the restrictions 
on assertion of the coastal State's jurisdiction over vessels exercising a right of 

144 



Stuart Kaye 

innocent passage in the territorial sea do not apply to internal waters, the coastal 
State has a virtually unfettered jurisdiction to apply its law to ships visiting its ports, 
or to deny entry to its ports to foreign vessels if it chooses. 

Historically, there have been some restrictions upon the port State from apply- 
ing its laws to vessels that are alongside in its internal waters. With the exception of 
sovereign immunity, which will be considered separately, these restrictions derive 
largely from customary international law. For example, traditionally, vessels call- 
ing at a port as a result of distress are not subjected to the law of the coastal State. 20 
Similarly, States generally do not apply their labor laws to vessels calling at their 
ports, or interfere with matters that are generally regarded as internal to the opera- 
tion of the vessel. 21 

It is unlikely that any of these restrictions existing in international custom 
would withstand the right of a coastal State to take steps to deal with a risk to its 
own security, or that of its allies, in its own port. Whether knowingly or not, in cir- 
cumstances in which the visiting vessel poses a threat to the security of the coastal 
State, it would seem absurd that the State would not be able to address that threat 
within its own territory. Flag States have generally shown no objection to efforts by 
port States to take measures against vessels to curb the international drug trade, 
and the consequences in the context of the PSI for a failure to prevent a shipment 
reaching its destination are even higher. 

On this basis, Port State efforts to implement the PSI would, with the caveat 
of respect for sovereign immune vessels, seem to be on very solid ground, and 
there would seem to be no difficulty in its implementation to vessels alongside in 
a PSI State. 22 

Territorial Sea and Archipelagic Waters Interdiction 

One matter of significant concern surrounding the PSI relates to freedom of navi- 
gation. The Law of the Sea Convention provides substantial guarantees with re- 
spect to freedom of navigation, and the operation of the PSI to restrict the freedom 
of certain vessels to allow search and possible seizure of cargo presents a significant 
challenge. To place this challenge in context, it is useful to summarize the develop- 
ment and content of current arrangements in the law of the sea with respect to free- 
dom of navigation. 

Freedom of navigation has its origins in Hugo Grotius' response to the Spanish 
and Portuguese claims of control over the oceans and territories outside of Europe 
by virtue of the Papal Bull 23 and Treaty of Tordesillas. 24 These documents pur- 
ported not only to give control over territory outside of Europe, but also provided 
for exclusive seaborne trading rights in the South Atlantic and Indian Oceans. 25 
In reaction to this assertion, Grotius produced his seminal work, Mare Liberum, 

145 



The Proliferation Security Initiative in the Maritime Domain 

asserting that the oceans were incapable of appropriation by States, and that the 
ships of any State could journey anywhere on the world's oceans. 26 

In the modern law of the sea, freedom of navigation was equally perceived as 
important, and this status is reflected in the now superseded 1958 Geneva Conven- 
tions on the law of the sea. Article 14 of the Convention on the Territorial Sea and 
Contiguous Zone guaranteed a right of innocent passage to vessels, which was 
non-suspendable for waters in international straits, and Article 23 indicated ex- 
plicitly that such rights were available to warships. 27 Freedom of navigation on the 
high seas was guaranteed in Article 2 of the Convention on the High Seas, 28 with 
Article 3 of the Continental Shelf Convention ensuring that the status of waters 
above a State's continental shelf remained as high seas, therefore enjoying freedom 
of navigation. 29 These efforts had been prefaced by the International Court of Jus- 
tice in 1949 in the Corfu Channel Case, which confirmed the right of innocent pas- 
sage, available even to warships, passing through "straits used for international 
navigation." 30 The Court was also prepared to state that foreign vessels, including 
warships, during peacetime had a right of innocent passage through all interna- 
tional straits. 

The current 1982 Convention on the Law of the Sea maintains the approaches 
found in the Corfu Channel Case and the 1958 Geneva law of the sea conventions. It 
deals with navigation in two distinct contexts. First, it examines freedom of naviga- 
tion in the territorial sea and archipelagic waters. Three passage regimes are estab- 
lished in these waters: innocent passage, transit passage and archipelagic sea lanes 
passage. It then considers freedom of navigation in areas beyond national sover- 
eignty in Article 87. 31 

The regime of innocent passage deals with navigation by ships only in the terri- 
torial sea of a coastal or archipelagic State and archipelagic waters of an 
archipelagic State, and as noted above, it retains the same approach as that used in 
the Territorial Sea Convention and the Corfu Channel Case. Article 17 of the Law of 
the Sea Convention grants ships the right of innocent passage through the territo- 
rial sea, while the remaining articles in Subsection 3(A) of the Convention indicate 
how the right is circumscribed. Essentially, vessels are required to transit in a con- 
tinuous and expeditious fashion, on the surface of the ocean. Such passage cannot 
be impeded, except on a non-discriminatory and temporary basis for essential se- 
curity purposes. 32 

The coastal State has ability to regulate certain matters with respect to a vessel 
exercising a right of innocent passage. These are listed in Article 21(1) of the Law of 
the Sea Convention: 



146 



Stuart Kaye 

The coastal State may adopt laws and regulations, in conformity with the 
provisions of this Convention and other rules of international law, relating 
to innocent passage through the territorial sea, in respect of all or any of the 
following: 

(a) the safety of navigation and the regulation of maritime traffic; 

(b) the protection of navigational aids and facilities and other facilities or 
installations; 

(c) the protection of cables and pipelines; 

(d) the conservation of the living resources of the sea; 

(e) the prevention of infringement of the fisheries laws and regulations of the 
coastal State; 

(f) the preservation of the environment of the coastal State and the 
prevention, reduction and control of pollution thereof; 

(g) marine scientific research and hydrographic surveys; 

(h) the prevention of infringement of the customs, fiscal, immigration or 
sanitary laws and regulations of the coastal State. 

Upon their face, these controls do not provide a basis for a coastal State to assert 
jurisdiction over a passing vessel in its territorial sea for the purposes of the PSI. 
The matters Article 2 1 permits regulation of are clearly restricted to matters per- 
taining to the safe navigation of the ship, the protection of the surrounding marine 
environment, and the maintenance of customs, fiscal, sanitation (health) and im- 
migration controls of the coastal State. Unless there was a clear intention to illegally 
import WMD into the coastal State, which could be accomplished when the vessel 
came alongside in any case, there is no authority drawn from Article 2 1 to assist 
coastal States to implement the PSI. 

Other articles within the Law of the Sea Convention may be of more utility. Ar- 
ticle 19 requires that a ship's passage cannot be prejudicial to the peace, good order 
or security of the coastal State. A range of activities that fall outside this require- 
ment are explicitly listed, including "any other activity not having a direct bearing 
on passage." 33 Clearly the delivery of WMD to terrorists may well be highly preju- 
dicial to the peace, good order and security of a coastal State, and an argument 



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The Proliferation Security Initiative in the Maritime Domain 

could be made that such a passage is therefore not innocent, and the restrictions on 
coastal State authority over the passing vessel are removed. 

On the other hand, there may be goods on board of which the master and crew 
know little or nothing, and their only relationship with terrorists comes from an 
anonymous and unremarkable bill of lading. In these circumstances, it may seem 
unduly harsh to argue the vessel's right of innocent passage is open to question. 
However, the awareness of the crew does not render the vessel's cargo safe, nor 
make it any less of a security threat. The possible lack of knowledge of the crew 
should be a factor in their interaction with the boarding party, but should not be 
the determining factor in the ability of a coastal State to intercept the vessel. 

The ability of a coastal State to close territorial waters for essential security 
purposes on a temporary basis will not assist the PSI. Such closures are to be non- 
discriminatory in their application, and clearly this is not possible with the PSI. The 
PSI's objective is to interdict suspect vessels, not to institute what resembles a 
blockade and compel the inspection of every passing ship. Further, Article 25(3) is 
intended to clear areas of the sea temporarily, not to authorize an inspection re- 
gime. 34 

Coastal State criminal jurisdiction, which would usually encompass prepara- 
tions to undertake terrorist activities, can also be exercised under Article 27 of the 
Law of the Sea Convention for vessels passing through the territorial sea. This can 
occur in four circumstances: 

(a) if the consequences of the crime extend to the coastal State; 

(b) if the crime is of a kind to disturb the peace of the country or the good 
order of the territorial sea; 

(c) if the assistance of the local authorities has been requested by the master 
of the ship or by a diplomatic agent or consular officer of the flag State; or 

(d) if such measures are necessary for the suppression of illicit traffic in 
narcotic drugs or psychotropic substances. 35 

Of these categories, only (a) and (b) will be of direct relevance to the PSI, since if 
the master or flag State seeks assistance as in (c), there is no issue of legality. For (a) 
and (b), it may be conspiracy to commit a terrorist act and preparatory steps to- 
wards such an act, the consequences of which might extend to the coastal State, or 
disturb its peace or good order that are the criminal matters. However, the materi- 
als may be intended for a third State, which nullifies Article 27, which is specific to 
the coastal State. 

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Stuart Kaye 

For transit passage and archipelagic sea lanes passage, the same concerns apply, 
save that such passage cannot be interrupted for any reason, not even the essential 
security concerns of the coastal State. This would make the stopping of a vessel in 
an international strait or archipelagic sea lane of greater significance. Further, the 
categories of applicable coastal State law to such vessels, as described in Article 42, 
are more limited than those for innocent passage. However, Article 39 does require 
vessels to refrain from any violation of the principles of the United Nations Char- 
ter, as in Article 19, so the above discussion there would similarly be applicable. 36 

Interception in the Contiguous Zone 

The PSI also includes interdiction within the contiguous zone of a participating 
coastal State. This raises additional issues with respect of freedom of navigation. 
While vessels in the territorial sea are obliged to observe the regime of innocent 
passage or be subject to the wider law of the coastal State, the contiguous zone is 
unfettered by such concerns. 

Beyond the territorial sea, the Law of the Sea Convention also confirms there is 
freedom of navigation for all vessels. Article 87 provides: 

1. The high seas are open to all States, whether coastal or land-locked. 
Freedom of the high seas is exercised under the conditions laid down by 
this Convention and by other rules of international law. It comprises, 
inter alia, both for coastal and land-locked States: 

(a) freedom of navigation; 

(b) freedom of overflight; 

(c) freedom to lay submarine cables and pipelines, subject to Part VI; 

(d) freedom to construct artificial islands and other installations 
permitted under international law, subject to Part VI; 

(e) freedom of fishing, subject to the conditions laid down in section 2; 

(f) freedom of scientific research, subject to Parts VI and XIII. 

2. These freedoms shall be exercised by all States with due regard for the 
interests of other States in their exercise of the freedom of the high seas, 
and also with due regard for the rights under this Convention with 
respect to activities in the Area. 



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The Proliferation Security Initiative in the Maritime Domain 

The impact of this provision finds its way into the regime of the EEZ by virtue of 
Article 58, which expressly incorporates rights of freedom of navigation and over- 
flight. While a coastal State has additional jurisdictional reach in the contiguous 
zone, it is part of the EEZ and the navigational freedoms which exist on the high 
seas and the EEZ apply there as well. 

In terms of jurisdiction, under Article 33(1) of the Law of the Sea Convention 
the contiguous zone grants a coastal State power over four types of activity: 

In a zone contiguous to its territorial sea, described as the contiguous zone, 
the coastal State may exercise the control necessary to: 

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws 
and regulations within its territory or territorial sea; 

(b) punish infringement of the above laws and regulations committed within 
its territory or territorial sea. 

Were WMD destined to be imported into the coastal State for use in a terrorist 
attack, it would seem to fall clearly within the rubric of prevention of infringement 
of customs and possibly immigration laws and regulations 37 under Article 33. The 
coastal State could therefore argue a right to stop, search, and seize was necessary to 
uphold its customs laws, and prevent the delivery of highly dangerous and undesir- 
able materials to its territory. 

A more difficult situation arises where the WMD are destined for another State. 
It would not be open to a coastal State to assert its customs laws were to be in- 
fringed by a passing vessel carrying WMD, as the vessel's master might never have 
had any intention to enter the territorial sea of the coastal State. It would seem an 
unreasonable expansion of Article 33 to have it include not mere prevention of in- 
fringement of customs of the coastal State, but of other States as well. This is partic- 
ularly the case given the freedom of navigation guaranteed for vessels in the 
contiguous zone, as a foreign flag vessel will have breached no law of the coastal 
State, and should be entitled to transit through the zone without interference. 

Self-Defense and the Use of Force 

Utilizing the PSI, based on application of the doctrine of self-defense and the use of 
force in international law raises a number of issues. Among these issues are 
whether the transfer of WMD might amount to a preparatory act to the use of force 
that might permit intervention by the PSI States, and whether the interdiction of 
suspected WMD vessels amounts to a use of force in the sense it is used in the 



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Stuart Kaye 

United Nations Charter. In order to explore these effectively, it is necessary to con- 
sider the doctrine of self-defense in international law, and the use of force. 

Contemporary international law is predicated on the notion that the use of the 
force should be extremely limited, in an effort to promote international peace 
and security. One of the most significant changes to the international law sur- 
rounding armed conflict over the past 150 years has been the effective abolition of 
the right of States to use force against others in pursuance of their territorial or 
diplomatic aims. This restriction is explicitly restated in the United Nations 
Charter in Article 2(4): "All Members shall refrain in their international relations 
from the threat or use of force against the territorial integrity or political inde- 
pendence of any State, or in any other manner inconsistent with the Purposes of 
the United Nations." This ban is only modified by the authorization to use force 
when approved by the Security Council under Chapter VII of the United Nations 
Charter in order to preserve international peace and security, or, with notifica- 
tion to the Security Council, in the exercise of a right of individual or collective 
self-defense under Article 51 of the Charter. 38 

One issue for the PSI is whether interdictions of vessels constitute an unautho- 
rized use of force. In stopping and searching a vessel, there may be the necessity to 
use force, in circumstances where the vessel refuses to heave to and its crew resists 
the boarding. If the flag State is not a PSI State, and has not given its consent to the 
boarding, it is likely that some degree of force will have to be used to take control of 
and search the suspect vessel. 

However, it is important to note that the prohibition on the use of force con- 
tained in Article 2(4) of the Charter is not a blanket restriction on the use of force, 
but rather is a prohibition of the use of force "against the territorial integrity or po- 
litical independence of any State, or in any other manner inconsistent with the Pur- 
poses of the United Nations." Clearly the PSI does not infringe the territorial 
integrity of a State, unless the ship was considered part of its territory, which in this 
context would seem inappropriate. Even if a State can exercise prescriptive and en- 
forcement jurisdiction over its vessels on the high seas, it cannot exercise its en- 
forcement jurisdiction within the territorial sea of another State. The ship can 
hardly be said to be integral to the territory of its flag State, if the State cannot un- 
dertake efforts to enforce its law in certain locations. Similarly, the political inde- 
pendence of a State is unlikely to be threatened by unusual instances of vessels 
being stopped and boarded in the territorial sea of another State. 

The key issue is whether such a boarding would be inconsistent with the Pur- 
poses of the United Nations. Certainly the United Nations is dedicated to the 
maintenance of international peace and security, and this is not inconsistent with 
the stated aims of the PSI. This is underscored by the fact that the Security Council 

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The Proliferation Security Initiative in the Maritime Domain 

has considered the PSI and has adopted Resolution 1540, which supports some as- 
pects of its operation. What is needed is a careful and considered approach to the 
issue of boardings pursuant to the PSI to ensure there is never any question that 
they are being undertaken in a fashion that would run afoul of the principles of the 
United Nations. 

If force can be used, there is also a requirement it be in proportion to the inter- 
ference with the sovereignty of the State concerned. 39 This concept finds support in 
the Caroline Principles, 40 and also has been used by the International Court of Jus- 
tice: "[T]here is a specific rule whereby self-defense would warrant only measures 
which are proportional to the armed attack and necessary to respond to it, a rule 
well established in customary international law." 41 

In the case of the PSI, it is submitted the level of force used is relatively slight. A 
ship after it has been boarded and searched, can be permitted to continue on its 
way, 42 and if wrongfully detained, be the subject of a compensation claim by the 
flag State against the detaining State. In proportion to the potential harm of an at- 
tack which WMD would cause, the interference with the flag State is minimal. 

Anticipatory Self-Defense 

The controversial doctrine of anticipatory self-defense is also potentially of appli- 
cation. The doctrine is based on the notion that the use of WMD leads to such de- 
structive consequences for the State liable to imminent attack, that it ought to be 
able to utilize conventional weapons to remove the threat. Waiting until an actual 
attack may effectively be too late, as the State attacked might be largely destroyed or 
have millions of its citizens killed. In response, a small-scale conventional attack to 
remove the threat, it can be argued, is a reasonable compromise. 

The response to this notion is that it is predicated on the imminent attack of one 
State on another, an event that may never occur. The possession of weaponry and a 
climate of international tension do not necessarily demonstrate an intention to 
launch a hostile and devastating attack in the near future. 43 Further, the use of an- 
ticipatory self-defense would not seem to advance international peace and security, 
as it uses the suspicion of an imminent attack, rather than the reality of such an at- 
tack, as the justification for the use of force. There does not appear to be any sup- 
port for the concept directly within the United Nations Charter. 44 

Anticipatory self-defense is supported by relatively few States in international 
law, and there are few instances of State practice relying upon it, at least since the 
end of World War II. 45 One of the more direct examples of it came on June 7, 1981, 
with the Israeli attack upon the Iraqi nuclear facility at Osiraq, outside of Baghdad. 
Israel had argued that the facility would have given Iraq the ability to manufacture 
nuclear weapons in the near future, and it was the most likely target for the use of 

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Stuart Kaye 

such weapons. 46 Most of the international community rejected Israel's position, 
including a large number of the PSI States, 47 and there has been no change in this 
viewpoint evident in the international community since 1988. Concerns that the 
doctrine was too fluid with difficulties of what might be judged as imminent, 48 
harmful to world peace in potentially authorizing unprovoked attacks on States 
suspected of having WMD they might wish to use, and capable of misapplication 
by States seeking an excuse to attack their neighbors are cited for the lack of any rise 
in support for anticipatory self-defense. 49 While academic opinion on the issue is 
divided, there is a not insubstantial volume of scholarship against the validity of the 
doctrine. 50 

In theory, the doctrine of anticipatory self-defense could be adapted to the in- 
terdiction of vessels. A PSI State could argue that the shipping of WMD to a terror- 
ist organization would lead to attack by that terrorist organization on the PSI State 
or its allies, and therefore stopping and boarding suspect vessels and removing 
WMD would be incidental to aiding in the defense of that State from an imminent 
attack, albeit at some undefined point of time in the future, and not necessarily on 
the State itself. 

It is submitted that such an argument would not be acceptable to the bulk of the 
international community, including most of the PSI States. The uncertainty as to 
the date and location of a terrorist attack would make it difficult to meet the re- 
quirement of the imminent nature of the threat. The international repugnance sur- 
rounding the doctrine of anticipatory self-defense would be sufficient to ensure 
that none of the PSI States would seek to use it to justify their PSI activities, if any 
other ground was available. 

Necessity 

One approach to the PSI that could be used to justify interdiction of vessels is the 
doctrine of necessity. Necessity has been the subject of consideration by interna- 
tional legal scholars for some decades, and is neatly dealt with in the International 
Law Commission's Draft Articles on Responsibility of States for Internationally 
Wrongful Acts. Article 25 of the Draft Articles provides that an otherwise unlawful 
act of a State can be justified if it meets two criteria: (a) the act was the only means 
of safeguarding an essential interest of the State against a grave and imminent peril; 
and (b) the act does not seriously impair an essential interest of the State towards 
which the obligation existed. 51 This principle has more than just the imprimatur of 
the International Law Commission to support its status within public interna- 
tional law. The identical predecessor of Article 25, Article 33 of the Draft Articles 
on State Responsibility, 52 was cited with approval by the International Court of 



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The Proliferation Security Initiative in the Maritime Domain 

Justice in the Gabcikovo-Nagymaros Project case, 53 and was itself cited with ap- 
proval by the International Tribunal for the Law of the Sea in M/V Saiga (No. 2). 54 

When applied to the PSI, necessity can provide a justification for actions that 
might otherwise be unlawful at international law. While it is clear that much of the 
PSI in relation to interdiction is valid, such as the interception of vessels flying the 
flag of a PSI State, or where there is a treaty between the flag State and the PSI 
States, such as between Liberia, Panama and the United States, some aspects of its 
operation maybe problematic. The interception of a vessel, flagged in a third State, 
government operated and on a non-commercial charter, while exercising a right of 
innocent passage, is one example where the legality of the stop and search of a sus- 
pect vessel presents difficulties. 

In such a situation, a PSI State could note that the only way to prevent the transit 
of WMD to a non-State actor would be to stop a vessel en route at sea in its waters, 
meeting the first of the criteria in Article 25. Certainly the possession of WMD by 
hostile terrorists would amount to a "grave and imminent peril" to the State. On 
the second criterion, provided the vessel was released and allowed to continue, al- 
beit without its deadly cargo, the essential interests of the flag State would not be se- 
riously impaired. 

The PSI States have not shown much enthusiasm for utilizing necessity as a 
means to legitimize possible operations under the Initiative. This may be the case 
for a number of reasons. First, the Draft Articles remain contentious, and there 
might be a reluctance by some PSI States to show direct support for part of a docu- 
ment about which they have serious reservations. Second, to rely upon the concept 
of necessity would be a tacit admission that some contemplated actions under the 
PSI are unlawful. As the Initiative is designed to combat unlawful behavior, and is 
seeking to gain as much support from the international community as possible, it 
may not be politic for the PSI States to indicate that the PSI might in certain cir- 
cumstances encompass unlawful action. This would be particularly the case for the 
United States, Britain and Australia, where the lawfulness of the intervention in 
Iraq by the "Coalition of the Willing" has become a major political issue, and the 
governments of those three States might be unwilling to highlight the lawfulness or 
otherwise of future measures in the global "war on terror." 

A present unwillingness to utilize arguments based on necessity would not nec- 
essarily preclude their use in the future to justify an interception. In the face of the 
aftermath of action against a third State vessel, where WMD had been found, the 
PSI States would seemingly have a strong argument that even if other justifications 
for interdiction had failed, necessity would cure the legitimacy of their action. 
Whether necessity would operate to provide such protection in the event WMD 
were not found is not so simple, as without WMD in the mix, it is difficult to 

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Stuart Kaye 

construct what the "grave and imminent peril" to the interest of the coastal State 
might be. 

Security Council Resolution 1540 

Another possible justification for the PSI might be derived from Security Council 
Resolution 1540. As already noted in the context of self-defense, one of the legiti- 
mate ways for a State to utilize force against another is through the adoption of a 
resolution by the Security Council, authorizing the use of force. The Council may 
make such a resolution pursuant to Chapter VII of the United Nations Charter, if it 
feels the application of force would assist in combating a threat to international 
peace and security. 55 

However, while the Security Council could pass a resolution seeking to search 
and detain vessels suspected of carrying WMD bound for non-State actors, as such 
vessels would clearly constitute a threat to international peace and security, it has 
not done so to the present point in time. Resolution 1540 extols States not to per- 
mit the transit of WMD to non-State actors, but it does not create any positive duty 
upon States to undertake interdiction of such vessels. Indeed, the resolution only 
goes so far as to authorize actions which are "consistent with international law." 56 
The PSI States may contend that the Initiative is of itself lawful, and therefore is 
consistent with Resolution 1540, which appears to be the case, but it does not pro- 
vide for an explicit authorization of interdiction that would otherwise be unlawful. 

One additional point in relation to Security Council Resolution 1540 can be 
made. Were an unlawful interdiction to take place, and WMD discovered to be on 
board, even if the interdiction was unlawful, the presence of WMD would mean 
the flag State was in material breach of a Security Council resolution. While not ad- 
vocating the adoption of two international wrongs making a right into the lexicon, 
one imagines that the issue of the interdiction would be regarded as secondary at 
the political level, in comparison to the tremendous risk to international peace and 
security posed by the shipment itself. 

Interaction of the PSI with the Law of the Sea Convention 

Sovereign Immunity 

One great challenge to the operation of the PSI comes from the operation of the 
doctrine of sovereign immunity. The doctrine is one of great age and significance 
within the law of the sea, requiring that warships and government vessels on non- 
commercial service be considered inviolate at international law. A warship is ex- 
empt from the operation of law of a port State or coastal State, unless its com- 
mander voluntarily permits the application of such law. If the warship breaches the 

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The Proliferation Security Initiative in the Maritime Domain 

law of a coastal State, no sanction can be imposed directly on it, nor can it be 
stopped or boarded. The only measure permitted is an order directing the immedi- 
ate departure of the vessel from the territorial waters of the coastal State. Any harm 
it may have caused can only be the subject of international claim. 

The rules with respect to sovereign immunity of vessels have their origins back 
in history well prior to the 20th century. An attempt at codification of the old rules 
took place in the 1920s, and led to the adoption of the International Convention 
for the Unification of Certain Rules concerning the Immunity of State-owned 
Ships. 57 Article 3(1) of that Convention provides that warships, State-owned ves- 
sels on non-commercial service, hospital ships, fleet auxiliaries, and other vessels 
are to receive immunity in respect of claims brought against them. Such protection 
is confirmed in the Law of the Sea Convention, which provides explicit protection 
for such vessels on the high seas in Articles 95 and 96, and in the context of the ter- 
ritorial sea in Part II, section 3(C). These provisions make it clear that only flag 
States have jurisdiction over sovereign immune vessels, and that in the event of the 
vessel breaching an applicable law of the coastal State, there is flag State responsi- 
bility for such breaches, but the only action permissible against the vessel itself is to 
require it to leave immediately. 58 

Interference with a sovereign immune vessel, without the consent of the flag 
State, would amount to a clear breach of international law. For PSI States, this has 
the potential to be a serious problem. While it is unlikely that a State would ship 
WMD to non-State actors on a warship, there is a possibility of a State-owned ves- 
sel, on non-commercial service being used in such a fashion, particularly in the 
case of a communist State where most vessels will be State-owned. While the Eng- 
lish courts have been prepared to look behind the activity a vessel is engaged in to 
determine its status, 59 a third State actively engaged in supplying WMD to terror- 
ists is likely to claim sovereign immune status. 60 

It is submitted that the potential use of sovereign immune vessels to ship WMD 
to non-State actors represent the greatest challenge posed by the PSI to the law of 
the sea. Such vessels cannot, under international law, be interfered with by port 
States or coastal States without the consent of the flag State or the master. The PSI 
States will have a difficult decision to make in considering whether to act against 
such a vessel and thereby potentially undermine the status of their own naval ves- 
sels elsewhere in the world. 

Freedom of Navigation 

Of distinct concern is the impact of the PSI on security notifications. A number of 
States have asserted that prior to entry into their territorial waters, foreign flagged 
vessels are obliged to give notice of their passage. 61 Most restrict this to foreign 

156 



Stuart Kaye 

warships, but some, notably North Korea, require it in the case of any foreign ves- 
sel. The reason most frequently cited for such action is that it is incidental to the se- 
curity of the coastal State, and a transiting foreign warship passing close to the 
littoral State without prior warning represents a security threat. There is no author- 
ity in the Law of the Sea Convention to support such an interpretation. 

For the maritime powers, this could set an awkward precedent. The PSI would 
be encouraging them to stop and search vessels that posed a security risk because of 
the possible presence of WMD on board. A similar description, from the point of 
view of China or North Korea could describe a US, British or French warship in 
their territorial waters. The warship might be carrying WMD, in the form of nu- 
clear weapons, and may also be seen as a threat to the coastal State's security. In 
comparison to stopping and searching the vessel, the requirement of a warning 
seems relatively modest, and in time, this may provide support to the security 
warning advocates. Such a result would not be a desirable one to the maritime 
powers, most of whom are PSI States. 

In its present form, with the lack of a binding treaty, and the reiteration that it is 
consistent with international law, the PSI does not erode the position of the mari- 
time powers with respect to security notification. Unless and until an actual inter- 
ception, without some other ground based on flag or port State control, takes place 
and the maritime powers assert the legality of their actions, those States seeking se- 
curity notification will remain without concrete action upon which to base their 
objections. 

Military Exercises 

The issue of military activities, including surveillance, in the exclusive economic 
zone (EEZ) of another State is one not directly dealt with in the Law of the Sea Con- 
vention. 62 While the Convention makes it plain that military exercises and weap- 
ons testing in the territorial sea of a coastal State would be contrary to the regime of 
innocent passage, there is no equivalent restriction articulated with respect to other 
maritime zones. However, neither is there any specific authorization with respect 
to such activities, which are not included within the Article 87 of the Law of the Sea 
Convention list of freedoms. 

The lack of direct reference to military activities is not fatal to the case for the 
conduct of such exercises in the EEZ of another State. The rights listed in Article 
87(1) are by no means an exhaustive list, and are merely specifically enunciated ex- 
amples. This is explicit in the use of the phrase "inter alia." Further, the freedoms of 
the high seas are described as being subject to the conditions set down in the Con- 
vention and "other rules of international law." The use of this language makes it 



157 



The Proliferation Security Initiative in the Maritime Domain 

clear that the Law of the Sea Convention is not intended to be the only source of law 
in relation to the use of the high seas or EEZ. 

If the case for freedom to undertake military exercises in another State's EEZ can 
be made, it is clearly subject to some qualification. For this the crux of the issue will 
essentially turn on the meaning of the phrase "with due regard." This qualification 
is applied to high seas freedoms generally in Article 87(2), and it would seem logi- 
cal that one must have due regard to the rights of others while navigating through 
the EEZ. 63 

One issue that could be relevant in assessing the legitimacy of interdiction under 
the PSI in the contiguous zone relates to whether passage by a suspect vessel might 
constitute a threat to international peace and security, and therefore be illegitimate 
and capable of being intercepted. The Law of the Sea Convention provides limited 
assistance through Article 88 which provides: "The high seas shall be reserved for 
peaceful purposes." 

A wide reading of this provision would, in theory, see great limitation of the uses 
of warships on the high seas, and the potential circumscription on all military ac- 
tivities, particularly when read with the Preamble, which invokes the Convention's 
role in the furtherance of peace and security in the world, 64 suggesting only peace- 
ful uses of the sea are permissible. By extension this could be drawn into the EEZ, as 
Article 58 adopts the high seas freedoms in the Convention, and explicitly includes 
Article 88 in this list. 65 Similarly, the provisions with respect to marine scientific re- 
search under Part XIII of the Convention indicate that marine scientific research 
can only be undertaken for peaceful purposes. 66 A case could be made that military 
activity from the high seas or another State's EEZ were incompatible with the Law 
of the Sea Convention. 

Such an interpretation has not been favored by many States or publicists. 67 The 
San Remo Manual on Armed Conflicts at Sea, which sought to update and consoli- 
date the law of armed conflict at sea, makes it clear that armed conflict at sea can 
take place on the high seas, and, in certain circumstances, in the EEZ of a neutral 
State. 68 The Manual provides that belligerents must have due regard to the uses to 
which another State may wish to put its EEZ and avoid damage to the coastal State. 

If the motivation for interception is international security, then an argument 
may be placed in the hands of those States that claim military exercises cannot le- 
gitimately take place in their EEZs. Such States have typically observed that foreign 
military activity prevents them from utilizing their EEZ and is a threat to the secu- 
rity of the sovereign rights they possess in the EEZ. If security concerns can over- 
ride navigational rights under the PSI, these States may have a stronger case to 
argue that security and due regard are inconsistent, and that permission should be 
sought to exercise in the EEZ. This is particularly the case in so-called "security 

158 



Stuart Kaye 

zones" that may be attached to the contiguous zones of some States. These have 
been the subject of protest by the United States and other maritime States. 69 

Conclusion 

The PSI represents a practical solution to the threats posed by the changed security 
environment since the 9/11 attacks. By virtue of the speed and manner of its intro- 
duction, it is yet to be structured into formally binding obligations within interna- 
tional law. Were it to be implemented, to the full extent indicated in its interdiction 
principles, it could be justified, albeit not without difficulty under international 
law. However, the implications of that justification would create challenges which 
the law of the sea would struggle to accommodate, and might create precedents 
which would undermine key principles the maritime powers would not wish to see 
damaged. 

Notes 

1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 833 U.N.T.S. 396 
[hereinafter Law of the Sea Convention]. 

2. President Bush stated: 

When weapons of mass destruction or their components are in transit, we must have 
the means and the authority to seize them. So today I announce a new effort to fight 
proliferation called the Proliferation Security Initiative. The United States and a 
number of our close allies, including Poland, have begun working on new agreements 
to search planes and ships carrying suspect cargo and to seize illegal weapons or missile 
technologies. Over time, we will extend this partnership as broadly as possible to keep 
the world's most destructive weapons away from our shores and out of the hands of our 
common enemies. 

Available at http://www.whitepages.gov/news/releases/2003/05/2003053 l-3.html. 

3. Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the 
United Kingdom and the United States. 

4. As of the date of this writing, the additional States are Canada, Denmark, Norway, Russia, 
Singapore and Turkey. 

5. See paragraph 2, Chairman's Statement, First Anniversary Proliferation Security Initiative 
Meeting, Krakow, Poland, May 31 - June 1, 2004, available at http://www.dfat.gov.au/security/ 
statements/ 1 st_psi_chairmans_statement_04060 1 .html. 

6. Paragraph 1 of the Statement of Interdiction Principles calls on all concerned States to: 

Undertake effective measures, either alone or in concert with other states, for 
interdicting the transfer or transport of WMD, their delivery systems, and related 
materials to and from states and non-state actors of proliferation concern. "States or 
non-state actors of proliferation concern" generally refers to those countries or entities 
that the PSI participants involved establish should be subject to interdiction activities 
because they are engaged in proliferation through: 



159 



The Proliferation Security Initiative in the Maritime Domain 

(a) efforts to develop or acquire chemical, biological, or nuclear weapons and 
associated delivery systems; or 

(b) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, 
or related materials. 

Available at http://www.dfat.gov.au/globalissues/psi/psi_statement.html. 

7. Paragraph 2 of the Interdiction Principles calls on all concerned States to: "Adopt 
streamlined procedures for rapid exchange of relevant information concerning suspected 
proliferation activity, protecting the confidential character of classified information provided by 
other states as part of this initiative, dedicate appropriate resources and efforts to interdiction 
operations and capabilities, and maximize coordination among participants in interdiction 
efforts." Id. 

8. Paragraph 3 of the Interdiction Principles calls on all concerned States to: "Review and work 
to strengthen their relevant national legal authorities where necessary to accomplish these 
objectives, and work to strengthen when necessary relevant international laws and frameworks 
in appropriate ways to support these commitments." Id. 

9. Available at http://www.dfat.gov.au/globalissues/psi/psi_statement.html. 

10. Agreement between the Government of the United States of America and the Government 
of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of 
Mass Destruction, their Delivery Systems, and Related Materials by Sea, Feb. 11, 2004, available 
at http://www.state.gOv/t/np/trty/32403.htm. Amendment to the Supplementary Arrangement 
between the Government of the United States of America and the Government of the Republic 
of Panama to the Arrangement between the Government of the United States and the 
Government of Panama for Support and Assistance from the United States Coast Guard for the 
National Maritime Service of the Ministry of Government and Justice, May 12, 2004, available at 
http://www.state.gOv/t/np/trty/32858.htm. 

1 1 . Liberia will also have the right to inspect United States flag vessels, but it is unlikely this right 
will be exercised. 

12. Agreement Between the Government of the United States of America and the Government 
of Belize Concerning Cooperation to Suppress the Proliferation of Weapons of Mass 
Destruction, Their Delivery Systems, and Related Materials By Sea, Aug. 4, 2005, available at 
http://www.state.gOv/t/np/trty/50809.htm; Agreement Between the Government of the United 
States of America and the Government of the Republic of Cyprus Concerning Cooperation to 
Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related 
Materials By Sea, July 25, 2005, available at http://www.state.gOv/t/np/trty/50274.htm; 
Agreement Between the Government of the United States of America and the Government of the 
Republic of Croatia Concerning Cooperation to Suppress The Proliferation of Weapons of Mass 
Destruction, Their Delivery Systems, and Related Materials, June 1, 2005, available at http:// 
www.state.gOv/t/np/trty/47086.htm; Agreement Between the Government of the United States 
of America and the Government of the Republic of the Marshall Islands Concening Cooperation 
to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and 
Related Materials by Sea, Aug. 1 3, 2004, available at http://www.state.gOv/t/np/trty/35237.htm. 

13. This omission was at the request of China. 

14. The PSI arrangements explicitly state the Initiative is to be consistent with international law. 
See http://www.dfat.gov.au/globalissues/psi/psi_statement.html. 

15. See, e.g., Muscat Dhows Case (1905) 9 UNRIAA 83, reprinted in 2 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 921 (1908); S.S. Lotus (Fr. v. Turk.), 1927P.CI.J. (ser. A) No. 10(Sept.7). 
See also IVAN A. SHEARER, STARKE'S INTERNATIONAL LAW ( 1 1th ed. 1994); ROBIN R. CHURCHILL 

and A. Vaughn Lowe, The Law of the Sea 205-209 (2d ed. 1988). 

160 



Stuart Kaye 

16. See Law of the Sea Convention, supra note 1, arts. 91 and 92. 

17. Id., art. 94. 

18. A shipowner could also direct a vessel that it heave to, be boarded and to proceed to a 
designated port, providing the flag state did not object, as was the case with the BBC China. For 
the facts surrounding the interception and boarding of the BBC China, see Mark Esper & Charles 
Allen, The PSI: Taking Action Against WMD Proliferation, 10 THE MONITOR 4, 6 (Spring 2004). 
See also discussion at Michael Byers, Policing the High Seas: The Proliferation Security Initiative, 
98 AMERICAN JOURNAL OF INTERNATIONAL LAW 526, 529 (2004). 

19. If a port were not already within the internal waters of a State, by virtue of being in a closed 
bay or river, the Law of the Sea Convention allows areas associated with ports to be enclosed by 
territorial sea baselines. Article 11 provides that harbor works and other areas "forming an 
integral part of the harbor system" may be enclosed, while Article 12 explicitly permits the 
enclosure of roadsteads. 

20. See The Creole, Moore's International Arbitration 4375; but cf. The Rebecca, United States- 
Mexican Claims Commission [1929-1930] No. 82. 

21. See Patterson v. The Eudora, 190 U.S. 169 (1903). 

22. Van Dyke notes that seizures of suspect materials from ports have already taken place in 
States associated with the PSI. Taiwan seized dual-use chemicals from a North Korean vessel in 
Kaohsiung, and Japanese authorities have searched North Korean vessels when in Japanese 
ports. Jon M. Van Dyke, Balancing Navigational Freedom with Environmental and Security 
Concerns, COLORADO JOURNAL OF INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 19, 26 
(2003). 

23. Bull Inter Caertera of Pope Alexander VI, May 4, 1493, available at http:// 
bullsburning.itgo.eom/essays/Caetera.htm#theBull. 

24. Treaty of Tordesillas, June 7, 1494, reproduced at http://www.yale.edu/lawweb/avalon/ 
modeur/modOO 1 .htm. 

25. C. JOHN COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 48-49 (6th ed. 1967); RENE- 

Jean Dupuy & Daniel Vignes, A Handbook of the New Law of the Sea 64-65 (1991). 

26. Hugo Grotius, Mare Liberum: The Freedom of the Seas or the Right which 

BELONGS TO THE DUTCH TO TAKE PART IN THE EAST INDIAN TRADE (Ralph Van Damen 
Magoffin trans., 1916) (1609). 

27. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 516 U.N.T.S. 205. 

28. Convention on the High Seas, Apr. 29, 1958, 450 U.N.T.S. 82. 

29. Convention on the Continental Shelf, Apr. 29, 1958, 499 U.N.T.S. 311. 

30. Corfu Channel (UK v. Albania), Merits, 1949 I.C.J. 4, 28 (Apr. 9). 

31. See infra pp. 157-59. 

32. Law of the Sea Convention, supra note 1, art. 25(3). 

33. Article 19(2) of the Law of Sea Convention also provides, inter alia: 

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or 
security of the coastal State if in the territorial sea it engages in any of the following 
activities: 

(a) any threat or use of force against the sovereignty, territorial integrity or political 
independence of the coastal State, or in any other manner in violation of the principles 
of international law embodied in the Charter of the United Nations. 

34. See generally 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A 
COMMENTARY 232-233 (Myron H. Nordquist ed., 1993) [hereinafter Commentary]. 

35. Law of the Sea Convention, supra note 1, art. 27(1). 



161 



The Proliferation Security Initiative in the Maritime Domain 

36. Articles 39 and 42 of the Law of the Sea Convention apply to transit passage. For archipelagic 
sea lanes passage, Article 54 provides: "Articles 39, 40, 42 and 44 apply mutatis mutandis to 
archipelagic sea lanes passage." 

37. Immigration laws might pertain to a situation where terrorists accompanied the WMD 
aboard the ship. 

38. Article 51 of the Charter provides: 

Nothing in the present Charter shall impair the inherent right of individual or collective 
self-defense if an armed attack occurs against a Member of the United Nations, until the 
Security Council has taken measures necessary to maintain international peace and 
security. Measures taken by Members in the exercise of this right of self-defense shall be 
immediately reported to the Security Council and shall not in any way affect the 
authority and responsibility of the Security Council under the present Charter to take at 
any time such action as it deems necessary in order to maintain or restore international 
peace and security. 

39. See ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL 
OPERATIONS 402 305 (A. Ralph Thomas and James C. Duncan eds., 1999) (Vol. 73, US Naval 
War College International Law Studies). See also SAN REMO MANUAL ON INTERNATIONAL LAW 
APPLICABLE TO ARMED CONFLICTS AT SEA 76-77 (Louise Doswald-Beck ed., 1995) 76-77; 
Thomas Graham Jr., Is International Law Relevant to Arms Control?: National Self-Defense, 
International Law, and Weapons of Mass Destruction, 4 CHICAGO JOURNAL OF INTERNATIONAL 
LAW 1,6-9 (2003). 

40. See the discussion in Robert Y. Jennings, The Caroline and McLeod Cases, 32 AMERICAN 
JOURNAL OF INTERNATIONAL LAW 82 (1938). 

41. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 
I.C.J. 14, 94, (June 27); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 
1996 I.C.J. 226, 245 (July 8). 

42. This occurred with the detaining and subsequent release of a North Korean vessel carrying 
missiles bound for Yemen. After it was clear no treaty violation was taking place, and Yemen was 
procuring the weapons for its own defense, the vessel was allowed to continue by the detaining 
Spanish warships. See Van Dyke, supra note 22, at 25-27. 

43. A number of eminent publicists have given qualified support to the concept of anticipatory 
self-defense in the context particularly of the imminent use of nuclear weapons against a State. 
See Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al- 
Qaida, and Iraq, 4 SAN DIEGO INTERNATIONAL LAW JOURNAL 7, 14-1 5 (2003). See also THOMAS 

M. Franck, Recourse to Force 102-107 (2002) and l Oppenheim's International Law 
421 (Robert Jennings & Arthur Watts eds., 1994) who have argued that there is a right of 
anticipatory self-defense against an imminent armed attack. See also ROSALYN HlGGINS, 
Problems and Process: International Law and How We Use It 242 (1994). 

44. Michael Glennon has argued the Charter is ill equipped to deal with the issue of fighting 
terrorists, in part because it does not deal with anticipatory self-defense. Michael J. Glennon, 
Military Action Against Terrorists under International Law: The Fog of Law: Self-Defense, 
Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 HARVARD JOURNAL OF 
Law and Public Policy 539, 552-553 (2002). 

45. Michael J. Kelly, Time Warp to 1945 - Resurrection of the Reprisal and Anticipatory Self- 
Defense Doctrines in International Law, 13 JOURNAL OF TRANSNATIONAL LAW AND POLICY 1,31 
(2003). 

46. See the statements by the Israeli Ambassador to the United Nations extracted in id. at 30. 



162 



Stuart Kaye 

47. See Security Council Resolution 487 of June 19, 1981. This resolution condemned the Israeli 
attack, and was adopted by the Council unanimously. 

48. See Greenwood, supra note 43, at 15-16. 

49. See John Quigley, A Weak Defense of Anticipatory Self-Defense, 10 TEMPLE INTERNATIONAL 
AND COMPARATIVE Law JOURNAL 255, 257 (1996). See also Byard Q. Clemmons & Gary D. 
Brown, Rethinking International Self-Defense: The United Nations' Emerging Role 45 NAVAL LAW 
REVIEW 217, 229 (1998). 

50. See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 257-276 

(1963); Louis Henkin, How Nations Behave: Law and Foreign Policy 141-144 (1979); 
Christine Gray, International Law and The Use of Force 1 12 (2000). 

5 1 . Draft Articles on Responsibility of States for internationally wrongful acts, in Report of the 
International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., 
Supp. No. 10, UN Doc. A/56/10 (2001), available at http://www.un.org/law/ilc/texts/ 
State_responsibility/responsibility_articles(e).pdf. 

52. 2 Yearbook of the International Law Commission 58, UN Doc. A/CN.4/SER.A/ 
1996/Add.l (Part 2). 

53. Gabcikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. 7, 40-41 (Sept. 25). 

54. M/V "Saiga" (No. 2) (St. Vincent & the Grenadines v. Guinea) (International Tribunal for 
the Law of Sea, July 1, 1999), at paragraph 133, available at http://www.itlos.org/start2_en.html. 

55. See supra p. 147 and note 33. 

56. Operative paragraph 10 provides: "Further to counter that threat, calls upon all States, in 
accordance with their national legal authorities and legislation and consistent with international 
law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological 
weapons, their means of delivery, and related materials." 

57. International Convention for the Unification of Certain Rules Concerning the Immunity of 
State-owned Ships, Apr. 10, 1926, 176 L.N.T.S. 199 [hereinafter 1926 Brussels Convention]; 
Protocol additional to the International Convention for the Unification of Certain Rules relating 
to the Immunity of State-owned Vessels, May 24, 1937, 176 L.N.T.S. 215. 

58. Law of the Sea Convention, supra note 1, art. 30. 

59. The Philippine Admiral v Wallem Shipping (Hong Kong) Ltd [1977] AC 373. 

60. Article 5 of the 1 926 Brussels Convention, supra note 57, establishes a system whereby States 
can issue a certificate indicating the non-commercial status of the ship or cargo. 

61. China, for example, has enacted legislation (Article 13 of the Law of the Territorial Sea and 
the Contiguous Zone of February 25, 1992) that asserts its authority to exercise jurisdiction over 
security within the contiguous zone, and to seek prior notification of entry therein. This is 
rejected by the United States as inconsistent with Article 33 of the Law of the Sea Convention, 
which has no reference to a security jurisdiction in respect of the contiguous zone. The 1992 US 
protest is cited in ANNOTATED SUPPLEMENT, supra note 39, at 108. 

62. See e.g., George V. Galdorisi & Alan G. Kaufman, Military Activities in the Exclusive 
Economic Zone: Preventing Uncertainty and Defusing Conflict, 32 CALIFORNIA WESTERN 
Journal of International Law 253 (2002). 

63. See Francisco Francioni, Peacetime Use of Force, Military Activities, and the New Law of the 
Sea, (1985) 18 CORNELL INTERNATIONAL LAW JOURNAL 203, 215 (1985). See also 
COMMENTARY, supra note 34, at 553-565. 

64. The Preamble states in part: 

Prompted by the desire to settle, in a spirit of mutual understanding and co-operation, 
all issues relating to the law of the sea and aware of the historic significance of this 



163 



The Proliferation Security Initiative in the Maritime Domain 

Convention as an important contribution to the maintenance of peace, justice and 
progress for all peoples of the world 

and 

Believing that the codification and progressive development of the law of the sea 
achieved in this Convention will contribute to the strengthening of peace, security, co- 
operation and friendly relations among all nations in conformity with the principles of 
justice and equal rights and will promote the economic and social advancement of all 
peoples of the world, in accordance with the Purposes and Principles of the United 
Nations as set forth in the Charter. 

65. Galorisi & Kaufman, supra note 62, at 275-278. 

66. Article 240, Law of the Sea Convention provides: "In the conduct of marine scientific 
research the following principles shall apply: (a) marine scientific research shall be conducted 
exclusively for peaceful purposes." 

67. On this point, see DAVID J. ATTARD, THE EXCLUSIVE ECONOMIC ZONE IN INTERNATIONAL 
LAW 75 (1987); FRANCISCO ORREGO VICUNA, THE EXCLUSIVE ECONOMIC ZONE: REGIME AND 
NATURE UNDER INTERNATIONAL LAW 1 10—113 (1989); Galdorisi & Kaufmann, supra note 62, at 
274-276. 

68. San Remo Manual, supra note 39, at 8. 

69. For example, Pakistan has added security to the list of jurisdictional matters under its 
contiguous zone. See Territorial Waters & Maritime Zones Act, 1976, available at www.un.org/ 
Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PAK_1976_Act.pdf. The United States 
made a formal protest to Pakistan in 1996 in respect of this claim. China asserted jurisdiction 
in the contiguous zone over security matters in 1992 in the Law of the Territorial Sea and the 
Contiguous Zone of 25 February 1992, which was protested by the United States in 1992. Iran 
asserted a similar security zone by Note Verbale No. 152 transmitted to the United Nations. 
The United States protested this claim in 1994. See Maritime Claims Reference Manual, 
Department of Defense 2005. 1-M, available af http://www.dtic.mil/whs/directives/corres/html/ 
20051m.htm. With respect to China, see supra note 61. 



164 



PART IV 



CURRENT ISSUES IN OCCUPATION LAW 



VII 



Is There a "New" Law of 
Intervention and Occupation? 

Leslie C. Green* 



At least since the seventeenth century international law has accepted as a fun- 
damental principle that all States are equal, none enjoying sovereignty over 
any other. This principle has found expression in Vattel's famous aphorism: 

Since men are by nature equal, and their individual rights and obligations the same, as 
coming equally from nature, Nations, which are composed of men and may be 
regarded as so many free persons living together in a state of nature, are by nature equal 
and hold from nature the same obligations and the same rights. Strength or weakness 
in this case, count for nothing. A dwarf is as much a man as a giant is; a small Republic 
is no less a sovereign State than the most powerful Kingdom. 1 

As a consequence it has come to be accepted that a State is free to treat its nation- 
als as it pleases without interference from others, a principle which finds expres- 
sion in the domestic jurisdiction clause of the Charter of the United Nations: 

Nothing contained in the present Charter shall authorize the United Nations to 
intervene in matters which are essentially within the domestic jurisdiction of any state 
or shall require the Members to submit such matters to settlement under the present 
Charter; but this principle shall not prejudice the application of enforcement measures 



University Professor Emeritus, Honorary Professor of Law, University of Alberta, Canada. 



7s There a "New" Law of Intervention and Occupation? 

under Chapter VII [relating to acts of aggression and threats to or breaches of the 
peace]. 2 

Nevertheless, both doctrinal writings and States, especially the more powerful, 
have asserted a right of intervention and even occupation in "exceptional" 
circumstances. 

International law recognizes two forms of occupation of the whole or part of the 
territory of one State by the forces or governmental representatives of another. 
Occupatio pacifica is the basis of acquiring title to territory. 3 For the purpose of this 
paper, the term is used for the situation that takes place when the occupied entity 
has agreed to the occupation or it has been imposed without the use of force by an 
occupier or as a result of a multilateral treaty, although the threat to resort to force 
may be the deciding factor that induces the occupied entity to agree to the occupa- 
tion. Occupatio bellica ensues during or at the end of an armed conflict and, gener- 
ally speaking, is contrary to the wishes of the State occupied or is acquiesced in 
since there is no other option available to that State. 

Examples of occupation pursuant to agreement maybe seen in the treaties relat- 
ing to the independence of the successor principalities of the Ottoman Empire — 
Bulgaria, Montenegro, Roumania and Serbia — initiated by the 1878 Treaty of 
Berlin. In the case of Bulgaria, a provisional administration was established which: 

[S]hall be under the direction of an Imperial Russian Commissary until the 
completion of the Organic Law. An Imperial Turkish Commissary, as well as the 
Consuls delegated ad hoc by the other Powers, signatory of the present Treaty, shall be 
called to assist him so as to control the working of the provisional regime. In case of 
disagreement amongst the Consular Delegates, the vote of the majority shall be 
accepted, and in case of a divergence between the majority and the Imperial Russian 
Commissary or the Imperial Turkish Commissary, the Representatives of the 
Signatory Powers at Constantinople, assembled in Conference, shall give their 
decision. 4 

Article VII, in turn, provides that: 

The provisional regime shall not be prolonged beyond a period of nine months from 
the exchange of the ratifications of the present Treaty. When the Organic Law is 
completed the election of the Prince of Bulgaria shall be proceeded with immediately. 
As soon as the Prince shall have been installed, the new organization shall be put into 
force, and the Principality shall enter into the full enjoyment of the autonomy. 

To some extent this procedure seems to foretell the type of arrangement that 
followed the operations against Afghanistan and Iraq at the beginning of this 



168 



Leslie C. Green 



century. 5 The succession clauses in the Treaty of Berlin guaranteed protection to 
religious and other minorities in each of the States concerned, but they did not pro- 
vide for any form of direct sanction in the event of non-observance. In this, they 
differed from the view expressed by some of the "fathers" of international law, who 
envisaged the possibility of intervention by force, even resulting in occupation al- 
legedly on humanitarian grounds in favor of an oppressed people. Thus, Grotius 
was of the opinion that: 

The fact must also be recognized that kings, and those who possess rights equal to those 
of kings, have the right of demanding punishments not only on account of injuries 
against themselves or their subjects, but also on account of injuries which do not 
directly affect them but excessively violate the law of nature or of nations in regard to 
any persons whatsoever. . . . Truly, it is more honourable to avenge the wrongs of 
others rather than one's own, in the degree that in the case of one's own wrongs it is 
more to be feared that through a sense of personal suffering one may exceed the proper 
limit or at least prejudice his mind. . . . [Kjings, in addition to the particular care of 
their own state, are also burdened with a general responsibility for human society. . . . 
The final and most wide-reaching cause for undertaking wars on behalf of others is the 
mutual tie of kinship among men, which of itself affords sufficient ground for 
rendering assistance. ... If, further, it should be granted that even in extreme need 
subjects cannot justifiably take up arms [against their sovereign] . . . , nevertheless it 
will not follow that others may not take up arms on their behalf. 6 

Not all the "fathers" of international law would agree with Grotius in his view 
concerning the right of a State to punish another for committing crimes against 
natural law. Among these was Vattel who asked: 

Did not Grotius perceive that ... his view opens the door to all the passions of zealots 
and fanatics, and gives to ambitious men pretexts without numbers 7 ? . . . [However, i]f 
there should be found a restless and unprincipled Nation, ever ready to do harm to 
others, to thwart their purposes, and to stir up civil strife among their citizens, there is 
no doubt that all the others would have the right to unite together to subdue such a 
Nation, to discipline it, and even to disable it from doing further harm. . . . [But n]o 
foreign State may inquire into the manner in which a sovereign rules, nor set itself up as 
judge of his conduct. . . . If he . . . treats his subjects with severity it is for the Nation to 
take action; no foreign State is called on to amend his conduct and to force him to 

follow a wiser and juster course But if a prince, by violating the fundamental laws, 

gives his subjects a lawful cause for resisting him; if, by his insupportable tyranny, he 
brings on a national revolt against him, any foreign power may rightfully give 

assistance to an oppressed people who ask for its aid To give help to a brave people 

who are defending their liberties against an oppressor by force of arms is only the part 
of justice and generosity. . . . But this principle should not be made use of so as to 
authorize criminal designs against the peace of Nations As for those monsters who 



169 



Is There a "New" Law of Intervention and Occupation? 

under the name of sovereigns, act as a scourge and plague of the human race, they are 
nothing more than wild beasts, of whom every man may purge the earth. 8 

This last comment calls to mind President Bush's reference to certain States as con- 
stituting an "axis of evil." 9 

Pufendorf would not go as far as Grotius in granting a third State the right to in- 
tervene on behalf of foreign nationals, he nevertheless granted that right if the sub- 
jects themselves had good cause to revolt, 10 and, while he was critical of those: 

[W]ho say, that, when the king has degenerated into a tyrant, he can be stripped of his 
command and punished by the people . . . [but] no one should believe, however, that 
we grant a boundless licence to princes, and deliver over to them their subjects, from 
whom we have taken away every faculty of fighting back, like cattle to their pleasure, we 
are altogether of the opinion that, if, indeed, even an absolute prince should assume a 
mind utterly hostile towards his subjects, and openly seek their destruction without the 
appearance of justice, his subjects can rightly employ against him also the means 
customarily used against an enemy for the sake of defending their own safety. . . . 
[A]ssuredly, absolute princes can be punished neither for not running the state to suit 
the people, nor for private misdeeds. . . . But after they have assumed the person of 
enemies [by their actions against their people], the evils which, perchance are inflicted 
upon them by the right of war do not have the character of a punishment properly so 
called. . . . n [T]he safest principle to go on is, that we cannot lawfully undertake the 
defence of another's subjects, for any other reason than they themselves can rightfully 
advance, for taking up arms to protect themselves against the barbarous savagery of 
their superiors. . . . 12 [F]inally, when there is no other reason, common descent alone 
may be a sufficient ground for our going to the defence of one who is unjustly 
oppressed, and implores our aid, if we can conveniently do so. 13 

To a great extent the military operations undertaken by the United States and the 
United Kingdom against Iraq in 2003 were based on this type of reasoning, al- 
though the plea for intervention came not from oppressed inhabitants, but from 
political exiles. However, the subsequent occupation received general support, at 
least in the early days. 

By the nineteenth century respect for sovereignty was so highly regarded that 
writers generally were only willing to concede a right of intervention and possible 
occupation in the most exceptional of circumstances. Phillimore pointed out that: 

Intervention by one Christian State on behalf of Religion has . . . been practised and 
cannot be said, in the abstract, to be a violation of International Law. But what kind of 
Intervention? By remonstrance, by stipulation, by a condition in a Treaty concluding a 
war waged on other grounds. It may, perhaps, be justly contended that the principle 
might be pushed further; and that in the event of persecution of large bodies of men, on 
account of their religious belief, an armed intervention on their behalf might be as 

170 



Leslie C. Green 



warrantable in International Law, as an armed intervention to prevent the shedding 
of blood and protracted internal hostilities. . . . [N]o writer of authority upon 
International Law sanctions such an intervention, except upon the case of a positive 
persecution inflicted avowedly upon the ground of religious belief. 14 

Hall too was equally restrictive of the right: 

International law professes to be concerned only with the relations of states to each 
other. Tyrannical conduct of a government towards its subjects, massacres and 
brutality in a civil war, or religious persecution are acts which have nothing to do 
directly or indirectly with such relations. On what ground then can international law 
take cognizance of them? Apparently on one only, if it be competent to take cognizance 
of them at all. It may be supposed to declare that acts of the kind mentioned are so 
inconsistent with the character of a moral being as to constitute a public scandal, which 

the body of states, or one or more states as representative of it, are competent to suppress 

[Intervention for the purpose of checking gross tyranny or of helping the efforts of a 
people to free itself is very commonly regarded without disfavour. Again, religious 
persecution, short of a cruelty which would rank as tyranny, has ceased to be 
recognised as an independent ground of intervention, but is still used as between 
Europe and the East as an accessory motive, which seems to be thought by many 
persons as sufficiently praiseworthy to excuse the commission of acts in other respects 
grossly immoral. . . . [S]entiment has been allowed to influence the more deliberately 
formed opinion of jurists . . . [who] have imparted an aspect of legality to a species of 
intervention, which makes a deep inroad into one of the cardinal doctrines of 
international law [that of sovereign independence] . . . and which by the readiness to 
which it lends itself to the uses of selfish ambition becomes as dangerous in practice as 
plausible in appearance. It is unfortunate that publicists have not laid down broadly 
and unanimously that no intervention is legal, except for the purpose of self- 
preservation, unless a breach of the law as between states has taken place, or unless the 
whole body of civilised states has concurred in authorising it. Intervention, whether 
armed or diplomatic, undertaken either for the reason or upon the pretext of cruelty, 
or oppression, or the horrors of a civil war, or whatever the reason put forward, 
supported in reality by the justification which such facts offer to the popular mind, 
would have had to justify themselves, when not authorised by the whole body of civilised 
states unless accustomed to act together for common purposes, as measures which, being 
confessedly illegal in themselves, could only be excused in rare and extreme cases in 
consideration of the unquestionably extraordinary character of the facts causing them, and 
of the evident purity and motives of the intervening state} 5 

Westlake, almost foretelling modern views based on respect for human rights 
and popular indignation, commented that: 

Intervention in the internal affairs of another state is justifiable . . . when a country has 
fallen into such a condition of anarchy or misrule as unavoidably to disturb the peace, 



171 



Is There a "New" Law of Intervention and Occupation? 

external or internal of its neighbours, 16 whatever the conduct or policy of its 

government may be in that respect In considering anarchy and misrule as a ground 

for intervention the view must not be confined to the physical consequences which 
they may have beyond the limits of the territory in which they rage. These are often 

serious enough The moral effect on the neighbouring population is to be taken into 

account. Where these include considerable numbers allied by religion, language or race 
to the population suffering from misrule, to restrain the former from giving support to 
the latter in violation of the legal rights of the misruled state may be a task beyond the 
power of their government, or requiring it to resort to modes of restraint irksome to its 
subjects, and not necessary for good order if they were not excited by the spectacle of 
miseries which they must feel acutely. It is idle to argue in such a case that the duty of 
the neighbouring peoples is to look on quietly. Laws are made for men and not for 
creatures of the imagination, and they must not create or tolerate for them situations 
which are beyond the endurance, which we will not say of average human nature, since 
laws may fairly expect to raise the standard by their operation, but of the best human 
nature at the time and place they can hope to meet with. 17 

Today it is increasingly the case that popular feeling at large, and not merely in 
neighboring States, may be so outraged that a demand for intervention either by 
the United Nations or some other international organization is made, as has been 
the case in, for example, the Sudan with regard to the treatment of Darfur. 18 

It has not only been writers who, before the outbreak of World War I and the 
establishment of the League of Nations, were prepared to condemn the actions of 
particular States and even to advocate intervention or occupation. In his 1904 an- 
nual message, for example, President Theodore Roosevelt stated: 

[T]here are occasional crimes committed on so vast a scale and of such peculiar 
horror as to make us doubt whether it is not our manifest duty to endeavour at least to 
show our disapproval of the deed and our sympathy with those who have suffered by 
it. The cases must be extreme in which such a course is justifiable . . . [and] in extreme 
cases action may be justifiable and proper. What form the action shall take must 
depend upon the circumstances of the case; that is, upon the degree of the atrocity 
and upon our power to remedy it. The cases in which we would interfere by force of 
arms . . . are necessarily very few. Yet it is not to be expected that a people like ours . . . 
which shows by its consistent practice its belief in the principles of civil and religious 
liberty and of orderly freedom ... it is inevitable that such a nation should desire 
eagerly to give expression to its horror on an occasion like that of the massacre of the 
Jews in Kishenef, 19 or when it witnesses such systematic and long-extended cruelty 
and oppression of which the Armenians" have been the victims, and which have won 
for them the indignant pity of the civilised world. 21 

The commitment of the United States to the principle of humanitarianism has 
led the American writer Stowell, perhaps the most authoritative writer on inter- 
vention, to comment: 



172 



Leslie C. Green 



Humanitarian intervention maybe defined as the justifiable use of force for the purpose 
of protecting the inhabitants of another state from treatment so arbitrary and 
persistently abusive as to exceed the limits within which the sovereign is presumed to 

act with reason and justice [However, t]he right of the sovereign state to act without 

interference within its own territory, even though it be no more than a presumption, is 
of such importance to the well-being of international society, that the states in their 
wisdom, as evidenced in their practice, have been jealous of admitting the pleas of 
humanity as a justification for action against a sister state; and we find that intervention 
on this ground has been rather rigidly limited to specific cases, and conditioned in each 
of them upon the existence of a certain state of facts. It is true that the appreciation of 
the facts and the determination as to the existence of the justifying situation still remains 
to a certain degree a matter entrusted to the conscientious discretion of the intervening 
state; nevertheless, the general and salutary attitude of suspicion with which every 
intervention upon the ground of humanity is regarded serves as a rough check upon its 
abuse. The counterpoise which serves as the sanction to prevent aggression and 
subsequent conquest under the guise of humanitarian intervention is perhaps to be 
found in the general readiness of states to act in defense of the balance of power and in 
order to preserve the society of independent states. 22 

In the light of these comments the reader might be justified in assuming that a 
right of intervention leading to possible occupation is, in certain circumstances, 
recognized in customary international law. However, whether this is the case or 
not, such action is, as Stowell asserted, a matter of discretion, and by 1938, despite 
the evidence of atrocities in Nazi Germany, reaction was largely "platonic" 23 lead- 
ing Professor H. A. Smith of London University to complain: 

[I]n practice we no longer insist that States shall conform to any common standards of 
justice, religious toleration and internal government. Whatever atrocities may be 
committed in foreign countries, we now say that they are no concern of ours. Conduct 
which in the nineteenth century would have placed a government outside the pale of 
civilised society is now deemed to be no obstacle to diplomatic friendship. This means, 
in fact, that we have now abandoned the old distinction between civilised and 
uncivilised states. 24 

In so far as occupatio pacifica as a result of treaty is concerned, reference might be 
made to Article III of the 1903 Agreement between the United States and Cuba for 
the lease to the former of an area of Guantanamo "for the time required for the 
purpose of coaling and naval stations" and "during the period of occupation by the 
United States . . . the United States shall exercise complete jurisdiction and control 

over and within said areas " 25 In a 1933 decision the Cuban Supreme Court held 

that "the territory of that Naval Station is for all legal effects regarded as foreign." 26 



173 



Is There a "New" Law of Intervention and Occupation? 

