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International  Law  Studies 


Volume  80 


Issues  in  International  Law  and  Military  Operations 


Richard  B.  Jaques 
Editor 


Naval  War  College 

Newport,  Rhode  Island 

2006 


International  Law  Studies 


Volume  80 


Library  of  Congress  Cataloging-in-Publication  Data 

Issues  in  international  law  and  military  operations  /  Richard  B.  Jaques,  editor, 
p.  cm.  --  (International  law  studies  ;  v.  80) 

Includes  bibliographical  references  and  index. 

ISBN-13:  978-1-884733-39-0 

ISBN-10:  1-884733-39-5 

1.  War  (International  law)  2.  Humanitarian  law.  3.  War,  Maritime  (International 
law)  4.  War  on  Terrorism,  2001— Law  and  legislation.  5.  Iraq  War,  2003.  I.  Jaques, 
Richard. 

KZ6385.I87  2006 
341.6-dc22 

2006025972 


Table  of  Contents 


Issues  in  International  Law  and  Military  Operations 


Foreword ix 

Introduction xi 

Preface xiii 

PART  I:  JUS  AD  BELLUM:  IRAQ 

I  Iraq's  Transformation  and  International  Law 

Ruth  Wedgwood 3 

II  Iraq  and  the  Law  of  Armed  Conflict 

Thomas  M.  Franck 15 

III  International  Law  and  the  2003  Campaign  against  Iraq 

Nicholas  Rostow 21 

PART  II:  Air  and  Land  Warfare  Operational  Challenges 

IV  Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

Yoram  Dinstein 43 

V  Query:  Is  There  a  Status  of  "Unlawful  Combatant?" 

Marco  Sassdli 57 

VI  Special  Forces'  Wear  of  Non-Standard  Uniforms 

W.HaysParks 69 

VII  Strategic  Targeting  and  International  Law:  The  Ambiguity  of  Law 

Meets  the  Reality  of  a  Single-Superpower  World 
JefferyK.  Walker 121 


VIII  Air  Power,  Accuracy,  and  the  Law  of  Targeting: 

Why  No  Brave  New  World? 
Adam  Roberts 133 

IX  Targeting  and  Humanitarian  Law:  Current  Issues 

Michael  N.  Schmitt 151 

X  Coalition  Operations  and  the  Law 

M.  H.  MacDougall 195 

PART  III:  Maritime  Operational  Challenges 

XI  Current  Legal  Issues  in  Maritime  Operations:  Maritime  Interception 

Operations  in  the  Global  War  on  Terrorism,  Exclusion  Zones, 
Hospital  Ships  and  Maritime  Neutrality 
Wolff  Heintschel  von  Heinegg 207 

XII  The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

Dale  Stephens 235 

XIII  Military  Activities  in  the  Exclusive  Economic  Zone:  Preventing 

Uncertainty  and  Defusing  Conflict 
Hyun-SooKim 257 

XIV  The  Unique  and  Protected  Status  of  Hospital  Ships  under  the  Law  of 

Armed  Conflict 
D.  L.  Grimord  &  G.  W.  Riggs 263 

PART  IV:  THE  FUTURE  OF  LAW  IN  WAR: 
Different  Application  or  Different  Rules? 

XV  Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror:  Experience 

of  the  Israeli  Army  in  Jenin  and  Bethlehem  (April-May  2002) 
Alan  Baker 273 

XVI  International  Humanitarian  Law: 

Should  It  Be  Reaffirmed,  Clarified  or  Developed? 
Jean-Philippe  Lavoyer 287 


VI 


XVII  Enforcing  the  Law 

John  F.  Murphy  .  . 311 

XVIII  Protection  of  Cultural  Property:  The  Legal  Aspects 

JanHladik 319 

XIX  The  Law  of  Armed  Conflict  and  the  War  on  Terrorism 

David  E.  Graham 331 

XX  Interoperability  and  the  Atlantic  Divide: 

A  Bridge  over  Troubled  Waters 
Charles  H.  B.  Garraway 337 

Appendix — Contributors 357 

Index 369 


VII 


Foreword 


The  International  Law  Studies  "Blue  Book"  series  was  initiated  by  the  Naval 
War  College  in  1901  to  publish  essays,  treatises  and  articles  that  contribute 
to  the  broader  understanding  of  international  law.  This,  the  eightieth  volume  of 
the  series,  contains  edited  proceedings  of  a  colloquium  entitled  Current  Issues  in 
International  Law  and  Military  Operations  hosted  here  at  the  Naval  War  College  on 
June  25-27,  2003.       ' 

The  colloquium's  mission  was  to  examine  the  latest  developments  in  inter- 
national law,  drawing  on  issues  from  then  ongoing  military  operations.  In  do- 
ing so,  the  colloquium  participants  focused  on  the  applicability  and  operation 
of  the  law  of  occupation,  the  perspective  of  military  judge  advocates  at  the  stra- 
tegic, operational,  and  tactical  levels  in  Operation  Iraqi  Freedom,  maritime  op- 
erations issues  in  armed  conflict  and  military  operations  other  than  war, 
including  navigational  freedoms  in  international  waters  and  airspace,  the  in- 
creasingly complex  considerations  of  combatant  status  and  coalition  opera- 
tions, developments  in  the  laws  of  targeting  and  information  operations,  and 
challenges  faced  in  the  interpretation  and  application  of  the  law  of  armed  con- 
flict in  current  and  future  conflicts. 

Renowned  international  scholars  and  practitioners,  both  military  and  civil- 
ian, representing  government  and  academic  institutions  from  throughout  the 
world  participated  in  the  colloquium,  which  was  co-sponsored  by  the  Strategic 
Studies  Institute  of  the  United  States  Armv  War  College  at  Carlisle  Barracks; 
the  Israeli  Yearbook  on  Human  Rights,  Tel  Aviv,  Israel;  the  United  States  Coast 
Guard  Academy;  the  Francis  Lieber  Society  of  the  American  Society  of  Interna- 
tional Law;  the  Judge  Advocate  General  of  the  Navy;  the  Naval  War  College 
Foundation;  the  Pell  Center  for  International  Relations  and  Public  Policy  of 
Salve  Regina  University,  Newport,  Rhode  Island;  and  the  International  Law 
Department  of  the  Center  for  Naval  Warfare  Studies,  United  States  Naval  War 
College. 


On  behalf  of  the  Secretary  of  the  Navy,  the  Chief  of  Naval  Operations,  and  the 
Commandant  of  the  Marine  Corps,  I  extend  to  all  the  co-sponsors  and  contribut- 
ing authors  our  thanks  and  gratitude  for  their  invaluable  contributions  to  this  pro- 
ject and  to  the  future  understanding  of  the  laws  of  war. 


J.  L.  SHUFORD 

Rear  Admiral,  U.S.  Navy 

President,  Naval  War  College 


Introduction 


Operation  Iraqi  Freedom,  in  which  the  United  States  and  her  coalition  part- 
ners conducted  military  operations  for  the  express  purpose  of  removing 
Saddam  Hussein  from  power  in  Iraq,  implicated  a  host  of  international  law  issues, 
in  both  theorv  and  practice.  Many  of  those  issues  are  still  being  debated  today, 
more  than  3  years  later.  Was  Operation  Iraqi  Freedom  undertaken  consistent  with 
international  norms  on  the  use  of  force?  Are  tarsetins:  norms,  as  traditionally  un- 
der stood,  adequate  in  the  age  of  precision  strategic  strike  capability  and/or  against 
an  enemy  who  intentionally  fails  to  distinguish  himself  from  civilians?  Or  who 
purposefully  uses  protected  places  from  which  to  launch  attacks?  Or  who  pur- 
posely attacks  protected  persons,  places  and  objects?  How  do  States  reconcile  com- 
peting views  of  what  the  law  of  war  is,  or  requires,  or  forbids,  in  dealing  with 
captured  foes?  Discussing  and  debating  these  questions,  and  others  raised  by  char- 
acteristics of  the  conflict  with  "rogue"  nations  and  international  terrorists,  was  the 
purpose  of  the  colloquium  that  this  book.  Volume  80  of  the  International  Law 
Studies  ("Blue  Book"  I  series,  memorializes. 

In  June,  2003,  the  Naval  War  College  conducted  a  symposium  entitled  Current 
Issues  in  International  Law  and  Military  Operations.  The  colloquium,  organized  by 
the  International  Law  Departments  Commander  Don  Rose,  US  Coast  Guard,  was 
made  possible  with  the  support  of  the  Strategic  Studies  Institute  of  the  United 
States  Army  War  College  at  Carlisle  Barracks;  the  Israel  Yearbook  on  Human 
Rights,  Tel  Aviv,  Israel;  the  United  States  Coast  Guard  Academy;  the  Francis  Lieber 
Society  of  the  .American  Society  of  International  Law;  the  Judge  Advocate  General 
of  the  Navy;  the  Naval  War  College  Foundation;  and  the  Pell  Center  for  Interna- 
tional Relations  and  Public  Policy  of  Salve  Regina  University,  Newport,  Rhode  Is- 
land. Without  the  support  and  assistance  of  these  organizations,  the  colloquium 
would  not  have  been  the  success  that  it  was.  Their  support  is  greatly  appreciated. 

Two  members  oi  the  International  Law  Department  served  as  primary  editors 
of  this  volume.  Lieutenant  Colonel  Jim  Friend,  JA,  L*S  Army,  initially  performed 
editorial  work  on  this  volume  until  the  exigencies  of  war  intruded  and  he  was 


transferred,  prior  to  his  normal  rotation  date,  to  Kuwait.  Major  Richard  Jaques,  US 
Marine  Corps,  eventually  assumed  these  duties  and  carried  them  through  to  fru- 
ition. Their  dedication  and  perseverance  are  responsible  for  the  production  and 
completion  of  this  excellent  addition  to  the  "Blue  Book"  series. 

A  special  thank  you  is  necessary  to  Rear  Admiral  Rodney  P.  Rempt,  former  Pres- 
ident of  the  Naval  War  College  for  his  leadership  and  support  in  the  planning  and 
conduct  of  the  colloquium. 

The  "Blue  Book"  series  is  published  by  the  Naval  War  College  and  distributed 
throughout  the  world  to  US  and  foreign  military  commands,  academic  institu- 
tions, and  libraries.  This  volume,  entitled  Issues  in  International  Law  and  Military 
Operations  (2003)  to  more  accurately  reflect  the  fact  that  the  perspectives  pro- 
vided at  the  colloquium  depicted  events  as  known  and  perceived  at  the  time,  is 
a  fitting  and  necessary  addition  to  the  series  as  nations  continue  to  wrestle  with  de- 
veloping consensus  on  how  to  best  deal  with  groups  and  tyrants  whose  willful  bel- 
ligerence pose  unacceptable  threats  to  international  peace  and  security. 


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


xn 


Preface 


It  should  be  no  surprise  that,  coming  as  it  did  in  June  2003,  a  colloquium  that 
focused  on  "current"  issues  in  international  law  and  military  operations 
would  by  necessity  devote  most  of  its  time  to  the  issues  and  challenges  raised  by 
Operation  Iraqi  Freedom,  the  then  nascent  occupation  of  Iraq,  and  the  develop- 
ing efforts  to  apply  long  established  maritime  rules  and  principles  based  on,  and 
designed  to  respect,  State  sovereignty,  against  a  Stateless  belligerent.  What  may 
be  surprising  (or  perhaps  sadly  ironic)  is  how  current  the  issues,  challenges,  anal- 
yses, positions,  and  arguments  for  and  against  various  interpretations  and/or  ap- 
plications of  international  law  to  military  operations  voiced  in  2003  remain 
today.  This  suggests  that  despite  the  passage  of  three  years,  little  consensus  on  the 
nature,  scope  and  degree  of  the  threat  faced,  and  the  appropriate  responses 
thereto,  has  yet  developed. 

Readers  unfamiliar  with  the  International  Law  Studies  ("Blue  Book")  series  may 
wonder  why  a  work  that  largely  captures  the  proceedings  of  a  colloquium  held  in 
2003  is  only  now,  in  2006,  rinding  its  way  to  print.  Long-time  supporters  and  con- 
tributors who  have  patiently  anticipated  publication  for  some  time  (especially 
those  who  participated  in  the  colloquium)  may  well  wonder  why  this  volume  does 
not  serve,  as  previous  volumes  have,  to  fully  capture  all  speaker  and  panelist  com- 
ments and  audience  discussion  or  reflect  the  order  in  which  those  comments  and 
discussions  occurred.  To  both  groups  of  readers  an  explanation  is  warranted,  if  for 
no  other  reason  than  to  ensure  that  those  deserving  of  credit  in  making  this  book  a 
reality  receive  their  due. 

For  reasons  of  detail  that  are  unnecessary  here,  most  of  the  record  of  this  collo- 
quium was  not  available  to  the  editors  of  this  publication.  Compounding  this 
problem  was  the  fact  that  the  first  two  assigned  editors  found  their  tenure  in  the  In- 
ternational Law  Department  cut  short  or  interrupted  by  the  exigencies  of  war.  In 
significant  portions,  this  work  largely  reflects  an  effort  starting  some  18  months  af- 
ter the  event  to  recreate  the  colloquium  and  capture  key  portions  of  it. 


Typically,  "Blue  Books"  that  serve  as  a  record  of  colloquium  proceedings  will 
reflect  the  order  in  which  the  panel  discussions  occurred.  In  this  case,  however, 
because  it  was  impossible  to  recreate  the  "give  and  take"  of  panelists  with  each 
other  and  with  the  audience,  and  because  not  all  the  panels  could  be  included  in 
the  book,  the  most  logical  arrangement  was  to  group  articles  within  the  major 
subject  areas  addressed  (the  legality  and  legitimacy  of  Operation  Iraqi  Free- 
dom, the  tactical  and  operational  challenges  in  air  and  land  warfare,  the  wide 
variety  of  issues  affecting  operations  in  the  maritime  domain,  and  the  question 
of  how  the  law  of  armed  conflict  needs  to  develop  to  adequately  address  current 
and  anticipated  challenges)  as  reflected  in  the  Table  of  Contents.  Articles  in 
which  the  author  refers  specifically  to  another  article  are  grouped  within  the 
same  major  category. 

I  also  decided  to  eschew  the  past  practice  of  attempting,  in  this  Preface,  to  sum- 
marize the  key  points  of  each  article  around  a  central  theme  or  themes.  The  choice 
of  articles  and  organization  of  the  book  itself  essentially  reflect  my  perspective  on 
the  key  points  and  themes.  Moreover,  readers  will  find  it  of  much  more  value  to  de- 
cide for  themselves  what  arguments  and  positions  set  forth  herein  have  merit.  The 
only  suggestion  I  offer  the  reader  in  making  those  assessments  is  to  remember  that 
whatever  the  law  of  armed  conflict  was  in  the  past,  is  today,  or  will  be  in  the  future, 
it  is  not  merely  a  subject  for  a  panel  discussion  or  an  academic  debate  or  an  intellec- 
tual position.  For  those  affected  by  it,  it  is  a  matter  of  life  or  death. 

As  with  all  works  such  as  this,  a  number  of  individuals  were  involved  in  the 
publication  process.  Thanks  must  go  to  Lieutenant  Colonel  Jim  Friend,  JA,  US 
Army,  the  first  editor,  who  initiated  this  effort.  A  special  note  of  thanks  is  due  to 
Mr.  Matthew  Cotnoir  in  the  Naval  War  College's  Desktop  Publishing  office.  He 
served  as  the  "point  man"  in  converting  draft  after  draft  into  publishable  form, 
tirelessly  and  patiently  enduring  numerous  rewrites,  reconfigurations,  and  re- 
edits  without  complaint.  Thanks  must  also  go  to  the  contributors  to  this  volume 
long  after  the  fact,  for  their  great  patience  and  understanding  over  the  last  three 
years.  In  particular,  a  debt  of  thanks  is  owed  to  Professor  Wolff  Heintschel  von 
Heinegg  and  Colonel  Charles  H.  B.  Garraway,  CBE,  British  Army  (Ret.),  both  of 
whom  served  as  the  Naval  War  College's  Charles  H.  Stockton  Professor  of  Inter- 
national Law  during  my  tenure,  and  both  of  whom  are  contributors  to  this  vol- 
ume, for  their  knowledge,  expertise,  perspective  on  law  (and,  more  importantly, 
on  life  itself),  and  comradeship. 

Finally,  two  individuals,  for  both  of  whom  the  "Blue  Books"  are  a  labor  of  love, 
deserve  the  lion  share  of  the  credit  for  ensuring  that  this  work  has  come  to  fruition. 
Simply  put,  without  the  leadership  arid  vision  of  Professor  Emeritus  Jack 
Grunawalt  and  the  painstaking  detailed  editing  and  review  of  Captain  Ralph 


xiv 


Thomas,  JAGC,  US  Navy  (Ret.),  both  of  whom  devoted  countless  hours  to  this 
project,  Volume  80  would  still  be  barely  a  work  in  progress.  Even  more,  they  have 
served  as  mentors,  teachers,  advisors,  confidants,  leaders,  and  friends  to  the  under- 
signed in  more  ways  than  can  be  expressed.  By  all  rights,  theirs  should  be  the  names 
printed  on  the  binding  of  this  volume.  For  everything  that  is  good  about  this  book, 
the  credit  is  theirs.  For  everything  that  is  not,  the  blame  is  mine. 


RICHARD  B.  JAQUES 
Major,  US  Marine  Corps 


xv 


PARTI 


JUS  AD  BELLUM:  IRAQ 


I 


Iraq's  Transformation  and  International  Law 


Ruth  Wedgwood1 


There  is  a  great  delight  in  returning  to  the  US  Naval  War  College.  My  time  in 
Newport  as  a  Stockton  Professor  of  International  Law  was  wonderful  in- 
deed. But  few  of  us  at  the  War  College  in  the  academic  term  of  1998-99  could  fore- 
see the  momentous  events  of  the  next  five  years.  No  one  foretold  al  Qaeda's  attacks 
of  September  11,  2001.  And  we  could  not  know  that  the  United  States  and  the 
United  Kingdom,  alongside  their  allies,  would  commit  their  fortune  and  fate  to  in- 
tervene again  in  Iraq,  this  time  to  defeat  Saddam's  Baathist  regime.  But  trouble  was 
brewing,  even  in  1998.  At  the  time,  Saddam  limited  and  then  excluded  United  Na- 
tions weapons  inspectors,  and  the  allies  conducted  a  limited  military  campaign  in 
Operation  Desert  Fox.  A  broad  debate  on  the  use  of  force  began  to  reenter  the  pub- 
lic square — -when  and  on  what  authority  military  force  could  be  used  to  compel 
Iraq's  compliance  with  post-Gulf  War  disarmament  obligations. 

In  the  immediate  moment,  we  are  in  the  midst  of  Operation  Iraqi  Freedom. 
Faced  with  Saddam  Hussein's  continued  intransigence  in  accounting  for  his  weap- 
ons programs,  in  March  2003  the  United  States  and  its  coalition  forces  mounted  a 
fast-moving  ground  campaign  against  the  Baathist  regime,  and  quickly  reached 
Baghdad.  Public  conversation  has  again  focused  on  important  issues  of  interna- 
tional law,  including  standards  for  the  use  of  force,  the  role  of  the  Security  Council, 
the  methods  of  enforcing  disarmament  obligations,  and  the  claims  of  humanitar- 
ian intervention.2  But  I  will  concentrate  here  on  the  practical  problems  and  the  law 
governing  occupation  and  reconstruction. 


Iraq's  Transformation  and  International  Law 


Our  panel  today  is  graced  by  its  commentators.  Professor  Thomas  Franck  is  a 
profound  scholar  on  whose  foundational  work  all  of  us  have  built.  Dr.  Nicholas 
Rostow  has  a  twenty- five-year  career  of  dedicated  public  service,  including  work  as 
the  legal  adviser  to  the  National  Security  Council  and  as  general  counsel  to  the  US 
Mission  to  the  United  Nations.  I  should  be  providing  comments  on  their  views, 
and  not  the  reverse. 

Let  me  start  with  a  speculation  on  the  more  general  implications  of  the  current 
conflict  for  Iraq  and  the  Middle  East.  It  is  a  cause  for  celebration  to  see  that  Saddam 
Hussein  is  gone.  Not  even  the  most  vocal  critics  of  the  war  have  suggested  that 
Saddam  should  be  restored  to  power.  No  one  argues  that  the  Baathist  dictatorship 
reflected  the  free  will  of  the  Iraqi  people.  Saddam  Hussein  was  a  callow  and  cruel 
leader,  and  the  allied  intervention  toppled  an  authoritarian  regime  of  unremitting 
harshness.  Saddam  used  chemical  weapons  to  attack  Iraq's  Kurdish  villages.  He  at- 
tempted to  destroy  the  Marsh  Shia.  He  was  ruthless  in  suppressing  political  oppo- 
nents. Among  the  supporters  of  Iraqi  sovereignty,  no  one  can  confuse  Saddam's 
regime  with  the  claims  of  democracy. 

The  end  of  Iraq's  Baathist  regime  may  advance  the  Middle  East  peace  process. 
The  roadmap  process  for  Palestinian-Israeli  peace  still  has  only  a  limited  chance  of 
success.  But  Iraq's  threatening  stance  towards  Israel  had  obvious  consequences, 
and  the  end  of  an  aggressive  regime  in  Iraq  may  change  how  Israel  regards  its  secu- 
rity space.  The  Baathists  supported  terrorist  attacks  against  Israel,  through  financ- 
ing and  perhaps  through  training.  In  the  first  Gulf  War,  Saddam  Hussein  launched 
Scud  missile  attacks  against  civilian  centers  in  Israel,  hoping  to  create  a  wider  war. 
The  elimination  of  an  unpredictable  and  looming  threat  to  the  eastern  border  may 
facilitate  crucial  Israeli  concessions  on  the  West  Bank. 

After  September  1 1,  it  is  unacceptable  for  any  country  to  provide  financing  or 
physical  sanctuary  to  international  terrorist  groups.  This  includes  any  insurgent 
group  seeking  to  attack  civilians  as  targets.  The  Security  Council  has  endorsed  new 
standards  for  State  responsibility,  forbidding  any  and  all  assistance  to  international 
terror  groups  in  Resolution  1373.3  Iraq's  financial  and  material  support  for  terror- 
ism contributed  to  the  spoliation  of  Middle  East  politics,  and  removal  of  that  threat 
also  may  produce  salutary  results  for  the  region  as  a  whole. 

One  hopes  that  the  intervention  in  Iraq  will  affect  other  countries  in  the  region 
through  the  example  of  an  emerging  democracy.  Saudi  Arabia  and  Egypt  need  to 
create  some  space  for  popular  voice  and  competition  in  their  politics.  Iraq  may 
demonstrate,  if  things  go  well,  that  there  can  be  a  secular,  prosperous,  heteroge- 
neous State  in  the  region  under  a  democratic  government.  Support  for  a  new  and 
moderate  democratic  State  should  enjoy  support  from  both  sides  of  the  aisle  in 
American  politics.  The  long-term  goals  of  democracy  are  a  realist's  agenda,  as  well 


Ruth  Wedgwood 


as  an  idealist's  hope.  Harnessing  the  energies  and  ambitions  of  people  who  have 
been  excluded  from  governance  is  one  of  the  elements  of  real  power.  And  the  claim 
that  totalitarian  repression  is  the  only  way  to  preserve  stability  deserves  to  be  dis- 
proved. Iraq  is  a  resource-rich  country,  and  maybe  in  a  better  potential  position  to 
demonstrate  that  a  modern  democracy  can  work,  than  impoverished  States  such  as 
Afghanistan  or  East  Timor  or  other  economically  desperate  places  where  the 
United  Nations  has  intervened. 

With  respect  to  weapons  of  mass  destruction  (WMD),  we  should  recall  the  imme- 
diate purpose  of  the  Iraqi  intervention.  At  the  time  of  the  first  Gulf  War,  Saddam  had 
embarked  on  ambitious  programs  to  develop  nuclear  weapons,  produce  chemical 
weapons,  and  manufacture  biological  weapons.  After  he  invaded  Kuwait,  he  at- 
tempted to  speed  up  the  production  of  a  nuclear  bomb.  When  coalition  troops  drove 
him  out  of  Kuwait,  and  had  the  Republican  Guard  on  the  run,  Saddam  agreed  to 
stringent  and  unique  conditions  as  part  of  the  cease-fire.  Under  Security  Council 
Resolution  687,4  as  a  condition  of  the  ceasefire,  Iraq  was  required  to  shut  down  its 
programs  to  develop  weapons  of  mass  destruction  and  medium-range  or  long-range 
missiles,  and  to  do  so  in  a  transparent  way.  Resolution  687  placed  the  burden  of 
proof  on  Iraq  to  demonstrate  the  dismantling  of  these  weapons  programs,  as  well  as 
the  destruction  of  components  and  precursors,  and  this  burden  of  proof  did  not 
change  during  the  next  decade.  But  to  the  great  surprise  of  the  allies,  Baghdad  re- 
fused to  account  for  the  programs  of  WMD  development,  defying  the  demand  for 
verifiable  destruction  of  weapons  components  under  the  UN  resolution. 