Nevertheless, problems arose when the United States armed forces sent num- 
bers of individuals captured in Afghanistan for detention at the Guantanamo naval 
base, labeling them, since there was no "war" declared, even though supporters of 
the Taliban as distinct from members of al-Qaeda, carried their arms on behalf of a 
de facto governing authority, as "enemy combatants" rather than "prisoners of war." 
The United States, maintained that as such, regardless of the terms of the Geneva 
Convention relating to the treatment of prisoners of war, 27 they could be detained 
indefinitely, denied access to counsel, and permitted no means of challenging their 
confinement or clarifying their status or alleging mistaken identity. 28 However, 
this situation was challenged at the end of 2003 by a detainee by way of habeas cor- 
pus proceedings, and in Gherebi v. George W. Bush and Donald H. Rumsfeld the 
government claim was rejected by the majority of the Court of Appeals for the 
Ninth Circuit: 

[W]e simply cannot accept the government's position that the Executive Branch 
possesses the unchecked authority to imprison indefinitely any persons, foreign 
citizens included, on territory under the sole jurisdiction and control of the United 
States, without permitting such prisoners recourse of any kind to any judicial forum, or 
even access to counsel regardless of the length or manner of their confinement. ... In 
our view, the government's position is inconsistent with fundamental tenets of 
American jurisprudence and raises most serious concerns under international law. 29 

The Court cited, by way of explanation, Article 5 of the Prisoners of War Conven- 
tion, 1949, 30 as well as Article 9 of the International Covenant on Civil and Political 
Rights to which the United States 31 is a party: "Anyone who is deprived of his lib- 
erty by arrest or detention shall be entitled to take proceedings before a court, in 
order that a court may decide without delay on the lawfulness of his detention " 

The United States argued to the court that while it exercised "complete jurisdic- 
tion and control" over Guantanamo naval base, it continued to recognize the "con- 
tinuance and ultimate sovereignty in Cuba," distinguishing the rights pertaining to 
"territorial jurisdiction" from those pertaining to "sovereignty" 32 leading the court 
to point out that the "United States has exercised 'complete jurisdiction and con- 
trol' over the Base for more than a century now, with the right to acquire . . . any 
land or other property therein by purchase or by exercise of eminent domain with 
full compensation to owners thereof." 33 

The court further noted that the United States has "also treated Guantanamo 
Bay as if it were subject to American sovereignty: we have acted as if we intend to 
retain the Base permanently, and have exercised the exclusive right to use it as we 
wish, regardless of any restrictions contained in the lease or continuing Treaty." 34 
The court determined that: 



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Leslie C. Green 



[B]y virtue of the United States' exercise of territorial jurisdiction over Guantanamo, 
habeas jurisdiction lies in the present case. . . . [W]e conclude that, at least for habeas 
purposes, Guantanamo is part of the sovereign territory of the United States. Both the 
language of the Lease and continuing Treaty and the practical reality of U.S. authority 
and control over the Base support that answer. . . . [T]he United States exercises total 
dominion and sovereignty, while Cuba retains simply a contingent reversionary 
interest that will become effective only if and when the United States decides to 
relinquish its exclusive jurisdiction and control, i.e. sovereign domain over the 
territory. . . . [T]he United States possesses and exercises all the attributes of 
sovereignty, while Cuba retains only a residual or reversionary interest, contingent on a 
possible future United States' decision to surrender its complete jurisdiction and 
control. . . . [W]e conclude that Lease and continuing Treaty must be construed as 
providing that Cuba possesses no substantive sovereignty over Guantanamo during 
the period of the U.S. reign. All such sovereignty during that indefinite and potentially 
permanent period is vested in the United States. . . . Sovereignty may be gained by a 
demonstration of intent to exercise sovereign control on the part of a country that is in 
possession of the territory in question and has the power to enforce its will. 35 

These statements by the court are fully in accord with the traditional view under 
customary international law of the effect of occupation and there is nothing new or 
innovative about them. And the State which exercises sovereignty is entitled to all 
the rights accompanying sovereignty, as well as being burdened with all the obliga- 
tions. 36 

As a further instance of occupatio pacifica byway of agreement the situation cre- 
ated by the arrangements made in 1960 at the time of the grant of independence to 
Cyprus, whereby Britain retained full sovereignty over two areas of the island as 
military bases may be cited. 37 

It may happen that part of a State's territory is occupied by a victor in accor- 
dance with a peace treaty after a war. In such a case, the borderline between 
occupatio pacifica and occupatio bellica may be somewhat blurred. However, when 
such an occupation takes place, the wartime rights and obligations of the occupant 
are not normally relevant. Under the 1919 Treaty of Versailles for example, Article 
426 provides: 

As a guarantee for the execution of the present Treaty by Germany, the German 
territory situated west of the Rhine [the Rhineland and the Ruhr], together with the 
bridgeheads, will be occupied by Allied and Associated troops for a period of fifteen 
years from the coming into force of the present Treaty. 38 

Provision was also made, depending on compliance by Germany with the terms of 
the Treaty, for the gradual withdrawal of the occupying forces. 39 



175 



Is There a "New" Law of Intervention and Occupation? 

A somewhat different policy was adopted after World War II because of the un- 
conditional surrender of both Germany 40 and Japan. 41 In so far as Germany was 
concerned, the victorious Allies — France, the Union of Soviet Socialist Republics, 
the United Kingdom and the United States — divided the country into four sepa- 
rate zones governed by military officers, with Berlin divided into four sectors each 
allocated to one of the four powers. To all intents and purposes Germany, as a 
State, had ceased to exist by virtue of debellatio 42 and the zones, both separately and 
severally, were under the full sovereignty and administration of the occupying 
powers, which only formally ended with the establishment and recognition of the 
Federal and People's Republics, respectively. In so far as Japan was concerned, the 
situation was somewhat different. There was no suggestion that the State had 
ceased to exist and the Emperor remained as titular Head of State, although the ac- 
tual government was in the hands of General Douglas MacArthur as Supreme 
Commander for the Allied Powers. He ruled with virtually absolute power. Al- 
though ostensibly acting on behalf of the Allied Powers, MacArthur remained sub- 
ject to the authority of the President of the United States. This situation prevailed 
until the adoption of the Peace Treaty with Japan in 1951. 43 Article 6(a) of the 
Treaty provides, in part, that all "occupation forces of the Allied Powers shall be 
withdrawn from Japan as soon as possible after the coming into force of the present 
Treaty, and in any case not later that 90 days thereafter. . . ." 

Although by Article 1 of the Peace Treaty "the Allied Powers recognize the full 
sovereignty of the Japanese people over Japan and its territorial waters," the Con- 
stitution of Japan, 44 drawn up in 1947 under the auspices of MacArthur's occupa- 
tion, remained in force. Article 9 of the Constitution provided: 

Aspiring sincerely to an international peace based on justice and order, the Japanese 
people forever renounce war as a sovereign right of the nation and the threat or use of 
force as a means of settling international disputes. 

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as 
well as other war potential, will never be maintained. The right of belligerency of the 
state will not be recognized. 

The occupation of Japan was similar to that of the occupation of the Rhineland in 
that both followed the unconditional surrender of the defeated State and the as- 
sumption of absolute power by the victors. There was no suggestion that the occu- 
pier was in any way limited by the rights granted to an occupier in accordance with 
the law of war. 

Reference might also be made to the position of Austria following World War II. 
Austria had been annexed by Germany in 1938 and was regarded as part of 

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Leslie C. Green 



Germany. 45 Recognition of the annexation was withdrawn by virtue of the Moscow 
Declaration. 46 Nevertheless, Austria was not treated in the same fashion as other 
States unlawfully occupied by Germany. In 1946, an agreement was concluded be- 
tween the four major Allied Powers (United States, United Kingdom, Soviet Union 
and France) and Austria 47 that established a four-power Commission with compe- 
tence for the whole of Austria, but with each of these powers a virtual sovereign oc- 
cupant in its own zone. By Article 1 of that accord, the Austrian Government and 
all subordinate Austrian authorities were bound to carry out all instructions re- 
ceived from the Allied Commission, so much so that "the Austrian authority ... is 
no more than an executive arm of the occupying Power." 48 Although the anschluss 
had ceased to be recognized, in 1955 a peace treaty was agreed to with Austria, 49 Ar- 
ticle 20 of which stipulated that the 1946 Agreement was terminated and that the 
Agreement on Zones of Occupation was to terminate on the withdrawal of all 
Allied forces by the end of that year. 

Occupatio bellica involves occupation during the actual conduct of hostilities or, 
after these have ceased prior to any arrangement being made for the future of the 
territory in question. In such cases, reference must be made to the laws and cus- 
toms of war. Already in ancient India: 

Customs, laws and family usages which obtain in a country should be preserved when 
the country has been acquired. . . . Having conquered his foe, let him not abolish or 

disregard the laws of that country A king should never do such injury to his foe as 

would rankle in the latter's heart. 50 

More important from our point of view, particularly since it became the model 
for much of Europe, is the Lieber Code 51 prepared by Professor Lieber of Columbia 
University and propounded by President Lincoln during the American Civil War. 
Here, we find a number of regulations affecting the rights of enemy civilians of 
which we need cite just a few: 

Art. 23. Private citizens are no longer murdered, enslaved, or carried off to distant 
parts, and the inoffensive individual is as little disturbed in his private relations as the 
commander of the hostile troops can afford to grant in the overruling demands of a 
vigorous war. 

Art. 25. In modern regular wars of the Europeans, and their descendants in other 
portions of the globe, protection of the inoffensive citizen of the hostile country is the 
rule; privation and disturbance of private relations are the exception. 

Art. 33. It is no longer considered lawful - on the contrary, it is held to be a serious 
breach of the law of war - to force the subjects of the enemy into the service of the 

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Is There a "New" Law of Intervention and Occupation? 

victorious government, except the latter should proclaim, after a fair and complete 
conquest of the hostile country or district, that it is resolved to keep the country, 
district, or place permanently as its own and make it a portion of its own country. 

Art. 35. Classical works of art, libraries, scientific collections, or precious instruments, 
such as astronomical telescopes, must be secured against all avoidable injury, even 
when they are contained in fortified places whilst besieged or bombarded. 52 

Art. 36. If such works of art, libraries, collections, or instruments belonging to a hostile 
nation or government, can be removed without injury, the ruler of the conquering 
state or nation may order them to be seized and removed for the benefit of the said 
nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no 
case shall they be sold or be given away by the armies of the United States, nor shall they 
ever be privately appropriated, or wantonly destroyed or injured. 

Art. 37. The United States acknowledge and protect, in hostile countries occupied by 
them, religion and morality; strictly private property; the persons of the inhabitants, 
especially those of women: and the sacredness of domestic relations. Offenses to the 
contrary shall be rigorously punished. . . . 

Art. 39. The salaries of civil officers of the hostile government who remain in the 
invaded territory, and continue the work of their offices, and can continue it according 
to the circumstances arising out of the war - such as judges, administrative or public 
officers, officers of city or communal governments - are paid from the public revenue 
of the invaded territory, until the military government has reason wholly or partially to 
discontinue it. . . . 

Art. 44. All wanton violence committed against persons in the invaded country, all 
destruction of property not commanded by the authorized officer, all robbery, all 
pillage or sacking, even after taking place by main force, all rape, wounding, maiming, 
or killing of such inhabitants, are prohibited under the penalty of death, or such other 
severe punishment as may seem adequate for the gravity of the offense. . . . 

Art. 47. Crimes punishable by all penal codes, such as arson, murder, maiming, 
assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an 
American soldier in a hostile country against its inhabitants, are not only punishable as 
at home, but in all cases in which death is not inflicted, the severe punishment shall be 
preferred. . . . 

There is no need here to examine the Brussels Declaration of 1874 53 or the Oxford 
Manual of 1880 54 since the former was never ratified, while the latter was drawn up 
by members of the Institute of International Law and had no official standing. 
Moreover, their contents were fully taken into consideration at the Hague 



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Conference of 1899, which produced Hague Convention II 55 with respect to the 
Laws and Customs of War on Land, which was itself replaced at the 1907 Confer- 
ence by Convention IV. 56 It is the latter Convention which governed the law on oc- 
cupation until its application was extended in 1949 by the Fourth Geneva 
Convention, 57 as possibly supplemented by the various principles now accepted as 
part of the international law concerning the protection of human rights, in particu- 
lar the 1948 Universal Declaration of Human Rights 58 and the 1966 International 
Covenant on Civil and Political Rights. 59 Since the Geneva Conventions apply "to 
all cases of declared war or of any other armed conflict which may arise between 
two or more of the High Contracting Parties, even if the state of war is not 
recognized by one of them," 60 it may be said as a general statement that: 

[T]he law of belligerent occupation is applicable whenever one State occupies, in the 
course of an armed conflict, territory which was previously under the control of a 
hostile party to that conflict, irrespective of whether the displaced power was the lawful 
sovereign of that territory. 61 

But, this is only true of conflicting States which are parties to the Conventions, al- 
though the principles embodied in 1907 have been held to be part of customary 
law 62 and would, therefore, be applicable in any armed conflict. Moreover, the 
Martens Clause, set forth in the Preamble of Hague Convention IV of 1907, pro- 
vides, in pertinent part, that: 

[I]n cases not included in the Regulations [annexed to the Convention] . . ., the 
inhabitants and the belligerents remain under the protection and the rule of the 
principles of the law of nations, as they result from the usages established among 
civilized peoples, from the laws of humanity, and the dictates of the public conscience. 

In its advisory opinion on nuclear weapons, the International Court of Justice 
made clear that the Martens Clause is relevant even today, and "the fundamental 
rules [laid down in the Hague and Geneva Conventions] are to be observed by all 
States whether or not they have ratified the conventions that contain them, because 
they constitute intransgressible principles of international customary law." 63 

Since it is now established that the principles embodied in the Hague Regula- 
tions and the Geneva Conventions, at least to the extent that they are in accordance 
with accepted customary law, are of general application binding on all, it is neces- 
sary to draw attention to some of the basic principles relating to occupation. The 
underlying principle in Hague Convention IV is to be found in Article 43: 



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Is There a "New" Law of Intervention and Occupation? 

The authority of the legitimate power having in fact passed into the hands of the 
occupant, the latter shall take all measures in his power to restore, and ensure, as far as 
possible, public order and safety, while respecting, unless absolutely prevented, the 
laws in force in that country. 

The effect of this provision may be seen from the statement by the United States 
Military Tribunal in the Hostages Case: 

The status of an occupant of the territory having been achieved, international law 
places the responsibility upon the commanding general of preserving order, punishing 
crime and protecting lives and property within the occupied territory. His power of 
accomplishing these ends is as great as his responsibility. But he is definitely limited by 
recognized rules of international law. 64 

This does not mean, of course, that the occupying power must maintain in force le- 
gal provisions that run counter to morality or basic principles underlying its own 
way of life, so that the Powers occupying Germany after its unconditional surren- 
der were fully entitled to abrogate such German legislation as the Nazi "racial" 
laws, or, as has happened more recently, the cancellation of discriminatory legisla- 
tion directed at women. 

Other relevant provisions of Hague Convention IV include Article 45 ("It is for- 
bidden to compel the inhabitants of occupied territory to swear allegiance to the 
hostile Power"), Article 46 ("Family honour and rights, the lives of persons, and 
private property, as well as religious convictions and practice, must be re- 
spected ..."), Article 50 ("No general penalty, pecuniary or otherwise, shall be in- 
flicted upon the population on account of the acts of individuals for which they 
cannot be regarded as jointly and severally responsible"), and Article 55 ("The oc- 
cupying State shall be regarded only as administrator and usufructuary of public 
buildings, real estate, forests, and agricultural estates belonging to the hostile State, 
and situated in the occupied country. It must safeguard the capital of these proper- 
ties, and administer them in accordance with the rules of usufruct"). 

The law with regard to occupatio bellica was greatly expanded with the adoption 
of the 1949 Geneva Convention IV. This did not replace the provisions of the 1907 
Convention, expressly stating that it is "supplementary" thereto. 65 This Conven- 
tion is primarily directed to protecting the rights of civilians in occupied territory, 
limiting the rights of the occupant in so far as such civilians are concerned. Article 4 
provides that "Persons protected by the convention are those who, at a given mo- 
ment and in any manner whatsoever, find themselves, in case of . . . a[n] occupa- 
tion, in the hands of a[n] Occupying Power of which they are not nationals." It has 
been said of this Convention that: 



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Leslie C. Green 



The emphasis is . . . upon the preservation of minimum humanitarian standards, 
through the prohibition of reprisals and collective punishments against the civilian 
population of the occupied territory, hostage-taking, torture, inhuman and degrading 
treatment, deportation, slave labour, wholesale seizure of property, and compulsion to 
perform work of military value. Both the Hague Regulations and the Fourth Geneva 
Convention also forbid the exploitation of the economy of the occupied territory for 
the benefit of the occupant's own economy. In exercising its power to determine such 
matters as exchange rates, the amount of money in circulation in the occupied 
territory, and the terms and conditions of trade, the occupying power must seek to 
provide for the good economic government of the occupied territory and not merely 
feather its own nest. 66 

As important as these humanitarian provisions are, perhaps even more signifi- 
cant is the provision in Article 1 that the Convention is to apply "in all circum- 
stances," while by Article 2, which is common to all four of the 1949 Geneva 
Conventions, Convention IV is to apply: 

[T]o all cases of declared war or of any other armed conflict which may arise between 
two or more of the High Contracting Parties, even if the state of war is not recognized 
by one of them. [It] shall also apply to all cases of partial or total occupation of the 
territory of a High Contracting Party even if the occupation meets with no armed 
resistance. 

The provisions in Geneva Convention IV are applicable from the opening of the 
conflict or of the occupation and: 

[I]n the case of occupied territory [its] applications . . . shall cease one year after the 
general close of military operations; however, the Occupying Power shall be bound, for 
the duration of the occupation, to the extent that such Power exercises the functions of 
government in such territory by the provisions of [certain specified Articles relating to 
the status and treatment of civilians]. Protected persons whose release, repatriation or 
re-establishment may take place after such dates shall meanwhile continue to benefit 
by the present Convention. 67 

By Article 27, the rights guaranteed by Convention IV are to be enjoyed by all 
"without any adverse distinction based ... on race, religion or political opinion," 
and women are to be protected against "any attack on their honour." To ensure 
that protected persons enjoy their rights under the Convention, Article 29 provides 
that the "Party to the conflict in whose hands protected persons may be, is respon- 
sible for the treatment accorded to them by its agents, irrespective of any individual 
responsibility which maybe incurred " Article 31, in turn, states that "no physi- 
cal or moral coercion shall be exercised against protected persons, particularly to 



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Is There a "New" Law of Intervention and Occupation? 

obtain information from them or from third parties." Moreover, Article 32 pro- 
vides that it is prohibited to take: 

[ A]ny measure of such a character as to cause the physical suffering or extermination of 
protected persons in [the] hands [of any High Contracting Party]. This prohibition 
applies not only to murder, torture, corporal punishment, mutilation and medical or 
scientific experiments not necessitated by the medical treatment of a protected person, 
but also to any other measures of brutality, whether applied by civilian or military 
agents. 

It is important to note that, in accordance with Article 8, protected persons may 
not agree to give up their rights under the Convention either "in part or entirety." 
Similarly, Article 47 declares that: 

[Protected persons who are in occupied territory shall not be deprived, in any case or 
in any manner whatsoever, of the benefits of the present Convention by any change 
introduced, as the result of the occupation of a territory, into the institutions or 
government of the said territory, nor by any agreement concluded between the 
authorities of the occupied territories and the Occupying Power, nor by the annexation 
by the latter of the whole or part of the occupied territory. 

This raises nice questions regarding, for example, the Israeli actions with regard to 
territories under the control of the Palestine Administration Authority; although 
Israel contends that since it has never ratified the Fourth Convention it is not 
bound thereby. Moreover, it has argued that since the territories in question were 
never under the authority of any recognized sovereign they are merely "adminis- 
tered," rather than "occupied" — whatever that distinction might be. However, 
Prime Minister Sharon has acknowledged, in connection with his undertaking to 
withdraw from parts of the territory in question, that they are in fact "occupied." In 
this connection it might be of interest to draw attention to the following comment 
in the British Manual of the Law of Armed Conflict: "Whether the administration 
imposed by the occupying power is called a military government or civil govern- 
ment is not important. The legality of its acts will be determined in accordance 
with the law of armed conflict." 68 The United States Army manual, The Law of 
Land Warfare, is to the same effect: 

It is immaterial whether the government over an enemy's territory consists in a 
military or civil or mixed administration. Its character is the same and the source of its 
authority is the same. It is a government imposed by force, and the legality of its acts is 
determined by the law of war. 69 



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Leslie C. Green 



In the light of these statements, it would appear that the inclusion in the admin- 
istration of civilian nationals of the occupied territory would not alter the situa- 
tion. It might be questioned, therefore, whether the administrations that, under 
the supervision of occupying authorities, have been established in the Kosovo re- 
gion of Yugoslavia, Afghanistan and Iraq are truly in line with the requirements of 
the Convention, for they purport to govern regardless of the provisions of the Con- 
vention or the customary law concerning occupation. In each of these instances, 
regardless of the installation of "local" administrations, the occupation, even 
though government might be conducted through local surrogates however de- 
scribed, has continued and appears likely to do so for some time, despite the hold- 
ing of local elections. A comment by Professor Greenwood is relevant: 

Although it is obviously difficult to apply the law of belligerent occupation in a 
prolonged occupation, that law is not thereby rendered inapplicable. Prolonged 
occupation raises many questions to which the Hague Regulations and the Fourth 
Geneva Convention provide no express answers. In particular, there is a need for 
change on a far greater scale during a prolonged occupation simply because of the way 
in which circumstances change over time. Nevertheless, there is no indication that 
international law permits an occupying power to disregard provisions of the 
Regulations or the Convention merely because it has been in occupation for a long 
period, not least because there is no body of law which might plausibly take their place 
and no indication that the international community is willing to trust the occupant 
with carte blanche. Any changes, it is suggested, must take place within the framework 
of the Hague Regulations and the Fourth Geneva Convention, the principles of which 
are flexible enough to accommodate at least some of the needs of a prolonged 

occupation The longer the occupation lasts, the greater the degree of change which 

is likely to be required but changes should still be made only in accordance with the 
broad principles [to be found in the Regulations and Convention]. 70 

It must be borne in mind, when considering the Israeli situation, which was Profes- 
sor Greenwood's particular concern when making this comment, that Israel has re- 
fused to ratify Geneva IV and is only bound by those provisions of the Convention 
which give expression to customary law. 

In so far as the Israeli situation is concerned, while the tendency has been until 
recently to describe the contested Palestinian lands — the West Bank region, also 
described as Judea and Samaria — held by Israel as "administered territories" 71 to 
which the Fourth Convention does not apply, Israeli courts, when called upon to 
consider the legality of actions by military authorities in those territories, have not 
always taken such a narrow approach, pointing out as early as 1968 that the Mili- 
tary Commander's legislative powers derive from the actual occupation and not 
the Convention, but the judge stated: 



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Is There a "New" Law of Intervention and Occupation? 

[T]he State of Israel observes the provisions of the convention in practice. And since it 
is guided by the convention, inasmuch as the latter embodies humanitarian principles 
of civilized nations, I shall assume that I must have recourse to the convention as being 

of binding force Any Order made by the Commander is presumed to be valid, and 

its validity can only be impugned if the Order is on the face of it so unreasonable and 
exceptional and contrary to the most basic principles of natural justice and 
international morality accepted by civilized nations, that it stands to be rejected and the 
Military Court [set up under security Provisions Order issued by the Military 
Commander of the Region] by virtue of its inherent authority must disregard it as 
being enacted out of malice and arbitrariness rather than the achievement of any lawful 
purpose. . . 7 2 

The "Military Court" referred to in this opinion was established under security 
Provisions Order issued by the Military Commander of the Region. Establishment 
of such military courts is consistent with Geneva Convention IV. 73 

As to the 1907 Hague Regulations, the Israeli judicial position is very clear. As 
was pointed out by the Supreme Court in 1982: 

The rights of a resident in the area under military government vis-a-vis the military 
commander - rights subject to judicial review in a court of law of the occupying state - 
stem from the rules governing belligerent occupation in customary international law 
and contractual international law, insofar as they have been assimilated into the 
internal law of the occupying state by a valid internal act of legislation. In respect of 
Israel's belligerent occupation, and in the absence of legislation which internalizes the 
principle [sic] norms of the laws of war relating to belligerent occupation, (the rules in 
force) are those included in the Hague Regulations. . . . Even though the Hague 
Regulations serve as an authority in this respect, the accepted attitude - which has also 
been accepted by this Court - is that the Hague Regulations are declarative in nature 
and reflect customary international law, applicable in Israel without an act of Israeli 
legislation. 74 

The Fourth Geneva Convention, not having been ratified by Israel, has never 
been the subject of Israeli legislation. However, as has just been noted, the courts 
will apply those parts of the Convention which it considers to be purely humanitar- 
ian in character and part of international customary law. It is for this reason that Is- 
rael applies the Hague Regulations appended to Convention IV of 1907, even 
though it contends there is no war since there is no State enemy, merely groups of 
"terrorists," like the Popular Front for the Liberation of Palestine, who are not enti- 
tled to be treated as prisoners of war and are, therefore, not protected by the Third 
Geneva Convention. 75 

Among the activities of the Israel military administration claimed to be contrary 
to both the Hague Regulations and Geneva Convention IV is the destruction of the 



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Leslie C. Green 



homes of civilians who are related to an alleged terrorist. In the 1985 case of Degalis 
v. Military Commander ofthejudea and Samaria Region, Judge Ben-Dror pointed 
out that the goal of the 1945 Defence (Emergency) Regulations permitting such 
demolition: 

[Wjas a deterrent effect, and this effect should apply not only to the terrorist alone, but 
also to the family living with him. A demolition of a terrorist's house cannot be 
considered a 'collective punishment' because the house about to be demolished is 
connected to the terrorist, and not to people unconnected with the matter. In cases 
such as this the High Court usually instructs the respondent [the Military 
Commander] to consider other deterrent measures, such as merely sealing off the 
terrorists' houses. However, the final decision on the nature of the measure to be 
adopted lies within the respondent's competence according to Regulation 1 19, and due 
to the gravity of the acts performed by the petitioners' relatives, the sanction of 
demolition of their houses seems quite a reasonable one. 76 

The conclusion to be drawn from these Israeli judicial decisions is that it matters 
little whether the occupying power regards the territory under administration as 
"enemy" or "terrorist" or by some other nomenclature. For Israel, at least, the law 
to be applied is made up of the occupation provisions of the Hague Regulations, 
together with those provisions of the Fourth Geneva Convention which are hu- 
manitarian in their purpose and as such are to be observed regardless of legislation 
ratifying the Convention. 

The difference between the Israeli occupation and those that have occurred later 
lies in the fact that the former is the result of conflict following Israel's creation and 
has been conducted between Israel and forces that, for the main part, do not owe 
allegiance to any other State. The later occupations have all involved States, all of 
which are members of the United Nations, and have followed an intervention not 
of the normal conflict type, but have been based on some other ground, often in 
disregard of the terms of the Charter of the United Nations. It is necessary, there- 
fore, to pay some attention to the basis for the intervention and the consequent 
occupation. 

Before doing so, however, reference must be made to some apparent occupa- 
tions under the auspices of the United Nations which have nothing inherently to 
do with the law of armed conflict, and, consequently, not with the law concerning 
occupation. There have been a number of incidents in which the members of the 
United Nations, particularly of the Security Council, have become concerned at 
the manner in which conflicting racial or tribal groups within a country, frequently 
one that has only recently achieved its independence, have indulged in outrageous 
behavior, or in which it has been feared the local hostilities might eventually 



185 



7s There a "New" Law of Intervention and Occupation? 

involve some third power. In such circumstances the United Nations has autho- 
rized the raising of a "peacekeeping" force which has been stationed in the affected 
territory with a view to bringing an end to hostilities by acting as an interposition 
force between rival groups. 77 This has happened, for example, in Cyprus, Korea, Is- 
rael, Somalia, Rwanda, 78 Kampuchea, and East Timor, to name but a few. How- 
ever, these forces do not operate as occupiers, and the law, whether it is that of the 
Hague or of Geneva, has no relevance. That these forces are there as a matter of lo- 
cal tolerance may be seen from the manner in which the UN force in Gaza was 
withdrawn at the request of Egypt, the host country, in 1967. 79 

The intervention by peacekeepers in Haiti tends to stand in a position of its own, 
for in this case it has been alleged that the United States, which provided the bulk of 
the peacekeeping force, virtually forced Aristide, the democratically elected presi- 
dent of the country, to depart and arranged for his removal (Aristide asserts that 
the United States forcibly removed him), which, if true, is clearly an action interfer- 
ing with local government contrary to customary international law. The United 
States denied doing so. While there was some indication that this action may have 
been popular at the time, by October 2004 agitation was taking place calling for his 
return. 

Before considering the legal status of such interventions it must be pointed out 
that by Article 2, paragraph 4, of the Charter all Members "shall refrain in their in- 
ternational relations from the threat or use of force against the territorial integrity 
or political independence of any state, or in any other manner inconsistent with the 
Purposes of the United Nations." Further, as was indicated at the very beginning of 
this article, paragraph 7 of the same Article provides: 

Nothing contained in the present Charter shall authorize the United Nations to 
intervene in matters which are essentially within the domestic jurisdiction of any state 
or shall require the Members to submit such matters to settlement under the present 
Charter; but this Principle shall not prejudice the application of enforcement measures 
under Chapter VII. 

Chapter VII is concerned with "Action with respect to Threats to the Peace, 
Breaches of the Peace, and Acts of Aggression." Prima facie, this would suggest that, 
unless ill treatment of nationals by one State constituted a direct threat to the well- 
being of another, no State or the United Nations itself would have a right to inter- 
vene on behalf of those persecuted. The situation might be altered by virtue of the 
existence of treaty obligations concerning human rights undertaken by the perse- 
cutor, although it must be borne in mind that none of the presently existing treaties 
in this field confers a right of direct intervention on any other party to such treaties. 



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Leslie C. Green 



In accordance with the law of treaties, unless the treaty specifically creates such a 
right, by both customary and conventional law, breach of a treaty does not give pri- 
vate citizens any right recognized and enforceable by international law, 80 and the 
various treaties concerned with human rights have not created such a right 
expressis verbis. The only other recourse to a national would depend upon the State 
party to the treaty and alleged to be in breach of it having created such a right under 
its national law. The only right accruing to other parties to the treaty would be by 
way of damages, provided it could prove that its own interests had in fact been ad- 
versely affected by the conduct objected to. 

The first case that calls for consideration arose out of the dissolution of the 
Socialist Federal People's Republic of Yugoslavia and the conflicts which began in 
1991. These conflicts were both international, as for example, between Croatia 
and Serbia, and non-international, as for instance, between Bosnia and Bosnian 
Serbs seeking to join Serbia. In accordance with customary international law, an 
established government is entitled to take such action as it deems necessary to sup- 
press a revolt, free from any active intervention by any other State, and it would 
appear from Article 2, paragraph 7 of the Charter, free from intervention by the 
United Nations. In addition, in this particular instance it is important to note that 
all of the parties concerned in the Yugoslav fighting accepted the provisions of 
Protocol II of 1977. 81 

By Article 3 of the Protocol, non-intervention by third States, whatever the cir- 
cumstances, is condemned emphatically: 

1. Nothing in the Protocol [including Part II concerning Humane Treatment] shall be 
invoked for the purpose of affecting the sovereignty of a State or the responsibility of 
the government, by all legitimate [it does not say "reasonable"] means, to maintain or 
re-establish law and order in the State or to defend the national unity and territorial 
integrity of the State. 

2. Nothing in the Protocol shall be invoked as a justification for intervening, directly or 
indirectly, in the armed conflict or in the internal or external affairs of the High 
Contracting Party in the territory of which the conflict occurs. 

Of course, States, for example the United States, which had not become a party to 
the Protocol, would not be bound by this provision. It would, however, be bound 
by the well-established principle of non-intervention under customary law and re- 
affirmed in the Charter. 

Apart from the conflicts between Bosnia, Croatia and Serbia, a major conflict 
took place in the Serb remnant, particularly as between the Serb authorities and the 
Albanian population that constituted a majority in Kosovo. The attempt by the 



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Is There a "New" Law of Intervention and Occupation? 

Serbs to reassert their authority resulted in atrocities on both sides, with wide- 
spread allegations that the authorities were carrying out extensive policies of "eth- 
nic cleansing" involving expulsions, killings and mass rapes of the Albanians. Some 
would argue that "ethnic cleansing" was a sanitized term for genocide. Article II of 
the Genocide Convention of 1948 defines genocide as meaning: 

[A]cts committed with intent to destroy, in whole or in part, a national, ethnic, racial 
or religious group, as such: 

(a) Killing members of the group; 

(b) Causing serious bodily or mental harm to members of the group; 

(c) Deliberately inflicting on the group conditions of life calculated to bring 
about its physical destruction in whole or in part; 

(d) Imposing measures intended to prevent births within the group; 

(e) Forcibly transferring children of the group to another group. 82 

It can hardly be denied that slaughtering the men, and forcing women and children 
to flee their homes and take to the hills in winter without adequate food or cloth- 
ing, would fall within this definition. While the Convention elevated genocide to a 
crime, it made little provision for its punishment, nor did it give any party a right to 
intervene to terminate acts of genocide being committed by some other party. In 
any case, by failing to describe what was going on by the treaty term would suggest that 
no such right could be asserted. 

Nevertheless, when Serbia rejected a proposal that a force of North Atlantic 
Treaty Organization (NATO) personnel be admitted and that a plebiscite under 
NATO supervision be held on Kosovo's future after three years of interim govern- 
ment, and followed this rejection with increased pressure upon the Kosovar Alba- 
nian population, NATO indicated that military action against the Serbs was 
inevitable and in July 1999 NATO began a bombing campaign. This is not the 
place to discuss the NATO intervention 83 either in accordance with the United Na- 
tions Charter or the North Atlantic Treaty 84 itself. Suffice it to say that Article 5 of 
the Treaty defines the geographic area of its competence, which does not include 
the former State of Yugoslavia, and requires an armed attack against a signatory 
for the obligations of the Treaty to come into effect. It is difficult to appreciate how 
a non-international conflict in Yugoslavia, not a member of NATO, in any way 
threatened the security of any NATO member. NATO, however, maintained that 
its intervention was not in any way politically directed with the aim of breaking up 
what remained of the former Yugoslavia or to recognize an independent Kosovo, 
but was purely humanitarian, directed at terminating the ethnic cleansing and other 

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Leslie C. Green 



atrocities committed by the Serbs against the Muslim Albanian population, and to 
enable the latter to return home in safety and enjoying the same rights as all other 
Serbian citizens in the area. Here we have an approach that is reminiscent of provi- 
sions to be found in the 1878 Treaty of Berlin. Article XXXV thereof provides: 

In Serbia the difference of religious creed and confession shall not be alleged against 
any person as a ground for exclusion or incapacity in matters relating to the enjoyment 
of civil and political rights, admission to public employments, functions, and honours, 
or the exercise of the various professions and industries, in any locality whatever. The 
freedom and outward exercise of all forms of worship shall be assured to all persons 
belonging to Serbia, as well as to foreigners. And no hindrance shall be offered either to 
the hierarchical organization of the different communions, or to their relations with 
their spiritual heads. 

While it is true that there is no established right of intervention, whether leading 
to occupation or not, in customary international law, one cannot ignore the fact 
that international law is a developing process. The Preamble to the United Nations 
Charter affirms "faith in fundamental human rights, in the dignity and worth of 
the human person, in the equal rights of men and women and of nations large and 
small." This has led to the adoption of a variety of instruments reaffirming the exis- 
tence of and support for human rights. With few States presuming to oppose these 
assertions, there is a tendency to assert that there is now, if not a. jus cogens, at least a 
developing customary law in this field binding upon and enforceable by all. Given 
this trend, it may be contended that the NATO intervention is legally justifiable. 
What may be more difficult to support is the continued presence of NATO forces 
and a UN administrator in the territory now that "peace" has officially been re- 
stored, and purportedly free elections have been held in Serbia. However, the form 
of those elections and the persons permitted to run for office have all been vetted 
and approved by the non-local internationally imposed administrator. While there 
is no official occupation in existence and no suggestion that the area is under the 
umbrella of the Fourth Geneva Convention, the members of the "occupying" 
forces are immune from the local jurisdiction, and there appears to be little effort 
made by the sending State authorities to try their personnel in accordance with 
their own national law for offenses committed against local inhabitants. 85 

It remains to discuss the situation in both Afghanistan and Iraq, particularly as 
the United States has taken the lead in dealing with both these countries and con- 
tinues to do so, and remains somewhat indifferent to the view of other States offer- 
ing support in seeking to restore order. 

On September 11, 2001, three hijacked American aircraft were used as destruc- 
tive weapons against the World Trade Center in New York and the Pentagon in 



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Is There a "New" Law of Intervention and Occupation? 

\\ ashington, D.C., while a fourth plane was likely prevented by its passengers from 
crashing into the White House itself. The immediate reaction of the United States 
Government was to declare a "war against terrorism," without any indication as to 
the State against which this war was to be waged. There was strong evidence to in- 
dicate that the attacks had been organized by al-Qaeda, a group of Islamic funda- 
mentalists led by Osama bin Laden, a renegade Saudi citizen, who had been 
responsible for a number of prior attacks against United States and other western 
interests. There was also evidence to indicate that bin Laden was in Afghanistan 
where he maintained or financed a number of terrorist training camps. Afghani- 
stan was at that time administered by an Islamic fundamentalist administration 
(the Taliban) that constituted the country's de facto government, although it was 
not internationally recognized. The Taliban authorities were called upon to arrest 
bin Laden and surrender him to the United States for trial. When they refused to 
do so, the country was attacked by US forces, supported by the United Kingdom 
and others. 

There was no declaration of war and, despite the fact that Taliban fighters were 
representative of their "government" and as such distinguishable from al-Qaeda, 
the United States refused to recognize them as legitimate combatants entitled to 
treatment when captured as prisoners of war. Instead they were described as "en- 
emy combatants," a classification not known to the law of armed conflict, which 
regards all captured enemy personnel belonging to an organized force as prisoners 
of war. If not clearly recognizable as entitled to be described as such, they are enti- 
tled to be treated as if they were prisoners of war until such time as their status has 
been clarified by a tribunal. 86 It is true that the supporters of the Taliban adminis- 
tration were not easily identifiable as members of a regular force, but they were cer- 
tainly no less identifiable that those constituting the Northern Alliance, which 
purported to be the remnant of the government overthrown by the Taliban. More- 
over, in view of the camouflage worn by many members of modern armed forces — 
as well as by many, particularly younger, civilians — it may well be difficult to iden- 
tity- these too, especially those members who participate in undercover missions 
wearing civilian or other dress, as distinct from national uniform, whether in place 
of or additional to their regular uniform. 87 Having displaced the Taliban, the 
United States treated as an ally the Northern Alliance as representatives of the gov- 
ernment displaced by the Taliban, and subsequently selected personnel from 
among its members, together with some tribal leaders, to form a council to elect a 
government under the leadership of an individual acceptable to the United States. 
In the meantime the latter was able to persuade some third States to assist in the 
administration and rebuilding of Afghanistan, and, as in Kosovo, some of the mili- 
tary supervisory activities have been undertaken by NATO — although there has 

190 



Leslie C. Green 



been no attempt to explain how such an activity so far from the North Atlantic area 
falls within NATO's competence. At no time has it been suggested that there is an 
occupation or that there is any room for any of the Geneva Conventions to be 
applied. 

Moreover, a new development in the practice of occupation has been intro- 
duced in Afghanistan. A number of armed western security personnel, often ex- 
servicemen, who may well be described as mercenaries and therefore illegal com- 
batants, 88 have been recruited to assist the occupying authority and the Afghan ad- 
ministration in protecting commercial interests, usually western in character. Such 
personnel have no interest in or concern for restrictions imposed by the Hague or 
Geneva Conventions and their activities go largely unchecked by either the allied or 
Afghan authorities. 89 

Despite the existence of an acceptable Afghan administration and the participa- 
tion of other States, the United States has removed captured personnel from Af- 
ghanistan to Guantanamo Bay in Cuba, where it has a naval base leased in virtual 
perpetuity from the Cuban government. 90 Among the captives are members of the 
Taliban, who, it may be suggested, were legitimately engaged in combat on behalf 
of their government against the United States "invader," and who might be re- 
garded, prima facie, as entitled to Third Convention protection, instead of being 
denied, until recently, 91 any form of independent legal protection. Also among the 
Taliban captives are non-Afghan Muslims who volunteered to defend a Muslim 
administration against rebels or foreign forces seeking to overthrow that adminis- 
tration. It may be suggested that they were entitled to the same treatment as the 
French Foreign Legion, the LaFayette Squadron or any American who joined the 
allied forces in either World War before the United States itself became a belliger- 
ent. Even when these captives have held the nationality of one of the American al- 
lies, as have a number from Britain or Pakistan, the United States has declined to 
treat them as in any way protected by the law of armed conflict nor, with rare ex- 
ceptions, has it been prepared to hand them over to their own government for 
treatment in accordance with their national law. Moreover, it would seem that 
where some detainees are concerned no details as to name or even place of deten- 
tion are known. 92 

In practice, despite the existence of a nominally independent government, Af- 
ghanistan is under effective US occupation since it would appear that the "govern- 
ment" acts only with the consent of the United States, even though the latter 
contends that any actions taken by them against local "terrorists" (a term which is 
being used somewhat indiscriminately both in Afghanistan and Iraq even against 
those who might be more correctly described as "insurgents") are only undertaken 
at the request or with the consent of the Afghan administration. Both the United 

191 



Is There a "New" Law of Intervention and Occupation? 

States and the Afghan authorities deny that an occupation exists, and the United 
States has indicated that it will withdraw if requested after the Afghan election 
which is due to take place shortly. Until then, it is the United States that is seeking 
to ensure that conditions exist for such an election to be held. 

At least in so far as Afghanistan is concerned, it is possible to argue that the pro- 
tection offered by the Taliban to the al-Qaeda terrorist movement with the latter's 
threats and actions against third States was enough to regard the Taliban as an ally 
of Osama bin Laden's supporters and, as such, sufficient as a coconspirator to war- 
rant action against it. Additionally, the Taliban governmental authority was ex- 
tremely restrictive and in virtual denial of all human rights, particularly where 
women were concerned, although this argument was not originally of any major 
significance. 

In the case of Iraq, no similar contentions could be put forward. Instead refer- 
ence was made to the United Nations resolutions terminating hostilities at the end 
of the conflict with Iraq consequent upon its invasion of Kuwait. By Resolution 
687, 93 which was adopted in 1991, Iraq was required to get rid of all its chemical 
and biological weapons as well as its weapons of mass destruction and to submit to 
international inspection to ensure compliance with these requirements. After 9/11, 
the United States contended that Iraq was not fulfilling its obligations and was not 
cooperating with the United Nations inspectors. When the Security Council failed 
to take the further action desired by the United States, the latter, supported by the 
United Kingdom, launched a military offensive against Iraq, while adding to its 
complaint the assertion that Saddam Hussein, president of Iraq, was a partisan of 
al-Qaeda and even claimed that Iraq was party to the September attacks on the 
United States, a claim for which there appears to have been no substantive evidence 
whatever. The United Kingdom added the complaint that Iraq was in breach of ev- 
ery international obligation concerning human rights and that the administration 
should be overthrown even on this ground alone. 

As in the case of Afghanistan, there was no support from the United Nations nor 
was there any declaration of war. 94 The actual combat operations were not of great 
duration, the Iraqi armed forces soon surrendered, and President Bush proclaimed 
that the operation was successfully terminated. In that case, in accordance with the 
Third Geneva Convention, 95 all prisoners of war other than those held for potential 
trial as war criminals must be released, an obligation only partly complied with. 
Further, the United States declared that Saddam Hussein and many of his leading 
military, political and scientific advisers had committed war crimes during the first 
Gulf War following the Iraqi invasion of Kuwait, as well as crimes against human- 
ity, particularly against dissident Iraqi nationals. There was again no suggestion 
that these latter were to be treated in accordance with the Geneva Conventions, 



192 



Leslie C. Green 



although Saddam at least was permitted to see International Committee of the Red 
Cross representatives. Moreover, the United States arranged for Saddam and some 
of the others to be handed over to the new Iraqi administration for trial, thus rais- 
ing the possibility of trials by vengeance, even though it was asserted that proper 
precautions would be taken to ensure that they receive a fair trial. 

With the overthrow of the government, the United States, without acknowledg- 
ing that it was an occupant subject to the restrictions imposed by the Hague or 
Geneva Conventions, became the governing authority in Iraq, appointing a United 
States citizen as supreme governor, although he was later replaced by an American- 
sponsored Iraqi interim administration, with the United States making clear which 
local politicians it would not tolerate. The United States signed an agreement with 
this administration undertaking to withdraw from Iraq should the Iraqi govern- 
ment request it to do so. In the meantime, the United States remained the supreme 
authority for security purposes and agreed not to undertake offensive operations 
against "terrorists," even though some of those so described might more properly 
be considered as insurgents. It must be kept in mind that the overthrow of Saddam 
Hussein and his government and the disbandment by the occupant of the Iraqi 
armed forces did not mean that all support for the legitimate Iraqi government had 
terminated, particularly as many of these forces found themselves without pros- 
pects of employment. Many of them did in fact continue operations of a warlike 
character against both the "invading" military forces and representatives of the 
Iraqi administration. Subsequently the United States began allowing members of 
the former Iraqi forces, after proper vetting, to rejoin the newly-created Iraqi 
armed or police forces. 

When it became clear that Iraq had no weapons of mass destruction and had de- 
stroyed under United Nations supervision its chemical and biological weapons, a 
fact later confirmed by the head of the United States Iraq Survey Group in his Final 
Report, 96 the United States and its allies changed the balance of their arguments 
concerning the invasion and subsequent occupation. It now seemed that the most 
important aim of their operations was to bring democracy to Iraq, sometimes 
claiming that this would prove an example for other Middle East States, the gov- 
ernments of many of which were dictatorial in character. This claim that the spread 
of democratic governments everywhere the United States and its allies consid- 
ered it to be desirable — even absent United Nations approval if this could not be 
obtained — is reminiscent of policies pursued by the Concert of Europe in the nine- 
teenth century. 

In both Afghanistan and Iraq, the United States, backed by its allies, has sup- 
ported its nominee in the local administration in organizing an election under 
American protection. The presumption appears to be that with an election, even 

193 



Is There a "New" Law of Intervention and Occupation? 

though local conditions might not make it feasible to be held throughout the occu- 
pied area, a new era will be created with a popular government taking over, one 
that will fully respect human rights, will not constitute a threat to any neighbor and 
will not seek to acquire weapons of mass destruction or others now considered 
contrary to international law. 

This view that the introduction of the trappings of democracy to a society that 
has never known it and the history of which is riven with local lustings for power, 
hatreds and jealousies is the answer to all problems and the way to a future peaceful 
existence for all is similar to the situation that existed particularly in former British 
colonies in Africa during the disassembling of empire. At that time the attitude 
seems to have been, 

[Y]ou are now independent. We are giving you a building that looks like a London 
railway terminus which is your legislature. In addition, we are providing you with a 
ceremonial chair which is the 'Speaker's Chair', although the man who sits in it does not 
speak. There will be a person dressed somewhat like Little Lord Fauntleroy known as the 
Speaker, who will sit in the Speaker's Chair from which he is not allowed to speak. Then 
we will present you with an ornamental mace as a symbol of the Speaker's authority, but 
which must not be used as you were accustomed historically to use a mace. Finally, we 
will give you a presentation copy of Erskine May's Parliamentary Procedure and you will 
hold an election. After this, the world will know that you are a democracy. 

Unfortunately, the years since those "heady" days have shown how artificial these 
hopes were. There is no reason to assume that the situation in either Afghanistan or 
Iraq will be any different. 

While there may be good grounds for arguing that the operations against the 
former Yugoslavia and in Kosovo, together with the invasions of both Afghanistan 
and Iraq are contrary to the Charter of the United Nations and the obligations of 
the members, and are thus illegal, it should be noted that there has been no attempt 
in that organization to condemn any of them, not that there could have been any 
decision by the Security Council to this effect in view of the vetoes that would have 
been exercised by the United States and the United Kingdom. 97 It must, however, 
be noted that the governments responsible for the invasions have sought to justify 
their interventions on the basis of the need to protect and assert human rights. In 
this endeavor, they argue, they have done nothing contrary to the principles relat- 
ing to humanitarian intervention discussed earlier in this paper, particularly when 
the international community as such has failed to take action collectively. In their 
case, this contention is strengthened by the generally accepted view that respect for 
human rights is now part of the international jus cogens that must be respected and 
protected by all. 



194 



Leslie C. Green 



In these instances, however, since the enforcing powers maintained that they 
were present only for the good of the country affected and the welfare of the world, 
they, or at least the United States, tended to argue that their opponents were not 
entitled to the protection of the law. For the main part, however, military person- 
nel captured in Iraq have, while in detention, been treated in accordance with the 
regulations concerning prisoners of war, subject to the exceptions respecting some 
members of both the United States and United Kingdom forces responsible for 
holding and interrogating Iraqi military and civilian detainees. 98 Given the circum- 
stances in which the invasions took place, the existence of interim governments in 
both Afghanistan and Iraq and the tendency to describe all opponents as terrorists, 
it is perhaps not surprising that the occupying authorities have not been too con- 
cerned about the application of the Hague or Geneva Conventions. It would ap- 
pear, therefore, that by and large there has been no "new" law of occupation, but an 
application of behavior conditioned by the circumstances of the case. 

For the future, perhaps, and to avoid the controversies that these operations 
have given rise to, the writer may be permitted to refer to a proposal he first put for- 
ward in 1994: 

When a government is unwilling or unable to protect, or persistently infringes the 
human rights of large segments of its population, or the government structure has so 
disintegrated that law and order have virtually ceased to exist, it may then well be time 
for the United Nations to take over the administration until such time as normal 
conditions have been restored. . . . However, it would perhaps be more desirable that 
this be done not on an ad hoc basis - nor by a group of States assuming such authority 
unto itself- but on the basis of a permanent United Nations body made up of trained 
personnel from a variety of countries and regions. . . . The members of such 
administrative or governing commission should not be drawn from nationals of the 
great powers among whom, despite the end of the cold war, political rivalries and 
manoeuvering is still likely to take place." 

At the same time, it would be necessary to establish rules, probably by way of a con- 
vention somewhat similar to Geneva Convention IV, indicating the manner in 
which persons in the country taken over are to be treated. 

Such a proposal would be met by opposition from the great powers since it is 
suggested they be left out of the administration to be established, while they might 
well be called upon to assist in its financing and in the training of personnel over 
whose activities they would have no control. In addition, opposition would almost 
certainly be forthcoming from some of the smaller newly independent and devel- 
oping countries which are jealous of their sovereignty and are aware that they are 
more likely to be the "victims" of such a procedure than any other State. However, 



195 



Is There a "Sew" Law of Intervention and Occupation? 

if such a policy were adopted, there might be less doubt as to the legal basis for the 
intervention and consequent occupation, and a more substantial foundation for 
contending that it is in accordance with the rule of law. 

Sotes 

1 . EMMERICH DE Vattel, 3 THE Law OF NATIONS 7 (Charles G. Fenwick ed., Carnegie Institute 
of Washington 1916) (1758). 

2. U.N. Charter art. 2, pa: 

3. See, e.g.. Island of Palmas Neth.), 1928, 2 R.I.A.A. 829, 839; see also Western Sahara 

isorv Opinion 1975 I.C.I. Reports 12, 39 (Oct, 16) and M.F. LlNDLEY, THE ACQUISITION 
AND GOVERNMENT OF BACKWARD TERRITORY IN INTERNATIONAL LAW 1 1926). 

4. 1878 Treaty of Berlin i Great Britain, Austria-Hungary, France, Germany, Italy, Russia and 
Tinker), art. VI, July 13, 1878, 153 Consol. T. S. 172; reprinted in MAJOR PEACE Trevties OF 
MODERN HISTORY, 1648-1967, at 975 (Fred L. Israel ed., 1967). 

;e infra pp. 190-94. 
6. HUGO GROTTUS, II DE JURE BELLI AC PaCIS 504-5, 508, 582, 584 (Francis W. Kelsev trans.. 
Clarendon Press 1964) (1625). 

See, e.g., Ian Brownlie, International Law and the Use of Force by States 338-42 
( 1963 ); see also Imre Szabo, Fundamental Questions Concerning the Theory- and History of Citizens 
Rights, in SOCHLIST CONCEPT OF HUMAN RIGHTS 267 ( lozsef Halasz ed., 1966). 

8. VATTEL, supra note 1, at 1 16, 130- 1 

9. See, e.g., President Delivers State of the Union Address, Jan 29, 2002, available at httpj/ 
www. whitehouse.gov/news/ releases/2002/0 1 /20020 1 29- 1 1 .htmL 

10. Samuel von Pltendorf, De Jure Naturae et Gentium (C.H. & William A. Oldfather 
trans., Claredon Press 1934) (1688). 

1 1 . Samuel von Pltendorf, Elementorum Jurisprudenthe Untntrsalis 292-5 (William 
A. Oldfather trans., Clarendon Press 1931 > ( 162 

on Pltendorf, supra note 10, at l? 7 
13. Samuel yon Pltendorf, De Officio Homlnis et Ciyis 140 (Frank G. Moore trans., 
Oxford University Press 1927) (1682). 

r Robert Philllmore, l International law 622-3 < 1879 > [italics in original]. 

15. Wilijam E. Hall, Treatise on International law 302-4 (A. Pearce Higgins ed., 4th ed. 
1924 1 1 1895 1 | emphasis addedj. 

16. This was largely the ground on which India invaded East Pakistan during the Bangladeshi 
struggle for independence in 1971. 

17. John Westtake, I International Law 305-07 (1904). 

18. John Ibbitson, Standing on Guard for Darfur, GLOBE AND M\IL (Toronto), Sept 3, 2004, at 
A4. 

19. See Cyrus adler & Aaron M. M\rgalith, with Firmness in the Right: American 
Diplomatic action affectlng Jews 1840-1945, at 261 etseq. ( 1946). 

20. John Bassett Moore, 5 Digest of International law 833 ( 1906). 

John Bassett Moore, 6 Digest of International Law 32 (1906) [emphasis addedj. 
22. ELLERY C. STOWELL, INTERNATIONAL Law 349, 352 1931 ) [emphasis addedj. 
ARNOLD J. TOYNBEE, SURVEY OF INTERNATIONAL AFFAIRS 1931, at 371 ( 1934). 
H. A. Smith, Where the League of Nations Failed, THE LISTENER, Jan. 26, 1938, at 183. 



196 



Leslie C. Green 



25. Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval 
Stations, Feb. 23, 1903, T.S. 418, 6 Bevans 1113 [hereinafter Agreement for the Lease]. 

26. In re Guzman and Latamble, ANNUAL DIGEST AND REPORTS OF PUBLIC INTERNATIONAL 
LAW CASES, 1933-34, Case No. 43 (Cuba 1933). 

27. Convention Relative to the Treatment of Prisoners of War, art. 5, Aug. 12, 1949, 75 U.N.T.S. 
135, reprinted in DOCUMENTS ON THE LAWS OF WAR 244 (Adam Roberts & Richard Guelff eds., 
3d ed. 2000) [hereinafter Geneva Convention III], provides that: 

Should any doubt arise as to whether persons, having committed a belligerent act and 
having fallen into the hands of the enemy, belong to any of the categories enumerated in 
Article 4 [defining those who are prisoners of war], such persons shall enjoy the 
protection of the present Convention until such time as their status has been 
determined by a competent tribunal. 

28. See, e.g., Neil A. Lewis, U.S. Erecting a Solid Prison at Guantanamo for Long Term, NEW YORK 
TIMES, Oct. 23, 2004, at A20. 

29. Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003), reprinted in 43 INTERNATIONAL LEGAL 
MATERIALS 381 (2004). 

30. Id. at 1283 n.7. 

31. Done Dec. 16, 1966, 999 U.N.T.S. 171. 

32. Gherebi, supra note 29, at 1286. 

33. Mat 1287. 

34. Id. The 1903 Agreement for the Lease of Guantanamo Bay was extended in 1934 by 
agreement between the United States and Cuba. It states that the lease "shall continue in effect" 
"until the two contracting parties agree to the modification or abrogation of the lease, provided 
that the United States does not abandon the naval station. Treaty Defining Relations with Cuba, 
U.S.-Cuba, art. Ill, May 29, 1934, 48 Stat. 1682, 1683. 

35. Gherebi, 352 F.3d at 1289-1290. In its decision, the court cited States v. Rice 17 U.S. (4 
Wheat) 246, at 254 ('hostile occupation gives 'firm possession' and the "fullest rights of 
sovereignty" to the occupying power, while suspending the sovereign authority of the land 
whose territory is being occupied.") 

36. See, e.g., award by Judge Huber in Island of Palmas Case (Neth. v. U.S.), Hague Court 
Reports 2d (Scott) 83 (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829, 831. 

37. HMSO Command Paper 1093 (1960). 

38. Treaty of Versailles, June 28, 1919, 225 Consol. T. S. 188, reprinted in II MAJOR PEACE 
Treaties of Modern History, supra note 4, at 1265. 

39. Id., art. 429. 

40. Declaration regarding the Defeat of Germany and the Assumption of Supreme Authority of 
the Occupying Powers, June 5, 1945, HMSO Command Paper 6658 (1953); see also WOLFGANG 
Friedmann, The Allied Military Government of Germany (1947). 

41. See Instrument of Surrender, 1945; Moscow Declaration, December 1945; and Presidential 
document on United States Post-Surrender Policy for Japan, all reprinted in US State 
Department, Occupation of Japan: Policy and Progress 62, 69-73, 73-81 (1946); see also Leslie C. 
Green, Law and Administration in Present-day Japan, 1 CURRENT LEGAL PROBLEMS 188 (1948). 

42. See LUDOVICO N. BENTIVOGLIO, LA 'DEBELLATIO' NEL DIRITTO INTERNAZIONALE (1948). 

43. San Francisco Peace Treaty, Sep. 8, 1951, reprinted in IV MAJOR PEACE TREATIES OF 
MODERN HISTORY, supra note 4, at 2641; see also Leslie C. Green, Making Peace with Japan, 6 
Yearbook of World Affairs l (1952). 

44. See Occupation of Japan, supra note 41, at 117; AMOS J. PEASLEE, 2 CONSTITUTIONS OF 
NATIONS 518 (1966). 



197 



/5 There a "New" Law of Intervention and Occupation? 

45. Sec 1 OPPENHEIM'S INTERNATIONAL Law 192 n.37 (9th ed. 1996); see also In re Mangold's 
Patent, (1950) 68 R.P.C. 1. 

46. Moscow Conference, Joint Four-Nation Declaration, Oct. 1943, 161 British and Foreign 
State Papers 288 (1954), a vaila ble at http://www.ibiblio.org/pha/policy/1943/431000a.html. 

47. Agreement on the Machinery of Control in Austria, Vienna, June 28, 1946, 138U.N.T.S. 85. 

48. Requisition of Private Property (Austria) Case, ANNUAL DIGEST AND REPORTS OF PUBLIC 
INTERNATIONAL LAW CASES, 1949, Case No. 188 (Austria). 

49. Treaty for the Re-establishment of an Independent and Democratic Austria, May 15, 1955, 
217 U.N.T.S. 223, reprinted in IV MAJOR PEACE TREATIES OF MODERN HISTORY, supra note 4, at 
2709. 

50. See W. S. Armour, Custom of Warfare in Ancient India, 8 TRANSACTIONS OF THE GROTIUS 
Society 71, 81 (1922). 

51. Instructions for the Government of Armies of the United States in the Field, General Order 
No. 100, Apr. 24, 1863, reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiri 
Toman eds., 4th ed. 2004); see also Richard R. Baxter, The First Modern Codification of the Law of 
War, 3 INTERNATIONAL REVIEW OF THE RED CROSS, No. 25, at 171 ( 1963). 

52. After the fall of Baghdad and its occupation by United States forces, there was much 
criticism at the "failure" of those forces adequately to protect Iraqi works of art, museum pieces, 
and the like. 

53. Reprinted in THE LAWS OF ARMED CONFLICTS, supra note 51, at 21. 

54. Id. at 29. 

55. Convention (II) With Respect to the Laws and Customs of War on Land, July 29, 1899, 22 
Stat. 1803, 1 Bevans 247, reprinted in id. at 63. 

56. Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 
2277, 1 Bevans 631, reprinted in id. at 55. 

57. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 
1949, 75 U.N.T.S. 287, reprinted in id. at 575. 

58. G.A. Res. 217A (III), Dec. 10, 1948, available at http://www.un.org/Overview/rights.html. 

59. G.A. Res. 2200 A (XXI), Dec. 16, 1966, 999 U.N.T.S. 171, available at http:// 
www.clea.org.uk/treaties/Iccpr.html. 

60. See Common Article 2 of each of the four Geneva Conventions of 1949, reprinted in 
DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 197, 222, 244 and 301, respectively. 

61. Christopher Greenwood, The Administration of Occupied Territory in International Law, in 
INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORY 243 (Emma 
Playfaired., 1992). 

62. The Nuremberg Judgment 1946, HMSO, Command 6964 (1946), at 65 states that: 

The rules of land warfare expressed in the Convention undoubtedly represented an 
advance over existing international law as it existed at the time of their adoption. But 
the Convention expressly stated that it was an attempt 'to revise the general laws and 
customs of war', which it thus recognised to be then existing, but by 1939 these rules 
laid down in the Convention were recognised by all civilised nations, and were regarded 
as being declaratory of the laws and customs of war. . . . 

63. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 257 (July 8). 

64. In relist (1948) 11 Trials of War Criminal 1230, 1244-5. 

65. Supra note 57, art. 154. 

66. Greenwood, supra note 61, at 250. 

67. Supra note 57, art. 6. 



198 



Leslie C. Green 



68. United Kingdom Ministry of Defense, The Manual of the Law of Armed Conflict, Sec. 11.19 
(2004). 

69. Department of the Army, The Law of Land Warfare, FM 27-10, July 1956, 1 368. 

70. Greenwood, supra note 61, at 263; see also the opinion of Judge Barak in A Cooperative 
Society Lawfully Registered in the Judea and Samaria Region v. Commander of the IDF Forces in 
the Judea and Samaria Region, 37 (4) Piskei Din (Reports of Supreme Court, Israel) 1982, 
reprinted in 14 ISRAEL YEARBOOK OF HUMAN RIGHTS 301, 307, 313 (1984): 

The concrete content that we shall give to Art. 43 of the Hague Regulations in regard to 
the occupant's duty to ensure life and order will not be that of public life and order in 
the nineteenth century, but that of a modern civilized State at the end of the twentieth 

century The transportation needs of the local population continue to increase and it 

is impossible to freeze the condition of the roads in the Region. Therefore the Military 
Administration was authorized to elaborate a roads project to respond to the present 
and future needs of the population. Indeed, the roads will remain after the termination 
of the military administration, but this fact does not matter. There is nothing in the 
roads project that might blur the distinction between a military administration and an 
ordinary government. . . . 

71. See, e.g., J. Singer, The Establishment of a Civil Administration in the Areas Administered by 
Israel 12 ISRAEL YEARBOOK ON HUMAN RIGHTS 259 (1982); see also Mustafa Yusef v. Manager 
of the Judea and Samaria Central Prison, 17 ISRAEL YEARBOOK ON HUMAN RIGHTS 309 (1984). 

72. The Military Prosecutor v. Zuhadi Saleh Hussein Zohar, 1968, reprinted in 1 ISRAEL 
Yearbook on Human Rights 421 (1971). 

73. Supra note 57, art. 66. 

74. A Cooperative Society Lawfully Registered in the Judea and Samaria Region v. Commander of 
the IDF Forces in the Judea and Samaria Region, 1982, cited in Mazen Qupty, The Application of 
International Law in the Occupied Territories as Reflected in the Judgments of the High Court of 
Justice in Israel, in INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORY, 
supra note 61, at 90. 

75. Supra note 28. See also The Military Prosecutor v. Omar Mahmud Kassem et ah, 1969, 
reprinted in 1 ISRAEL YEARBOOK ON HUMAN RIGHTS 456 (1971). 

76. Reprinted in 17 ISRAEL YEARBOOK ON HUMAN RIGHTS 315 (1987). 

77. See, e.g., ROSALYN HlGGINS, I UNITED NATIONS PEACEKEEPING 1946-1967, at 271-3 

(1969); Michael J. Kelly, Peace Operations: Tackling the Military, Legal and Policy 
Challenges (1997). 

78. See, e.g., ROMEO DALLAIRE, SHAKE HANDS WITH THE DEVIL (2003). 

79. HlGGINS, supra note 77, at 295 et seq. 

80. Civilian War Claimants Association v. The King [1932] A.C. 14. (House of Lords). 

81. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 
reprinted in THE LAWS OF ARMED CONFLICTS, supra note 51, at 775 [hereinafter Protocol II]. 

82. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 
U.N.T.S. 277, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 180. 

83. For a discussion of the NATO intervention, see, e.g., LEGAL AND ETHICAL LESSONS OF 
NATO'S KOSOVO CAMPAIGN (Andru Wall ed., 2002) (Vol. 78, US Naval War College 
International Law Studies). 

84. The North Atlantic Treaty, Washington, Apr. 4, 1949, 34 U.N.T.S. 243. 

85. See A. LeBor, NATO and UN 'Fund Prostitution in Kosovo, ' TIMES (London), May 7, 2004, at 
A19. 



199 



is There a "New" Law of Intervention and Occupation? 

86. See Public Prosecutor v. Koi [1968] A.C. 829 (P.C. 1967), and Osman bin Haji Mohamed Ali 
v. Public Prosecutor [ 1969] 1 A.C. 430 (P.C. 1968). 

87. See W. Hays Parks, Special Forces' Wear of N on-Standard Uniforms, 4 CHICAGO JOURNAL OF 
International Law 493 (2003). 

88. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), art. 47, June 8, 1977, 1125 
U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 422. See also 
International Convention Against the Recruitment, Use, Financing and Training of 
Mercenaries, G.A. Res. 44/34, U.N. GAOR, 72nd plen. mtg., art. 1, U.N. Doc. A/RES/44/34 (Dec. 
4, 1989), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 89. 

89. See Hamida Ghafour, Afghans Learning the Price of Security, GLOBE AND MAIL (Toronto), 
Oct. 8, 2004, at A14. 

90. See supra text accompanying notes 25-35. 

91. Gherebi v. Bush 352 F.3d 1278 (9th Cir. 2003); reprinted in 43 INTERNATIONAL LEGAL 
Materials 381 (2004). 

92. See, e.g., D. McGory, Ghost Prisoners Haunt Terrorism Hunt, TIMES (London), Sept. 11, 
2004, at 19 ("President Bush says he does not know how many 'ghost prisoners' there are, but 
that interrogating them in secret has proved crucial in the war on terrorism"). 

93. S.C. Res. 687, Apr. 8, 1991, reprinted in 30 INTERNATIONAL LEGAL MATERIALS 846. 

94. Similarly, in the case of Iraq, on August 24, 2005, the English Court of Chancery held in 
Sadiqua Ahmed Amin v. Brown that it "was satisfied that the Government's position was that 
there was not, and had not been a state of war between the United Kingdom and the Republic of 
Iraq." 

95. See Convention Relative to the Treatment of Prisoners of War, Geneva, Aug. 12, 1949, art. 
1 18, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 243, 
which provides that "Prisoners of war shall be released and repatriated without delay after the 
cessation of active hostilities." See also Article 1 19 which provides, in part, that "Prisoners of war 
against whom criminal proceedings for an indictable offence are pending may be detained until 
the end of such proceedings. . . ." 

96. See Iraq Survey Group Final Report, Sept. 30, 2004, available at http://www.globalsecurity 
.org/wrnd/library/report/2004/isg-final-report/. 

97. U.N. CHARTER, art. 27, para. 3. 

98. See Report of the International Committee of the Red Cross on the Treatment by the 
Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in 
Iraq During Arrest, Internment and Interrogation, Feb. 2004, available at http://cryptome.org/ 
icrc-report.htm#EXECUTIVE%20SUMMARY; Article 15-6 Investigation of the 800th Military 
Police Brigade, Mar. 9, 2004, available at http://www.npr.org/iraq/2004/prison_abuse 
_report.pdf. The latter is the report by Major General Antonio M. Taguba on the alleged abuse of 
prisoners at the Abu Ghraib prison in Baghdad. See also KAREN J. GREENBERG & JOSHUA L. 
Dratel, The Torture Papers: The Road to Abu Ghraib 405 (2005). 

99. Leslie C. Green, Proceedings, 23rd Annual Conference of the Canadian Council on 
International Law, 6, 26 (1994) and Proceedings, 26th Annual Conference of the Canadian 
Council on International Law 31, 37 (1997). See also supra text accompanying notes 15 and 17, 
respectively, for comments of Hall and Westlake. 



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VIII 



Current Issues in Occupation Law: 
2003 Civilian Deaths in Baghdad 

Fred Abrahams* 



This article documents and analyzes civilian deaths caused by US forces in 
Baghdad from the end of major combat operations in May 2003 until Octo- 
ber of that year. It is based on field research conducted in Iraq in September and 
October 2003 for Human Rights Watch. During that time, the author interviewed 
the witnesses to civilian deaths, family members of the deceased, victims who were 
non-lethal casualties, Iraqi police, lawyers and human rights activists, US soldiers, 
US Army judge advocates stationed in Iraq, and members of the United States-led 
Coalition Provisional Authority (CPA), responsible at the time for governing Iraq. 

The research revealed many cases of upstanding and legally respectful work by 
the US military in Iraq's capital. Many soldiers and commanders were aware of 
their obligations as an occupying power under international humanitarian law and 
took appropriate measures to fulfill those obligations. At the same time, there were 
disturbing cases during the period under review in which soldiers used force in an 
excessive or indiscriminate manner, sometimes resulting in the death of Iraqi civil- 
ians. Many of these cases went uninvestigated, contributing to an atmosphere of 
impunity. 

Clearly Iraq was and remains a hostile environment for US troops, with daily at- 
tacks by Iraqis or others opposed to the United States and coalition forces. But such 



* Senior Researcher for Human Rights Watch. 



Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

an environment does not absolve the military from its obligations under interna- 
tional law to use force in a restrained, proportionate and discriminate manner, and 
only when strictly required. Soldiers and commanders found to have used or toler- 
ated the use of excessive or indiscriminate force must face appropriate administra- 
tive or criminal action. 

Conditions in Iraq have changed a lot since the second half of 2003, particularly 
with the growth of the insurgency and the transfer of power to the Iraqi govern- 
ment and security forces. But the concerns about civilian casualties remain, both in 
Iraq and as a lesson for military occupations. 

Numbers 

United States military and coalition forces in Iraq keep meticulous records of sol- 
diers killed in duty, providing daily accounts to the press, 1 but they do not keep sta- 
tistics on civilian deaths. In response to a Human Rights Watch request for 
information about civilian casualties, the coalition's press office sent this reply: 

It is tragic that civilians have died as a result of our operations and we are fully aware 
that every time a civilian is caught in the line of coalition fire, we potentially lose allies 
among the Iraqi population. In terms of statistics, we have no definitive estimates of 
civilian casualties for the overall campaign. It would be irresponsible to give firm 
estimates given the wide range of variables. For example, we have had cases where 
during a conflict, we believed civilians had been wounded and perhaps killed, but by 
the time our forces have a chance to fully assess the outcomes of the contact, the 
wounded or dead civilians have been removed from the scene. Factors such as this 
make it impossible for us to maintain an accurate account. 2 

While the coalition claims an accurate account of civilian deaths is impossible to 
obtain, Human Rights Watch collected data from a variety of sources for a database 
of post-war civilian casualties in Baghdad. Given its vast resources, the US military 
should be able to do the same, and not doing so suggests that civilian deaths are not 
of paramount concern. 

Based on the data collected, US soldiers in Baghdad killed ninety-four civilians 
between May 1 and September 30, 2003, in legally questionable circumstances that 
merit an investigation. Human Rights Watch researchers did not verify each of 
these individual allegations but, taken as a whole, they reveal a pattern of alleged 
unlawful deaths that should prompt concern and investigations. 

More concretely, based on interviews with witnesses and family members, Hu- 
man Rights Watch confirmed the deaths of twenty Iraqi civilians in Baghdad in le- 
gally questionable circumstances between May 1 and September 30, 2003. Eighteen 



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Fred Abrahams 



of these deaths are documented in the Human Rights Watch report, Hearts and 
Minds: Post-war Civilian Deaths in Baghdad Caused by U.S. Forces (Hearts and 
Minds), 3 published in October 2003. In addition, Human Rights Watch collected 
data on civilian deaths by US forces from the Iraqi police, human rights organiza- 
tions, Western media and US military statements on the topic. In total, Human 
Rights Watch estimated the US military in Baghdad killed ninety-four civilians in 
questionable circumstances in the period May to September 2003. 4 

While this article does not present all the individual cases of civilian deaths doc- 
umented in Hearts and Minds, it is worth looking at the pattern they reveal; 
namely, a disturbing trend by US forces of over-aggressive tactics, indiscriminate 
shooting in residential areas and a quick reliance on lethal force. In some cases, US 
forces faced a legitimate threat, which gave them the right to respond with force. 
But that response was sometimes disproportionate to the threat or inadequately 
targeted, thereby harming civilians or putting them at risk. 

Categories of Excessive Force 

In Baghdad, civilian deaths can be categorized in three basic incident groups. First 
were deaths that occurred during US military raids on homes in search of arms or 
members of armed groups. The US military said in the fall of 2003 that it was im- 
plementing less aggressive tactics, and was increasingly taking Iraqi police on raids. 
But Baghdad residents in late 2003 still complained of aggressive and reckless be- 
havior, physical abuse, and theft by US troops. When US soldiers encountered 
armed resistance from families who thought they were acting in self-defense 
against thieves, they sometimes resorted to overwhelming force, killing family 
members, neighbors or passers-by. 

Second were civilian deaths caused by US soldiers who responded dispropor- 
tionately and indiscriminately after they had come under attack at checkpoints or on 
the road. Human Rights Watch documented cases where, after an improvised explo- 
sive device detonated near a US convoy, soldiers fired high caliber weapons in mul- 
tiple directions, injuring and killing civilians who were nearby. While the threat in 
those cases was often real, the indiscriminate response put civilians at risk. 

Third were killings at checkpoints when Iraqi civilians failed to stop. At the time 
the research was conducted in the fall of 2003, US checkpoints constantly shifted 
throughout Baghdad. They were sometimes not well marked, although sign visibil- 
ity was improving. A dearth of Arabic interpreters and poor understanding of Iraqi 
hand gestures added to the confusion, with results that were sometimes fatal for 
civilians. Soldiers sometimes shouted conflicting instructions in English with their 
guns raised: "Stay in the car!" or "Get out of the car!" 

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Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

In all of these scenarios, US soldiers were sometimes arrogant and abusive. They 
were seen putting their feet on detained Iraqis' heads — a highly insulting offense. 
Male soldiers sometimes touched or even searched female Iraqis, also a culturally 
unacceptable act, although female soldiers or searchers were increasingly 
deployed. 

Of course, not all soldiers behaved in this way. Human Rights Watch met many 
US military personnel who dealt respectfully with Iraqis and were working hard to 
train police, guard facilities and pursue criminals in difficult conditions. Some of 
these soldiers expressed frustration at the lack of sensitivity shown by their col- 
leagues. "It takes a while to get the Rambo stuff out," one officer said. 

A Case Study: The Checkpoint in al-Slaikh 

On the evening of August 7, 2003, soldiers from the Alpha Company, 2nd Battal- 
ion, 3rd Field Artillery Regiment of the 1st Armored Division conducted a weap- 
ons search in the Tunis district of Baghdad's al-Slaikh neighborhood. According to 
residents, troops blocked the main street at two points with armored vehicles as 
soldiers went through homes and shops. One checkpoint was established on the 
corner of Bilal Habashi Street and Street 5. 

Around 9:15 p.m., a transformer blew on one of the electrical poles nearby. The 
electricity in the immediate area was out, although it is not clear whether this was 
because of the blown transformer or whether the lights had been out before the ex- 
plosion. Two cars drove down Bilal Habashi Street, apparently unaware of the check- 
point. The first car with three young men approached the checkpoint at a high speed, 
music blaring. Soldiers yelled at the driver to stop and fired warning shots, a witness 
said, but when the car passed the checkpoint, the soldiers opened fire. Two men sur- 
vived but the driver, Saif Ra'ad v Ali Sa v id al- v Azawi, was killed. Behind him, a car 
with six members of the al-Kawwaz family was fired upon without warning before 
it reached the checkpoint. The father and three children were killed. 5 

Car One: The Killing of Saif Ra^ ad ' AH Sa^id al- ^Azawi, 20 
As US soldiers were searching homes and shops in the neighborhood — around 
9:00 p.m. — Saif Ra v ad Ali Sa v id al- v Azawi, age 20, asked his father for permission 
to borrow his blue Opel station wagon. A student at the industrial high school, Saif 
was excited by successful exam grades he had just received. 6 His father agreed so 
Saif picked up two friends, "Abbas Shihab Ahmad al-Amary and v Ali Hussain al- 
Juburi, and drove off to visit a third friend named Ahmad. 



204 



Fred Abrahams 



According to "Abbas al- Amary, the three young men were driving home around 
9:30 with the music playing loud. "The district had electricity but before we arrived 
at the top of the side street which takes us home there was a dark area," he said. 7 

A resident of the neighborhood who lives and works near the corner of Bilal 
Habashi Street and Street 5 had a better view from the front of his tire repair shop. 
Ahmad Abd al-Samad Fatuhi said that Saif s car was moving fast and the music was 
loud. The soldiers warned him to stop, he said, but he did not slow down. He told 
Human Rights Watch: 

At that time, the electricity in the district was cut off and the interior light of Saif s car 
was turned on, which prevented him from seeing outside clearly. He was accompanied 
by two other passengers, it seems that they were his friends. The Americans gave Saif a 
warning to stop the car by one of the African- American soldiers who yelled "Stop! 
Stop!" but Saif did not stop the car because I think he was afraid of hijackers. As I 
mentioned earlier, the area was dark and without electricity. After that, one of the 
American soldiers started to shoot warning shots at the ground, but Saif did not stop 
the car and he penetrated the American checkpoint. The result of this action was an 
immediate shooting at Saif s car, which led to Saif s death and to the injury of his two 
friends. 8 

This account was confirmed by another resident, Muhammad Sa v d N Adil al- 
Bayati, interviewed separately. He said: 

I saw Saif s car driving very fast. He was accompanied by two other people in the car. 
The person in the backseat had his head out the sun roof, the inside lights were on and 
the stereo was playing loudly. I shouted at him loudly: "Saif stop! There is a checkpoint 
there! There is an American checkpoint ahead!" but he did not hear me because he was 
driving very fast. I shouted at him, "the Americans will shoot you — there is an 
American checkpoint!" but he did not stop. 9 

The passenger, v Abbas al- Amary, said that none of the men in the car had seen 
any signs to indicate a checkpoint or any soldiers asking them to stop. Before they 
understood they were at a checkpoint, he said, they had come under fire from US 
troops: 

Suddenly Saif s car was fired on and another car which was behind us [see al-Kawwaz 

family below] I could not see where the shooting was coming from. I was sitting in 

the back seat of the car because when the shooting started I lowered my head. The 
shooting was full-automatic and the source of the gunfire was more than two machine 
guns. It continued for several minutes. After it stopped, I raised my head, I saw Saif s 
face because he was on the side, and his face was opposite me. As I said, I was in the 



205 



Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

middle of the back seat. I started shouting and so did our friend pAli] but Saif did not 
reply. We realized he had passed away. 10 

On the side of the street, Muhammad Sad Adil al-Bayati was also hit by a bullet 
in the right leg, suggesting that the shooting was not targeted exclusively on Saif s 
car. He was hiding behind a parked car, he said, but was shot when he tried to crawl 
home. 11 

According to both the passenger al-Amary and the witness Fatuhi, US soldiers 
approached Saif s car and pulled the two surviving men out. The car was burning 
and Saif s body was inside, but no one tried to put the fire out or to take the body 
from the wreck. Al-Amary explained what happened next: 

They came to the car and opened the front and the back doors of the right side, pointing 
guns to our heads. They took us out of the car and told us through an interpreter to shut 
up. Ali and I begged the interpreter to take Saif from the car but the interpreter said 
"Shut up, it's nothing to do with you." After they removed us from the car, they made us 
lay down on our stomachs on the ground. After five minutes, they took us to another 
place ten to fifteen meters away from the car where the American vehicles were parked. 
While they took me there I saw the front of Saif s car burning — the engine was burning. 
Again I asked the interpreter to take Saif from the car, but the interpreter did not reply. 
They left Saif in the car while we were lying on the ground. 12 

Abbas al-Amary and his friend Ali al-Juburi were eventually put in a truck. A 
wounded man and young girl from the other car joined them, and all four were 
taken to a US military base. The man and girl, both from the al-Kawwaz family, 
were taken to another room, and "Abbas and Ali soon learned that they had died. 

While all this was happening, Saif s father had no idea his son had been killed. 
Around 9:30 p.m., when he returned home from evening prayers, he went looking 
for Saif. Neighbors told him that US troops had killed several people in cars and 
that one of the cars was burning. He told Human Rights Watch: 

I was horrified and rushed to see. I found the car there with no American troops. The 
car was completely burnt — nothing could identify it except a small iron box, which 
contains the car's spare parts. I knew the car was ours and Saif s corpse was charcoal. 
They killed an honest, peaceful young man who wanted to live in peace. 13 

Ali al-Jaburi and Abbas al-Amary were held and interrogated for two days at 
the base, v Abbas said. They received medical treatment for their light wounds. In 
total, they were held for more than one month, first at a center near the Shaab 
Stadium, then at the airport, and finally at a juvenile facility in al-Salihiyya before 



206 



Fred Abrahams 



being released by a judge at the al-Adhamiyya court. According to Abbas al- 
Amary, the judge said they were free to go because no charges had been filed. 

Car Two: The Killing of K Adil ^ Abd al-Karim al-Kawwaz, 42, Haidar ' Adil ' Abd 
al-Karim al-Kawwaz, 19, ^Ula ^Adil " Abd al-Karim al-Kawwaz, 17, and Mirvat 
K Adil ^Abd al-Karim al-Kawwaz, 8 

Around 9:20 p.m. on the same evening, August 7, v Adil Abd al-Karim al- 
Kawwaz began the short drive home from his in-laws' house. His pregnant wife, 
Anwar Kadhim Jawad, was in the front seat and their four children sat in the back. 
By 9:30, Adil and three of his children were dead. 

Anwar Jawad told Human Rights Watch what happened: 

The Americans were stopping cars. There were no signs. We came close to them and 
the Americans began to shoot. Their cars had no lights on. There were two tanks. Our 
car had its lights on. We were 100 meters away. I heard nothing first — we were 

astonished by the shots. My husband was shouting but they were shooting I saw the 

bullets flying. It was the first time I had seen someone get shot and I saw my husband 
get hit on the left. 14 

According to Ahmad Fatuhi, the neighborhood resident who witnessed the 
shooting, US soldiers opened fire on the car without warning. "The car's front 
lights were dimmed," he said. "The Americans opened fire on that car without any 
warning or signal to stop the car, and they killed four members of one family." 15 

Haidar Adil al-Kawwaz, age 19, and Ula Adil al-Kawwaz, age 17, were killed 
instantly. Their father Adil Abd al-Karim al-Kawwaz, age 42, and his daughter 
Mirvat Adil al-Kawwaz, age 8, were badly wounded but still alive. US soldiers took 
them from the car and brought them to a military base in a truck, together with the 
two survivors from the first car, "Abbas al-Amary and Ali al- Juburi. Both Adil and 
Mirvat died, either there or perhaps at a hospital where they were taken that night. 

A Human Rights Watch researcher inspected the al-Kawwaz family car on Sep- 
tember 26, 2003, a 1984 white Volkswagen Passat. The car had twenty-eight bullet 
holes on the front and left side, including four in the front windshield. 

Anwar Jawad, who gave birth to a baby boy named Hassan one week after the in- 
cident, was summoned to visit the US military on September 24. Two officers, who 
she thought were named Colonel William Rabena and Colonel Peter Mansoor, of- 
fered her $1 1,000. 16 A document she signed said she received the money "as an ex- 
pression of sympathy." 17 The family is requesting formal compensation as well. 

US military authorities conducted an investigation to determine whether sol- 
diers from the Alpha Company, 2nd Battalion, 3rd Field Artillery Regiment of the 
1st Armored Division had acted inappropriately by shooting at the two cars. 

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Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

According to the military coalition's public affairs office, as well as US Army judge 
advocates assigned to Combined Joint Task Force 7, then the organisation running 
the US military's efforts in Iraq, the shootings were considered a "regrettable inci- 
dent," but it was determined that the soldiers had "acted in accordance with the 
rules of engagement." 18 It is unclear how this was determined in the case of the al- 
Kawwaz car, which was fired upon without warning. 

Training and Transition from Combat 

In late 2003, a fundamental problem in Baghdad was that combat troops were 
asked to perform law enforcement and policing tasks for which they were not ade- 
quately trained or attitudinally prepared. Of the cases documented in Hearts and 
Minds, for instance, eight Baghdad incidents resulting in sixteen civilian deaths in- 
volved either the 82nd Airborne Division or the 1st Armored Division. Many of the 
soldiers from these divisions had fought their way into Iraq, and were then asked to 
switch quickly from warriors to police who controlled crowds, pursued thieves and 
rooted out insurgents. According to soldiers and commanders, there was inade- 
quate training and equipment for these Stability and Support Operations (SASO) 
and an inadequate supply of Arabic interpreters. 

The problem was explained in detail by an unnamed US infantry commander in 
an After Action Report filed April 24, 2003, since declassified. "After less than 48 
hours after the first battlefield engagement," the commander said: 

Members of this company team were tasked to conduct checkpoint operations 
southwest of al-Najaf. With no training, soldiers were expected to search vehicles, 
interact with civilians with no CA [Civil Affairs] or PSYOPS [Psychological 
Operations] support, detain EPW's [Enemy Prisoners of War], and confiscate 
weapons. Less than 48 hours after this, the unit was again heavily engaged in combat 
operations. The radical and swift change from combat operations to SASO and back to 
combat operations over and over again causes many points of friction for the soldiers 
and their leaders. 19 

With the exception of a class given to the platoon leaders, there were no formal 
classes or training conducted by Civil Affairs personnel prior to the operation. Sol- 
diers received no training on checkpoint operations or interacting with civilians. 
The commander also noted that the unit's limited supply of construction and 
barrier materials for checkpoints was exhausted by the time they had reached 
Baghdad. Soldiers had to use "destroyed cars, flower pots, bicycle racks, and what- 
ever else was available for force protection." 20 Interpreters, he wrote: 



208 



Fred Abrahams 



[W]ere not available to the company team at any point during the operation. These 
interpreters are critical to the team's ability to interact with civilians, discern their 
problems, and broadcast friendly unit intentions. Often times the unit had crowds and 
upset civilians to deal with and absolutely no way to verbally communicate with 
them. 21 

The report emphasized the "fundamental shift in attitude" demanded of the 
troops as they shifted from combat to law enforcement tasks: 

The soldiers have been asked to go from killing the enemy to protecting and 
interacting, and back to killing again. The constant shift in mental posture greatly 
complicates things for the average soldier. The soldiers are blurred and confused about 
the rules of engagement, which continues to raise questions, and issues about force 
protection while at checkpoints and conducting patrols. How does the soldier know 
exactly what the rule of engagement is? Soldiers who have just conducted combat 
against dark skinned personnel wearing civilian clothes have difficulty trusting dark 
skinned personnel wearing civilian clothes. 

Other officers reflected the above concerns. In an interview published on a US 
Army-related website, a second lieutenant from the 82nd Airborne Division de- 
scribed the complications of Iraq's post-war scene: 

Pulling the trigger against groups of fedayeen was easy compared to this post-war 
environment where we are still taking casualties daily. Understanding why one village 
waves and blows kisses at you while the next one down the road sets up ambushes and 
IEDs is not as easy as friendly/enemy, don't kill/kill. We are ambassadors with our 
thumbs on the selector lever and always scanning for a set-up. It's so hard to help and 
interact with a people when you trust no one. Getting your soldiers to understand the 
need to be hot/cold, on/off, at war/at peace with only milliseconds between the two is 
very challenging. 22 

An article from the August 10, 2003, newsletter of the 1st Armored Division 
based in Iraq described how platoon leaders were adapting urban operations be- 
cause the tasks in Iraq — patrols, raids and checkpoints — were different from the 
combat exercises for which they had trained. " [I]n Iraq, civilians are not merely an 
occasional presence, as urban terrain training often depicts civilians," the author 
wrote, "instead, interactions with civilians often comprise the entire mission." 23 

"Our mentality as soldiers is combat," said Lieutenant Lucas Hale, who was try- 
ing to modify urban combat techniques (Military Operations in Urban Terrain, or 
MOUT) in the field. "We don't deal with civilians well as a whole. But in Iraq, you 
have to understand that 99 percent of the people [we encounter] are simple people 
who just want to get on with their lives." 24 

209 



Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

US judge advocates and CPA legal officials who spoke with Human Rights 
Watch in the fall of 2003 were sympathetic to these concerns, and they agreed that 
not all combat troops had received adequate training for post-war tasks. Special in- 
structors were brought in to assist the 1st Armored Division, they said. "They must 
come to terms with this kind of environment," Australian Colonel Mike Kelly said, 
"Policing requires a different skill set." 25 

According to the judge advocates, the US Marines performed better in the 
peacekeeping role because they were "quicker to adapt." And Military Police were 
better trained for crowd control, checkpoints and other peacekeeping tasks. In 
general, they said, the biggest problems were in Baghdad due to the intense urban 
environment and the high level of armed resistance. Clearly this was before the 
later fighting in Falluja and Najaf and the insurgency's development in central and 
western Iraq. 

Accountability 

Coalition forces in Iraq are not subject to Iraqi law. According to Coalition Provi- 
sional Authority Regulation Number 17, coalition personnel are "immune from 
local criminal, civil and administrative jurisdiction and from any form of arrest or 
detention other than by persons acting on behalf of their parent states." 26 

Given the absence of Iraqi legal structures to hold coalition forces accountable, 
it is incumbent on the occupying powers of the participating countries to investi- 
gate all allegations of abuse, and to punish those found to have violated domestic 
military codes, international humanitarian law, or human rights standards. Both 
the laws of war and non-derogable human rights standards require the investiga- 
tion of suspicious or apparently unlawful killings, even during times of armed 
conflict. 

In 2003, the United States military did not fulfill that obligation. The lack of 
timely and thorough investigations into questionable incidents created an atmo- 
sphere of impunity, in which soldiers felt they could pull the trigger without com- 
ing under review. 

Specifically, as of October 1, when Human Rights Watch completed its research, 
there were no known criminal investigations into cases of alleged use of excessive 
or disproportionate force by US soldiers in Iraq. The US military said it had com- 
pleted five administrative investigations above the division level, all of them under 
the authority of the Deputy Commanding General in Iraq, but the findings of these 
investigations raised serious concerns. In four of the five investigations, soldiers 
were found to have operated within the rules of engagement. In the fifth case, a he- 
licopter pilot and his commander faced disciplinary action for trying to tear down 

210 



Fred Abrahams 



a Shia banner in Sadr City in Baghdad, an incident that provoked a violent clash 
with demonstrators on August 13. 

Human Rights Watch conducted its own investigation into two of the five cases, 
and found evidence to suggest that soldiers had used excessive force, including 
shooting a person who had his hands in the air and beating a detainee. There are 
also many questionable civilian deaths for which no investigation had taken place. 
The most notable example is the killing of up to twenty people by the 82nd Air- 
borne Division in Falluja on April 28 and 30, documented in a June 2003 Human 
Rights Watch report, Violent Response: the U.S. Army in al-Falluja. 27 

Iraqis rarely knew the unit of soldiers responsible for inflicting casualties. 
Through its own research or media reports, however, Human Rights Watch identi- 
fied at least the military division, if not the specific unit, in eight incidents involving 
sixteen civilian deaths. Of these, the 82nd Airborne Division was involved in four 
incidents in which seven civilians were killed and the 1st Armored Division was in- 
volved in four incidents in which nine civilians were killed. Four civilians were 
killed in an operation by Task Force 20, a combined CIA- Army special forces team 
established to capture Iraq's former rulers, but it is not clear if they were responsi- 
ble for the shooting. 

The following is a list of civilian casualties in Baghdad in the year 2003 for which 
the specific US military unit is known: 

82nd Airborne Division 

• Mardan Muhammad Hassan and Farah Fadhil al-Janabi on September 1 in 
Mahmudiyya killed by soldiers from the 3rd Battalion, 505th Parachute Infantry 
Regiment. 28 

• Iraqi guards Raad Fahd Shallal, Sa v id Majid Sadun and "Abbas v Uday 
"Abbas x Aday killed on July 10 in the al-Bayya v neighborhood. 29 

• Muhammad Subhi Hassan al-Qubaisi killed on June 26 in the Hay al- Jihad 
neighborhood. 30 

• v Uday Ahmad Mustafa killed on July 10 behind the Baya'a Police Station/al- 
Dora Patrol Station. 31 

1st Armored Division 

• Ali Muhsin, killed on August 1 1 by the 1st Battalion, 36th Infantry. 32 

• Lt. v Ala' Ali Salih and Sgt. Muhammad Hilal Nahi, killed on August 9 on the 
Abu Ghraib road by soldiers from the 1st Battalion, 41st Infantry of the 3rd 
Brigade. 33 

• Izhar Mahmud Ridha killed on August 1 in the al-Mansur neighborhood by 
soldiers from the 3rd Brigade. 34 



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Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

• Soldiers from Alpha Company, 2nd Battalion, 3rd Field Artillery 
Regiment 35 shot and killed Saif Ra v ad v Ali Sa v id al- Azawi when he failed to stop at 
a checkpoint. In a second car, soldiers killed Adil v Abd al-Karim Abd al-Karim 
al-Kawwaz and three of his children, Haidar, v Ula and Mirvat. 36 

Recommendations 

Since late 2003, the US military has taken some steps to reduce civilian deaths in 
Iraq. Checkpoints became more clearly marked and combat troops received addi- 
tional training for police tasks. Iraqi police and military were more frequently es- 
corting US soldiers on raids, or conducting those raids themselves, and over the 
past year the Iraqi security forces have assumed the burden of policing tasks. Ac- 
countability has apparently improved after the abuse scandal at Abu Ghraib. 

But more initiatives are required. One basic step is to continue improving the 
language and cultural training to teach soldiers hand gestures used and understood 
by Iraqis and essential Arabic words and phrases, which would minimize confu- 
sion at checkpoints or during raids. 

The US military's rules of engagement are not made public due to security con- 
cerns, but Iraqi civilians have a right to know the guidelines for safe behavior. The 
coalition should mark all checkpoints clearly, for instance, and inform Iraqis 
through a public service campaign of how to approach checkpoints and how to be- 
have during raids. 

US soldiers and other coalition forces should also be better trained to defuse 
tense non-combat situations without resorting to lethal force. Lethal force should 
be used only when necessary to meet an imminent threat to life and only in propor- 
tion to the actual danger presented in conformity with international standards. 

To properly perform post-conflict policing, US soldiers need adequate supplies 
of non-lethal crowd control devices like tear gas and rubber bullets. Efforts to en- 
hance communication with local communities should be intensified, starting with 
adequate provision of interpreters. 

When civilian deaths do occur, they should be documented and investigated. 
Military authorities should keep records, observe and analyze trends related to spe- 
cific units and commanders, as well as tactics, in order to minimize civilian 
casualties. 

Of central importance are prompt investigations of and punishment for all in- 
appropriate or illegal use of force, as required under international law. In 2003 US 
soldiers operated with a large degree of impunity in Iraq. Knowledge that they will 
be held accountable will be a helpful restraint on the excessive, indiscriminate, or 
reckless use of lethal force. 



212 



Fred Abrahams 



Notes 

1. Between May 1 and September 30, 2003, 88 US soldiers were killed in hostile deaths and 
more than 800 wounded. During that time, there were also 94 non-hostile deaths and 197 non- 
hostile injuries among US troops. See, e.g., Robert H. Reid, One U.S. Soldier Killed in Iraq 
Bombing, ASSOCIATED PRESS, Oct. 1, 2003, and Alex Berenson, Roadside Bombs Kill 3 Soldiers 
and a Translator in Iraq, NEW YORK TIMES, Oct. 7, 2003, at A 18. 

2. E-mail sent to Human Rights Watch from coalition press office on September 29, 2003. 

3. Hearts and Minds: Post-war Civilian Deaths in Baghdad Caused by U.S. Forces, 
Oct. 2003, available at http://www.hrw.org/reports/2003/iraql003/. 

4. Human Rights Watch used six sources to obtain data: 1 ) Direct interviews with witnesses or 
the family of victims accounted for twenty-one deaths; 2) Records from Iraqi police in Baghdad 
account for fifty- four civilian deaths; 3) A local human rights group, The Human Rights 
Organization in Iraq, reported thirty-three cases of civilian casualties in Baghdad; 4) Western 
news media reported fifteen civilian deaths, but Human Rights Watch included only those 
deaths reported with a victim's name; 5) Other non-governmental organizations reported six 
civilian deaths; 6) US military press releases reported three civilians killed in two incidents, and 
the US Combined Joint Task Force 7 Judge Advocate General's office confirmed a fourth. 
Twenty-three deaths were reported by two or more sources, leaving a total of ninety- four. 

5. Some media reported that on the same night US forces killed another man, v Ali Hikmat 
Salman, on a road nearby and, in an interview with Human Rights Watch, Salman's family 
supported this claim. Human Rights Watch interview with Ali Salman's mother, Samira Sabri, 
Baghdad, Oct. 5, 2003. Based on interviews in the neighborhood, however, Human Rights 
Watch believes that "Ali Salman probably died on the highway in a traffic accident unrelated to 
US troops. See also Scheherezade Faramarzi, Jittery U.S. Soldiers Firing in the Dark Kill Six Iraqis 
Trying to Get Home Before Curfew, ASSOCIATED PRESS, Aug. 10, 2003, available at http:// 
www.signonsandiego.com/news/world/iraq/20030810-1225-iraq-adeadlynight.html. 

6. Human Rights Watch interview with Ra'ad v Ali Saied al-Azawi, Baghdad, Sept. 26, 2003. 

7. Human Rights Watch interview with "Abbas Shihab Ahmad al-Amary, Baghdad, Sept. 26, 
2003. 

8. Human Rights Watch interviews with Ahmad Abdel Samad Fatuhi, Baghdad, Sept. 29 and 
Oct. 5, 2003. 

9. Human Rights Watch interview with Muhammad Sa N d v Adil al-Bayati, Baghdad, Oct. 5, 
2003. 

10. Interview with "Abbas Shihab Ahmad al-Amary, supra note 7. 

11. Interview with Muhammad Sa s d Adil al-Bayati, supra note 9. 

12. Id. 

13. Interview with Ra'ad Ali Saied al-Omran al-Azawi, supra note 6. 

14. Human Rights Watch interview with Anwar Khdim Jawad, Baghdad, Sept. 26, 2003. 

15. Interviews with Ahmad Abdel Samad Fatuhi, supra note 8. 

16. Colonel Peter Mansoor was commander of the 1st Armored Division's 1st Brigade and 
Lieutenant Colonel William S. Rabena was commander of the 2nd Battalion, 3rd Field Artillery. 

17. The receipt, viewed by Human Rights Watch, calls the money a "Solatia payment from 
CERP" and is from Captain Robert Brewer and ordered by Captain Casey D. Coyle. 

18. Human Rights Watch interview with Colonel Marc Warren, Colonel Mike Kelly, and Major 
P. J. Perrone, Baghdad, Sept. 23, 2003. 

19. Operation Iraqi Freedom After Action Review Comments, Apr. 24, 2003, available at http:// 
www.strategypage.com/dls/articles/20030912.asp. 

213 



Current Issues in Occupation Law: 2003 Civilian Deaths in Baghdad 

20. Id. 

21. Id 

22. Interview with Second Lieutenant Andy Blickhahn 325th Airborne Infantry Regiment, 82nd 
Airborne Division, available afwww.companyteam.army.mil, as of October 2003. 

23. Lisa Burgess, IAD Units Modify MOUT Training to Suit the Situation, THE OLD IRONSIDES 
REPORT, Vol. I, Issue 20, Aug. 10, 2003. 

24. Id. 

25. Interview with Colonel Marc Warren, Colonel Mike Kelly and Major P.J. Perrone, supra 
note 18. 

26. Coalition Provisional Authority Order Number 17, Status of the Coalition, Foreign Liaison 
Missions, Their Personnel and Contractors, June 27, 2003. All CPA regulations are available at 
www.cpa-iraq.org, however, Order Number 17 was revised on June 27, 2004. Under Section 2, 
paragraph 3 of the revised regulation, "All MNF, CPA and Foreign Liaison Mission Personnel, 
and International Consultants shall be subject to the exclusive jurisdiction of their Sending 
States. They shall be immune from any form of arrest or detention other than by persons acting 
on behalf of their Sending States. . . ." Although the language has been revised, the effect is the 
same — coalition forces are not subject to Iraqi law. 

27. VIOLENT RESPONSE: THE U.S. ARMY IN AL-Falluja, June 2003, available at http:// 
www.hrw.org/reports/2003/iraqfalluja/. 

28. HEARTS AND MINDS, supra note 4, at 26-9. 

29. Id. at 29-31. 

30. Id. at 33-4. 

31. Id. at 23-6. 

32. John Tierney, How and Why did Iraqi Die? 2 Tales of Anger and Denial, NEW YORK TIMES, 
Aug. 27, 2003, at Al. 

33. HEARTS AND MINDS, supra note 4, at 3 1-3. 

34. Gary Marx, As Iraqis Die, Hate for U.S. Spreads, CHICAGO TRIBUNE, Aug. 17, 2003, at 1. 

35. Commander of the 2nd Battalion, 3rd Field Artillery is Lieutenant Colonel William S. 
Rabena. 

36. See text accompanying notes 6-18. See also HEARTS AND MINDS, supra note 4, at 18-23. 



214 



IX 



Treatment and Interrogation 
of Detained Persons 






David E. Graham* 



Media reports of abuse of enemy prisoners of war (EPW) and Security 
Detainees in Iraq, as well as other reports questioning certain interroga- 
tion techniques employed to gain intelligence from those in the custody of the 
United States have raised concerns regarding the adequacy of the guidance dealing 
with such matters provided to U.S. Army personnel. This article addresses the cur- 
rent U.S. Army regulatory and doctrinal guidance relevant to the treatment and in- 
terrogation of EPW and Security Detainees. 

Before turning to this subject, however, I would like to briefly focus on an event 
that occurred at The Judge Advocate General's Legal Center and School (LCS), in 
Charlottesville, Virginia. In the summer of 2004, the LCS hosted its annual Non- 
commissioned Officer Conference, at which Army paralegals from around the 
world gathered to discuss ongoing issues. One of the highlights of this conference is 
always the presentation of an annual award to an outstanding junior paralegal. The 
award winner, this year, had the looks of a recruitment poster — early 30s, a college 
graduate, jump qualified. In fact, he was a Jump Master. As he accepted his award, 
he expressed thanks to his colleagues, of course, and saluted all of the good legal 
work that they had accomplished — and then he related this story. While he was in 



* Colonel, JA, US Army (Ret.). 



Treatment and Interrogation of Detained Persons 

Iraq, he had served as a Convoy Commander. In fact, he had served in this capacity 
well over 50 times. On one such occasion, the convoy became stalled in traffic and, 
as the vehicles were sitting at a dead halt, a grenade was dropped from an overpass. 
At that moment, every weapon in the convoy swung in that direction. What fol- 
lowed next, he said, made him exceptionally proud to be an American soldier serv- 
ing in Iraq. For, even though every weapon had been pointed at the overpass, not a 
single shot was fired. Why not? Because, he said, a target could not be identified. 
The personnel in that convoy had complied with the Rules of Engagement. Not a 
single round was fired. And, I would submit that such behavior is the norm — not 
the exception. 

Do accidents occur? Are crimes committed? Are investigations conducted? Are 
crimes prosecuted and defended equally aggressively? In each instance, the answer 
is yes. Yet, if one focuses only on the negative, such as the abhorrent conduct at Abu 
Ghraib, one loses sight of the fact that the overwhelming majority of U.S. personnel 
serving in Iraq consistently do the right thing — simply because it is the right thing. 
Mistakes are made, crimes are committed, investigations may take an apparently 
overly extended period of time to complete. But, again, I would submit that the ac- 
tions taken by those servicemen in that convoy, on that particular day in Iraq, as re- 
lated by that junior enlisted soldier, represent the norm — not the exception. 

Turning now to the subject at hand: the current Army regulatory and doctrinal 
guidance dealing with the treatment and interrogation of EPW and Security De- 
tainees is found in several Army publications. In terms of their application to the 
situation in Iraq, each publication begins with a premise with which essentially ev- 
ery public international lawyer would agree. Almost all individuals present in Iraq 
are subject to either the Third or Fourth Geneva Convention. 1 Thus, with respect 
to EPW taken captive in Iraq, the process is a relatively simple one. If the individual 
was a member of the Iraqi armed forces, he was entitled to Prisoner of War status. 
As such, he was to be afforded the numerous rights and privileges accorded by the 
Third Convention. In terms of the interrogation of EPW, this, again, is a very 
straightforward matter. Article 17 provides: 

Every prisoner of war, when questioned on the subject, is bound to give only his 
surname, first names and rank, date of birth, and army, regimental, personal or serial 
number, or failing this, equivalent information. 



No physical or mental torture, nor any other form of coercion, may be inflicted on 
prisoners of war to secure from them information of any kind whatever. Prisoners of 



216 



David E. Graham 



war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or 
disadvantageous treatment of any kind. 

Clearly, coercing EPW into divulging information is forbidden. 

Although the Third Convention is clear and unequivocal in its requirements for 
the humane treatment of EPW and the prohibition of coercive interrogations, 
some have contended that the law is somewhat less certain with respect to Security 
Detainees. I disagree. The first issue that must be addressed in this regard is the 
manner in which an individual might become a Security Detainee in Iraq. That is, 
how does an individual lose his status as a "protected person" under Article 4 of the 
Fourth Convention 2 — a status that carries with it a broad range of protections and 
safeguards? The answer is found in the fact that Article 5 of the Fourth Convention 
enables the Occupying Power to arrest and detain individuals who pose a security 
threat. 3 Article 78, in turn, enables the Occupying Power to detain or to incarcerate 
those arrested under the authority of Article 5. These individuals, then, are no lon- 
ger protected persons; they are, in fact, Security Detainees. 

Again, there have been those who have argued that once an individual loses his 
status as a protected person, he essentially loses those protections accorded him 
under the Fourth Convention. This, of course, is simply not true. Even with respect 
to the interrogation of Security Detainees, Article 5 clearly indicates that such indi- 
viduals must be treated humanely. 

The U.S. Army provides both regulatory and doctrinal guidance regarding the 
treatment and interrogation of EPW and Security Detainees. This guidance has 
been criticized by some as being unclear or that, given their "nuanced" nature, the 
relevant regulatory provisions are subject to varying interpretations. Contrary to 
such assertions, however, it is my view that there is simply no lack of clarity, no lack 
of precision with respect to the relevant regulatory requirements. Army Regulation 
1 90-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other De- 
tainees, 4 addresses the treatment of both EPW and Security Detainees. Paragraph 
l-5(a)(l) provides: 

All persons captured, detained, interned or otherwise held in U.S. Armed Forces 
custody during the course of a conflict will be given humanitarian care and treatment. 
The inhumane treatment of EPW, civilian internees, and retained personnel is 
prohibited and is not justified by the stress of combat or by deep provocation. 

Paragraph l-5(b) further notes: 

All prisoners will receive humane treatment without regard to race, nationality, 
religion, political opinion, sex or other criteria. The following acts are prohibited: 



217 



Treatment and Interrogation of Detained Persons 

murder, torture, corporal punishment, mutilation, the taking of hostages, sensory 
deprivation, collective punishment, execution without trial by proper authority, and 
all cruel and degrading punishment. 

Additional guidance on the issue of the treatment of EPW and Security De- 
tainees is found in Army Field Manual 3-19.40, Military Police Internment/ Resettle- 
ment Operations? Specifically, paragraphs 5-1 and 5-2 state that physical torture or 
moral coercion must not be used in connection with civilian internees and Security 
Detainees. They must be protected against violence, insult, public curiosity, bodily 
injury, reprisal, and sexual attack. 

The photos of abused prisoners at Abu Ghraib generated much of the initial at- 
tention focused on the treatment and interrogation of those individuals held by the 
United States, and the issue of interrogation, in particular, has continued to be a 
matter of intense media scrutiny. Army Field Manual 34-52, Intelligence Interroga- 
tion, 6 deals with both EPW and Security Detainees. This FM provides that "EPWs, 
captured insurgents, civilian internees, other captured, detained or retained per- 
sons, foreign deserters, or other persons . . . are protected by the Geneva Conven- 
tions." 7 It further states that "the [Geneva Conventions] and U.S. policy expressly 
prohibit acts of violence or intimidation, including physical or mental torture, 
threats, insults or exposure to inhumane treatment as a means of or aid to interro- 
gations. Such illegal acts are not authorized and will not be condoned by the U.S. 
Army." 8 Very importantly, it also goes on to say that violations of these prohibi- 
tions are criminal acts, punishable under the Uniform Code of Military Justice. 9 

The Intelligence Interrogation manual specifically addresses prohibited interro- 
gation techniques. It provides that "physical or mental torture or coercion revolve 
around eliminating the source's free will, and are expressly prohibited by the 
[Geneva Conventions]." 10 Torture is defined as "the infliction of intense pain to 
body or mind to extract a confession or information, or for sadistic pleasure." 1 ' Ex- 
amples of physical torture cited in the FM include: electric shock; infliction of pain 
through chemicals or bondage; forcing an individual to stand, sit or kneel in ab- 
normal positions for prolonged periods of time; food deprivation; and any form of 
beating. Cited examples of mental torture include mock executions, abnormal 
sleep deprivation, and chemically induced psychosis. "Coercion" is defined as: 

actions designed to unlawfully induce another to compel an act against one's will ... to 
include: threatening or implying physical or mental torture to the subject or to his 
family or others; intentionally denying medical assistance or care in exchange for 
information or cooperation; and, finally, threatening or implying that rights 
guaranteed by the [Geneva Conventions] will not be provided unless cooperation is 
forthcoming. 12 



218 



David £. Graham 






Questions have been raised as to whether the Intelligence Interrogation manual 
accurately reflects both the domestic and international law obligations of the 
United States. I can assure you that it does. Twelve years ago, the International and 
Operational Law Division of the Office of The Judge Advocate General of the Army 
conducted an intense legal review of FM 34-52 and produced a 12-page, single- 
spaced, legal opinion detailing the manner in which US legal obligations were to be 
set forth in this publication. 

Once again, I would submit that the regulatory and doctrinal guidance relevant 
to the treatment and interrogation of EPW and, very importantly, Security De- 
tainees, is quite clear, and it should be well understood as to those actions that 
can — and cannot — be taken. Equally clear is the fact that, if an interrogator en- 
gages in proscribed activities, he or she is subject to prosecution under the Uniform 
Code of Military Justice. This is precisely what U.S. Army military intelligence per- 
sonnel are taught. The Intelligence Collection manual, published in 1992, provides 
carefully considered, thoughtful, and lawful guidance, guidance that has never 
been modified. 

Some have suggested that, given the nature of the "Global War on Terrorism," 
detainee interrogation techniques that obviously go well beyond those sanctioned 
in current Army doctrine should be permitted. I would object to the use of such in- 
terrogation methods for a number of reasons. First, once you cross that interroga- 
tion Rubicon dictated by both international and domestic law, you immediately 
subject individual service members to potential civil and criminal litigation. I am 
unconvinced that any form of a "necessity defense" argument would protect these 
individuals from prosecution under either the Uniform Code of Military Justice or 
in an international forum. Second, instructing military intelligence personnel to 
now engage in questionable interrogation techniques would contravene 30 to 40 
years of previous training. Third, as the Intelligence Collection manual observes, 
"Revelation of use of torture will bring discredit upon the US and its armed forces, 
while undermining domestic and international support for the war effort." Finally, 
there is the matter of reciprocity. Once the United States condones actions that go 
beyond those always considered to reflect accepted international norms, these 
practices will almost automatically become, in my view, the benchmark for inter- 
rogation methods deemed suitable for use by both State and non-State actors. For 
all of these reasons, it is critically important that the United States continue to ad- 
here to the humanitarian treatment standards set forth in the Geneva Conventions 
and other relevant international agreements. 



219 



Treatment and Interrogation of Detained Persons 



Notes 

1. Geneva Convention III Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 
3316, 75 U.N.T.S. 135 and Geneva Convention IV Relative to the Protection of Civilian Persons 
in Time of War, Aug. 12, 1949, 6 UST 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE 
LAWS OF War (Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 244 and 30 1 , respectively. 

2. The relevant portion of Article 4 provides, "Persons protected by the Convention are those 
who, at a given moment and in any manner whatsoever, find themselves, in case of conflict or 
occupation, in the hands of a Party to the conflict or Occupying Power of which they are not 
nationals." 

3. Specifically, 

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual 
protected person is definitely suspected of or engaged in activities hostile to the security 
of the State, such individual person shall not be entitled to claim such rights and 
privileges under the present Convention as would, if exercised in the favour of such 
individual person, be prejudicial to the security of such State. 

4. Headquarters, Department of the Army, AR 190-8, Enemy Prisoners of War, Retained 
Personnel, Civilian Internees and Other Detainees (Oct. 1, 1997), available at http://www.usapa 
.army.mil/pdffiles/rl90_8.pdf. This is a multi-service regulation that also is also applicable to the 
Air Force, Marine Corps and Navy. 

5. Headquarters, Department of the Army, FM 3-19.40, Military Police Internment/ 
Resettlement Operations (Aug 1, 2001), available at https://134.ll.61.26/CD5/Publications/ 
D A7FM/FM%203 - 1 9.40%20200 1 080 1 .pdf. 

6. Headquarters, Department of the Army, FM 34-52, Intelligence Collection (Sept. 28, 1992), 
available at https:// 134.1 1.61. 26/CD7/Publications/DA/FM/FM%2034-52%20 19920928.pdf. 

7. Id. at 1.7. 

8. Id. at 1-8. 

9. Id. 

10. Id. 

11. Id. 

12. Id. 



220 



X 



Liberation and Occupation: 
A Commander's Perspective 



Fabio Mini* 



One of the main challenges for the commander of a military operation out- 
side his national territory is to deal with the international laws that should 
apply to the operation and the constraints his own nation may impose upon him. 
Such limits stem from political aims, diplomatic convenience, economic interest, 
international image, media opportunity, budget priorities, force structure and the 
national law jurisdiction applicable to the area of operations. For the commander 
of a multinational force the challenges are even greater because he is subject to ad- 
ditional constraints coming from the international organization he is working for, 
the international organizations he is working with and the national caveats each 
contingent of his force brings with them. The legal constraints influence his auton- 
omy and command action during the conflict, but, most importantly, they affect 
post-war operations when he becomes the target of scrutiny — and often criticism. 
While the military code of conduct and the customs of war are embedded in mili- 
tary education and can help guide the commander's action, the legal constraints af- 
fecting war or peace support operations are sometimes ambiguous. The latter must 
be known and studied, with the support of legal advisors, but, unfortunately, they 
are largely neglected in military education and during the specific pre-deployment 



Lieutenant General, Italian Army. 



Liberation and Occupation: A Commander's Perspective 

training. In many countries, the military education systems include them only in 
the formal program, but then they are skipped because there is something "more 
important" to do or they are left in the hands of boring lawyers that simply list the 
litany of what you cannot do. 

In particular, in many Western war colleges or military academies no one 
teaches how to handle a post-war situation. Strategy and tactics refer only to com- 
bat situations. Management deals only with our own military organization and 
units. A little bit of management is devoted to civil-military cooperation (CIMIC), 
but because of the emphasis given to peace support operations rather than to post- 
war management, CIMIC is perceived more as a candy bar distribution initiative 
than a military methodology to control the post-war situation. Military control 
over civil institutions is a blasphemy for democratic armies and nowadays every 
nation and army pretends to be democratic. I am old enough to remember the 
warning posters of the occupying powers after World War II: "Tomorrow the dis- 
tribution of food will be suspended" and "Public gathering is prohibited. Of- 
fenders will be arrested," signed Captain Charlie or Kurt or Martini. Nowadays 
captains are not even given the authority to ask questions and the generals who ask 
questions are not entitled to any answers. I also belong to the generation that 
planned for military control over civilian administrations in case of internal in- 
surgency. I remember the plans to replace civil authorities, to exercise censor- 
ship, limit individual liberties and so on. Those times are gone and, we all hope, 
for good. 

Our democratic system is strong and the military does not have to plan for the 
assumption of power. However, while war is still very much present and alive, we 
in the West have avoided and, at the same time, subverted the idea of war. During 
the last ten years we have avoided the reality of war. We invented operations "other 
than war" — humanitarian intervention, international police operations, peace 
support operations, with their aggregate of peacekeeping, peace enforcing, peace 
making, and so on. We invented hundreds of expressions in order to avoid the 
word "war" or to soften its meaning. In the United States and other parts of the 
world, e.g., China, there was the opposite phenomenon. The same word was largely 
abused and everything became a "war," including market competition, family 
quarrels and social endeavors. The result was again an illusion because when war 
resumed in its traditional form as confrontation and violence, often asymmetric 
and non-linear, many people did not recognize it. War on terror in many countries 
is still considered to be the equivalent of the war on inflation, or the war on corrup- 
tion, or the war on drugs. 

The "Global War on Terror" and its many forms suggest a vision of Star Wars, 
with the Empire striking back and Luke Skywalker saving the Galaxy or similar 

222 



Fabio Mini 



fantasies, instead of inspiring the idea of a worldwide disaster. This substantial 
elusion has also disrupted our awareness about wartime responsibility; the conse- 
quence has been the separation of military operations from pre- and post-conflict 
management. Contrary to what was taught to junior officers at military schools 
fifty years ago, the armies of the democratic West today are told to limit themselves 
to combat operations. They are taught to deal with "army-like" threats and leave 
"internal" security problems to the civil authorities responsible for law enforce- 
ment. I have seen national caveats forbidding the employment of soldiers to quell 
public unrest. Subsequently, when they were caught in the middle of civil disorder, 
the soldiers did not know how to respond. There are many NATO nations that do 
not agree with the use of their soldiers in anti-crime, anti-extremism or even anti- 
terrorism roles. We all have seen our officers and professional soldiers witnessing, 
without taking action, the looting of national museums, public and private prop- 
erty, or ethnic minority assets; saying that they are not policemen. 

The separation between military and civil powers is necessary, but not before 
the security situation is stabilized and real democratic and effective institutions, a 
functioning judicial system and reliable law enforcement resources are in place. 
Whoever rushes in to declare the end of military operations (or even the end of the 
war) and transfers the responsibilities for public order to immature local authori- 
ties or to inefficient international organizations or to puppet governments is not 
responding to security and reconstruction requirements, but only to nearsighted 
and narrow-minded political interests. Such a rush is conducive to instability, cre- 
ates civil -military disconnects and increases risks for the forces in the area of opera- 
tions. The fact of the matter is that modern military operations do not end with the 
cessation of combat. Victory is no longer defined just by successful military opera- 
tions, if it ever was. The aims of modern operations are purely political and this is 
true down to the platoon level and lower. Therefore, until the political aims are 
achieved, victory cannot be declared. 

Furthermore, the occupation of a foreign territory is not the end of an opera- 
tion but the beginning of another phase of the same effort. Modern wars and oper- 
ations are not undertaken to acquire territory or sovereignty. In particular, the 
annexation of a territory is no longer the aim of the modern Western democracies 
which tend, instead, to respect the integrity and the sovereignty of foreign coun- 
tries no matter how mean their political regime and their social behavior might 
be. 1 Modern operations are undertaken more to further ideals and interests than 
for territorial acquisitions, even if that territory has valuable resources or can be- 
come a profitable marketplace. Therefore, the military have specific responsibili- 
ties that cannot be ignored by simply declaring the end of combat. This is 
especially the case in the absence of a safe and secure environment to support such 

223 



Liberation and Occupation: A Commander's Perspective 

a declaration or if the same "victorious" forces are continuously suffering attacks. 
We cannot say that we have won the battle in the field against the opposition 
forces while the civil authorities have lost the battle to create a basis for democrati- 
zation, peace, reconstruction, development and social enhancement. We all have 
lost our common war. 

Unfortunately this artificial and hasty separation between supposedly military 
and civilian responsibilities is a critical factor in the failure of modern operations 
or, at least, leads to lengthy and inconclusive operations, delays, and a waste of 
money, time, effort and human lives. It leads the military to concentrate on mili- 
tary objectives with little concern for post-war problems related to possible side ef- 
fects and so-called "collateral damage." In the meantime it gives the civilian 
authorities an alibi for their failure in reconstruction. They can put the blame on 
the military and use extensive war damage, the lack of internal stability and even 
popular unrest stemming from economic difficulties as an excuse. From the mili- 
tary standpoint, and under the influence of this civil-military "separation," the op- 
erations tend to be planned and executed to: 

• Achieve absolute military supremacy even when it is not necessary. Today 
there are no symmetric threats that can challenge the US and Western military 
supremacy. There is not a lack of military power to cope, but an excess of power to 
manage. Terror is achieving some results only because it is not a military threat 
and because it is completely asymmetric. In addition, terror directly affects a 
political class and an international leadership largely unfit and untrained to cope 
with this problem. 

• Make no distinction between combatants and noncombatants. 2 If war is 
mistakenly considered a "police operation" or a "humanitarian effort" there is no 
enemy but only a "criminal." However, dealing with a criminal is different from 
dealing with a "just enemy." Here begins the main contradiction of our times. 
While avoiding the idea of war and eluding its reality, the military forces still have 
training, ethics and procedures related to war — a classic, traditional, symmetric, 
old fashion, destructive war. Our armies are completely different from police 
forces. And rightly so. But many situations that militaries have to face are not that 
different from international law enforcement. In order to cope with this 
ambiguity, many military units attempt to change their ethics and code of 
conduct. Unfortunately, when the ethics of war change, the applicable rule of law 
changes as well and often with undesirable consequences. The majority of our 
soldiers know how to deal with the enemy, a traditional combatant, but do not 
know how to deal with criminals. So we tend to abuse the terms "criminal" or 
"terrorist" in order to enhance the aggressive behavior and determination of our 



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soldiers, but at the same time this lowers our ethical threshold. If the definition of 
enemy is unclear, "criminal" can become a potential enemy, even if legally 
belonging to the category of noncombatant. 

• Destroy all infrastructure (factories, roads, power plants, bridges, 
communications, government facilities) with little concern for safeguarding 
essential infrastructure needed by the country to recover quickly. Some 
infrastructure is safeguarded but only if useful to the subsequent military 
occupation. This generally creates the impression that the "real aims of the war" 
are other than humanitarian undertaken in the pursuit of international justice. 

• Selectively overthrow rogue regimes and dictators. There are many dictators 
and rogue regimes that do not "benefit" from our military attention. Instead, 
some of them benefit from our protection, while the current "bad guys" have, at 
times, conveniently been our best allies — all of them. This also gives an erroneous 
perception of the aims of war. 

• Carry on preventive operations in the sense that they come first but do not 
prevent crises, losses or damages. In our Western terminology, "prevention" has 
assumed the meaning of crisis and war avoidance. A war to prevent another 
similar or worse war is not perceived as true prevention. It is an "anticipation" of 
an event whose necessity is not yet defined or proven — a scenario. Our societies, 
following a legalistic approach, do not accept war as a preventive measure and the 
use of force can be gradually applied only if balanced against a threat that is visible, 
immanent and imminent. Scenarios are not threats and worst-case scenarios 
cannot lead international policy as a matter of routine. In our legalistic approach, 
intelligence is not evidence. This set of perceptions further limits possible 
solutions and adds suspicion about the legality of the military use of force. 

• Carry on operations in the complete absence of an achievable political and 
economical "end state." Here "achievable" refers to a result planned as an 
outcome of a pre-determined period of time and clearly allocated resources 
(including those for security). While democratization, liberty, rule of law, and 
reconciliation are good ideas and ideals, in areas where peoples have lived through 
hardship and economic or ideological slavery for centuries, they are not political 
end states "achievable" through a defined and predetermined foreign military 
intervention. That is why many military operations appear endless and useless. 

• Show force and pursue humiliation both of the antagonist and the allies. If 
the enemy is a "criminal," the ethics of combat suffer and humiliation becomes a 
tool to exercise superiority. When humiliation becomes a tool, it is difficult to 
confine it to the enemy. It is also easily applied to allies and friendly forces. 
Refusing an offer of help because "this operation is too sensitive" or "too 

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technological," or "bound to secrecy" is perceived as a humiliation by many allies. 
Not sharing essential intelligence, abuse of the "blue eyes only" criteria and 
sharing uneven responsibilities can become a humiliation in the event of difficult 
missions and indefinite risk. 