The  predicate  for  allied  intervention  in  2003  was  "smoking  documents" — not 
"smoking  weapons."  Iraq  was  in  the  midst  of  active  nuclear,  chemical,  and  biologi- 
cal weapons  programs  at  the  close  of  the  first  Gulf  War,  and  was  required  to  show 
how  and  when  they  would  be  abandoned.  Even  in  the  last  Iraqi  declaration  to  the 
United  Nations  filed  in  December  2002,  Baghdad  failed  to  give  a  plausible  account 
of  its  weapons  inventories  and  their  disposition.  It  refused  to  allow  weapons  scien- 
tists to  be  interviewed  outside  the  country.  Ambassador  Hans  Blix  opposed  any 
military  intervention,  at  least  at  that  time,  but  as  executive  director  of  the  UN 
Monitoring,  Verification  and  Inspection  Commission  (UNMOVIC),  he  acknowl- 
edged the  unsatisfactory  character  of  Iraq's  continued  game  of  hounds  and  hares. 
In  the  world  after  September  11,  accounting  for  WMD  inventories  and  their  re- 
quired destruction  is  not  an  optional  matter. 

Even  after  the  retreat  of  Saddam's  forces,  the  continuing  war  in  the  streets  of 
Baghdad  and  elsewhere  in  the  Sunni  triangle  has  presented  difficult  problems  for 
the  United  States  and  coalition  forces  in  Iraq.  Saddam  has  gambled  that  the 
Baathists  can  return  to  power  by  continuing  to  inflict  damage  on  the  allied  forces 
and  the  Iraqi  people.  He  has  counted  on  a  version  of  the  "Somalia  syndrome" — an 


Iraq's  Transformation  and  International  Law 


exhaustion  of  the  United  States'  political  will  to  continue.  He  looks  forward  to  an 
imagined  moment,  based  on  the  example  of  Vietnam,  when  we  will  simply  with- 
draw, whether  or  not  the  military  and  security  forces  of  a  democratic  Iraq  are  ready 
to  take  over  the  fight.  He  predicts  that  we  will  wither,  and  that  the  field  will  be  re- 
opened for  Sunni  and  Baathist  hegemony. 

Overcoming  the  ongoing  insurgency  will  be  a  great  challenge.  It  is  difficult  to 
create  a  new  Iraqi  law  enforcement  capability.  We  have  had  this  same  struggle  in  far 
more  benign  environments,  whether  in  Haiti,  in  Bosnia,  or  in  Panama.  It  has  oc- 
curred every  time  an  existing  authority  is  displaced,  so  it  should  not  be  surprising 
that  we  face  the  issue  again.  To  vet  and  stand  up  a  police  force  that  is  suitably  inde- 
pendent, robust,  and  reliable,  especially  in  a  country  with  ethnic  divisions,  is  not  an 
easy  task.  It  is  crucial  to  have  a  local  face  as  the  intermediary  with  a  large  popula- 
tion. Defeating  an  insurgency  requires  information  and  cooperation  from  local  cit- 
izens. Baathist  retaliation  against  Iraqi  citizens  who  are  seen  as  cooperative  with  the 
new  transition  has  been  ferocious.  Yet  it  is  clear  that  if  the  Sunni  resistance  is  to  be 
defeated,  information  from  Iraqis  about  insurgent  activities  will  be  critical. 

A  second  practical  problem  is  the  wasting  and  destruction  of  critical  infrastruc- 
ture. The  arrival  of  allied  forces  in  Baghdad  was  followed  by  a  rampage.  The  disor- 
der and  debellation  would  not  surprise  UN  veterans  who  saw  the  razing  of  East 
Timor  by  paramilitaries  and  militias,  after  the  UN-organized  vote  for  independ- 
ence. Part  of  the  violence  may  be  the  reaction  of  a  people  whose  political  psyche 
was  battered  by  three  decades  of  suspicion  and  fear.  The  lesson  for  military  force 
structure  and  capabilities  seems  clear.  In  peacekeeping,  over  the  last  15  years,  we 
have  discovered  that  even  if  a  mandate  calls  for  a  limited  peacekeeping  operation, 
forces  must  have  a  robust  capacity  for  peace  enforcement.  Security  environments 
change  too  fast,  and  can  render  under-equipped  forces  helpless  on  the  ground. 
Now,  in  Iraq,  we  see  the  opposite  problem.  In  the  follow-on  to  a  robust  combat  op- 
eration one  needs  a  strong  police  capacity,  with  troops  trained  in  security  opera- 
tions, arrest,  and  the  responsible  processing  of  prisoners.  It  may  no  longer  be  viable 
to  confine  the  functions  of  military  police  to  the  reserve  components  of  the  US 
armed  forces.  This  capability  may  be  needed  in  the  active-duty  force  to  sustain 
such  situations  in  the  future. 

We  also  need  to  be  frank  about  how  long  peacekeeping  operations  will  last, 
whether  in  Bosnia  or  in  Iraq.  The  time  horizon  for  an  international  presence  in 
Bosnia  was  ignored  by  at  least  one  White  House.  An  attempt  at  realism  about  a 
time  horizon  can  improve  our  training  for  the  tasks  at  hand.  For  example,  when  al- 
lied forces  are  called  upon  to  support  local  police  operations,  it  would  be  useful  to 
have  some  language  capability,  to  avoid  operating  in  a  deaf  and  dumb  show.  In 
Iraq,  we  should  seek  to  train  allied  personnel  in  rudimentary  Arabic.  In  the  work  of 


Ruth  Wedgwood 


a  gendarmerie,  it  is  useful  to  know  who  started  a  quarrel,  or  to  solicit  tips  without 
having  a  security  breach  through  an  unknown  interpreter.  Independent  language 
capability  will  usefully  allow  each  allied  unit  to  check  whether  a  local  interpreter  is 
providing  faithful  translations. 

Another  practical  difficulty — and  another  lesson  learned  from  post-conflict 
peacekeeping  missions — is  the  importance  of  quick  and  visible  economic  progress. 
The  slow  decision  and  funding  cycle  of  the  World  Bank  and  other  aid  agencies  is  a 
terrible  obstacle  to  this,  since  the  period  for  formulation,  approval,  and  funding  of 
projects  may  be  two  to  three  years.  "Quick  impact"  projects  are  critical  to  showing 
Iraqi  citizens  that  their  material  lives  can  change  for  the  better.  The  Army  Corps  of 
Engineers  and  other  US  government  components  have  an  important  role  here,  to 
facilitate  the  rebuilding  of  the  national  infrastructure  and  the  jumpstart  of  the 
economy.  Though  freedom  is  a  most  precious  commodity,  a  prolonged  delay  in 
starting  the  economic  recovery  of  Iraq  will  result  in  the  loss  of  goodwill,  and  a 
greater  hesitation  to  embrace  the  transformation  of  Iraqi  political  society. 

The  ultimate  puzzle  is  how  to  substitute  civic  nationalism  for  a  cult  of  personal- 
ity and  ethnic  division.  A  new  set  of  institutions  is  needed  as  the  touchstone  for 
Iraqi  allegiance  and  commitment.  We  faced  similar  challenges  in  post-war  Ger- 
many and  during  the  Cold  War,  though  the  differences  to  be  overcome  in  those 
cases  were  more  singularly  ideological.  The  act  of  voting  and  organizing  a  govern- 
ment can  be  inspiring.  But  there  were  other  important  efforts  in  fighting  fascism 
and  communism;  in  particular,  using  effective  cultural  tools.  Those  days  seem  to 
be  gone.  Fifty  years  ago,  international  funding  for  a  host  of  cultural  and  educa- 
tional projects  was  key  in  restoring  German  political  culture.  We  have  forgotten 
how  to  use  cultural  power  to  stabilize  a  fractious  political  situation. 

And  then  there  is  the  legal  challenge  of  finding  a  framework  that  allows  us  to  ac- 
complish these  worthy  purposes.  Are  the  United  States  and  coalition  forces  in  Iraq 
to  be  considered  under  the  law  as  an  "occupying"  force?  In  Bosnia,  NATO  was  not 
characterized  as  an  occupier.  The  Dayton  Peace  Accords  acknowledged  NATO's 
role  as  a  peacekeeping  force.5  Characterizing  the  presence  of  allied  forces  as  an  in- 
ternational "occupation"  also  would  have  slighted  the  importance  of  Bosnia's  rees- 
tablished civilian  government.  NATO  military  commanders  were  concerned  that 
the  legal  category  of  occupation  presumed  a  degree  of  control  that  might  not  be  re- 
alistic, and  in  particular,  were  aware  that  they  might  not  be  immediately  able  to  ini- 
tiate searches  for  top-level  Serb,  Croat  and  Bosnian  war  criminals,  a  duty  that 
applies  to  occupiers  under  the  Geneva  Conventions.  Rather,  it  was  argued  that 
NATO  served  in  Bosnia  in  the  tradition  of  a  classical  peacekeeping  force,  that  is,  as 
intermediaries  tasked  to  keep  the  opposing  sides  apart. 


Iraq's  Transformation  and  International  Law 


In  Iraq,  with  Saddam  Hussein's  removal,  we  are  once  again  in  an  uncertain  area 
where  international  law  is  asked  to  handle  new  situations.  The  Hague  and  Geneva 
Conventions  may  be  read  to  suppose  that  an  occupying  power  should  leave  intact, 
as  much  as  possible,  the  existing  institutions  of  a  society.  But  Saddam's  political  in- 
stitutions were  savage  and  totalitarian,  and  to  maintain  their  operation  would  pro- 
long a  gross  violation  of  human  rights.  It  is  hard  to  conclude  that  the  Hague  rules  of 
land  warfare  could  be  intended  to  protect  the  Baathists'  violent  monopoly  of  polit- 
ical power  or  to  bolster  Baghdad's  disregard  for  the  Shiite  and  Kurdish  communi- 
ties. Treaty  law  must  be  read  as  part  of  a  legal  landscape  in  which  human  rights  law 
makes  its  own  demands. 

The  United  Nations  also  has  kept  eyes  and  ears,  and  a  voice,  on  the  ground  in 
Iraq,  through  a  special  representative  of  the  UN  Secretary-General.  This  is  Brazil- 
ian diplomat  Sergio  Vieira  de  Mello,  who  has  served  also  as  the  United  Nations 
High  Commissioner  for  Human  Rights  in  Geneva  and  has  worked  in  a  number  of 
senior  United  Nations  positions,  including  as  Transitional  Administrator  in  East 
Timor.  He  can  be  a  vital  link  in  mobilizing  the  UN's  specialized  humanitarian 
agencies,  as  well  as  contributing  to  cooperation  among  competing  Iraqi  factions.6 
In  an  environment  of  confrontation,  the  United  Nations  could  serve  as  a  useful 
symbol  of  multilateral  commitment.  Though  the  military  effort  was  conducted  by 
a  "coalition  of  the  willing,"  the  reconstruction  of  Iraq  has  been  mounted  under  a 
broader  aegis,  in  which  even  countries  opposing  the  war  will  be  invited  to  contrib- 
ute. A  visible  United  Nations  presence  in  Iraq  may  make  it  easier  for  those  coun- 
tries to  participate  in  the  key  tasks  of  reconstruction. 

To  be  sure,  we  have  learned  that  the  United  Nations  does  not  enjoy  automatic 
legitimacy  in  every  situation.  Multilateral  endorsement  is  not  a  respected  or  com- 
prehensible cultural  artifact  in  some  corners  of  the  globe.  This  point  has  been  made 
by  Sir  Brian  Urquhart,  in  a  wonderful  memoir  of  his  dangerous  adventures  during 
the  early  days  of  UN  peacekeeping.7  Sir  Brian  served  as  a  key  aide  to  Dr.  Ralph 
Bunche  and  UN  Secretary-General  Dag  Hammerskjold  in  the  UN  peacekeeping 
mission  in  the  Congo  in  1960. 

Sir  Brian  was  dispatched  to  the  Congo's  Atlantic  port  at  Matadi,  passing 
through  an  area  where  the  Congolese  Army  had  staged  its  mutiny.  He  found  a  train 
to  transport  a  hardy  contingent  of  Moroccan  peacekeepers  and  had  a  UN  flag 
draped  across  the  front  of  the  train.  But  the  UN's  emblem  did  not  have  the  desired 
effect.  The  Congolese,  as  Sir  Brian  reports,  "had  never  heard  of  the  United  Nations. 
'L'ONU?  C'est  quelle  tribu?'  (The  UN?  What  tribe  is  that?)  a  local  Congolese  offi- 
cial inquired." 

So,  too,  we  should  not  assume  that  Sunni  clan  members  living  in  the  Iraqi  city  of 
Tikrit  will  show  any  great  deference  to  the  United  Nations.  The  United  Nations  will 


8 


Ruth  Wedgwood 


be  perceived  as  the  institution  that  helped  to  enforce  weapons  inspections  and  eco- 
nomic sanctions  in  the  1990's.  In  other  quarters  of  Iraq,  the  United  Nations  maybe 
seen  as  the  institution  that  failed  to  protect  the  Kurdish  and  Shiite  communities  af- 
ter the  first  Gulf  War.  This  will  not  enhance  its  local  legitimacy.  Nonetheless,  in  the 
eyes  of  foreign  countries,  the  United  Nations'  presence  may  make  it  easier  to  con- 
tribute to  the  Iraqi  reconstruction  effort. 

It  is  often  said  that  the  law  of  armed  conflict  seeks  to  solve  the  problems  of  the 
last  war — catching  up  with  worthy  innovations  demanded  by  circumstances  on 
the  ground  or  allowed  by  new  technologies.  But  there  are  occasions  when  even 
post-war  rules  fail  to  reflect  important  problems  of  the  most  recent  conflict.  We 
should  direct  a  few  more  words  to  the  problems  of  adapting  the  law  of  occupation 
to  the  project  of  democratic  transformation. 

In  the  aftermath  of  World  War  II,  the  goal  of  the  allied  occupations  was  to  trans- 
form the  militaristic  societies  of  Germany  and  Japan.  Yet  the  1907  Hague  Regula- 
tions Respecting  the  Laws  and  Customs  of  War  on  Land8  were  and  are  still  in  force, 
and  posed  some  problems  even  for  lawyers  in  1945.  The  1949  Geneva  Convention 
IV,9  on  the  protection  of  civilians,  did  not  remedy  these  problems.  Article  43  of  the 
Hague  rules  states  that  the  occupier  should  "take  all  the  measures  in  his  power  to 
restore,  and  ensure,  as  far  as  possible,  public  order  and  safety,  while  respecting,  un- 
less absolutely  prevented,  the  laws  in  force  in  the  country."  Article  64  of  Geneva  Con- 
vention IV  notes  that  "The  penal  laws  of  the  occupied  territory  shall  remain  in 
force,  with  the  exception  that  they  may  be  repealed  or  suspended  by  the  Occupying 
Power  in  cases  where  they  constitute  a  threat  to  its  security  or  an  obstacle  to  the  ap- 
plication of  the  present  Convention."  And  "the  tribunals  of  the  occupied  territory 
shall  continue  to  function  in  respect  of  all  offences  covered  by  said  laws." 

In  Iraq  the  goal  is  to  transform  a  Baathist  culture  of  oppression.  Certainly  that  is 
going  to  require  an  intrusion  into  and  transformation  of  local  law,  mitigated  in 
practice  by  the  democratic  participation  of  Iraqis  and  the  United  Nations,  but 
nonetheless,  a  change  of  local  law  that  might  appear  inconsistent  with  the  thrust  of 
some  Hague  rules  and  Article  64  of  Geneva  Convention  IV. 

Of  course,  even  forces  operating  under  the  mantle  of  "occupiers"  have  powers 
that  could  aid  a  democratic  transformation  of  the  country.  Under  Articles  55  and 
64  of  the  Geneva  Convention  IV,  the  occupier  has  to  provide  for  the  basic  needs  of 
the  population  and  maintain  orderly  government.10  Security  Council  Resolution 
1483  of  May  22,  2003,  enacted  under  Chapter  VII  of  the  UN  Charter,  refers  indi- 
rectly to  the  Coalition  Provisional  Authority  as  a  temporary  governing  body,  pend- 
ing the  organization  of  a  democratic  Iraqi  government.  It  recognizes  "the  specific 
authorities,  responsibilities,  and  obligations  under  applicable  international  law  of 
these  states  [the  United  States  and  United  Kingdom]  as  occupying  powers  under 


Iraq's  Transformation  and  International  Law 


unified  command,"11  as  well  as  calling  on  all  States  "to  assist  the  people  of  Iraq  in 
their  efforts  to  reform  their  institutions  and  rebuild  their  country."12  Maintaining 
orderly  government  and  assisting  the  reform  of  institutions  surely  could  not  in- 
clude restoring  the  chaotic  brutality  of  Baathist  hegemony. 

And  then  there  is  the  interplay  between  the  law  of  occupation  and  human  rights 
law.  Geneva  Convention  IV  was  completed  in  the  same  historical  moment  as  the 
Universal  Declaration  of  Human  Rights.13  One  thus  has  a  strong  reason  to  read  the 
two  instruments  in  harmony.  The  diktat  of  the  Baathist  party  in  Iraq  has  been  a 
daily  repudiation  of  the  principles  of  the  Universal  Declaration  of  Human  Rights. 
To  be  sure,  in  an  earlier  age,  there  was  a  much  greater  acceptance  of  positive  power, 
even  when  exercised  by  undemocratic  regimes.  There  was  less  willingness  to 
openly  test  the  legitimacy  of  State  power  before  respecting  it.  But  the  two-year  span 
of  1948-49  saw  the  anointment  of  both  instruments,  and  it  is  not  unreasonable  to 
read  them  together. 

Perhaps  the  simplest  justification  for  the  democratic  changes  that  will  affect  Iraq 
lies  in  the  sovereignty  of  the  Iraqi  people.  The  United  States  and  its  allies  can  have 
reference  to  the  concurrence  of  the  Iraqi  people,  expressed  through  the  Interim 
Governing  Authority  and  subsequent  representative  institutions.  But  one  hard  les- 
son of  other  peacekeeping  operations  is  that  mechanical  political  choices  can  also 
cement  in  place  an  angry  nationalism.  In  Bosnia,  elections  should  have  been  de- 
layed until  after  1996.  By  holding  early  elections  there,  we  succeeded  in  electing  na- 
tionalist parties  who  could  claim  democratic  provenance  alongside  their  virulent 
nationalism.  In  Iraq,  we  should  not  cement  in  place  the  sectarian  angers  that  we — 
and  the  Iraqi  people — would  ultimately  rather  not  have. 

What  does  one  do  in  peacekeeping  when  confronted  with  a  tendentious  law,  with 
no  other  available?  The  problem  of  a  legal  vacuum  during  occupation  is  not  new.  A 
UN  legal  adviser  has  written  elsewhere  that  it  could  be  handy  to  have  a  temporary 
criminal  code  for  post-conflict  situations,  so  that  peacekeeping  forces  would  have  a 
legal  basis  for  action.14  In  East  Timor,  the  UN  civilian  police  would  arrest  and  release 
those  suspected  of  violent  crimes  in  ongoing  cycles,  because  there  was  no  criminal 
code  under  which  to  hold  and  charge  them.  Nonetheless,  in  addressing  these  prob- 
lems, we  should  not  forget  the  major  justification  for  the  adaptation  and  amendment 
of  prior  Iraqi  law,  including  interim  measures  by  the  Coalition  Provisional  Author- 
ity. The  occupation  of  Iraq  is  meant  to  be  transformational,  to  allow  the  Iraqi  people 
the  benefits  of  democracy  and  modern  human  rights  law,  just  as  the  occupations  of 
Germany  and  Japan  were  transformational.  The  law  of  armed  conflict  will  in  some 
way  have  to  catch  up  to  that. 

There  is  a  long-term  problem  for  American  strategy  in  these  kinds  of  conflicts. 
We  have  been  using  ground  surrogates  in  many  of  our  wars.  In  Bosnia  we  relied 

10 


Ruth  Wedgwood 


upon  the  Croatian  ground  campaign.  In  Afghanistan  we  had  the  Northern  Alli- 
ance. The  US  Secretary  of  Defense  has  the  vision,  which  indeed  I  share,  that  our 
combat  forces  need  to  be  agile  and  mobile,  able  to  get  places  where  there  are  not 
good  airfields  and  good  seaports.  As  a  consequence,  it  maybe  necessary  to  form  al- 
liances of  convenience  in  the  hotspots  where  we  need  to  send  our  forces,  choosing 
the  better  of  the  parties  on  the  ground. 

But  reliance  on  light  and  mobile  forces  poses  a  potential  problem  in  occupation 
and  post-conflict  policing.  When  we  have  succeeded  in  vanquishing  an  adversary, 
we  still  need  a  force  structure  to  carry  out  the  policing  obligations  of  the  Hague  and 
Geneva  Conventions.  The  Geneva  Conventions  require  the  occupier  to  maintain 
orderly  government  and  ensure  that  the  normal  functions  of  government  are  met. 
This  may  be  hard  to  do,  until  and  unless  local  forces  are  trained  and  stood  up. 

The  challenge  for  American  forces  in  the  Iraq  intervention  was  to  move  quickly 
on  the  battlefield,  to  keep  Saddam  Hussein  from  using  any  chemical  weapons  and 
to  prevent  him  from  repeating  the  environmental  attacks  that  he  used  in  the  first 
Gulf  War.  We  must  salute  the  coalition  forces  that  punched  their  way  to  Baghdad 
so  robustly.  But  a  large  ground  presence  will  also  be  needed  in  post-conflict  peace- 
keeping, to  assure  the  police  authority  needed  to  sustain  order.  We  may  look  for  as- 
sistance from  other  countries,  through  the  United  Nations  or  our  own 
coordination.  Yet  in  a  difficult  environment,  a  core  American  presence  may  be  es- 
sential. Thus,  in  such  operations,  we  need  substantial  US  contingents  available  to 
follow  after  the  light  and  mobile  forces  that  vanquish  the  enemy  on  the  battlefield. 

Let  me  mention  Security  Council  Resolution  1483,  and  its  effect  on  the  Iraqi 
economy.15  Economic  sanctions  have  been  lifted.  Oil  can  be  sold  and  efforts  can 
begin  to  repair  refineries  and  distribution  equipment  to  facilitate  petroleum  pro- 
duction. The  resolution  renders  Iraqi  petroleum  products  immune  from  legal  pro- 
ceedings against  them.  Thus,  Iraq  can  sell  its  oil  without  concern  about  a  replevin 
action  in  a  French  port.  Resolution  1483  also  establishes  an  Iraqi  development 
fund.  Frozen  Iraqi  assets  of  the  Baathist  regime  can  be  transferred  to  the  fund,  pro- 
tected by  required  independent  auditing. 

Ultimately,  Iraq  will  face  the  difficult  question  of  how  to  form  a  new  constitu- 
tion and  establish  the  political  legitimacy  of  a  new  government.  The  process  used  in 
South  Africa  at  the  end  of  apartheid  may  provide  a  useful  lesson.  In  that  situation, 
consensus  on  foundational  principles  was  sought,  before  addressing  specific  arti- 
cles of  a  constitution.  An  unanswered  question  is  who  will  participate  in  the  devel- 
opment of  the  constitution.  The  process  of  drafting  a  constitution  requires 
democratic  voice  as  a  foundation  stone. 

There  are  other  crucial  choices  in  the  process  of  constitution-building.  Should 
the  constitution  center  upon  civic  nationalism  or  religious  nationalism?  One 

11 


Iraq's  Transformation  and  International  Law 


American  constitutional  advisor  has  supposed  that  an  Islamic  Republic  is  the  only 
sensible  alternative  for  Iraq.  But  differences  in  the  interpretation  of  Islam  may  cast 
this  as  a  provocative  course  of  action,  rather  than  ameliorative.  The  alternative  is  a 
secular  republic  or  a  secular  republic  that  helps  to  assist  established  religions.  As 
Americans,  with  our  history  of  separation  of  church  and  State,  we  would  be  uneasy 
with  direct  State  support  of  religion.  But  this  is  not  North  America,  and  it  could  be 
an  attractive  alternative  to  the  radical  Islamism  seen  in  some  other  Arab  States. 

There  is  a  crucial  choice  to  be  made  about  federalism — the  degree  to  which  gov- 
erning powers  are  spun  out  to  the  regions.  Certainly  one  way  of  maintaining  peace 
within  Iraq  could  involve  decentralization  of  political  power,  at  least  once  order  is  re- 
stored. Significant  authority  can  be  vested  in  local  government,  in  the  north  for  the 
Kurds  and  in  the  south  for  the  Shia.  This  territorial  federalism  may  approach  a  form 
of  local  autonomy.  The  Kurds  obviously  would  like  nothing  better.  Or  one  could  ex- 
plore a  form  of  so-called  "consociationalism" — a  community-based  method  of  or- 
ganizing political  society,  as  seen  in  Belgium  and  some  other  multiethnic  states. 
There  is  an  economic  caveat,  however.  Many  of  the  petroleum  reserves  of  Iraq  are  lo- 
cated in  Kurdish  areas.  Iraqi  oil  and  development  revenues  cannot  be  claimed  solely 
by  the  Kurds.  They  must  be  a  national  asset.  In  addition,  local  autonomy  cannot  be 
used  as  a  mask  for  ethnic  cleansing  and  forced  relocations. 