On the other hand, the transitional civil administrations (either under interna- 
tional or national and local control) that are so eager to intervene after the military 
operations, tend to: 

• Apply the same set of measures to all situations and to every kind of local 
society. The drawers of the international planners seem to contain only one "road 
map" or one list of "benchmarks" or a single "eight-point plan," and these are 
used indifferently for East Timor, Kosovo, Palestine or Iraq. Hundreds of 
international experts are paid huge sums of money for their consultancy and then 
the output is the same plan over and over, often repeating the same mistakes and 
making some new ones because differences of social, cultural and economic 
environment are not taken into account. 

• Establish a Western -style democracy regardless of its compatibility with the 
existing culture and development needs. Western-style democracy, which is based 
on the ideals of liberty and freedom of expression of the will of the people, is the 
product of two bloody and lengthy conflicts: the American and the French 
revolutions. In both cases, it took hundreds of years to attain the full benefits of 
democracy, and now this model, which is far from perfect and which requires the 
continuous checks and balances provided by the different branches of 
government and the ultimate control of periodic elections, is imposed on 
populations that neither understand the system nor really want it. Additionally, 
the main corollary of modern democracy, "the market democracy," has, in many 
cases, a devastating effect on immature, archaic or former socialist societies. 

• Dissolve existing social institutions (welfare, health care, wages, local 
councils, family systems, etc.) with no acceptable or efficient alternatives. Often 
the existing network of institutions and set of customs is the only organizational 
glue surviving after the war. The people know where the hospitals are and what to 
do to get there. They know what belongs to whom and why. They know what is 
legal and illegal according to their own old set of rules. The rapid change of social 
structures and age old points of reference gives the impression, and sometimes the 
reality, of anarchy. 

• Divide et impera (divide and rule). This principal is often applied when there 
are ethnic or religious differences within a society. Additionally, these differences 
are exploited when they exist among other States in the region. The result is that 
where the crisis stemmed from religious or social hatred, coexistence between 

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diverse ethnic or religious groups becomes impossible. In the meantime the basic 
social infrastructures are unified under the control of foreign powers and they 
soon prove ineffective. 

• Change standards (legal system, standards of living, social relations) and 
disband existing organizations (army, police, judicial). 

• Impose an ambiguous rule of law often based on alien law methodology and 
culture. For example, the Balkans used to have a mixed system of socialist and 
Roman law. The new international administration introduced many English 
common law-based regulations that were often perceived as unfair and frequently 
incomprehensible to local judges, lawyers and the people. 

• Concentrate on aid and emergency assistance but not on sustainable 
development. 

Lessons Learned 

All the operations so far conducted by the international community, if seen as inte- 
grated efforts including pre-war, war and post-war phases, have demonstrated that 
they can fail, not because of military blunders or lack of power, but because of: 

Dimensional Disconnect. The preparation and conduct of the war is global while 
the post-war management is local; or vice versa (unilateral war and multilateral 
post-war management). All operations since the 1991 Gulf War have required a 
global engagement. All nations have been asked to unite in the effort of war and 
subsequently for peace support operations. However, immediately after the fight- 
ing, all solutions of the crises have looked for divisions — the Dayton syndrome. 
The new imperatives have been divide, separate, cantonize, decentralize. In so do- 
ing, regional security actors have been neglected or seen as part of the problem but 
not part of the solution. In Afghanistan and Iraq, the trend of war was the opposite, 
but the multilateral post-war effort still does not include the regional forces and 
their responsibilities. 

Elusion and Illusion. In this post-Cold War era, we have developed the belief that 
the use of military arms is humanitarian; we do not wage war, we ensure peace. We 
are good and we produce a "success story" every day. This irenic approach eludes 
the concept of war and produces many illusions that are present in the behavior of 
many military organizations and administrators. Their claims of successes are so 
evanescent and groundless that trusting them becomes a real risk. 



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Oversimplifications. Politics seems to have lost the sense of complexity it has al- 
ways had and that made its management a real art. Instead of understanding com- 
plexity and elaborating new approaches to the problems, our political system has 
resorted to simplifications and often oversimplification. For example: 

• Democracy means elections — the sooner the better. Huge and powerful 
international organizations are devoted to this mantra and rush entire 
populations that have never had a democratic system into elections. But who are 
the candidates? How are the rights and fair representation of minorities 
protected? During the crises, whoever gets in power normally has the support of 
guns or the protection of foreign forces. In both cases the "free" elections risk 
legalizing the change of power and strengthening the power of unknown entities 
or individuals. 

• Freedom means free markets. Free market means free competition; but what 
about local economies that cannot compete? Local resources will never have the 
chance to grow independently. In many instances, local and international mafias 
will benefit from a market where everything has to be imported and where there 
are weak governments or collusive forces facilitating the evasion of taxes and 
controls. 

• Free economy means a unified currency. The first step international 
monetary authorities take is to establish a convertible currency. But converting 
what? Coming from where? Acquired through what? What about money 
laundering? 

• The managers of after- war periods tend to assume that the basics of the 
society hit by a crisis have not changed during the war. This is not only an 
oversimplification; nothing is less true. War changes almost everything, but in 
particular it changes the people. Before, during and after the war entire 
generations are lost because of the killed and missing in action, the wounded, the 
massacres and reprisals on civilians. Generations of "could be" fathers and 
mothers are lost. But during these periods, generations are also lost deprived of 
educational opportunities during the war. This compounds the inadequacy of the 
education they received from the previous regimes, and the ideological, racial, 
ethnic biases of their upbringing, biases reinforced by the vicious cycle of violence. 

• We in the West tend to face the problems only when violence erupts. But in 
almost all instances it is already too late. We started dealing with East Timor in 
1999, but the crisis started in 1975. The most dramatic genocide in the world (in 
terms of the percentage of the existing population) was perpetrated during that 
period and nobody seemed to care. Everybody knew that Marshall Tito's death in 
1980 would start the dissolution process of Yugoslavia, but from 1980 to 1992 no 

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one seemed to care. NATO brought war to Yugoslavia during the Kosovo crisis in 
1999, but the problem had started ten years before, in 1989, when Milosevic raised 
his nationalistic stance against the province. In those ten years, the Serbs took 
away the autonomy Kosovo had enjoyed since 1948, and the Albanian ethnic 
groups were forced out of the government and denied an adequate education; 
finally resorting to open violence. A Catholic priest in Kosovo once said to me: "it 
takes a lifetime to shape a man and 24 hours with a gun in the hands to spoil his 
life. All these kids that tasted the power of violence will never be the same." And 
those children that lived in constant contact with war relics, unexploded 
ordnance, landmines and under the protection of foreign military forces will 
never be the same. Generations that are supposed to reshape the future of the 
country are simply non-existent or wholly unprepared for the task. An 
international observer noted in Western Africa, "The sons are less educated and 
more violent than the fathers." This is an equally unfortunate truism in the 
Balkans, Afghanistan, East Timor, Somalia, Rwanda, Palestine, Iraq, and 
elsewhere visited by the violence of war. These are historical defeats for our society 
because the "fathers" were raised through colonialism, communism, extremism 
and fundamentalism — all manifestations of the "evil" from which we liberated 
them. The international community tends to replace every loss with temporary 
foreign manpower and in so doing they perpetuate the delay in recovering the lost 
generations. Finally, within these societies, there are also lost expectations, lost 
hopes, and lost ideals, and these losses aggravate the recovery plan. 

• Reconstruction by the few. In all of the after-crisis periods a handful of 
international companies are given the task of reconstruction. Normally these 
companies belong to the same nations that "donate" the resources for 
reconstruction. The money basically returns to those who gave it. The local 
manpower is scarcely involved and since such companies are technologically 
advanced, their costs tend to be much higher than the average local standards. In 
periods of emergency, through so-called international community and then 
replacing the governmental structures that existed before the crisis is not ready to 
exercise control over the foreign money and over the reconstruction plans. 
Therefore the opportunities for speculation, profiteers, black market, crime, tax 
evasion and so on are great. 

• Another maniacal effort immediately undertaken is "privatization." Former 
State-owned enterprises, cooperatives, farms, and industries are disbanded and 
thousands of workers laid off. The international administrators do not want to 
appear undemocratic and they immediately tend to shape the local economy 
according to free market models that it took centuries to develop. Almost 



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everywhere, this abrupt effort does not fit a situation where property rights are 
unclear, ethnic or religious divisions make it difficult to be fair, and where societal 
needs require labor occupation and not unemployment. 

• Last but not least, intervenors intervene without defining the desired "final 
status" of the crisis area. It is a sign of hypocrisy and inefficiency to give hopes and 
fuel expectations that would be difficult to keep. It is also difficult to think that one 
model of society could work for every corner of the world. Furthermore, the delay 
of the realization of the final status in the absence of a strong, efficient, impartial 
and transparent administration supports the creation of failed States, quasi- 
States, rogue States and mafia States. The final status must be defined and agreed 
upon before the international intervention with clarity and courage. That status 
must be compatible with international standards but first and foremost must be 
compatible with the local and regional reality. No single hot spot can be dealt with 
in isolation from its environment. 

Fire and Forget. This tendency is not new, but has regained conceptual support 
during the last decade. The military instruments are the only readily available and 
organized tools to turn to in emergency situations. The political imperative to "do 
something" (which is also a sign of political weakness) finds it easy to resort to mili- 
tary action first. Unfortunately, the lack of comprehensive planning of the pre-war, 
war and post-war phases and of any kind of holistic approach makes it also easy to 
identify the emergency circumstances, respond to the crisis areas and then forget 
them, leaving the military behind. Peacekeeping missions start in the spotlight of 
public support and emotion but very soon are neglected and forgotten. 

Civil-military Relationship. Another lesson drawn from recent operations is that 
the relationship between the military forces and the non-military administration is 
always problematic, but it becomes a disaster when the international community 
or the sending States allow: 

• Multiple chains of command. 

• Different reporting lines (national, international, private). 

• Different priorities, concepts of secrecy, concepts of reliability (vis-a-vis the 
locals). 

• Different approaches: emergency vs. sustainable development, bureaucracy 
vs. results, local vs. regional, politics vs. administration, success story vs. true 
story. 

• Uneven access to the political leadership and feedback. International 
organizations and corporations have much easier access to the "political masters" 

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than do the military commanders. Normally layers of political, diplomatic, 
economic, religious and other advisors screen the access of the military to the 
decision makers who, often unable to get the military assessment as it has been 
stated by the commanders, tend to take the wrong decisions or prefer the always 
"good news" stories those advisors want to present. 

• Security not to be integrated in the development and reconstruction 
strategy. In the minds of many civil administrators and politicians, security is 
often confined to "armed protection." The international civil administrations do 
not like to see the military around or inside their briefing rooms. Peacekeeping is 
mistakenly seen as a pacifistic and idealistic effort and many international civilian 
peacekeepers (administrators) come from personal backgrounds of conscientious 
objection, anti-military activism, and other "noble" endeavors. Many, of course, 
know that without the military it would be impossible to cope with emergency 
situations, but many others think it would be better to leave the military home or, 
if military forces are absolutely necessary, to send them away as soon as possible 
once the initial emergency is in hand. Almost all these administrators do not 
include the military aspects of security in the plans they make — roads and bridges 
are rebuilt without considering defensive or military requirements; industrial 
complexes and plants are rebuilt and managed regardless of their vulnerability to 
internal and external sabotage; mines and minerals or other natural resources are 
left in the hands of engineers and managers totally unaware of security issues. 
Furthermore, the reconstruction plans do not consider the indirect effect a 
military presence has on local development and the indirect and direct protection 
of minorities and their patrimonial sites. This security factor is either taken for 
granted or completely missed. There is always a great push towards a so-called 
"de-militarization" or effort to diminish the presence of the military without 
having restored an effective security system. A reduction in the foreign military 
force is always a great confidence building measure, but it must undertaken only 
when accompanied by a real improvement in the security environment, and, most 
of all, the diminution of visible aspects of security must be balanced by invisible, 
but not less effective, measures of security (intelligence, deterrence, reassurance, 
reserve forces, civil-military cooperation, information campaign, psychological 
operations and military- to-military cooperation). Finally, the great value that the 
military-to-military relationships have in the regional context is very seldom 
considered. The occupying military forces are denied opportunities for regional 
or wider contacts with the military forces of the area on the assumption that a 
relationship with neighboring foreign forces could invade the realm of foreign 
policy. In this way a basic and effective tool of cooperation is often neglected. 



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The latest international operations have also demonstrated that nobody can act 
alone. No matter how powerful and strong a nation, the participation of allies and 
friends is always advisable and necessary. Coalitions of the willing are not enough if 
they exclude traditional partners or potential critics. Critics must be always in- 
volved and their views solicited and considered. Furthermore, the single-sided ap- 
proach (the military wage war, civilians manage pre-war and post-war) creates 
further disconnects and a vacuum of power that is immediately filled by thugs, 
criminals and extremists. Without an integrated approach to pre-war, war and 
post-war operations, the transition periods, no matter how smooth or short, em- 
bed the seeds of failure for the entire operation. It is during these periods that the 
major contrasts between military operations and civil administration are most ap- 
parent and that both the military and civilian sides are most vulnerable. During the 
transitions the huge amount of money that international "solidarity" has poured 
into the crisis area cannot be controlled and these monies create enormous possi- 
bilities for criminal organizations and other profiteers. It is also during these tran- 
sition periods that oversight of the local political system is reduced. Often a 
struggle for internal power delays political development. 

The "Liberation Syndrome." It is often stated that modern military operations 
and wars are not waged just to defeat an enemy but to free a country or a popula- 
tion. Of course this is a true statement and it is the only appropriate motivation 
that a modern civilization can have to justify war against someone that does not 
pose a direct threat to the sovereignty- of our countries nor possess the military ca- 
pability or power in whatever form to threaten our basic security'. But the aim of 
"liberation" cannot be misused or abused. Liberation is not a status granted by in- 
tervening foreign forces or freely claimed by insurgents, but it is acquired through a 
self-determination process guided by internationally recognized legal institutions. 
Self-determination is a fundamental principle of international law. The United 
Nations system is built on the concept of self-determination as expressed in the UN 
Charter. The inalienable right of self-determination stands as the very first article 
in the two treaties, the International Covenant of Civil and Political Rights 3 and the 
International Covenant on Economic, Social and Cultural Rights, 4 both adopted in 
1976, which, together with the Universal Declaration of Human Rights, 5 comprise 
the International Bill of Rights. The right to self-determination may be claimed 
and asserted only by the legitimate representative of a people or nation. The real- 
ization of the right to self-determination, through the attainment of sovereignty 
and legal personality, is governed under international law according to the follow- 
ing recognized factual criteria of Statehood: "The State as a person of international 
law should possess the following qualifications: (a) a permanent population; (b) a 



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defined territory; (c) government; and (d) capacity to enter into relations with 
other States." 6 In addition to these factual criteria, recognition is an important fac- 
tor in the granting of legal statehood. The General Assembly, responsible for ad- 
mitting members to the United Nations, is the most authoritative forum for State 
recognition, although bilateral recognition by other States is also an important fac- 
tor. However, the right to self-determination is not the same as an absolute right of 
secession from an established State. The territorial integrity and sovereign equality 
of States are also basic principles of international law recognized in the UN Charter 
and subsequent treaties. In the 1970 Declaration of Principles of International Law, 
the General Assembly affirms that every State must aid in the realization of the 
"self-determination of peoples" in accordance with the provisions of the Charter, 
but also that "nothing in the foregoing paragraphs shall be construed as authoriz- 
ing or encouraging any action which would dismember or impair . . . the territorial 
integrity or political unity of a sovereign State." 7 Similarly, the 1961 Declaration on 
the Granting of Independence to Colonial Countries and Peoples affirms both the 
right of all peoples to self-determination and the principles of territorial integrity 
and inviolability of State borders. 8 

In the last decade, "liberation," more than an expression of self-determination 
of the poor and oppressed, has become a "syndrome" of the powerful. It has also 
created dangerous ambiguity in the role of belligerent parties and occupying pow- 
ers. The misperception induced by the "politically incorrect" word "occupation" is 
greater than the reality, while the "good" word "liberation" fuels many misunder- 
standings. These include: 

• Liberators are not occupants; they cannot behave like occupying forces 

• Immediate liberation. In the minds of the liberated peoples they are free as 
soon as the liberating forces assume the control of the territory and come in 
contact with them. If small local irregular units happen to have contributed to the 
fighting, they become the heroes of the nation and the "freedom fighters." They 
demand immediate actions in removing the previous authority, freeing political 
prisoners or internees, arresting former officials, disbanding former State 
administrative agencies and State security organizations, including intelligence, 
law and order and administration. They expect the international community to 
allow freedom and rights not previously enjoyed. They expect that power will be 
transferred to them without any interference or delay. 

• Another perception is that of those who were persecuted by the previous 
regime want the power too. They are martyrs. They want the leading positions and 
they want revenge. 



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• Then there is the perception of the liberating forces. In this modern age 
there are no longer wars for territorial control or annexation. Nobody wants to 
modify the existing borders. Therefore, unlike the occupying forces of the 19th 
century, the so-called liberation forces do not want to control the territory; they 
simply want to accomplish whatever objective was set and then go home as soon as 
possible. They want to transfer the power to whoever could free them from any 
continuing responsibility. The liberators do not feel additional responsibility 
towards the "liberated" and are not psychologically prepared to use force against 
them; even if the failure to do so would allow the thugs to come into power or if 
disbanding the previous administration would mean chaos for decades. 

All this is very far from what the reality of the situation requires and far from 
what is anticipated by international humanitarian law (IHL). Liberation is a syn- 
onym of self-determination as far as the people or the nation that strive to attain in- 
dependence are concerned and it is a form of external "aid" to such an endeavor 
when foreign forces intervene. However, no matter the purpose of the conflict, the 
status of occupation paradoxically provides a greater legal basis than any other jus- 
tification for military presence and best ensures the protection and basic rights of 
the civilian population. Let us turn to the case of Iraq and see what occupation 
should imply. 

The following analysis contains extracts taken from a paper prepared as part of 
the International Humanitarian Law Research Initiative. 9 While somewhat 
lengthy, it provides an excellent discussion of the principles of IHL in the context of 
the military occupation of Iraq. 

The Fourth Geneva Convention [1949] and the Hague Regulations [annexed to 1907 
Hague Convention IV 1907] regulate the situation of belligerent occupation. They set 
forth a series of duties and obligations for the parties involved from Coalition forces to 
relief agencies and the Iraqi population itself. Their purpose is to ensure minimal 
protection of the civilian population and favor the stabilization of the security and 
living conditions in the territory under the control of invading forces. 



What is an occupation? 

The IHL follows a very practical approach in defining military occupation. It refers to 
factual control over a territory or a population. It does not require any form of 
declaration or intent of the invading forces. The motives for the presence of foreign 
military forces on the territory, be they liberation, self-defence, or enforcing pre- 
emptive doctrine, are irrelevant. . . . 



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What is the law of occupation? 

From the point of view of IHL, civilians in occupied territories deserve and need 

particularly detailed rules of protection The civilians have no obligation of loyalty 

towards the occupying power, regardless of the motives of the invading forces. The 
only obligations they have relate to their civilian status, i.e., not to participate in 
hostilities. . . . [Because of that obligation, IHL prohibits civilians from violently 
resisting occupation of their territory and from attempting to liberate that territory by 
violent means.] [Conversely,] the occupying power is subject to a series of obligations 
pertaining to the administration of the territories it occupies and the population it 
controls as a substitute and caretaker for the national authorities. 

When does occupation begin? 

The criteria for the application of the law of occupation are relatively straightforward. 
The law of occupation applies whenever, during an armed conflict, a territory and its 
population come under control of the enemy of the State authorities previously 
controlling that territory. (See Art. 42 of the Hague Regulations and Art. 2(1) and Art. 4 
of Fourth Geneva Convention.) The overriding concern of the IHL rules is to regulate 
the relationship between the civilian population and the invading forces as soon as the 
two are in contact, independently of the duration or motives of the military operations. 
In this context, even a military platoon occupying a village for a period of a few hours, 
has obligations to take care of the population (emergency health care, food and water 
supplies, etc.), not as a matter of charity but as a duty under the rules of IHL. The 
longer this occupation lasts, the more detailed the obligations become. In the case of 
Iraq, the fall of the regime certainly creates long-term obligations pertaining to all 
spheres of public services, from the maintenance of law and order, the administration 
of justice, the supply of food, water, and health services, and the administration of the 
Iraqi resources for the benefit of its people. 

When does occupation end? 

Occupation ends whenever one of the conditions of occupation is no longer met. 

1. The international armed conflict has ended. 

An agreement has been signed between the parties at conflict bringing to an end the 
armed conflict. In general, such agreement will involve the withdrawal of the 
occupying forces. There may be situations, however, where the former occupier will 
maintain a military presence in the country, with the agreement of the legitimate 
government under a security arrangement (e.g. US military presence in Japan and 
Germany). The legality of such agreement and the legitimacy of the national 
authorities signing it are subject to international recognition, whereby members of the 
international community reestablish diplomatic and political relations with the 



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national government. In this context, it is in the interest of all the parties involved to 
maintain a clear regime of occupation until the conditions for stability and peace are 
created allowing the re-establishment of a legitimate national government. A post- 
occupation military presence can only be construed in the context of a viable, stable 
and peaceful situation. 

2. Foreign military forces have withdrawn from enemy territory or are no longer 
exerting control over the population of that territory. 

In case of an ongoing conflict, the withdrawal of the forces also brings an end of the 
applicability of the law of occupation. It implies however that the enemy power has 
regained control over its population and territory. The mere withdrawal of troops 
from certain conquered places does not end or suspend the application of IHL rules if it 
leaves a vacuum of authority. The control of the territory and the legal duties involved 
remain in effect until the front lines have stabilized. Evidently, in the course of a 
military campaign where front lines can move back and forth many times and 
responsibility over the territory and population is unclear, the implementation of such 
rules can become impractical. However, in the case of the collapse of enemy forces, as 
in Iraq, the law of occupation applies to territories and populations entering into 
contact with invading forces, and remains applicable regardless of further tactical 
deployment of troops. In other words, there is no vacuum of authority or 
responsibility once troops have moved into a given territory. Obligations for the 
maintenance of law and order as well as all other obligations pertaining to occupying 
powers are applicable to the Coalition forces as soon as they drive Iraqi forces out of 
civilian areas. 

In both cases: 

• The hand-over of administrative functions to civil servants does not relieve the 
Occupying Power of its obligation; 

• The set-up of government structures by opposition groups with the continuing 
military presence of Coalition forces does not fulfil the conditions for the end of the 
occupation. If changes to the Constitution are required, it can only be amended under 
its own provisions and procedures or, in exceptional cases, under applicable 
international law and procedures. Agreements concluded by the U.S. or the U.K. with 
local authorities of the occupied territory or changes introduced by Coalition Forces to 
Iraqi institutions or to the government of Iraq cannot deprive protected persons from 
the protection offered by IHL (see Article 47 of Fourth Geneva Convention). 

• In all cases, the law of occupation applies until one year after the general close of 
military operations, and even beyond that date basic rules continue to apply, if the 
occupying power exercises the functions of government in the territory. (See Article 
6(3) of the Fourth Geneva Convention.) In addition, Protocol I contemplates the 



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extension of the full application of occupation law until the termination of occupation. 
(See Article 3(b) of Protocol I.). 

What are the obligations of the Coalition forces in Iraq? 

• In principle, life in the occupied territory must be allowed to continue as normally as 
possible. The obligations of the occupying power can be summed up as permitting life 
in the occupied territory to continue without being affected by its presence. As 
authority has passed into the hands of the occupant, it becomes responsible for public 
order, safety and welfare in the occupied territory. IHL is strong in protecting the status 
quo ante, while weak in responding to new needs of the population of the occupied 
territory. The longer the occupation lasts, the more shortcomings of the regime 
established by IHL therefore appear. Only international institutions such as the U.N. 
or new local authorities established in conformity with the right of the Iraqi people to 
self-determination can establish a new political system in Iraq. 

The legal implications of this approach are the following: 

Regarding internal security, the maintenance of law and order and public welfare 

• The occupying power's only protected interest is the security of the occupying 
armed forces; it may take necessary measures to protect that security, but it is also 
responsible to take all measures in its power to restore and ensure, as far as possible, 
public order and safety (see Article 43 of the Hague Regulations). In this context, while 
the U.S. is not responsible for every looting occurring in the territory it controls, it 
must exercise due diligence to avoid such looting. The claim that its forces are not 
sufficient in number or not appropriately trained is not a sufficient excuse; 

• Similarly, the U.S. and the U.K. are responsible for ensuring public health and 
sanitation (see Article 56 of the Fourth Geneva Convention) and the provision of food 
and medical supplies (see Article 55 of the Fourth Geneva Convention). 

Regarding the administration of justice 

• Except concerning the protection of the occupying power's security, local laws 
remain in force (see Article 43 of the Hague Regulations and Article 64 of Fourth 
Geneva Convention) and local courts remain competent (see Article 66 of the Fourth 
Geneva Convention); 

• Civilians may only be detained in anticipation of a trial or for imperative security 
reasons, which must be individually determined, allowing for a right of appeal (see 
Article 78 of the Fourth Geneva Convention). Such civil internees benefit from a very 
detailed protective regime under the Fourth Geneva Convention (see Arts. 79-135 of 
Convention IV); 



237 



Liberation and Occupation: A Commander's Perspective 

• It 'civilians commit hostile acts, they may be punished under legislation introduced 
by the occupying power, but do not lose their civilian status. They may however lose 
their communication rights (see article 5(2) of Convention IV). Unless they directly 
participate in hostilities, they benefit from the protection of civilians against effects of 
hostilities (see article 51(3) of Protocol I.) 

• In no case may a civilian be deported outside the occupied territory (see Article 49 
( 1 ) of Fourth Geneva Convention). 

Regarding property and resources 

• Except when rendered absolutely necessary by military operations, private property 
may not be destroyed (see Article 53 of the Fourth Geneva Convention) and it may 
only be confiscated under local legislation (see Article 46 of the Hague Regulations). 

• The government previously controlling the territory can obviously no longer 
administer public property (other than that of the municipalities (see Article 56 of the 
Hague Regulations). Such property may therefore be administered by the occupying 
power, but only under the rules of usufruct (see Article 55 of the Hague Regulations). If 
Iraqi oil wells were government owned, the U.S. may administer them and sell the oil. 
According to some opinions, it may use the proceeds not only for the benefits of the 
local population, but also, similar to levies, to cover the cost of the occupation (but not 
of the whole war) (see Article 49 of the Hague Regulations). 

As can be seen, the aim of liberation does not affect the status of occupation nor 
alter the relevant obligations. "Fire and forget" is not the kind of responsibility the 
IHL assigns to occupying powers. "Fight, pay and leave" is not what the civilian 
population can ask for. The criteria set by the law of occupation exactly fit the situ- 
ation of Iraq. 

Case Studies 

Afghanistan. In the case of Afghanistan, the "liberation" by the Coalition was nei- 
ther requested nor wanted by the Taliban regime that constituted the government 
of that country. The so-called "Northern Alliance" was not a resistance force but 
the remnant of a group of warlords opposing the unifying power of the Taliban. 
The Taliban regime, which itself pretended to "free" the country from the previous 
regime and the mujahideen under the banner of self-determination, was not recog- 
nized by the United Nations. In fact, after the Coalition's "liberation" the same 
warlord system of the mujahideen regime that preceded the Taliban has taken over 
local power, while the central government is able to perform a sort of loose control 
only over Kabul, and that thanks to the presence of US and NATO forces. During 

238 



Fabio Mini 



the mujahideen regime there were around 28 warlords and now there are at least 32 
war/drug lords. 

Iraq. In the case of Iraq, there will be no liberation until the Iraqi people have effec- 
tive, stable and legal (internally and internationally recognized) State institutions. 
Unfortunately, they have been prevented from liberating themselves from 
Saddam's regime. The assumed and promised popular revolution and participa- 
tion in the "liberation" did not take place. It was a gross misperception and a mis- 
take of evaluation on the part of many experts, worldwide renowned Islam 
scholars, intelligence agencies and naif politicians. On the other hand, there was no 
attempt to organize the participation of the local population in the coalition opera- 
tion was not organized, not foreseen and not even symbolically pursued. Perhaps 
the most widely remembered symbol of the end of the Saddam regime was the pull- 
ing down of the large statue in central Baghdad. But this was done by a US Marine, 
and the small crowd of Iraqis around it was chanting more for the sake of TV cam- 
eras than for joy. Most Iraqis had longed to liberate themselves from the Saddam 
regime, but were not given the opportunity to organize their own fight, not even at 
a symbolic level. Although coalition leaders brought with them Iraqis that were be- 
lieved to be potential leaders, these had no political credibility; they were viewed as 
puppets of the Western forces that had imposed hardship on the Iraqis for too long. 
Because there was no participation by the Iraqi population, the people had no oppor- 
tunity to rid themselves of regime propaganda and the atavist fear of the regime. They 
did not have the chance to understand the new situation and finally react. 

Paradoxically, like any other peoples that did not have the opportunity to free 
themselves from their own dictators, the Iraqis are now freeing themselves from 
the "liberators" — the Coalition. Liberation and freedom must be earned through 
self-sacrifice and cannot simply be given to them for free by someone else. The sta- 
tus of "liberator" is not one recognized by international law and liberation by "lib- 
erators" is not a guarantee of democracy or humanity. The Jewish internees of the 
Nazi lagers gained their freedom through their own martyrdom; they were already 
free in the face of God and in the face of the international community when the 
Americans and the Soviets opened the gates of Auschwitz, Buchenwald, Dachau, 
etc. Nevertheless, they saw their liberators as angels regardless of whether those 
military forces belonged to a Western democracy or a Stalinist regime. The major- 
ity of Iraqis view the Coalition forces as liberators, but they know that this recogni- 
tion does not give the Coalition any specific right over them, their resources, or 
their sovereignty. 

The majority of Iraqis recognized the Coalition as an occupying power respon- 
sible for restoring and ensuring public order and safety, because they knew they 



239 



Liberation and Occupation: A Commander's Perspective 

were incapable without that assistance of overcoming the resistance forces or even 
the criminal gangs that plagued their country. They were willing to postpone the 
establishment of their own freedom because of their lack of capability to maintain 
security. But if the occupying forces prove unable to ensure security or want to give 
up their own responsibility as occupying forces in order to appear "liberators," i.e., 
the good guys, they have no useful role to play and should leave. The people them- 
selves have the right to free their own country. Therefore, from the legal point of 
view, a temporary consensual military occupation is better than an indefinite stay 
in the ambiguous status of liberators. Furthermore, as soon as the "occupiers" give 
up their legitimate status and want to become just "liberators," ignoring their re- 
sponsibility to ensure security and freedom of movement, they can be seen as un- 
lawful occupants, making the struggle for liberty, or self-determination, against 
them lawful and justified. That's why in the periods of immediate post-conflict, or 
even during the phase of active combat against rebels or insurgents, the status of 
occupants is better than any other funambulism, at least until security is guaran- 
teed and civil institutions are able to control the internal situation. Until that mo- 
ment, the coalition forces should retain the status of occupying forces and comply 
with their relevant responsibilities under international law. Liberation and occu- 
pation is not a matter of self-labeling, but of international obligation. 

In the case of a coalition composed of belligerent and non-belligerent nations, 
the responsibility of ensuring respect for the norms of international humanitarian 
law as occupying forces resides with the individual nations even though the opera- 
tional or administrative leadership has been assumed by or delegated to a leading 
nation. Although some national forces may not accept the rationale for the war, the 
status of occupation is independent from their acceptance or non-acceptance of 
that rationale. Their de facto control over part of a territory even by a small unit 
render the national forces responsible for the fulfillment of occupying obligations. 
In Iraq, it is likely that the so-called supporting nations (Italy, Poland, etc), when 
assuming the responsibility of a sector, implicitly assume the obligation of occupy- 
ing forces even though that status is specifically recognized by the relevant UN res- 
olutions only with respect to the United States and the United Kingdom. On June 
28, 2004, the control of Iraq was formally handed over to Iraqi authorities. How- 
ever, coalition forces have not changed or given up their de facto control of Iraqi 
territory. It is highly questionable whether the nominal control residing in the 
hands of the local authorities is sufficient to end the "occupation regime," but cer- 
tainly it is not sufficient to amend the obligations that the coalition has towards the 
civilian population. 

It is clear that in their formal new status of "invited" forces, the national forces 
in Iraq cannot have fewer obligations than they did when their status was that of 

240 



Fabio Mini 



occupying forces. Furthermore, Iraqi forces have no power to control the security 
situation, lack intelligence and surveillance resources, and do not possess even the 
capability to adequately support the Coalition. In fact, the Coalition still has full 
control of the security instruments and their apparent status of "supporting" the 
local authorities is a fiction. As a matter of fact, the so-called "passage of sover- 
eignty" (in reality, according to international law, Iraq never lost its sovereignty) to 
the Iraqis has added the Iraqis themselves and their immature, unprepared, inef- 
fective security forces to the list of enemies of the criminals and the rebels. The early 
disengagement of Coalition forces from the obligations of occupation law, their 
desire to regain the fallacious status of "liberators," and their formal transfer of re- 
sponsibility of security to the provisional local institutions has ended the regime of 
occupation and also the right of resistance that such law recognizes to the Iraqi 
armed groups. 10 But it has also relieved the civilian population from their duty to 
not engage in violent resistance to the occupation. The formal end of the occupa- 
tion has paradoxically increased the risk of legalizing mass rebellion and fueling a 
civil war; the rebels can now clearly identify the Iraqi security forces either as col- 
laborators of the unlawful occupants or as internal enemies. 

Kosovo. In Kosovo, legally speaking, the war against the sovereign State of Serbia 
and Montenegro was waged by a regional security organization (NATO) in order 
to protect a minority legally and lawfully integrated into a sovereign State, but not 
to transfer to such ethnic group the sovereignty over the parts of Serbia, Albania 
and the Former Yugoslav Republic of Macedonia (FYROM) where they live. "Lib- 
eration" in this case and in this phase has the value of humanitarian protection and 
relief. That is why UN Security Council Resolution 1244 11 authorizing the NATO- 
led mission in Kosovo and the UN administration did not foresee any loss of sover- 
eignty by Serbia and Montenegro. 

The international administration of Kosovo that followed Operation Allied 
Force was often discussed both before and after the war with regard to its applica- 
bility to Iraq. Many experts and UN officials wanted to export the "Kosovo model" 
to Iraq. In fact several international officials and national military officials were 
transferred from Kosovo to Iraq in the early days of the invasion. I can testify from 
personal experience that among those international officials there were some good 
persons who had performed effectively, but there were others that had failed miser- 
ably during their tour in Kosovo. The suggestion of the "Kosovo model" for Iraq 
was a serious concern to all those who had lived through that painful, ongoing 
peacekeeping process. Kosovo has nothing to do with Iraq and the poor perfor- 
mance of the most prominent international organizations there did not justify any 
attempt to make a "model" out of it. The Kosovo model becomes even more 



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Liberation and Occupation: A Commander's Perspective 

irrelevant when being exported to a completely different situation, culture, men- 
tality and set of practical problems. The United Nations may have had little choice 
because other models were not available and the donor countries and the interna- 
tional organizations had somehow accepted the bureaucracy established in 
Kosovo. Because the different circumstances in Iraq were not understood, this de- 
cision was not very promising. Iraq required a new and clearly determined ap- 
proach; the failure to provide that approach does not bode well for the future. 

The United Nations imprimatur has great political value and good diplomatic 
value. Worldwide operations or initiatives cannot be effectively undertaken with- 
out the consent and the support of the United Nations. That said, in Kosovo, as in 
other missions it has undertaken, the United Nations proved completely ineffec- 
tive and even dangerous when administering a country or a territory. Kosovo is a 
small spot in the Balkans; officially a province of Serbia. It has a territory of 10,000 
square kilometers and a population of 2. 1 million. United Nations Interim Admin- 
istration Mission in Kosovo (UNMIK) 12 is, in effect, the governing institution in 
Kosovo and is responsible for running this province on behalf of the United Na- 
tions. A Special Representative of the UN Secretary-General (SRSG) is the highest 
international authority in that province. NATO, which brought war to Serbia- 
Montenegro because of the Kosovo humanitarian crisis, maintains Kosovo Force 
(KFOR), an international security force composed of NATO and non-NATO mili- 
tary contingents, in the province. The KFOR commander (COMKFOR) is the sec- 
ond ranking international official in Kosovo, but is not subordinate to the SRSG. 

Personnel of the United Nations High Commissioner for Refugees (UNHCR) 
are still, as of the time this article is written, working in Kosovo. Their main hu- 
manitarian work is finished and they are reducing their staff and handing over 
some responsibilities to the civil administration, but they still provide assistance to 
the local minorities. 

UNMIK is divided into four sections, which it calls "pillars," as follows: 

• Pillar I, under UN management, is responsible for police and justice affairs. 

• Pillar II (civil administration), also under UN management, is responsible 
for all aspects of organization of normal life; e.g., finance and payment, education, 
transportation, health, judicial affairs, UNMIK police, post and 
telecommunication, public utilities and many more. 

• Pillar III, an institution run by the Organization for Security and Co- 
operation in Europe (OSCE), is in charge of media development, 
democratization, police training, and elections/registration. 

• Pillar IV, run by the European Union, is responsible for reconstruction, 
trade and industry and public utilities. 



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Fabio Mini 



The SRSG is responsible to the Secretary-General, but must report to a Contact 
Group of eight nations. In theater, a special supervisory mandate is given to the 
QUINT Nations (the missions in Pristina, Kosovo of the Federal Republic of Ger- 
many, France, Italy, the United States and the United Kingdom). In 2002, when I 
took over as COMKFOR, UNMIK had 16,000 personnel assigned to it and KFOR 
32,000. In the period which followed, UNMIK was to slightly reduce its size, while I 
received the task to reduce KFOR to 1 7,000 personnel by the end of 2003. Other in- 
terlocutors included the staffs of the international non-governmental organiza- 
tions (400 non-Kosovars and 3000 Kosovars) and the police force composed of 
5000 international police officers and 5000 indigenous personnel. 

From the international humanitarian law point of view, the NATO-led forces in 
Kosovo should not have the status of occupation forces. Serbia signed an agree- 
ment allowing the foreign military presence on its own territory. However, under 
the requirement to use whatever means "to establish a secure environment" 13 
KFOR could have acted as a "de facto" occupant rather than a force "allowed" to be 
deployed there for a long time. This was prevented by the hurry the UN and NATO 
political authorities were in to declare the situation safe and secure. It is also pecu- 
liar that NATO and Serbia did not sign a status of forces agreement regarding 
KFOR. Instead, the immunity granted to the forces is regulated by the Framework 
for Provisional Self-Government in Kosovo issued by UNMIK itself. 

When I assumed command of the Kosovo Force in October 2002 (three years 
after the war), I had the good fortune to be aware of most of my legal limitations 
because I had served as Chief of Staff of Joint Forces Command Southern Europe 
that had, during the previous two years, been responsible for all operations in the 
Balkans. I was also fortunate in that exactly ten years earlier I led a mechanized bri- 
gade in the very first phase of an operation against organized crime in Sicily. At that 
time, in the aftermath of the assassination of two magistrates, the local government 
institutions were unable to cope with the distrust of the population and were not 
effective in countering organized crime. The Italian Army undertook this opera- 
tion with special police powers and deployed in Sicily for nine years before return- 
ing full control of the region to civilian law enforcement. When I assumed 
command of KFOR, I thought I understood all of the difficulties related to the rela- 
tionship with civil administration and law enforcement. I was also convinced that 
NATO forces had "liberated" the Albanian population and that both the Albanians 
and the Serbs were under control. During the previous three years there were no 
incidents or deliberate attacks against KFOR and the official reporting always de- 
picted some improvement. 

On taking command, I was also immediately challenged by some unusual legal 
aspects of my mandate. The first meeting scheduled after bidding farewell to my 

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Liberation and Occupation: A Commander's Perspective 

predecessor was with the Russian Representative at NATO who traveled from 
Brussels to Pristina for the sole purpose of complaining about the exclusion of a 
Russian liaison officer at some regular meetings with the Serbian Security Forces. 
The second meeting was with my Chief of Staff and the legal advisors to examine an 
official complaint presented by Amnesty International in reference to the alleged 
mistreatment of two Islamic diplomats by KFOR troops. The two diplomats had 
been arrested with clear evidence of conducting illegal activities while allegedly 
working for an Islamic NGO. I settled the dispute with the Russians in five min- 
utes, but Amnesty International is not satisfied with the answer NATO provided 
with regard to the two diplomats and that issue remains open. 

I soon discovered that the national caveats (the guidance provided by the partic- 
ipating countries with regard to their contingents), previously seen as "political 
gadgets" the diplomats like to play with, were directly affecting the mission of the 
contingents and limiting their rules of engagement. Some of them were also posing 
additional and unnecessary risks to our soldiers. For example, minimum use of 
force was allowed only in case of direct attack or hostile intent. The meaning of di- 
rect attack is clearly recognizable, but not so hostile intent. Generally speaking, the 
national caveats were clear, understandable and justifiable. More problematic was 
the interpretation of existing local law, the national law every soldier must respect, 
and international law. 

Any concerns that I had with potential legal matters and dealing with the differ- 
ing national caveats were insignificant when compared to the overwhelming prac- 
tical problems associated with carrying out KFOR's responsibilities. 

In exercising its responsibility for ensuring a safe and secure environment in 
Kosovo, KFOR had passed security tasks related to the protection of sensitive and 
patrimonial sites, border control, and freedom of movement, to local police forces. 
What I discovered after the first couple of weeks was that the situation was far from 
being safe and stable. The endless "successes" that contributed to the rosy picture 
were exaggerations, when they were not plain lies. In most cases, when real suc- 
cesses were reported, the following failures did not find their way into the reports. 
Security was sufficient only regarding KFOR self-protection. The ethnic hatred 
precipitating the war was still there and had worsened the situation of the minority, 
the Serbian population of Kosovo. The Albanian majority was conducting a steady 
"Albanization" of the province through blackmail, intimidation, assassination, 
and attacks on Serbian citizens and property. 

In addition, the reconstruction program was behind schedule with no prospects 
of improvement. The final political status of Kosovo was not even being discussed. 
The relationship with Belgrade was a disaster, with daily clashes and insults be- 
tween the SRSG and a Deputy Prime Minister of Serbia. The transition of power to 

244 



Fabio Mini 



the provisional government was not implemented. The local Assembly was rioting 
and the ministers wanted only more cars, cell phones and bodyguards. Notwith- 
standing three rounds of democratic elections, there was not a functioning govern- 
ment. Politically motivated assassinations were a norm. Some extremists had 
organized riots, demonstrations and the export of violence to southern Serbia and 
northern FYROM. 

Many of these security and governance issues stemmed from Kosovo's non- 
functioning economy. Unemployment impacted 80% of the population, crime in- 
fested every field of activity, the decentralization of powers to the municipalities 
had not even started, energy infrastructure was under constant sabotage, the judi- 
cial system was compromising with the thugs, the UN administration was thinking 
more about political games than "administration," extremists had taken over the 
control of legal parties and civil protection institutions, schoolteachers were on 
strike, and the miners were claiming their jobs. Kosovo was importing every item 
and not one single social system had been re-established. Energy production was 
below the average requirements for domestic electricity use. No industries, mines, 
or farms had been reactivated. The money poured into the province had already 
tripled the initial estimate for the full reconstruction. The results of this huge in- 
vestment (US $9 billion, without counting the military expenses) brought some 
good news for housing and roads, but the rest was a disaster. Nobody knew where 
$8 billion of the $9 billion had gone. 

War criminals were free to walk the streets and the International Criminal Tri- 
bunal for the Former Yugoslavia (ICTY), established by the Security Council to 
prosecute those who had committed war crimes during the ethnic conflicts of the 
1990s, was afraid to indict the Albanians that committed crimes against humanity. 
The international police, composed of police officers coming from 80 countries, 
was largely ineffective and under continuous threat. Some of them were com- 
pletely unaware of the local legal system, or of any kind of legal system for that mat- 
ter. Corruption was widespread. The local police were not only ineffective but also 
involved in crime through clan and family links. Many of these officers were so- 
called "former freedom fighters" who believed this entitled them to claim certain 
privileges, but did not impose upon them obligations to carry out their law en- 
forcement responsibilities. 

The entire system was biased by a diffuse blackmail: "Do not upset the Albanian 
population. We liberated them." Kosovo not only was going nowhere; even worse, 
there was a real risk that is would become a mafia State. The dangers were, in fact, 
greater than they had been two years earlier. It was not more military and law en- 
forcement forces that were needed, but a better and tougher use of a few forces 
against extremism, terrorism, crime, corruption and inefficiency. The huge 

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Liberation and Occupation: A Commander's Perspective 

intelligence asset that existed in Kosovo was oriented towards the wrong threats. 
These resources were focused on a supposed military threat from the Serbian Army 
and completely overlooked and neglected the destabilizing power of the Albanian 
former freedom fighters in the region and in Kosovo. It was clear that the only 
threat to the safe and secure environment that KFOR was tasked to create and 
maintain came from within Kosovo and not from outside. 

It was also clear that dramatic change was required. Within a few months, we 
started to arrest war criminals of any ethnicity indicted by the ICTY. Detention 
powers were used in a very discrete way and cooperation was improved with a weak 
judicial system that was relying on international and local judges. We started 
downsizing and changing methods of operations, allowing more cooperation with 
and support to the police, more participation in anti-crime operations, and in- 
creased utilization of the Over the Horizon NATO-led reserve forces. We built a 
comprehensive intelligence database and created a Joint Intelligence Operation 
Center, which incorporated all possible sources and all the intelligence agencies 
present in Kosovo. Within two months we were able to identify more than 5000 
criminal links within the government, the political parties, the social institutions 
and within the organization supposedly in charge of civil protection. Nevertheless, 
it took our Joint Forces Commander (JFC) and the Strategic Commander six 
months to "socialize" a new assessment of the situation with NATO political 
authorities. 

When the SRSG and I finally had the opportunity to present our views to the 
North Atlantic Council the facts on the ground had already proven the accuracy of 
our assessment. KFOR had arrested the first Albanians indicted by the ICTY while 
two members of the Kosovo Protection Corps, the civilian emergency service 
agency established by a 1999 UNMIK regulation, had just blown themselves up in a 
terrorist attack against a railway bridge. Attacks against the police stations had in- 
tensified, while we were able to disrupt a spring offensive in southern Serbia and 
FYROM through the arrest and detention of prominent extremists and criminals. 
Through cooperation with the judicial system, we were also able to put the detain- 
ees under judicial control. 

Unfortunately, as of the time this article is written, all these efforts now seem 
useless. The fight in Kosovo is not over yet and inter-ethnic clashes erupted again 
in March 2004. Recently, the SRSG, a former prime minister of Finland, a gentle- 
man and a highly respected politician, resigned. His frustration with the lack of re- 
sults and goodwill on the part of all concerned led to this harsh decision. 

The bottom line in Kosovo is that the seeds of a persistent, frustrating situation 
were planted: 



246 



Fabio Mini 



1. In the pre-war period when trust was placed in and help given to the wrong 
persons and priority was given to the military campaign without integrating war 
and post-war requirements; 

2. In the war period when the so-called freedom fighters were allowed to assume 
power with guns and perpetrate a sort of ethnic cleansing against the minorities; 
and 

3. In the post-war period when the power of extremists was consolidated 
through illegal activities and "democratic elections." Furthermore, the UN admin- 
istration was inefficient and plethoric; the international security forces were too in- 
dulgent towards the extremists, allowing them to become de-stabilizers and even 
criminal clans; and some nations and international organizations, still linked to the 
pre-war mentality of the extremists as victims, continued to assist them after the 
war by providing assistance and funding. 

Conclusions 

Because of a misperceived sense of "democratic" division of responsibility, military 
forces tend to be used as legitimate interpreters of the power of invasion, occupa- 
tion and liberation only during combat operations. As soon as the fighting ends, or 
is artificially declared over, civilian authorities, with no understanding of the situa- 
tion, assume decision-making responsibility. By the time local civilian rule is estab- 
lished and functioning, permanent damage has been done: pre-war structures have 
been destroyed by the war or no longer function, and the new structures are biased 
by compromise and corruption. 

During planning in advance of an operation, it must be determined and made 
clear who will direct the civil administration during the war and in its immediate 
aftermath, to include the kind of social, economic and security system that will be 
put in place, how the regional framework will be affected and what to do in order to 
prevent destabilization. 

In the last ten years we have tested the system to separate war from pre-war and 
post-war. We have identified the actors responsible for each phase as separate enti- 
ties. And we have proven that the system does not work! Pre-war is the realm of 
politics and diplomacy, but the military could be used much more than as a tool of 
diplomacy (coercive diplomacy). The military consequences must be dealt with in 
this period by defining the potential risk for our forces and also the destabilizing ef- 
fects of war on society. 

War is the realm of the military, but political leadership has an important stake 
in its execution. Particularly, political leaders must respect the priority of military 
operations and ensure that each provides a political value that contributes to the 

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Liberation and Occupation: A Commander's Perspective 

resolution of the crisis. What has to be avoided is the use of operations as a substi- 
tute for political action or to maintain ambiguity. Politicians cannot ask for short, 
surgical operations and then keep them going for years. They cannot camouflage 
war-like operations behind other names. Pre-war and war must be connected and 
have a unified political-military-diplomatic control center. The time for reaction 
during crises is becoming shorter and shorter not because threats are emerging 
overnight, but because the international community is very slow in acquiring the 
right intelligence, getting an honest and independent assessment, and then decid- 
ing what to do without indulging in bureaucratic politics. With fewer and fewer 
States maintaining standing armies, the preparation of the military instrument is 
becoming more difficult. In the meantime, military strategy and concepts are 
growing faster: the major risk of the pre-emptive war doctrine is that it requires 
military operations even before diplomacy is ready or has clear ideas on what to do 
afterwards. Early operations (pre-emptive) are at their extreme when anticipating 
the war before the enemy is recognised or before the friendly forces are ready or be- 
fore the objectives are set. During the war, any political request to end military op- 
erations, or to pretend they have ended, before a reasonable level of security is 
achieved has to be, if possible, contested. 

During the last ten years the post-war phase has been the most dangerous and 
unfruitful. Decision makers, both State and international, have applied the man- 
agement model of divide et imperato to Bosnia and Afghanistan, and it is currently 
under discussion for application in Kosovo and Iraq. The international commu- 
nity has applied this Roman Empire rule in the most unhistorical way: it has been 
applied indifferently to enemies within occupied territories, and, most impor- 
tantly, it has been applied to us and to our allies. The Romans used to divide every- 
thing that was too big and strong to handle as a whole, but they made sure they 
were able to control the separate pieces. For each situation, they had a tool to con- 
trol it: force, money, favors, or corruption. Every tool was legitimate. Instead of us- 
ing a variety of mechanisms, today the international community focuses on 
dividing entities without understanding it is losing any possibility of control. We 
have also divided ourselves by not only breaking alliances in order to form coali- 
tions, but by dividing the leadership and the tools to exercise power. 

We have established a substantial separation between civilians and the military, 
between the United Nations and national structures, between governmental and 
non-governmental entities, between NATO and the United Nations, between 
OSCE and the European Union, and so on. This separation has given birth to a 
myriad of chains of command, reporting channels, priorities and differing assess- 
ments. The results are that in all situations, from Somalia to Bosnia-Herzegovina, 
to Kosovo, to East Timor, Afghanistan and Iraq, international forces are not 

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Fabio Mini 



controlling the situation. In fact, in the last ten years we have missed the main 
point: the three phases of pre-war, war and post-war are not separate. Any attempt 
to keep them separate is artificial and the gaps between them favor the destructive 
forces, allowing them to infiltrate and destabilization to prevail. 

Another missed point is that conflicts are never limited to the hot spots. The rea- 
sons for crises are often very far from the time and space of the hotspot. We cannot 
hope to control a crisis just by pouring troops and missiles on the hotspot. We need 
to consider the regional balance and the international environment. We also have 
to consider the kind of side effects that can be expected in the medium/long term, 
and we must be prepared to cope with them. Nowadays, these side effects are rarely 
of a nature that the military can control. They are related to the economy, political 
balance, strategic resource management, social fields and, lastly, security. 

The three phases of pre-war, war and post-war are connected by security. In 
each phase there is a subtlety, a slightly different aspect of security, which remains 
the prerequisite. In the pre-war period, security is mainly a stability problem. 
There is something that threatens it. During combat operations, security is mainly 
a primacy problem in order to gain control over destabilizing forces, including the 
people for whom we fight. After the war, security is mainly a self-protection and 
rule of law problem. Military forces have a prime role to play in every phase, but 
they cannot act in isolation or be separated from politics, diplomacy, administra- 
tion and reconstruction. Some type of war cabinet must assume control over the 
crisis in the very early stages and provide oversight and direction, while respecting 
the unity of command. This war cabinet must also provide guidance on what to do 
before, during and after actual combat operations. No vacuum of power can be 
permitted, no transition can take place if the security requirements are not 
achieved, and no transfer of power can be executed if the political and administra- 
tive bodies are not ready to take responsibility. My suggestion is very simple, 
maybe even simplistic. War cannot be rushed into before all solutions are explored 
and attempts to peacefully solve the crisis are made. Politicians and diplomats 
must refrain from rushing into war "hoping" that it will solve the problem or just 
because "something has to be done." 

In the pre-war phase, military forces have the vital role of preparing for war, 
while emphasizing to the politicians and diplomats that waging war is not a pre- 
ferred option. Military leaders have a duty to highlight all possible options and 
their consequences, including the side effects on the economy, social system, re- 
gional and global assets. Military forces have a duty to prepare for short, intense 
operations that do not annihilate, and for a long, painful, uncertain and costly pe- 
riod of insecurity. They have to focus on strengthening their powers of deterrence, 
dissuasion, and "reassurance" more than their capability to destroy. Reassurance 

249 



Liberation and Occupation: A Commander's Perspective 

has a focal point in the military because it has to be credible and flexible, but it 
comprises both economic aid and confidence building measures. The military 
have to be prepared to participate in the temporary territorial administration of 
foreign countries, under different cultural situations. 

When operations begin, the military should use a reasonable excess of power to 
secure major objectives and defeat the enemy forces. They have to "manage" the 
excess of power and safeguard basic critical infrastructure needed for post-war op- 
erations and reconstruction. After major operations have been completed, they 
must be in control of those providing security and must guarantee the necessary 
framework for rehabilitation. They must not hand over control to so-called local 
police until security is re-established and stability ensured, until a judicial system is 
effectively functioning, until freedom of movement is re-established and general- 
ized violence is extinguished. In this phase, the military have to resist the desire to 
declare their mission completed and depart, the wish of the politicians to claim vic- 
tory and leave, the desire of the profiteers to transfer power to the civilian agencies 
or to the local clans, and the wish of the local population to have the military forces 
on the ground as a nice, money spending, non-interfering, gentle "close your eyes 
and open your wallet" organization. The military also has the duty to build re- 
gional security and therefore they have to engage all regional and international ac- 
tors in projects that build regional or wider security. Security in this phase is not 
only self-protection or the fight against extremists. Security and stability also entail 
economic recovery, reconciliation, return of refugees, prosecution of war crimes, 
maintenance of law and order, an effective judicial system, employment, resources 
management, nation building and regional confidence. Security is also bringing 
maturity and social development to the system: you are not free and safe if you are 
hungry or humiliated. 

Does accomplishing these things necessitate a long occupation under military 
rule? A difficult and extended period of responsibility for law and order and jus- 
tice? A significant share of responsibility over a long and painful period of recon- 
struction? In some circumstances, perhaps. Until international law evolves and 
becomes more relevant to current circumstances, occupation law must be consid- 
ered not as an instrument of invasion or prevarication, but as the only tool avail- 
able to clearly assume responsibility for and obligations towards the civilian 
population. It is not the best tool we can ask for, but it is a rule of law that will not 
mean an endless sequence of uncertainty, lack of control, civil-military separation, 
instability, and deaths. It will not allow compromising with the thugs, becoming 
guilty by association, and pouring indefinite, infinite and unaccountable resources 
into a black hole and, consequently, supporting new failed States, rogue States, 
non-States, quasi-States and mafia-States instead of new democratic entities. It will 

250 



Fabio Mini 



prevent spreading violence, destabilization, drugs and terror all over the world. It 
will mean a real unified engagement for a real liberation. 

Notes 

1 . This is based on the principle of the "inadmissibility of the acquisition of territory by war." 
International law views occupation as a temporary status during which the occupier is obligated 
first to end the occupation as quickly as possible and second to safeguard the rights of the 
occupied population during the temporary period in which the occupation is maintained. Any 
move by the occupier to infringe on the rights of the occupied or change the status of the 
occupied land through, for example, annexation, confiscation of resources, population transfer, 
or destruction of civilian property, is illegal under the Geneva Conventions. See, e.g., Geneva 
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 
U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR 301 (Adam Roberts & Richard 
Guelffeds., 3d ed. 2000). 

2. The legal status of combatants for the right to self-determination was defined by the General 
Assembly in 1973 according to the following principles: first, such struggles are legitimate and in 
full accord with the principles of international law; second, attempts to suppress struggles 
against colonial and racist regimes are incompatible with the UN Charter. Universal Declaration 
of Human Rights, GA Res. 217A, at 71, U.N. Doc. A/810 (1948); Declaration on the Granting of 
Independence to Colonial Countries and Peoples, GA Res. 1514, U.N. GAOR, 15th Sess., Supp. 
No. 16, at 66, U.N. Doc. A/4684 (1961). Such attempts themselves constitute a threat to peace 
and security. 

3. Adopted Dec. 19, 1966, 999 U.N.T.S. 171, reprinted in 6 INTERNATIONAL LEGAL MATERIALS 
368. 

4. Adopted Dec. 16, 1966, 993 U.N.T.S. 3. 

5. Supra note 2. 

6. Montevideo Convention on Rights and Duties of States, art. 1, Dec. 26, 1933, 165 L.N.T.S. 
19, 49 Stat. 3097, T.S. No. 881. 

7. Declaration on Principles of International Law Concerning Friendly Relations and 
Cooperation Among States in Accordance with the Charter of the United Nations, art. 2, GA 
Res. 2625, 25 U.N. GAOR, Supp. (No. 28) 121, U.N. Doc. A/8028 (1971). 

8. Universal Declaration of Human Rights, supra note 2. 

9. The IHL Research Initiative is a project of the Program on Humanitarian Law and Conflict 
Research, an international research and policy program based at the Harvard School of Public 
Health. The discussion set forth above is taken from Military Occupation of Iraq: I. Applicability 
of IHL and the Maintenance of Law and Order, Apr. 14, 2003, available at http:// 
www.ihlresearch.org/iraq/pdfs/briefing3423.pdf. 

10. Occupied people have the right to resist the occupation itself, as well as the specific illegal 
practices of the occupier. However, it is beyond dispute that attacks on unarmed civilians — 
whether by an occupying army or an armed resistance group — always constitute a violation of 
fundamental human rights and can never be justified under international law. 

11. SC Res. 1244 (June 10, 1999), available at http://daccessdds.un.org/doc/UNDOC/GEN/ 
N99/ 1 72/89/PDF/N99 1 7289.pdf?OpenElement. 

12. Established by the Secretary-General under the authority provided by SC Res. 1244, id. 

13. Id., para 9(d). 



251 



PARTY 



MILITARY COMMISSIONS 






XI 



Military Commissions: 
Old Laws for New Wars 



William K. Lietzau* 

Introduction 

The President's exercise of his constitutional authority to direct the Secretary 
of Defense to detain enemy combatants and to convene military tribunals to 
prosecute war crimes and other crimes triable by military commission 1 is both a 
lawful and practical response to the ascendance of terrorism. Though unpredicted 
by many, 2 and initially challenged as anachronistic, the exercise of jurisdiction by 
military commissions comports both with domestic and international law and can 
serve to advance the values that long have animated US national security strategy. 

The apocalyptic effects of al Qaeda's attacks of September 11, 2001 — the deaths 
of thousands of innocent civilians and the immutable gash in the skyline of our 
most populous city 3 — were pale harbingers of the significant changes to be 
wrought across the international and domestic landscapes when the United States 
initiated the Global War on Terrorism in response. That war, in turn, has intro- 
duced legal challenges that perhaps represent the quintessential example of the en- 
during impact of the attacks and the US response thereto. That the President 
should instigate a metamorphosis of old law to address the unique challenges of 
this new war was not surprising. History teaches that changes in the law are often 



* Lieutenant Colonel, United States Marine Corps. The remarks contained herein are personal 
reflections and do not necessarily represent the position of the US Marine Corps or the 
Department of Defense. 



Military Commissions: Old Laws for New Wars 



significant consequences of war. So too, this war on terrorism has challenged and 
continues to challenge the limits of the constitutive tenets that have defined our in- 
ternational and domestic orders throughout the last half of the 20th century. A fail- 
ure to participate thoughtfully and deliberately in fashioning the legal norms that 
are being developed — norms that will guide the global community for the next 
century — would constitute a missed opportunity of substantial moment. 

US post-9/11 counterterrorist activities, particularly in the legal realm, have 
been the subject of much criticism. The decision to use military commissions to try 
alleged terrorists is a notable example. US efforts to cultivate those changes in ex- 
tant law necessary to prosecute the war on terror frequently have appeared uncoor- 
dinated and ill-composed in immediate application. But this awkwardness is most 
accurately attributed to the fact that the progression in law required to deal with 
terrorism highlights both the confluence of what might previously have been 
viewed as disparate legal regimes — law enforcement and war — and the lacunae 
that reveal themselves in our attempts to merge the boundaries of these separate 
disciplines. 