Structuring  the  executive  is  a  most  delicate  issue,  after  the  abusive  exercise  of 
power  by  Saddam  Hussein.  The  separate  election  of  an  Iraqi  president  may  afford 
greater  stability,  since  presidential  leadership  will  not  be  immediately  dependent  on 
the  waxing  and  waning  of  coalitions  of  minority  parties  in  the  parliament.  Addi- 
tionally, against  a  history  of  personality-driven  politics  in  Iraq,  a  widely- recognized 
and  democratically-elected  president  may  provide  a  symbol  of  transition  from  the 
totalitarianism  of  Iraq's  past  to  the  democracy  of  the  future. 

Another  difficult  issue  will  concern  the  status  and  role  of  women.  Women  have 
had  a  more  prominent  role  in  Iraq  than  in  some  other  Arab  countries.  Certainly, 
that  prominence  should  continue. 

Finally,  the  role  of  the  armed  forces  is  a  critical  issue  for  the  future  of  Iraq.  The 
Turkish  and  Indonesian  model  in  which  the  armed  forces  have  a  role  in  the  parlia- 
ment is  highly  problematic  for  Iraq,  particularly  measured  against  the  past  and 
Saddam's  declaration  of  war  against  his  own  population.  Nonetheless,  since  Iraq  is 
a  centrifugal  society,  and  since  some  actors  in  the  region  will  be  tempted  to  tear  it 
apart,  one  needs  to  preserve  a  role  for  a  democratic  military  in  which  the  armed 
forces  are  honored,  trusted  and  valued  by  the  State — and  very  firmly  under  the 
command  and  control  of  a  democratic  republic. 

The  Administrator  of  Iraq's  Coalition  Provisional  Authority,  Ambassador  Paul 
Bremer,  has  reemployed  some  portions  of  the  Iraqi  Army  as  an  interim  security 

12 


Ruth  Wedgwood 


force.  There  needs  to  be  Sunni  participation  in  the  new  republic,  rather  than  exclu- 
sion from  all  governmental  institutions.  If  former  government  employees  cannot 
participate,  they  will  provide  a  continuing  source  of  angry  insurgents. 

Constitution  building  will  take  time.  One  wishes  for  a  flourishing  civil  society, 
with  newspapers  and  civic  associations  and  broad  conversation,  alongside  the  pro- 
cess of  transferring  power  to  organized  political  groups.  In  East  Timor,  Sergio 
Viera  de  Mello  contemplated  a  slow  and  gradual  transfer  of  political  power,  be- 
cause there  was  no  trained  administrative  class.  (Under  Indonesian  rule,  most  of 
East  Timor's  managerial  positions  were  filled  by  West  Timorese  or  Jakarta-based 
administrators.)  But  very  quickly,  Jose  Ramos-Horta  and  Bishop  Carlos  Belo,  who 
had  shared  the  1996  Nobel  Peace  Prize,  reminded  the  United  Nations  that  Indone- 
sian rule  should  not  be  replaced  by  practices  that  could  be  misapprehended  as  a 
new  style  of  multilateral  colonialism.  There  was  great  impatience  for  the  visible 
participation  of  the  East  Timorese  in  governance.  I  think  the  same  impulse  will  be 
felt  in  Iraq.  The  key  is  to  find  a  way  in  which  there  is  a  prominent  Iraqi  role  and  yet 
not  allow  this  to  develop  into  crony  capitalism  or  nationalist  hegemony. 

In  conclusion,  one  can  modestly  admit  that  bundles  of  legal  rules  will  not  be  the 
determining  factor  in  the  immediate  days  ahead  and  in  the  development  of  a  viable 
democratic  governing  structure  in  Iraq.  A  successful  transition  depends  on  respect 
for  the  principles  and  values  of  Hague  and  Geneva  law,  while  at  the  same  time,  re- 
establishing a  civic  culture  after  thirty  years  of  tyranny.  Although  there  are  many 
hurdles  to  overcome,  both  by  the  United  States  and  its  coalition  partners  and  by 
the  Iraqis  themselves,  I  am  optimistic  that  at  the  end  of  the  day  we  will  see  a  demo- 
cratic and  prosperous  Iraq. 

Notes 

1.  Edward  B.  Burling  Professor  of  International  Law  and  Diplomacy  at  the  School  of  Advanced 
International  Studies,  Johns  Hopkins  University,  in  Washington,  D.C. 

2.  See,  e.g.,  Ruth  Wedgwood,  Legal  authority  exists  for  a  strike  on  Iraq,  FINANCIAL  TIMES 
(London),  Mar.  14, 2003,  at  19;  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  (1998). 

3.  S.C.  Res.  1373,  U.N.  Doc.  S/RES/1373  (Sept.  28,  2001). 

4.  S.C.  Res.  687,  U.N.  Doc.  S/RES/687  (Apr.  3,  1991). 

5.  General  Framework  Agreement  for  Peace  in  Bosnia  and  Herzegovina,  Annex  1A,  Dec.  14, 
1995, 35  International  Legal  Materials  75, 92  (1996),  available  at  http://wwwl.umn.edu/ 
humanrts/icty/dayton/daytonannexlA.html. 

6.  Editor's  note:  On  August  19,  2003,  Sergio  Vieira  de  Mello  was  killed  in  an  insurgent  bombing 
of  the  UN  Headquarters  in  Iraq. 

7.  Brian  Urquhart,  A  Life  in  Peace  and  War  149  (1987). 


13 


Iraq's  Transformation  and  International  Law 


8.  Hague  Convention  (IV)  Respecting  the  Laws  and  Customs  of  War  on  Land,  Annex: 
Regulations  Respecting  the  Laws  and  Customs  of  War  on  Land,  Oct.  18,  1907,  2  AMERICAN 
Journal  of  International  Law  (1908)  Supplement  90,  reprinted  in  Documents  on  the 
LAWS  OF  WAR  69  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000). 

9.  Geneva  Convention  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,  supra  note  8,  at  301. 

10.  Id.,  art.  55,  at  319  ("To  the  fullest  extent  of  the  means  available  to  it,  the  Occupying  Power 
has  the  duty  of  ensuring  the  food  and  medical  supplies  of  the  population  . . .");  id.,  art.  64,  para.  2, 
at  322  ("The  Occupying  Power  may  .  .  .  subject  the  population  of  the  occupied  territory  to 
provisions  which  are  essential  to  enable  the  Occupying  Power  to  fulfill  its  obligations  under  the 
present  Convention,  to  maintain  the  orderly  government  of  the  territory. . . ."). 

11.  S.C.  Res.  1483,  preamble,  U.N.  Doc.  S/RES/1483  (May  22,  2003). 

12.  Id.,  operative  paragraph  1  ("Security  Council . . .  Appeals  to  Member  States  and  concerned 
organizations  to  assist  the  people  of  Iraq  in  their  efforts  to  reform  their  institutions  and  rebuild 
their  country,  and  to  contribute  to  conditions  of  stability  and  security  in  Iraq  in  accordance  with 
this  resolution"). 

13.  Universal  Declaration  of  Human  Rights,  G.A.  Res.  217A,  at  71,  U.N.  GAOR,  3d  Sess.,  1st 
plen.  mtg.,  U.N.  Doc.  A/810  (Dec.  12,  1948). 

1 4.  Hans- Jorg  Strohmeyer,  Collapse  and  Reconstruction  of  a  Judicial  System:  The  United  Nations 
Missions  in  Kosovo  and  East  Timor,  95  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  46  (2001 ). 

15.  S.C.  Res.  1483,  supra  note  1 1. 


14 


II 


Iraq  and  the  Law  of  Armed  Conflict 


Thomas  M.  Franck1 


The  law  of  armed  conflict  is  generally  understood  to  pertain  to  the  rules  gov- 
erning the  conduct  of  war,  the  jus  in  hello.  Superior,  and  antecedent  to  it, 
however,  is  the  jus  ad  bellum,  the  law  pertaining  to  the  initiation  of  war.  A  war,  even 
when  fought  in  accordance  with  the  letter  of  the  jus  in  bello,  will  in  no  way  be  legiti- 
mate if  the  conflict  was  initiated  in  violation  of  the  jus  ad  bellum.  So,  first  things 
first.  Was  the  war  in  Iraq  undertaken  in  compliance  with  the  law  governing  re- 
course to  force?  If,  as  I  believe,  the  answer  to  that  question  is  "probably  not,"  then 
the  war  could  not  have  been  fought  in  accordance  with  the  law  of  armed  conflict 
because  the  lawfulness  of  the  conduct  of  hostilities  is  determined  not  only  by  the 
way,  but  also  by  why,  a  war  is  fought. 

The  United  Nations  Charter,  a  treaty  consented  to  by  the  US  Senate  and  ratified 
by  the  president  and  to  which  more  than  190  States  are  parties,  purports  as  its  cen- 
tral undertaking  to  limit  the  grounds  upon  which  States  may  lawfully  have  re- 
course to  force.  Article  2(4)  stipulates  that  parties  shall  "refrain  in  their 
international  relations  from  the  threat  or  use  of  force  against  the  territorial  integ- 
rity or  political  independence  of  any  state."2  With  this  provision,  the  world,  as  it 
emerged  in  1945  from  history's  bloodiest  war  of  aggression,  sought  forever  to  re- 
pudiate the  principle  attributed  by  Thucydides  to  the  Athenians  in  their  conduct 
towards  the  island-State  of  Melos  during  the  Peloponnesian  War  that:  "the  strong 
do  what  they  can  and  the  weak  suffer  what  they  must."3 


Iraq  and  the  Law  of  Armed  Conflict 


The  conflict  Thucydides  describes  is  that  initiated  by  a  highly  cultivated,  rela- 
tively democratic  Athenian  State  against  the  much  smaller  Melian  State,  which  had 
sought  to  remain  neutral  in  Athens'  larger  conflict  with  Sparta.  Athens,  the  histo- 
rian tells  us,  eventually  destroyed  itself  in  a  futile  effort  to  protect  against  every  ma- 
lignant eventuality  by  attacking  and  securing  the  submission  of  every  place  from 
which  danger  might  emanate.  Whether  or  not  one  perceives  a  modern  parallel  in 
these  events,  it  is  amply  clear  that  the  purpose  of  the  world's  most  widely  ratified 
treaty  is  to  repeal  the  vestiges  of  the  Melian  principle,  replacing  it  with  a  strong  rule 
against  the  initiation  of  war. 

The  sole  exception  envisioned  by  the  Charter  is  set  out  in  Article  5 1 :  "Nothing  in 
the  present  Charter  shall  impair  the  inherent  right  of  individual  or  collective  self- 
defence  if  an  armed  attack  occurs. . .  ."4 

Thus  any  examination  of  the  lawfulness  of  US  conduct  in  deploying  force 
against  Iraq  in  the  spring  of  2003  must  begin  by  asking  whether  that  action  was 
congruent  with  the  post-Melian  requirements  of  the  UN  Charter.  If  the  invasion  of 
Iraq  was  nothing  but  an  act  of  self-defense  by  the  United  States  and  the  supporting 
coalition,  or  only  an  exercise  of  the  collective  police-power  that  had  previously 
been  approved  by  the  UN  Security  Council,  then  the  recourse  to  force  would  have 
been  lawful.  The  Charter's  Article  2(4)  no-first-use  pledge  is  clearly  subordinate  to 
the  Article  51 -based  right  of  self-defense  and  also  to  the  authority  of  the  Security 
Council,  set  out  in  Chapter  VII  of  the  Charter,  to  initiate  action  against  a  threat  to 
the  peace.  If  the  2003  invasion  of  Iraq  had  previously  been  authorized  by  the  Secu- 
rity Council,  its  legality  would  be  beyond  question. 

It  is  possible  to  position  the  invasion  of  Iraq  in  either,  or  both,  of  these  exculpa- 
tory contexts,  but  just  barely.  The  argument  that  our  armed  forces,  in  occupying 
Iraq,  have  not  violated  the  Charter  is  not  easily  or  readily  sustained,  despite  the  best 
efforts  of  US  and  British  government  lawyers.  Indeed,  the  deputy  legal  adviser  of 
the  British  Foreign  Office  resigned  rather  than  sign  on  to  London's  official  legal  po- 
sition. As  enunciated  by  US  State  Department  Legal  Adviser  William  Howard  Taft 
IV,  the  argument  has  two  prongs.  The  first  is  that  the  President  may  "of  course,  al- 
ways use  force  under  international  law  in  self-defense."3  The  readily-apparent 
problem  with  that  rationale  is  that,  even  if  it  were  agreed  (as  it  well  might  be)  that 
the  Article  5 1  right  of  self-defense  has  been  interpreted  in  practice  to  include  a  right 
of  action  against  an  imminent  armed  attack,  it  is  difficult  to  fit  the  facts  of  the  situa- 
tion existing  in  March  2003  within  any  plausible  theory  of  imminence.  This  was  a 
time,  after  all,  when  UN  and  International  Atomic  Energy  inspectors  were  already 
actively  conducting  seemingly  unimpeded  searches  for  weapons  of  mass  destruc- 
tion with  the  full  weight  of  Security  Council  resolutions  to  back  them  up.  Nothing 


16 


Thomas  M.  Franck 


in  the  inspectors'  reports  lends  any  credibility  to  the  claim  that  Iraq,  in  the  spring  of 
2003,  posed  any  imminent  threat  of  aggression  to  anyone. 

The  second  prong  of  justification  is  more  sophisticated,  averring  that  the  attack 
on  Iraq  by  the  United  States  and  Britain  had  already  been  pre-authorized  by  the  Se- 
curity Council.  To  sustain  this  assertion,  the  United  States  produced  a  creative,  but 
ultimately  unsustainable  reading  of  three  previous  Security  Council  Resolutions: 
678,  687  and  1441. 6  According  to  Taft,7  Resolution  678,  with  which  the  Council 
had  authorized  the  use  of  force  to  oust  Iraq  from  Kuwait  in  January  of  1991,  was 
kept  in  force  by  Resolution  687  of  April  1991,  which  ended  the  first  Gulf  War  and 
imposed  stringent  disarmament  conditions  on  Iraq.  Taft  maintained  that,  as  Iraq 
had  "materially  breached"  these  obligations,  the  right  to  use  force  had  revived  "and 
force  may  again  be  used  under  UNSCR  678  to  compel  Iraqi  compliance "  More- 
over, Taft  said,  the  Security  Council,  in  its  Resolution  1441  of  November  8,  2002, 
which  had  ordered  the  inspectors  back  into  Iraq,  "had  unanimously  decided  that 
Iraq  has  been  and  remains  in  material  breach  of  its  obligation."  According  to  the 
Legal  Adviser,  Resolution  1441  gave  Baghdad  a  final  opportunity  to  comply,  which 
if  disregarded,  would  constitute  a  further  material  breach.  He  concluded  that  "Iraq 
has  clearly  committed  such  violations  and,  accordingly,  the  authority  to  use  force 
to  address  Iraq's  material  breaches  is  clear."8  Taft 's  British  counterpart  also  argued 
that  Resolution  678  of  November  29, 1991  was  still  effective  to  authorize  "Member 
States  to  use  all  necessary  means  to  restore  international  peace  and  security  in  the 
area"  and  that,  while  that  authorization  had  been  suspended  at  the  end  of  hostili- 
ties in  1991  by  Resolution  687,  it  was  "revived  by  SCR  1441(2002)."9 

Is  this  a  fair  reading  of  the  resolution  that,  in  1991,  first  authorized  the  use  of 
force  by  a  coalition  of  the  willing?  Resolution  678  was  itself  the  culmination  of  a  se- 
ries of  earlier  resolutions  by  which  the  Council  had  responded  to  Iraq's  invasion  of 
Kuwait.  It  called  for  the  immediate  withdrawal  of  the  aggressor,  imposed  manda- 
tory sanctions  and  declared  the  annexation  of  Kuwait  null  and  void.  In  each  in- 
stance, the  Council's  purpose,  evidently,  was  to  roll  back  the  aggression  committed 
by  one  member  against  another.  Only  after  these  measures  failed  to  suffice  did  the 
Council,  acting  under  Chapter  VII  of  the  Charter  "authorize  Member  States  co- 
operating with  the  Government  of  Kuwait ...  to  use  all  necessary  means  to  uphold 
and  implement  [its  earlier  resolutions]  and  to  restore  international  peace  and  secu- 
rity in  the  region. . .  ."10 

Obviously,  it  was  the  restoration  of  Kuwaiti  sovereignty  that  had  motivated  the 
Council  in  1990-91.  That  Resolution  678  incidentally  makes  reference  to  the  resto- 
ration of  "international  peace  and  security  in  the  region"  does  not  connote  some 
expansive  additional  mandate  beyond  that  of  Kuwaiti  liberation.  It  does  not  con- 
tingently license  the  pursuit  of  quite  different  objectives  such  as  "regime  change"  at 

17 


Iraq  and  the  Law  of  Armed  Conflict 


the  sole  discretion  of  individual  members  of  the  coalition.  President  George  Bush 
St.  acknowledged  as  much  in  explaining  why  the  American  military  had  not  pur- 
sued Saddam  Hussein's  forces  all  the  way  back  to  Baghdad.  "The  U.N.  resolutions 
never  called  for  the  elimination  of  Saddam  Hussein"  he  said.  "It  never  called  for 
taking  the  battle  into  downtown  Baghdad."11 

What  Resolution  687  did  do  was  to  establish  intrusive  post-conflict  controls  over 
Iraq  and  to  make  these  mandatory  under  Chapter  VII  of  the  Charter,  subject  to  col- 
lective enforcement  in  the  event  of  non-compliance.  Compliance  monitoring,  how- 
ever, was  to  be  the  domain  of  the  Security  Council  and  its  inspectors.  Baghdad  was 
compelled  to  agree  to  the  verified  elimination  of  its  weapons  of  mass  destruction  and 
of  the  industrial  capacity  to  produce  them,  as  well  as  of  its  medium-  and  long-range 
delivery  systems.12  To  make  sure  this  happened,  the  Council  and  the  UN  Secretary- 
General  were  made  responsible  for  creating  and  supervising  the  inspectors  and  for 
deploying  them,13  and  it  was  to  the  Council  that  Baghdad  was  required  to  certify 
"that  it  will  not  commit  or  support  any  act  of  terrorism  or  allow  any  organization 
directed  toward  commission  of  such  acts  to  operate  within  its  territory. .  .  ."14  To 
clinch  its  continuing  supervisory  role,  Resolution  687  stipulated  that  the  Council 
was  to  "remain  seized  of  the  matter  and  to  take  such  further  steps  as  may  be  re- 
quired for  the  implementation  of  the  present  resolution  and  to  secure  peace  and 
security  in  the  region."15  It  is  not  individual  States  acting  on  their  own  information 
without  authorization  of  the  Council. 

This  does  not  sound  as  if  the  Council  then,  or  thereafter,  intended  to  cede  to  the 
United  States  and  Britain  the  right  to  determine  when  to  use  military  force  in  the 
absence  of  an  (imminent)  armed  attack.  It  does  not  appear  to  delegate  to  individ- 
ual members  of  the  Council  authority  to  determine  the  existence  of  a  material 
breach  or  to  decide  the  appropriate  response.  To  interpret  Resolutions  687  and 
1441  otherwise  would  be  to  imply,  without  further  evidence,  an  intent  of  the 
Council  to  overturn  the  basic  architecture  of  the  Charter  by  authorizing  individual 
members  to  effect  an  unprecedented  and  uncontrolled  derogation  from  the  requi- 
sites of  Article  2(4).  Without  supporting  evidence,  it  would  be  foolhardy  to  make 
such  an  assumption. 

This  difficulty  for  those  arguing  the  legality  of  US  recourse  to  force  is  not  allevi- 
ated by  reference  to  Resolution  1441  of  November  2002,  which  effected  the  return 
of  the  inspectors  to  Iraq.  While  that  resolution  passed  unanimously,  it  achieved 
that  goal  by  resolutely  refusing  to  delegate  to  individual  States  the  authority  to  de- 
cide if  and  when  its  mandate  was  being  violated,  let  alone  what  to  do  about  it.  Most 
members,  in  voting  for  Resolution  1441,  may  have  hoped  there  would  be  no  occa- 
sion to  cross  the  bridge  of  enforcement.  However,  there  is  no  evidence  whatsoever 


18 


Thomas  M.  Franck 


for  the  confident  assertion  that  they  intended  to  authorize  individual  States  to  de- 
cide whether  the  Council  strictures  had  been  violated  and,  if  so,  what  to  do  about  it. 

What,  if  anything,  is  to  be  learned  from  the  consequences  of  this  US  decision  to 
use  force  without  the  requisite  Security  Council  authorization?  This  was  certainly 
not  the  first  time  a  State  had  chosen  to  pursue  what  it  perceived  to  be  its  national  in- 
terest by  reverting  to  such  unilateral  action.  France  and  Britain  in  Suez,  India  in  Goa 
and  Bangladesh,  Tanzania  in  Uganda,  Vietnam  in  Cambodia,  and  even  NATO  in 
Kosovo,  are  but  a  few  of  a  plenitude  of  examples.  Sometimes,  the  unlawful  action 
was  defended  by  lying  about  the  facts,  which,  at  least,  exemplifies  the  compliment 
vice  sometimes  pays  to  virtue.  In  most  instances,  however,  it  was  argued — not  with- 
out reason — that,  by  violating  the  technical  letter  of  the  law,  the  initiator  of  the  use  of 
force  was  preventing  the  occurrence  of  some  far  greater  wrong.  Any  legal  system  will 
take  such  an  argument  into  account.  But  these  are  not  the  justifications  Washington 
is  producing  now  that  the  weapons  of  mass  destruction  have  not  been  discovered 
and  the  link  of  Saddam  Hussein  to  Al  Qaida  remains  unproven.  In  the  wake  of  these 
disappointments  for  those  who  sought  to  justify  this  war  in  traditional  terms  of  self- 
defense,  we  are  now  being  invited  to  draw  more  far-reaching  conclusions  about  a 
need  to  reshape  the  ostensibly  broken  international  system  because  of  its  obstinate 
refusal  to  endorse  our  recourse  to  force.  Some  call  for  the  dismantling  of  the  United 
Nations  as  a  spent  force  vainly  resisting  the  reality  of  American  predominance. 
France,  it  is  said,  needs  to  be  punished  and  Germany  ignored. 

But  these  are  the  wrong  conclusions  to  draw  from  the  Iraq  experience.  Drawing 
the  right  ones  may  have  to  await  further  clarifying  events,  but  a  few  may  be  ven- 
tured tentatively.  One  is  that  the  collective  decision-making  process  of  the  Security 
Council  should  not  be  regarded  as  just  a  hobble  on  the  sole  superpower's  discre- 
tion, but  also  as  an  important  reality  check,  a  way  to  get  important  perspective  that 
may  even  sometimes  save  Washington  from  acting  too  hastily  in  over-reliance  on 
its  own  imperfect  and  sometimes  distorted  vision.  Another  is  that  the  United  States 
needs  the  world,  and  that,  without  its  support  for  projects  important  to  our  na- 
tional interest,  the  successful  pursuit  of  that  interest  may  prove  far  more  elusive 
and  expensive. 

A  final  lesson  is  that  the  rule  of  law  is  not  a  smorgasbord,  where  the  sole  super- 
power is  entitled  to  pick  and  choose  among  its  offerings.  For  example,  the  United 
Nations  has  put  in  place  an  extensive  system  for  preventing  and  monitoring  the 
flow  of  money  to  terrorists.  To  implement  it,  however,  States  must  subordinate 
some  of  their  sovereign  prerogatives  to  an  interstatal  legal  regime.  Why  should 
they?  Very  few  countries  feel  as  directly  threatened  by  terrorism  as  do  we:  not  most 
African  and  Asian  States  and  not  even  the  nations  of  Europe.  If  they  support  us  in 
the  war  on  terrorism,  it  is  not  necessarily  in  their  national  interest  that  they  act  in 


19 


Iraq  and  the  Law  of  Armed  Conflict 


conformity  with  these  new  legal  mechanisms,  for  to  help  the  United  States  as,  for 
example,  the  Government  of  Pakistan  appears  to  be  doing,  is  to  invite  the  terrorists 
to  extend  their  retributive  reach.  That  the  legal  regime  underpinning  the  war  on 
terrorism  nevertheless  enjoys  such  broad  support  of  governments  testifies  to  the 
adherence  of  States  of  diverse  races,  religions,  political  persuasions  and  social  out- 
looks to  the  rule  of  law  that  the  Charter  supremely  exemplifies. 

It  would  be  a  mistake  to  underestimate  the  cost  to  the  culture  of  compliance 
were  the  United  States  to  continue  over-demonstrating  its  entitlement  to 
exceptionalism.  The  war  in  Iraq  was  undertaken  in  what  is  almost  universally  per- 
ceived as  a  serious  violation  of  international  law  and,  thus,  a  weakening  of  all  legal 
regimes'  capacity  to  secure  acquiescent  compliance.  This  deterioration  of  the  legal 
ethos  cannot  be  to  the  longer-term  advantage  of  the  United  States,  whatever  the 
short  term  temptations.  If  it  is  not,  steps  need  to  be  taken  to  mitigate,  not  to  magnify, 
the  damage  done.  In  the  age  of  globalization,  and  globalized  anti-governmental  ter- 
ror, Athens  needs  the  Melians  to  be  willingly  on  its  side. 