Paradigm Shift 

To comprehend fully the issues raised by the decision to use military commissions, 
one must first recognize the significant strategic and operational shift associated 
with the 9/11 response. Historically, the strategy of the United States in responding 
to terrorism was grounded solely in law enforcement. 4 It was widely recognized 
and accepted that the magnitude of the 9/11 attacks, coupled with their penetra- 
tion of the American homeland, rose beyond mere criminal conduct, amounting 
instead to an act of war. 5 The almost exclusive law enforcement responses to past 
terrorist attacks would not suffice; the use of military force had become not only a 
legitimate option, but also a necessity. The US Congress recognized the changed 
nature of the terrorist threat when, on September 14th, it enacted a joint resolution 
authorizing the President to use "all necessary and appropriate force against those 
nations, organizations, or persons he determines planned, authorized, committed, 
or aided the terrorist attacks that occurred on September 11, 2001, and harbored 
such organizations or persons, in order to prevent any future acts of international 
terrorism against the United States." 6 

The military response to the events of September 1 1th marked the most signifi- 
cant use of military force in response to terrorist acts to date — what had for years 
been viewed and addressed as a criminal act now had started a war. This view was not 
limited to domestic observers. The use of military force in Afghanistan in response to 
9/1 1 was well received both internationally and domestically. 7 On September 12th, 

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William K. Lietzau 



the Security Council passed a resolution expressly recognizing the right of the 
United States to respond in self-defense. 8 Days later, the North Atlantic Treaty 
Organization (NATO) took the unprecedented step of passing a resolution citing 
Article 5 of the NATO Charter. 9 Separate resolutions of the ANZUS and Rio Pact 
nations similarly condemned the 9/11 attacks as attacks on their respective collec- 
tive memberships. 10 

Though the need to respond to terrorism via the armed conflict model was 
manifest — primarily as a preventive measure — it was undoubtedly attended by 
punitive aspects traditionally associated with law enforcement concepts. Similarly, 
in crafting the associated new legal paradigm, the United States incorporated ele- 
ments of both law enforcement and warmaking. This was no mere academic 
choice, but one required by the circumstances at hand. Oliver Wendell Holmes's 
observation is appropriately recollected, "the life of the law has not been logic, but 
experience." 11 We were and remain clearly at war, but the stated objective of that 
war was and is, at least in part, to bring wrongdoers to justice. 12 

In theory, an act subordinate to and lawfully consistent with the decision to en- 
gage in armed conflict should enjoy support commensurate with that attending the 
core decision itself. 13 But that has not been the case. 14 The armed conflict model for 
addressing terrorism, most prominently embodied in Operation Enduring Free- 
dom, 15 was accompanied by a number of subordinate actions that did not enjoy 
such a sanguine reaction within the international community. Issues related to the 
detention of alleged terrorists at Guantanamo Naval Base, Cuba, 16 and the pro- 
posed plan for prosecuting alleged terrorists before military tribunals 17 are most 
conspicuous among those that have been the object of international condemna- 
tion. Yet, these decisions are a natural outgrowth of the paradigm shift from one of 
law enforcement to one of war. Legally and logically, military tribunals are a natu- 
ral extension of the President's authority as Commander-in-Chief of the armed 
forces; they are not a function of the United States' judicial authority as is so often 
claimed. 18 Domestic and international criticisms of the President's decisions have 
been cloaked in sweeping allegations of illegality. The apprehension animating 
those claims, however, is most frequently a misperception of an abuse of judicial 
authority or misidentification of policy concerns generated by the imperfect 
merger of the two relevant bodies of law. 19 

Executive versus Judicial Authority 

The first misperception is the most widespread and also the most easily defeated. 
Much of this criticism is simply the natural consequence of continuing to address 
discrete acts related to the war on terrorism as if they fell squarely and solely within 

257 



Military Commissions: Old Laws for New Wars 



the law enforcement arena. A response to terrorism framed solely in the law en- 
forcement paradigm — particularly when the detention and trial of accused indi- 
viduals is involved — invokes a body of law requiring significant procedural due 
process and according a suspect or accused a plethora of substantive rights. In ad- 
dition, the concept of trials by military commission invokes a feature of domestic 
law that itself has been scrutinized substantially: procedures and rights attending 
the criminal trials of accused persons in civilian courts have been the subject of ex- 
tensive legislation, have been implemented in detail by the executive branch of our 
government, and continue to be the object of considerable judicial scrutiny during 
the process. 

Critical aspects of a wartime terrorist trial militate against using procedures and 
rules of evidence akin to those employed in times of peace in civilian jurisdictions. 
Criminal justice systems are not attuned to — nor could they be readily adjusted to 
accommodate — unique aspects of the law of war such as the indefinite incarcera- 
tion of enemy combatants for the duration of hostilities. Processing an alleged ter- 
rorist through the civilian court system would likely implicate speedy trial and pre- 
trial detention review norms that could be completely unworkable during armed 
conflict. An alleged terrorist detained for trial in the United States, for example, 
would have the right to appear before a federal judge within forty-eight hours of 
apprehension. At that juncture the judge would receive evidence to determine 
whether there existed probable cause that the crime had been committed, that the 
accused had committed it, and that pre-trial detention was necessary. 20 But a na- 
tion at war cannot be expected to pull military commanders from the battlefield to 
present the necessary evidence for such a judicial determination. 

War crimes investigators would likely be hamstrung by a civilian court's strict 
rules of evidence. Such rules could prove counterproductive from both prosecu- 
tion and defense perspectives. For example, it is far less likely that law enforcement 
investigators will be able to secure evidence amounting to more than hearsay (in- 
admissible in most US courts) or to document the chain of custody associated with 
the warrantless seizure of evidence from a remote Afghan cave by a military unit 
under fire. In civilian courts, these rules are often thought to operate to the detri- 
ment of the government, but in a war crimes trial held outside the accused de- 
tainee's country of residence, a rule favoring the admission of relevant evidence 
without regard to hearsay or established chain of custody might greatly assist the 
accused as well. 

Another difficulty created by deferring to an extant peacetime criminal justice 
system is that the circumstances and evidence associated with a war crimes trial or 
trial for acts of transnational terrorism during an ongoing conflict are likely to re- 
quire the production and disclosure of intelligence collection methods and 

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William K. Lietzau 



sensitive intelligence products to a degree rarely, if ever, encountered during civil- 
ian trials. The presentation of classified information in sensitive federal criminal 
prosecutions, while not routine, is possible under the Classified Information Pro- 
cedures Act of 1980. Those trials are not normally conducted during an armed 
conflict, however, when the sensitivity of relevant intelligence information is at its 
peak. It is reasonable to presume that the presentation of classified information 
under seal and the requirement that defense attorneys submit to security clearance 
background checks would affect each and every terrorism case, substantially in- 
creasing the scope and volume of procedural safeguards required, escalating dramat- 
ically the cost of mounting such prosecutions, and contributing to extensive delay. 21 

There also exist a number of civil rights and prophylactic judicial rules that 
have no practical currency in a wartime prosecution regime. For example, a 
Miranda-like rights advisement is unlikely to be part of the operational doctrine 
of US ground troops when they take enemy combatants prisoner; 22 and an 
exclusionary rule in such instance would do nothing to further the rule of law or 
civil liberties of cave-dwelling terrorists. Similarly, statements made by alleged 
terrorists during initial interrogations are unlikely to have been preceded by a 
rights advisement. Certainly we cannot intend for intelligence debriefers to ques- 
tion only those detainees who have waived the right to silence and to consult a 
lawyer. And if there is no extant right to a lawyer during the debrief, there is no 
value in an exclusionary rule to guarantee compliance. These and like issues invoke 
legitimate concerns that have been addressed incrementally over years of practice 
in civilian courts. 

Conversely, most actions associated with the conduct of war are governed by far 
less developed legal frameworks — domestically, the President's executive author- 
ity in the war-making arena and internationally, the law of armed conflict. It is in 
those arenas to which the law of war does not speak that hiatuses in the nascent le- 
gal paradigm associated with the Global War on Terrorism naturally reveal them- 
selves. That these matters have been subject to heavy regulation in the law 
enforcement field exacerbates perceptions that the law of armed conflict is inappli- 
cable or insufficient. Critical sensibilities are understandably influenced by famil- 
iarity with the criminal justice system. Those sensibilities yield negative visceral 
reactions to war-related actions that are readily, but inappropriately, analogized to 
law enforcement. 23 

The problem is compounded further by the existence of parallels between the 
areas in which war-related decisions may appear to correlate to actions normally 
associated with the criminal justice system and criticisms of those very aspects of 
the criminal justice system from another camp. Some argue that substantial defi- 
ciencies mar our criminal law enforcement system — deficiencies associated with 

259 



Military Commissions: Old Laws for New Wars 



an overly charitable extension to criminal defendants of due process and other sub- 
stantive rights. 24 The relatively flexible and unregulated norms associated with the 
law of war may then be seized upon as affording a welcome opportunity to avoid 
the overdeveloped procedures of federal criminal practice. The shadow of the OJ 
Simpson trial and its sensationalized treatment in the press cast a pall over any 
thought of a significant terrorist trial. This backdrop, coupled with the under- 
standable need to protect classified intelligence in the national security trial of an 
alleged terrorist, may cause some to fear a Republican-led governmental overreac- 
tion to the prospect of a media-focused trial. They may also fear use of the intelli- 
gence protection rationale as a subterfuge to hold secret proceedings that will 
conceal a related erosion of civil liberties or trial-related human rights. 25 This per- 
sistent undercurrent lends a patina of credibility to some who would question the 
motives of those that elect to proceed within the law of war framework. 

All things considered, past experience may prompt the conclusion that there ex- 
ists no rubric under which terrorists can be held accountable for their crimes. What 
some see as criminal justice deficiencies and others view as appropriate procedural 
protections may in fact yield only systemic ineffectiveness when applied to the 
problem of international terrorism. The standard "extradite or prosecute" model 
simply has not worked, and to the extent it can be made to work in individual cases, 
one may question our ability to prosecute any sizeable number of alleged terrorists 
in the context of an expensive and over-laden US federal court system. 26 

Despite the contumely of some pundits, military commissions are not the novel 
concoction of clever Bush Administration attorneys. Since before the birth of the 
United States, "warriors have used such tribunals to determine the guilt or inno- 
cence of their fellow warriors for violations of the law of war." 27 The Supreme 
Court has consistently upheld as constitutional the trials of belligerents by military 
commission. 28 In establishing military commissions, the President has sought to 
navigate adeptly the confluence of law enforcement and the law of armed conflict, 
and at the same time to fill gaps in our legal landscape in a principled way that fur- 
thers the interests of the rule of law. 

In addition to being well-grounded legally, the military commission decision 
is logically sound as well. President Bush's use of the military instrument in- 
volved a prolonged, deliberate, "boots on the ground" operation with the objec- 
tive of killing or capturing terrorists and destroying their networks. To then shift 
to a law-enforcement paradigm after capture might appease certain human rights 
activists in the short-term, but it would create a perverse dynamic on the battlefield 
that could undermine the most fundamental tenets of the law of war. By further ex- 
tending the use of the military instrument in authorizing the use of commissions to 
try enemy combatants, President Bush eliminated that potentially absurd dilemma 

260 



William K. Lietzau 



for the US soldier on the battlefield — whether to capture or kill an enemy who 
clearly will continue to pose a threat to the United States, and who, in this case, 
maintains no affiliation with a parent organization that, in more conventional cir- 
cumstances, could direct surrender. 29 

Enforcing the Law of War: Military Commissions versus Courts-martial 

Almost 50 years ago, Israeli Ambassador to the United States Abba Eban described 
international law as the law "the wicked do not obey and the righteous do not en- 
force." 30 For years, the international law of armed conflict has lacked an enforce- 
ment mechanism. 31 The President's Military Order of November 2001 created a 
framework for military commissions and set in motion a process to fill this void in 
the enforcement of the laws and customs of war. 32 Conversely, cynics view the Or- 
der and the commissions it establishes as an attempt to circumvent normal crimi- 
nal procedures — a kangaroo court that eschews burdensome due process 
requirements, providing a mechanism to bring alleged terrorists to justice in a 
fashion that favors efficiency over human rights and civil liberties. 33 These con- 
cerns are partly a consequence of the changed circumstances associated with ter- 
rorism. More simply, however, they reflect that the President's chosen path 
regarding the prosecution of alleged terrorists — by military tribunal — has not 
been traveled in decades and improvements to that path, although identified as 
necessary years ago, have not yet been implemented. 

After defining persons subject to the President's Military Order (terrorists and 
those who aid and abet them if designated as such by the President), 34 the Order 
clarifies that such persons will be held by the Department of Defense and, if tried, 
tried by military commission as opposed to some other forum. 35 Lawyers, human 
rights groups, and foreign capitals criticized the Order for derogating so substan- 
tively and substantially from relevant due process guarantees — regardless of the 
war/law enforcement paradigm shift. 36 Critics were somewhat quieted by the Sec- 
retary of Defense's implementing order issued four months later, 37 but subsequent 
steps in the direction of trial, such as the publication of additional implementing in- 
structions restoked the anti-commission fires. 38 In the almost three years subsequent 
to promulgation of the Order, only eleven individuals have been designated as sub- 
ject to its jurisdiction; two of these were subsequently transferred to the United King- 
dom, their country of citizenship, and released. Although truncated preliminary 
hearings have been held in several cases, no trial has yet proceeded to the presenta- 
tion of evidence on the merits. 39 

Delays and difficulties notwithstanding, however, we simply cannot avoid the 
mandate to conduct trials. Every United States president who has faced terrorism has 

261 



Military Commissions: Old Laws for New Wars 



spoken of bringing its perpetrators to justice. 40 Moreover, international crime is 
clearly a growth industry, and its law enforcement complement has not kept pace. 

It is useful to note that historically, military commissions have been viewed as a 
means of injecting a civilized, judicial component into an otherwise uncivilized 
chaotic world where killing is authorized and the fog of war often obscures the 
moorings of civilization. This military authority 41 has been used previously in three 
different roles: 1) to try individuals who violate the laws of war; 2) to administer 
justice in an occupied territory; and 3) to serve as a general court in an area where 
martial law has been declared and the civil courts are closed. 42 With respect to the 
Global War on Terrorism, we are primarily dealing with the first category of con- 
flict-related offenses, but the likelihood that commissions may be needed in the fu- 
ture under other circumstances may play into the analysis of whether their 
establishment is a worthwhile endeavor. 43 

From a domestic perspective, the authority to convene military commissions 
derives from the President's Article II Commander-in-Chief powers. 44 As Justice 
Douglas noted, the executive's power "is vastly greater than that of any troop com- 
mander. He not only has full power to repel and defeat the enemy; he has the power 
to occupy the conquered country and to punish those enemies who violated the 
law of war." 45 Congress has also explicitly acknowledged the President's preexist- 
ing authority in this regard. A pertinent provision of the Uniform Code of Military 
Justice (UCMJ) provides, "The provisions of this chapter ... do not deprive mili- 
tary commissions ... of concurrent jurisdiction with respect to offenders or of- 
fenses that by statute or the law of war may be tried by military commissions " 46 

A subsequent provision of the UCMJ authorizes the President to adopt regulations 
for military commissions. 47 Further, in subsequent related legislation, Congress 
appears to have taken great pains to ensure continued recognition of the Presi- 
dent's authority with respect to military commissions. 48 A common cry among 
uniformed judge advocates, many of whom have spent years defending the mili- 
tary justice system from claims that it is inferior to civilian courts in protecting the 
rights of the accused, 49 is that military commissions are no longer necessary be- 
cause courts-martial now have jurisdiction over the same set of offenses triable by 
military commission. 50 Therefore, the argument goes, we now should use the 
UCMJ as a guide because it contemplated, or should have, wartime exigencies. At 
the outset, we should recognize that the extension of jurisdiction over law of war 
violations in the latest rendition of the UCMJ is not as revolutionary as some might 
think. In enacting the current version of the UCMJ, first introduced in 1950, 51 
Congress made a conscious decision to continue including the identical language 
found in a 1928 version of a Manual for Courts-Martial, 52 which clarified that the 
Articles of War did not "deprive military commissions ... or other military 

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William K. Lietzau 



tribunals of concurrent jurisdiction with respect to offenders or offenses that by 
statute or by the law of war may be tried by military commissions ... or other mili- 
tary tribunals." 53 The 1950 Manual for Courts-Martial also extended that jurisdic- 
tion to general courts-martial — but only to the extent that military commissions 
already possessed such jurisdiction as a matter of custom. 54 Since adoption of the 
UCMJ, no war crime has ever been successfully tried by court-martial. 55 In fact, 
during the well-documented trial of Lieutenant William Calley on charges of pre- 
meditated murder related to the My Lai massacre, an appellate court noted in a 
footnote that there had been some consideration given to trying another alleged 
perpetrator for war crimes, "by military commission. . . ." 56 

Lack of historical use aside, the real weakness in the argument for the use of 
courts-martial to try terrorists — or war crimes in a more general sense — is that 
the UCMJ's evolution over the years has weakened its utility in this regard. Since 
the end of the Second World War, the UCMJ has been continuously modified, 
not to account for expanded jurisdiction involving violations of the law of war, 
but in response to perceived due process deficiencies in the forum — the possibil- 
ity of trials inadequately sensitive to defendant rights that prevailed during Word 
War II and the years immediately thereafter. The response has been to make 
courts-martial look very much like federal district courts. 57 

What has never been addressed in the court-martial system is the ability to try 
war criminals for violations of the law and customs of war. While elements of 
crimes have been the subject of extensive drafting and judicial interpretation for all 
of the offenses specified in the UCMJ, the Manual for Courts-Martial has made no 
attempt whatsoever to define violations of the laws of war. Similarly, court-martial 
procedures fail to contemplate the trial of any defendant who is not a service mem- 
ber; the UCMJ establishes no appellate process for a convicted war criminal and the 
Manual for Courts-Martial makes no attempt to modify procedures for the non- 
service member accused. Public perception to the contrary, courts-martial are un- 
likely to be a panacea for the problems associated with trying terrorists. 

Substantive Due Process 

In March of 2002, the Secretary of Defense issued basic rules for the conduct of 
military commission trials. These rules were the subject of subsequent elaboration 
in a series of "Military Commission Instructions." 58 In keeping with the President's 
Military Order, these rules mandated a "full and fair trial" 59 purportedly designed 
to strike an appropriate balance — a balance that, on the one hand, recognizes the 
exigencies associated with warfare, and, on the other hand, demonstrates faithful 
adherence to the principles of fairness and due process that animate our domestic 

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Military Commissions: Old Laws for New Wars 



criminal jurisprudence. 60 What the rules did not do is replicate the level of detail or 
procedural due process found in other more developed criminal justice systems. 
For this, the rules have been vociferously criticized. 61 

Anticipating the need for greater evidentiary flexibility, the military commis- 
sion rules promulgated by the Department of Defense leave many procedural and 
evidentiary determinations in the hands of the triers of fact. 62 This same policy ani- 
mates the International Criminal Court's rules of procedure and those of the Inter- 
national Criminal Tribunals for the Former Yugoslavia and Rwanda. 63 Though 
similar in nature to the concept of military commissions, they operate under dif- 
ferent conditions (e.g., post-hostility), and are hampered by the unique idiosyn- 
crasies of their respective international processes. Because the tribunals used to 
prosecute 9/11 terrorists will play such an important role in defining available legal 
structures for the future, it is imperative that we identify and attach essential due 
process elements to the tribunal's conduct, but do so in a way that accounts for 
their unique mission. 

Military commissions afford defendants several important protections that ad- 
here faithfully to immutable principles of fairness and due process that animate 
our domestic criminal jurisprudence — protections such as the presumption of in- 
nocence, the ability to confront witnesses, and a standard of proof beyond a rea- 
sonable doubt. 64 They also explicitly make available to the government tools such 
as closed trials, intelligence shielding protective measures, and relaxed rules of pro- 
cedure and evidence — tools that recognize the national security-related difficulties 
associated with war-time prosecutions, e.g., that evidence seized on the battlefield 
is unlikely to carry with it a chain of custody or a judicially approved warrant neces- 
sary to satisfy the reticulated requirements of judicial trials; that flexibility is required 
to bring criminals to justice while concurrently accommodating the prosecution of a 
war; and that war is attended by concomitant operational security concerns and the 
imperative to protect intelligence information, methods and sources. 65 The rules af- 
fect an appropriate balance with a view to providing justice in the context of a war 
against terrorism. Whether the balance may be off is open for debate — but it is a bal- 
ance that, at present, no other forum has attempted to strike. 

Compliance with the Law of War 

Another common criticism of military commissions is that, admitting the applica- 
bility of the law of war and the propriety of using military commissions in general, 
the incarceration and intended trial of enemy combatants simply violates the law 
of war. Here we must look at the law of war itself, and the applicability of various 



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provisions. In most cases, specific accusations of noncompliance are based on an 
inappropriate application of particular tenets. 

Given the eminence of the Geneva Conventions, 67 one might think that simply 
abiding by their terms — regardless of applicability as a technical matter — is most 
consistent with a commitment to the rule of law. Indeed, US military policy ex- 
pressed in a Chairman of the Joint Chiefs of Staff Instruction mandates 
"compliance] with the law of war during all armed conflicts, however such con- 
flicts are characterized." 68 The language regarding conflict characterization refers 
to the traditional parsing of international and internal armed conflicts. While 
most of the provisions of the Geneva Conventions are applicable to only interna- 
tional armed conflicts, military policy is to apply those provisions even if the con- 
flict is "not of an international character." One could reason, then, that the 
characterization of the war on terrorism should not impact US policy as it pertains 
to the handling of captured enemy combatants or any other matter. The problem 
is that complying with a body of law and applying its provisions are two very dif- 
ferent endeavors. While a legal regime might be applicable, a particular provision 
may not apply. 

By way of analogy, one might elect to comply with safe driving standards re- 
gardless of whether the jurisdiction in which one drives effectively applies or en- 
forces those standards. Self-imposed compliance does not mandate continuing to 
drive 45 miles per hour when the speed limit goes up to 65 — even though the lower 
limit is arguably safer; applicable standards may change. Viscerally, failing to ac- 
cord prisoner of war status to enemy combatants is, to some, a decision not to drive 
safely. To others, it is a simple recognition of changed circumstances. Many cus- 
tomary provisions of the law of armed conflict are appropriately rendered applica- 
ble as a matter of policy; 69 others, however, are dependent on circumstance. 

Note that this relationship to circumstance could be a matter of either permis- 
sion or prescription/proscription. Absent a required minimum, the authorization 
to drive 65 miles per hour does not preclude one's decision to drive slower. If the 
particular safety norm at issue involved, for example, on which side of the road one 
was to drive, the changed circumstance would require adjustment or head-on colli- 
sions would inevitably result. The pertinent provisions of Geneva Convention 
(III), which pertains to prisoners of war, detail specific requisite circumstances for 
applicability — demonstrating that the rights and regulations associated with pris- 
oner of war status were not intended to be reflexively applied in all circumstances. 
Like the speed limit, however, they are clearly permissive in nature with respect to 
denial of prisoner of war status. 

Nevertheless, the concern that the Global War on Terrorism has identified a sig- 
nificantly sized group that appears to fall largely outside the particularized 

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protections of various Geneva Conventions and Protocols 70 may indeed be a legiti- 
mate concern militating in favor of developing new international norms. A discus- 
sion is appropriate, but that discussion should be based on the common 
understanding that seizing on the legal regime associated with law enforcement as 
the basis for criticizing the treatment of captured enemy combatants is a misguided 
application of law by analogy. 71 In addition, useful dialogue can occur only subse- 
quent to recognition of the legitimate, but differing perspectives on the current 
state of the law of armed conflict. We benefit from the insights of Paul Grossreider, 
the former Director General of the International Committee of the Red Cross 
(ICRC), who in the days following September 1 1th asserted, "with the September 
1 1 terrorist attacks, the nature of war is changing. . . . With al Qaeda, we face an 
emerging new type of belligerent, . . . transnational networks. To cope with this 
change, [the international law of armed conflict] must adapt itself for fear of being 
marginalized." 72 

Nowhere does Geneva Convention (III) preclude, or even discourage, trials by 
military commission. Indeed, Article 84 reflects a preference for "military courts" 
as that term was broadly understood in 1949. 73 As opposed to mandating a particu- 
lar procedure or forum, Geneva Convention (III) requires certain minimum stan- 
dards of fairness in the forum choice elected. For example, the prosecution of 
prisoners of war must include "essential guarantees of independence and impar- 
tiality as [are] generally recognized." 74 The Conventions identify as a grave breach 
"willfully depriving a protected person of the rights of a fair and regular trial pre- 
scribed in the applicable convention." 75 It is unimaginable that any judicial system 
established by the United States would not meet these minimum requirements. So 
long as any particular military commission meets those broad fairness require- 
ments, it would appear that even prisoners of war might be tried in such a forum. 76 

A more specifically applicable standard has been established since the 1949 
Conventions, however, that provides greater detail regarding minimum trial stan- 
dards. Article 75 of Additional Protocol I defines that article's applicability as being 
to, "persons who are in the power of a Party to the conflict and who do not benefit 
from more favourable treatment under the Conventions or under this Proto- 
col. . . ," 77 It then provides, among other things, a moderately extensive list of trial 
rights that represent a minimum standard for the due administration of justice. 78 

Although the United States is not party to Additional Protocol I, many have 
opined that we should accept certain of its provisions, including Article 75, as re- 
flective of customary international law. 79 The United States' military commission 
rules appear to comply with all requirements of Article 75. Perhaps the only 
colorable claim that military commissions, as contemplated, are noncompliant 
with the general normative due process standards enumerated in the Geneva 

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Conventions is found in the "independence" requirement set forth in Article 84 
of the Third Convention. 80 The standard for independence is that which is "gen- 
erally recognized." 81 Some may interpret the "independent" requirement as pre- 
cluding a military commission's utilization of a trier of fact or lawyer who is 
subordinate to the military chain of command. 82 Such a reading, however, would 
be inconsistent with State practice since the 1949 Conventions were negotiated. 
Military tribunals have always involved military triers of fact, and there is no evi- 
dence in the Geneva negotiating records suggesting that anything to the contrary 
was intended. 83 Certainly, any such proposition should be forcefully rejected. 

The bottom line when assessing the substantive due process accorded accused 
terrorists to be tried by military commission is that there is no reason to anticipate 
any derogation from fundamental fairness guarantees normally accorded to crimi- 
nal defendants. The President's Military Order and the Secretary of Defense's rules 
require commissions to provide a "full and fair" trial. Even if there were no other 
protections provided by the rules or applicable instructions, military officers con- 
stituting a military commission should be expected to follow orders in providing a 
full and fair trial. The absence of particular rules, thus permitting pundits to iden- 
tify potential abuses that could occur is hardly fodder for a substantial criticism, 
though it is likely a natural consequence of the slow and deliberate means by which 
trials have proceeded. At this juncture, criticism of military commission proce- 
dures amounts to nothing more than an attack on worst case hypotheticals. 

Nondiscrimination Principle 

Another principle of humanitarian law of potentially even greater impact on future 
terrorist trials is that which appears to require nondiscrimination in judicial pro- 
ceedings applied to prisoners of war and members of the armed forces of the de- 
taining power. 84 To date, the United States has made no statement regarding its 
interpretation of the principle's relevance to the trials of alleged terrorists. The 
most extreme textual articulation related to this norm is found in Article 102 of 
Geneva Convention (III), which states: 

A prisoner of war can be validly sentenced only if the sentence has been pronounced by 
the same courts according to the same procedure as in the case of members of the 
armed forces of the Detaining Power, and if, furthermore, the provisions of the present 
Chapter have been observed. 85 

While arguably not directly relevant to trials currently contemplated (if only be- 
cause the defendants are not entitled to the protections associated with prisoner of 



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war status), 86 other potential military commission trials — such as those deriving 
from the conflict in Iraq — may involve persons who do meet Geneva Convention 
(III) criteria for prisoner of war status. 87 Moreover, the norms are worth noting be- 
cause they envisage circumstances similar to those found in the law of war para- 
digm for trials. And as a matter of policy, the United States has agreed to apply the 
principles of the Geneva Conventions to the extent practicable. 88 

Some would read the language of Article 102 as precluding the use of military 
tribunals were they not also employed to try US troops. Given that no US citizen 
may be subject to the President's Military Order or to trial by military commission, 
the principle of nondiscrimination would appear to bar the use of military com- 
missions to try prisoners of war. 89 

The language of Article 102 is ambiguous in several important respects, how- 
ever. Probing these ambiguities renders premature and overly simplistic the un- 
questioning acceptance that Article 102 bars absolutely the use of military 
commissions — even with respect to the trial of prisoners of war protected by 
Geneva Convention (III). In particular, it is unclear whether Article 102 applies 
only to post-capture offenses, or whether it may apply to pre-capture offenses as 
well. 90 Second, the language fails to clarify the meaning of either "same courts" or 
"same procedure." 91 

The language of Article 102 was carried over from Article 63 of the 1929 Geneva 
Convention. 92 In the famous post- World War II war crimes trial, In re Yamashita } 
that language was interpreted by the US Supreme Court to apply only to post- 
capture offenses committed by an individual who already was a prisoner of war. 93 
While drafters of the 1949 Conventions clearly intended to provide procedural 
protections for those accused of pre-capture offenses, it is not clear that Article 102 
was the intended vehicle for those protections. Nothing in the minor verbiage ad- 
justments of the 1949 Convention appears to affect this original intended applica- 
bility (and terrorism-related trials are likely to involve only pre-capture offenses). 
Yet, Geneva Convention (III) not only retained the 1929 language that ultimately 
became Article 102, it added a new provision — Article 85 — with no parallel in the 
1929 Convention. 94 Some view the combination of Articles 102 and 85 as eviscerat- 
ing the Yamashita limitation and requiring that the courts and the procedure uti- 
lized be the same for prisoners of war as for the armed forces of the detaining 
power — even with regard to pre-capture offenses. 95 Reasoning that the detaining 
power's procedures should apply when the detaining power's substantive law is in 
play appeals to both logic and fairness. But the claim that future war crimes trials 
must exactly mirror courts- martial should not be viewed as dispositive of the current 
state of the law, particularly given that the text of the 1949 Conventions reflects a 



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variety of competing interests. 96 And a closer review of Article 85 reveals a more fo- 
cused orientation toward post- conviction treatment than to trial rights per se. 97 

Additionally, a narrower read of Article 102 as requiring nondiscrimination 
only in the prosecution of post-capture offenses is consistent with the underlying 
theory of prisoner of war "assimilation" in the armed force of the detaining power; 
that is, once captured, a prisoner of war must obey the rules and regulations that 
apply to the armed forces of the detaining power. 98 Such assimilation has no appli- 
cation when the issue is pre-capture, that is, pre-assimilation crimes. 99 

Setting aside for a moment the colorable argument that Article 102 does not ap- 
ply to pre-capture offenses such as those for which terrorists would be prosecuted, 
the question persists as to the meaning of "same courts" and "same procedure." 
"Same" may be read to mean: what is jurisdictionally available, what has been used 
historically, what would likely be used in the future, or some other criteria. Indeed, 
no US court has considered the meaning of this term in this context. Although the 
"same courts" language may have a straightforward meaning and application when 
applied to a detaining power that prosecutes its service members in only one fo- 
rum, it is not so straightforward in the case of the United States. Given that the 
United States may prosecute members of the armed forces in any number of fora, 
including Article III courts, courts-martial, and military commissions, there are 
different aspects of "sameness" that may apply. 

Article 102 may be read to require only that prisoners of war must be sentenced 
by any of the same courts that may have jurisdiction over a US service member. 100 
Because jurisdiction can be determined without regard to subjective intent, the 
greatest degree of clarity and precision inhabits this interpretation. Another read- 
ing of Article 102 is that it requires prisoners of war to be sentenced by the same 
courts that have historically sentenced US service members. This approach would 
look beyond bare jurisdiction to determine what courts and procedures have been 
"typically" used and require that prisoners of war be subject to trial by the same 
courts and under the same procedures as past trials of US service members. This 
analysis illuminates another potential problem, however. While recent history 
would militate in favor of the court-martial forum for standard military or civilian 
offenses, such would not be the case for violations of the international law of armed 
conflict. In fact, law of war violations by service members have only been prose- 
cuted, as such, by military commission. 101 

Finally, another possible reading is that the cases to which prisoner of war pros- 
ecutions should be compared are those hypothetical cases that could arise from the 
same area or same conflict. Thus, to the extent that the executive evidences intent 
to prosecute its service members in a particular manner in a particular conflict, 
prisoners of war from that same conflict should be subject to those same courts and 

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Military Commissions: Old Laws for New Wars 



same procedures. The current widespread exercise of court-martial jurisdiction in 
contradistinction to historic uses of military commissions for war crimes warrants 
some consideration of this possibility. 102 

The above discussion of the last two possibilities posed begs the question of 
what crime would apply for purposes of conducting the analysis. 103 Certainly the 
type of offense must play some role. If US soldiers most frequently find themselves 
in traffic court to deal with moving violations, does that mean that traffic court is 
an appropriate forum for war crimes committed by prisoners of war? If we limit 
our review in this regard only to violations of the law of war, we are left either with 
the conclusion that violations of the law of war must be tried by military commis- 
sions or a determination that future war crimes will be tried by courts-martial. 104 
The idea that any "same courts" and "same procedure" procedure analysis must 
assume that the crime charged is the same as well is also consistent with the other 
relevant provisions in Geneva Convention (III). 105 Assuming this to be the case, 
note that Article III courts, courts-martial, and military commissions, each have 
certain jurisdictional authority to prosecute war crimes. 

Article III courts probably have the narrowest range of authority with respect to 
law of war violations, 106 although recent developments with respect to the "mate- 
rial support to terrorism" charge may give them equal or better coverage over sub- 
stantive conduct of terrorism. 107 Only specified war crimes are chargeable under 
the War Crimes Act, including crimes identified as "grave breaches" under the 
Geneva Convention. 108 Subject matter jurisdiction extends to aliens (including 
prisoners of war) only if the victim of the war crime is a member of the US armed 
forces or a national of the United States. 109 The Act also authorizes prosecution of 
US service members irrespective of the status of the victim. 110 

Were prisoners of war to be prosecuted in Article III courts, a pure jurisdictional 
understanding of "sameness" would support an argument that the requirements 
of Article 102 had been met. That is, because US service members may be tried for 
enumerated violations of the laws of war in Article III courts, prisoners of war also 
maybe. Historically, though, US service members have not been tried in Article III 
courts for violations of the laws of war or even for crimes that could have been 
charged as such. 

As previously mentioned, prisoners of war are subject to trial by courts-martial 
for violations of the UCMJ committed after establishing prisoner of war status. 111 
Additionally, 1 U.S. C. § 8 1 8 appears to establish jurisdiction over a broader group 
of persons triable under the law of war. 112 This could include jurisdiction over pris- 
oners of war during the period of time preceding their attainment of prisoner of 
war status. 113 The claim that Article 102's nondiscrimination requirement had 
been satisfied then could be grounded in jurisdiction or perhaps historical use. 

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Historical use, however, would cut in different directions. On the one hand, al- 
though courts-martial have jurisdiction to try violators of the laws of war, they 
have not been employed for that purpose since the UCMJ was enacted. On the 
other hand, the United States has sent US service members to courts-martial for 
crimes that could have been charged as war crimes. 114 

Nevertheless, there are other complications attending the court-martial route 
worth noting. Because courts-martial have been designed with an emphasis on 
prosecution of US service members, certain adjustments to the procedures would 
have to be effected to permit the process to function properly in the trial of a pris- 
oner of war. From a practical perspective, procedures such as rules for membership 
on panels 115 and the conduct of pretrial confinement reviews 116 would require 
modification to fit the unique circumstances attending prisoners of war. More- 
over, one might argue that given the Calley precedent of charging what could be a 
war crime as an enumerated offense under the UCMJ, one could not claim that 
prosecution of a prisoner of war was proceeding under the "same procedures." For 
example, for the same factual offense, a US service member would be charged with 
murder (subject to the elements of that charge as well as the sentence limitations) 
while a prisoner of war would be charged with a law of war violation (with no enu- 
merated elements or sentence limitations). Thus, although the court-martial may 
at first seem a comfortable fit with the requirements of Article 102, a closer look re- 
veals a more complicated and potentially problematic relationship. 117 

Finally, assessing military commissions from an Article 102 perspective, we find 
they easily fit a jurisdictional method of analysis. Past precedent makes clear that 
military commissions may be used to try US citizens. Y 18 As one court held, "citizens 
and non-citizens alike — whether or not members of the military, or under its di- 
rection and control, maybe subject to the jurisdiction of a military commission for 
violations of the law of war." 119 Thus, trial of prisoners of war by military commis- 
sion would be by one of the same courts that has jurisdiction over a US service 
member for a similar crime. From a historical use perspective, military commis- 
sions have been convened against US service members, 120 indeed, even against 
"camp-followers and other civilians employed by the government in connection 
with the army." 121 On the other hand, no military commissions have been con- 
vened since the period immediately following World War II. 

One adjustment to the current state of affairs could improve the perception that 
the trial of prisoners of war by military commission comports with the nondis- 
crimination principle; that would be to modify the President's Military Order es- 
tablishing commissions so as not to exclude US citizens from its jurisdiction. Of 
course, an even stronger argument that the military commission forum complies 



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with the requirement of nondiscrimination could be made if US service members 
actually were brought before such tribunals. 122 

In fact, were it not for the wartime setting, it would appear that neither courts- 
martial nor military commissions would have sufficient jurisdiction to address ap- 
propriate offenses. 123 It is only when terrorist conduct amounts to an act of war 
that military commission or expanded court-martial jurisdiction engages. 124 Thus, 
the concept of military commissions languished in desuetude during the last 50 
years. This, in turn, explains why the parameters of the governing substantive law 
were not addressed during the same period. As has always been the case, develop- 
ment of the law of war comes after changes to war itself. 

Conclusion 

So what is the best way to bring terrorists to justice? Certainly that question existed 
prior to September 11, 2001, but the collapse of New York's tallest buildings im- 
posed on us, as Americans, and as citizens of the world, a mandate to find an an- 
swer. Today, almost three years later, we have moved toward an answer, but there 
remains much work yet to be done. Our challenge is to answer that question delib- 
erately. As the United States proceeds with military commission trials of alleged 
terrorists, history will be written. As in the aftermath of World War II and 
Nuremberg, we are in the process of establishing a future world order. September 
1 1, 2001 stands out conspicuously as a historic inflection point, but the long-term 
impact of that day ultimately may prove to be the new legal paradigms established 
in its wake. 

The manner and tempo at which legal transformation takes place is important 
to preserving and improving international cooperation. Many US allies evinced 
discontent early in observing the shift from addressing terrorism solely as a law en- 
forcement matter. The best United States response will be in making a point of 
consciously influencing appropriate and useful changes to the law of war. The law 
needs to adapt and adjust, and we are in the best position both to identify that need 
and to lead the way in satisfying it. It has always been both "our national interest" 
and "in our national interest" to establish the rule of law domestically and interna- 
tionally. And the United States today has an unprecedented opportunity to estab- 
lish an international order based on the rule of law. The war on terrorism should be 
pursued to victory, but it should also be pursued in such a way as to develop the law 
most effectively. 

It is too easy to simply criticize something that represents change — and that is 
the case with most criticism of military commissions. Over the past several years, 
the United States Government has faced the challenge of attempting to apply the 

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existing laws of war to the Global War on Terrorism. That application may not 
please everyone, but neither does it deserve the condemnation associated with 
claims of denigrating the rule of law. As in the aftermath of past conflicts, interna- 
tional law has moved forward by effectively establishing a pattern of State practice 
that eventually may be adopted as customary law or codified by convention. That 
process is at work today. 

If there is one legitimate criticism of the US decision to initiate military commis- 
sions, it is the failure to explain adequately its legal reasoning to reluctant allies. A 
key component to any planned evolution of existing law through a consistent State 
practice is the public articulation of the norm, values, and principles guiding that 
practice. State practice is almost meaningless if a deontologically acceptable expla- 
nation does not accompany its execution. 125 Our State practice, without explana- 
tion, amounts to nothing more than fuel for criticism based on inconsistency or 
ignorance. In this regard, enough cannot be said about the importance of clearly 
engaging and communicating with the international community. To shape the law 
intentionally, we must communicate why certain decisions are consistent with the 
rule of law as we see it, and, if change is needed, our intent — both to effectuate the 
change itself, and to maximize our standing to do so. 

Alone, neither the law governing domestic criminal enforcement nor that gov- 
erning war is well situated to address the ascendance of terrorism. The work of the 
future is to adjust or perhaps merge these paradigms in a way that contemplates the 
future. Military commissions are as good a potential component to such a future 
legal regime as any. They represent both a well-founded precedent from the past, 
and a forward-looking change for the future. The task before us is not to reject pre- 
cedent, but rather to build on the foundation of existing law — national security 
law, criminal law, and the law of armed conflict — as we seek to apply their relevant 
tenets, justly, to the challenges of the war on terrorism. We can expect that such 
change will be accompanied by a bit of anguish and perhaps a few missteps, but we 
must not be dissuaded by the fact that change never comes easily. 

The law of war has been written primarily in the aftermath of crisis — crafted to 
address the concerns of past conflicts — with the hope of providing relevant guid- 
ance for those of the future. That hope having seen its limitations as applied to our 
current conflict, the law of war must be retooled to address the changed circum- 
stances of the war on terrorism. A commander with whom I once had the privilege 
of serving was fond of saying, "if you want a new idea, go read an old book — it's all 
been done before." In military commissions, as reshaped to fit a unique and un- 
foreseen adversary, we have something that is both old and new. In this same vein, 
we do well to recall the paradoxical words of Alexander Bickel who, praising the 
heroes among common law judges, characterized them as those who "imagined 

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the past and remembered the future." 126 The United States, in using military com- 
missions to try terrorists, is shaping the law imparted by the past, all the while 
seeking to make it relevant, not just for today, but for tomorrow. 

Notes 

1. On November 13, 2001, the President of the United States issued a Military Order providing 
that "[a]ny individual subject to this order shall, when tried, be tried by military commission." 
Military Order of Nov. 16, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the 
War Against Terrorism, 66 Federal Register 57,833 (Nov. 16, 2001) [hereinafter President's 
Military Order]. The initiation of military tribunals aptly illustrates the unforeseen legal 
challenges of the post-9/11 world. See, e.g., Elisabeth Bumiller & David Johnston, A Nation 
Challenged: Immigration; Bush Sets Option of Military Trials in Terrorist Cases, NEW YORK TIMES, 
Nov. 14, 2001, at Al; Anne Gearan, Terrorists Could Face Military Trial, AP ONLINE, Nov. 14, 
2001, available at 2001 WL 30244845. 

2. This action was unexpected by most. William K. Lietzau, Address at the Harvard Program on 
Humanitarian Policy and Conflict Research Conference on International Humanitarian Law 
and Current Conflicts: New Dilemmas and Challenges for Humanitarian Organizations (Nov. 1, 
2001) (answering a question regarding the possible use of military commissions by stating that 
while possible in a theoretical sense, military commissions were a thing of the past). Several 
authors were more prescient in recognizing the viability of military commissions to try 
terrorists. See, e.g., Spencer J. Crona & Neal A. Richardson, Justice For War Criminals of Invisible 
Armies: A New Legal and Military Approach to Terrorism, 21 OKLAHOMA CITY UNIVERSITY LAW 
REVIEW 349 (1996) (advocating the adoption of the military tribunal to try accused terrorists); 
Daniel M. Filler, Values We Can Afford — Protecting Constitutional Rights in an Age of Terrorism: 
A Response to Crona and Richardson, id., at 409 (arguing that accused terrorists should be tried in 
civilian courts). 

3. See, e.g., Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentagon; Hundreds 
Dead, WASHINGTON POST, Sept. 12, 2001, at Al; Eric Lipton, Struggle to Tally All 9/11 Dead by 
Anniversary, NEW YORK TIMES, Sept. 1, 2002, at 1 (reporting that the final World Trade Center 
death toll will drop no lower than about 2,750, not including the 10 hijackers. Counting the 233 
killed in Washington and Pennsylvania, it will remain the second-bloodiest day in United States 
history, behind the battle of Antietam in the Civil War). The dead include citizens of more than 
90 countries. A City of New York Office of the Comptroller estimated the overall economic loss 
to New York City resulting from the 9/1 1 attacks as totaling between 82.8-94.8 billion dollars. 
See http://www.comptroller.nyc.gov/bureaus/bud/reports/impact-9- 1 1 -year-later.pdf. 

4. U.S. Issues Warning on Terrorist Attacks; State Department's Concern Partly Based on Seizure of 
Explosives, Arrests in Spain, LOS ANGELES TIMES, Dec. 15, 1989, at P2 (259 people aboard the 
plane and 1 1 on the ground were killed in the 1988 bombing of Pan American Flight 103). The 
first Bush Administration treated the problem of apprehending suspects as one of diplomacy 
and extradition, clearly a law enforcement matter. See Nejla Sammakia, Libya Starts 
Parliamentary Process That Could Give Gadhafi Way Out, ASSOCIATED PRESS, May 8, 1992, 
available at 1992 WL 5296910 (reporting that the United Nations had instituted sanctions on 
Libya that would continue until two Libyan suspects in the Pan Am bombing were turned over to 
either the United States or the United Kingdom). In the 1993 World Trade Center bombing, six 
people were killed and over 1,000 injured. Law enforcement officials conducted an extensive 
investigation, resulting ultimately in the apprehension, extradition, trial, and conviction in US 

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District Court of most of the suspects of the bombing, including Sheik Omar Abdel Rahman. 
Again, we observe what was unquestionably a law enforcement response. See United States v. 
Rahman, 837 F. Supp. 64 (S.D.N.Y. 1993) (stating that the United States charged Omar Ahmad 
Ali Abdel Rahman with crimes associated with the 1993 bombing of the World Trade Center). 
See also Death Toll From Bomb Rises to 6; Searchers Sifting the Wreckage at World Trade Center 
Uncover the Body of a Missing Man, ORLANDO SENTINEL, Mar. 16, 1993; Larry Neumeister, 
Verdict: Sheik, All Co-defendants Guilty in Terror Trial, ASSOCIATED PRESS, Oct. 2, 1995, 
available at 1995 WL 4408662. The 1998 embassy bombings in Nairobi, Kenya, and Dar es 
Salaam, Tanzania, claimed the lives of 12 Americans and over 200 Kenyans and Tanzanians. The 
United States conducted a one-strike military response, and indictments were issued against 15 
individuals, four of whom were apprehended by foreign governments, extradited to the United 
States, and tried and convicted in US District Court. See Remarks by President William Clinton 
at Ceremony Honoring the Men and Women who Lost Their Lives in the Bombings of the 
Embassies in Kenya and Tanzania, Andrews Air Force Base, Maryland, The White House, Office 
of the Press Secretary (Aug. 13, 1998) ("The 12 Americans and the 245 Kenyans and Tanzanians 
were taken from us in a violent moment by those who traffic in terror and rejoice in the agony of 
their victims. We pledge here today that neither time, nor distance can bend or break our resolve 
to bring to justice those who have committed these unspeakable acts of cowardice and horror. 
We will not rest. We will never retreat from this mission."). See John Diamond, Strikes Only 
Partly Successful, Reports Suggest, AP ONLINE, Aug. 21, 1998, available at 1998 WL 671 1944. See 
U.S. Department of State, Office of the Spokesman, Fact Sheet, Steps Taken to Serve Justice in the 
Bombings of U.S. Embassies in Kenya and Tanzania (Aug. 4, 1999), available at http:// 
www.state.gov/www/regions/africa/fs_anniv_steps.html. See also United States v. Bin Laden, 92 
F. Supp. 2d 225 (S.D.N.Y. 2000) (stating that the United States charged Usama Bin Laden and 
others with crimes stemming from the bombing of the US embassies in Nairobi, Kenya, and Dar 
es Salaam, Tanzania); See also Greg B. Smith, Osama's Tech-Thug Pal Bombings Planner in Jail, 
Report Says, NEW YORK DAILY NEWS, Mar. 18, 2002, at 9. International initiatives to address the 
terrorist threat also have reflected a predisposition to law enforcement. The United States 
responded to the Khobar Towers attack both by launching a law enforcement investigation and 
by commencing an international initiative that ultimately resulted in the negotiation and entry 
into force of the Terrorist Bombing Convention. International Convention for the Suppression 
of Terrorist Bombings, Jan. 12, 1998, 37 INTERNATIONAL LEGAL MATERIALS 249. We attempted 
to shore up weaknesses in the law enforcement model through treaties establishing a regime of 
aut dedere aut punire (extradite or prosecute) for terrorism offenses; id., art. 8 (providing that 
States, in whose territory a person is present who has committed or is alleged to have committed 
an offense under the Convention, agree to investigate his involvement in the offense, and, if 
appropriate, take such person into custody for the purpose of prosecution or extradition. If a 
Party does not extradite the person, it is obliged, without exception whatsoever, to prosecute 
him.). Another example of this general emphasis is the Terrorist Financing Convention. 
International Convention for the Suppression of the Financing of Terrorism art. 10(1), Jan. 10, 
2000, 39 INTERNATIONAL LEGAL MATERIALS 270 [hereinafter Terrorist Financing Convention]. 

5. See Dick Polman, "War" is Now More than a Metaphor; Deadly Terror Attacks — and the 
Promised U.S. Response — Make a Long Overused Word Mean Just What It Says, PHILADELPHIA 
INQUIRER, Sept. 13, 2001, at A5; Katherine M. Skiba, Terror Hits Were "Acts of War," 
Milwaukee Journal Sentinel, Sept. 13, 2001, at 1A. 

6. Joint Senate Resolution to Authorize the Use of United States Armed Forces Against Those 
Responsible for the Recent Attacks Launched Against the United States, Pub. L. No. 107-40, 115 
Stat. 224(2001). 



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7. The international community readily embraced the right of the United States to respond with 
armed force. See, e.g., David Clark, Terror in America: Mr. Blair Must Be Prepared to Stand Up to 
President Bush, INDEPENDENT (LONDON), Sept. 14, 2001, at 4 (noting that "[c]lear evidence that 
Usama Bin Laden orchestrated [the 9/11] atrocities will necessitate military action to eliminate 
the threat he and his organisation pose"); Bush Tells US to be Patient, AUSTRALIAN FINANCIAL 
REVIEW, Sept. 17, 2001, at 1 (noting that President Bush "has broad commitments of 
international support for his response to the attacks" of 9/1 1 and that the "President of Pakistan, 
General Pervez Musharraf, agreed to help in whatever might be required"). 

8. See S.C. Res. 1368, U.N. SCOR, 4370th mtg., 40 INTERNATIONAL LEGAL MATERIALS 1277 
(2001) [hereinafter 9/11 Resolution] (recognizing the "the inherent right of individual or 
collective self-defense in accordance with the Charter"). 

9. See North Atlantic Treaty Organisation (NATO): Statement by NATO Secretary General, Lord 
Robertson, 40 INTERNATIONAL LEGAL MATERIALS 1268 (2001) (resolution quoting Article 5 of 
the NATO Charter and emphasizing that the attack on the United States "shall be considered an 
attack on all" NATO members). 

10. See Australian Prime Minister Media Release, Application of ANZUS Treaty to Terrorist 
Attacks on the United States ("The Government has decided, in consultation with the United 
States, that Article IV of the ANZUS Treaty applies to the terrorist attacks on the United 
States."), available at http://www.pm.gov.au/news/01_news.html. Article IV provides, in 
pertinent part, that: "Each Party recognizes that an armed attack in the Pacific Area on any of the 
Parties would be dangerous to its own peace and safety and declares that it would act to meet the 
common danger in accordance with its constitutional processes." Security Treaty between 
Australia, New Zealand and the United States of America (ANZUS), Sept. 1, 1951, 3 U.S.T. 3420; 
T.I.A.S. 2493; 131 U.N.T.S. 83. The Rio Treaty (Inter- American Treaty of Reciprocal 
Assistance), Dec. 3, 1948, T.I.A.S. 1838; 21 U.N.T.S. 77 [hereinafter Rio Pact], has been ratified 
by twenty-three States in the Western Hemisphere, including Argentina, the Bahamas, Bolivia, 
Brazil, Chile, Colombia, Cuba, Costa Rica, the Dominican Republic, Ecuador, El Salvador, 
Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Trinidad and 
Tobago, the United States, Uruguay, and Venezuela. After the September 1 1th terrorist attacks, a 
special session of the General Assembly of the Organization of American States (OAS) being held 
in Lima, Peru on that very day "condemned in the strongest terms the terrorist acts . . . and 
reiterated the need to strengthen hemispheric cooperation to combat this scourge that has 
thrown the world and the hemispheric community into mourning." Ten days later, the OAS, 
acting pursuant to the Rio Pact, labeled the attacks on the World Trade Center and the Pentagon 
as "attacks against all the American States." See Terrorist Threat to the Americas, RC.24/RES.1/ 
01, OAS Doc. OEA/Ser.F/II.24/RC.24/RES.l/01 rev. 1 corr. 1, at operative para. 1 (Sept. 21, 
2001) (24th Meeting of Consultation of Ministers of Foreign Affairs). 

11. Lecture 1 — Early Forms of Liability, in OLIVER WENDELL HOLMES, THE COMMON LAW 
(1881). 

1 2. See President George W. Bush, State of the Union Address (Jan. 29, 2002), available at http:/ 
/www. whitehouse.gov/news/releases/2002/01/20020 129- 11. html ("We will . . . bring terrorists 
to justice."). 

13. See Richard Morin & Claudia Deane, Most Americans Back U.S. Tactics: Poll Finds Little 
Worry Over Rights, WASHINGTON POST, Nov. 29, 2001, at Al. 

14. As a general rule, the community of nations has not as completely accepted the paradigm 
shift from law enforcement to war. This could be partly explained by the fact that it is the United 
States that most conspicuously associates armed conflict with use of the military instrument. 
Other governments use the military for some instances of domestic law enforcement, while the 



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United States has traditionally rejected the same. See, e.g., The Posse Comitatus Act, 18 U.S.C. § 
1385 (2004) ("Whoever, except in cases and under circumstances expressly authorized by the 
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse 
comitatus or otherwise to execute the laws shall be fined under this title or imprisoned. . . ."). 
Some academics have also suggested that it is appropriate to use the military instrument in an act 
of war as a matter of self-defense without triggering the laws of war. Thus, while most would 
agree that the Global War on Terrorism does not amount to a traditional armed conflict, some 
would argue that it does not amount to an armed conflict at all. This view should be rejected as 
amounting to a situation where there is almost no accepted legal regulation of the extraterritorial 
use of force. 

15. The military response to the September 11, 2001 terrorist attacks on the United States was 
assigned the name Operation Enduring Freedom. The initial military objectives of Operation 
Enduring Freedom, as articulated by President Bush, included the destruction of terrorist 
training camps and infrastructure within Afghanistan, the capture of al Qaeda leaders, and the 
cessation of terrorist activities in Afghanistan. Long-term goals included the end of terrorism, 
the deterrence of State sponsorship of terrorism, and the reintegration of Afghanistan into the 
international community. See President George W. Bush, Address to a Joint Session of Congress 
(Sep. 20, 2001) and Address to the Nation (Oct. 7, 2001), available at http://www.globalsecurity 
.org/military/ops/enduring-freedom.htm. 

1 6. See Roy Gutman, Christopher Dickey & Sami Yousafzai, Guantanamo Justice?, NEWSWEEK, 
July 8, 2002, at 34. 

17. See, e.g., Christopher Schroeder, Military Commissions and the War on Terrorism, 29 
American Bar Association Litigation 28, 32 (2002). 

18. US CONST, art. II. § 2. See also Joan Biskupic & Richard Willing, Military Tribunals: Swift 
Judgments in Dire Times, USA TODAY, Nov. 15, 2001, at 1A. 

19. Stephen M. Duncan, A War of A Different Kind: Military Force and America's 
SEARCH FOR HOMELAND SECURITY 170-172 (2004); see generally Note: Responding To Terrorism, 
Crime, Punishment, and War, 115 HARVARD LAW REVIEW 1217, 1235-37 (2002) [hereinafter 
Terrorism, Crime, Punishment, and War], 

20. County of Riverside v. McLaughlin, 500 U.S. 44, 58-59 ( 1 99 1 ) . 

21. See Classified Information Procedures Act of 1980 (18 U.S.C. App. III). 

22. See Miranda v. Arizona, 384 U.S. 436, 467-72 (1966) (noting that the right to remain silent 
is "fundamental to our system of constitutional rule," while the "right to have counsel present at 
the interrogation is [an] indispensable [right]."). But see 148 Congressional Record S733 (daily 
ed. Feb. 13, 2002) (statement of Sen. Arlen Specter of Pennsylvania upon his introduction of a 
bill to establish procedures for military commissions, arguing that Miranda rights are 
appropriately employed with regard to trials by military commission). 

23. See, e.g., Senator Edward M. Kennedy Statement on the Pending Nomination of William 
Haynes (May 11, 2004) available at http://kennedy.senate.gov/~kennedy/statements/04/03/ 
2004311703.html. 

24. See, e.g., Terrorism, Crime, Punishment, and War, supra note 19. 

25. Joanne Mariner, O.J. and Osama, the Fear of a Highly Publicized Bin Laden Trial, and the 
Problem with Military Commissions, FlNDLAW LEGAL COMMENTARY, Nov. 26, 2001, available at 
http://writ.news.findlaw.com/mariner/2001 1 126.html. 

26. See Ryan H. Berry, Modern Use of Military Tribunals: A Legal "Can" and a Political 
"Should"?, 28 Ohio Northern University Law Review 789, 808 (2002) (noting that "the case 
of United States v. Rahman took nine months, involved seventy-one defense witnesses and 
resulted in a massive opinion. In its opinion, the US Court of Appeals for the Second Circuit 



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even praised the trial judge for his "outstanding achievement in the face of challenges far beyond 
those normally endured by a trial judge." All this was to bring nine men, tried at once, to justice. 
While it is laudable that the United States domestic system was able to handle this case, imagine 
the effect on the judicial system if over three hundred similar prisoners were brought to trial in 
the domestic courts. Placing these cases in one court, such as the Federal District Court for 
Alexandria, Virginia, would create a massive backlog for that court. Spreading the cases 
throughout the country would create a legal nightmare of differing decisions on identical issues 
across the circuits, leading to different treatment of similar cases. The Supreme Court would 
eventually have to resolve these potential controversies. ..."). 

27. See Michael O. Lacey, Military Commissions: A Historical Perspective, ARMY LAWYER, Mar. 
2002, at 49. Military commissions were utilized during the Civil War, the Second World War, 
and, in between, the Indian Wars, the Spanish American War, and the First World War, all 
employed the "commission concept to punish violations of the law of war." See also PETER 
Maguire, Law And War: An American Story (2000). 

28. See, e.g., Ex Parte Quirin, 317 U.S. 1 (1942); In reYamashita, 327 U.S. 1 (1946). Only in the 
Civil War's Ex parte Milligan decision did the Court limit the jurisdiction of such tribunals, 
holding that US citizens could not be tried by military commission in a state not invaded and not 
engaged in rebellion, in which the Federal courts were "open, and in the proper and 
unobstructed exercise of their judicial functions." Ex parte Milligan, 71 U.S. 2, 121, 221 (1866). 
See also, William H. Rehnquist, All The Laws But One, Civil Liberties in Wartime 
(1998) (providing a detailed history of the facts underlying the Milligan decision). 

29. This dilemma is not unworkable, but it highlights the unintended consequences of the 
presumed preference for more developed judicial systems. By way of example discussed in 
greater detail below, Colombian soldiers are regularly involved in fighting an insurgency 
conducted by the Revolutionary Armed Forces of Colombia (known by its Spanish acronym, 
FARC) and other narco-terrorists. See Dan Burton & Barton Gillman, Miscues in the Drug War, 
WASHINGTON TIMES, Apr. 1 1, 1999, at B4. The military frequently kills these terrorists during 
armed conflict (and vice versa). If terrorists are captured, however, in compliance with the law, 
they must be submitted almost immediately to the normal domestic court system, which, in 
turn, can be influenced by the very terrorist groups the military is fighting. See FARC Leaders 
Charged, LATIN AMERICAN NEWS LTD., May, 15, 2001, at 228. A conversation with a Colombian 
military officer elicited this disturbing comment, "In a firefight, we try to kill as many of [the 
narco-terrorists] as possible before they can surrender. The ones we capture go before the courts 
and may end up back in the jungle — killing our relatives." Confidential interview with 
Colombian military officer, Spring 2004 (notes on file with author). 

30. Person to Person (CBS television broadcast, Sept. 20, 1957), quoted in GERHARD VON 
Glahn, Law among Nations 4 (1981). 

3 1 . The Security Council attempted in recent years to fill part of this void ad hoc — but the 
International Criminal Tribunals for the former Yugoslavia and Rwanda never were intended to 
replace the sovereign exercise of national jurisdiction to bring wrongdoers to justice. The 
International Criminal Tribunal for the Former Yugoslavia, headquartered at The Hague, was 
created by the Statute for the International Criminal Tribunal for the former Yugoslavia, S.C. 
Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993) [hereinafter Statute 
of the ICTY]; The International Criminal Tribunal for Rwanda, headquartered at Arusha, 
Tanzania, was created by Statute for the International Criminal Tribunal for Rwanda, S.C. Res. 
955, U.N. SCOR, 49th Sess., 3453rd mtg., Annex, U.N. Doc. S/RES/955 (1994) [hereinafter 
Statute of the ICTR]. The International Criminal Court (ICC), which the United States does not 
view as an appropriate permanent international forum for addressing violations of the laws of 



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war, has been praised as inaugurating an end to the "era of impunity." Statute of the 
International Criminal Court, U.N. Diplomatic Conference of Plenipotentiaries on the 
Establishment of an International Criminal Court, U.N. Doc. A/Conf. 183/9 (1998) [hereinafter 
ICC Statute]. The ICC came into existence on July 1, 2002. It is the first permanent court ever 
established to investigate and try individuals for the most serious violations of international 
humanitarian law, including war crimes, crimes against humanity, and genocide. See Barbara 
Crossette, Long-Range Justice Raises Fears for Sovereignty, NEW YORK TIMES, July 1, 2001, §1 at 8 
(quoting William Pace, convener of the Coalition for an International Criminal Court). But 
even its proponents agree that the benefit of the ICC lies primarily in encouraging the exercise of 
national jurisdiction. United Nations, General Assembly, 56th Session, Statement by the 
International Committee of the Red Cross, New York, Establishment of the International 
Criminal Court (Nov. 12, 2001), available at http://www.icrc.org/web/eng/siteengO.nsf/iwpList. 

32. See President's Military Order, supra note 1, at Sec. 4(c)(2). 

33. But see David Greenberg, Uncivil Courts: America's Military Tribunals Through the Ages, 
SLATE, Dec. 5, 2001, http://www.slate.com/?id=2059375&device= (arguing military 
tribunals are not normally kangaroo courts). 

34. See President's Military Order, supra note 1, at Sec. 2, If (a): 

The term "individual subject to this order" shall mean any individual who is not a 
United States citizen with respect to whom I determined from time to time in writing 
that: 

( 1 ) there is reason to believe that such individual, at the relevant times, 

(i) is or was a member of the organization known as al Qaeda; 

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international 
terrorism, or acts in preparation therefore, that have caused, threaten to cause, 
or have as their aim to cause, injury to or adverse effects on the United States, 
its citizens, national security, foreign policy, or economy; or 

(iii) has knowingly harbored one or more individuals described in subparagraphs 
(i) or (ii) of subsection 2(a)(1) of this order; and 

(2) it is in the interest of the United States that such individual be subject to this order. 

35. Id., at Sec. 3, Detention Authority of the Secretary of Defense; and Sec. 4, Authority of the 
Secretary of Defense Regarding Trials of Individuals Subject to this Order. 

36. See, e.g., Joan Biskupic & Richard Willing, Military Tribunals: Swift Judgments in Dire Times, 
USA TODAY, Nov. 15, 2001, at 1A; Gearan, supra note 1; Bumiller & Johnston, supra note 1. See 
generally Lawyers Committee for Human Rights, A Year of Loss: Reexamining Civil Liberties Since 
September 11, Sept. 5, 2002, at 32 (Claiming that the order creates a parallel criminal justice 
system in which defendants would have only those rights that the President or Secretary of 
Defense decide they would have, reciting a litany of specific concerns associated with the process 
accorded an accused tried by military commission, and asserting that some of the cherished 
principles on which the country is founded have been eroded or disregarded.). 

37. Department of Defense, Military Commission Order No. 1, Procedures for Trials by 
Military Commission of Certain Non-Citizens in the War Against Terrorism (Mar. 21, 2002) 
[hereinafter MCO No. 1]. 

38. Department of Defense, Military Commission Instruction No. 1, Military Commission 
Instructions (Apr. 30, 2003); Department of Defense, Military Commission Instruction No. 2, 
Crimes and Elements for Trials by Military Commission (Apr. 30, 2003) [hereinafter MCI No. 
2]; Department of Defense, Military Commission Instruction No. 3, Responsibilities of the Chief 
Prosecutor, Prosecutors, and Assistant Prosecutors (Apr. 15, 2004); Department of Defense, 



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Military Commission Instruction No. 4, Responsibilities of the Chief Defense Counsel, Detailed 
Defense Counsel, and Civilian Defense Counsel (Apr. 15, 2004); Department of Defense, 
Military Commission Instruction No. 5, Qualification of Civilian Defense Counsel (Apr. 30, 
2003); Department of Defense, Military Commission Instruction No. 6, Reporting 
Relationships for Military Commission Personnel (Apr. 15, 2004); Department of Defense, 
Military Commission Instruction No. 7, Sentencing (Apr. 30, 2003); Department of Defense, 
Military Commission Instruction No. 8, Administrative Procedures (Apr. 20, 2003); 
Department of Defense, Military Commission Instruction No. 9, Review of Military 
Commission Proceedings (Dec. 26, 2003). 