Notes 

1.  Professor  Franck  is  Professor  Emeritus  at  New  York  University  School  of  Law. 

2.  UN  Charter,  art.  2(4). 

3.  See  The  Landmark  Thucydides,  A  Comprehensive  Guide  to  the  Peloponnesian  War 
352  (Robert  B.  Strassler  ed.,  1996). 

4.  UN  Charter,  art.  51. 

5.  William  Howard  Taft  IV,  An  Address  to  the  National  Association  of  Attorneys  General  (Mar. 
20,  2003). 

6.  UNSCR678  (Nov.  29,  1990);  UNSCR687  (Apr.  3,  1991);  UNSCR  1441  (Nov.  8,  2002). 

7.  See  Taft,  supra  note  5. 

8.  Id. 

9.  See  Written  Answer  of  the  Attorney  General,  Lord  Goldsmith,  to  a  Parliamentary  Question 
on  the  legal  basis  for  the  use  of  force  in  Iraq,  Mar.  17,  2003  (UK  Foreign  and  Commonwealth 
Office,  ff  2-4. 

10.  UNSCR  687,  supra  note  6. 

1 1 .  Public  Papers  of  the  Presidents,  George  Bush,  1992-93,  Vol.  I,  at  568  (1993). 

1 2.  UNSCR  687,  supra  note  6,  at  5  33. 

13.  /d.,55  9,  10  and  13. 

14.  Id.,  5  32. 

15.  Id. 


20 


Ill 


International  Law  and  the  2003  Campaign 

against  Iraq 

Nicholas  Rostow1 

Introduction 

When,  on  September  12,  2002,  President  George  W.  Bush  called  on  the  UN 
Security  Council  to  enforce  its  binding  resolutions  on  Iraq  and  indicated 
that  the  United  States  was  willing  to  enforce  them  alone  if  need  be,2  one  of  the  ques- 
tions he  put  before  the  world  had  periodically  come  up  in  the  preceding  decade:  was 
it  lawful  for  a  State  or  group  of  States  to  enforce  the  Security  Council  resolutions  on 
Iraq  without  specific  Security  Council  authorization  in  each  case?  Or,  to  put  it  an- 
other way,  "who  decides?"3  The  previous  occasions  when  this  question  was  raised  in- 
volved the  enforcement  in  the  1990s  of  the  No-fly  Zones  by  the  United  States, 
Britain,  and,  for  part  of  the  time,  France  or  larger  scale  attacks  on  Iraqi  military  tar- 
gets as  in  December  1998.4  However  one  frames  this  constitutive  question,  in  each 
case  the  answer  is  that  those  members  of  the  Security  Council  decided. 

Of  course,  actions  are  taken  in  context,  and  the  lawfulness  of  an  action  cannot 
be  assessed  without  examining  its  context.  The  circumstances  of  the  speech,  a  year 
after  the  terrorist  attacks  of  September  11,  2001,  lent  special  urgency  to  the  Presi- 
dent's call.  The  effort  by  Iraq  to  mount  terrorist  attacks  against  the  international 
coalition  formed  in  response  to  the  1990  invasion  of  Kuwait,  Iraqi  support  for  Pal- 
estinian terrorist  attacks  against  Israel,  Saddam  Hussein's  applause  for  the  Septem- 
ber 1 1  attacks  themselves,  and  Iraq's  repeated  efforts  to  obtain  and  then  maintain 


International  Law  and  the  2003  Campaign  against  Iraq 

nuclear,  chemical,  and  biological  weapons  programs  and  capabilities  while  defying 
obligations  stemming  from  the  1991  Gulf  War  formed  the  political  and  legal  envi- 
ronment of  the  2003  military  action. 

On  September  12,  2002,  President  Bush  summarized  the  principal  UN  Security 
Council  resolutions  binding  on  Iraq  and  Iraq's  failure  to  comply  with  them.  He 
said  "  [  t]  he  conduct  of  the  Iraqi  regime  is  a  threat  to  the  authority  of  the  United  Na- 
tions and  a  threat  to  peace Are  Security  Council  resolutions  to  be  honored  and 

enforced  or  cast  aside  without  consequence?"5  He  added  that  the  United  States  had 
the  right  and  indeed  the  obligation  to  enforce  the  law  against  Iraq  and  called  on  UN 
Member  States  to  join  in  doing  so.6 

The  US  view  of  international  law  applicable  to  the  Iraq  case  did  not  and  does  not 
now  enjoy  unanimous  support.  For  example,  Professor  Thomas  Franck  argues 
that,  in  2003,  the  United  States,  Britain,  Australia,  and  others  engaged  in  a  use  of 
force  against  Iraq  not  sanctioned  under  the  UN  Charter.7  He  disputes  the  idea  that 
the  campaign  was  a  lawful  exercise  of  the  international  use  of  force  under  existing 
UN  Security  Council  resolutions  and  general  principles  of  international  law.  In 
fact,  the  arguments  Professor  Franck  disagrees  with  have  merit  and  deserve  elabo- 
ration before  the  invisible  college  of  international  lawyers  renders  its  judgment.8 

The  Legal  Basis  for  the  2003  Campaign  against  Saddam  Hussein 

The  argument  for  the  lawfulness  of  the  2003  campaign  against  Saddam  Hussein's 
government  of  Iraq  is  rooted  in  the  Persian  Gulf  situation  after  August  2, 1990.  The 
argument  concludes  that,  first,  UN  Security  Council  resolutions  and  statements 
from  1990  through  2002  provided  legal  authority  for  the  2003  campaign  and  dem- 
onstrated that,  as  a  legal  matter,  the  1991  Gulf  War  had  not  ended,  and,  second, 
that,  in  any  event,  Iraq's  material  breaches  of  the  1991  cease-fire,  which  the  Secu- 
rity Council  repeatedly  recognized  as  such,  kept  alive,  if  it  were  necessary  to  do  so, 
the  Security  Council's  1990  authorization  to  use  force  to  uphold  and  implement 
subsequent  resolutions  and  restore  regional  peace  and  security.  The  terrorist  at- 
tacks of  September  1 1, 2001,  transformed  the  context  and  analysis  of  Iraqi  behavior 
and  ended  more  than  a  decade's  tolerance  of  Iraq's  refusal  to  fulfill  its  obligations, 
to  the  UN  Security  Council.9 

UN  Security  Council  Resolutions  and  Council  Presidential  Statements  created 
the  UN-based  legal  framework  for  the  2003  campaign.10  Resolution  1441,  which 
the  Security  Council  adopted  unanimously  on  November  8,  2002,  recognized  "the 
threat  Iraq's  non-compliance  with  Council  resolutions  and  proliferation  of  weap- 
ons of  mass  destruction  and  long-range  missiles  poses  to  international  peace  and 
security."1 '  The  operative  section  of  Resolution  1441  commences  with  the  finding 

22 


Nicholas  Rostow 


that  Iraq  "has  been  and  remains  in  material  breach  of  its  obligations  under  relevant 
resolutions,  including  resolution  687  ( 1991)."12  These  words  refer  to  the  beginning 
of  the  1990  Gulf  Crisis,  when  Iraq  invaded  and  purported  to  annex  Kuwait,  and  ac- 
knowledge that  the  conflict  thus  begun  had  remained  unresolved.  They  therefore 
put  under  the  lens  both  the  UN  Security  Council  authorization  to  use  force  against 
Iraq  because  of  the  invasion  of  Kuwait  and  the  resolution  setting  forth  the  terms  for 
ending  that  conflict  and  authorization. 

Material  Breach  of  UN  Security  Council  Resolution  687  (1991) 

The  Security  Council  was  the  forum  through  which  the  collective  defense  of  Ku- 
wait was  managed  in  1990.13  On  August  2, 1990,  the  Council  condemned  Iraq's  in- 
vasion of  Kuwait  of  the  same  day.14  The  Security  Council  then  affirmed  the  right  of 
collective  self-defense  in  response  to  the  invasion,15  imposed  an  economic  em- 
bargo,16 authorized  the  ongoing  maritime  enforcement  of  the  embargo,17  carved 
out  humanitarian  exceptions  to  the  embargo,18  warned  Iraq  about  the  conse- 
quences of  illegal  hostage-taking,19  and  addressed  other  specific  issues  that  arose 
during  the  first  four  months  following  the  invasion.20 

On  November  29, 1990,  the  Security  Council  adopted  Resolution  678  authoriz- 
ing the  use  of  force  and  giving  Saddam  Hussein  until  January  15, 1991,  to  fulfill  his 
government's  obligations  to  implement  pre-existing  Security  Council  resolutions 
beginning  with  Resolution  660,  which  had  condemned  the  invasion  and  de- 
manded an  immediate,  unconditional  Iraqi  withdrawal  from  Kuwait.21  In  the  ab- 
sence of  Iraqi  compliance  with  this  ultimaturn,  the  Resolution  authorized  "Member 
States  co-operating  with  the  Government  of  Kuwait ...  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."22  Operation  Desert  Storm — 
the  1991  Gulf  War  to  eject  Iraq  from  Kuwait — began  on  January  16, 1991,  by  decision 
of  the  US-led  Coalition,  not  of  the  Security  Council,  and  ended  with  a  cease-fire,  also 
by  decision  of  the  US-led  Coalition,  which  the  Security  Council  subsequently  endorsed 
as  a  "suspension  of  offensive  combat  operations"  on  March  2,  1991.23  Then,  on  April 
3,  1991,  the  Council  adopted  Resolution  687,  codifying  that  cease-fire  and  imposing 
additional  obligations  on  Iraq,  "bearing  in  mind"  the  goal  of  securing  international 
peace  and  security  in  the  area.24  In  order  to  obtain  a  cease-fire,  Iraq  formally  accepted 
the  terms  of  Resolution  687  by  letter  dated  April  6,  1991.25 

Resolution  687  set  forth  the  conditions  for  fulfilling  the  terms  of  Resolution  678 
but  did  not  rescind  or  provide  for  its  termination.  Since  adopting  Resolution  687 
on  April  3, 1991,  the  Security  Council  never  found  that  Iraq  has  met  its  obligations 
thereunder  or  that  Resolution  678,  including  its  authorization  to  use  force  "to  up- 
hold  and   implement   Resolution    660    (1990)    and   all    subsequent   relevant 

23 


International  Law  and  the  2003  Campaign  against  Iraq 

resolutions,"  was  no  longer  in  effect  or  even  that  the  war  commenced  by  Iraq's  in- 
vasion of  Kuwait  in  August  1990  had  ended.  Indeed,  UN  Secretary-General 
Boutros  Boutros-Ghali's  introduction  to  the  UN  publication  of  documents  on  the 
Iraq-Kuwait  conflict,  1990-96,  states  that,  notwithstanding  the  adoption  of  Reso- 
lution 687,  "enforcement  measures  remained  in  effect,  including  the  sanctions  re- 
gime and  the  Council's  authorization  to  Member  States  to  use  'all  necessary  means' 
to  uphold  Iraqi  compliance."26  As  shown  by  the  series  of  resolutions  in  1990,  which 
tried  to  manage  the  Iraq-Kuwait  crisis,  the  Security  Council  is  capable  of  taking  de- 
cisions about  mandates. 

From  1991  onwards,  the  Security  Council  repeatedly  concluded  that  Iraq's  ac- 
tions failed  to  correspond  to  Iraq's  obligations.  Iraq's  refusal  to  implement  Resolu- 
tion 687,  apparent  within  one  month  of  the  Resolution's  adoption,  caused  the 
Security  Council  to  find  that  Iraq  was  in  "material  breach"  of  the  Resolution — that 
is,  of  the  conditions  for  the  1991  cease-fire.27  The  term  "material  breach"  was  de- 
rived from  the  1961  Vienna  Convention  on  the  Law  of  Treaties: 28  a  material  breach 
is  a  repudiation  of  the  agreement  or  a  violation  of  a  provision  or  term  essential  to 
the  accomplishment  of  the  object  or  purpose  of  the  agreement.  Material  breach  of 
an  international  agreement  by  one  of  the  parties  entitles  the  other  to  invoke  the 
breach  as  a  ground  for  terminating  or  suspending  the  agreement  in  whole  or  in 
part.29  In  the  circumstances  of  Iraq's  failure  to  fulfill  essential  terms  of  the  cease-fire 
agreement  by  submitting  inaccurate  and  incomplete  declarations  of  its  holdings  of 
prohibited  weapons,  weapons  systems,  and  support  structures,  concealment  of  pro- 
hibited weapons  and  weapons  programs,  and  obstruction  of  the  inspection  regime 
designed  to  monitor  and  verify  Iraqi  compliance  with  Resolution  687, 30  the  United 
States  and  the  United  Kingdom  and  others,  including  Secretary-General  Boutros- 
Ghali  understood  the  finding  of  material  breach  to  mean  that  the  use  of  force  was 
again  permitted  to  compel  Iraq  to  comply  with  its  obligations  or,  as  Boutros-Ghali 
wrote  in  1996,  "to  uphold  Iraqi  compliance."31  Iraq's  failure  to  comply  with  core 
paragraphs  of  Resolution  687  violated  the  cease-fire  and  justified,  as  a  matter  of 
law,  the  resumption  by  the  United  States  and  its  coalition  partners  of  the  use  of 
force  authorized  under  Resolution  678. 32 

Resolution  1441's  use  of  the  words  "material  breach"  to  characterize  Iraq's  re- 
peated failures  over  more  than  a  decade  to  implement  the  1991  cease-fire  agree- 
ment was  the  ninth  such  Security  Council  finding  since  the  end  of  the  Gulf  War.33 
In  addition,  the  Security  Council  also  repeatedly  found  that  Iraq  was  not  comply- 
ing with  its  obligations  more  generally.  From  1991  to  the  end  of  2002,  the  Council 
concluded  three  times  that  Iraq  was  in  "flagrant  violation"  of  its  obligations,34  12 
times  that  Iraq  was  not  complying,35  once  that  Iraq  was  in  "clear-cut  defiance"  of 
its  obligations,36  three  times  that  Iraq  had  committed  a  "clear  violation,"37  twice 

24 


Nicholas  Rostow 


that  its  violations  were  "clear  and  flagrant,"38  and  once  that  Iraq  was  in  "gross  vio- 
lation" of  Resolution  687. 39  In  addition,  from  the  cease-fire  of  1991  through  the 
adoption  of  Resolution  1441  in  November  2002,  the  Security  Council  threatened 
Iraq  with  "serious  consequences"  12  times  as  a  result  of  its  persistent  non-compliance 
with  essential  terms  of  Resolution  68 7.40  The  different  formulations  used  in  the 
1990s  reflected  the  widening  fissures  among  the  Permanent  Members  of  the  Secu- 
rity Council  with  regard  to  Iraq. 

While  some,  including  Professor  Franck,  have  argued  that  only  the  Security 
Council  ought  to  determine  when,  after  the  cease-fire  of  1991,  it  is  permitted  to  in- 
voke the  authorization  of  Resolution  678  (1990),41  the  United  States  and  others42 
have  never  shared  that  opinion.  The  United  States  consistently  has  argued  that 
Resolution  678  remained  in  effect  until  the  Security  Council  specifically  rescinded 
it,  that  its  reference  to  "all  subsequent  relevant  resolutions"  includes  Security 
Council  resolutions  adopted  subsequent  to  Resolution  678,  and  that  no  subse- 
quent Security  Council  authorization  was  needed  before  the  United  States  and 
others  lawfully  could  use  force  against  Iraq  to  compel  compliance  with  Security 
Council  resolutions,  including  Resolution  687,  which  codified  the  cease-fire.43  The 
Security  Council  had  neither  included  an  expiration  date  for  the  authorization  to 
use  force  in  Resolution  678  nor  provided  for  the  termination  of  such  authorization 
on  Iraqi  acceptance  of  Resolution  687  or  for  some  other  reason.44  While  Resolution 
678  contained  no  time  limit,  succeeding  resolutions,  including  1441,  contained  no 
termination  of  the  authorization  to  use  force  that  was  granted  in  previous  Security 
Council  resolutions.  Whether  they  liked  it  or  not,  Security  Council  members  under- 
stood that  the  United  States,  the  United  Kingdom,  France  for  a  time,  and  others 
would  treat  Resolution  678  as  providing  continuing  authority.  Indeed,  although  they 
justified  the  maintenance  of  No-fly  Zones  with  reference  to  Security  Council  Resolu- 
tion 688,  the  United  States,  the  United  Kingdom,  and,  during  the  period  it  partici- 
pated in  enforcing  the  No-fly  Zones,  France  used  their  patrolling  aircraft  to  keep 
pressure  on  Iraq  to  comply  with  Resolution  68 7.45  In  so  doing,  they  arguably  were 
acting  on  the  continued  authority  of  Resolution  678. 

The  British  view,  authoritatively  expounded  by  the  Attorney  General,  Lord 
Goldsmith,  on  March  17,  2003,  stressed  the  significance  of  the  finding  of  ongoing 
material  breach  by  Iraq  in  Resolution  1441.  Lord  Goldsmith  concluded  that  Secu- 
rity Council  Resolution  687: 

[S]uspended  but  did  not  terminate  the  authority  to  use  force  under  resolution  678.  A 
material  breach  of  resolution  687  revives  the  authority  to  use  force  under  resolution 
678.  In  resolution  1441  the  Security  Council  determined  that  Iraq  has  been  and 


25 


International  Law  and  the  2003  Campaign  against  Iraq 

remains  in  material  breach  of  resolution  687,  because  it  has  not  fully  complied  with  its 
obligations  to  disarm  under  that  resolution.46 

Russia's  then-UN  Permanent  Representative  Ambassador  Sergei  Lavrov  made 
one  of  the  most  comprehensive  statements  against  the  US  and  British  view  in  De- 
cember 1998,  during  Operation  Desert  Fox  undertaken  by  the  United  States  and 
United  Kingdom.47  Lavrov  argued  that  the  Security  Council,  which  was  "actively 
seized"  of  the  matter: 

alone  has  the  right  to  determine  what  steps  should  be  taken  in  order  to  maintain  or 
restore  international  peace  and  security.  We  reject  outright  the  attempts  made  in  the 
letters  from  the  United  States  and  the  United  Kingdom48  to  justify  the  use  offeree  on 
the  basis  of  a  mandate  that  was  previously  issued  by  the  Security  Council.  The 
resolutions  of  the  Security  Council  provide  no  grounds  whatsoever  for  such  actions.49 

He  came  back  to  these  arguments  in  2002,  using  the  word  "automaticity"  as  rep- 
resenting the  view  he  opposed.50 

Iraq's  "Final  Opportunity" 

The  second  part  of  Resolution  1441  allowed  Iraq  a  "final  opportunity"  to  come 
into  compliance  with  its  obligations  under  Resolution  687,  thus  eliminating  its 
material  breach.  In  the  words  of  the  French  Permanent  Representative,  Ambassa- 
dor Jean-David  Levitte,  Resolution  1441  created  a  "last  opportunity"  "to  avoid 
confrontation."51  To  ensure  compliance,  the  Security  Council  established  what 
was  called  in  the  negotiations  "an  enhanced  inspection  regime"  of  the  UN  Moni- 
toring, Inspection  and  Verification  Commission  (UNMOVIC)  and  the  Interna- 
tional Atomic  Energy  Agency  (IAEA).  "Enhanced  inspection  regime"  meant  that 
the  Security  Council  had  given  UNMOVIC  and  the  IAEA  clearer,  broader,  and 
stronger  instructions  and  powers  than  ever  before.52 

Resolution  1441  required  that  Iraq  make  a  new  declaration  of  all  its  weapons  of 
mass  destruction  and  associated  agents  and  materials  and  support,  research,  devel- 
opment, and  manufacturing  facilities  and  structures.  Iraqi  material  misstatements 
and/or  omissions  in  this  declaration  and  "failure  to  cooperate  fully  in  the  implementa- 
tion shall  constitute  a  further  material  breach  and  will  be  reported  to  the  Council  for 
assessment  in  accordance  with  paragraphs  1 1  and  12  below."53  When  Iraq  submitted 
its  declaration  under  this  Resolution  no  Security  Council  Member  or  UNMOVIC  or 
IAEA  official  defended  it  as  complete  within  the  meaning  of  the  Resolution.54  Indeed, 
they  found  material  omissions.55  The  preliminary  results  of  the  post-war  survey  of  evi- 
dence of  Iraq's  programs  to  develop  weapons  of  mass  destruction  and  their  delivery 


26 


Nicholas  Rostow 


systems  further  illuminate  the  inadequacies  of  the  December  2002  declaration;  the  fi- 
nal report  confirmed  this  conclusion.56 

Omissions  and  false  statements  in  the  declaration  were  not  enough  in  the  lan- 
guage of  Resolution  1441  to  constitute  the  "further  material  breach"  defined  in 
Resolution  1441.  The  second  of  the  two  requirements  was  "failure  to  cooperate 
fully  in  the  implementation"  of  the  Resolution.  Iraq's  derelictions  in  both  respects 
were  evident  to  the  Council  and  reported  by  UNMOVIC  and  the  IAEA.5" 

The  rest  of  Resolution  1441 — the  part  that  would  determine  what  came  next — 
reflected  a  compromise  between  those  governments  that  did  not  want  to  require  a 
second  Security  Council  decision  with  respect  to  the  use  of  force  and  those  that 
did.58  The  result  was  agreement  to  meet  "to  consider  the  situation  and  the  need  for 
full  compliance  with  all  of  the  relevant  Council  resolutions  in  order  to  secure  inter- 
national peace  and  security."59  Finally,  Resolution  1441  ended  by  reminding  Iraq 
that  the  Security  Council  had  repeatedly  warned  that  continued  violations  of  its 
obligations  would  have  "serious  consequences."  In  the  circumstances  of  Iraq's  fail- 
ure to  fulfill  essential  terms  of  the  cease-fire  agreement,  the  finding  of  material 
breach,  and  the  threat  that  serious  consequences  would  follow  non-compliance 
with  Resolution  1441,  everyone  understood  that  the  United  States,  Britain,  and 
others  were  contemplating  the  use  offeree  to  compel  Iraq  to  comply  with  its  obli- 
gations if  Iraq  failed  to  fulfill  them  in  response  to  Resolution  1441  although  the  Se- 
curity Council  was  not  unanimous  on  the  legal  interpretation  of  existing 
resolutions.60  Nothing  in  Resolution  1441  required  the  Council  to  adopt  another 
resolution  as  a  prerequisite  for  military  operations.  And,  between  November  8, 
2002,  and  March  19,  2003,  when  the  United  States  and  the  United  Kingdom 
launched  their  campaign  against  Saddam  Hussein,  the  Security  Council  met  some 
47  times  in  public  and  in  informal  consultations  considering  the  situation.  The 
terms  of  Resolution  1441  therefore  were  met  and  the  2003  campaign  against  Iraq 
was  lawful  in  accordance  with  UN  Security  Council  resolutions  and  actions  on  Iraq 
after  Operation  Desert  Storm  in  1991.61 

The  Context:  The  Terrorist  Attacks  of  September  11,  2001 

Iraq's  attack  on  Kuwait  in  1990  thus  launched  the  train  of  events  leading  to  the 
2003  campaign.  Iraq's  unwillingness  to  accept  the  outcome  of  Operation  Desert 
Storm  and  comply  with  Security  Council  Resolution  687  meant  that  Iraq  remained 
a  threat  to  international  peace  and  security  after  the  1991  Gulf  War.  Throughout 
the  1990s,  the  Iraq  question  stayed  on  the  UN  Security  Council  agenda,  and  UN  Se- 
curity Council  sanctions  against  Iraq,  imposed  in  the  wake  of  the  1990  invasion  of 
Kuwait,  remained  in  place.  The  Security  Council  monitored  application  of  the 

27 


International  Law  and  the  2003  Campaign  against  Iraq 

sanctions,  and  the  UN  bureaucracy  supervised  Iraqi  sales  of  oil  and  importation  of 
goods,  including  foodstuffs  and  medicines.62  Iraq  was  contained  militarily  and 
prevented  from  attacking  the  Kurds  in  the  north  and  the  Shia  in  the  south  by  the 
American,  British,  and,  for  part  of  the  time,  French  enforcement  of  the  Northern 
and  Southern  No-fly  Zones,  beginning  in  1991.  UN  inspections  of  Iraq's  weapons 
programs  had  depended  in  substantial  part  on  intelligence  and  defector  reports, 
not  on  Iraqi  cooperation  and  inspectors'  skills,  however  great,  for  success.63  Early 
in  2003,  the  United  States,  the  United  Kingdom,  Spain,  and  others  on  the  Security 
Council — perhaps  more  than  the  nine  needed  to  adopt  a  resolution  absent  a 
veto — concluded  that  every  effort  to  obtain  the  compliance  of  Saddam  Hussein's 
government  with  Security  Council  resolutions  stipulating  the  conditions  for  end- 
ing the  1990  Gulf  conflict  had  failed.  Why,  if  Saddam's  Iraq  was  contained  and 
watched  and  the  economy  supervised,  did  the  United  States  and  Great  Britain  de- 
cide to  launch  the  campaign  that  removed  Saddam  Hussein  from  power  in  2003? 

The  answer,  as  President  Bush  said  on  March  6,  2003,  lay  in  the  impact  of  the 
terrorist  attacks  on  September  11,  2001.  The  repeated  failure  by  Saddam  Hussein's 
Iraq  throughout  the  1990's  to  comply  with  Resolution  687,  and  the  repeated  failure 
within  the  Security  Council  to  agree  about  what  to  do  in  response,  was  no  longer 
tolerable  for  the  United  States,  the  United  Kingdom,  Spain,  and  others.  "Septem- 
ber 1 1th  changed  the  strategic  thinking,  at  least  as  far  as  I  was  concerned,  for  how  to 
protect  our  country,"  President  Bush  said.  "It  used  to  be  that  we  could  think  that 
you  could  contain  a  person  like  Saddam  Hussein,  that  oceans  would  protect  us 
from  his  type  of  terror."64  Saddam  Hussein's  statements  about  the  September  1 1 
attacks  could  give  no  assurance  about  his  attitude,65  and  his  record  of  continued 
material  breach  of  Security  Council  Resolution  687,  despite  economic  sanctions, 
diplomacy,  low  intensity  military  pressure,  and  repeated  Security  Council  de- 
mands, combined  to  support  the  view  that  there  would  never  be  voluntary  Iraqi 
compliance  with  Resolution  1441  and  that  changing  the  regime  by  force  was  pro- 
portional and  lawful  and,  after  September  11,  2001,  necessary. 

All  Security  Council  member  governments  believed  that  Saddam  Hussein's  Iraq 
had  not  complied  with  Resolution  687  and  at  least  had  programs  to  develop  or  ob- 
tain nuclear,  biological,  or  chemical  weapons  of  mass  destruction,  even  if  some  of 
them  questioned  whether  Iraq  actually  possessed  such  weapons  at  that  moment.66 
In  this  connection,  one  should  weigh  the  assessment  of  Rolf  Ekeus,  the  first  head  of  the 
UN  inspection  effort  in  Iraq,  and,  in  the  view  of  a  former  British  Ambassador  to  the 
United  Nations,  "the  most-clear  sighted  and  by  far  the  most  successful"  of  them:67 

[Iraq's  policy  since  1991  was  not  to  produce  warfare  agents,  but  rather  to  concentrate  on 
design  and  engineering]  with  the  purpose  of  activating  production  and  shipping  of 


28 


Nicholas  Rostow 


agents  and  munitions  directly  to  the  battlefield  in  the  event  of  war.  Many  hundreds  of 
chemical  engineers  and  production  and  process  engineers  worked  to  develop  nerve 
agents,  especially  VX,  with  the  primary  task  being  to  stabilize  the  warfare  agents  in  order 
to  optimize  facilities  and  activities,  e.g.,  for  agricultural  purposes,  where  batches  of  nerve 
agents  could  be  produced  during  short  interruptions  of  the  production  of  ordinary 
chemicals.  This  combination  of  researchers,  engineers,  know-how,  precursors,  batch 
production  techniques  and  testing  is  what  constituted  Iraq's  chemical  threat — its 
chemical  weapon.  The  rather  bizarre  political  focus  on  the  search  for  rusting  drums  and 
pieces  of  munitions  containing  low-quality  chemicals  has  tended  to  distort  the 
important  question  of  WMD  in  Iraq  and  exposed  the  American  and  British 
administrations  to  unjustified  criticism.  The  real  chemical  warfare  threat  from  Iraq  has 
had  two  components.  One  has  been  the  capability  to  bring  potent  chemical  agents  to  the 
battlefield  to  be  used  against  a  poorly  equipped  and  poorly  trained  enemy.  The  other  is 
the  chance  that  Iraqi  chemical  weapons  specialists  would  sign  up  with  terrorist  networks 
such  as  al  Qaeda — with  which  they  are  likely  to  have  far  more  affinity  than  do  the 
unemployed  Russian  scientists  the  United  States  worries  about.  .  .  .  While  biological 
weapons  are  not  easily  adapted  for  battlefield  use,  they  are  potentially  the  more 
devastating  as  a  means  for  massive  terrorist  onslaught  on  civilian  targets.  As  with 
chemical  weapons,  Iraq's  policy  on  biological  weapons  was  to  develop  and  improve  the 
quality  of  the  warfare  agents.  It  is  possible  that  Iraq,  in  spite  of  its  denials,  retained  some 
anthrax  in  storage.  But  it  could  be  more  problematic  and  dangerous  if  Iraq  secretly 
maintained  a  research  and  development  capability,  as  well  as  a  production  capability, 
run  by  the  biologists  involved  in  its  earlier  programs.  Again,  such  a  complete  program 
would  in  itself  constitute  a  more  important  biological  weapon  than  some  stored  agents  of 
doubtful  quality.  It  is  understandable  that  the  U.N.  inspectors  and  even  more,  the 
military  search  teams,  have  had  difficulty  penetrating  the  sophisticated,  well-rehearsed 
and  protected  WMD  program  in  Iraq.  .  .  .  The  Iraqi  nuclear  projects  lacked  access  to 
fissile  material  but  were  advanced  with  regard  to  weapon  design. .  .  .  This  is  enough  to 
justify  the  international  military  intervention  undertaken  by  the  United  States  and 
Britain.  To  accept  the  alternative — letting  Hussein  remain  in  power — would  have  been 
to  tolerate  a  continuing  destabilizing  arms  race  in  the  Gulf,  including  future 
nuclearization  of  the  region,  threats  to  the  world's  energy  supplies,  leakage  of  WMD 
technology  and  expertise  to  terrorist  networks,  systematic  sabotage  of  efforts  to  create 
and  sustain  a  process  of  peace  between  the  Israelis  and  the  Palestinians  and  the  continued 
terrorizing  of  the  Iraqi  people.68 

The  Iraq  Survey  Group  responsible  for  searching  for  prohibited  Iraqi  weapons  and 
weapons  programs  in  the  wake  of  the  2003  Iraq  campaign  confirmed  the  existence 
of  such  programs.69 

Security  Council  unity  about  Iraq's  ambitions  did  not  extend  to  wanting  to  join 
a  use  of  force  to  obtain  compliance  and  bring  an  end  to  the  programs — that  is,  to 
overthrow  Saddam  Hussein's  regime.  Therefore,  the  Council's  unanimity  in 
adopting  Resolution  1441  expressed  more  solidarity  than  existed,  as,  for  example, 
the  French  and  Russian  statements  explaining  their  votes  made  clear  and  the 


29 


International  Law  and  the  2003  Campaign  against  Iraq 

French-Russian-Chinese  Joint  Statement  of  November  8, 2002,  reinforced.70  Secu- 
rity Council  members,  Secretariat  officials,  and  others  agreed  that  the  build-up  of 
US  military  forces  in  Kuwait  had  persuaded  Saddam  Hussein  to  cooperate  to  the 
degree  he  did  with  UNMOVIC  and  the  IAEA,  but  they  did  not  agree  that  time  had 
run-out  for  non-military  solutions  to  the  threat  posed  by  Iraq.71  For  example,  Russia's 
Permanent  Representative  pulled  back  from  the  dire  message  of  Resolution  1441: 

Implementation  of  the  resolution  [1441]  will  require  goodwill  on  the  part  of  all  those 
involved  in  the  process  of  seeking  a  settlement  of  the  Iraq  question.  They  must  have  the 
willingness  to  concentrate  on  moving  forward  towards  the  declared  common  goals,  not 
yielding  to  the  temptation  of  unilateral  interpretation  of  the  resolution's  provisions  and 
preserving  the  consensus  and  unity  of  all  members  of  the  Security  Council.72 

France's  Ambassador  Levitte  said  that  "the  Security  Council  would  maintain 
control  of  the  process."73  He  did  not  acknowledge  that  any  one  besides  the  heads  of 
UNMOVIC  or  the  IAEA  might  report  to  the  Security  Council  on  Iraqi  compliance 
with  Resolution  1441.  The  fact  that  Resolution  1441  contemplated  reports  from 
sources  other  than  the  IAEA  or  UNMOVIC  ought  not  to  have  needed  saying  but 
did  because  Ambassador  Levitte  only  referred  to  reports  from  those  sources  as 
causing  the  Security  Council  to  meet.  Some  commentators  have  seen  economic 
motives  behind  Russian  and  French  Iraq  policies  throughout  the  1990s:  "By  2000, 
Iraq's  trade  was  worth  roughly  $17  billion,  and  other  countries  were  determined  to 
get  a  piece  of  it.  Iraq  carefully  awarded  contracts  to  those  who  echoed  its  propa- 
ganda and  voted  its  way  in  the  Security  Council."74  Perhaps  more  importantly, 
Abassador  Lavrov's  and  Ambassador  Levitte's  statements  revealed  again  the  diver- 
gence of  perspectives  about  international  threats  in  the  wake  of  the  terrorist  attacks 
of  September  11,  2001.75 

The  importance  of  those  attacks  for  the  United  States  cannot  be  exaggerated. 
They  have  exerted  hydraulic  pressure  on  US  officials,  sending  them  to  bed  each 
night  worried  that  they  have  again  failed  to  understand  bits  and  pieces  of  intelli- 
gence about  terrorist  plots,  and  causing  them  to  look  out  on  the  world  through  a 
prism  formed  by  the  September  1 1  attacks.  Thus,  acceptance  of  Iraq's  unwilling- 
ness to  abide  by  the  result  of  the  1991  Gulf  War  no  longer  appeared  to  be  a  sensible 
policy  option. 

Conclusion 

The  legal  foundation  for  the  2003  campaign  against  Iraq  is  not  the  less  important 
for  being  well  known.  The  aspiration  that  international  society  operate  according 


30 


Nicholas  Rostow 


to  law  is  inseparable  from  the  aspiration  for  international  peace.  On  September  24, 
2003,  Security  Council  members  joined  in  emphasizing  this  point.76  While  there 
have  been  periods  of  peace,  enforced  by  a  balance  of  power,  these  periods  histori- 
cally have  ended  in  great  wars.  Whether  an  international  system  of  independent 
States,  even  one  that  includes  international  institutions  to  which  States  delegate 
important  powers,  can  live  according  to  law  and  even  whether  that  law  can  be  en- 
forced so  as  to  strengthen  peace  within  the  international  society,  is  a  question 
whose  answer  we  are  still  fashioning. 

One  of  the  most  important  and  therefore  one  of  the  most  controversial  ele- 
ments of  the  2003  campaign  against  Iraq  involved  enforcement  of  international 
law  by  a  group  of  States  motivated  by  the  attacks  of  September  11,  2001,  without 
being  able  to  prove  a  connection  between  Iraq  and  those  attacks.  Unlike  the  Af- 
ghanistan campaign,  which  was  directed  against  the  apparent  source  of  those  at- 
tacks, the  Iraq  campaign  involved  a  response  to  a  previously  defined  but  ongoing 
threat,  which  acquired  new  seriousness  as  a  result  the  terrorist  attacks.  Security 
Council  actions  on  Iraq,  including  the  authorization  to  use  force  and  the  repeated 
findings  of  Iraq's  failure  to  carry  out  its  cease-fire  obligations,  raised  the  stakes  for 
all  States,  especially  after  September  11, 2001,  because  of  the  Council's  primary  re- 
sponsibility for  the  maintenance  of  international  peace  and  security.  Those  same 
actions  created  a  compelling  legal  foundation  for  the  2003  campaign.  Critics  may 
choose  to  ignore  it.  They  cannot  rebut  it. 

Notes 

1.  Professor  Nicholas  Rostow  is  General  Counsel,  US  Mission  to  the  United  Nations.  He  is  a 
former  Charles  H.  Stockton  Professor  of  International  Law  at  the  Naval  War  College.  The  views 
expressed  are  those  of  the  author  and  do  not  necessarily  represent  the  views  of  the  Department  of 
State  or  the  United  States.  A  version  of  this  paper  appeared  in  the  2004  Israel  Yearbook  on 
Human  Rights  as  "Determining  the  lawfulness  of  the  2003  Campaign  against  Iraq." 

2.  UN  Doc.  A/57/PV.2  6-9  (Sept.  12,  2003). 

3.  See  the  symposium  on  this  question  in  27  NEW  YORK  UNIVERSITY  JOURNAL  OF 
INTERNATIONAL  LAW  AND  POLICY  (1995),  including  Nicholas  Rostow,  "Who  Decides"  and  World 
Public  Order,  at  577-83. 

4.  See  text,  infra  at  notes  41-45. 

5.  Supra  note  2,  at  8.  Most  of  the  relevant  Security  Council  resolutions  on  Iraq  represent 
"decisions"  binding  under  Article  25  of  the  UN  Charter  ("The  Members  of  the  United  Nations 
agree  to  accept  and  carry  out  the  decisions  of  the  Security  Council  in  accordance  with  the  present 
Charter.")  The  use  of  the  word  "decides"  in  Security  Council  resolutions  is  significant  as  a  legal 
matter.  British  practice  is  to  insist  that  a  paragraph  in  a  resolution  is  binding  on  States  as  a  matter 
of  law  only  if  the  preamble  states  that  the  Council  is  determining  that  the  situation  in  question  is 
a  threat  to  the  peace,  breach  of  the  peace,  or  act  of  aggression,  and  that  the  Council  is  acting  under 
Chapter  VII  of  the  UN  Charter.  Other  Permanent  Members  have  gone  along  with  the  British  in 


31 


International  Law  and  the  2003  Campaign  against  Iraq 

this  connection  although  their  prior  practice  indicates  tolerance  of  less  formality  than  is 
characteristic  nowadays.  Whether  formalists  or  not,  all  other  Permanent  Members  agree  that  the 
word  "decides"  creates  a  binding  obligation. 

6.  Id. 

7.  See  Thomas  M.  Franck,  Iraq  and  the  Law  of  Armed  Conflict,  which  is  Chapter  II  in  this  volume, 
at  15.  See  also  Thomas  M.  Franck,  What  Happens  Now?  The  United  Nations  After  Iraq,  97 
AMI  RICAN  JOURNAL  OF  INTERNATIONAL  LAW  607  (2003). 

8.  The  Legal  Adviser  of  the  US  Department  of  State  published  the  authoritative  US  Government 
analysis.  See  William  H.  Taft  IV  &  Todd  F.  Buchwald,  Preemption,  Iraq,  and  International  Law, 
97  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  557  (2003)  (the  legality  of  the  use  of  force 
against  Iraq  derives  from  UN  Security  Council  resolutions).  This  article  appeared  with  other 
comments  on  the  lawfulness  of  the  war  against  Iraq,  some  of  which  defend  it  on  different 
grounds:  John  Yoo,  International  Law  and  the  War  in  Iraq,  id.  at  563-76  (the  lawfulness  of  the 
war  derives  from  UN  Security  Council  resolutions  and  customary  law  of  self-defense);  Richard 
N.  Gardner,  Neither  Bush  Nor  the  "Jurisprudes,"  id.  at  585-90  (the  Bush  Administration  did  not 
need  the  self-defense  rationale  because  legally  sufficient  justification  lay  within  UN  Security 
Council  Resolutions);  and  Ruth  Wedgwood,  The  Fall  of  Saddam  Hussein:  Security  Council 
Mandates  and  Preemptive  Self-Defense,  id.  at  576-85  (the  UN  Charter  system  must  adapt  to 
changing  security  concerns).  Others  reject  these  arguments:  Richard  A.  Falk,  What  Future  for  the 
UN  Charter  System  of  War  Prevention,  id.  at  590-98  (the  UN  Charter  system  required  prior 
Security  Council  authorization,  and  US  interests  would  have  been  well  served  by  waiting  until  it 
was  forthcoming);  Miriam  Sapiro,  Iraq:  The  Shifting  Sands  of  Preemptive  Self-Defense,  id.  at  599- 
607  (the  2003  campaign  against  Iraq  was  unlawful  under  the  international  law  of  anticipatory 
self-defense);  and  Franck,  What  Happens  Now?  The  United  Nations  After  Iraq,  supra  note  7,  at 
607-620.  Two  other  authors  address  related  issues:  Tom  J.  Farer,  The  Prospect  for  International 
Law  and  Order  in  the  Wake  of  Iraq,  97  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  621-28 
(2003)  (the  United  States  ought  to  accommodate  to  others'  preferences  in  order  to  achieve  its 
own),  and  Jane  Stromseth,  Law  and  Force  After  Iraq:  A  Transitional  Moment,  id.  at  628-42  (UN 
Charter  system  not  dead).  See  also  Carsten  Stahn,  Enforcement  of  the  Collective  Will  After  Iraq,  id. 
at  804  (US-UK  action  formally  breached  UN  Charter  but  Charter  law  intact);  Andru  E.  Wall,  The 
Legal  Case  for  Invading  and  Toppling  Hussein,  32  ISRAEL  YEAR  BOOK  ON  HUMAN  RIGHTS  165 
(2002)  and  Paul  Schott  Stevens,  Andru  E.  Wall,  and  Ata  Dinlenc,  The  Just  Demands  of  Peace  and 
Security:  International  Law  and  the  Case  Against  Iraq,  The  Federalist  Society  for  Law  &  Public 
Policy  Studies  (2002);  Jules  Lobel  &  Michael  Ratner,  Bypassing  the  Security  Council:  Ambiguous 
Authorizations  to  Use  Force,  Cease-fires  and  the  Iraqi  Inspection  Regime,  93  AMERICAN  JOURNAL 
OF  INTERNATIONAL  LAW  124  (1999)  (absence  of,  or  ambiguity  in  connection  with,  question  of 
Security  Council  authority).  See  also  Prime  Minister  Blair,  The  Threat  of  Global  Terrorism,  Mar. 
5,  2003  ("The  lawyers  continue  to  divide  over  it — with  their  legal  opinions  bearing  a  remarkable 
similarity  to  their  political  view  of  the  war."),  available  afwww.ukun.org. 

9.  A  separate  argument  concerns  humanitarian  intervention.  Some  argue  that  the  brutality  of 
the  Hussein  government,  its  demonstrated  slaughter  of  thousands — perhaps  as  many  as  300,000 
or  more  {see,  e.g.,  Simon  de  Bruxelles,  Britons  Find  Graves  of  300,000  Victims,  TIMES  (London), 
June  4,  2003;  WILLIAMS  SHAWCROSS,  ALLIES:  THE  US,  BRITAIN,  EUROPE,  AND  THE  WAR  IN  IRAQ 
160-61  (2004)) — of  Iraqis,  including  with  chemical  weapons,  itself  justified  the  campaign  as  a 
matter  of  international  law.  Under  this  view,  States  have  the  right — some  would  say  the  duty — 
to  intervene  to  prevent  or  stop  widespread  human  rights  abuses.  Publications  of  the  human 
rights  non-governmental  organizations  on  the  widespread  and  systematic  violations  of  human 
rights  by  Saddam  Hussein's  government  provide  a  basis  for  considering  that  humanitarian 


32 


Nicholas  Rostow 


intervention  was  not  only  justifiable,  but  also  over-due.  As  Professor  Franck  does  not  address 
this  point,  I  do  not  pursue  it  here.  In  this  connection,  see  Taft  &  Buchwald,  supra  note  8,  at  559; 
Stevens,  Wall,  &  Dinlenc,  supra  note  8,  at  1 1-12;  UK  Foreign  &  Commonwealth  Office,  Saddam 
Hussein:  Crimes  and  Human  Rights  Abuses  (November  2002);  Thomas  L.  Friedman,  Presidents 
Remade  by  War,  NEW  YORK  TIMES,  Dec.  7,  2003,  available  at  www.nytimes.com/2003/12/07/ 
opinion/07FRIE.html.  On  the  arguments  for  and  against  humanitarian  intervention  see,  e.g.,  Tom 
J.  Farer,  An  Inquiry  into  the  Legitimacy  of  Humanitarian  Intervention,  in  LAW  AND  FORCE  IN  THE 
NEW  INTERNATIONAL  ORDER  (Lori  Fisler  Damrosch  &  David  J.  Scheffer  eds.,  1991);  Theodor 
Meron,  Commentary  on  Humanitarian  Intervention,  id.  at  212-14;  Lori  Fisler  Damrosch, 
Commentary  on  Collective  Military  Intervention  to  Enforce  Human  Rights,  id.  at  215-23;  Louis 
Henkin,  The  Use  of  Force:  Law  and  US  Policy,  in  RIGHT  V.  MIGHT:  INTERNATIONAL  LAW  AND 
THE  USE  OF  FORCE  37-69  (Louis  Henkin  et  al.  eds.,  1989);  Jeane  J.  Kirkpatrick  &  Allan  Gerson, 
The  Reagan  Doctrine,  Human  Rights,  and  International  Law,  in  id.  at  19-36;  and  Falk,  supra  note 
8,  at  500-98  and  citations  therein.  See  also  INTERNATIONAL  COMMISSION  ON  INTERVENTION 

and  State  Sovereignty,  The  Responsibility  to  Protect  (Gareth  Evans  &  Mohamed 
Sahnoun  co-chairs,  2001).  The  political,  legal,  and  moral  issues  raised  by  the  idea  of 
humanitarian  intervention  and  the  history  of  external  interference  in  countries  to  uphold 
human  rights  or  try  to  protect  individuals  or  groups  against  oppression  are  complex.  They 
involve  conflicting  policy  and  emotional  impulses.  Among  the  issues  are  the  principle  of  the 
sovereign  equality  and  independence  of  States,  the  prohibition  on  the  use  of  force,  the  German 
murder  of  the  European  Jews  in  World  War  II,  which  frames  responses  to  massive  and, 
particularly,  genocidal  killings  whatever  the  specifiable  international  impact,  and  the  difficulty 
of  defining  tripwires.  The  last  involves  the  questions,  among  others,  of  how  many  deaths 
justify  or  require  intervention  and  who  will  bear  the  burdens  and  risks  of  intervention. 

10.  Security  Council  Presidential  Statements  are  delivered  on  behalf  of  the  entire  Security 
Council  by  the  President.  They  are  adopted  by  consensus,  not  a  vote. 

11.  UNSCR  1441  (Nov.  8,  2002). 

12.  Id.  J  1. 

13.  See  generally,  Nicholas  Rostow,  The  International  Use  of  Force  after  the  Cold  War,  32 
Harvard  International  Law  Journal  41 1  (1991). 

14.  UNSCR  660  (Aug.  2,  1990). 

15.  UNSCR  661  (Aug.  6,  1990). 

16.  Id. 

17.  UNSCR  665  (Aug.  25,  1990).  The  US  Navy's  enforcement  of  the  embargo  began  in  the  first 
weeks  after  the  invasion,  prior  to  the  adoption  of  Resolution  665.  President  George  H.W.  Bush's 
letter  to  the  Speaker  of  the  House  of  Representatives  and  President  pro  tempore  of  the  Senate, 
August  9, 1990,  explained  the  US  response  to  the  invasion  as  "in  exercise  of  our  inherent  right  of 
individual  and  collective  self-defense."  PUBLIC  PAPERS  OF  THE  PRESIDENTS  OF  THE  UNITED 
STATES,  GEORGE  BUSH,  Vol.  II  at  1 1 16  (1991).  See  also  the  letter  of  August  16, 1990  from  the  US 
charge  d'affaires  to  the  President  of  the  Security  Council  (S/21537)  (US  interception  of  vessels  at 
request  of  government  of  Kuwait). 

18.  UNSCR  666  (Sept.  13,  1990). 

19.  UNSCR  664  (Aug.  18,  1990). 

20.  E.g.,  UNSCR  669  (Sept.  24,  1990)  (addressing  "increasing  number  of  requests  for 
assistance"  under  Article  50  of  the  UN  Charter). 

21.  UNSCR  678  (Nov.  29,  1990). 

22.  Id.  f  2  [emphasis  added]. 

23.  UNSCR  686  (Mar.  2,  1991),  preambular  J  5.  See  Taft  &  Buchwald,  supra  note  8,  at  558. 


33 


International  Law  and  the  2003  Campaign  against  Iraq 

24.  UNSCR  687  (Apr.  3,  1991),  preambular  5  25. 

25.  letter  dated  April  6,  1991  from  the  Permanent  Representative  of  Iraq  to  the  UN  Secretary 
General  and  to  the  President  of  the  Security  Council,  UN  Doc.  S/22456  (Apr.  6,  1991).  Security 
Council  Resolution  687,  paragraph  33,  required  such  notice  for  a  "formal  cease-fire"  to  take  effect. 

26.  Boutros  Boutros-Chali,  Introduction,  in  United  Nations  Blue  Book  Series,  Volume  IX: 
mi  United  Nations  and  the  Iraq-Kuwait  Conflict,  1990-1996,  at  29  (1996).  The 
Secretary-General's  view  in  1996  was  the  same  as  it  had  been  in  1993.  See  Taft  &  Buchwald,  supra 
note  8,  at  559,  quoting  UN  Press  Release  SG/SM/4902/Rev.  1  at  1  (Jan.  15,  1993).  ("Q:  Do  you 
approve  of  yesterday's  raid  against  Iraq?  The  Secretary  General:  The  raid  was  carried  out  in 
accordance  with  a  mandate  from  the  Security  Council  under  resolution  678  (1991  [sic]),  and  the 
motive  for  the  raid  was  Iraq's  violation  of  the  resolution,  which  concerns  the  cease-fire.  As 
Secretary-General  of  the  United  Nations,  I  can  tell  you  that  the  action  was  in  accordance  with  the 
resolutions  of  the  Security  Council  and  the  Charter  of  the  United  Nations.") 