39. See Department of Defense Military Commissions, Presidential Decisions, available at 
http://www.defenselink.mil/news/presidential_decisions.html ("The President determined that 
there is reason to believe that each of these enemy combatants was a member of al Qaeda or was 
otherwise involved in terrorism directed against the United States."). 

40. See President William Clinton, Remarks About the Saudi Arabia Explosion (June 25, 1996), 
available at http://www.cnn.com/WORLD/9606/25/clinton.remarks/index.html ("The United 
States will be firm with terrorists. We will not make concessions. ... If we find states supplying 
money, weapons, training, identification, documents, travel, or safe haven for terrorists, we will 
respond. Our aim is to demonstrate to these countries that supporting terrorism is not cost-free. 
We will bring terrorists to justice. We will . . . identify, track, apprehend, prosecute, and punish 
terrorists. Terrorism is crime, and terrorists must be treated as criminals."). See Department of 
Defense, Compendium, Terrorist Group Profiles, Nov. 1988, at 1 (Four days before Christmas, 
1988, Pan American Flight 103 from London to New York exploded over Lockerbie, Scotland. 
All 259 passengers and 11 people on the ground were killed. In discussing his horror at the 
bombing, President Reagan stated "Now that we know definitely that it was a bomb, we're going 
to make every effort we can to find out who was guilty of this savage and tragic thing and bring 
them to justice." See http://www.pbs.org/wgbh/pages/frontline/shows/target/etc/script.html. 
See generally LOU CANNON, PRESIDENT REAGAN: THE ROLE OF A LIFETIME 654 (1991) (quoting 
President Reagan's remarks on signing an anti-terrorism bill on August 27, 1986). President 
Reagan also promulgated National Security Decision Directive 207, National Program for 
Combating Terrorism (Jan. 1986) (outlining the basic tenets of US policy for responding to 
international terrorism, whether conducted inside or outside US territory), available at http:// 
www.fas.org/irp/offdocs/nsdd/nsdd-207.htm. 

41. See US Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. 
Gonzales, Counsel to the President, Legality of the Use of Military Commissions to Try 
Terrorists (November 6, 2001) (concluding that under 10 U.S.C. § 821 and pursuant to his 
inherent powers as Commander in Chief, the President may establish military commissions to 
try and punish terrorists apprehended as part of the investigation into, or the military and 
intelligence operations in response to, the September 11 attacks [hereinafter Legal Counsel 
Memo for Gonzales].). 

42. See WILLIAM WlNTHROP, MILITARY LAW AND PRECEDENTS (2d ed. 1920). 

43. Had an effective military tribunal system been extant in the Spring of 2003, the second 
historic role of military commissions — as an occupation court — might have been a relevant 
topic for discussion as well. Consider, for example, the potential utility of establishing military 
commissions to assist in maintaining security in occupied Iraq. Such commissions could have 
included Iraqi panel members and more efficiently established a judicial process for certain 
categories of offenses. Many agree that, had commissions been established in other contexts in 
more recent history, far greater consideration would have been accorded their use in Iraq. 



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Perhaps more importantly, we should recognize that Winthrop's articulation of historical 
precedent (id.) is merely a reflection of how the judicial arm of the military instrument 
developed in the 18th and 19th centuries. We should anticipate its evolution in the future as well. 
The use of commissions against individual members of transnational terrorist organizations 
might stand on its own as an independent example of the use of military commissions in the 
future. 

44. See supra note 4 1 . 

45. Hirota v. MacArthur, 338 U.S. 197 (1948) (Douglas, J., concurring). 

46. See Uniform Code of Military Justice, 10 U.S.C. §§ 801-946 [hereinafter UCMJ], at 10 
U.S.C. § 821. General Enoch H. Crowder, Judge Advocate General of the Army, appeared before 
Congress in 1916 as a sponsor for the adoption of the Articles of War and made it clear that the 
concept of military commission jurisdiction enacted in the Articles of War was meant to be 
preserved. He stated, "As long as the articles . . . provided that [persons subject to military law] 
might be tried by court-martial, I was afraid that, having made special provision for their trial by 
court-martial, it might be held that the provision operated to exclude trials by military 
commission and other war courts; so this new article was introduced." See In re Yamashita, 327 
U.S. 1, 20 n.7( 1946); see a/so Madsenv. Kinsella, 343 U.S. 341 (1952) ("[Article 15] just saves to 
these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with 
courts-martial, so that the military commander in the field in time of war will be at liberty to 
employ either form of court that happens to be convenient" (quoting General Crowder's 
testimony at S. Rep. No. 130, 64th Cong., 1st Sess. 40)). 

47. 10 U.S.C. § 836. 

48. See, e.g., 1 8 U.S.C. §326 (providing that the Military Extraterritorial Jurisdiction Act of 2000 
would not effect jurisdiction of military commissions); 10 U.S.C. § 828 (providing for 
employment of interpreters at military commissions); 10 U.S.C. § 3037 (noting that a judge 
advocate of the Army must prepare records of proceedings in military commissions); and 18 
U.S.C. § 3 1 72 (noting that the Speedy Trial Act does not apply to trials by military commissions). 

49. See, e.g., Jan E. Aldykiewicz, Authority to Court-Martial Non-U. S. Military personnel for 
Serious Violations of International Humanitarian Law Committed During Internal Armed 
Conflicts, 167 MILITARY LAW REVIEW 74, 145-48 (2001). 

50. UCMJ art. 18 ("general courts-martial also have jurisdiction to try any person who by the 
law of war is subject to trial by military tribunal and may adjudge any punishment permitted by 
the law of war." 10 U.S.C. § 818); UCMJ art. 21 ("The provisions of this chapter conferring 
jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other 
military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute 
or by the law of war may be tried by military commissions, provost courts, or other military 
tribunals." 10 U.S.C. § 821.). See Mark S. Martins, National Forums for Punishing Offenses 
Against International Law: Might U.S. Soldiers Have Their Day in the Same Court?, 36 VIRGINIA 
JOURNAL OF INTERNATIONAL LAW 659, 673-75 (1996) (noting that a "United States court- 
martial trying an alleged war criminal would provide further safeguards. All of the protections 
accorded in the Hague Tribunal [ICTY] would be accorded. In addition, the accused would be 
protected by elaborate rules of evidence, such as those generally excluding hearsay. Were he 
convicted, the presentencing procedures would give him the benefit of relaxed rules of evidence to 
present matters in extenuation and mitigation, while continuing to impose strict rules on the 
prosecution. Were a sentence imposed on him, he also would receive several levels of direct appeal."). 

51 . The Uniform Code of Military Justice, was originally promulgated on May 5, 1950 as Pub.L. 
81-506, 64 Stat. 107-49. The law took effect on May 31, 1951 and was codified at 10 U.S.C. §§ 
801-946. 



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52. Manual for Courts-Martial, effective Apr. 1, 1928, at 213-16 (1936). 

53. 10U.S.C. §821. 

54. 10 U.S.C. § 818 ("General courts-martial also have jurisdiction to try any person who by law 
of war is subject to trial by military tribunal and may adjudge any punishment permitted by the 
law of war."). 

55. See Department of the Army, International and Operational Law Department, The Judge 
Advocate General's School, Operational Law Handbook 518 (2000) (It is DoD policy that a 
member of the armed forces who commits an offense that qualifies as a "war crime" will be 
charged with a specific article of the UCMJ.). 

56. U.S. v. Calley, 46 C.M.R. 1131, 1137(C.M.A. 1973). 

57. 1 U.S.C. § 800, et seq. Manual for Courts-Martial, United States, Military Rules of Evidence 
1102 (2002) [hereinafter MCM]. In fact, courts-martial now so mirror federal criminal 
proceedings that eighteen months after their effective date in the federal system, changes to the 
Federal Rules of Evidence are automatically applicable to courts-martial unless action to the 
contrary is taken by the President. 

58. See supra note 38. 

59. See MCO No. 1, supra note 37. 

60. Id. at § 6.B(1) (stating that the commission must give "a full and fair trial"); Id. at § 5.B 
(stipulating that the defendant "shall be presumed innocent until proven guilty"). 

61. See, e.g., Mariner, supra note 25. Unlike the civilian courts with their underpinnings of 
legislative activity and judicial review, the law of war has no similar mechanism for developing a 
baseline procedural framework for military commissions. Perhaps the best law of war analog 
exists vis-a-vis the common law characteristics of our domestic criminal law system — 
incremental changes in the law are rooted in a priori reasoning and guided by past practice. The 
common law of war, however, is truly a function of the practice of nation States. Fortunately, 
State practice with respect to many elements of the law of war has been limited; unfortunately, it 
is perhaps most limited with respect to the prosecution of violations of the law of armed conflict. 

62. See MCO No. 1, supra note 37, at § 6.D(2)(d)("The Presiding officer may authorize any 
methods appropriate for the protection of witnesses and evidence."). 

63. See ICC Statute, supra note 31; Statutes of the ICTY and ICTR, id.; (all establishing a 
"probative value"-based evidentiary admission policy). 

64. See Polman, supra note 5; Skiba, supra note 5. 

65. For example, they permit protective measures, including closed trial sessions, to 
accommodate the operational imperative of shielding intelligence information, methods, and 
sources. 

66. The focus of this section is on only those areas most significantly impacted by the war on 
terror. This section does not purport to provide an exhaustive collection of pertinent law of war 
standards regarding the trial process. 

67. See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armies in the Field, July 27, 1929, 47 Stat. 2074, 118 L.N.T.S. 303, reprinted in THE LAWS OF 
ARMED CONFLICTS 409 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004) [hereinafter 1929 
Geneva Convention]. See also Geneva Convention (I) for the Amelioration of the Condition of 
the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3 1 14, 75 U.N.T.S. 3 1 
[hereinafter Geneva Convention (I)]; Geneva Convention (II) for the Amelioration of the 
Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 
12, 1949, 6 U.S.T. 3217, 75 U.S.T.S. 85 [hereinafter Geneva Convention (II)]; Geneva 
Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 
U.N.T.S. 135 [hereinafter Geneva Convention (III)]; Geneva Convention (IV) Relative to the 



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Treatment of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 
[hereinafter Geneva Convention (IV)]; all reprinted in DOCUMENTS ON THE LAWS OF WAR 
(Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197, 222, 244 and 301, respectively. 

68. Department of Defense, Chairman of the Joint Chiefs of Staff Instruction 5820.02B, 
Implementation of the DoD Law of War Program (Mar. 25, 2002). 

69. For example, Article 36 of Protocol Additional to the Geneva Conventions of 12 August 
1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 
Jun. 8, 1977, 1 125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF War, supra note 67, at 
422 [hereinafter Additional Protocol I], requires that the acquisition process include a legal 
review of all new weapons to determine whether they comply with pertinent provisions of 
international law. Note that the United States is not party to Additional Protocol I, but see 
Michael J. Matheson, Remarks in Session One: The United States Position on the Relation of 
Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 
American University Journal of International Law & policy 419, 428 (1987) (declaring 
that it is US policy to consider parts of Additional Protocol I customary international law). The 
Defense Acquisition Program in turn requires a legal review of all intended weapon 
acquisitions — regardless of whether the treaty is applicable regarding a conflict with the likely 
adversary against whom the weapon might be used. Department of Defense, Directive 5000.1, 
The Defense Acquisition System (May 23, 2003), para El. 1.15. 

70. See Geneva Conventions (I), (II), (III) and (IV), supra note 67; Additional Protocol I, supra 
note 69; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to 
the Protection of Victims of Non-International Conflict (Protocol II), June 8, 1977, 1125 
U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 67, at 483. This is not 
to say that the law of armed conflict is silent regarding the persons in question. It is well accepted 
that belligerents can be detained without charge until the end of hostilities. See Ex Parte Quirin, 
317 U.S. 1, 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In reTerrito, 
156 F. 2d 142, 145 (9th Cir. 1946). But Geneva Convention (III) only regulates the detention of 
those entitled to participate in hostilities. Moreover, additional questions not specifically 
addressed by relevant treaties arise in the context of the Global War on Terrorism, such as when 
the conflict that pertains to a particular unprivileged belligerent ends or what status a detainee 
has when apprehended in a location away from a traditional battlefield. 

71. See A Nation Challenged; Agency Differs with U.S. Over P.O.Ws, NEW YORK TIMES, Feb. 9, 
2002, at A9; Seth Stern & Peter Grier, Untangling the Legalities in a Name, CHRISTIAN SCIENCE 
MONITOR, Jan. 30, 2002, at 3. 

72. Interview with Paul Grossreider, Director, International Committee of the Red Cross 
(ICRC), Le Temps, Jan. 29, 2002 ("Le droit humanitaire doit s'adapter sous peine d'etre 
marginalize" translated as "Humanitarian law must adapt or risk marginalization."). The ICRC 
has since distanced itself from the Grossreider comment, clamoring for the trial or repatriation 
of the Guantanamo Bay detainees. See generally Report of the 28th International Conference of 
the Red Cross and Red Crescent, International Humanitarian Law and the Challenges of 
Contemporary Armed Conflicts, Dec. 2-6, 2003 (emphasizing throughout that international 
humanitarian law is specifically designed to take account of both State security and individual 
rights). 

73. Geneva Convention (III), supra note 67, art. 84 (stating, in part, "A prisoner of war shall be 
tried only by a military court, unless the existing laws of the Detaining Power expressly permit 
the civil courts to try a member of the armed forces of the Detaining Power in respect of the 
particular offence alleged to have been committed by the prisoner of war."). 



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74. Id., art. 84 ("In no circumstances whatever shall a prisoner of war be tried by a court of any 
kind which does not offer the essential guarantees of independence and impartiality as generally 
recognized, and, in particular, the procedure of which does not afford the accused the rights and 
means of defence provided for in Article 105."). 

75. Id., art. 130; Geneva Convention (IV), supra note 67, art. 147. 

76. Some Geneva Convention requirements are not reflected in the Military Commission 
Instructions promulgated for al Qaeda. For example, pursuant to Geneva Convention (III), 
supra note 67, art. 105, a prisoner of war is entitled, among other things, "to assistance by one of 
his prisoner comrades." These less substantively important provisions could be easily 
accommodated with additional implementing instructions were it to be decided that all the 
technical provisions of Geneva Convention (III), Article 102 were appropriate for application to 
unlawful combatants. 

77. Additional Protocol I, supra note 69, art. 75. 

78. Id. Article 75 reads, in pertinent, part: 

3. Any person arrested, detained or interned for actions related to the armed conflict 
shall be informed promptly, in a language he understands, of the reasons why these 
measures have been taken. Except in cases of arrest or detention for penal offences, such 
persons shall be released with the minimum delay possible and in any event as soon as 
the circumstances justifying the arrest, detention or internment have ceased to exist. 

4. No sentence may be passed and no penalty may be executed on a person found 
guilty of a penal offence related to the armed conflict except pursuant to a conviction 
pronounced by an impartial and regularly constituted court respecting the generally 
recognized principles of regular judicial procedure, which include the following: 

(a) The procedure shall provide for an accused to be informed without delay of the 
particulars of the offence alleged against him and shall afford the accused 
before and during his trial all necessary rights and means of defence; 

(b) No one shall be convicted of an offence except on the basis of individual penal 
responsibility; 

(c) No one shall be accused or convicted of a criminal offence on account of any 
act or omission which did not constitute a criminal offence under the national 
or international law to which he was subject at the time when it was 
committed; nor shall a heavier penalty be imposed than that which was 
applicable at the time when the criminal offence was committed; if, after the 
commission of the offence, provision is made by law for the imposition of a 
lighter penalty, the offender shall benefit thereby; 

(d) Anyone charged with an offence is presumed innocent until proved guilty 
according to law; 

(e) Anyone charged with an offence shall have the right to be tried in his presence; 

(f) No one shall be compelled to testify against himself or to confess guilt; 

(g) Anyone charged with an offence shall have the right to examine, or have 
examined, the witnesses against him and to obtain the attendance and 
examination of witnesses on his behalf under the same conditions as witnesses 
against him; 

(h) No one shall be prosecuted or punished by the same Party for an offence in 
respect of which a final judgment acquitting or convicting that person has been 
previously pronounced under the same law and judicial procedure; 



284 



William K. Lietzau 



(i) Anyone prosecuted for an offence shall have the right to have the judgment 
pronounced publicly; and 

(i) A convicted person shall be advised on conviction of his judicial and other 
remedies and of the time-limits within which they may be exercised. 

6. Persons who are arrested, detained or interned for reasons related to the armed 
conflict shall enjoy the protection provided by this Article until their final release, 
repatriation or re-establishment, even after the end of the armed conflict. 

7. In order to avoid any doubt concerning the prosecution and trial of persons 
accused of war crimes or crimes against humanity, the following principles shall apply: 

(a) Persons who are accused of such crimes should be submitted for the purpose of 
prosecution and trial in accordance with the applicable rules of international 
law; and 

(b) Any such persons who do not benefit from more favourable treatment under 
the Conventions or this Protocol shall be accorded the treatment provided by 
this Article, whether or not the crimes of which they are accused constitute 
grave breaches of the Conventions or of this Protocol. 

8. No provision of this Article may be construed as limiting or infringing any other 
more favourable provision granting greater protection, under any applicable rules of 
international law, to persons covered by paragraph 1. 

79. See Matheson, supra note 69. In the only recognized authoritative statement on the subject 
by a US Government official, Mr. Matheson, then US Department of State Deputy Legal 
Advisor, expounded at a law of armed conflict conference on those provisions of Additional 
Protocol I the United States deemed to constitute customary international law. He included 
Article 75's provisions among them. 

80. Geneva Convention (III), supra note 67, art. 84. 

81. Id. 

82. Cf Melvin Heard, Robert P. Monahan, William Ryan & E. Page Wilkins, Military 
Commissions: A Legal and Appropriate Means of Trying Suspected Terrorists? 49 NAVAL Law 
REVIEW 71 (2002) (criticizing the "most significant weakness" in MCO No. 1 — the lack of an 
independent appellate court). 

83. See MCM, supra note 57, Rules for Courts-Martial 504, 505 (prescribing a military panel as 
the trier of fact). Moreover, if Geneva is interpreted as requiring that the trier of fact function be 
segregated in a different branch of government, several hundred years of military courts-martial 
practice would have to be invalidated as well. To an American audience, "ludicrous" may be an 
appropriate modifier for the above postulate that a military jury is not sufficiently 
"independent" to comport with modern standards. It would be equally ludicrous to suggest that 
the United States Senate, in ratifying the Geneva Conventions, was acceding to an international 
law standard that would afford alleged war criminals theoretically superior trial rights than those 
accorded US soldiers. We should be aware, however, that others may see things differently. 
Indeed, the European Court of Human Rights has done just that. In Findlay v. United Kingdom, 
24 E.H.R.R. 221 (1997), that court found insufficient independence in British courts-martial to 
comply with parallel human rights provisions found in the European Convention on Human 
Rights. Findlay at para. 59. The European Court of Human Rights, which has authority over the 
United Kingdom, nullified a British court-martial and established a rule that required an entire 
revamping of the United Kingdom's military justice system. See Simon P. Rowlinson, The British 
System of Military Justice, 52 AIR FORCE LAW REVIEW 17 (2002). In articulating the rule of law we 
deem both correct under currently accepted norms and appropriate for a future that involves an 



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Military Commissions: Old Laws for New Wars 



ongoing war on terrorism, we must be cognizant of European and other sensibilities in this area 
and ensure we are not unwittingly setting undesirable precedent. 

84. See Geneva Convention (III), supra note 67, arts. 84, 85, 102. 

85. Id., ait. 102. 

86. See Legal Counsel Memo for Gonzales, supra note 41. 

87. See Geneva Convention (III), supra note 67, art. 4. 

88. The White House, Office of the Press Secretary, Fact Sheet, Status of Detainees at 
Guantanamo (Feb. 7, 2002) [hereinafter White House Fact Sheet — Status of Detainees], 
available at http://www.whitehouse.gov/news/releases/2002/02/20020207- 1 3.html. 

89. President's Military Order, supra note 1, at Sec. 2. One of the negotiators of the 1949 
Conventions has argued that only courts-martial are now legally available for war crimes trials. 
See, e.g., Raymund T. Yingling & Robert W. Ginane, The Geneva Conventions of 1949, 46 
AMERICAN JOURNAL OF INTERNATIONAL Law 393 (July 1952). It is not clear what consequences 
this reading of Article 102 might impose on the United States, but at the very least, the 
President's Military Order language prohibiting trial of US citizens becomes problematic, if not 
as a legal issue, then certainly as one of international public relations. 

90. See Geneva Convention (III), supra note 67, art. 99 (beginning the chapter in which article 
102 is contained with language implying that the chapter will discuss offenses relegated under 
the detaining power's law — i.e., post-capture offenses). 

91. Id., art. 102. 

92. Geneva Convention, supra note 67. 

93. In re Yamashita, 327 U.S. 1 (1946). 

94. Geneva Convention (III), supra note 67, art. 85 (providing that "[prisoners of war 
prosecuted under the laws of the Detaining Power for acts committed prior to capture shall 
retain, even if convicted, the benefits of the present Convention."). 

95. See Yingling 8c Ginane, supra note 89 (concluding, in an article published shortly after the 
negotiation of the 1949 Conventions, that the courts and the procedure utilized must be the 
same for prisoners of war as for the armed forces of the detaining power — even with regard to 
pre-capture offenses). A more recent paper authored by Ed Cummings, Deputy Legal Advisor to 
the US Department of State, reached this same conclusion. 

96. Geneva Convention (III) essentially retained the 1929 language that ultimately became 
Article 102, but the new additive provision, Article 85, had no parallel in the 1929 work. 

97. Geneva Convention (III), supra note 67, art. 85. An expansive reading of Article 85 would 
make superfluous another provision of the Convention — Article 84 — also first added in 1949 
(suggesting that if a choice of courts is available; military courts must be used unless civilian 
courts have jurisdiction.) If the "same" courts must be used for pre-capture crimes, however, 
then there is no choice of courts as described in Article 84, and the language is meaningless. 

98. Id., arts. 99-100. 

99. Id. 

100. The terms of Article 84 suggest just such a reading of Article 85. Article 84 turns on 
jurisdiction; it requires trial by a military court, "unless the existing laws of the Detaining Power 
expressly permit the civil courts to try a member of the armed forces of the Detaining Power in 
respect to the particular offense alleged to have been committed by the prisoner of war." 

101. In the course of the Calley case, there was some discussion among prosecutors about 
whether Calley should be charged under provisions of 10 U.S.C. § 821 with the commission of 
war crimes in addition to the UCMJ charges for the substantive offenses underlying such war 
crimes. Prudential concerns resulted in the charging only of non-law of war charges. U.S. v. 
Calley, 46 C.M.R. 1131 (1973). 



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102. This interpretation is rife with inherent subjectivity. A random sampling of the meaning of 
Article 102 among uniformed judge advocates would probably yield a belief that the provision 
requires trial by court-martial — simply because that is the forum with which most have the 
greatest familiarity. 

103. That is, if a certain subset of criminal offenses is applicable for consideration, then a court- 
martial would undoubtedly be the most prevalent forum, both historically and with respect to 
future probability. 

104. That courts-martial charges have been brought against those accused in the prisoner abuse 
scandal of Abu Ghraib provides continued support for this proposition. See, e.g., Sergeant Javal 
S. Davis — Charged under the UCMJ with conspiracy to maltreat detainees; dereliction of duty 
for willfully failing to protect detainees from abuse, cruelty, and maltreatment; maltreatment of 
detainees; assaulting detainees; and making a statement designed to deceive an investigator; and 
Corporal Charles Graner — Charged under the UCMJ with conspiracy to maltreat detainees; 
dereliction of duty for willfully failing to protect detainees from abuse, cruelty, and 
maltreatment; maltreatment of detainees; assaulting detainees; committing indecent acts; 
adultery with Private First Class England; and obstruction of justice. Charge sheets available at 
http://news.findlaw.com/hdocs/docs/iraq/. See also Edmund Sanders & Richard Serrano, 
Contrite GI Pleads Guilty to Abuse, LOS ANGELES TIMES, May 20, 2004 ("Choking back tears and 
expressing remorse, US Army Spc. Jeremy C. Sivits pleaded guilty Wednesday in Baghdad, Iraq, 
to abusing detainees at the Abu Ghraib detention center and was demoted, sentenced to a year in 
military prison, and expelled from the Army. The sentence makes him the first US soldier court- 
martialed in an evolving scandal that authorities say could reach beyond the seven soldiers 
implicated so far."). See also Hearing Scheduled for Pfc. Lynndie England on Prisoner Abuse 
Charges, Lawyer Says, THE ASSOCIATED PRESS, May 28, 2004 (noting that "Army Pfc. England, 
who appeared in Abu Ghraib prison photographs pointing at Iraqi prisoners' genitals and 
holding a leash attached to a detainee, will face a military court hearing known as an "Article 32," 
scheduled for June 21-25, at Fort Bragg, North Carolina. The Article 32 is a proceeding where 
military prosecutors present evidence and a judge decides whether to go forward with a court- 
martial. It is similar to a civilian grand jury. England is one of seven soldiers facing military 
charges in the Abu Ghraib prison scandal. England is charged with assaulting Iraqi detainees, 
conspiring with Spec. Charles Graner Jr. to mistreat the prisoners and committing an indecent 
act by forcing prisoners to masturbate."), available at http://ap.tbo .com/ap/breaking/ 
MGBOZ4HGSUD.html. 

105. See, e.g., Geneva Convention (III), supra note 67, art. 84 (authorizing trial by civil courts 
when such courts have jurisdiction over "the particular offense alleged to have been 
committed"). See also Yingling & Ginane, supra note 89 (arguing that Geneva limited the 
Supreme Court's decision in Yamashita approving differing treatment of POWs vis-a-vis US 
service members "for a like offense"). 

106. The War Crimes Act of 1996, 18U.S.C. §2441 (war crimes); 18U.S.C.§371 (conspiracy). 

107. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 702(a), 
110 Stat. 1214, 1291-94 (codified at 18 U.S.C. § 2332b) (defining the charge of "material support 
to terrorism"). 

108. The War Crimes Act, supra note 106, at § 2441(c). 

109. Id. at § 2441(b). 

110. Id. 

111. See 10 U.S.C. § 802 (prescribing that "prisoners of war in custody of armed forces" are 
subject to the UCMJ). 

112. See MCM, supra note 57. 

113. Id. 

114. See, e.g., U.S. v. Calley, 46 C.M.R. 1131 (1973). 



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Military Commissions: Old Laws for New Wars 



115. MCM, supra note 57, part III (2002). 

116. Id. 

117. Treating prisoners of war "the same" at a court-martial raises problematic jurisdictional 
issues as well. For example, the UCMJ limits its jurisdiction over US armed forces to crimes 
committed after the member is under military control, and thus has no jurisdiction over pre- 
enlistment or pre-commission crimes. Because Article 102 requires that prisoners of war be 
treated the same way US armed forces are treated, one might argue that a court-martial has no 
jurisdiction over pre-capture crimes. 

118. Ex Parte Quirin, 317 U.S. 1 (1942). 

119. Mudd v. Caldera, 134F.Supp.2d 138 (D.D.C. 2001) (citing Ex Parte Quirin) . Only one case 
has limited the reach of military commission jurisdiction over US citizens. See Ex Parte Milligan, 
71 U.S. 2 (1866). In Milligan, the Court determined that a US citizen who was not a belligerent — 
and who resided in a state without active hostilities and where the civil courts were open and 
operating — could not be tried by military commission. Id. These considerations would not serve 
to limit the jurisdiction of military commissions over military members, however. Id. at 118 
(citing accused's lack of military status as a factor in finding that military commission lacked 
jurisdiction). 

120. See WlNTHROP, supra note 42. 

121. Id. (noting that, inter alia, officers' servants, government detectives, medical cadets, and 
lieutenants in the revenue service were tried by military commission in the Civil War). 

122. This would, however, not only create obvious political concerns, it would also raise 
constitutional issues. For example, in response to a defense argument that the Fifth and Sixth 
Amendments required trial by jury, the Quirin Court held that the "offenders were outside the 
constitutional guarantee of trial by jury, not because they were aliens but only because they had 
violated the law of war." Quirin, supra note 118, at 44. Read broadly, the decision may be 
interpreted as placing all military commission proceedings outside of the realm of 
Constitutional guarantees. Id. at 45 ("We conclude that the Fifth and Sixth Amendments did not 
restrict whatever authority was conferred by the Constitution to try offenses against the law of 
war by military commission. . . ."). But there is some risk that a reviewing court may read Quirin 
more narrowly and find that some constitutional provisions do apply at military commissions 
convened to try US citizens. In the case of a US citizen for example, if the 6th Amendment 
Confrontation Clause was found to apply, commission hearsay rules might be restricted to 
reflect that right. This would raise the concern, of course, that the trials of prisoners of war would 
no longer be using the "same procedures" as trials of US service members (most of whom are 
citizens). 

123. Except perhaps in the unique case when a service member was prosecuted for terrorist- 
related activities using either an enumerated violation of the UCMJ or an assimilated crime 
charged as a violation of Article 134 of the UCMJ. 

124. See MCI No. 2, supra note 38 (requiring that the contextual element for each offense, when 
read in light of definitions, mandates a war nexus). 

125. See Remarks by Alberto Gonzales, Counsel to the President, American Bar Association 
Standing Committee on Law and National Security, Washington, D.C., Feb. 24, 2004, available 
at http://usinfo.state.gov/dhr/Archive/2004/Mar/ 1 7-83430 1 .html. 

1 26. Bickel was quoting Sir Lewis Bernstein Namier in an address originally delivered in the 1 969 
Oliver Wendell Holmes Lecture series at Harvard Law School, reprinted in ALEXANDER BlCKEL, 
The Supreme Court and the Idea of Progress 13 (1970). 



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XII 



Military Commissions: Constitutional, 

Jurisdictional, and Due Process 

Requirements 

Jordan J. Paust* 

Presidential Power to Create a Military Commission and 
Jurisdictional Competence 

The President's power as Commander-in-Chief to set up a military commis- 
sion and the jurisdictional competence of a military commission apply only 
during an actual war within a war zone or a war-related occupied territory. 1 As 
Colonel William Winthrop recognized in his classic study of military law: "A mili- 
tary commission . . . can legally assume jurisdiction only of offences committed 
within the field of command of the convening commander," and regarding mili- 
tary occupation, "cannot take cognizance of an offence committed without such 
territory — The place must be the theater of war or a place where military govern- 
ment or martial law may be legally exercised; otherwise a military commission . . . 
will have no jurisdiction . . . ." 2 The military commission set up within the United 
States during World War II and recognized in Ex parte Quirin 3 had been created 
during war for prosecution of enemy belligerents for violations of the laws of war 
that occurred within the United States and within the convening authority's field 
of command — which in that case was within the Eastern Defense Command of the 
United States Army. 4 



* Mike and Teresa Baker Law Center Professor, University of Houston. 



Military Commissions 



Limitations with Respect to Place 

What is unavoidably problematic with respect to military commission jurisdiction 
at Guantanamo, Cuba is the fact that the US military base at Guantanamo is nei- 
ther in a theater of actual war nor in a war-related occupied territory, 5 and, thus, a 
military commission at Guantanamo will not be properly constituted and will be 
without lawful jurisdiction. Moreover, alleged violations of the laws of war during 
war in Afghanistan or Iraq clearly did not occur in Cuba. Another problem with re- 
spect to prosecution of certain persons in a military commission at Guantanamo 
involves an absolute prohibition under the laws of war. Any person who is not a 
prisoner of war and who is captured in occupied territory in Afghanistan or Iraq 
must not be transferred out of occupied territory. Article 49 of the Geneva Con- 
vention Relative to the Protection of Civilian Persons in Time of War 6 expressly 
mandates that "[ijndividual or mass forcible transfers . . . of protected persons 
from occupied territory . . . are prohibited, regardless of their motive." 7 Further, 
"unlawful deportation or transfer" is not merely a war crime; it is also a "grave 
breach" of the Geneva Convention. 8 To correct such violations of the laws of war, 
persons who are not prisoners of war and who were captured in occupied territory 
and eventually found at Guantanamo or other areas under US control outside of 
occupied territory should be returned to the territory where they were captured. 

Limitations with Respect to Time 

The President's power and a military commission's jurisdiction are limited in 
terms of time to a circumstance of actual war until peace is finalized. 9 As Major 
General Henry Halleck wrote early during the last century, military commissions 
"are established by the President, by virtue of his war power as commander-in- 
chief, and have jurisdiction of cases arising under the laws of war," adding: "[they] 
are war courts and can exist only in time of war." 10 Similarly, in 1865 Attorney 
General Speed formally advised the President: 

A military tribunal exists under and according to the Constitution in time of war. 
Congress may prescribe how all such tribunals are to be constituted, what shall be their 
jurisdiction, and mode of procedure. Should Congress fail to create such tribunals, 
then, under the Constitution, they must be constituted according to the laws and 
usages of civilized warfare. They may take cognizance of such offences as the laws of 
war permit .... In time of peace neither Congress nor the military can create any 
military tribunals, except such as are made in pursuance of that clause of the 
Constitution which gives to Congress the power "to make rules for the government of 
the land and naval forces." 11 



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From the Attorney General's opinion, one can recognize that relevant presidential 
power is tied to a war circumstance and law of war competencies such as the com- 
petence of a war-related occupying power to set up a military commission to try 
violations of the laws of war in accordance with the laws of war. 

Crimes Triable Before Military Commissions 

Since their authority is tied to war powers, military commissions generally have ju- 
risdiction only over war crimes, which are violations of the laws of war. In fact, 
some writers have stated that military commissions have jurisdiction only over war 
crimes. 12 In 10 U.S.C. Sections 818 and 821, Congress has only expressly conferred 
military commission jurisdiction for prosecution of "offenders or offenses that by 
statute or by the law of war may be tried by military commissions." Such a congres- 
sional grant of competence, without additional grants of jurisdiction over offend- 
ers or offenses by statute, limits the offenders and offenses that are triable to those 
that the law of war permits to be tried in a military commission. The Supreme 
Court has also recognized that when Congress enacted the 1916 Articles of War, 
which contained similar language, Congress "gave sanction" to uses of a "military 
commission contemplated by the common law of war." 13 Section 4(A) of the Presi- 
dent's 2001 Military Order 14 states that accused shall be tried for "offenses triable 
by military commission." 15 Thus, one question is whether the law of war allows a 
military commission to address crimes other than war crimes. 

In practice, some military commissions have addressed other crimes under in- 
ternational law that occurred during war (such as crimes against humanity occur- 
ring during World War II) when, but only when, the military commissions were 
convened in war-related occupied territory. 16 A war-related occupying power ac- 
tually has a greater competence under the international law of war to maintain law 
and order in the occupied territory and to prosecute various crimes. 17 Since inter- 
national law is a constitutionally based part of the law of the United States and law 
that the President is bound faithfully to execute here or abroad in time of peace or 
war, 18 the President actually has an enhanced power to execute laws of war that 
confer powers on a war-related occupying power to prosecute such crimes. 19 Con- 
gress has also conferred such a competence in 10 U.S.C. Section 821, since the law 
of war with respect to war-related occupation permits the trial of such offenders 
and offenses. Thus, when the United States is exercising a war-related occupying 
power, a military commission in such territory could prosecute crimes other than 
war crimes because of a special competence conferred by the law of war concerning 
war-related occupation. Where the United States is not such an occupying power, 
it is apparent that military commission jurisdiction can be permissible in a theater 
of war but will be limited to prosecution of war crimes. 

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Military Commissions 



Again, military commissions at Guantanamo are not within a theater of war or 
war-related occupied territory and have no such jurisdiction. 20 Even if they were 
constituted in an actual theater of war such as Afghanistan or Iraq, questions have 
been raised whether the current list of crimes set forth in Military Commission In- 
struction No. 2 21 is partly improper because it attempts to list crimes that are not 
prosecutable as war crimes as such despite a statement that the "crimes and ele- 
ments derive from the law of armed conflict, . . . the law of war" and "constitute vi- 
olations of the law of armed conflict or offenses that, consistent with that body of 
law, are triable by military commission." 22 For example, Human Rights First has 
stated that the list includes crimes that are not war crimes and that offenses 
prosecutable by military commission must occur during an armed conflict to 
which the laws of war apply. 23 The list does include some crimes that are not war 
crimes per se; but conduct relevant to some of the crimes, such as "hijacking or 
hazarding a vessel or aircraft" 24 and "terrorism," 25 could constitute a war crime 
during actual war in a given circumstance and the Instruction requires that "[t]he 
conduct took place in the context of and was associated with armed conflict." 26 In 
fact, terrorism is not new to the laws of war and some forms of "terrorism" are war 
crimes. 27 Some crimes on the list can be war crimes if they are committed against 
persons or property protected from attack or destruction by the laws of war. These 
could involve murder or destruction of property 28 if in a given context the murder 
or destruction were war crimes. 29 Yet, some of the crimes listed are merely crimes 
against the state as such or "pure political offenses" 30 and are not war crimes. These 
include: "aiding the enemy, spying, 31 perjury or false testimony, and obstruction of 
justice related to military commissions." 32 The Human Rights First Report also 
correctly notes that definitions of "armed conflict" are too broad with respect to 
the laws of war and that an attempted jurisdictional reach through such a defini- 
tion and concepts such as "associated with" an armed conflict are potentially im- 
proper. 33 

Other Constitutional Limitations 

General Conferral of Competence by Congress 

Some have argued that Congress must authorize the creation of military commis- 
sions and that Congress has not done so with respect to military commissions ad- 
dressed in the 2001 Military Order of the President. However, as noted Congress 
has generally conferred military commission jurisdiction with respect to prosecu- 
tion of war crimes in 10 U.S.C. Sections 818 and 821; and it has done so in the same 
general language that existed in the 1916 congressional Articles of War 34 addressed 
by the US Supreme Court in Ex parte Quirin and In re Yamashita which not only 

292 



Jordan J. Paust 



allows such jurisdiction to obtain when a military commission is otherwise prop- 
erly constituted and is being used in a manner "contemplated by the common law 
of war," 35 but also incorporates the laws of war by reference as offenses against the 
laws of the United States whether they are committed by United States or foreign 
nationals here or abroad. 36 The President expressly mentioned such a conferral of 
jurisdictional competence in his 2001 Military Order. 37 1 do not agree that Con- 
gress must do so again in more specific legislation, although it is the case that Con- 
gress has not approved the type of military commissions or procedures set forth in 
the 2001 Military Order 38 or in subsequent Department of Defense (DoD) military 
commission rules of procedure or instructions. 

A Violation of the Separation of Powers 

Nonetheless, a serious violation of the separation of powers exists with respect to 
the attempt by the President in his 2001 Military Order to preclude any judicial re- 
view of US military commission decisions 39 concerning offenses against the laws of 
war and other international crimes over which there is concurrent jurisdictional 
competence in federal district courts. 40 Additionally, under Article I, Section 8, 
clause 9 of the United States Constitution, Congress merely has power tt [t]o consti- 
tute Tribunals inferior to the supreme Court" and, thus, tribunals subject to ulti- 
mate control by the Supreme Court. 41 For this reason, the congressional 
authorization for creation of military commissions in 10 U.S.C. Section 821 is nec- 
essarily subject to the constitutional restraint contained in Article I, Section 8, 
clause 9 and the President's attempt to preclude any form of judicial review is con- 
stitutionally improper whether or not a military commission has support in a gen- 
eral congressional authorization. 42 

Problems Concerning Present DoD Rules of Procedure for 
Military Commissions 

Since 9/1 1, we have witnessed the deliberate creation of rules of procedure for US 
military commissions that would violate human rights and Geneva law 
guarantees 43 and can create war crime civil and criminal responsibility for those di- 
rectly participating in their creation and application if the military commission 
rules are not changed and are utilized. 44 We have seen a refusal to even disclose the 
names of persons detained and false Executive claims are made before our courts 
and media that human beings have no human rights or Geneva law protections, no 
right of access to an attorney or to their consulate, and no right of access to a court 
of law to address the propriety of their detention without trial. 45 Despite com- 
mendable efforts by professional military lawyers to stretch the DoD rules of 

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procedure where they can in order to follow the mandate of the President's Mili- 
tary Order requiring that all accused have "a full and fair trial," 46 present DoD rules 
for military commissions would assure denial of the customary and treaty-based 
human rights to trial before a regularly constituted, competent, independent, and 
impartial court; 47 to counsel of one's choice and to effective representation; 48 to 
fair procedure and fair rules of evidence, including the right to confrontation and 
examination of all witnesses against an accused (an important due process guaran- 
tee that can be violated, for example, by use of unsworn written statements, declas- 
sified summaries of evidence, testimony from prior trials or proceedings, certain 
forms of hearsay, other testimony from witnesses who do not appear before the 
military commission, and reports); 49 to review by a competent, independent, and 
impartial court of law; 50 and to various other human rights, including freedom 
from discrimination on the basis of national origin (since only aliens will be subject 
to prosecution before the military commissions), rights to equality of treatment 
and equal protection, and "denial of justice" to aliens. 51 Relevant customary hu- 
man rights to due process are also incorporated through common Article 3 of the 
Geneva Conventions as minimum due process guarantees for all persons in any 
armed conflict, regardless of their status as combatants or noncombatants 52 and 
whether or not the due process requirements are mirrored elsewhere in the 
Conventions. 

Clearly, the DoD rules should be changed. Moreover, they should be construed 
consistently with the President's requirement of a "full and fair trial" wherever 
possible, since in case of a potential clash between lawful portions of the President's 
Military Order and subsequent DoD rules of procedure or military commission in- 
structions the lawful portions of the Military Order must prevail. 53 Additionally, 
since the Executive is bound by international law, 54 the Military Order and subse- 
quent DoD rules and instructions should be construed consistently with interna- 
tional legal requirements wherever possible. 55 In cases where the Military Order or 
DoD rules or instructions are unavoidably violative of international law, interna- 
tional law must prevail as supreme law of the United States. 56 

Conclusion 

Military commissions are "war courts" and their jurisdiction is limited in terms of 
context and time to a circumstance of actual war and in terms of place to a theater 
of war or a war-related occupied territory. Guantanamo Bay, Cuba is not in a the- 
ater of war or war-related occupied territory and, thus, a military commission situ- 
ated there would not have lawful jurisdiction. Some of the crimes that might be 
charged are also not within the competence of a military commission. A serious 

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violation of the separation of powers exists because the military commissions at 
Guantanamo Bay do not comply with Article I, Section 8, clause 9 of the US Con- 
stitution, which requires that tribunals be constituted "inferior to the supreme 
Court" and, thus, subject to its ultimate control. 

Some of the present DoD rules of procedure and instructions for military com- 
missions do not comply with international law, which is the constitutionally based 
supreme law of the United States, and they should be changed. Some DoD rules 
and instructions have a potential to create violations of international law and to vi- 
olate the President's requirement of a "full and fair trial." They should be inter- 
preted consistently with international law or changed if compliance is not possible. 

Serious short- and long-term consequences can ensue for the United States, 
other countries, United States and other military personnel, and other US nation- 
als if violations of human rights and rights under the Geneva Conventions occur. 
Violations are unnecessary. They would degrade this country, its values, and its in- 
fluence. They can fulfill terrorist ambitions 57 and pose serious long-term threats. 
As military officers, we took an oath to preserve and protect the Constitution and 
we are bound to comply with the laws of the United States, not to violate or degrade 
them here or abroad even at the order of a President. 58 

Notes 

1. See, e.g., The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869) (jurisdiction exists "wherever 
the insurgent power was overthrown"); WILLIAM WlNTHROP, MILITARY LAW AND PRECEDENTS 
836 (2d ed. 1920); Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 
MICHIGAN JOURNAL OF INTERNATIONAL LAW 1, 5 & n. 14, 25 n.70, 26-27 (2001); see also 
Madsen v. Kinsella, 343 U.S. 341, 348 (1952) (a military commission is proper in a war-related 
occupied enemy territory "in time of war"); Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946) 
("occupied enemy territory"); id. at 326 (Murphy, J., concurring) ("[o]nly when a foreign 
invasion or civil war actually closes the courts"); Coleman v. Tennessee, 97 U.S. 509, 515 ("when 
... in the enemy's country"), 517 (when occupation of enemy territory occurs) (1878). 

2. WlNTHROP, supra note 1, at 836. 

3. 317 U.S. 1 (1942). 

4. See 317 U.S. at 22 n.l. Petitioners had also been charged with war-time espionage, but the 
Supreme Court merely approved military commission jurisdiction to try violations of the laws of 
war. 

5. See, e.g., Paust, supra note 1, at 25 n.70. See also Rasul v. Bush, 542 U.S. 466, 487 (2004) 
(Kennedy, J., concurring) (it is territory "far removed from any hostilities"). 

6. Done Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 2516, T.I.A.S. No. 3365, reprinted in 
DOCUMENTS ON THE LAWS OF WAR 301 (Richard Guelff & Adam Roberts eds., 3d ed. 2000) 
[hereinafter GC or Geneva Civilian Convention]. The Convention applies to the wars in 
Afghanistan and Iraq even though the United States cannot be at "war" with al Qaeda as such 
there or elsewhere and members of al Qaeda can be covered under certain provisions of the 
Convention if captured during war in Afghanistan or Iraq. See, e.g., Paust, supra note 1, at 5-8 



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n.16; Jordan J. Paust, War and Enemy Status After 9/11: Attacks on the Laws of War, 28 YALE 
JOURNAL OF INTERNATIONAL LAW 325, 325-28 (2003). 

7. GC, supra note 6, art. 49; see also id., art. 76 ("persons accused of offences shall be detained in 
the occupied country"); Protocol Additional to the Geneva Conventions of 12 August 1949, and 
Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 
85(4)(a), 1 125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 6, at 422, 
471 [hereinafter Geneva Protocol I]; IV COMMENTARY, GENEVA CONVENTION RELATIVE TO 
the Protection of Civilian Persons in Time of War 278-80, 363 (Jean S. Pktet ed., 1958) 
[hereinafter IV COMMENTARY]; Paust, supra note 1, at 24 n.68. Even if persons are nationals of a 
"neutral" State and their State of nationality has normal diplomatic relations with the detaining 
State, they are protected persons if they are in occupied territory or other territory that is not the 
territory of the detaining State, since the exclusion in paragraph 2 in Article 4 only applies to 
persons detained in the detaining State. See, e.g., GC, supra note 6, art. 4; IV COMMENTARY, 
supra, at 48 ("in occupied territory they are protected persons and the Convention is applicable 
to them"); U.S. Department of the Army, Pam. 27-161-2, 2 INTERNATIONAL LAW 132 (1962) ("If 
they are in occupied territory, they remain entitled to protection."); UK Ministry of Defence, 
THE MANUAL OF THE Law OF ARMED CONFLICT 274 (2004) ("Neutral nationals in occupied 
territory are entitled to treatment as protected persons under Geneva Convention IV whether or 
not there are normal diplomatic relations between the neutral States concerned and the 
occupying power.") [hereinafter UK MANUAL]. 

Additionally, rights and duties under the 1949 Geneva Conventions must be applied "in all 
circumstances." See, e.g., GC, supra note 6, arts. 1, 3, 27. Importantly, any detainee who is not a 
prisoner of war has certain protections under the Geneva Civilian Convention and common 
Article 3, which now applies also in an international armed conflict {i.e., there are no gaps in 
Geneva law that leave a person without any protections). See, e.g., GC, supra note 6, arts. 3, 5, 13, 
16, 27-33; IV COMMENTARY, supra at 18, 58, 595; U.S. Department of the Army Field Manual 
27-10, THE Law OF LAND WARFARE 31, U 73, 98, 1 247(b) (1956) [hereinafter FM 27-10]; UK 
MANUAL, supra, at 5, 145, 148, 150, 216, 255; Derek Jinks, Protective Parity and the Law of War, 
79 NOTRE DAME Law REVIEW 1493, 1504, 1508-11 (2004); Paust, supra note 1, at 6-8 n.15; 
William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 YALE 
JOURNAL OF INTERNATIONAL LAW 319, 321-22 (2003). Further, the 1949 Geneva Conventions 
contain express and implied rights and can be self-executing. See, e.g., Jordan J. Paust, Judicial 
Power To Determine the Status and Rights of Persons Detained Without Trial, 44 HARVARD 
INTERNATIONAL LAW JOURNAL 503, 515-17 (2003). Additionally, they are "executed" by 
congressional legislation in, for example, 10 U.S.C. §§ 818, 821. See, e.g., infra note 36; see also 
Paust, supra at 517 (re: ATCA and habeas statutes). Moreover, the President has an unavoidable 
constitutional duty to faithfully execute the law. See, e.g., U.S. CONSTITUTION, art. II, § 3; infra 
notes 11, 18. 

That the United States has been an occupying power in Afghanistan and Iraq is well-known. 
See, e.g., United Nations Security Council Resolution 1438, U.N. SCOR, 58th Sess., 4761st mtg. 
pmbl., U.N. Doc. S/RES/1483 (2003) (addressing UK and US recognitions); Jordan J. Paust, The 
US as Occupying Power Over Portions of Iraq and Special Responsibilities Under the Laws of War 
(May 2003), at http://www.nimj. org/documents/occupation(l). doc; Paust, supra note 1, at 24 
n.67. 

8. GC, supra note 6, art. 147; IV COMMENTARY, supra note 7, at 280, 599. See also Geneva 
Protocol I, supra note 7, art. 85(4)(a); Rome Statute of the International Criminal Court, art. 
8(2)(a)(vii) and (b)(viii), U.N. Doc. A/CONF. 183/9 (1998), reprinted in 37 INTERNATIONAL 
Legal Materials 999 (1998). 



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9. See, e.g., Madsen v. Kinsella, 343 U.S. 341, 346-48 (1952) (recognizing that military 
commission power is "related to war" and recognizing them as "war courts" that the President 
"may, in time of war, establish"); In re Yamashita, 327 U.S. 1, 1 1-13 (1946) (such power exists 
after cessation of hostilities "at least until peace has been officially recognized by treaty or 
proclamation of the political branch of the Government."), 20 n.7 (a military commission is a 
"war court") (1946); Ex parte Quirin, 317 U.S. 1, 28 (1942); The Grapeshot, 76 U.S. (9 Wall.) 
129, 132-33 (1869) (permitting jurisdiction "so long as the war continued" and "during war"); 
Cross v. Harrison, 57 U.S. (16 How.) 164, 190 (1853) (permitting jurisdiction until a "treaty of 
peace"); 24 Opinions of the Attorney General 570, 571 (1903); 11 Opinions of the Attorney 
General 297, 298 (1865); JORDAN J. PAUST, M. CHERIF BASSIOUNI, ET AL., INTERNATIONAL 
CRIMINAL Law 309-10 (2d ed. 2000); Winthrop, supra note 1, at 86 (jurisdiction of military 
commissions "is determined by the existence and continuance of war"), 831 (jurisdiction is tied 
to the war powers, "exclusively war-court"), 837 ("An offence . . . must have been committed 
within the period of the war or of the exercise of military government .... [jurisdiction . . . 
cannot be maintained after the date of a peace . . . ."); DIGEST OF OPINIONS OF THE JUDGE 
ADVOCATE GENERAL 1067 (1912); Henry W. Halleck, Military Tribunals and Their Jurisdiction, 5 
American Journal of International Law 958, 965-66 (1911), reprinted in Military Law 
REVIEW BICENTENNIAL ISSUE 15, 21 (1975); Michael A. Newton, Continuum Crimes: Military 
Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MILITARY LAW 
REVIEW 1, 15 (1996); Paust, supra note 1, at 5 & n.14, 9, 25 n.70; Committee on Military Affairs 
and Justice of the Association of the Bar of the City of New York, Inter Arma Silent Leges: In 
Times of Armed Conflict, Should the Laws be Silent? -A Report on the President's Military Order of 
November 13, 2001 at 25-26 n.68, 28 (Dec. 2001); SENATE REPORT. No. 64-130, at 40 (1916) (it is 
a "war court"). 

10. Halleck, supra note 9, at 965-66. General Halleck was a general during the Civil War and a 
prominent international legal scholar who participated in the creation of the 1863 Lieber Code 
on the laws of war. 

11. 11 Opinions of the Attorney General, supra note 9, at 297, 298 (1865). Clearly, Congress can 
regulate the jurisdiction and procedure of military commissions, but must do so consistently 
with international law and the requirements of international law "are of binding force upon the 
departments and citizens of the Government, though not defined by any law of Congress" and 
neither Congress nor the Executive can "abrogate them or authorize their infraction." See, e.g., 
id. at 298-300; Madsen v. Kinsella, 343 U.S. 341, 348-49 (1952); see also Dooley v. United States, 
1 82 U.S. 222, 231 ( 1 90 1 ) (Executive military powers are "'regulated and limited . . . directly from 
the laws of war"'), quoting! HENRY W. HALLECK, INTERNATIONAL LAW 444 (1st ed. 1861); infra 
note 18. 

12. See, e.g., Human Rights First, Trials Under Military Order: A Guide to the Final Rules for 
Military Commissions 2, 8 (rev. ed. June 2004) [hereinafter Human Rights First Report], 
available at http://www.humanrightsfirst.org/us_law/PDF/detainees/trials_under_order0604 
.pdf; Alberto R. Gonzales, Martial Justice, Full and Fair, NEW YORK TIMES, Nov. 30, 2001, at A27 
("The [2001 presidential] order only covers foreign enemy war criminals . . . [they] must be 
chargeable with offenses against the international laws of war"). See also Madsen v. Kinsella, 
supra note 11, at 348-49; Johnson v. Eisentrager, 339 U.S. 763, 786 (1950) ("the military 
commission is a lawful tribunal to adjudge enemy offenses against the laws of war."); Duncan v. 
Kahanamoku, 327 U.S. 304, 313-14, 322-23 (1946); 11 Opinions of the Attorney General, supra 
note 9, at 298 ("They may take cognizance of such offenses as the laws of war permit"); 
WINTHROP, supra note 1, at 831, 836-37; Halleck, supra note 9, at 965-66 (they "have 
jurisdiction of cases arising under the laws of war"); Newton, supra note 9, at 15, 19-21 (stating 



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that jurisdiction apparently exists only over violations of the laws of war); O'Callahan v. Parker, 
395 U.S. 258, 267 ("court-martial jurisdiction cannot be extended to reach any person not a 
member of the Armed Forces ... no matter how intimate the connection between their offense 
and the concerns of military discipline .... [C]ourts-martial have no jurisdiction over 
nonsoldiers, whatever their offense"), 302 ("we deal with peacetime offenses, not with authority 
stemming from the war power. Civil courts were open. The offenses were committed within our 
territorial limits, not in the occupied zone of a foreign country.") (1969); United States ex rel. 
Toth v. Quarles, 350 U.S. 11, 13-14 & n.4 (1955) (ex-service persons are not subject to 
prosecution in military courts-martial re: murder, yet the case did not involve congressional 
power to punish offenses against the laws of war). A resolution of the American Bar Association 
in 2002 recommended that the military commissions prosecute only war crimes. See Jeff 
Blumenthal, ABA Votes to Favor Curbs on Bush's Military Tribunals, THE LEGAL INTELLIGENCER, 
Feb. 5, 2002, at 24, available at http://pirate.shu.edu/~jenninju/CivilProcedure/911/ 
ABAOpposesMilitaryTribunalsLawComFeb5.htm [hereinafter ABA Resolution]. 

13. In re Yamashita, supra note 9, at 19; see also id. at 20 n.7 (a military commission is a "war 
court"). 

14. Military Order of Nov. 13, 2001, 66 Federal Register 57,833 (Nov. 16, 2001), available at 
http://www.fas.org/irp/offdocs/eo/mo-l 1 1301.htm. 

15. W.§4(A). 

16. See, e.g., PAUST, BASSIOUNI, ET AL., supra note 9, at 288-93. The Supreme Court has stated 
that "jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived 
from the cryptic language of Art. I, § 8," concerning offenses against the law of nations. Reid v. 
Covert, 354 U.S. 1,21 (1957). 

17. See, e.g., GC, supra note 6, arts. 64, 66-68, 71-75, 147; Hague Convention No. IV Respecting 
the Laws and Customs of War on Land, Annex, Oct. 18, 1907, art. 43, League of Nations Treaty 
Series vol. XIV (1929), No. 2138, T.S. No. 539, 36 Stat. 2277, reprinted in DOCUMENTS ON THE 
LAW OF WAR, supra note 6, at 69, 80. 

1 8. See, e.g., U.S. CONSTITUTION, art. II, § 3; JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF 
THE UNITED STATES 7-9, 169-92, 488, 493-94 (2d ed. 2003), and the many cases and opinions 
and views of the Founders and Framers cited; Paust, supra note 7, at 517-22; Jordan J. Paust, 
Executive Plans and Authorizations to Violate International Law Concerning Treatment and 
Interrogation of Detainees, 43 COLUMBIA JOURNAL OF TRANSNATONAL LAW 811, 856-861 
(2005); supra note 1 1; see also U.S. CONSTITUTION, arts. Ill, § 2, VI, cl. 2. 

19. Concerning the enhancement of Executive power by international law, see, e.g., PAUST, 
supra note 18, at 9, 16, 44-47 n.55, 79, 82, 180, 185, 457, 468-69, 480-81. 

20. See Part I A supra. 

21. Military Commission Instruction No. 2, Crimes and Elements for Trials by Military 
Commission (rev. ed. Apr. 30, 2003), available at http://www.defenselink.mil/news/May2003/ 
d20030430milcominstno2.pdf [hereinafter Instruction No. 2]. 

22. See id. at 1-2, § 3(A). 

23. See Human Rights First Report, supra note 12, at 2, 8-9, 13. 

24. In a given case, a hijacking can involve hostage-taking covered under the Geneva Civilian 
Convention. See GC, supra note 6, arts. 3(1 )(b), 34. Some might involve cruel or inhumane 
treatment, and so forth. 

25. See Instruction No. 2, supra note 21, at 13-14, § 6(B)(l)-(2). The definitional elements of 
"terrorism" are, however, too broad since they do not require an intent to produce "terror" or 
intense fear or anxiety but merely an intent to "intimidate or coerce." See id. § 6(B)(a)(4). 
Minimum standards of fairness and common sense dictionary definitions require that terrorism 



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involve an intent to produce "terror" in or to "terrorize" a given human target. Interrogation 
techniques approved by Secretary Rumsfeld and others would be "terrorism" under such a 
definition when they violate laws of war such as those in the Geneva Civilian Convention, supra 
note 6, arts. 3, 5, 27, 31-33, 147. 

26. See Instruction No. 2, supra note 21, at 13-14, § 6(B)(l)(a)(3) and (2)(a)(4). 

27. See, e.g., GC, supra note 6, art. 33; Geneva Protocol I, supra note 7, art. 51; PAUST, 
BASSIOUNI, ET AL., supra note 9, at 32 (1919 list of war crimes adopted by the Responsibilities 
Commission of the Paris Peace Conference), 998; Jordan J. Paust, Terrorism and the 
International Law of War, 64 MILITARY LAW REVIEW 1 (1974). 

28. See Instruction No. 2, supra note 21, at 13-14, § 6(B)(3)-(4). 

29. "Murder," for example, involves the unlawful killing of a human being, which partly begs 
the question because some persons, in some contexts, can be lawfully killed during a war. As an 
example, once any person is "taking no active part in the hostilities" "violence to life . . . , in 
particular murder" of such a person would be both murder and a war crime covered by common 
Article 3(1 )(a) of the Geneva Conventions. See also GC, supra note 6, arts. 32, 147. It would not 
matter whether the perpetrator was "military or civilian." FM 27-10, supra note 7, at 178, T] 499. 
Yet, is the unlawful killing of one soldier by a fellow soldier that constitutes "murder" under 
domestic law a war crime merely because it happens in a theater of war? Similarly, is "murder" 
by a noncombatant or unlawful belligerent necessarily a war crime if committed in a theater of 
war? Professor Yoram Dinstein has written that an unprivileged belligerent who kills on the 
battlefield lacks combat immunity and, therefore, becomes subject to domestic prosecution for 
any applicable domestic crimes over which there is jurisdiction, but that the law of war "merely 
takes off a mantle of immunity from the defendant, who is therefore accessible to penal charges 
for any offense committed against the domestic legal system." YORAM DINSTEIN, THE CONDUCT 
OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 31 (2004). See also Ex 
parte Quirin, 317 U.S. 1, 28-31, 35-37, 44 (1942) (prosecution of combatants who engaged in 
combatant operations of sabotage out of uniform in violation of the laws of war); MYRES S. 
MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 712 
(1961); Paust, supra note 6, at 331-32 (regarding combatant immunity). 

30. Concerning the concept of "pure political offenses," see, e.g., PAUST, BASSIOUNI, ET AL., 
supra note 9, at 332-33, 367-69. 

31. Spying as such is not a war crime. See, e.g., id. at 854; FM 27-10, supra note 7, at 33, ffl| 77, 
78(c). 

32. See Instruction No. 2, supra note 21, at 14-16, § 6(B)(5)-(8). See also Smith v. Shaw, 12 
Johns. 257, 265 (N.Y. Sup. Ct. 1815) (civilian who allegedly was an enemy spy exciting mutiny 
and insurrection during war cannot be detained by the US military for trial in a military 
tribunal); In re Stacy, 10 Johns. 328, 332 (N.Y. Sup. Ct. 1813) (habeas writ issued in wartime 
against a military commander holding a civilian charged with treason in aid of the enemy, since 
US military did not have jurisdiction despite the alleged threat to national security). 

33. Human Rights First Report, supra note 12, at 9-12, addressing Instruction No. 2, supra note 
21, at 3, § 5(B)-(C). In this regard, it should be noted that although the United States is at war in 
Afghanistan and Iraq, one cannot be at war with al Qaeda as such. Thus, armed attacks by al 
Qaeda outside of an actual war, such as those that occurred outside the context of the civil war in 
Afghanistan between the Northern Alliance and the Taliban or that occurred outside of 
Afghanistan and prior to the war in Afghanistan involving US armed forces that started in 
October 2001 might be criminal under some laws but cannot be war crimes. See, e.g., Paust, supra 
note 1, at 5-8 & n.16; Paust, supra note 6, at 325-28. However, the fact that a state of war or 
armed conflict cannot exist between the United States and al Qaeda as such does not preclude 



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United States use of force in self-defense against such non-State actors (and the mere fact that the 
United States engages in such self-defense actions abroad does not create a state of armed 
conflict). See, e.g., Jordan J. Paust, Use of Armed Force against Terrorists in Afghanistan, Iraq, and 
Beyond, 35 CORNELL INTERNATIONAL LAW JOURNAL 533, 534-35, 538-39 (2002). 

34. 39 Stat. 619, 653 (Aug. 29, 1916). 

35. In re Yamashita, 327 U.S. 1, 19 (1946). 

36. See, e.g., Ex parte Quirin, 317 U.S. 1, 28-30 (1942); In re Yamashita, id. at 7-8, 11; United 
States v. Schultz, 1 U.S.C.M.A. 512, 519, 4 C.M.R. 104, 1 1 1 ( 1952); Jordan J. Paust, After My Lai: 
The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 TEXAS LAW 
REVIEW 6, 10-12 (1971); reprinted in 4 THE VIETNAM WAR AND INTERNATIONAL LAW 447 
(Richard Falked., 1976). 

37. See Military Order, supra note 14, para. 1 ("By authority vested in me as president ... by the 
Constitution and the laws of the United States of America, including . . . sections 821 and 836 of 
title 10 . . . ."). 