27.  UNSCR  707  (Aug.  15,  1991),  preambular  ff  7  and  11  (failure  to  report  weapons  and 
concealment  of  activities  "constitute  a  material  breach  of  its  acceptance  of  the  relevant 
provisions  of  that  resolution  which  established  a  cease-fire  and  provided  the  conditions  essential 
to  the  restoration  of  peace  and  security  in  the  region."  Id.  at  preambular  f  1 1). 

28.  Convention  on  the  Law  of  Treaties,  Vienna,  May  23, 1969,  art.  60, 1155U.N.T.S.  331.  Article 
60(  1 ):  "A  material  breach  of  a  bilateral  treaty  by  one  of  the  parties  entitles  the  other  to  invoke  the 
breach  as  a  ground  for  terminating  the  treaty  or  suspending  its  operation  in  whole  or  in  part." 
Article  60(2):  "A  material  breach  of  a  multilateral  treaty  by  one  of  the  parties  entitles:  (a)  the 
other  parties  by  unanimous  agreement  to  suspend  the  operation  of  the  treaty  in  whole  or  in  part 
or  to  terminate  it  either:  (i)  in  the  relations  between  themselves  and  the  defaulting  State,  or  (ii)  as 
between  all  the  parties;  (b)  a  party  specially  affected  by  the  breach  to  invoke  it  as  a  ground  for 
suspending  the  operation  of  the  treaty  in  whole  or  in  part  in  the  relations  between  itself  and  the 
defaulting  State;  (c)  any  party  other  than  the  defaulting  State  to  invoke  the  breach  as  a  ground  for 
suspending  the  operation  of  the  treaty  in  whole  or  in  part  with  respect  to  itself  if  the  treaty  is  of 
such  a  character  that  a  material  breach  of  its  provisions  by  one  party  radically  changes  the 
position  of  every  party  with  respect  to  the  further  performance  of  its  obligations  under  the 
treaty."  The  United  States  is  not  a  party  to  this  Convention  but  regards  most  provisions  as 
generally  accurate  restatements  of  the  binding  customary  international  law  of  treaties. 

29.  Id. 

30.  US  Department  of  State,  Historical]  Review  of  UNMOVIC's  Report  of  Unresolved 
Disarmament  Issues,  Mar.  10,  2003,  available  at  www.state.gov/r/pa/prs/ps/2003/ 185 13.htm. 

3 1 .  Boutros-Ghali,  supra  note  26.  In  one  case,  the  United  States  and  Britain  launched  air  attacks 
against  Iraq  a  week  after  the  Security  Council  found  Iraq  to  be  in  material  breach.  See  id.  at  132- 
33  (Jan.  Hand  18,  1993). 

32.  See  Michael  J.  Matheson,  Legal  Authority  for  the  Possible  use  of  Force  Against  Iraq,  98 
American  Society  of  International  Law  Proceedings  136,  142  (1998).  An  armistice 
suspends  military  operation  by  mutual  agreement.  A  party  can  resume  hostilities  if  there  is  a 
"serious  violation"  of  the  armistice.  Regulations  Annexed  to  Convention  (IV)  Respecting  the 
Law  and  Customs  of  War  on  Land,  Oct.  18,  1907,  art.  36,  36  Stat.  2277,  2305.  See  Taft  & 
Buchwald,  supra  note  8,  at  559;  YORAM  DlNSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  50 
(3d  ed.  2001)  ("A  labeling  of  Resolution  687  as  a  permanent  cease-fire  is  a  contradiction  in 
terms:  a  cease-fire,  by  definition,  is  a  transition-period  arrangement.") 

33.  UNSCR  707  (Aug.  15,  1991);  Security  Council  Presidential  Statements  (PRST)  UN  Doc.  S/ 
23609  (  Feb.  !  9,  1992);  UN  Doc.  S/23663  (Feb.  28,  1992);  UN  Doc.  S/23699  (Mar.  11,  1992);  UN 
Doc.  S/24240(July6,  1992);  UN  Doc.  S/25081  (Jan.  8,  1993);  UN  Doc.  S/25091  (Jan.  11,  1993); 


34 


Nicholas  Rostow 


UN  Doc.  S/25970  (June  18,  1993);  and  UNSCR  1441  (Nov.  8,  2002).  After  1993  and  until  2002, 
the  Security  Council  would  not  agree  to  the  use  of  the  words  "material  breach"  because  Council 
Members  understood  them  explicitly  to  justify  a  use  of  force,  and  France  and  Russia  would  not 
concur.  As  a  result,  lesser  characterizations  such  as  "clear"  or  "flagrant"  "violations"  were  used. 
See,  e.g.,  UNSCR  1115  (June  21,  1997). 

34.  UN  Doc.  S/22746  (June  28, 1991);  UN  Doc.  S/PRST/ 1994/58  (June  14, 1996);  UNSCR  1 134 
(Oct.  23,  1997). 

35.  UN  Doc.  S/23517  (Feb.  5,  1992);  UN  Doc.  S/23709  (Mar.  12,  1992);  UNSCR  778  (Oct.  2, 
1992);  UN  Doc.  S/PRST/ 1994/58  (Oct.  8,  1994);  UNSCR  1051  (Mar.  27,  1996);  UN  Doc.  S/ 
PRST/1996/49  (Dec.  30,  1996);  UN  Doc.  S/PRST/ 1994/33  (June  13,  1997);  UNSCR  1137  (Nov. 
12,  1997);  UN  Doc.  S/PRST/ 1997/54  (Dec.  3,  1997);  UN  Doc.  S/1998/820  (Sept.  9,  1998); 
UNSCR  1284  (Dec.  17,  1999). 

36.  UN  Doc.  S/25091  (Jan.  11,  1993). 

37.  UN  Doc.  S/PRST/ 1996/ 11  (Mar.  19, 1996);  UNSCR  1060  (June  12, 1996);  UN  Doc.  S/PRST/ 
1997/56  (Dec.  22,  1997). 

38.  UN  Doc.  S/PRST/1994/58  (June  14,  1996);  UNSCR  1115  (June  21,  1997). 

39.  UN  Doc.  S/PRST/ 1996/36  (Aug.  23,  1996). 

40.  UN  Doc.  S/22746  (June  28, 1991);  UN  Doc.  S/23609  (Feb.  19, 1992);  UN  Doc.  S/23663  (Feb. 
28,  1992);  UN  Doc.  S/23803  (Apr.  10, 1992);  UN  Doc.  S/25081  (Jan.  8,  1993);  UN  Doc.  S/25091 
(Jan.  11,  1993);  UN  Doc.  S/25970  (June  18,  1993);  UN  Doc.  S/26006  (June  28,  1993);  UNSCR 
949  (Oct.  15, 1994);  UN  Doc.  S/PRST/ 1997/49  (Oct.  29, 1997);  UN  Doc.  S/PRST/ 1997/51  (Nov. 
13, 1997);  UNSCR  1441  (Nov.  8, 2002).  Iraq's  record  during  1991-96  is  summarized  in  Boutros- 
Ghali,  supra  note  26,  at  74-98.  Uses  of  force  against  Iraq  by  US  and  other  forces  sometimes 
followed  these  Council  actions. 

41.  See,  e.g.,  Franck,  What  Happens  Now?  The  United  Nations  After  Iraq,  supra  note  7,  at  613; 
Patrick  McLain,  Settling  the  Score  with  Saddam:  Resolution  1441  and  Parallel  Justifications  for  the 
Use  of  Force  Against  Iraq,  13  DUKE  JOURNAL  OF  INTERNATIONAL  LAW  233,  249  (2003) 
(paragraph  34  of  UNSCR  6897  (1991)  ("Decides  to  remain  seized  of  the  matter  and  to  take  such 
further  steps  as  may  be  required  for  implementation  of  the  present  resolution  and  to  secure 
peace  and  security  in  the  region")  meant  the  Security  Council  alone  could  decide  when  the 
authorization  in  Resolution  678  (1990)  could  be  invoked);  Lobel  &  Ratner,  supra  note  8. 

42.  Including  France  and  Boutros-Ghali.  See  Taft  &  Buchwald,  supra  note  8,  at  559  n.10; 
Boutros-Ghali,  supra  note  26. 

43.  See  Matheson,  supra  note  32,  at  137,  139,  141-42,  146.  At  that  time,  Mr.  Matheson  was 
Principal  Deputy  Legal  Adviser,  US  Department  of  State.  Professor  Franck  was  one  of  the 
participants  in  the  discussion  at  that  meeting  of  the  American  Society  of  International  Law  and 
disagreed  with  Matheson.  Id.  at  143,  144,  145  (noting,  among  other  things,  the  usefulness, 
admitted  by  all,  of  the  threat  to  use  force  to  enforce  the  Security  Council  resolutions  on  Iraq  and 
arguing  that  the  threat  itself  was  unlawful). 

44.  Cf  UNSCR  929  (June  22,  1994)  (stating  that  the  mission  in  Rwanda  will  be  limited  to  a 
period  of  two  months  following  the  adopting  of  the  present  resolution);  UNSCR  1031  (Dec.  15, 
1995)  (terminating  the  authority  for  States  to  take  certain  action  in  Bosnia). 

45.  See  the  exchanges  on  October  17,  2002,  and  June  8,  2000,  between  US  and  UK 
representatives  on  one  side  and  the  Russian  representative  on  the  other  regarding  the  No-fly 
Zones  for  representative  expressions  of  position.  S/PV.4625  (Resumption  3)  at  22  (Oct.  17,  2002 
(Russia)),  S/PV.4152,  at  3-4,  5-6  (June  8,  2000  (Russia,  UK,  US)).  In  April  1991,  the  United 
States,  the  United  Kingdom,  and  France  established  a  "No-fly  Zone"  over  northern  Iraq  in  which 
Iraqi  aircraft  were  not  permitted  to  fly.  The  immediate  cause  of  the  decision  to  establish  this  No- 


35 


International  Law  and  the  2003  Campaign  against  Iraq 

fly  Zone  was  the  commencement  of  new  attacks  on  Iraqi  Kurds  in  the  spring  of  1991  and  a 
resulting  exodus  of  a  large  number  of  refugees  to  Turkey,  which  threatened  to  ignite  a  new 
conflict.  In  August  1992,  a  similar  No-fly  Zone  was  established  for  southern  Iraq  to  protect  Iraq's 
Shiites  from  attack  by  Saddam  Hussein's  forces.  The  US  Government  defended  the  creation  and 
enforcement  of  the  No-fly  Zones  by  reference  to  UN  Security  Council  Resolution  688,  which  for 
the  first  time  in  UN  Security  Council  history  condemned  internal  repression  as  a  threat  to 
international  peace  and  security,  insisted  on  immediate  access  by  international  humanitarian 
organizations  to  all  those  in  need  of  assistance  in  Iraq,  and  appealed  to  all  UN  Members  to 
contribute  to  such  humanitarian  relief  efforts.  The  enforcement  of  the  No-fly  Zones  required 
thousands  of  individual  sorties.  US  and  other  aircraft  periodically  fired  on  Iraqi  air  defenses 
when  they  appeared  to  threaten  patrolling  planes.  These  forces,  as  well  as  other  forces  in  the 
region,  engaged  in  periodic  attacks  on  Iraqi  military  or  intelligence  targets  during  the  1990s  as  a 
result  of  Iraqi  actions,  such  as  the  attempt  on  the  life  of  President  George  H.W.  Bush  in  1993. 
Stevens,  Wall  &  Dilenc,  supra  note  8,  at  9-11;  KENNETH  M.  POLLACK,  THE  THREATENING 
STORM:  THE  CASE  FOR  INVADING  IRAQ  66-67  (2002).  See  also  The  History  Guy:  "The  No-Fly 
Zone  War"  (US/UK-Iraq  Conflict)  1991-2003,  www.historyguy.com/no-fly_zone_war.html. 

46.  The  Written  Answer  of  the  Attorney  General,  Lord  Goldsmith,  to  a  Parliamentary  Question 
on  the  legal  basis  for  the  use  of  force  in  Iraq,  March  17,  2003  (UK  Foreign  and  Commonwealth 
Office),  ff  2-4.  See  also  the  opinion  of  Christopher  Greenwood,  CMG,  QC,  October  24,  2002, 
available  at  www.parliament.the-stationery-office.co.uk.. 

47.  December  16-20,  1998,  involving  some  30,000  troops,  37  warships,  and  348  aircraft.  See 
Stevens,  Wall,  &  Dilenc,  supra  note  8,  at  18-19. 

48.  Letters  from  US  and  UK  representatives,  dated  December  16, 1998,  UN  Docs.  S/ 1998/1 191, 
S/1998/1182. 

49.  UN  Doc.  S/PV.3955  at  4  (Dec.  16,  1998).  On  the  legal  significance  of  the  paragraph  in 
Security  Council  resolutions  referring  to  remaining  seized  of  the  matter,  see  THE  CHARTER  OF 
THE  UNITED  NATIONS:  A  COMMENTARY  287-98  (Bruno  Simma  et  al.  eds.,  2d  ed.  2002);  Leland 
M.  Goodrich,  Edvard  Hambro  &  Anne  Patricia  Simons,  Charter  of  the  United 
Nations:  Commentary  and  Documents  129-33  (3d  ed.  1969);  Sydney  D.  Bailey  &  Sam 
Daws,  The  Procedure  of  the  UN  Security  Council  473  (3d  ed.  1998)  (language  regarding 
being  seized  with  a  matter  pertains  to  Article  12  and  relations  between  the  Security  Council  and 
General  Assembly). 

50.  See,  e.g.,  infra  note  60. 

51.  UN  Doc.  S/PV.4644  (Nov.  8,  2002),  at  5  (Levitte). 

52.  UNMOVIC  had  been  established  pursuant  to  UN  Security  Council  Resolution  1284  of 
December  17,  1999,  to  undertake  "the  responsibilities  mandated  to  the  Special  Commission" 
(UNSCOM).  UNSCR  1284  (Dec.  17,  1999)  at  5  2.  See  POLLACK,  supra  note  45,  at  100  on  the 
adoption  of  UNSCR  1284. 

53.  UNSCR  1441  (Nov.  8,  2002),  at  5  4. 

54.  Hans  Blix,  Executive  Chairman  of  UNMOVIC,  told  the  Security  Council  in  informal 
consultations  on  January  9,  2003,  that  Iraq's  Declaration  "is  rich  in  volume  but  poor  in  new 
information  about  weapons  issues  and  practically  devoid  of  new  evidence  on  such  issues." 
Briefing  the  Security  Council,  January  9,  2003,  available  at  www.un.orgs/Depts/unmovic/new/ 
pages/security_council_briefings.asp.  See  also  UNMOVIC's  12th  quarterly  report,  Feb.  28, 2003, 
55  6-1 1  (S/2003/232).  In  public  Security  Council  meetings  and  in  informal  consultations  of  the 
Council,  Blix  and  ElBaradei  offered  the  same  message.  Blix  reported  increasing  Iraqi 
cooperation  with  inspections  as  the  threat  of  the  use  of  force  became  more  intense.  On  February 
1 4, 2003,  ElBaradei,  the  Director  General  of  the  IAEA,  told  the  Security  Council  that  "We  have 


36 


Nicholas  Rostow 


to  date  found  no  evidence  of  ongoing  prohibited  nuclear  or  nuclear-related  activities  in  Iraq." 
S/PV.4707  at  9  (Feb.  14, 2003).  The  only  records  of  informal  consultations  are  those  notes  taken 
by  delegation  or  UN  staffs  because,  technically,  informal  consultations  are  just  that;  they  are  not 
meetings  of  the  Security  Council.  One  transcript  of  private  Security  Council  meetings  is  made 
and  preserved  in  the  Office  of  the  Secretary-General.  Provisional  Rules  of  Procedure  of  the 
Security  Council  (Dec.  1982),  S/96/Rev.  7,  art.  51.  A  communique  is  issued  after  each  private 
meeting.  Id.,  art.  55. 

55.  For  example,  on  January  9, 2003,  Blix  and  ElBaradei  reported  examples  of  missing  weapons- 
related  materials  for  which  Iraq  provided  no  explanation  or  an  inadequate  explanation  in  its 
declaration  of  December  7,  2002.  The  text  of  those  reports  is  available  at  www.un.orgs/Depts/ 
unmovic/new/pages/security_council_briefings.asp.  See  also  Taft  &  Buchwald,  supra  note  8,  at 
562n.21. 

56.  David  Kay,  Statement  before  the  House  Permanent  Select  Committee  on  Intelligence,  et  al., 
On  the  Interim  Progress  Report  on  the  Activities  of  the  Iraq  Survey  Group,  Oct.  2,  2003;  Colin  L. 
Powell,  What  Kay  Found,  WASHINGTON  POST,  Oct.  7,  2003,  at  A7.  See  also  Richard  W.  Stevenson, 
Iraq  Illicit  Arms  Gone  Before  War,  Inspector  States,  NEW  YORK  TIMES,  Jan.  24,  2004,  at  Al.  See 
generally  the  "Duelfer  Report,"  the  report  of  the  Iraq  Survey  Group,  Comprehensive  Report  of 
the  Special  Adviser  to  the  DCI  on  Iraq's  WMD  (Sept.  30,  2004),  available  at  http://www.cia.gov/ 
cia/reports/iraq_wmd_2004/  [hereinafter  the  Duelfer  Report]. 

57.  At  no  time  in  public  or  in  informal  consultations,  did  any  member  of  the  Security  Council 
agree  that  Iraq  had  fulfilled  its  obligations  under  Resolution  1441. 

58.  See  Stromseth,  supra  note  8,  at  630-31. 

59.  UNSCR1441,atf  12. 

60.  This  conclusion  is  drawn  from  the  public  record  only,  including,  such  statements  as  those  of 
then-French  Ambassador  to  the  United  Nations,  Jean-David  Levitte,  and  his  Russian 
counterpart,  Sergei  Lavrov,  who  participated  in  the  negotiation  of  Security  Council  Resolution 
1441.  UN  Doc.  S/PV.4644,  at  5  (Levitte:  "The  rules  of  the  game  spelled  out  by  the  Security 
Council  are  clear  and  demanding  and  require  the  unfailing  cooperation  of  Iraqi  leaders.  If  Iraq 
wants  to  avoid  confrontation  it  must  understand  that  this  is  its  last  opportunity.");  Id.  at  8-9 
(Lavrov:  "As  a  result  of  intensive  negotiations,  the  resolution  just  adopted  contains  no 
provisions  for  the  automatic  use  of  force.  .  .  .  What  is  most  important  is  that  the  resolution 
deflects  the  direct  threat  of  war  and  that  it  opens  the  road  towards  further  work  in  the  interests  of 
a  political  diplomatic  settlement.")  See  also  Stromseth,  supra  note  8,  at  629-31  (reviewing  the 
public  record  of  the  diplomacy  leading  to  the  adoption  of  Resolution  1441  and  quoting  Levitte, 
by  then  Ambassador  to  the  United  States:  "I  went  to  the  State  Department  and  to  the  White 
House  to  say,  don't  do  it  [seek  a  new  resolution].  First,  because  you'll  split  the  Council  and 
second,  because  you  don't  need  it.  Let's  agree  to  disagree  between  gentlemen,  as  we  did  on 
Kosovo,  before  the  war  in  Kosovo."  Id.  at  630-31.)  See  also  Matheson,  supra  note  32,  at  139 
(severe  consequences  refer  to  possible  use  of  force). 

61.  See  also  Lord  Goldsmith's  opinion,  supra  note  45,  at  background  document  paragraph  1 1 
(requirement  that  Iraq  be  given  a  final  opportunity  and  that  the  Security  Council  consider  any 
failure  meant  that  Resolution  1441  did  not  automatically  authorize  the  2003  campaign). 

62.  UNSCRs  986  (Apr.  14,  1995),  1111  (June  4,  1997),  1129  (Sept.  12,  1997),  1143  (Dec.  4, 
1997),  1153  (Feb.  20,  1998),  1158  (Mar.  25,  1998),  1175  Qune  19,  1998),  1242  (May  21,  1999), 
1266  (Oct.  4, 1999),  1275  (Nov.  19, 1999),  1280  (Dec.  3, 1999),  1293  (Mar.  31, 2000),  1302  (June 
8,  2000),  1330  (Dec.  5,  2000),  1352  (June  1,  2001),  1360  (July  3,  2001),  1382  (Nov.  29,  2001), 
1409  (May  14,  2002),  1447  (Dec.  4,  2002),  1454  (Dec.  30,  2002),  1472  (Mar.  29,  2003),  and  1476 
(Apr.  24,  2003). 


37 


International  Law  and  the  2003  Campaign  against  Iraq 

63.  Boutros-Ghali,  supra  note  26,  at  93;  POLLACK,  supra  note  45,  at  71-80,  87-94,  232-36. 

64.  transcript  of  President  George  W.  Bush  News  Conference  on  Iraq,  March  6, 2003,  available 
at  http://cnn.usnews.com,  at  5. 

65.  On  September  12,  2001,  Saddam  Hussein  said  on  Iraq  Television  in  Arabic  that  "the  United 
States  reaps  the  thorns  that  its  rules  have  planted  in  the  world."  FBIS,  Sept.  12, 2001;  Open  Letter  to 
the  American  Peoples,  Sept.  1 1, 2001.  See  also  SHAWCROSS,  supra  note  9,  at  109  (On  September  1 1, 
2002,  an  Iraqi  government  paper  calls  attacks  of  September  11,  2001,  "God's  Punishment"). 

66.  Blair,  supra  note  8. 

67.  David  Hannay,  Before  and  After,  TIMES  LITERARY  SUPPLEMENT,  Feb.  13,  2004,  at  6  (review 
of  WILLIAM  SHAWCROSS,  ALLIES:  THE  U.S.,  BRITAIN,  AND  EUROPE,  AND  THE  WAR  IN  IRAQ 
(2004)  and  TOBY  DODGE,  INVENTING  IRAQ  (2004).  Lord  Hannay  was  British  Ambassador  to  the 
United  Nations,  1990-95. 

68.  WASHINGTON  POST,  June  29,  2003,  at  B7.  The  material  in  square  brackets  is  Hannay's. 
Hannay,  supra  note  67. 

69.  SHAWCROSS,  supra  note  9,  at  189-93  ("The  Kay  report  did  not  show  that  Iraq  had  been  an 
immediate  threat.  But  it  did  provide  irrefutable  evidence  that  Saddam's  WMD  [weapons  of  mass 
destruction]  ambitions  were  an  inevitable  threat.");  Blair,  supra  note  8  ("Actually,  it  is  now 
apparent  from  the  Survey  Group  that  Iraq  was  indeed  in  breach  of  UN  Resolution  1441.  It  did 
not  disclose  laboratories  and  facilities  it  should  have;  nor  the  teams  of  scientists  kept  together  to 
retain  their  WMD  including  nuclear  expertise;  nor  its  continuing  research  relevant  to  CW 
[chemical  weapons]  and  BW  [biological  weapons].  As  Dr.  Kay,  the  former  head  of  the  ISG  [Iraq 
Survey  Group]  who  is  now  quoted  as  a  critic  of  the  war  has  said:  'Iraq  was  in  clear  violation  of  the 
terms  of  Resolution  1441'.  And  T  actually  think  this  [Iraq]  may  be  one  of  those  cases  where  it  was 
even  more  dangerous  than  we  thought.' . .  .  It's  just  worth  pointing  out  that  the  search  is  being 
conducted  in  a  country  twice  the  land  mass  of  the  UK,  which  David  Kay's  interim  report  in 
October  2003  noted,  contains  130  ammunition  storage  areas,  some  covering  an  area  of  50  square 
miles,  including  some  600,000  tons  of  artillery  shells,  rockets  and  other  ordnance,  of  which  only 
a  small  proportion  have  as  yet  been  searched  in  the  difficult  security  environment  that  exists.") 

70.  S/PV.4644,  at  5,  8-9  (Nov.  8,  2002)  (Levitte,  Lavrov);  UN  Doc.  S/2002/1236  (Nov.  8,  2002) 
(Joint  Statement  of  China,  France,  and  Russia).  See  also  the  Duelfer  Report,  supra  note  56,  vol.  I, 
at  1  (key  findings)  ("[Saddam  Husayn  sought  to  balance  the  need  to  cooperate  with  UN 
inspectors — to  gain  support  for  lifting  sanctions — with  his  intention  to  preserve  Iraq's 
intellectual  capital  for  WMD  with  a  minimum  of  foreign  intrusiveness  and  loss  of  face.");  also  id. 
at  68  ("Asked  by  a  US  interviewer  in  2004,  why  he  had  not  used  WMD  against  the  Coalition 
during  Desert  Storm  [  199 1  ] ,  Saddam  replied,  'Do  you  think  we  are  mad?  What  would  the  world 
have  thought  of  us?  We  would  have  completely  discredited  those  who  had  supported  us.'")  The 
Duelfer  Report  was  not  completed  at  the  time  this  article  originally  went  to  press.  It  bears  close 
scrutiny  as  it  makes  clear  the  scope  of  Iraq's  ambitions  with  respect  to  the  development  and 
delivery  of  WMD  and  its  existing  programs  although  the  Iraq  Survey  Group  did  not  find  caches 
of  WMD,  which  so  many  people  expected  it  to  do.  Although  not  a  model  of  clarity,  the  Report 
suggests  the  existence  of  biological  weapons  materials.  See  id..,  vol.  Ill  at  18  etseq.  on  the  findings 
by  the  Iraq  Survey  Group  with  respect  to  Iraq's  biological  weapons  research  and  development. 
See  also  id.  at  58  ("An  ISG  [Iraq  Survey  Group]  team  obtained  two  vials  of  C.[l]ostridium] 
perfringens  [causative  agent  of  gas  gangreene]  as  well  as  one  vial  ofC.botulinum  type  B  [causative 
agent  of  the  disease  botulism],  from  a  mid-level  scientist  who  formerly  worked  in  the  BW 
[biological  warfare]  program."),  and  2  (ISG  recovery  of  biological  warfare-related  seed  stocks 
after  Operation  Iraqi  Freedom). 


38 


Nicholas  Rostow 


71.  E.g.,  UN  Doc.  S/PV.4707,  at  16  (Spain),  17  (United  Kingdom),  28  (Bulgaria)  (Feb.  14, 
2003);  Franck,  supra  note  43,  at  145. 

72.  UN  Doc.  S/PV.4644,  at  9  (Nov  8,  2002). 

73.  Id.  at  5. 

74.  POLLACK,  supra  note  45,  at  100-01. 

75.  See,  e.g.,  Robert  Kagan,  A  Tougher  War  for  the  US  is  One  of  Legitimacy,  NEW  YORK  TIMES, 
Jan.  24,  2004,  at  B7  ("Today,  most  Europeans  believe  that  the  United  States  exaggerates  the 
dangers  in  the  world.  After  Sept.  11,  most  Americans  fear  that  they  haven't  taken  those  dangers 
seriously  enough."  Id.  at  B9).  Carl  Bildt,  former  Prime  Minister  of  Sweden,  noted  that,  for 
Europe,  the  most  important  recent  historical  date  was  1989  when  the  Berlin  Wall  fell,  whereas 
for  the  United  States,  the  most  important  recent  date  was  September  11, 2001:  "While  we  talk  of 
peace,  they  talk  of  security.  While  we  talk  of  sharing  sovereignty,  they  talk  about  exercising 
sovereign  power.  When  we  talk  about  a  region,  they  talk  about  the  world."  Adam  Nicolson,  U.S. 
Thinks  Europeans  are  Cockroaches,  LONDON  DAILY  TELEGRAPH,  electronic  edition,  Nov.  4, 2003; 
SHAWCROSS,  supra  note  9,  at  50  (Prime  Minister  Blair  told  the  House  of  Commons  in  March 
2003  that  "September  1 1  changed  the  psychology  of  America.  It  should  have  changed  the 
psychology  of  the  world."). 

76.  UN  Doc.  S/PV.4833  ("Justice  and  the  Rule  of  Law:  the  United  Nations  Role,"  Sept.  24, 2003). 


39 


PART  II 


AIR  AND  LAND  WARFARE 
OPERATIONAL  CHALLENGES 


IV 


Jus  in  Bello  Issues  Arising 
in  the  Hostilities  in  Iraq  in  2003 

Yoram  Dinstein1 


T 


he  hostilities  in  Iraq  in  2003  brought  to  the  fore  a  number  of  jus  in  bello  issues 
deserving  special  consideration.  This  paper  will  deal  with  ten  such  issues. 

The  Status  of  Unlawful  Combatants 

The  subject  of  unlawful  combatancy  has  already  been  addressed  by  the  present  writer 
in  the  conference  on  Afghanistan  in  2002.2  It  is  not  proposed  to  repeat  here  what  was 
stated  at  some  length  in  the  earlier  essay.  Suffice  it  to  state  that,  under  customary  in- 
ternational law,  a  combatant  who  does  not  fulfill  the  cumulative  conditions  of  lawful 
(or  privileged)  combatancy — inter  alia,  that  of  having  "a  fixed  distinctive  sign  recog- 
nizable at  a  distance"3 — becomes  an  unlawful  combatant,  i.e.,  he  is  denied  the  privi- 
leges of  a  prisoner  of  war  status  and  exposed  to  the  full  rigor  of  the  domestic  penal 
system  for  any  act  of  violence  perpetrated  by  him  in  civilian  clothes. 

The  use  of  uniforms  by  members  of  the  regular  armed  forces  is  a  matter  of  cus- 
tom, esprit  de  corps  and  convenience.  Lawful  combatancy  is  not  determined  by  the 
wearing  of  a  uniform  per  se.  As  indicated,  it  is  determined  {inter  alia)  by  the  wear- 
ing of  a  fixed  distinctive  emblem  recognizable  at  a  distance.  This  fixed  distinctive 
emblem  may  be  less  than  a  full-fledged  uniform  (e.g.,  a  special  headgear  or  an 
armband).  But  if  the  fixed  distinctive  emblem  of  regular  armed  forces  is  a  uniform, 


Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

then  the  removal  of  that  uniform  in  (or  in  proximity  to)  combat  does  divest  the 
person  acting  that  way  of  lawful  combatancy. 

The  issue  of  the  removal  of  a  uniform  (as  a  fixed  distinctive  emblem)  by  mem- 
bers of  the  regular  armed  forces  must  be  examined  within  the  confines  of  space  and 
time.  A  member  of  the  armed  forces  who  is  performing  his  duties  far  from  the  con- 
tact zone  with  the  enemy  and  removes  his  uniform  without  any  possible  intention 
(or  even  reasonable  ability)  to  deceive  the  enemy  as  to  his  true  combatant  status 
does  not  thereby  lose  his  entitlement  to  prisoner  of  war  privileges.  Thus,  the  ques- 
tion whether  military  personnel  stationed  in  the  Pentagon  wear  uniform  or  civilian 
clothes  while  at  work  is  irrelevant  to  their  status  as  lawful  combatants  while  hostili- 
ties are  raging  in  Iraq.  However,  any  member  of  the  armed  forces  who  removes  his 
uniform  during  combat — or  even  en  route  to  combat  or  in  the  course  of  disen- 
gagement from  it — becomes  an  unlawful  combatant. 

The  legal  position  is  the  same  whether  the  combatants  under  discussion  are 
Americans  or  Iraqis.  The  jus  in  bello  applies  equally  to  both  sides  in  an  international 
armed  conflict,  regardless  of  who  is  in  the  right — and  who  is  in  the  wrong — in 
terms  of  the  jus  ad  bellum.4  One  of  the  hallmarks  of  the  hostilities  in  Iraq,  in  2003, 
was  that  much  of  the  fighting  on  the  Iraqi  side  was  conducted  by  "fedayeen"  who 
fought  Coalition  forces  out  of  uniform.  These  "fedayeen"  were  unlawful  combat- 
ants. But  so  were  any  members  of  the  US  Special  Forces  (or  other  Coalition  mili- 
tary units)  who  fought  out  of  uniform. 

Removal  by  a  combatant  of  a  fixed  distinctive  emblem  (such  as  a  uniform)  af- 
fects his  entitlement  to  prisoner  of  war  status.  It  exposes  him  either  to  (i)  trial  by 
the  domestic  courts  of  the  Detaining  Power  for  any  act  amounting  to  an  ordinary 
crime  under  the  local  legal  system — such  as  murder,  arson,  etc. — which  would  be 
condoned  if  carried  out  by  lawful  combatants  in  the  course  of  hostilities;  or  to  (ii) 
detention  without  benefit  of  the  immense  panoply  of  protection  spread  over  pris- 
oners of  war  pursuant  to  Geneva  Convention  (III).  However,  removal  of  the  fixed 
distinctive  emblem  does  not  amount  to  a  breach  of  the  jus  in  bello  itself,  and  cannot 
be  deemed  a  war  crime. 

Admittedly,  Article  37  of  Additional  Protocol  I  of  1977  provides: 

1.  It  is  prohibited  to  kill,  injure  or  capture  an  adversary  by  resort  to  perfidy.  Acts 
inviting  the  confidence  of  an  adversary  to  lead  him  to  believe  that  he  is  entitled  to,  or  is 
obliged  to  accord,  protection  under  the  rules  of  international  law  applicable  in  armed 
conflict,  with  intent  to  betray  that  confidence,  shall  constitute  perfidy.  The  following 
acts  are  examples  of  perfidy: 

(c)  the  feigning  of  civilian,  non-combatant  status.' 


44 


Yoram  Dinstein 


Neither  the  United  States  nor  Iraq  is  a  Contracting  Party  to  the  Protocol  which  is, 
therefore,  inapplicable  in  the  hostilities  between  them.  But,  in  any  event,  the  provi- 
sion of  Article  37(  1 )  (c)  must  be  viewed  as  curious  and  in  some  respects  misleading. 
On  the  face  of  it,  a  radical  change  is  brought  about  in  customary  international  law 
as  regards  the  status  of  combatants  who  feign  civilian  status  by  removing  their 
fixed  distinctive  emblem  and  wear  plain  clothing.  In  conformity  with  Article 
37(1  )(c),  if  the  act  leads  to  the  killing,  injury  or  capture  of  an  adversary,  who  is  in- 
vited to  believe  that  he  is  facing  a  civilian,  the  act  is  considered  perfidious,  and  it 
constitutes  a  direct  breach  of  the  jus  in  bello  itself. 

The  wording  of  Article  37(l)(c),  to  say  the  least,  is  surprising,  inasmuch  as  the 
Protocol  in  general — far  from  imposing  more  stringent  constraints  on  combatants 
taking  off  their  fixed  distinctive  emblem — actually  relaxes  in  a  controversial  way 
the  standards  of  customary  international  law  in  this  context.  How  can  one  account 
for  the  singular  thrust  of  the  new  stricture?  The  answer  is  that  Article  37  ( 1 )  (c)  does 
not  amount  to  much  more  than  lip-service.  Any  lingering  doubt  is  dispelled  by  a 
rider  in  Article  44(3)  (where  much  of  the  controversial  relaxation  of  unlawful 
combatancy  occurs):  "Acts  which  comply  with  the  requirements  of  this  paragraph 
shall  not  be  considered  as  perfidious  within  the  meaning  of  Article  37,  paragraph 
1(c)."6  Even  the  ICRC  Commentary  concedes  that  "[t]here  is  a  certain  contradic- 
tion in  terms"  between  the  provisions  of  Article  37(l)(c)  and  Article  44(3). 7 

Since — under  customary  international  law — the  removal  of  a  fixed  distinctive 
emblem  (such  as  uniform)  by  a  combatant  during  military  operations  is  a  matter 
of  loss  of  privileged  status,  and  not  a  breach  of  the  jus  in  bello  (let  alone  a  war 
crime),  it  follows  that  each  belligerent  party  is  at  liberty  to  factor  in  a  cost/benefit 
calculus  as  to  whether  or  not  circumstances  militate  in  favor  of  retaining  the  fixed 
distinctive  emblem  or  removing  it.  If  members  of  Special  Forces  units  are  fighting 
behind  enemy  lines,  and  if  the  enemy  has  a  demonstrably  poor  track  record  in  ob- 
serving the  jus  in  hello's  norms  concerning  the  protection  of  hors  de  combat  enemy 
military  personnel,  the  conclusion  may  be  arrived  at  that  on  the  whole  it  is  well 
worth  assuming  the  risks  of  (potential)  loss  of  prisoner  of  war  status  upon  capture 
while  benefiting  from  the  (actual)  advantages  of  disguise.  However,  as  a  rule  and  in 
terms  of  the  armed  forces  in  general  (as  distinct  from  high-hazard  commando 
units),  the  prospect  of  loss  of  prisoner  of  war  status  is  a  significant  consequence 
that  should,  and  does,  weigh  heavily  on  commanders  before  they  give  their  assent 
to  an  adventurous  course  of  action. 

The  preservation  of  traditional  modes  of  combat  by  uniformed  (or  otherwise 
properly  identified)  soldiers  is  a  matter  of  great  import.  The  only  way  to  ensure  re- 
spect for  the  basic  principle  of  distinction  between  civilian  and  combatants,  pro- 
tecting the  latter  from  attack  and  injury,  is  to  enable  each  belligerent  party  to  know 

45 


Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

whom  it  is  facing.  A  combatant  disguising  himself  as  a  civilian  deserves  the  sanc- 
tion of  loss  of  prisoner  of  war  status  for  he  endangers  all  civilians. 

Dealing  with  Suicide  Bombers 

There  is  currently  a  lacuna  in  the  jus  in  bello,  insofar  as  the  growing  phenomenon  of 
suicide  bombers  disguised  in  civilian  clothes  is  concerned.8  Clearly,  suicide  bomb- 
ers disguised  in  civilian  clothes  are  unlawful  combatants.  But  what  effective  sanc- 
tion is  available  against  them?  By  its  very  nature,  the  sanction  of  detention  or 
prosecution  (under  the  domestic  legal  system)  is  irrelevant.  A  civilian  (or  a  com- 
batant out  of  uniform)  who  merely  prepares  himself  to  become  a  human  bomb, 
but  is  thwarted  in  the  attempt,  can  still  be  subject  to  detention  or  prosecution. 
Once  the  act  is  executed,  the  perpetrator  is  beyond  the  reach  of  the  law.  The  ques- 
tion as  to  which  measures  can  be  taken  by  way  of  deterrence  against  potential  sui- 
cide bombers  is  by  no  means  resolved  at  the  present  time,  especially  in  light  of  the 
generally  upheld  principle  that  nobody  can  be  punished  for  an  offense  he  has  not 
personally  committed.9  Accomplices  and  accessories  to  the  terrorist  act  can  evi- 
dently be  prosecuted  or  detained,  but  members  of  the  perpetrator's  family — or 
others  associated  with  him — cannot  be  held  responsible  for  his  conduct  solely  be- 
cause of  that  connection. 

A  specific  question  relating  to  suicide  bombers  arises  in  the  context  of  naval 
warfare.  The  issue  is  how  to  protect  hospital  ships  from  immense  potential  peril  of 
being  sunk  by  suicide  bombers  operating  from  speedboats  (a  la  the  well-known  at- 
tack against  the  USS  Cole),  with  a  view  to  causing  vast  numbers  of  casualties.  The 
problem  is  derived  from  the  fact  that  Article  35  of  Geneva  Convention  (II)  of  1949, 
in  listing  conditions  not  depriving  hospital  ships  of  protection,  indicates  that  arms 
held  on  board  must  be  confined  to  those  kept  by  the  crew  for  the  maintenance  of 
order,  for  their  own  defense  or  that  of  the  sick  and  wounded.10  This  appears  to  ex- 
clude machine  guns  (and  of  course  heavier  armament)  which  may  repel  suicide 
bombers."  How  can  hospital  ships  be  safeguarded  against  the  external  threat  of 
suicide  bombers  in  the  absence  of  adequate  armament  on  board?  Probably,  the 
best  solution  would  be  to  allow  light  armed  naval  craft  to  patrol  the  waters  around 
hospital  ships.  But  the  matter  is  not  currently  addressed  by  Geneva  Convention 
(II)  or  by  any  other  instrument. 

Feigned  Surrender 

The  above-mentioned  Article  37  of  Additional  Protocol  I,  in  prohibiting  the  act  of 
killing,  injuring  or  capturing  an  adversary  by  resort  to  perfidy,  refers  also  to:  "(a) 

46 


Yoram  Dinstein 


the  feigning  of . . .  a  surrender."12  No  doubt,  this  is  a  reflection  of  customary  inter- 
national law.  In  Iraq,  there  were  many  instances  in  which  surrender  was  feigned 
perfidiously.  It  must  be  appreciated  that  the  killing,  injuring  or  capture  of  an  ad- 
versary, and  the  perfidious  resort  to  feigning  of  an  intent  to  surrender,  need  not  be 
committed  by  the  same  person  or  persons.  Should  combatants  hoisting  the  white 
flag  of  surrender  be  in  collusion  with  their  companions  (who  are  lying  in  wait), 
perfidy  is  consummated  once  the  latter  open  fire  upon  enemy  soldiers  stepping 
forward  to  take  the  former  as  prisoners  of  war.  Still,  collusion  is  the  key  to  such 
manifestation  of  perfidy.  In  many  combat  situations,  some  individuals  (or  even 
units)  surrender  while  others  continue  to  fight.  Absent  collusion,  the  fact  that  John 
Doe  persists  in  shooting  does  not  mean  that  Richard  Roe  is  feigning  when  raising 
the  white  flag.  To  be  on  the  safe  side,  the  adverse  party's  troops  need  not  expose 
themselves  to  unnecessary  risks,  and  they  may  demand  that  Richard  Roe  step  for- 
ward unarmed.13 

"Human  Shields" 

Possibly  the  most  characteristic  feature  of  the  hostilities  in  Iraq  in  2003  is  that  the 
Saddam  Hussein  regime  constantly — and  flagrantly — resorted  to  the  tactics  of  in- 
termingling civilians  and  combatants,  using  civilians  as  "human  shields"  with  a 
view  to  protecting  combatants  and  military  objectives.  The  deliberate  intermin- 
gling of  civilians  and  combatants,  designed  to  create  a  situation  in  which  any  attack 
against  combatants  would  necessarily  entail  an  excessive  number  of  civilian  casual- 
ties, is  a  flagrant  breach  of  the  jus  in  hello.  Article  51(7)  of  Protocol  I  proclaims: 
"The  presence  or  movements  of  the  civilian  population  or  individual  civilians  shall 
not  be  used  to  render  certain  points  or  areas  immune  from  military  operations,  in 
particular  in  attempts  to  shield  military  objectives  from  attacks  or  to  shield,  favor 
or  impede  military  operations."14  The  concept  lying  at  the  root  of  the  prohibition 
appears  already  in  Article  28  of  Geneva  Convention  (IV):  "The  presence  of  a  pro- 
tected person  may  not  be  used  to  render  certain  points  or  areas  immune  from  mili- 
tary operations."15  Irrefutably,  this  norm  mirrors  customary  international  law.16 
Utilizing  the  presence  of  civilians  or  other  protected  persons  to  render  certain 
points,  areas  or  military  forces  immune  from  military  operations  is  recognized  as  a 
war  crime  by  Article  8(2)(b)(xxiii)  of  the  1998  Rome  Statute  of  the  International 
Criminal  Court.17  The  reference  to  other  protected  persons  extends  beyond  civil- 
ians to  prisoners  of  war,  military  medical  personnel,  etc.18 

There  are  three  ways  in  which  the  shielding  of  military  objectives  by  civilians  can 
be  attempted: 


47 


Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

( i )  One  scenario  relates  to  civilians  who  voluntarily  choose  to  serve  as  human 
shields,  with  a  view  to  deterring  an  enemy  attack  against  combatants  or 
military  objectives.  Such  conduct  would  amount  to  an  active  participation  in 
the  hostilities  on  the  part  of  the  civilian  volunteers,  who  would  consequently 
become  (unlawful)  combatants. 

(ii)  The  second  scenario  comes  into  play  when  combatants  compel  civilians 
(either  enemy  civilians  or  their  own)  to  move  out  and  join  them  in  military 
operations.  The  civilians  in  question  may  be  obliged  to  serve  as  a  screen  to 
marching  combatants,  sit  on  locomotives  of  military  trains  in  transit,  etc. 
Acting  as  they  do  under  duress,  these  civilians  do  not  become  combatants. 
Those  who  coerce  the  civilians  to  act  in  such  a  manner  assume  full  criminal 
responsibility  for  their  conduct. 

(iii)  The  third  scenario  is  a  variation  of  the  second.  The  only  difference  is 
that,  instead  of  the  civilians  being  constrained  to  join  the  combatants,  the 
combatants  (or  military  objectives)  join  the  civilians.  That  is  done,  e.g.,  by 
combatants  emplacing  tanks  or  artillery  pieces  in  the  courtyard  of  a 
functioning  school  or  in  the  middle  of  a  dense  civilian  residential  area. 
Likewise,  military  units  may  infiltrate  columns  of  civilian  refugees  (as 
happened  during  the  Korean  War),  in  order  to  mask  a  military  operation.19 
Once  more,  the  civilians  do  not  become  combatants  as  a  result  of  the  military 
action  taken. 

All  three  types  of  attempts  to  protect  combatants  or  military  objectives  with  hu- 
man shields  are  equally  unlawful. 

The  crucial  question  is  whether  the  brazen  act  of  shielding  a  military  objective 
with  civilians  (albeit  a  war  crime)  can  effectively  tie  the  hands  of  the  enemy  by  bar- 
ring an  attack.  Article  51(8)  of  Protocol  I  states  that  a  violation  of  the  prohibition  of 
shielding  military  objectives  with  civilians  does  not  release  a  belligerent  from  its  le- 
gal obligations  vis-a-vis  the  civilians.20  What  this  means  is  that  the  principle  of  pro- 
portionality (discussed  below)  remains  relevant.  However,  even  if  that  is  the  case, 
the  actual  test  of  excessive  injury  to  civilians  must  be  relaxed.  That  is  to  say,  the  ap- 
praisal whether  civilian  casualties  are  excessive  in  relation  to  the  military  advantage 
anticipated  must  make  allowances  for  the  fact  that,  if  an  attempt  is  made  to  shield 
military  objectives  with  civilians,  civilian  casualties  will  be  higher  than  usual.  To 
quote  Louise  Doswald-Beck,  "[t]he  Israeli  bombardment  of  Beirut  in  June  and  July 
of  1982  resulted  in  high  civilian  casualties,  but  not  necessarily  excessively  so  given 
the  fact  that  the  military  targets  were  placed  amongst  the  civilian  population."21 


48 


Yoram  Dinstein 


Customary  international  law  is  certainly  more  stringent  than  the  Protocol  on 
this  point.  It  has  traditionally  been  perceived  that,  should  civilian  casualties  ensue 
from  an  illegal  attempt  to  shield  combatants  or  military  objectives,  the  ultimate  re- 
sponsibility lies  with  the  belligerent  State  placing  innocent  civilians  at  risk.22  A  bel- 
ligerent State  is  not  vested  by  the  jus  in  hello  with  the  power  to  block  an  otherwise 
legitimate  attack  against  combatants  (or  military  objectives)  by  deliberately  plac- 
ing civilians  in  harm's  way.23 

Abuse  of  Hospitals,  Mosques  and  Schools 

Throughout  the  hostilities  of  2003,  the  Iraqis  consistently  used  hospitals,  mosques 
and  schools  as  weapon  arsenals,  staging  areas  for  military  operations  and  launch 
pads  for  attacks  against  Coalition  forces.  It  goes  without  saying  that  hospitals, 
mosques  and  schools  are  civilian  objects  which  are  entitled  to  protection — indeed, 
special  protection  because  of  their  medical,  religious  and  cultural  nature — from 
attack.  However,  the  jus  in  hello  is  clear  about  the  requirement  to  not  abuse  that 
protection.  When  hospitals,  mosques  and  schools  are  put  to  military  use,  their  pro- 
tection is  terminated  and  they  become  military  objectives.24  Article  52  of  Protocol  I 
clarifies  in  Paragraph  2  that  any  object  can  turn  into  a  military  objective  through 
use  (making  an  effective  contribution  to  military  action);  the  sole  qualification  is 
proclaimed  in  Paragraph  3:  "In  case  of  doubt  whether  an  object  which  is  normally 
dedicated  to  civilian  purposes,  such  as  a  place  of  worship,  a  house  or  other  dwelling 
or  a  school,  is  being  used  to  make  an  effective  contribution  to  military  action,  it 
shall  be  presumed  not  to  be  so  used."25  It  must  be  borne  in  mind  that  the  presump- 
tion is  patently  rebuttable,  and  it  arises  only  in  case  of  doubt.  There  is  no  room  for 
doubt  once  combatants  are  exposed  to  direct  fire  from  a  supposedly  civilian  ob- 
ject.26 If  a  steeple  of  a  church  or  a  minaret  of  a  mosque  is  used  as  a  sniper's  nest, 
doubt  is  eliminated  and  the  enemy  is  entitled  to  treat  it  as  a  military  objective. 