38. Congress certainly did not do so in its Joint Resolution to Authorize the Use of United States 
Forces Against those Responsible for the Recent Attacks Launched Against the United States, 
Sept. 18, 2001, Pub. L. No. 107-40, 115 Stat. 224, since there was no mention of military 
commissions and it was passed nearly two months prior to the President's Military Order. See 
also Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (stating merely that Congress thereby 
impliedly authorized the "trial of enemy combatants" covered therein — not that any type of 
forum was authorized or, especially, that any type of military commission or procedure 
operative outside an actual theater of war or war-related occupied territory would be 
appropriate). For a well-argued view contrary to the view that Congress has generally approved 
military commission jurisdiction and that general approval should suffice, see, e.g., Neal K. 
Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE 
LAW JOURNAL 1259 (2002). 

39. See Military Order, supra note 14, § 7(B)(l)-(2). See also US Department of Defense, 
Military Commission Order No. 1, Mar. 21, 2002, §§ 6 H (4)-(6), 7 B, available at http:// 
www.defenselink.mil/news/Mar2002/d20020321ord.pdf. He cannot do so lawfully. See, e.g., 
Paust, supra note 1, at 10-11, 15; Paust, supra note 7, at 518-24; infra note 50. 

40. Concerning judicial power and concurrent competence in federal district courts, see, e.g., 
U.S. Const., Art. Ill, § 2; 28 U.S.C. § 3231; Paust, supra note 36, at 17-28, and references cited. 

41. See also James E. Pfander, Federal Courts: Jurisdiction- Stripping and the Supreme Court's 
Power to Supervise Inferior Tribunals, 78 TEXAS LAW REVIEW 1433, 1454-56 (2000) ("Like other 
provisions of Article I that operate as restrictions on legislative power, the Inferior Tribunals 
Clause underscores the inability of Congress to fashion new courts to displace the constitutional 
supremacy of the one supreme court."). 

42. The Supreme Court has already recognized the propriety of habeas review concerning 
detention at Guantanamo. See Rasul v. Bush, 542 U.S. 466 (2004); see also Jordan J. Paust, 
Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure, 23 MICHIGAN 
JOURNAL OF INTERNATIONAL LAW 677, 690-94 (2002); Paust, supra note 7, at 517 8c n.47, 519— 
20 n.67. It is not unlikely that the Court will insist that there be habeas review with respect to 
military commissions if not other forms of review. See also infra note 43. 

43. See, e.g., Steven W. Becker, "Mirror, Mirror on the Wall . . .": Assessing the Aftermath of 
September 1 1 th, 37 VALPARAISO UNIVERSITY LAW REVIEW 563, 580-86 (2003); Paust, supra note 
1, at 10-18; Paust, supra note 42, at 677-90; Joshua Rozenberg, Law Chief Calls on US to Give 
Terror Suspects Fair Trial, THE DAILY TELEGRAPH (London), Sept. 19, 2003, at 1 (United 
Kingdom's Attorney General Goldsmith identifies some of the British complaints about lack of a 



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jury, secret hearings, restrictions on counsel for the accused, and the lack of judicial review); 
Evan J. Wallach, Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?, THE ARMY 
LAWYER 18, 40, 43-45 (Nov. 2003); see also Michal R. Belknap, A Putrid Pedigree: The Bush 
Administrations Military Tribunals in Historical Perspective, 38 CALIFORNIA WESTERN LAW 
REVIEW 433 (2002); Lord Johan Steyn, Guantanamo Bay: The Legal Black Hole, Twenty- Seventh 
FA Mann Lecture, British Institute of International & Comparative Law (Nov. 25, 2003) at 1 1- 
12, 18, available at http://www.nimj.org/documents/Guantanamo.pdf; Jonathan Turley, 
Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian 
Democracy, 70 GEORGE WASHINGTON LAW REVIEW 649 (2002); Lawyers Committee for 
Human Rights, Assessing the New Normal: Liberty and Security for the Post-September 1 1 United 
States 57-58, 60-61 (2003), available at http://www.lchr.org/pubs/descriptions/Assessing/ 
AssessingtheNewNormal.pdf; Blair Wants Britons' Legal Status Resolved, HOUSTON CHRONICLE, 
Oct. 23, 2003, at A23 (Prime Minister Tony Blair reiterated concerns "about the form of trial that 
they [UK nationals] will have under a military commission."). 

44. See, e.g., Paust, supra note 42, at 694; Paust, supra note 1, at 4 n. 12, 10 n. 18, 28 n.81; Wallach, 
supra note 43, at 45-46. 

45. See generally Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Paust, supra note 7, at 503-04 (also 
addressing numerous cases recognizing judicial power to review Executive or military decisions, 
id. at 520-24). See also White House Counsel Alberto R. Gonzales, Memorandum for the 
President (Jan. 25, 2002), available at http://www.msnbc.msn.com/id/4999148/site/newsweek; 
John Yoo & Robert J. Delahunty of the Office of Legal Counsel, Department of Justice, 
Memorandum for William J. Haynes II, General Counsel, Department of Defense (Jan. 9, 2002), 
available at http://www.msnbc.msn.com/id/5025040/site/newsweek. 

46. See Military Order, supra note 14, § 4(C)(2). 

47. See, e.g., Paust, supra note 42, at 687-88; A. Christopher Bryant & Carl Tobias, Quirin 
Revisited, 2003 WISCONSIN LAW REVIEW 309, 360-61 (2003); Mark A. Drumbl, Victimhood in 
Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal 
Order, 81 NORTH CAROLINA LAW REVIEW 1, 10-12, 58-59 (2002); Harold Hongju Koh, The 
Case Against Military Commissions, 96 AMERICAN JOURNAL OF INTERNATIONAL LAW 337, 338- 
39 (2002); Detlev F. Vagts, Which Courts Should Try Persons Accused of Terrorism?, 14 EUROPEAN 
JOURNAL OF INTERNATIONAL LAW 313, 322 (2003); see also NORMAN ABRAMS, ANTI- 
TERRORISM AND CRIMINAL ENFORCEMENT 330-31 (2003); Justice Sandra Day O'Connor, 
Vindicating the Rule of Law: The Role of the Judiciary, 2 CHINESE JOURNAL OF INTERNATIONAL 
LAW 1, 3-4 (2003), quoting the Declaration of Rights of the Massachusetts Constitution, Article 
29, which "framed by John Adams, boldly declares, 'It is the right of every citizen to be tried by 
judges as free, impartial and independent as the lot of humanity will admit,'" and adding: 
"Individual judicial independence is necessary if each case is to be resolved on its own merits, 
according to the facts and the law." 

48. See, e.g., Paust, supra note 42, at 690; Human Rights First Report, supra note 12, at 2-3, 17- 
18, 21-24; supra notes 43, 47. 

49. See, e.g., Koh, supra note 47, at 339; Paust, supra note 42, at 678-79, 688-89; Human Rights 
First Report, supra note 12, at 3-4, 27-28, 30; Military Defense Attorneys and Counsel, DoD 
Office of Military Commissions, letter to the United States Senate Armed Forces and Judiciary 
Committees (June 1, 2004), available at http://pegc.no-ip.info/omc_def_letter_20040601.html; 
supra notes 43, 47. 

50. See, e.g., Paust, supra note 42, at 678-79, 685-86; Human Rights First Report, supra note 12, 
at 4, 31-32; supra notes 43, 47. The Executive's military "Review Panel" may not overturn a 
conviction, reverse or amend a decision, or order dismissal or release of the person (or order 



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Military Commissions 



anything else), since it "shall either (a) forward the case to the Secretary of Defense with a 
recommendation as to disposition, or (b) return the case to the Appointing Authority for further 
proceedings" if a majority of the panel decides that "a material error of law occurred." Military 
Commission Order No. 1, supra note 39, § 6(H)(4). Further, only one member of the panel must 
be a lawyer, since only one member must "have experience as a judge," and no member of the 
panel must have been a judge with expertise in the laws of war, international law more generally, 
or criminal law more generally. See id. § 6(H)(4). The final "decision" in such a "review" and 
"recommendation" system will be made by the Secretary of Defense or the President. Id. § 
6(H)(2), (6). See also Reid v. Covert, 354 U.S. 1, 36 n.66 (1957), quoting Alexander Hamilton, 
THE FEDERALIST NO. 78 ("Liberty can have nothing to fear from the judiciary alone, but would 
have everything to fear from its union with either of the other departments . . . ."). 

51. See, e.g., Paust, supra note 1, at 10-17; Paust, supra note 42, at 678-85 (including 
impermissible discrimination on the basis of national origin, denial of equal access to courts and 
to equality of treatment and equal protection of the law, "denials of justice" in violation of 
customary international law, and denial of the human right to fair, meaningful and effective 
judicial review of the propriety of detention). 

52. See, e.g., GC, supra note 6, art. 3(1 )(d); Paust, supra note 7, at 511 n.27, 514 & n.32; Paust, 
supra note 42, at 678 n.9. 

53. See Military Commission Order No. 1, supra note 39, §§ 7(B) and 8. 

54. See, e.g., supra notes 11, 18. 

55. Even federal statutes must be interpreted and applied consistently with international law. 
See, e.g., Cook v. United States, 288 U.S. 102, 120 (1933); The Charming Betsy, 6 U.S. (6 Cranch) 
64, 117-18 (1804); Talbot v. Seeman, 5 U.S. ( 1 Cranch) 1, 43 ( 1801 ); 1 1 Opinions of the Attorney 
General, supra note 1 1, at 299-300; 9 Opinions of the Attorney General 356, 362-63 (1859) ("law 
. . . must be made and executed according to the law of nations"); PAUST, supra note 18, at 99, 
120, 124-25 ns.2-3. 

56. See, e.g., supra notes 11, 18. 

57. See also Adam Roberts, Role of Law in the "War on Terror": A Tragic Clash, 97 PROCEEDINGS 
of the American Society of International Law 18, 19-20 (2003); Steyn, supra note 41, at 3 
("unchecked abuse of power begets ever greater abuse of power"). Terrorists may seek to 
produce governmental overreaction that sends a message that the targeted government does not 
follow law, thus deflating its legitimacy and possibly enhancing terrorist recruiting, support, and 
influence or deflating for some the effects of the illegality of terrorist tactics. Claiming to be at 
"war" with certain non-State terrorists might also unwittingly enhance their status and serve 
other terrorist purposes. 

58. See United States v. Lee, 106 U.S. 196, 219-21 (1882); supra notes 11, 18; see also Reid v. 
Covert, 354 U.S. 1, 5-6, 12, 35 n.62 (1957) (our government is one of delegated powers and one 
that is entirely a creature of the Constitution and has no power or authority to act here or abroad 
inconsistently with the Constitution); Paust, supra note 1, at 19-20. As the Supreme Court 
reminded in United States v. Lee: 

No man in this country is so high that he is above the law. No officer of the law may set 
that law at defiance with impunity. All the officers of the government, from the highest 
to the lowest, are creatures of the law, and are bound to obey it. 
It is the only supreme power in our system of government, and every man who by 
accepting office participates in its functions is only the more strongly bound to submit 
to that supremacy, and to observe the limitations which it imposes upon the exercise of 
the authority which it gives. 

106 U.S. at 220. 



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XIII 



Military Commissions — Kangaroo Courts? 



Charles H. B. Garraway* 



The decision to use Military Commissions to try persons held at Guantanamo 
has attracted massive worldwide opposition. 1 Unfortunately, much of it has 
been caught up in the increasing political vitriol that seems to be marking the 
whole question of the so-called "war on terror." This is marring what should be a 
genuine legal debate. The advent of the International Criminal Court (ICC) with 
its emphasis on the doctrine of "complementarity" 2 should have encouraged States 
to discuss how best crimes arising out of armed conflict should be dealt with on a 
domestic level. Is it appropriate in the 21st century to use military justice in this 
way or should "democracy" require a civilian response? Instead the issue has be- 
come polarized so that people tend to be either "for" military commissions — and 
support them without criticism — or alternatively "against" — in which case noth- 
ing is good about them at all. 

Part of the difficulty is the confusion over the term "war on terror." Is it an 
"armed conflict" to which the laws of armed conflict apply? Is it a matter for law 
enforcement, in which case the laws of armed conflict may be irrelevant? Or is it a 
new form of conflict to which the law of armed conflict can only be applied by anal- 
ogy? Traditionally terrorism has been dealt with in the law enforcement para- 
digm — and to a large extent still is. 3 In the view of most, Afghanistan was a 
traditional armed conflict with the Taliban being the de facto Government of that 



Senior Research Fellow, British Institute of International and Comparative Law. 



Military Commissions — Kangaroo Courts? 



country. As such, the law of armed conflict applied to that conflict. 4 The difficult 
area is when attempts are made to expand that conflict into a worldwide campaign 
against "terrorism" in general and Al Qaeda in particular. 

The attempt to extend the law of armed conflict into what has traditionally been 
a law enforcement area has been confusing and, frankly, badly handled. There has 
been a lack of clarity in the pronouncements on law by members of the US Admin- 
istration that has made it very difficult to ascertain what the official position is. 
There has been a degree of "pick and mix" about the application of the law so that 
the impression is given that the United States is selecting those parts that suit its 
purpose and rejecting those as "unsuitable" that do not. However unfair this as- 
sessment may be, there is no doubt that this is how it is seen in many parts of the 
world including among traditional allies. The campaign against terror does raise 
some difficult legal issues which both domestic criminal lawyers and international 
lawyers have to come to terms with, but a unilateral reinterpretation of traditional 
paradigms is not necessarily the right way forward. 

Further confusion is caused by the use of the loose term "unlawful combatant." 
It implies that those who take part in hostilities become "combatants" and lose 
their status as civilians. 5 The argument is put forward that it is ridiculous to de- 
scribe a civilian who has chosen to take up arms as anything other than a "combat- 
ant." However, this is not necessarily as ridiculous as it may sound. It is accepted 
that only certain persons are allowed to take part in hostilities. They are termed un- 
der the law of armed conflict "combatants." 6 Those who are not so entitled are 
termed "civilians" who have protected status. 7 If these "civilians" chose to take a 
direct part in hostilities, they do not change status, any more than a wounded sol- 
dier or prisoner of war changes status. They lose their protection. 8 Less confusing is 
the old fashioned — but, coming from Richard Baxter — well established term 
"unprivileged belligerent." 9 Such people, in taking part in combat, remain 
"unprivileged." That means that they have no combatant immunity and therefore 
even acts that to a combatant would be legitimate under the law of armed conflict 
are criminal in so far as the unprivileged belligerents are concerned. The combat- 
ant who tries to masquerade as a civilian remains a "combatant," and while he may 
be committing perfidy, he does not become an "unlawful civilian." 

This background has helped to hide what may be the real issue here — a distaste 
in the modern world for the concept of military justice. The United States, United 
Kingdom and some other nations, mainly of the common law tradition, have well 
established military justice systems going back centuries. Based on civil procedures 
but modified to meet the peculiar requirements of service life, military justice as it 
is applied in those nations is often fairer than the ordinary domestic criminal sys- 
tems that it replicates. For example, in the United Kingdom, there was never any 

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Charles H. B. Garraway 



requirement for a judge in a domestic criminal trial to ensure that an accused fully 
understood the nature of his plea if he pleaded guilty. In military courts, a detailed 
procedure was followed to ensure that the accused did understand the conse- 
quences of his plea and it was not uncommon for guilty pleas to be refused and a 
not guilty plea entered. Ironically, many of these safeguards are being abandoned 
in the attempt to reflect more closely the civilian system. 10 

However, it has to be admitted, this is not the norm worldwide. Since 1945, 
military justice has got a bad name through the misuse of the system by repressive 
regimes both military and civilian. Could a military court in Stalin's Russia or in 
Argentina under the junta be trusted to administer justice? It is because of these 
abuses that military courts are looked at askance by so many. The UN Human 
Rights Committee has criticized military jurisdiction, particularly over civilians, 
stating that the use of military courts to try civilians "could present serious prob- 
lems as far as the equitable, impartial and independent administration of justice is 
concerned. Quite often the reason for the establishment of such courts is to enable 
exceptional procedures to be applied which do not comply with normal standards 
of justice." 11 The European Court of Human Rights may soon be asked to examine 
just that issue in relation to UK courts-martial in the case of Alan Martin, a 17- 
year-old dependent who was tried for murder by a general court-martial in Ger- 
many in 1995. 12 The UK system has had to undergo radical overhaul in the last ten 
years because of human rights concerns, but in none of the cases that have gone to 
Strasbourg have the Court found an actual injustice. 13 The Court has made its rulings 
on the basis that justice must be seen to be done and thus reliance on the good faith 
of those who run the system is not sufficient. The Convening Officer — "Convening 
Authority" in US terminology — has been abolished, not because of any abuse of 
his powers but because of the perceived possibility of abuse. Military judges, who 
had survived in the Navy though the Army and Air Force had used civilian "judge 
advocates" since 1948, were abolished in 2003 for the same reason. 14 The world 
has swung full circle. 

It was not always so. At the end of World War II, military justice was seen as the 
most appropriate means of dealing with cases in a wartime situation. Prisoners of 
war were made subject to the disciplinary laws of the forces of the Detaining 
Power 15 and civilian court proceedings were to be the exception rather than the 
rule. 16 The penal laws passed by an Occupying Power could be enforced by the 
"properly constituted, non-political military courts" of the Occupying Power. 17 It 
is interesting how military courts were then seen as essentially apolitical. In the case 
of war crimes, the majority of cases were tried by military courts set up by the Allied 
powers. 18 Although, at Nuremberg itself, the trials were conducted primarily, so far 
as the Western powers were concerned, by civilian lawyers and judges, many had 

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Military Commissions — Kangaroo Courts? 



military experience and the military played a major role. Nuremberg was, however, 
the exception, not the rule. 

On June 14, 1945, by Royal Warrant, Regulations for the Trial of War Criminals 
were established by the United Kingdom. 19 These established "Military Courts" for 
this purpose and a "war crime" was defined as "a violation of the laws and usages of 
war committed during any war in which His Majesty has been or may be engaged at 
any time since the 2nd September 1939." Procedures were established and rules of 
evidence laid down. This Royal Warrant is still extant today though it is in grievous 
need of updating. The United Kingdom War Crimes Act of 1991, 20 designed to en- 
able the Government to deal with the legacy of World War II war crimes arising out 
of the opening up of the records in Eastern Europe, was, strictly speaking, unneces- 
sary except in so far as it granted jurisdiction to civil courts, as military courts al- 
ready had jurisdiction under the Warrant. 

Even today, in many European nations, "military courts" have the primary ju- 
risdiction in war crimes cases. This is so, for example, in Switzerland. 21 However, 
this is not always a fair comparison as much "military justice" is now carried out by 
the civilian authorities, occasionally using special courts or lawyers who hold re- 
servist posts. 

There is nothing inherently wrong with military courts, commissions, tribu- 
nals — call them what you will — as a forum for dealing with cases of this nature. It is 
therefore necessary to examine the commissions in a more technical manner rather 
than attacking them as a matter of legal principle. 

The Presidential Military Order of November 13, 200 1 22 caused considerable 
alarm due to the starkness of its terms. For example, Section 1(f) stated "that it is 
not practicable to apply in military commissions under this order the principles 
of law and the rules of evidence generally recognized in the trial of criminal cases 
in the United States district courts." The concern was not so much with "rules of 
evidence" as with "principles of law." These concerns were compounded by the 
limitation of the Military Order to non-US citizens. 23 This is not the place to go 
into the controversy of prisoner of war status and the possible conflict with Arti- 
cle 82 of the Third Geneva Convention. However, it would appear from the text 
that in the case of US citizens, the impracticability referred to in Section 1(f) does 
not exist! Why the mere fact of nationality should affect the issue of practicability 
is not explained. While it may be argued that US citizens are entitled to their con- 
stitutional rights of which they cannot be deprived, this is not a matter of "practi- 
cability" but one of law. 

Other provisions of the Order also gave cause for concern, including the wide 
provisions on evidence, 24 the lack of any judicial appellate structure 25 and the ex- 
clusion of the supervisory jurisdiction of the civil judiciary. 26 In fact, similar 

306 



Charles H. B. Garraway 



provisions appear in the British Royal Warrant of 1945. The problem, however, lies 
primarily in the failure to appreciate that the language of 1945 may not any longer 
be appropriate in the 21st century, some 60 years later. The world has moved on, 
particularly in the field of human rights, a field in which the United States has 
played a major part. One only has to consider the role of Eleanor Roosevelt in the 
drafting of the Universal Declaration of Human Rights. 27 The temptation to go 
back to old precedents is enormous, but in this case, it undoubtedly caused unnec- 
essary problems. Those assigned to translate the Presidential Order into other Or- 
ders and Instructions were then faced with marrying up old language with modern 
day commitments and starting from a position of antagonism by civil rights orga- 
nizations that might, with more care, have been prevented. Many of the criticisms 
were easily foreseeable and could have been forestalled with a bit more thought. 

The Military Commission Order No. 1 of March 21, 2002 28 and the subsequent 
Instructions 29 were greeted almost with a sense of relief in some circles! They ap- 
peared to row back to a considerable extent from the blunt language of the Presi- 
dential Order. In fact, they did not. They merely expressed that Order in slightly 
more acceptable language for the 21st century. After all, it was the Presidential Or- 
der that was the overall authority for the subsequent Orders and Instructions and 
they thus had to be consistent with it. Nevertheless, there was, and still remains, 
criticism of the structures proposed. 

This will not be a detailed analysis of the Orders or Instructions, nor an analysis 
of them under US domestic law. That is better carried out by others. This article 
will, however, look at some of the key issues of contention and attempt to give an 
international perspective to them. This means that it will not examine the scope of 
jurisdiction including the crimes themselves and the elements of crimes, as this is 
primarily an issue governed by US law. It is ironic that many of the elements are 
based on those prepared for the ICC and, where there are changes, these are often 
specifically designed to meet the different nature of the law. This is a US domestic 
court — not an international one. This is particularly true in the decision to draft el- 
ements for the inchoate crimes. 30 This would have been far too difficult a task to 
carry out for the ICC given the differences between legal systems. Despite US en- 
couragement, the Preparatory Commission decided not to go down that particular 
route. However, here, in a court operating under a single domestic legal system, US 
law, there is merit in drafting such elements. However, these elements should not 
necessarily be taken as a framework for other jurisdictions where different substan- 
tive law applies, particularly civil law jurisdictions where some of the common law 
terms are simply not known. 31 

While on elements, one particular innovation is noteworthy — the split in com- 
mand responsibility between knowledge before the fact and knowledge after the 

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Military Commissions — Kangaroo Courts? 



fact. 32 The former encompasses liability for the offenses committed, the latter for a 
separate offense of failing to act. This is a step in the right direction and provides a 
partial answer to the problems arising from the ICTY Appeals Chamber decision in 
Hadzihasanovic. 33 

Criticisms have centered on the evidential provisions, the role of the defense 
and the appellate structure. Each will be looked at in turn. 

On evidence, the Presidential Order provided that the Commissions could 
admit 

Such evidence as would, in the opinion of the presiding officer of the military 
commission (or instead, if any other member of the commission so requests at the time 
the presiding officer renders that opinion, the opinion of the commission rendered at 
that time by a majority of the commission) have probative value to a reasonable 
person. 34 

This has been substantially tempered firstly by the Military Commission Order 
No. 1 itself which required that the Presiding Officer be a lawyer (to be exact "a 
judge advocate of any United States armed force"), 35 as well as laying down slightly 
more detailed evidential admissibility criteria. 36 It is still unfortunate that the deci- 
sion of the Presiding Officer can be overruled by lay members but this was so, even 
in the UK court-martial system, until comparatively recently. However, modern 
trends are to leave issues of admissibility of evidence in the hands of a judge, thus 
separating the role of judge and juror. 

The criticism of the scope of permitted evidence would seem to be wide of the 
mark. In domestic jurisdictions, particularly those of a common law nature, there 
are extensive — and often illogical — rules on evidence admissibility. 37 Such rules 
are much more relaxed in civil law jurisdictions and this is apparent also in the 
rules governing international courts. Article 69(3) of the ICC Statute, for example, 
gives the Court "the authority to request the submission of all evidence that it con- 
siders necessary for the determination of the truth." 38 This extremely broad provi- 
sion is countered slightly by Article 69(4) which allows the Court to rule on 
admissibility "taking into account, inter alia, the probative value of the evidence" 
against any prejudicial affect. While the Rules of Procedure address methods of 
dealing with admissibility questions, 39 they do not detract from the breadth of the 
admissibility provisions in the Statute itself. Compared to that, the provisions for 
the Military Commissions are comparatively modest! 

The second area of concern is the provision of defense counsel. Article 14(3) of 
the International Covenant on Civil and Political Rights refers to "counsel of his 
own choosing." 40 It also refers to the right "to have legal assistance assigned to him, 



308 



Charles H. B. Garraway 



in any case where the interests of justice so require, and without payment by him in 
any such case if he does not have sufficient means to pay for it." 41 In so far as this 
latter requirement is concerned, it is met by the provisions in Military Commission 
Order No. 1, that "Detailed Defense Counsel" will be assigned "for each case." 42 
Such counsel are free of charge. Criticism is made of the fact that such counsel are 
all military judge advocates. However, this appears to be merely another facet of 
the distrust of military justice that pervades the world today (and in particular the 
human rights community). Military judge advocates assigned to be defense coun- 
sel are fiercely independent as they have already indicated. 43 However, they are at 
risk of coming under pressure from within the chain of command. It is because of 
the possibility of such influence that human rights courts have discouraged the use 
of military defense counsel. The concern is therefore one of presentation rather 
than substance. It does not matter how independent military defense counsel are, 
they will not be seen to be so by vast swathes of the community — and particularly in 
the Muslim world. 

Of greater concern is the requirement to provide "counsel of his own choosing." 
It is true that, subject to certain requirements, the accused can select a military 
judge advocate. 44 However, his choice outside that is limited. He may retain the 
services of a civilian attorney "at no expense to the United States Government" but 
that attorney must himself fulfill a number of requirements including being a US 
citizen and having been determined "to be eligible for access to information classi- 
fied at the level SECRET or higher." 45 In addition, Military Commission Instruc- 
tion No. 5 46 required such counsel to sign an affidavit placing severe restrictions on 
his movements, his power to seek assistance, and even on his right to confidential 
communications with his client. 47 Such restrictions would be unacceptable to any 
British lawyer and the National Association of Criminal Defense Lawyers issued an 
ethics opinion "that it is unethical for a criminal defense lawyer to represent a per- 
son accused before these military commissions because the conditions imposed 
upon defense counsel before these commissions make it impossible for counsel to 
provide adequate or ethical representation." 48 This resulted in some amelioration 
of these rather draconian provisions, in particular the requirement that counsel 
pay for their own security clearance and, though here the changes are ambiguous, 
on the monitoring of attorney-client communications. Nevertheless, the role of 
the "Civilian Defense Counsel" is very definitely subordinate to the military De- 
tailed Defense Counsel. He can be excluded from closed sessions and prevented 
from obtaining any information on what went on during such sessions. 49 If, for 
whatever reason, it was decided to hold the complete trial in closed session, the role 
of the civilian defense counsel would effectively be denied completely. 



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Military Commissions — Kangaroo Courts? 



The balance between security considerations and the requirements of fair trial 
are always difficult and it is clear that an attempt has been made to find a way 
through these two conflicting interests. However, it must be said that it is a com- 
promise that, on paper, can satisfy nobody. Only time will tell if the efforts of the 
National Association of Criminal Defense Lawyers and the American Bar 
Association 50 bear fruit sufficiently so that the civilian defense counsel actually has 
a genuine role to play. While presiding officers, in accordance with their duty, will 
undoubtedly strive diligently to ensure that the balance between fairness and the 
needs of security is maintained, at present, the risk of abuse is too great and it 
would almost have been better to bite the bullet and dispense with the civilian de- 
fense counsel altogether. This would undoubtedly lead to an outcry from human 
rights activists but in some way would be more honest than introducing such an 
option hedged around with so many restrictions as to make it impracticable. 

The third area of concern is the appellate structure. The Presidential Order re- 
quired the "submission of the record of trial, including any conviction or sentence, 
for review and final decision by me or by the Secretary of Defense, if so designated 
by me for that purpose." 51 The exclusion of the jurisdiction of the US civil courts 
further illustrated that the appellate process would not be through the judiciary but 
through the Executive. Again Military Commission Order No.l sought to amelio- 
rate this by the insertion in the process of a "Review Panel" at least one member of 
which "shall have experience as a judge." 52 There have been further developments 
including the appointment of senior civil judges to the Review Panel (all being 
given two-star rank for the purpose!). 53 The "Review Panel" has been given en- 
hanced powers which do seem to go far beyond the original terms of the Order. 

The original provisions were again based on old precedents. The British Royal 
Warrant of 1945 provides for petitions to the Confirming Officer (the equivalent of 
the "Appointing Authority" under Military Commission Order No. 1) and refer- 
ence to the Judge Advocate General "for advice and report." 54 Beyond that, the rel- 
evant authorities were the Secretaries of State (in this case for War and Foreign 
Affairs) or various other designated officials, principally High Commissioners in 
occupied territory. 55 This reflected the procedures adopted under military justice 
generally. However, again times have moved on as has been reflected in some of the 
modifications introduced. 

The International Covenant on Civil and Political Rights gives the right to "ev- 
eryone convicted of a crime" to have his conviction and sentence "reviewed by a 
higher tribunal according to law." 56 In 1951, the United Kingdom introduced the 
Courts Martial Appeals Court, from where appeal lay to the House of Lords 57 and 
there are similar appeal provisions applicable in the United States military justice 
system. 58 Here, there was initially a regression back to the position where appellate 

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Charles H. B. Garraway 



structures are wholly within the discretion of the Executive. Even before 1951, in 
the United Kingdom, the military justice system was subject to control by the civil- 
ian courts through the medium of the prerogative orders, even if that power was 
rarely used. However, here, even that supervisory jurisdiction has been excluded. 

It is worthy of note that in all the international tribunals established in recent 
years to deal with war crimes and similar offenses, a judicial appellate structure has 
been built into the system. 59 The days of the Executive having the final say in judi- 
cial matters, or even a single judicial body with no right of appeal, have gone. The 
United States would have been the first to protest if US citizens had faced similar 
executive-controlled processes in the former Soviet block — and rightly so. What is 
good for the goose is good for the gander and the argument of "Trust me — I'm the 
good guy" no longer washes. 

To conclude, this article has looked at three particular areas of concern. There 
are others but these are the ones that have attracted the most opposition. It is un- 
fortunate that the Executive chose originally to revert to precedents from the first 
half of the last century, appearing to ignore the developments in procedures over 
the last sixty years, many championed by the United States. The problems are real. 
If these proceedings are commenced in a manner that, rightly or wrongly, is seen as 
unfair, the effects could be incalculable. There is already a growing view, particu- 
larly in the Muslim world, that these Commissions are designed for convictions 
and that nobody can receive a fair trial before them. That is wrong. Military judge 
advocates of all armed services in the United States are proud of their profession 
and will do their best to ensure that justice is done. Military defense counsel and 
military judges will act "without fear or favor" and trials will be conducted to the 
highest standards of military justice. However, there is more to it than that. There is 
a political battle to be won and it is here ground is being lost. While great play was 
made on the original Order and its deficiencies, there has been little publicity out- 
side the United States of the ameliorating changes that have been introduced. 

The authorities have made great efforts to listen to criticism and to seek to meet 
those criticisms within the parameters laid down. It is a great tribute to all those in- 
volved that they have not "hunkered down" and sought to defend their own posi- 
tions. However, the damage has been done by the failure to present the case 
properly. There has been an apparent lack of transparency in the process which has 
affected the way outsiders have looked at it. 

Whether or not anybody accepts such a concept as a "war on terror," all may 
unite in the view that there is a campaign to be fought and that it must be won, at 
least in part, in the hearts and minds of ordinary people. If convicting a few people 
of crimes by what are seen as dubious means simply antagonizes hundreds of oth- 
ers, driving them into the hands of extremist organizations, the end will be worse 

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Military Commissions — Kangaroo Courts? 



than the beginning. The United States has been a beacon of liberty and democracy 
for most of its existence. It would be unfortunate if the light from that beacon was 
obscured by the apparent pursuit of short-term advantage at the expense of long- 
term security. 

Notes 

1. See Human Rights Watch letter to President Bush of November 15, 2001, on the Human 
Rights Watch website under title "US: New Military Commissions Threaten Rights, Credibility," 
available at http://www.hrw.org/press/2001/ll/miltribsltrlll5.htm. See also the report of a 
speech by the United Kingdom Attorney General, Lord Goldsmith, on June 25, 2004, reported 
under the title "UK Alarm over Guantanamo Trials," available at http://www.globalpolicy.org/ 
intljustice/general/2004/0625alarm.htm. 

2. "Emphasizing that the International Criminal Court established under this Statute shall be 
complementary to national criminal jurisdictions." Preamble to the Rome Statute of the 
International Criminal Court, July 17, 1998, UN Doc. A/CONF. 183/98 (1998), available at 
http://www.un.org/law/icc/statute/romefra.htm [ICC Statute]. 

3. See, e.g., the European Commission action paper in response to the terrorist acts in Madrid, 
Memo 04/66, March 18, 2004, available afwww.statewatch.org/news/2004/mar/Comm-Action- 
Plan.pdf. 

4. "Whether or not international humanitarian law, or the law of armed conflict, applied as 
from September 11, it clearly began to apply once the US started bombing Afghanistan." John 
Cerone, Status of Detainees in International Armed Conflict, and their Protection in the Course of 
Criminal Proceedings, ASIL Insights, January 2002, available at http://www.asil.org/insights/ 
insigh81.htm. 

5. See Yoram Dinstein, Unlawful Combatancy, 32 ISRAEL YEAR BOOK ON HUMAN RIGHTS 247, 
248 (2002). 

6. "Members of the armed forces of a Party to a conflict (other than medical personnel and 
chaplains . . . ) are combatants, that is to say, they have the right to participate directly in 
hostilities." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating 
to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 43(2), 
reprinted in DOCUMENTS ON THE LAWS OF WAR 444 (Adam Roberts 8c Richard Guelff eds., 3d. 
ed. 2000). 

7. See id., art. 50(1). 

8. See id., art. 51(3). 

9. See Richard R. Baxter, So-Called 'Unprivileged Belligerency': Spies, Guerrillas and Saboteurs, 28 
British Year Book of International Law 321, 345 (1951). 

10. See Rule of Procedure 42, Rules of Procedure (Army) 1972 (S.I. 1972/316 as amended). 
These Rules were abrogated in the reforms introduced by the Armed Forces Discipline Act 1996 
(c. 46) as a result of rulings made by the European Court of Human Rights. 

11. UN Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 
1984), at 1 4, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c 
12563ed0049dfbd?Opendocument. 

12. Martin's appeal against conviction was rejected by the Judicial Committee of the House of 
Lords on December 16, 1997. The judgment is available at http://www.publications.parliament 
.uk/pa/ld 1 99798/ldj udgmt/jd97 1 2 1 6/martO 1 .htm. 



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Charles H. B. Garraway 



13. See, for example, the comment of the Court in the case of Findlayv United Kingdom, ECHR 
Case No: 22107/93, decided February 25, 1997, at paragraph 84, upholding the view of the 
Commission that "no causal link had been established between the breach of the Convention 
complained of by the applicant and the alleged pecuniary damage, and . . . that it was not possible 
to speculate as to whether the proceedings would have led to a different outcome had they 
fulfilled" Convention requirements, available at http://cmiskp.echr.coe.int/tkpl97/view.asp 
?item=l&portal=hbkm&action=html&highlight=Findlay%20%7C%20United%20%7C%20K 
ingdom&sessionid=557312&skin=hudoc-en. 

14. See Grieves v United Kingdom, ECHR Case No: 57067/00 decided December 16, 2003, 
available at http://cmiskp.echr.coe.int/tkp 1 97/portal.asp?sessionId=557429&skin=hudoc-en 
&action=request. 

15. Article 82 of the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 
1949, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 6, at 244, 277 
[hereinafter Geneva Convention III] states that "A prisoner of war shall be subject to the laws, 
regulations and orders in force in the armed forces of the Detaining Power." 

16. Article 84 of Geneva Convention III states, "A prisoner of war shall be tried only by a 
military court, unless the existing laws of the Detaining Power expressly permit the civil courts to 
try a member of the armed forces of the Detaining Power in respect of the particular offence 
alleged to have been committed by the prisoner of war." Id. 

1 7. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 
12, 1949, art. 66, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 6, at 301, 323 
[hereinafter Geneva Convention IV]. 

18. See CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 
531-34 (2d. rev. ed., 1999). 

19. See The Law of War on Land being Part III of the Manual of Military Law [hereinafter MML 
Part III], The War Office, 1958, at 347. An excellent account of the application of the Warrant 
can be found in Tony Rogers, War Crimes Trials under the Royal Warrant: British Practice 1945- 
1949, 39 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 780 (1990). 

20. War Crimes Act 1991 (c. 13), available at http://www.hmso.gov.uk/acts/actsl991/Ukpga 
_19910013_en_l.htm. 

2 1 . See, for example, the case of G before the Military Tribunal of Division I, cited in HOW DOES 
LAW PROTECT IN WAR? 1255 (Marco Sassoli & Antoine Bouvier eds., 1999). 

22. Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non- 
Citizens in the War Against Terrorism, 66 FEDERAL REGISTER 57,833 (Nov. 16, 2001), available 
at http://www.fas.org/irp/offdocs/eo/mo-l 1 1301.htm. 

23. Id., sec. 2(a). 

24. Id., sec. 4(3). 

25. Id., sec. 4(8). 

26. Id., sec. 7(b). 

27. "A key figure in the evolution of the Universal Declaration was Eleanor Roosevelt, the 
widow of President Franklin Roosevelt, who had died in 1945. She was selected to be the first US 
representative to the commission by her husband's successor, President Harry Truman." David 
Pitts, The Noble Endeavor, 3 USIA ELECTRONIC JOURNAL No. 3 (October 1998), available at 
http://usinfo.state.gov/journals/itdhr/ 1 098/ijde/noble.htm. 

28. Military Commission Order No. 1, Procedures for Trials by Military Commissions of 
Certain Non-United States Citizens in the War Against Terrorism, Mar. 21, 2002, available at 
http://www.defenselink.mil/news/Mar2002/d2002032 1 ord.pdf. 



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Military Commissions — Kangaroo Courts? 



29. A full list of Instructions and their texts are available on the Military Commissions website at 
http://www.defenselink.mil/news/commissions.html. 

30. See Section 6(C) of Military Commission Instruction No. 2, on Crimes and Elements for 
Trials by Military Commission, available at id. 

31. For example, the provisions relating to "conspiracy" in Section 6(C)(6) of Military 
Commission Instruction No. 2. Id. 

32. See id. § 6(C)(3) and (4). 

33. Prosecutor v Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura. ICTY Case No. IT- 
01-47. Decision of the Appeal Tribunal on Interlocutory Appeal Challenging Jurisdiction in 
Relation to Command of 16 July 2003, available at http://www.un.org/icty/hadzihas/appeal/ 
decision-e/0307 16.htm. 

34. See Military Order of November 13, 2001, supra note 22, § 4(c)(3). 

35. See Military Commission Order No. 1, supra note 28, § 4(A)(4). 

36. Id., § 6(D). 

37. The rule against hearsay in English law has developed in a particularly convoluted manner 
over centuries. "There can be little doubt that the rule excluding hearsay is the most confusing of 
the rules of evidence, posing difficulties for courts, practitioners and witnesses alike." See Extract 
from Consultation Paper No. 117 of The Law Commission for England and Wales on The 
Hearsay Rule in Civil Proceedings Part V - Provisional Conclusions, 1 5.1, available at http:// 
www.lawcomm.gov.je/appendix_a_bestevidence_rule_paper.htm. 

38. ICC Statute, supra note 2. 

39. See Chapter 4, ICC Rules of Procedure and Evidence, UN Doc. PCNICC/2000/l/Add.l 
(2000), available at http://www.un.org/law/icc/prepcomm/report/prepreportdocs.htm. 

40. The full wording is: "In the determination of any criminal charge against him, everyone 
shall be entitled to the following minimum guarantees, in full equality: 

(b) To have adequate time and facilities for the preparation of his defense and to 
communicate with counsel of his own choosing;" 

See Article 14(3)(b), International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 
U.N.T.S. 171, available at http://www.unhchr.en/html/menu3/b/a_ccpr.htm. 

41. Id., art. 14(3)(d). 

42. Military Commission Order No. 1, supra note 28, § 4(C)(2). 

43. See, for example, the unclassified motions cited on the Department of Defense website. 
Available at http://www.defenselink.mil/news/Aug2004/commissions_motions.html. 

44. See Military Commission Order No. 1, supra note 28, § 4(C)(3)(a). 

45. /«/.,§ 4(C)(3)(b). 

46. Military Commission Instruction No. 5, Apr. 30, 2003, available at http://www.dod.mil/ 
news/Feb2004/d20040220milcominstno5.pdf. 

47. Id.§ 3(A)(2)(e) and Annex B. 

48. See NACDL Ethics Advisory Committee Opinion 03-04 (Aug. 2003), available at http:// 
www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/ 
Ethics_Op_03-04.pdf. 

49. See Military Commission Order No. 1, supra note 28, § 5(B)(3). 

50. The American Bar Association created a Task Force on Treatment of Enemy Combatants 
which published a report in February 2003, available at http://news.findlaw.com/hdocs/ docs/ 
aba/abatskforce 1 03rpt.pdf. 



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Charles H. B. Garraway 



51. See Military Order of November 13, 2001, supra note 22, § (c)(8). 

52. See Military Commission Order No. 1, supra note 28, § (H)(4). 

53. See "Military Commission Review Panel Takes Oath of Office," American Forces Press 
Service, Washington, September 22, 2004, available at http://www.defenselink.mil/news/ 
Sep2004/n09222004_2004092207.html. 

54. See Regulation 10, Regulations for the Trial of War Criminals, MML Part III, at 349, supra 
note 19. 

55. See Regulation 12, id. at 349-350. 

56. See International Covenant on Civil and Political Rights, supra note 40, art. 14(5). 

57. The current legislation is contained in the Courts Martial (Appeals) Act 1968. 

58. The Uniform Code of Military Justice (UCMJ) was enacted on May 5, 1950. Article 67 of the 
UCMJ established the Court of Military Appeals as a three-judge civilian court. The Report of 
the House Armed Services Committee accompanying the legislation emphasized that the new 
Court would be "completely removed from all military influence of persuasion." The legislation 
became effective on May 31, 1951. In 1968, Congress redesignated the Court as the United States 
Court of Military Appeals. 

59. See, for example, the appellate provisions in relation to the Yugoslav and Rwanda Tribunals 
and the International Criminal Court. All available on the UN website at http://www.un.org. 



315 



PART VI 



THE RIGHT OF SELF-DEFENSE 
IN THE GLOBAL WAR ON TERRORISM 



XIV 



Using Force Lawfully in the 21st Century 

David B. Rivkin, Jr. and Lee A. Casey* 

Introduction 

War is not a law- free zone. There have always been rules governing when a 
State can legitimately use armed force. In one familiar ancient example, 
in the 12th century BC the Mycenaean Greeks most likely sacked the city of Troy 
because it was rich and vulnerable. As summer 2004 moviegoers saw, however, by 
800 BC the poet Homer felt compelled to clean up the story with a justificatory act 
of Trojan perfidy — the kidnapping of a Spartan queen by a Trojan prince. Accord- 
ingly, a more respectable casus belli, rooted in revenge, love and passion, was pro- 
vided in The Iliad 1 for what otherwise would have been blatant Greek aggression. 
Thus, even in the Age of Heroes, when armed combat was glorified and gods were 
believed to fight side-by- side with men, unalloyed aggression was viewed as mor- 
ally questionable. The perceived need for some legal justification for unleashing 
the dogs of war has remained a constant ever since. 

At the beginning of the 17th century, Hugo Grotius noted that, although "[t]he 

grounds of war are as numerous as those of suits at law Three justifiable causes 

for war are generally cited: defense, recovery of property, and punishment." 2 There 
is little doubt that the casus belli regularly invoked by States over the subsequent 
350 years fell into one or more of these categories. To be sure, given the broad na- 
ture of such concepts as "defense" or "punishment," the potential for their abuse 
or bad faith application has been quite obvious. Only a hopelessly unimaginative 



* Messrs. Rivkin and Casey are partners in the Washington, D.C. office of Baker & Hostetler, 
LLP. 



Using Force Lawfully in the 21st Century 



statesman would have been unable to articulate some plausible sounding basis for 
his belligerent aims, whatever they might be. 

Not surprisingly, while some leaders took full advantage of the considerable 
elasticity inherent in the traditional resort-to-force legal and ethical strictures, 
dubbed jus ad bellum, others have sought to leash the dogs of war by devising ever 
more rigid and proscriptive rules. Indeed, the efforts to ban armed conflict alto- 
gether (of which the 1928 Kellogg-Briand Pact 3 is perhaps the best-known exam- 
ple), or at least substantially constrain the use of violence, are as old as, or in some 
instances, even older, than war itself. The search for legal limitations has intensified 
in the 20th century, as the carnage of mechanized warfare and the horrendous ca- 
sualties suffered during the two World Wars have substantially diminished com- 
bat's erstwhile heroic luster. 

These regulatory efforts featured most prominently a no-first use concept, 
whereby force could be used only in response to an attack, rather than as an in- 
strument of aggression. However, given the fact that waiting to absorb an attack by 
an enemy before responding can be a risky strategy, most statesmen and generals 
have sought to protect the option of using force first, albeit in anticipation of the 
enemy's attack. This anticipatory self-defense doctrine has been a hardy perennial 
in international law. 4 

Anticipatory Defense's Historical Record 

Burning the Caroline 

The 1837 Caroline incident, 5 involving the British destruction of an American ship 
in US territorial waters, buttressed the modern international law doctrine of "an- 
ticipatory self-defense." In accepting the British explanation that the Caroline was 
destroyed in "self-defense," anticipating that she would again be used to assist the 
Canadian insurgents, American Secretary of State Daniel Webster acknowledged 
in 1841 the doctrine's validity, although he attempted to limit its application to the 
most extreme circumstances — where the need is "instant, overwhelming, and leav- 
ing no choice of means and no moment for deliberation" 6 — leading many subse- 
quent commentators to conclude that the doctrine could be invoked only when the 
threat was imminent. 7 

Of course, robust anticipatory self-defense had been a well-accepted rule, 
firmly grounded in all-important State practice, for centuries before the Caroline 
went crashing over Niagara Falls. Indeed, Webster's rather restrictive wording of 
this rule was driven largely by the US desire to limit the circumstances in which 
Britain or any other European power could claim a legitimate basis for using 
force on American soil. In a sense, the Caroline doctrine was meant to provide 

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David B. Rivkin, Jr. and Lee A. Casey 



some additional legal scaffolding for the Monroe Doctrine, promulgated in 1823. 
Significantly, neither the practice nor the writings by the various international 
law authorities evidenced much regard for the notion of instantaneity invoked by 
Webster; indeed, many an attenuated or distant threat were judged to be a suffi- 
cient casus belli. 

In 1587, for example, England's Queen Elizabeth I sent a fleet, commanded by 
Sir Francis Drake, to attack Spanish and Portuguese harbors — primarily Cadiz — 
in an effort to prevent, or at least to delay, the arrival of the "Invincible Armada." 
Forty years later, Grotius endorsed the practice as lawful in his monumental trea- 
tise, The Law of War and Peace, noting that self-defense was permissible, both upon 
being attacked and also before, where "the deed may be anticipated." 8 Writing over 
one hundred years later, another of modern international law's founding fathers, 
Emmerich de Vattel, also asserted in The Law of Nations that a country "may even 
anticipate the other's [aggressive] design, being careful however, not to act upon 
vague and doubtful suspicions." 9 Over the next three centuries, anticipatory self- 
defense was regularly employed, whether openly or by implication. 

By the 20th century, a robust self-defense prerogative was firmly rooted in inter- 
national law. For example, in 1939 Britain and France acted in anticipatory self- 
defense, warning Germany that the democracies would consider an attack on 
Poland to be a casus belli, and going to war when that attack occurred. Germany's 
armed forces were not, of course, at that time menacing either Britain or France and 
the only legal right either State would have had to threaten Hitler — since Poland 
was not British or French territory — must have been based in their rights to antici- 
pate future attacks. In fact, it is this same fundamental rule that justifies the Atlan- 
tic Alliance's "collective security" scheme — where more than two dozen States 
pledged armed support if the territory of any one were attacked — and the United 
Nations Charter's approval of "collective" self-defense. 

Anticipatory Defense Today 

Preemptive use of force has always been an implicit component of American strat- 
egy, and during the Cold War the United States resolutely refused to adopt a de- 
claratory no-first use position with respect to nuclear weapons. More recently, in a 
June 1, 2002, West Point speech, President Bush articulated a traditional policy 
justification for the anticipatory self-defense doctrine, noting that "we must take 
the battle to the enemy, disrupt his plans and confront the worst threats before they 
emerge" and that "if we wait for threats to fully materialize, we will have waited too 
long." 10 These themes were further elaborated in the National Security Strategy of 
the United States (NSS), 1 1 issued by the Bush Administration in September of 2002. 



321 



Using Force Lawfully in the 2 1st Century 



Despite anticipatory self-defense's venerable pedigree, the Bush Administra- 
tion's critics claimed that the NSS went too far by not limiting preemption to cir- 
cumstances involving imminent threats, by giving preemption such a pride of 
place, and thereby alienating many friends and allies. This criticism is misplaced. 
American declaratory strategy has always been meant to serve a variety of pur- 
poses, including deterring enemies and reassuring friends. Most of the time both of 
these goals can be accomplished simultaneously. Whenever faced, however, with 
an unusually acute threat from groups or regimes difficult or impossible to deter — 
the situation the United States faces today — the deterrence imperatives may rea- 
sonably prevail. Thus, emphasizing the vigor of the American preemption strategy 
is meant to enhance, to the greatest extent possible, the quality of US deterrence. 

Europe's Angst 

For all its ample legacy, however, anticipatory self-defense remains controversial. 
It is attacked for a variety of reasons, ranging from the more idealistic, albeit not 
necessarily prudent, desire to abolish war, or at least to limit the circumstances in 
which force can be used, to the belief that the application of the anticipatory self- 
defense doctrine inherently leads to abuses and causes instabilities, to the desire to 
limit American freedom of action. Indeed, many European officials assert that, ab- 
sent a UN Security Council authorization, force can be used only to repel an armed 
attack on a State's territory — after it has been initiated. This was certainly the posi- 
tion articulated with considerable vigor during the Iraq-related debates by such 
countries as France, Germany and Russia. 

What explains Europe's embrace of the restrictive view of self-defense? To begin 
with, the European criticisms on this subject are often laced with a heavy dose of 
anti- Americanism, since it is the United States that is currently viewed as the most 
obvious beneficiary of the anticipatory self-defense option. 12 Anti- Americanism 
aside, Europe's defense analysts appear to be more concerned with the possibility 
that the States' embracing the anticipatory defense strategy will overreact and 
strike first without sufficient provocation, rather than with the danger that a de- 
layed response to a weapons of mass destruction (WMD) -wielding foe would 
prove disastrous. 

Meanwhile, the more academically inclined pundits, who used to describe the 
Soviet nuclear buildup as a reaction to the United States-initiated arms race, now 
argue that the key to maintaining international stability and peace is to keep as high 
of a threshold as possible against the use of force and that allowing States to attack, 
based upon suspicions or intelligence warnings, would make the use of force a 
more frequent occurrence. Their common underlying assumption is that 



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David B. Rivkin, Jr. and Lee A. Casey 



misperceptions, mistakes and hair-trigger military deployments, geared towards 
preemption, are destabilizing and the main cause of wars. 

These criticisms, however, even in their more refined versions, are fundamen- 
tally misplaced. The strategy, which would require States to wait until the smoke- 
stacks of an enemy fleet rose over the horizon and the first broadside was fired 
before responding, was hopelessly unrealistic even when the UN Charter was 
adopted in 1945. Particularly in the post-September 11 environment, when ad- 
vance warnings may be calculated in seconds rather than days or weeks, or may not 
come at all, the consequences of allowing an enemy to get in the first blow may well 
be catastrophic. As President Bush has pointed out, even the most robust deter- 
rence "means nothing against shadow terrorist networks with no nation or citizens 
to defend," and containment is not possible "when unbalanced dictators with 
weapons of mass destruction can deliver those weapons surreptitiously to our 
shores or secretly provide them to terrorist allies." 13 

In fact, far from being inconsistent with deterrence, a preemption strategy es- 
sentially broadens the range of conduct to be deterred to encompass not just the 
use of force — as was the case with the traditional deterrence model — but also ef- 
forts to acquire prohibited weapons (or even the efforts to pursue a strategy that 
appears to flirt with WMD development and acquisition) or render aid to terrorist 
groups. As such, preemption both buttresses and extends deterrence. 

Distant Threats 

Additional criticisms of the Administration's recasting of the anticipatory self- 
defense strategy come from those who claim that, even under the traditional centu- 
ries-old view of that doctrine, to justify response the threat had to be imminent. 
This argument, however, does not hold water. First of all, although Webster's 
Caroline letter indeed formulated the anticipatory self-defense doctrine in terms 
that stressed the instantaneousness of the threat, leaving no opportunity for delib- 
eration, this was not the formulation used by many of the earlier leading interna- 
tional law experts. Moreover, centuries of State practice in this area featured 
preemption against both immediate and more long-term threats. 

In any case, the concept of an imminent threat is not synonymous with a short- 
lead time threat. A threat can be strategically imminent, albeit years away from full 
fruition. In today's world, for example, a rogue regime or a pan-national terrorist 
group that is committed to our destruction and is seeking to acquire weapons of 
mass destruction, while undertaking in the interim more conventional attacks, 
poses a strategically imminent threat to the United States fully sufficient to justify 
the preemptive use of force. With regard to al Qaeda, in particular, this was the 
threat situation that we have been facing for a number of years now. 

323 



Using Force Lawfully in the 21st Century 



Moreover, given the nature of the al Qaeda-style attacks, the only way to pre- 
empt successfully against such groups is to do so months, and even years, in ad- 
vance of these attacks being launched. This is because the way the enemy is 
preparing and carrying out such attacks makes near-term preemption by the 
United States inherently ineffective. For example, even if the United States had 
toppled the Taliban regime in the summer of 2001, or succeeded in eliminating bin 
Laden himself during that time period, it would not have necessarily prevented the 
September 1 1 attacks. Most of the perpetrators had already infiltrated the United 
States, and they could have proceeded without additional help or instructions from 
their superiors. 

To be sure, to the extent that preemption is being contemplated in response to a 
long-term strategic threat, it is reasonable to hold that the threat involved must be 
extremely serious in nature. (Conversely, an immediate and certain threat, e.g., 
Caroline-style gun running, even if not particularly grave in nature, potentially jus- 
tifies a preemptive response.) To proceed otherwise would admittedly render the 
anticipatory self-defense doctrine infinitely elastic, eroding all limitations on the 
use of force. 

Intelligence Mistakes Revisited 

Another oft-invoked anti-preemption argument builds upon the Bush Adminis- 
tration's failure to find WMD stockpiles in Iraq, claiming that it underscores the 
inherent unreliability of all weapons programs intelligence and mitigates against 
trying to use force to forestall attenuated, long-term threats. This claim has some 
merit; prosecuting a robust preemption strategy may well lead to some erroneous 
uses of force. On balance, however, given the threats faced, erring on the side of be- 
ing too cautious may not be a wise strategy. This is especially the case when dealing 
with Saddam Hussein and other regimes that have engaged in aberrant and unpre- 
dictable conduct. 

Even more fundamentally, the fact that Saddam apparently eschewed, following 
the end of the first Gulf War, retaining and enhancing actual WMD stocks did not 
render his regime harmless. Iraq retained active WMD development programs and 
engaged in an elaborate strategic cat-and-mouse game, denying any WMD-related 
ambitions, while behaving as if it already had substantial weapon stockpiles. 14 
Moreover, since Saddam himself was in the best position to determine when he 
would require a particular set of weapons, and producing sufficient quantities of 
chemical and biological agents and weaponizing them could have been done in a 
relatively short time, this just-in-time deployment strategy was perfectly viable. In 
any case, from beginning to end, the burden was on Saddam Hussein to prove that 
he had fully disarmed — not on the anti-Saddam coalition to prove that he retained 

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David B. Rivkin, Jr. and Lee A. Casey 



weapons stockpiles or research programs. The broader point, repeatedly made by 
the Bush Administration during the months leading up to the war, was that rogue 
regimes, instead of playing hide-and-seek games, were supposed to put forward 
various confidence-building measures capable of reassuring the international 
community that they were fully and irreversibly disarmed. 

The real danger in today's world comes from rogue regimes and terrorist orga- 
nizations that care not a whit about international law. As a result, the requirements 
of deterrence have become far more onerous, with many of our foes believing that 
the United States, in bin Laden's famous words, is "a weak horse." 15 In this situa- 
tion, for the United States to accept the proposition that the anticipatory self- 
defense doctrine is no longer valid and that, aside from responding to an armed 
attack on one's territory, all uses of force require the blessing of the UN Security 
Council, would be nothing short of suicidal. More generally, adopting this model 
would create an unprecedented dissonance between the policy imperatives and 
the legal rules. This is a strain that the law cannot bear. It would lead to the even- 
tual demise of all legal restrictions on the use of force. 

What about the UN Charter? 

Stassen's Revenge 

Not surprisingly, since the policy arguments about the benefits of narrowing the 
circumstances in which law-abiding States can use force are ultimately unpersua- 
sive, its proponents have also sought to use the law as a trump card. They claim that 
the anticipatory self-defense doctrine, however venerable or consonant with real 
politik imperatives, did not survive the adoption of the United Nations Charter, a 
portion of which — Article 2 — requires all members of the United Nations to "re- 
frain in their international relations from the threat or use of force." The propo- 
nents of this restrictive view argue that, absent the Security Council's blessing, the 
Charter limits the lawful use of force to circumstances, set forth in Article 51, in 
which an armed attack already has taken place and, even then, only pending action 
by the Security Council. This assertion, however, relies on an implausible reading 
of Article 51 and of other UN Charter provisions. Even more fundamentally, it also 
reflects an erroneous, albeit widely held view, that the UN Charter has superceded 
and vitiated the entire pre-existing body of customary and treaty-based interna- 
tional law. 

In fact, the Charter, upon which many of the Bush Administration's critics rely, 
neither abrogated the pre-existing body of international law nor abolished the an- 
ticipatory self-defense doctrine. To be sure, the goal of at least some of the individ- 
uals involved in the negotiations leading up the United Nation's establishment was 

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Using Force Lawfully in the 21st Century 



to outlaw war and to limit the right of self-defense so far as to require a State to ab- 
sorb an aggressor's first strike. Indeed, this appears to have been the position of 
Harold Stassen, who served on the American delegation and suggested that the 
right of self-defense was so narrowly crafted that the United States could not attack 
an enemy fleet steaming towards the Jersey shore. 16 

Yet, whatever Governor Stassen's purposes, when the Charter is read as a whole, 
its limitations on the use of force are far more modest. Article 2 of the Charter actu- 
ally prohibits the use of force in only three circumstances: ( 1) to seize territory; (2) 
to impose a colonial-style government; and (3) in a manner "inconsistent with the 
Purposes of the United Nations." Thus, the use of military force that does not in- 
volve territorial expansion, or does not threaten a member State's independence, is 
not forbidden so long as it is not otherwise inconsistent with the United Nation's 
purposes. The first among these "purposes" is the maintenance of "international 
peace and security," 17 a goal which, while worthy and laudable, is inherently am- 
biguous. For example, fierce debates have raged over whether a given use of force, 
be it against Slobodan Milosevic or Saddam Hussein, advances or retards "interna- 
tional peace and security." Meanwhile, the fact that Article 2 refers to "interna- 
tional peace and security" and not just peace also suggests that war avoidance, at all 
costs, was not the policy goal advanced by the Charter's drafters. 

The notion that the Charter, taken as a whole, allows the unilateral use of force 
only in response to an armed aggression is also belied by the actual language of 
Article 51. If this restrictive interpretation was correct, Article 51 would have 
granted to the UN members the carefully defined self-defense rights. 18 Yet, Article 
51 conveys no such authority; instead, it merely acknowledges the continued vital- 
ity of the pre-Charter's "inherent right of individual or collective self-defence," 
rooted in customary international law. It also employs a rather casual language, in- 
dicating that "the inherent right of individual or collective self-defence [attaches] if 
an armed attack occurs"; the term "armed attack" is not defined and there is no in- 
dication that this inherent right arises only if an armed attack takes place. 19 

This level of precision is perfectly acceptable if one construes Article 51 as an il- 
lustrative example of a much broader set of self- defense- related powers that are 
available to all sovereign States. It is, however, manifestly deficient if that article 
provides the only legally permissible avenue for using force, short of obtaining a 
Security Council authorization. 20 Moreover, a restrictive reading of Article 51, as 
the exclusive venue for using force, essentially renders Article 2's broad and rather 
permissive language regarding the use of force entirely superfluous. It is, of course, 
the common principle of statutory or treaty interpretation that any construction 
that vitiates some of the provisions is disfavored. By contrast, viewing Article 2 as 
the Charter's main provision for assessing the legitimacy of the use of force, with 

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David B. Rivkin, Jr. and Lee A. Casey 



the Article 51 being a rather narrow "safe harbor" 21 — if the use of force fits into 
the Article 51 -compliant set of circumstances, there no is need to perform the 
broader "all facts and circumstance" -type analysis envisioned by Article 2 — is 
both consistent with the relevant statutory language and gives meaning to both of 
the Articles. 

Moreover, given the nature of the UN system, which features veto authority by 
the permanent members of the Security Council, and gives even non-permanent 
members an opportunity to block the Council from exercising its Chapter VII 
powers, it was predictable that a Security Council deadlock would be a common 
state of affairs. Indeed, it is significant that throughout its entire operating history, 
both during the Cold War and thereafter, the Council has never acted in the way 
that the proponents of the restrictive reading of the Charter expected it to act; while 
the Council has determined on several occasions that a breach of the peace or a 
threat to the peace existed, it has never engaged in enforcement measures, involv- 
ing the mandatory use of military force. 22 It is, therefore, implausible to believe that 
the Charter's drafters, aside from a few pacifists like Harold Stassen, would have 
vested that body with an exclusive authority to use force. When one considers that 
the Charter's drafters were only too aware of the extent to which the obsession with 
the Kellogg-Briand Pact and the policy of appeasing Hitler had paved the way for 
World War II, this interpretation is even more incomprehensible. 

Anticipatory-Defense "Lite" 

Some international law scholars also espouse the view that, while a broad version of 
anticipatory self-defense has been blocked by the Charter's adoption, a more mod- 
est version of this doctrine has survived. Professor Dinstein, who is one of the lead- 
ing proponents of this claim, has even coined the term "interceptive" 23 self- 
defense. This right is evidently triggered by an armed attack that is "imminent" and 
"unavoidable," but that has not yet reached its intended victim. 24 In fleshing out 
this concept of interceptive self-defense, Dinstein has used such examples as the 
Japanese attack on Pearl Harbor and the 1967 Arab-Israeli War. Thus, he argues 
that if the United States were to have destroyed Admiral Yamamoto's carrier battle 
groups as they were steaming towards Pearl Harbor, the Unites States would have 
been engaged in interceptive self-defense. When it comes to the 1967 War, given a 
wide range of hostile measures taken by Egypt — ejection of the UN observers from 
the Gaza Strip and Sinai, the closure of the Straits of Tiran, military mobilization 
and movement of forces, accompanied by shrill anti-Israeli rhetoric — in Dinstein's 
view Israel's early use of force was another example of interceptive self-defense. 
From the policy perspective, Dinstein's somewhat elastic formulation is certainly 



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preferable to the most rigid formulation of Article 51, which would require the 
"victim" actively to absorb a first strike. 

It is, however, not a particularly useful analytical tool for determining, on a pro- 
spective basis, the legality of any particular use of force. The reason for this is quite 
simple; unless one adopts a rather crude Marxist interpretation of historical events, 
in which certain events become inevitable because of the underlying workings of 
history, nothing is truly unavoidable and inevitable. Thus, unless one awaits until 
the attack has been physically launched (in which case, the doctrine becomes virtu- 
ally indistinguishable from the traditional narrow reading of Article 51) — i.e., the 
missiles are in the air — one never knows in advance when an attack is unavoidable. 
History is replete with examples of crises building up to a crescendo, when the use 
offeree seemed imminent, only to dissipate because of last-minute diplomatic in- 
terventions. Indeed, before the "lights went out," in Lord Gray's famous formula- 
tion, in 1914, there were several instances when European war was avoided at the 
last minute. Examples include the 1909 Austrian Annexation of Bosnia- 
Herzegovina, the 1911 "Agadir Crisis," and the 1912-13 Balkan wars. When one 
looks at the Pearl Harbor example, it is certainly conceivable, albeit highly unlikely, 
that the Japanese government could have issued last-minute recall orders to Admi- 
ral Yamamoto. The same is true when one comes to the 1967 situation; an adroit 
US-Soviet diplomacy could have prevented it. 25 

However, the single greatest weakness of this anticipatory defense "lite" doc- 
trine is that it is not based upon the Charter's actual language. Article 51's language 
uses the word "occurs," rather than "launched or commenced," in describing the 
triggering circumstances. Yet, to justify Dinstein's "interceptive" concept, the 
word "occurs" would have to be stretched to the point where it loses any 
discernable meaning. Once this is done, "occurs" may just as well be construed to 
mean the birth of a future aggressor or the early hatching of an aggressive plan. 
The bottom line is that anticipatory self-defense "lite" is less supportable by the 
Charter's language, than either the permissive or restrictive interpretations of Arti- 
cles 2 and 51. 

Assault on National Interest 

In parsing the UN Charter and assessing the legal merits of the various arguments 
relating to the legitimacy of the anticipatory self-defense doctrine, it is also signifi- 
cant that the arguments used by the Administration's critics are internally incon- 
sistent. For example, in trying to figure out whether a given use of force violates 
Article 2, one must ascertain whether the action at issue would promote the pur- 
poses of the United Nations. In this regard, it is certainly reasonable to argue that 
removing from power a man like Saddam Hussein — who for decades clearly 

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David B. Rivkin, Jr. and Lee A. Casey 



sought to acquire nuclear weapons; developed, deployed and used both chemical 
and biological weapons on his own people and his neighbors; viewed himself as a 
modern day Saladin; and defied Security Council resolutions for well over a de- 
cade — was entirely consistent with the UN Charter. 

It is also possible to opine, of course, that the strategy of regime change in Iraq 
was not likely to promote international security. Indeed, some scholars argue pre- 
cisely that, while also claiming that some other uses of force, which they happen to 
favor, like NATO's use of force against Milosevic's Serbia, were more consonant 
with United Nation's purposes. However, whatever one thinks about the analytical 
merits of the argument that Milosevic posed a greater threat to international peace 
and security than did Saddam Hussein, or that the Kosovars were oppressed (and 
thereby deserving of a rescue) more than the Iraqi Shiites and Kurds, the very elas- 
tic nature of these claims renders them utterly unsuitable as legal arguments. 

It is also disingenuous to argue that, as a matter of law, humanitarian interven- 
tion to aid the residents of another country that are being brutalized by their rulers 
is legal under the UN Charter, presumably because it is always consistent with the 
Charter's laudable goals, but a national interest-driven intervention is somehow 
not similarly legitimate. 26 Leaving aside the issue of the rather idiosyncratic read- 
ing of the Charter, which, on its face, does not legitimize humanitarian interven- 
tions, it is not obvious why this humanitarian intervention principle only applies 
to the protection of foreign nationals, rather than a State's own citizens. In a post- 
September 1 1 world, US actions to destroy terrorist organizations and their spon- 
sors are the clear equivalent of a humanitarian intervention in defense of 
American citizens. 

Collective Action 

Then there are scholars who, perhaps realizing the utter un-workability of a pure 
restrictive interpretation of the UN Charter, try to read into it some modified ver- 
sion of the Security Council's primacy in the use-of- force area. They do this by ex- 
tolling the legal legitimacy of collective actions, even if these do not command the 
support of the entire Security Council. From a policy perspective, an approach 
which postulates that force can be legitimately used even though one or two States 
have blocked the Security Council from acting is perhaps more manageable than 
requiring a Security Council's blessing; the only problem is that there is not the 
slightest support in the UN Charter or any other international legal document for 
this theory. 

There are also commentators who purport to discover in the UN Charter provi- 
sions that bless regional actions, while leaving nation States acting "unilaterally" 
entirely to the mercies of Article 51. However, those provisions (found in Chapter 

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Using Force Lawfully in the 21st Century 



VIII of the UN Charter), do not permit a regional organization, such as the Organi- 
zation of American States (OAS) or NATO, to operate as the Security Council's 
surrogate. Indeed, for example, the imprimatur of regional organizations, while 
perhaps valuable as a diplomatic tool, is of little legal value. During the Cuban Mis- 
sile Crisis, for example, the foundation of both the right of the United States, and 
the OAS, to take action against the Soviet Union and Cuba was their inherent right 
of individual and collective self defense, including the right of anticipatory self- 
defense. As a matter of international law, a group of States has no more inherent 
right to use force than any one of its nation-State members. The champions of 
Chapter VIII of the Charter also do not seem to realize the inherent frailty of their 
approach: all one has to do to qualify, in an otherwise restrictive regulatory envi- 
ronment, for a broad anticipatory self-defense option, is to create a cooperative re- 
gional organization. This can be accomplished in a fortnight. 

The Actual Practice of States 

Moreover, the notion that anticipatory self-defense is barred by the UN Charter 
has not been supported by the actual practice of States in the years since the 
United Nations was established. That, in the final reckoning, is the critical point. 
Anyone attempting to determine what international law, whether customary or 
conventional, truly provides on any particular point would do well to heed the 
Marquise de Merteuil's maxim in Les Liaisons Dangereuses 27 ; don't listen to what 
people tell you, watch what they do. Here, the evidence is overwhelming that the 
traditional law of anticipatory self-defense has survived the adoption of the UN 
Charter. As Michael Glennon notes, since 1945 two-thirds of the members of the 
United Nations have fought 291 inter-State conflicts in which over 22 million 
people have been killed. 28 

Among the more important post-Charter instances of "anticipatory" self- 
defense must be counted the 1956 "Suez Crisis," where France, Britain and Israel 
launched military operations against Egypt based on Nasser's seizure of the Suez 
Canal. The affair was a political disaster for the governments involved, but it is 
highly significant that Britain and France, both charter members of the United Na- 
tions and permanent members of the Security Council, claimed that the Israeli- 
Egyptian military clash, which took place in a close proximity to the Suez Canal, 
was a threat to the world's economy and therefore adequate to justify armed action. 
Needless to say, this was a very broad formulation of a classical anticipatory self- 
defense argument, perhaps even broader than the argument used by the Japanese 
Prime Minister Tojo, who justified Japan's attack on Pearl Harbor by the claim that 
American economic sanctions were strangling imperial Japan. 



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In 1967, Israel acted preemptively against Egypt, Syria and Jordan, rather than 
await the attack of their massing forces. Israel was neither condemned nor sanc- 
tioned by the UN for this action. Similarly, Israel attacked and destroyed an Iraqi 
nuclear power facility in 1981, again citing "self-defense" as justification. Al- 
though, this time, Israel's action was condemned in the Security Council, no action 
was taken to address this supposed "aggression." Recalling the Marquise's maxim, 
whatever the verbiage used, this strongly suggests a fundamental recognition that 
Israel acted in accordance with its rights under international law to anticipate, and 
foil, attacks before they are launched. 

Israel, of course, has not been alone in exercising the right of anticipatory self- 
defense. In 1986, President Reagan ordered attacks against terrorist targets in Libya 
to prevent their use against US interests. In 1982, Britain claimed a 150-mile ex- 
clusion zone around the Falkland Islands as a preventative measure, and in 1983, 
Sweden asserted the right to use armed force against any foreign submarine sailing 
within 12 miles of her territorial sea. In 1989, the George H. W. Bush Administra- 
tion used force to oust Panama's strongman Manuel Noriega, arguing that he 
posed a threat to the safety of the American service members present in Panama 
and their families. All of these actions can be justified only by a right of anticipatory 
self-defense. 

Yet, perhaps the most important modern example of anticipatory self-defense — 
before Operation Iraqi Freedom — came during the Cuban Missile Crisis caused by 
the Soviet efforts to install ballistic missiles armed with nuclear warheads in Cuba. 
Although there were absolutely no indications that the Soviets intended to launch 
these missiles against the United States, immediately or in even the distant future, 
the Kennedy Administration claimed that the purpose of the Soviet deploy- 
ments — "to provide a nuclear strike capability against the Western Hemi- 
sphere" — was sufficient justification for the imposition of a naval "quarantine." 29 
Although the US threat assessment was also shaped by a perception that Soviet 
leader Khrushchev had engaged in nuclear saber rattling, threatened the United 
States in Berlin and elsewhere, and may have been irrational and impulsive, Presi- 
dent Kennedy's bottom-line conclusion was clearly that, in a nuclear age, a precipi- 
tous effort by an avowed American foe to change the strategic balance of power was 
enough of a threat to American security to justify the resort to an anticipatory self- 
defense doctrine. 

To argue that all of these uses of force have been illegal under the UN Charter, as 
some proponents of the restrictive interpretation of the Charter have done, (or 
even that most of them were illegal has been done by those who advocate anticipa- 
tory defense "lite" or allow its use only when invoked by regional organizations) 
constitutes both a rejection of the validity of State practice — traditionally, the most 

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Using Force Lawfully in the 21st Century 



reliable and authoritative way to establish international legal norms — and a partic- 
ular dogmatic approach to the Charter's interpretation. Significantly, the fact that 
States involved have consistently claimed that their actions have been consistent 
with the UN Charter is neither hypocritical nor an effort to re-write the Charter 
through subsequent practice; rather, it is a proof of their embrace of the permissive 
interpretation of the Charter. 

Conclusion 

Overall, the UN Charter, far from being a comprehensive legal edifice barring all 
uses of force, except for the Article 51 -compliant situations and various forms of 
collective action, is actually a far more modest document. It basically reaffirms a 
long-standing rule, which was not always honored, but nevertheless, frequently 
announced, against an aggressive use of force, sets forth a safe harbor rule for the 
use of force in response to an armed attack against one's territory or the territory of 
one's allies, while not inhibiting a broader range of defensive uses of force, includ- 
ing in anticipation of an attack. 

Although a nuclear Armageddon is far less likely today, the actual use of weap- 
ons of mass destruction, nuclear, chemical, and biological, has become a very real 
and immediate threat. The principal danger is not that one State will attack another 
with these weapons, but that non-State actors, such as al Qaeda, who are by defini- 
tion beyond deterrence, will obtain and use WMDs. This is because, for the first 
time ever, modern technology has enabled private individuals, aided and abetted 
by failed States, to create military-style forces capable of projecting power across 
the globe. That, of course, is precisely what al-Qaeda achieved on September 11; it 
projected power. Traditional deterrence works poorly in this novel strategic 
environment. 

This means that the traditional rules of international law, which permit States to 
anticipate threats and to act before an attack actually is initiated, are far more im- 
portant than in the past. Unfortunately, while these rules have not been vitiated by 
the UN Charter and have been reflected in ample State practice, both prior to and 
post- 1945, they have been subjected to strident legal and policy attacks by many 
States, international organizations and most international law experts. Given the 
importance of legal and ethical considerations in American policy-making, the 
United States must continue to defend the validity of these traditional rules. Only 
with these rules in place can the United States hope to protect its citizens from at- 
tack, maintain international stability, and defeat rogue States and terrorist groups 
that pose a grave threat to the entire civilized world. 



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David B. Rivkin, Jr. and Lee A. Casey 



Notes 

1. HOMER, THE ILIAD (Robert Fagles trans., Penguin Books 1998) (8th century BC). 

2. HUGO GROTIUS, THE LAW OF WAR AND PEACE 72 (Francis W. Kelsey, trans., 1925) (1625). 

3. General Treaty for Renunciation of War as an Instrument of National Policy (Aug. 27, 1928), 
94 L.N.T.S. 57. 

4. To be sure, some scholars have questioned the relevance of the historical practice in this area, 
not only with regard to the anticipatory self-defense doctrine, but even as far as the self-defense 
concept as a whole is concerned. For example, Yoram Dinstein argues that " [u]p to the point of 
the prohibition of war, to most intents and purposes, 'self-defence was not a legal concept but 
merely a political excuse for the use of force'. Only when the universal liberty to go to war was 
eliminated, could self-defence emerge as a right of signal importance in international law." 
Yoram Dinstein, War, Aggression and Self-Defence 160-61 (3d ed. 2001), quoting E. 
Jimenez de Arechaga, International Law in the Past Third of a Century, 59-1 RECUEIL DES COURS 

I, 96 (1978). This view, however, ignores the fact that legal and ethical restrictions on the use of 
force did not emerge in the 20th century; indeed, for centuries, there have been various forms 
and types of restrictions, some, but not all, of which were driven by religious imperatives — e.g., 
efforts to ban the waging of war by Christian States against other Christian States. The fact that 
they were often breached did not render them any more irrelevant than the frequently- ignored 
modern proscriptions. As far as anticipatory self-defense is concerned, the fact that the doctrine 
arose and was practiced during the time when the overall doctrinal attitudes toward the use of 
force were more permissive than the ones we encounter today is not particularly dispositive. 
Indeed, the fact that the doctrine was refined at the time when armed aggression was a more 
usual instrument of statecraft, makes it even more significant in the current, more restrictive 
legal environment. 

5. For a description of the Caroline incident, see KENNETH R. STEVENS, BORDER DIPLOMACY: 
The Caroline and Mcleod Affairs in Anglo-American-Canadian Relations, 1837- 
1842, at 121 (1989). 

6. Daniel Webster, Secretary of State, Letter to Lord Ashburton, British Plenipotentiary (Aug. 

6. 1842), reprinted in JOHN BASSETT MOORE, 2 A DIGEST OF INTERNATIONAL LAW 412 (1906). 

7. Some commentators have also argued that the Caroline incident is miscast as a poster child 
for the anticipatory self-defense doctrine, because the ship was used to re-supply the Canadian 
insurgents prior to its destruction and hence, could have been considered to engage in 
continuous armed operations against Britain. This claim is, of course, debatable. Caroline's 
operations would have had to be continuous, rather than intermittent, and the relevant 
historical record does not evidence such a pattern. In any case, regardless of the actual facts on 
the ground, what makes the Caroline case significant in the development of the customary 
international law is that both the United States and Britain chose to apply the anticipatory 
defense paradigm in setting up the legal framework for handling the incident. 

8. GROTIUS, supra note 2, at 173. 

9. Emmerich deVattel, 3 The Law of Nations 130 (Charles G.Fenwicked., 1983) (1758). 

10. President's Commencement Address of June 1, 2002 at the United States Military Academy 
in West Point, New York, 38 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 945 (June 
10, 2002), available at http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html. 

I I . Office of the President of the United States, The National Security Strategy of 
the United States (Sept. 2002), reprinted in 2002 Digest of United States Practice in 
International Law 947. 



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12. Actually, as noted by George Orwell long before the Bush Administration came into office, 
pacifism has often been driven by a hefty dose of anti-Americanism. Writing in 1945, Orwell 
bemoaned the existence of 

[ I Intellectual pacifists, whose real though unacknowledged motive appears to be hatred 
of Western democracy and admiration for totalitarianism. Pacifist propaganda usually 
boils down to saying that one side is as bad as the other, but if one looks closely at the 
writing of the younger intellectual pacifists, one finds that they do not by any means 
express impartial disapproval, but are directed almost entirely against Britain and the 
United States .... 

George Orwell, Notes on Nationalism (1945), reprinted in GEORGE ORWELL: ESSAYS 878 (John 
Carey ed., 2002). 

13. Supra note 10. 

14. For a discussion of this issue, including the comparison of how Saddam's strategic 
deception policy was, in some key respects, similar to the missile bluff strategy pursued by the 
late Nikita Khrushchev, see David B. Rivkin, Jr. & Lee A. Casey, Saddam, Nikita and Virtual 
Weapons of Mass Destruction: A Question of Threat Perception and Intelligence Assessment., IN THE 
NATIONAL INTEREST, June 12, 2003, at http://www.inthenationalinterest.com/Articles/ 
Vol2Issue23ZVol2iss23RivkinCasey.html. 

15. See e.g., Text: Bin Laden Discusses Attacks on Tape, at http://www.washingtonpost.com/wp- 
srv/nation/specials/attacked/transcripts/binladentext_ 121301 .html. 

16. Minutes of the Thirty-Eighth Meeting of the United States Delegation, Held at San Francisco, 
Monday, May 14, 1945, 9:05 a.m., in 1 FOREIGN RELATIONS OF THE UNITED STATES 707, 709 
(1945). 

17. U.N. CHARTER art. 1, para. 1. 

1 8. It is also worth noting that Article 5 1 refers only to an armed attack "against a member of the 
United Nations." When the Charter was ratified and for decades thereafter, a number of States 
chose not to join the UN. To construe Article 5 1 as the exclusive all-purpose rule for using force, 
that has supplemented the traditional customary law norms, would mean such States would 
have no self-defense rights at all. 

19. The full text of Article 51 is as follows: 

Nothing in the present Charter shall impair the inherent right of individual or collective 
self-defence if an armed attack occurs against a Member of the United Nations, until 
the Security Council has taken measures necessary to maintain international peace and 
security. Measures taken by Members in the exercise of this right of self-defence shall be 
immediately reported to the Security Council and shall not in any way affect the 
authority and responsibility of the Security Council under the present Charter to take at 
any time such action as it deems necessary in order to maintain or restore international 
peace and security. 

20. Article 51's language aside, its rather accidental legislative history also does not support the 
claim that the Charter's drafters conceived of it as an important substantive right-creating 
provision. In this regard, Andru Wall notes that 

Article 51 was not in the original drafts because the drafters believed the customary 
international law right of self-defense was incorporated without alteration into the 
Charter. The US delegation in San Francisco proposed Article 51 to ensure that the 
obligations of collective self-defense against armed attacks arising from the 
Chapultepec Act were incorporated into the Charter. While self-defense was uniformly 
accepted as a customary right of States, collective self-defense was an emerging right. 



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David B. Rivkin, Jr. and Lee A. Casey 



Andru Wall, International Law and the Bush Doctrine, 33 ISRAEL YEARBOOK ON HUMAN RIGHTS 

199,200-201 (2003). 

In a remarkable historical parallel, this view of a robust self-defense prerogative — 
as something that is so firmly entrenched in international law that it did not even 
require an explicit reaffirmation — was also expressed by Secretary of State 
Kellogg. Kellogg stated at the time when the 1928 Kellogg-Briand Pact (the very 
high point of the efforts to limit the use of force by States) was being negotiated 
"that there was no need to state it expressly in the terms of the pact; even the 
adoption of texts that seem inconsistent with exercise of the right, he said, do not 
preclude reliance upon it." Telegram from Frank B. Kellogg, Secretary of State, to 
the US Ambassador in France, (Apr. 23, 1928) in 1 FOREIGN RELATIONS OF THE 
UNITED STATES 34, 36-37 (1928), quoted in Michael J. Glennon, Military Action 
Against Terrorist Under International Law: The Fog of Law, Self-Defense, Inherence 
and Incoherence in Article 51 of the United Nations Charter, 25 HARVARD JOURNAL 
of Law and Public Policy 539 n.62 (2002). 

2 1 . The view that Article 5 1 is meant to be merely an illustrative safe harbor has been criticized 
by the advocates of the restrictive reading of the Charter. For example, Yoram Dinstein notes in 
this regard 

What is the point in stating the obvious (i.e. that an armed attack gives rise to the right 
of self-defence), while omitting a reference to the ambiguous conditions of preventive 
war? Preventive war in self-defence (if legitimate under the Charter) would require 
regulation by lex scripta more acutely than a response to an armed attack, since the 
opportunities for abuse are incomparably greater. 

DINSTEIN, supra note 4, at 168. This question, however, can be easily answered by pointing out 
that the whole idea of a safe harbor in the law is to delineate precisely those circumstances that 
can be easily dealt with. Thus, the whole purpose of Article 51 is to indicate that, whenever one 
uses force after he has been the victim of an armed attack, he is always legally in the right, and no 
further analysis of the circumstances is necessary. By contrast, precisely because the application 
of anticipatory self-defense can be, and has been, used as a pretext for aggression that a more 
complex, all facts and circumstances-type analysis, under Article 2, is called for. This 
interpretation is certainly supported by the fact that the framers of the Charter were quite 
familiar with the arguments used by both the Nazi and Japanese leadership (which were 
subsequently replayed during the Nuremberg and Tokyo war crimes trials) that they were 
engaged in anticipatory self-defense. Looking to the future, leaders of a State that has used force 
in a manner consistent with Article 51 could feel safe from prosecution; even if that State had lost 
the war and they were subject to a war crimes prosecution. 

22. At the time the Council adopted the Korean War Resolution (SC Res. 82 (June 25, 1950), 
reprinted in 5 RESOLUTIONS AND DECISIONS OF THE SECURITY COUNCIL 4 (1950)) and the Gulf 
War Resolution (SC Res. 678 (Nov. 29, 1990), reprinted in 29 INTERNATIONAL LEGAL 
MATERIALS 1565 (1990)), which many regard as its strongest actions, all it did was to 
recommend that member States render assistance to South Korea and Kuwait. Since both of 
these countries were victims of armed aggression, and countries coming to their aid were acting 
squarely within the ambit of Article 51, the Security Council's blessing of these actions was 
primarily of a rhetorical and diplomatic value; it did not alter the legal landscape. 

23. See Professor Dinstein's article, The Gulf War: 1990-2004 (And Still Counting), which is 
Chapter XV in this volume, at 337. 

24. Dinstein, supra, note 4, at 172. 



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Using Force Lawfully in the 2 1st Century 



25. Ironically, and quite inconsistently with the Dinstein's anticipatory defense "lite," it is often 
easier to predict, based upon an analysis of the long-term trends, what is eventually going to 
happen, rather than what will happen tomorrow. Thus, the quality of strategic threat forecasts is 
often better than the assessment of tactical threats. Accordingly, anticipatory self-defense against 
medium- and long-term threats may well make more sense and be more reliable than the 
interceptive self-defense, geared for dealing with unavoidable and imminent attacks. 

26. Unfortunately, only a few proponents of the legality of humanitarian intervention espouse 
the view that the Charter is similarly permissive when it comes to national security-driven 
interventions. For a notable exception to this idiosyncratic reading of the Charter, see Lee 
Feinstein & Ann-Marie Slaughter, A Duty to Prevent, 83 FOREIGN AFFAIRS 136, Jan.-Feb 2004. 

27. Pierre Ambroise Francois Choderlos de Laclos, Les Liaisons Dangereuses (1782). 

28. Michael J. Glennon, Why the Security Council Failed, 82 FOREIGN AFFAIRS, May/June 2003, 
at 16 and Michael J. Glennon, Preempting Terrorism: The Case for Anticipatory Self-Defense, 
WEEKLY STANDARD, Jan. 28, 2002, at 24. 

29. John F. Kennedy, President of the United States, Radio and Television Report to the American 
People on the Soviet Arms Buildup in Cuba (Oct 22, 1962), Public Papers of the Presidents of the 
United States: PRESIDENT JOHN F. KENNEDY: CONTAINING THE PUBLIC MESSAGES, SPEECHES, 
AND STATEMENTS OF THE PRESIDENT: JANUARY 1 TO DECEMBER 31, 1962, at 806, 806-07 
(1963), available at http://usgovinfo.about.com/library/weekly/aal02100b.htm. 



336 



XV 



The Gulf War: 1990-2004 
(And Still Counting) 



Yoram Dinstein* 



There is a popular notion (based on some loose language used by the Bush 
Administration) that the hostilities conducted by the American-led Coali- 
tion of the willing against Iraq in 2003 were based on a legal doctrine of preemptive 
forcible action against a potential threat. From the standpoint of international law, 
this popular notion is as untenable as it is unnecessary. The present article will first 
set the proper predicate for the legality of the action taken against Iraq. Then, the 
article will turn to the spurious contention of preemptive action. 

A Legal Analysis of the Various Phases of the Gulf War 

It is common practice to refer to the hostilities in Iraq in 2003 in a manner discon- 
nected from the hostilities of the early 1990s: some media stories have even used 
the expressions "Gulf War I" and "Gulf War II." However, in reality there has been 
only a single Gulf War which started in 1990 and is still not over in 2004. Admit- 
tedly, that war has consisted of a number of phases, yet each phase must be viewed 
as a part of the whole. The three main phases of the Gulf War are: 



* Yanowicz Professor of Human Rights and Pro-President, Tel Aviv University, Israel. 



The Gulf War: 1990-2004 (And Still Counting) 



The Invasion and Liberation of Kuwait (1990-1991) 

Iraq invaded Kuwait on August 2, 1990. Within a few hours, the United Nations 
Security Council adopted Resolution 660, which determined the existence of "a 
breach of international peace and security," and demanded immediate and uncon- 
ditional withdrawal of the Iraqi forces. 1 This was (and still is) only the second reso- 
lution in the history of the Security Council in which it used the phrase "breach of 
international peace" and then proceeded to take action. (The first being Resolution 
82 of 1950 relating to the invasion of South Korea by North Korea, 2 although that 
resolution used the slightly different phrase "breach of the peace.") 

Following Resolution 660, the Council adopted a string of other resolutions 
which, inter alia, imposed on Iraq mandatory economic sanctions under Chapter 
VII of the Charter (Resolution 661 3 ) and even a blockade (Resolution 665 4 ). 
When Iraq did not relent, the Council — in Resolution 678 of November 29, 
1990 — authorized the "Member States co-operating with the Government of Ku- 
wait," should Iraq not fully comply with previous Council resolutions by January 
15, 1991, "to use all necessary means to uphold and implement resolution 660 
(1990) and all subsequent relevant resolutions and to restore international peace 
and security in the area." 5 The formula "to use all necessary means" has since be- 
come the common and accepted euphemism for the use of force. 

Pursuant to Resolution 678, and upon the expiry of the ultimatum, the armed 
forces of a large American-led Coalition struck at Iraq on the night of January 16/ 
17, 1991. It is important to understand that at no time did the Council establish a 
United Nations force for combat purposes against Iraq. 6 The legal foundation of 
the use of force against Iraq by the coalition was collective self-defense. 7 Under Ar- 
ticle 5 1 of the United Nations Charter, when an armed attack occurs, any State is 
entitled to respond by exercising its right of individual or collective self-defense. 8 A 
specific affirmation of "the inherent right of individual or collective self-defence, in 
response to the armed attack by Iraq against Kuwait, in accordance with Article 51 
of the Charter," was already incorporated into Resolution 66 1. 9 Even the phrase 
"Member States co-operating with the Government of Kuwait" suggests that these 
are "nations engaged in collective [self-] defense with Kuwait." 10 

The meaning of Resolution 678 is that, while the Security Council abstained 
from deploying a veritable United Nations force as an instrument of collective se- 
curity, it gave its blessing in advance to the voluntary exercise of collective self- 
defense by the members of the Coalition (following an interval of several weeks de- 
signed for the exhaustion of the political process). The core of the resolution was 
the prospective approval of future action. 11 In an ordinary constellation of events, 
States first employ force in individual or collective self-defense and only then re- 
port to the Council about the measures that they have taken, so that the Council 

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investigates the nature of the hostilities retrospectively. In the particular case of 
Iraq, the Coalition sought and obtained from the Council a green light for the exer- 
cise of collective self-defense against the perpetrator of an armed attack (Iraq) well 
before the projected military clash. Thereafter, the Coalition did not have to worry 
about the reaction of the Council, inasmuch as that reaction had predated the ac- 
tual combat. 

Considering that the military operations of the Coalition in 1991 were a mani- 
festation of collective self-defense — rather than collective security — there was 
technically no need for the specific mandate of Resolution 678 to legally validate 
the employment of forcible measures against Iraq. 12 Article 51 per se ought to have 
sufficed in authorizing the Coalition to resort to force in response to the Iraqi 
armed attack, and arguably Resolution 678 only tied the hands of the countries co- 
operating with Kuwait in that they had to hold their fire until January 15. 13 Of 
course, in political and psychological terms, Resolution 678 had an incalculable ef- 
fect: internationally (cementing the solidarity of the Coalition and swelling its 
ranks) as well as domestically (mobilizing public opinion to political support of the 
action against Iraq). 

The Cease-Fire Period (1991-2003) 

Cease-fire terms were dictated to Iraq by the Security Council, in April 1991, in 
Resolution 687. 14 These were rigorous terms, which compelled Iraq, inter alia, to dis- 
arm itself of weapons of mass destruction (WMD), but Iraq accepted them. It must 
be appreciated that, although the conditions of the cease-fire were delineated by Res- 
olution 687, the ensuing cease-fire constituted an agreement between the Coali- 
tion — rather than the United Nations (which remained above the fray) — and Iraq. 

The cease-fire in Iraq went on for a dozen years, yet it failed to spawn peace. In- 
stead of moving towards a peaceful settlement, the Coalition and Iraq were con- 
stantly at loggerheads, inasmuch as Iraq — from the very onset of the cease-fire — 
was unwilling to fully comply with its agreed-upon terms, especially as regards dis- 
armament of WMD. Huge quantities of chemical weapons agents, and a variety of 
biological weapons production equipment and materials, were destroyed under 
the supervision of UN inspectors. 15 However, quite frequently between 1991 and 
2003 (in particular, in 1998/1999), Coalition warplanes struck Iraqi targets, striv- 
ing unsuccessfully to compel Iraq to abide by the cease-fire conditions and espe- 
cially to cooperate with UN disarmament inspectors. 16 The sundry air strikes by 
the Coalition must be construed as a resumption of combat operations in the face 
of Iraqi violations of the cease-fire terms. 17 

Already under Resolution 688, adopted within a few days of the entry into force 
of the cease-fire, the Security Council (without naming Chapter VII) held that the 

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The Gulf War: 1990-2004 (And Still Counting) 



Iraqi repression of the civilian population (particularly the Kurds) "threaten inter- 
national peace and security in the region" and insisted that Iraq "allow immediate 
access by international humanitarian organizations to all those in need of assis- 
tance in all parts of Iraq and to make available all necessary facilities for their opera- 
tion." 18 As a result, with the military help of armed forces of the United States and 
other Coalition countries, "access" to humanitarian aid was achieved through the 
creation of an air exclusion ("no-fly") zone securing a Kurdish enclave in the north 
of Iraq. In 1992, another "no-fly" zone was established over the Shiite areas in the 
south of the country. In the next decade, many air strikes were conducted by Coali- 
tion warplanes against Iraq in response to Iraqi defiance of the "no-fly" zones. 19 

The Occupation of Iraq (2003) 

The state of war between Iraq and the Coalition continued notwithstanding the 
suspension of general hostilities in 1991. When the friction between Iraq and the 
Coalition culminated in the resumption of general hostilities of 2003, events were 
examined by a host of commentators against the backdrop of a doctrine of "pre- 
emption" set out by President George W. Bush (see below). 20 But, as conceded by 
the Legal Adviser of the Department of State: "Was Operation Iraqi Freedom an ex- 
ample of preemptive use of force? Viewed as the final episode in a conflict initiated 
more than a dozen years earlier by Iraq's invasion of Kuwait, it may not seem so." 21 

There is absolutely nothing preemptive about the resumption of hostilities 
when a cease-fire disintegrates. The leading partner of the United States in the Co- 
alition against Iraq — the United Kingdom — formally took the position that the le- 
gal basis of the 2003 hostilities was a revival of the Coalition's right to use force 
against Iraq consequent upon the Iraqi material breach of the cease-fire. 22 

As indicated, Iraqi reluctance to comply with its obligations of WMD disarma- 
ment brought about numerous clashes with the Coalition throughout the cease- 
fire period. Ultimately, in the face of persistent reports about Iraq's violations of 
its obligations in this regard, the Coalition decided to terminate the cease-fire. The 
fact that no WMD were found in Iraq after its occupation is irrelevant: on the eve 
of the resumption of hostilities, everybody — including the UN inspectors — be- 
lieved that Iraq had not fully observed its disarmament undertakings. 23 Iraqi re- 
fusal to cooperate unreservedly with UN inspectors led to a series of Security 
Council resolutions branding its conduct a "material breach" of its disarmament 
obligations. 

It is wrong to argue (as was done by the United Kingdom) that the legality of the 
Coalition's right to use of force against Iraq in 2003 hinged on a revival of Security 
Council Resolution 678. 24 Resolution 678 gave the blessing of the Security Council 
to the military action taken in 1 99 1 , and surely it had nothing to do with operations 

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conducted a dozen years later under totally different circumstances. However, 
there was no need for a revival of Resolution 678 in 2003, just as there was no strict 
need for its original adoption in 1990. Both in 1991 and in 2003, the Coalition 
acted on the basis of the right of collective self-defense with which it was directly 
vested by Article 51 of the Charter and by customary international law. 

A cease-fire, which merely suspends hostilities without terminating the war, 
does not extinguish the right of collective self-defense that remains legally intact 
for the duration of the war. 25 The criteria for the legitimate exercise of this right re- 
main anchored to the circumstances of the outbreak of the war (in this case, in 
1990). The disintegration of a cease-fire by dint of its violation by one belligerent 
party — and the forcible response of the adversary — is not to be confused with the 
initiation of a new war. 

Under Article 40 of the Regulations annexed to Hague Convention (II) of 1899 
and to Hague Convention (IV) of 1907 Respecting the Laws and Customs of War 
on Land, a serious violation by a party to a cease-fire ("armistice" in the original 
wording of the Regulations) empowers the other side to denounce it and, in cases 
of urgency, to resume hostilities immediately. 26 The modern practice is to refer not 
to a serious violation but to a "material breach." This phrase appears in Article 
60(1) of the Vienna Convention on the Law of Treaties (as a ground for termina- 
tion or suspension of bilateral treaties). 27 The applicability of the "material breach" 
criterion to general cease-fire agreements had been recognized in the international 
legal literature even before the Vienna Convention was crafted in its final form. 28 

The meaning of the phrase "material breach" is not unequivocal. 29 Article 60(3) 
of the Vienna Convention defines a "material breach" as either "a repudiation of 
the treaty not sanctioned by the present Convention" or a "violation of a provision 
essential to the accomplishment of the object or purpose of the treaty." 30 Which 
provision is to be considered "essential"? It is generally recognized that, in the con- 
text of a material breach, the term covers any "important ancillary provision" of a 
treaty. 31 Thus, the WMD disarmament clauses in the cease-fire agreement with 
Iraq were decidedly essential (albeit ancillary to the suspension of hostilities), and 
their violation constituted a "material breach." 

It is therefore noteworthy that, as early as August 1991 (a few months after the 
entry into force of the cease-fire suspending hostilities), the Security Council — 
acting under Chapter VII of the Charter, in Resolution 707 (1991) — already con- 
demned Iraq's serious violation of its disarmament obligations and established 
that the violation "constitutes a material breach of the relevant provisions of reso- 
lution 687. " 32 Eleven years late, in Resolution 1441 (2002), the Security Council 
(again acting under Chapter VII) decided "that Iraq has been and remains in 



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The Gulf War: 1990-2004 (And Still Counting) 



material breach of its obligations under relevant resolutions, including resolution 
687(1991)." 33 

Many commentators maintain that — subsequent to Resolution 1441 — the Co- 
alition could not take military action against Iraq in 2003 without obtaining a spe- 
cific go-ahead signal from the Security Council to resort to force. 34 The fact that 
the Coalition failed to persuade the Security Council to adopt a further resolution 
expressly authorizing — in the vein of Resolution 678 — the use of "all necessary 
means" (i.e., force) against Iraq was regrettable from a political standpoint. But, 
legally speaking, such an additional resolution was not required. Even those con- 
tending that Resolution 1441 "does not contain any 'automaticity' as concerns the 
potential use of force" have to concede that the text lends itself to a different inter- 
pretation. 35 It most assuredly does not prescribe — or even necessarily imply — 
that, prior to recourse to force, the Coalition must return to the Security Council 
for a second (confirmatory) resolution. 36 

The clear inference from the determination by the Security Council as regards 
the Iraqi "material breach" was that the other side to the cease-fire agreement was 
released from its obligation to continue to respect the cease-fire. 37 A salient point, 
often missed by commentators on this topic, 38 is that the other side to the cease-fire 
agreement with Iraq was not the United Nations as such but the Coalition. 39 Re- 
sumption of the hostilities, therefore, did not require an explicit stamp of approval 
from the Security Council. 

In reality, even the determination of the existence of an Iraqi "material breach" 
need not have been made by the Security Council. 40 By right, this determination 
could have been made by the Coalition itself. Differently put, there was no legal (as 
distinct from a political) need for the Coalition to have turned to the Security 
Council in the first place (just as in 1990/1991 the Coalition did not have to go the 
Security Council for Resolution 678 or, for that matter, Resolution 687). Yet, since 
the Coalition chose to bring the matter before the Security Council in 2002 — and 
since the Council did set up an enhanced inspection regime, giving Iraq a "final op- 
portunity" to comply with the disarmament obligation 41 — the Coalition was con- 
strained to give that inspection regime a chance of success. Similarly to Resolution 
678, which equally offered Iraq a "final opportunity" 42 and tied the hands of the 
Coalition by introducing a temporal interval during which it had to hold its fire, 
Resolution 1441 did not leave the Coalition the option to recommence hostilities 
immediately. Thus, despite the determination of the existence of a "material 
breach" of the cease-fire terms, the Coalition had to await new UN inspectors' re- 
ports. However, when a number of reports were in, it became clear that there were 
still unresolved issues and that Iraq had failed to take all the steps required to put an 



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end to its "material breach." 43 The freedom of action of the Coalition was accord- 
ingly regained. 

Following a final ultimatum, the Coalition terminated the cease-fire with Iraq 
and resumed hostilities on March 20, 2003. Baghdad fell on April 9th, and in a few 
days major combat operations were over. All the same, irregular fighting has per- 
sisted long after the occupation of Iraq (with an upsurge in the violence a year later, 
in 2004). Already in May 2003, the Security Council determined that the situation 
in Iraq, although improved, continued to constitute "a threat to international 
peace and security." 44 In October 2003, the Council expressly authorized "a multi- 
national force under unified command" (structured around the Coalition military 
units) "to take all necessary measures to contribute to the maintenance of security 
and stability in Iraq." 45 In June 2004, in accordance with Security Council Resolu- 
tion 1546, the formal occupation of Iraq by the Coalition ended, and an Interim 
Government reasserted full responsibility and authority; nevertheless, the multi- 
national (Coalition) force remained in the country and its authority "to take all 
necessary measures" was reaffirmed by the Council. 46 

Preemptive Self-Defense 

The United States has traditionally taken the position that a State may exercise "an- 
ticipatory" self-defense, 47 in response not merely to a "hostile act" but even to a 
"hostile intent" (a dichotomy elevated to the level of doctrine by the US Rules of 
Engagement). 48 In the past, the United States was careful to underscore that antici- 
patory self-defense — or response to a hostile intent — must nevertheless relate to 
the "threat of imminent use of force." 49 The emphatic use of the qualifying adjec- 
tive "imminent" is of great import. As we shall see, the imminence of an armed at- 
tack (provided that it is no longer a mere threat) does indeed justify an early 
response by way of interceptive self-defense. However, after the heinous terrorist 
attacks of September 11, 2001 (9/11), a well-known statement of policy on pre- 
emptive action in self-defense was issued as part of the US National Security Strat- 
egy, 50 and this is often referred to as the "Bush Doctrine" (after President George 
W. Bush). 51 The new policy appears to push the envelope by claiming a right to 
"preemptive" self-defense countering pure threats based on the "capabilities and 
objectives" of today's adversaries, especially terrorists and in particular when the 
potential use of WMD comes into the equation. 52 It is not yet clear what practical 
effects the new policy will have in reality. But to the extent that it will actually bring 
about the preventive use of force in response to sheer threats, it will not be in com- 
pliance with Article 51 of the Charter. 



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Since Article 51 permits self-defense solely when an "armed attack" occurs, the 
question arises whether there exists — independently of the Charter — a broader 
customary international law right of anticipatory self-defense. The International 
Court of Justice, in the Military and Paramilitaries Activities case of 1986, based its 
decision on the norms of customary international law concerning self-defense as a 
sequel to an armed attack. 53 Yet, the Court stressed that this was due to the circum- 
stances of the case, and it passed no judgment on the issue at hand. 54 

On the other hand, Judge Schwebel — in his Dissenting Opinion — did take a 
clear-cut position on the subject. In conformity with a scholarly school of thought 
maintaining that Article 51 only highlights one form of self-defense (viz., response 
to an armed attack), without negating other patterns of legitimate action in self- 
defense vouchsafed by customary international law, 55 Judge Schwebel rejected a 
reading of the text which would imply that the right of self-defense under Article 
51 exists "if, and only if, an armed attack occurs." 56 

In the opinion of the present writer, precisely such a limitative reading of Article 
51 is called for. Any other interpretation of the Article would be counter-textual, 
counter-factual and counter-logical. 

First, a different interpretation of Article 51 would be counter-textual because 
the use of the phrase "armed attack" in Article 51 is not inadvertent. The expres- 
sion should be juxtaposed with comparable locutions in other provisions of the 
Charter. It is particularly striking that the framers of the text preferred in Article 5 1 
the coinage "armed attack" to the term "aggression," which appears in the Charter 
in several contexts (the Purposes of the United Nations (Article 1(1)), collective se- 
curity (Article 39) and regional arrangements (Article 53(1)). 57 The choice of 
words in Article 51 is deliberately confined to a response to an armed attack. 

An armed attack is, of course, a type of aggression. Aggression in its generic 
meaning may be stretched to include mere threats, although it is interesting that a 
consensus Definition of Aggression, adopted by the General Assembly in 1974 — 
while not pretending to be exhaustive — does not cover the threat of force. 58 Yet, 
only a special form of aggression amounting to an armed attack justifies self-de- 
fense under Article 5 1 . The French version of the Article sharpens its thrust by 
speaking of "une agression armee." 59 Under the Article, a State is permitted to use 
force in self-defense only in response to aggression which is armed. 

Second, the idea that one can go beyond the text of Article 51 and find support 
for a broad concept of preventive self-defense in customary international law is 
counter-factual. When did such customary international law evolve and what evi- 
dence in the practice of States (as distinct from scholarly writings) do we have for 
it? The right of self-defense crystallized only upon the prohibition of the use of 
force between States. That prohibition was first evinced in the Kellogg-Briand Pact 

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of 1928 60 and reiterated, in clearer and broader terms, in Article 2(4) of the Charter 
in 1945. 61 What preventive war of self-defense was unleashed between 1928 and 
1945? 

Third, the reliance on an extra-Charter customary right of self-defense is also 
counter-logical. After all, the framers of Article 51 introduced significant limi- 
tations on the exercise of self-defense (which is subject to the overriding powers 
of the Security Council). Does it make sense that the most obvious case of self- 
defense — in response to an armed attack — is subordinated to critical conditions, 
whereas self-defense putatively invoked in other circumstances (on a preventive 
basis) is absolved of those conditions? What is the point in stating the obvious (i.e., 
that an armed attack gives rise to the right of self-defense), while omitting any ref- 
erence whatever to the ambiguous conditions of an allegedly permissible preven- 
tive war? Preventive war in self-defense (if legitimate under the Charter) would 
require regulation by lex scripta more acutely than a response to an armed attack, 
since the opportunities for abuse are incomparably greater. Surely, if preventive 
war in self-defense is justified (on the basis of "probable cause" rather than an ac- 
tual use of force), it ought to be exposed to no less — if possible, even closer — su- 
pervision by the Security Council. In all, is this not an appropriate case for the 
application of the maxim of interpretation expressio unius est exclusio alterius 7 . 

Having said all that, it is the considered opinion of the present writer that the 
right to self-defense can be invoked in response to an armed attack as soon as it be- 
comes evident to the victim State (on the basis of hard intelligence available at the 
time) that the attack is in progress. There is no need to wait for the bombs to fall — 
or, for that matter, for fire to open — if a moral certainty exists that the armed at- 
tack has actually begun (however incipient the stage of the attack is at that point). 
The target State can lawfully (under Article 51) intercept the armed attack with a 
view to blunting its edge. 

The best way to illustrate the circumstances in which interceptive self-defense 
can be relied upon is to assume that the Japanese carrier striking force, en route to 
the point from which it mounted the notorious attack on Pearl Harbor in Decem- 
ber 1 94 1 , had been destroyed by American forces before a single Japanese naval air- 
craft got anywhere near Hawaii. 62 If that were to have happened, and the 
Americans would have succeeded in aborting an onslaught which in one fell swoop 
managed to change the balance of military power in the Pacific, it would have been 
preposterous to look upon the United States as answerable for inflicting an armed 
attack upon Japan. 

The proper analysis of the case should be based on three disparate hypothetical 
scenarios (all based on the counter-factual postulate that the Americans knew the 
Japanese plans). 



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The Gulf War: 1990-2004 (And Still Counting) 



The easiest scenario relates to the hypothetical shooting down by the Americans 
of the Japanese aircraft — following detection by radar or other means — in the rela- 
tively short time-frame between their launch from the air carriers and the actual 
execution of the attack mission. Once the launch was completed, there can be no 
doubt that (although theoretically the mission could still be called off) the United 
States as the target State had every right to regard the Japanese armed attack as hav- 
ing commenced and to intercept it. 

The more difficult scenario pertains to a hypothetical sinking of the Japanese 
fleet when poised for the attack on Pearl Harbor but before the launch of the air- 
craft. In the opinion of the present writer, the turning point in the unfolding events 
was the sailing of the Japanese fleet towards its fateful destination (again, notwith- 
standing the possibility of its being instructed to turn back). Had the Americans — 
perhaps through the breaking of Japanese naval codes — been in possession of con- 
clusive evidence as to the nature of the mission in which the Japanese Striking 
Force was already engaged, and had the Americans located the whereabouts of the 
Japanese fleet, they need not have relinquished the opportunity to intercept. 

On the other hand, had the Americans sought to destroy the Japanese fleet be- 
fore it sailed — while it was still training for its mission, war-gaming it or otherwise 
making advance preparations — this would have been not an interceptive (hence, 
lawful) response to an armed attack but an (unlawful) preventive use of force in 
advance of the attack which had not yet commenced. As and of themselves, train- 
ing, war-gaming and advance preparations do not cross the red line of an armed 
attack. 

The crux of the issue, therefore, is not who fired the first shot but who embarked 
upon an apparently irreversible course of action, thereby crossing the legal 
Rubicon. The casting of the die, rather than the actual opening of fire, is what starts 
the armed attack. It would be absurd to require that the defending State should sus- 
tain and absorb a devastating (perhaps a fatal) blow, only to prove an immaculate 
conception of self-defense. As Sir Humphrey Waldock phrased it: "Where there is 
convincing evidence not merely of threats and potential danger but of an attack be- 
ing actually mounted, then an armed attack may be said to have begun to occur, 
though it has not passed the frontier." 63 

Interceptive self-defense is lawful even under Article 51 of the Charter, 64 inas- 
much as it takes place after the other side has committed itself to an armed attack in 
an ostensibly irrevocable way. Whereas a preventive strike anticipates an armed at- 
tack that is merely "foreseeable" (or even just "conceivable"), an interceptive strike 
counters an armed attack which is in progress, even if it is still incipient: the blow is 
"imminent" and practically "unavoidable." 65 To put it in another way, there is 
nothing preventive about nipping an armed attack in the bud. But that bud is an 

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Yoratn Dinstein 



absolute requirement. Self-defense cannot be exercised merely on the ground of 
assumptions, expectations or fear. It has to be demonstrably apparent that the 
other side is already engaged in carrying out an armed attack (even if the attack has 
not yet fully developed). 

Conclusion 

Based on the preceding analysis, it is clear that the Coalition case of taking military 
action against Iraq in 2003 was legally impregnable. Unfortunately, some leading 
spokesmen and supporters of the Administration in Washington — instead of fo- 
cusing (like the British) on the issue of Iraqi "material breach" of the preexisting 
cease-fire — preferred to link the hostilities to preemptive self-defense, thereby ex- 
posing the military operations against Iraq to harsh and legitimate criticism. The 
moral of the story is that, at times, a wrong "spin" of the tool of international law 
can become a dangerous boomerang. 

Notes 

1. SC Res. 660 (Aug. 2, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 1325, id. 
(1990). 

2. SC Res. 82 (June 25, 1950), reprinted in 5 RESOLUTIONS AND DECISIONS OF THE SECURITY 
COUNCIL 4, id. (1950). 

3. SC Res. 661 (Aug. 6, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 1325, 1326- 
1327(1990). 

4. SC Res. 665 (Aug. 25, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 1329, 1329- 
1330(1990). 

5. SC Res. 678 (Nov. 29, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 1565, id. 
(1990). 

6. See Katia Boustany, La Guerre du Golfe et le Systeme d' Intervention Armee de VONU, 28 
Canadian Yearbook of International Law 379, 391-2 (1990). 

7. See Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AMERICAN JOURNAL OF 
International Law 452, 459-460 (1991). 

8. U.N. Charter, reprinted in 9 INTERNATIONAL LEGISLATION 327, 346 (Manley O. Hudson ed., 
1950). 

9. SC Res. 661, supra note 3, at 1326. 

10. JOHN NORTON MOORE, Crisis in the Gulf: Enforcing the Rule of Law 151 ( 1992). 

11. See Alissa Pyrich, United Nations: Authorizations of Use of Force, 32 HARVARD 
International Law Journal 265, 268 (1991). 

1 2. See Christopher Greenwood, New World Order or Old? The Invasion of Kuwait and the Rule 
of Law, 55 MODERN LAW REVIEW 153, 163 (1992). 

13. See Christian Dominice, La Securite Collective et la Crise du Golfe, 2 EUROPEAN JOURNAL OF 
International Law 85, 104 (1991). 

14. SC Res. 687 (Apr. 3, 1991), reprinted in 30 INTERNATIONAL LEGAL MATERIALS 847 (1991). 
The express reference to "a formal cease-fire" appears id. at 854. 

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The Gulf War: 1990-2004 (And Still Counting) 



15. See Sean D. Murphy, Missile Attacks against Iraq, 93 AMERICAN JOURNAL OF 
International Law 471, 472 (1999). 

16. For an overview of the sporadic hostilities between the Coalition and Iraq from 1992 to 
2002, see Andru E. Wall, The Legal Case for Invading Iraq and Toppling Hussein, 32 ISRAEL 
Yearbook on Human Rights 165, 183-187 (2002). 

17. See Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of 
Force against Iraq's Weapons of Mass Destruction, 92 AMERICAN JOURNAL OF INTERNATIONAL 
LAW 724, 726(1998). 

18. SC Res. 688 (Apr. 5, 1991), reprinted in 30 INTERNATIONAL LEGAL MATERIALS 858, 859 
(1991). 

19. See Wall, supra note 16, at 184-187. 

20. See, e.g., Christian Henderson, The Bush Doctrine: From Theory to Practice, 9 JOURNAL OF 
Conflict and Security Law 3, 15-16 (2004). 

21. William H. Taft IV 8c Todd F. Buchwald, Preemption, Iraq, and International Law, 97 
American Journal of International Law 557, 563 (2003). 

22. Foreign and Commonwealth Office Paper, Iraq: The Legal Basis for the Use of Force, 52 
International and Comparative Law Quarterly 812-814 (2003). 

23. See John Yoo, International Law and the War in Iraq, 97 AMERICAN JOURNAL OF 
International Law 563, 566 (2003). 

24. Foreign and Commonwealth Office Paper, supra note 22, at 812-814. 

25. See Wall, supra note 16, at 183. 

26. Regulations Respecting the Laws and Customs of War on Land, Annexed to Hague 
Convention (II) of 1899, July 29, 1899, 22 Stat. 1803, 1 Bevans 247 and Regulations Respecting 
the Laws and Customs of War on Land, Annexed to Convention (IV) Respecting the Laws and 
Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631, reprinted in THE LAWS OF 
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 
55, 66, 77 (Dietrich Schindler 8c Jiri Toman eds., 4th ed. 2004). 

27. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, reprinted in 
1969 United Nations Juridical Yearbook 140, 155. 

28. See Quincy Wright, The Termination and Suspension of Treaties, 61 AMERICAN JOURNAL OF 
International Law 1000, 1003 (1967). 

29. For a detailed analysis of the expression "material breach," see MOHAMMED M. GOMAA, 
Suspension or Termination of Treaties on Grounds of Breach 25-50 (1996). 

30. Vienna Convention, supra note 27, at 156. 

3 1 . ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 238 (2000). 

32. SC Res. 707 (Aug. 15, 1991 ), reprinted in 46 RESOLUTIONS AND DECISIONS OF THE SECURITY 
COUNCIL 22, 23(1991). 

33. SC Res. 1441 (Nov. 8, 2002), reprinted in 42 INTERNATIONAL LEGAL MATERIALS 250, 251 
(2003). 

34. See, e.g., Riidiger Wolfrum, The Attack of September 11, 2001, the Wars against the Taliban 
and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in 
Armed Conflict?, 7 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 1, 15-18 (2003). 

35. Rainier Hofman, International Law and the Use of Military Force against Iraq, 45 GERMAN 
Yearbook of International Law 9, 25-28 (2002). 

36. See Taft 8c Buchwald, supra note 21, at 560-562. 

37. See Michael Byers, Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal 
Change, 11 JOURNAL OF POLITICAL PHILOSOPHY 171, 183 (2003). 



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38. See, e.g., Philippe Weckel, L'Usage Deraisonnable de la Force, 107 REVUE GENERALE DE 
Droit International Public 378, 386 (2003). 

39. It is true that the Coalition of 2003 (still led by the United States) was of a different 
composition compared to the original anti-Iraq array of 1990/1991, but this is largely 
immaterial. Wartime coalitions are not engraved in stone: the Grand Alliance which defeated 
Germany and Japan in World War II underwent even greater permutations within a shorter 
period of time. 

40. See Taft & Buchwald, supra note 21, at 560. 

41. SC Res. 1441, supra note 33, at 251. 

42. SC Res. 678, supra note 5, at 1565. 

43. See Christopher Greenwood, International Law and the Pre-emptive Use of Force: 
Afghanistan, Al-Qaida, and Iraq, 4 SAN DIEGO INTERNATIONAL LAW JOURNAL 7, 3 1-32 (2003). 

44. SCRes. 1483 (May 22, 2003), reprintedin 42 INTERNATIONAL LEGAL MATERIALS 1016, 1017 
(2003). 

45. SC Res. 1511 (Oct. 16, 2003), reprinted in 43 INTERNATIONAL LEGAL MATERIALS 254, id., 
256 (2004). 

46. SC Res. 1546 (June 8, 2004), reprinted in 43 INTERNATIONAL LEGAL MATERIALS 1459, 1462 
(2004). 

47. Annotated Supplement to The Commander's Handbook of the Law of Naval 
OPERATIONS 263 (A.R. Thomas & James C. Duncan, eds., 1999) (Vol. 73, US Naval War College 
International Law Studies). 

48. United States Army, Judge Advocate General's Legal Center and School, Operational Law 
Handbook 75 (2004). 

49. Id. See also ANNOTATED SUPPLEMENT, supra note 47, at 263. 

50. Office of the President of the United States, The National Security Strategy of 
the United States (2002), reprinted in 2002 Digest of United States Practice in 
INTERNATIONAL LAW 947 [hereinafter National Security Strategy]. 

51. See Henderson, supra note 20, at 8-9. 

52. National Security Strategy, supra note 50, at 951-952. 

53. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 102-6 (June 27) 
(merits). 

54. See id. at 103. 

55. See, e.g., MYRES S. MCDOUGAL AND FLORENTINO P. FELICIANO, LAW AND MINIMUM 
WORLD PUBLIC ORDER 232-241 (1961). 

56. Military and Paramilitary Activities, supra note 53, at 347. 

57. U.N. CHARTER, supra note 8, at 331, 343, 347. 

58. GA Res. 3314 (XXIX) (Dec. 14, 1974), paras. 2-4, 29(1) RESOLUTIONS OF THE GENERAL 
ASSEMBLY 142, 143(1974). 

59. U.N. Charter, supra note 8, at 346. 

60. General Treaty for Renunciation of War as an Instrument of National Policy (Aug. 27, 
1928), 94 L.N.T.S. 57. 

61. U.N. CHARTER, supra note 8, at 332. 

62. The Pearl Harbor example was adduced in debates in the United Nations. See MARJORIE M. 
Whiteman, 5 Digest of International Law 867-868 (1965). 

63. C.H.M. Waldock, The Regulation of the Use of Force by Individual States in International Law, 
8 1 RECUEIL DES COURS 451,498(1952). 

64. For support of this view, see MALCOLM N. SHAW, International Law 1030 (5th ed. 2003). 



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65. Cf. Christopher C. Joyner and Michael A. Grimaldi, The United States and Nicaragua: 
Reflections on the Lawfulness of Contemporary Intervention, 25 VIRGINIA JOURNAL OF 
INTERNATIONAL LAW 621, 659-660 (1984-1985). 



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XVI 



The Right of Self-Defense in the Global Fight 

against Terrorism 



Christoph Muller 



The fight against the scourge of terrorism has become a key objective in inter- 
national politics. It has become much more than a pure law enforcement 
task but a political fight in the widest sense that has to draw on all the resources of 
political action, including, if necessary, military options. When the fight against 
terrorism turns into military action abroad, international politics meets interna- 
tional law. The use of military force by a State beyond its borders is governed by in- 
ternational law. Still, given the political depth of the fight against terrorism that 
sometimes seems to acquire existential meaning — is it at all possible to discuss the 
right of self-defense in the global fight against terrorism in purely legal terms? 
When each and every legal argument may assume major political significance, are 
we still talking about international law or do we discuss politics? Apparently both. 
This article seeks to shed some light not only on the law but also on the dynamic in- 
terrelationship between State policies on the use of force and the evolution of the 
law: the historical background of the UN Charter law, the law as it stands, and the 
rift between world order as designed by the UN Charter and the real state of affairs. 
In conclusion, it will be argued that the political and legal benefits flowing from a 



* Deputy Director General for Legal Affairs, German Foreign Office, Berlin. By reflecting 
personal views of the author, the article goes beyond stating the German Government's position. 



The Right of Self -Defense in the Global Fight against Terrorism 

strengthening of the UN Charter's framework on the use of force clearly outweigh 
the risks incurred by letting that framework fall into desuetude. 

Historical Background 

Ninety years ago, in June 1914, a terrorist organization code-named "Black Hand" 
unsuccessfully tried to stop an assassination plot that it had earlier supported by 
supplying arms, training and money. On the 28th of June, one of the terrorists nur- 
tured by "Black Hand" carried out the plot. He assassinated the crown prince of the 
Austro-Hungarian Empire and his wife. 1 

The empire then struck back. By turning against the State of Serbia, the pre- 
sumed home base of "Black Hand," Austria-Hungary set into motion a world war 
and its own demise. It would seem to be an interesting, even though academic 
question how to qualify the Austro-Hungarian action in the context of the contem- 
porary debate. Of course, given the mood of the day and the European system of 
trip-wire alliances, World War I was probably inevitable anyway. Still, the story of 
June 1914 seems a useful reminder of the deeper layers of terrorism's destructive 
power, a destructive potential that works indirectly, through the poisoning of in- 
ternational relations, and may even trigger wars that were not intended to happen 
the way they did. 

The major lesson of the First World War was related to the broader question of 
legality and legitimacy of the use of force in international relations. After the horror 
experienced by the killing of some 10 million people, a new question was being 
asked: could it be that something was fundamentally wrong with a world in 
which any nation with the power to use force felt free to do so? President 
Woodrow Wilson of the United States tried to initiate a revolutionary alternative: 
an international organization of global reach, tying all States together in a system of 
collective security. He was ahead of his time; the US Senate did not follow his lead. 
The truncated League of Nations, as it did emerge, was too weak to deal effectively 
with the blows from Japan, Germany, and Italy. 2 World War II followed, more 
than 50 million people were killed, this time the majority of victims being civilians. 
During the war, it was again an American president who took the lead in starting a 
new search for an organizational framework to create world order. 3 These efforts 
resulted in the Charter of the United Nations, which sets forth the basic principles 
and rules intended to govern international relations. 

For nearly sixty years, the UN Charter has been the basic legal document for 
public international law. Accordingly, this article will turn to the Charter to try 
and find some answers to the question of how to define the scope of self-defense in 
the fight against terrorism. There is no alternative starting point for finding the 

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Christoph Midler 



applicable rules of international law. Furthermore, there is already evidence that 
legal practice under the Charter is adapting to the new threat. 4 At the same time, a 
lawyer working in the context of international politics has to note, of course, that 
time and again it seems fashionable to put into doubt the whole UN system. 5 It is 
true that the objectives of the United Nations are still far from being met. For 
decades, the Cold War paralyzed the Security Council. Even under the new, 
more favorable conditions existing since the 1990s, the Security Council's record 
in taking effective action has been mixed. To appreciate the United Nations, we 
have to imagine a world without it. 6 After the catastrophic breakdown of the old 
order of nation States in the first half of the 20th century there has never been any 
doubt for post-war Germany that the lead of the American architects of the new 
multilateral order should be followed, and that in addition to a robust defensive 
alliance of the West, an effective global system of collective security and coopera- 
tion must be sought. 

The Law as it Stands 

No other article of the UN Charter plays such a prominent role in the current de- 
bate on the significance of international law for a stable and peaceful world order as 
does Article 51. How is it to be read after the events of September 11, 2001, the sub- 
sequent war in Afghanistan, the United States' presentation of its new security 
strategy in September 2002, and the Iraq war? How is it to be read in the light of the 
threats posed by failing States, the proliferation of weapons of mass destruction 
and international terrorism? Article 51 is the final provision of the UN Charter's 
Chapter VII which sets out the conditions that justify the use of force within the 
system of collective security created by the Charter should there by any threat to 
the peace, breach of the peace or act of aggression. The system of collective security 
is based on the prohibition of the use of force against other States. Only two excep- 
tions to that prohibition are provided for in the Charter: coercive measures that 
must be authorized by the Security Council, and the "inherent" right of individual 
or collective self-defense. The first sentence of Article 51 reads as follows: "Nothing 
in the present Charter shall impair the inherent right of individual or collective 
self-defence if an armed attack occurs against a Member of the United Nations, un- 
til the Security Council has taken measures necessary to maintain international 
peace and security." 

The exercise of the "inherent right of individual or collective self-defence" is 
thus permissible only in the event of "an armed attack . . . against a Member of the 
United Nations." It cannot be invoked when faced with actions that do not reach 
the threshold of an armed attack and it may only be exercised until such time as the 

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The Right of Self-Defense in the Global Fight against Terrorism 

Security Council has taken measures necessary to maintain international peace 
and security. 7 September 1 1 raised the question of whether the right of self-defense 
also applies in the face of terrorist action. The Security Council gave a clear answer 
immediately, on the day following the attack in Resolution 1 368 (200 1 ) 8 and again, 
at the end of the same month, in Resolution 1373 (2001 ). 9 It determined in general 
terms, first, all acts of international terrorism constitute a threat to international 
peace and security, and second, the right of individual or col