Even  Article  53  of  the  Protocol,  which  lends  special  protection  to  certain  cul- 
tural objects  and  places  of  worship  constituting  the  cultural  or  spiritual  heritage  of 
peoples,  prohibits  their  use  in  support  of  the  military  effort.27  Article  13  adds  that 
the  protection  of  civilian  medical  units  shall  cease  if  they  are  used  to  commit,  out- 
side their  humanitarian  function,  acts  harmful  to  the  enemy.28 

The  pivotal  issue  here  is  proportionality.  That  is  to  say,  in  the  words  of  Judge  Hig- 
gins,  in  her  Dissenting  Opinion  in  the  ICJ  Advisory  Opinion  on  Legality  of  the  Threat 
or  Use  oj c Nuclear  Weapons:  "even  a  legitimate  target  may  not  be  attacked  if  the  collat- 
eral civilian  casualties  would  be  disproportionate  to  the  specific  military  gain  from 
the  attack."29  Protocol  I  does  not  employ  the  phrase  "disproportionate,"  preferring, 
in  Article  51(5)(b),  the  term  "excessive."30  Thus,  it  would  be  excessive  to  destroy  a 

49 


Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

hospital,  with  many  dozens  of  civilian  casualties,  in  order  to  eliminate  a  single  enemy 
sniper.31  In  contrast,  if,  instead  of  a  single  enemy  sniper,  a  whole  artillery  battery 
would  operate  from  within  the  hospital,  such  destruction  may  be  warranted.32 

Individual  Targeting  of  Central  Figures  in  the  Regime 

Pursuant  to  the  jus  in  bello,  all  combatants  can  be  lawfully  targeted.33  This  includes 
all  members  of  the  armed  forces  (other  than  medical  or  religious  personnel), 
whether  or  not  they  are  actually  engaged  in  combat.34  When  a  person  takes  up  arms 
or  merely  dons  a  uniform  as  a  member  of  the  armed  forces,  he  automatically  ex- 
poses himself  to  enemy  attack.  The  jus  in  bello  does  not  preclude  singling  out  an  in- 
dividual enemy  combatant  as  a  target,  i.e.,  "attacks,  by  regular  armed  military 
forces,  on  specific  individuals  who  are  themselves  legitimate  military  targets."35 
Thus,  leaders  of  the  Iraqi  regime — like  Saddam  Hussein — who  wore  military  uni- 
forms and  prided  themselves  on  holding  high-ranking  positions  in  the  Iraqi  mili- 
tary hierarchy  could  be  targeted  by  Coalition  forces,  provided  that  the  latter  did 
not  entrust  the  mission  to  unlawful  combatants,  as  discussed  earlier. 

Looting  by  Enemy  Civilians 

Pursuant  to  customary  international  law,  as  reflected  in  the  Hague  Regulations  Re- 
specting the  Laws  and  Customs  of  War  on  Land,  annexed  to  Hague  Convention  II 
of  1899  and  IV  of  1907,  pillage  of  towns  and  other  places  is  forbidden,  either  in  as- 
sault (Article  28)36  or  in  occupied  territories  (Article  47). 37  Pillage  means  looting 
(or  plundering)  of  enemy,  public  or  private,  property  by  individuals  for  private 
ends.38  Looting  is  a  common  phenomenon  in  warfare,  but  it  is  usually  perceived  as 
a  problem  affecting  the  belligerent  forces  (especially  in  assault  or  in  occupation). 
The  Iraqi  situation  was  somewhat  singular  in  that  the  collapse  of  the  Saddam 
Hussein  regime  brought  about  prolonged  large-scale  looting  of  Iraqi  public  and 
private  edifices  (including,  notoriously,  the  national  museums)  by  the  local  popu- 
lation going  on  the  rampage.  Undeniably,  the  jus  in  bello  prohibition  of  pillage  cov- 
ers all  types  of  looting  by  whoever  is  undertaking  it.  The  obligation  of  belligerent 
parties  is  evident,  and  it  is  reflected  (inter  alia)  in  Article  4(3)  of  the  1954  Hague 
Convention  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Con- 
flict: "The  High  Contracting  Parties  further  undertake  to  prohibit,  prevent  and,  if 
necessary,  put  a  stop  to  any  form  of  theft,  pillage  or  misappropriation  of,  or  any 
acts  of  vandalism  directed  against,  cultural  property."39  Surely,  this  covers  all  types 
of  looting,  including  that  carried  out  by  local  inhabitants  against  their  own  Gov- 
ernment, institutions  and  co-nationals. 


50 


Yoram  Dinstein 


The  Status  of  Journalists 

Article  79  of  Protocol  I  enunciates  that  journalists  engaged  in  dangerous  professional 
missions  in  areas  of  armed  conflict  are  to  be  considered  and  protected  as  civilians.40 
Journalists  do  not  lose  their  status  as  civilians  by  accompanying  armed  forces41  (or 
being  "embedded"  in  them).  It  does  not  matter  what  their  specific  mission  as  mem- 
bers of  the  media  is:  the  expression  "journalists"  covers  photographers,  TV  camera- 
men, sound  technicians,  and  so  on.42 

All  the  same,  it  must  be  understood  that  when  journalists  choose  to  go  into  the 
combat  zone,  with  a  view  to  covering  hostilities  from  the  front,  they  are  engaged  in 
a  dangerous  professional  mission.  Being  civilians,  journalists  must  not  be  attacked 
deliberately.  But  one  should  not  be  surprised  when  journalists  are  accidentally 
caught  in  the  cross-fire  between  the  belligerent  parties  (as  happened  on  several  oc- 
casions in  Iraq).  It  is  unrealistic  to  expect  journalists  to  undertake  a  dangerous  pro- 
fessional mission  without  casualties. 

In  any  event,  journalists  must  behave  as  civilians.  If  they  go  on  their  mission  un- 
der heavily  armed  guard,  and  attempt  to  pull  heroic  feats  (using,  if  necessary,  their 
escorts),  they  are  liable  to  lose  their  protection. 

Treatment  of  Prisoners  of  War 

Judging  by  media  reports,  a  number  of  Coalition  soldiers  captured  by  Iraqi  armed 
forces  may  have  been  executed.  If  so,  this  was  in  direct  contravention  to  the  most 
fundamental  rule  of  Geneva  Convention  (III)  Relative  to  the  Treatment  of  Pris- 
oners of  War,  encapsulated  in  Article  13  (first  Paragraph).43  Willful  killing  of  pris- 
oners of  war  constitutes  a  "grave  breach"  of  the  Convention,  as  per  Article  130,44 
namely,  a  war  crime. 

The  Iraqis  also  interrogated  American  prisoners  of  war  on  television  in  a  man- 
ner that  many  people  in  the  United  States  found  objectionable.  Such  interrogation 
may  have  amounted  to  a  violation  of  Article  13  (second  Paragraph)  of  the  Conven- 
tion, which  mandates  the  protection  of  prisoners  of  war  against  insults  and  public 
curiosity.45  However,  even  assuming  that  that  was  the  case,  it  is  noteworthy  that 
such  an  act  (unless  amounting  to  torture  or  inhuman  treatment)  does  not  consti- 
tute a  grave  breach  of  the  Convention  under  Article  130.  Moreover,  interrogation 
on  television  at  least  attested  that  the  prisoners  of  war  in  question  were  alive  in  cap- 
tivity. The  appearance  on  television  therefore  substantially  reduced  the  chances  of 
the  subsequent  execution  of  the  prisoners  of  war.  It  is  a  matter  of  record  that  all 
American  prisoners  of  war  seen  on  television  were  in  fact,  eventually,  found  alive. 


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Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

The  Applicability  of  the  Law  of  Belligerent  Occupation 

The  Coalition  was  very  eager  to  present  its  forces  in  Iraq  as  an  army  of  liberation. 
But  notwithstanding  the  fact  that  the  overthrow  of  the  Saddam  Hussein  regime 
brought  liberation  to  the  Iraqi  people,  it  must  be  appreciated  that — pursuant  to  in- 
ternational law — the  legal  status  of  the  Coalition  forces  in  Iraq  is  not  that  of  libera- 
tors but  that  of  belligerent  occupants.  Belligerent  occupation  is  governed  by 
Articles  42-56  of  the  Hague  Regulations  of  1 899/ 1 907,46  as  well  as  Geneva  Conven- 
tion (IV)  of  1949.47  It  is  true  that,  following  the  unconditional  surrender — and  to- 
tal collapse — of  Nazi  Germany  and  Imperial  Japan  at  the  close  of  World  War  II  (in 
May  and  August  1945,  respectively),  the  Allied  countries  did  not  regard  themselves 
as  subject  to  the  application  of  the  Hague  Regulations  in  running  the  two  coun- 
tries.48 However,  that  was  before  the  adoption  of  Geneva  Convention  (IV)  in  1949. 
Article  2  (second  Paragraph)  of  Geneva  Convention  (IV)  makes  it  clear  that  the 
Convention  applies  to  "all  cases  of  partial  or  total  occupation  of  the  territory  of  a 
High  Contracting  Party."49  It  is  also  noteworthy  that  the  Security  Council  explicitly 
refers  to  the  Coalition  forces  in  Iraq  as  "Occupying  Powers"  in  two  Chapter  VII 
resolutions  adopted  unanimously  (initiated,  in  fact,  by  the  United  States  and  the 
United  Kingdom):  Resolution  1472  (2003)  and,  even  more  significantly,  Resolu- 
tion 1483  (2003).  Resolution  1472  refers  to  the  duty  of  the  Occupying  Power  to  en- 
sure the  food  and  medical  supplies  of  the  population  of  Iraq.50  Resolution  1483 
mentions  the  responsibilities  and  obligations  under  applicable  international  law  of 
the  United  States  and  the  United  Kingdom  as  occupying  powers;  and  calls  upon  all 
concerned  to  comply  fully  with  their  obligations  under  international  law,  including 
in  particular  the  Geneva  Conventions  of  1949  and  the  Hague  Regulations  of  1907.51 

The  application  of  the  Hague  Regulations  and  Geneva  Convention  (IV)  to  Iraq 
is  liable  to  raise  a  number  of  issues,  such  as: 

(a)  The  duty,  under  Article  43  of  the  Hague  Regulations,  to  "restore,  and 
ensure,  as  far  as  possible,  public  order  and  safety,  while  respecting,  unless 
absolutely  prevented,  the  laws  in  force  in  the  country."52  Article  43  has  far- 
reaching  repercussions.53  It  should  be  emphasized  that  the  Occupying  Power 
must  ensure,  as  far  as  possible,  that  life  in  the  occupied  territory  is  not 
paralyzed  by  armed  bands  and  saboteurs.  A  state  of  anarchy,  which 
characterized  at  least  parts  of  Iraq  for  a  number  of  weeks  following  the  end  of 
major  hostilities,  could  not  be  allowed  to  continue. 

(b)  While  regime  change  in  Iraq— ri.e.,  the  overthrow  of  the  dictatorial 
regime  of  Saddam  Hussein  and  the  Ba'ath  Party — was  merely  a  natural 


52 


Yoram  Dinstein 


consequence  of  the  Coalition's  victory  in  the  Gulf  War,  American  notions  of 
changing  the  structure  of  Iraq,  for  instance,  transform  it  from  a  unitary  State 
to  a  federal  State,  may  run  into  difficulties  (unless  gaining  the  freely 
expressed  consent  of  the  local  population).  Much  depends  on 
circumstances.  It  is  noteworthy  that,  during  World  War  I,  Germany  was 
accused  of  a  breach  of  Article  43  when  it  tried  to  change  the  regional 
organization  of  occupied  Belgium  into  two  administrative  parts  (Flemish 
and  Walloon)/4  On  the  other  hand,  when  the  British  divided  occupied  Libya 
into  two  administrative  districts  (Cyrenaica  and  Tripolitania)  during  World 
War  II,  there  was  no  complaint.55 

(c)  Pursuant  to  the  Hague  Regulations,  there  are  many  issues  relating  to  the 
handling  of  public  and  private  property  in  occupied  territories.  The 
Regulations  are  not  necessarily  draconic  for  the  Occupying  Power.  Thus,  the 
Coalition  forces  could  have  kept  the  billions  of  dollars  of  cash  and  gold 
bullions  found  in  caches  left  behind  by  the  leaders  of  the  Saddam  Hussein 
regime.  Article  53  (first  Paragraph)  of  the  Regulations  expressly  allows  an 
army  of  occupation  to  take  possession  of  cash,  funds  etc.  which  are  the 
property  of  the  State/6  The  rule  is  similar  to  that  governing  the  capture  of  the 
enemy's  State  cash  and  funds  on  the  battlefield:  these  constitute  booty  of 
war.5/  In  the  event,  notwithstanding  the  preceding  provisions,  the  Coalition, 
owing  to  its  self-perception  as  a  liberator  of  Iraq,  chose  to  take  the  altruistic 
step  of  preserving  the  troves  found  for  the  benefit  of  the  Iraqi  people. 

(d)  However,  in  other  instances  the  Hague  Regulations  may  tie  the  hands  of 
the  Coalition.  There  are  questions  spawned  by  the  principle  that  the 
Occupying  Power,  under  Article  55,  can  only  be  regarded  as  "administrator 
and  usufructuary"  of  public  immovable  property.'8  One  such  problem 
affects  the  drilling  of  oil,  especially  in  light  of  a  rather  controversial  legal 
opinion  of  the  Department  of  State — offered  when  Israel  developed  new  oil 
fields  in  the  Gulf  of  Suez — but  now  liable  to  haunt  the  Coalition  in  Iraq.'9 

Having  said  all  that,  it  should  be  noted  that  under  Article  6  of  Geneva  Conven- 
tion (IV),  the  application  of  most — albeit  by  no  means  all — of  the  provisions  of 
the  Convention  ceases  one  year  after  the  general  close  of  military  operations.60 
The  general  close  of  major  combat  operations  has  already  been  announced,  albeit 
perhaps  somewhat  prematurely.  In  any  event,  it  is  generally  hoped  (and  ex- 
pected) that  the  full  application  of  the  Geneva  Convention  would  prove  a  rela- 
tively temporary  matter. 


53 


Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 


Notes 

I .  Professor  Dinstein  is  Yancowicz  Professor  of  Human  Rights  and  Pro-President  at  Tel  Aviv 
University  (Israel). 

:.  See  Yoram  Dinstein,  Unlawful  Combatancy,  32  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  247 
(2002). 

3.  Geneva  Convention  (III)  Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12,  1949,  art. 
4(A)(2)(b),  6  U.S.T.  3316,  75  U.N.T.S.  135,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS:  A 
CO!  LECTION  OF  CONVENTIONS,  RESOLUTIONS  AND  OTHER  DOCUMENTS  507,  513  (Dietrich 
Schindler  and  Jiri  Toman  eds.,  4th  ed.  2004). 

4.  See  YORAM  DINSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  140-147  (3d  ed.  2001 ). 

5.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  (Protocol  I),  June  8, 1977, 1 125  U.N.T.S. 
3,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  3,  at  71 1,  730. 

6.  Id.  at  733. 

7.  Jean  de  Preux,  Article  44,  in  COMMENTARY  ON  THE  ADDITIONAL  PROTOCOLS  OF  8  JUNE  1 977 
TO  THE  Geneva  Conventions  OF  12  AUGUST  1949,  at  5 19,  537  (Yves  Sandoz  et  al.  eds.,  1987). 

8.  The  wearing  of  civilian  clothes  lies  at  the  core  of  the  problem.  Some  suicide  attacks 
(epitomized  by  Japanese  kamikaze  pilots  in  World  War  II,  flying  properly  marked  warplanes) 
come  within  the  ambit  of  lawful  combatancy. 

9.  See  Article  33  (first  Paragraph)  of  Geneva  Convention  (IV)  Relative  to  the  Protection  of 
Civilian  Persons  in  Time  of  War,  Aug.  12, 1949,  6  U.S.T.  3516,  75  U.N.T.S.  287,  reprinted  in  THE 
Laws  of  Armed  Conflicts,  supra  note  3,  at  575,  590. 

10.  Geneva  Convention  (II)  for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and 
Shipwrecked  Members  of  Armed  Forces  at  Sea,  Aug.  12,  1949,  6  U.S.T.  3217,  75  U.N.T.S.  85, 
reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  3,  at  485,  496. 

I I .  The  official  ICRC  Commentary  refers  to  "individual  portable  weapons,  such  as  side-arms, 
revolvers  or  even  rifles."  COMMENTARY,  II  GENEVA  CONVENTION  194  (Jean  Pictet  et  al.  eds.,  1960). 

12.  Protocol  I,  supra  note  5,  at  730. 

13.  See  Law  of  War  Workshop  7-30-7-31  (US  Army,  Judge  Advocate  General,  1999). 

14.  Protocol  I,  supra  note  5,  at  736. 

1 5.  Geneva  Convention  (IV),  supra  note  9,  at  589. 

16.  See  Judith  G.  Gardam,  Non-Combat  ant  Immunity  as  a  Norm  of  International 
Humanitarian  Law  153  (1993). 

17.  Rome  Statute  of  the  International  Criminal  Court,  July  17, 1998,  UN  Doc.  A/CONF.  183/9* 
(1998),  reprinted  in  37  INTERNATIONAL  LEGAL  MATERIALS  999,  1008  (1998). 

18.  See  William  J.  Fenrick,  Article  8(2)(b)(xxiii),  in  COMMENTARY  ON  THE  ROME  STATUTE  OF 
l  ill  INTERNATIONAL  CRIMINAL  COURT  253,  id.  (O.  Triffterer  ed.,  1999). 

19.  See  Chistopher  D.  Booth,  Prosecuting  the  'Fog  of  War?':  Examining  the  Legal  Implications  of 
an  Alleged  Massacre  of  South  Korean  Civilians  by  U.S.  Forces  during  the  Opening  Days  of  the 
Korean  War  in  the  Village  of  No  Gun  Ri,  33  VANDERBILT  JOURNAL  OF  TRANSNATIONAL  LAW  933, 
972n.301  (2000). 

20.  Protocol  I,  supra  note  5,  at  736. 

21.  See  Louise  Doswald-Beck,  The  Civilian  in  the  Crossfire,  24  JOURNAL  OF  PEACE  RESEARCH 
251,257(1987). 

22.  SeeW.  Hays  Parks,  Air  War  and  the  Law  of  War,  32  AIR  FORCE  LAW  REVIEW  1, 162-163  (1990). 


54 


Yoram  Dinstein 


23.  See  Andrew  D.  McClintock,  The  Law  of  War:  Coalition  Attacks  on  Iraqi  Chemical  and 
Biological  Weapon  Storage  and  Production  Facilities,  7  EMORY  INTERNATIONAL  LAW  REVIEW  633, 
663-664(1993). 

24.  For  a  full  treatment  of  the  subject  of  military  objectives,  see  Yoram  Dinstein,  Legitimate  Military 
Objectives  under  the  Current  Jus  in  Bello,  31  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  1  (2001). 

25.  Protocol  I,  supra  note  5,  at  737. 

26.  See  Waldemar  A.  Solf,  Article  52,  in  NEW  RULES  FOR  VICTIMS  OF  ARMED  CONFLICTS: 
Commentary  on  the  Two  1977  Protocols  Additional  to  the  Geneva  Conventions  of 
1949,  at  318,  327  (Michael  Bothe,  Karl  J.  Partsch  and  Waldemar  A.  Solf  eds.,  1982). 

27.  Protocol  I,  supra  note  5,  at  737. 

28.  Id.  at  721. 

29.  Advisory  Opinion  on  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  [1996]  ICJ  Rep. 
226,  587. 

30.  Protocol  I,  supra  note  5,  at  736. 

31.  Cf.  Parks,  supra  note  22,  at  168. 

32.  Cf.  W.  Michael  Reisman,  The  Lessons  ofQana,  22  YALE  IOURNAL  OF  INTERNATIONAL  LAW 
381,395-396(1997). 

33.  See  Dinstein,  supra  note  24,  at  4. 

34.  See  Michael  N.  Schmitt,  State-Sponsored  Assassination  in  International  and  Domestic  Law,  17 
Yale  Journal  of  International  Law  609, 674  (1992). 

35.  Burrus  M.  Carnahan,  Correspondent's  Report,  2  YEARBOOK  OF  INTERNATIONAL 
Humanitarian  Law  423, 424  (1999). 

36.  Hague  Regulations  Respecting  the  Laws  and  Customs  of  War  on  Land,  Annexed  to  Hague 
Convention  (II)  of  1899  and  Hague  Convention  (IV)  of  1907,  THE  LAWS  OF  ARMED  CONFLICTS, 
supra  note  3,  at  66,  74, 

37.  Id.  at  78. 

38.  Cf  Armin  A.  Steinkamm,  Pillage,  in  3  ENCYCLOPEDIA  OF  PUBLIC  INTERNATIONAL  LAW 
1029,  id.  (Rudolf  Bernhardt  ed.,  1997). 

39.  Hague  Convention  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict, 
May  14,  1954,  249  U.N.T.S.  240,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICTS,  supra  note  3,  at 
999,  1002. 

40.  Protocol  I,  supra  note  5,  at  752. 

41.  See  Hans-Peter  Gasser,  Article  79,  in  COMMENTARY  ON  THE  ADDITIONAL  PROTOCOLS, 
supra  note  7,  at  473,  476. 

42.  See  Hans-Peter  Gasser,  Protection  of  the  Civilian  Population,  in  THE  HANDBOOK  OF 
Humanitarian  Law  in  Armed  Conflicts  209, 228  (Dieter  Fleck  ed.,  1995). 

43.  Geneva  Convention  (III),  supra  note  3,  at  517. 

44.  Id.  at  557. 

45.  Id.  at  517. 

46.  Hague  Regulations,  supra  note  36,  at  77-81. 

47.  Geneva  Convention  (IV),  supra  note  9,  passim. 

48.  See  GERHARD  VON  GLAHN,  THE  OCCUPATION  OF  ENEMY  TERRITORY  276-86  (1957). 

49.  Geneva  Convention  (IV),  supra  note  9,  at  580. 

50.  S.C.  Res.  1472,  U.N.  SCOR,  58th  Sess.,  4732d  mtg.,  U.N.  Doc.  S/RES/1472  (2003),  reprinted 
in  42  International  Legal  Materials  767,  id.  (2003). 

51.  S.C.  Res.  1483,  U.N.  SCOR,  58th  Sess.,  4761st  mtg.,  U.N.  Doc.  S/RES/1483  (2003),  reprinted 
in  42  International  Legal  Materials  1016, 1017  (2003). 

52.  Hague  Regulations,  supra  note  36,  at  78. 


55 


Jus  in  Bello  Issues  Arising  in  the  Hostilities  in  Iraq  in  2003 

53.  See  Yoram  Dinstein,  The  Israel  Supreme  Court  and  the  Law  of  Belligerent  Occupation:  Article 
43  of  the  Hague  Regulations,  25  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  1  (1995). 

54.  See  E.  H.  Feilchenfeld,  The  International  Economic  Law  of  Belligerent 
Occupation  89  (1942). 

55.  See  G.  T.  Watts,  The  British  Military  Occupation  ofCyrenaica,  1 942-1949, 37  TRANSACTIONS 
OF  THE  GROTIUS  SOCIETY  69,  72-73  (1951). 

56.  Hague  Regulations,  supra  note  36,  at  80. 

57.  See  Yoram  Dinstein,  Booty  in  Land  Warfare,  1  ENCYCLOPEDIA  OF  PUBLIC  INTERNATIONAL 
LAW  432,  id.  (Rudolf  Bernhardt  ed.,  1992). 

58.  Hague  Regulations,  supra  note  36,  at  80-81. 

59.  See  Monroe  Leigh,  Department  of  State  Memorandum  of  Law  on  Israel's  Right  to  Develop  New 
Oil  Fields  in  Sinai  and  the  Gulf  of  Suez,  16  INTERNATIONAL  LEGAL  MATERIALS  733  (1977). 

60.  Geneva  Convention  (IV),  supra  note  9,  at  582. 


56 


V 


Query:  Is  There  a  Status 
of  "Unlawful  Combatant?" 


Marco  Sassoli1 

Introduction 

The  argument  of  the  United  States  administration  that  those  individuals  cap- 
tured during  the  "global  war  on  terror"2  are  unlawful  combatants  not  enti- 
tled to  prisoner  of  was  status  may  be  summed  up  as  follows.3  First,  the  United 
States  is  engaged  in  an  international  armed  conflict — the  "war  on  terrorism."  This 
is,  second,  one  single  worldwide  international  armed  conflict  against  a  non- State 
actor  (al  Qaeda)  or  perhaps  also  against  a  social  and  criminal  phenomenon  (ter- 
rorism). That  armed  conflict  started — without  the  United  States  so  characterizing 
it  at  that  time — at  some  point  in  the  1990s  and  will  continue  until  victory.  Third, 
while  the  United  States  claims  in  this  conflict  all  the  prerogatives  that  international 
humanitarian  law  (IHL)  applicable  to  international  armed  conflicts  confers  upon  a 
party  to  such  a  conflict,  in  particular  the  right  to  detain  enemy  combatants  without 
any  judicial  decision  in  Guantanamo;  it  denies  these  detainees  the  protections  of 
most  of  that  law  by  claiming  that  their  detention  is  governed  neither  by  the  IHL 
rules  applying  to  combatants  nor  by  those  applicable  to  civilians.  Fifth,  all  those 
considered  to  be  enemies  in  the  "war  on  terrorism,"  even  those  denied  the  benefit 
of  IHL's  full  protections,  are  not  dealt  with  under  domestic  criminal  legislation  or 
under  any  other  new  or  existing  legislation,  nor  do  they  benefit  from  international 


Query:  Is  There  a  Status  of  "Unlawful  Combatant?" 

human  rights  law.  The  US  administration  claims  that  their  treatment  is  entirely 
and  exclusively  ruled  by  some  mysterious  rules  of  customary  IHL.4 

In  this  paper  I  will  address  the  approach  of  the  US  administration  towards  the 
persons  held  in  the  "war  on  terrorism"  from  the  point  of  view  of  IHL.  As  always 
when  IHL  is  applied,  this  implies,  first,  that  the  situation  in  which  those  persons  are 
involved  must  be  examined  to  determine  whether  it  is  an  armed  conflict  and,  if  so, 
whether  it  is  international  or  non-international  in  character.  Second,  for  those  per- 
sons who  are  covered  by  IHL,  their  status  under  IHL  has  to  be  determined. 

The  Status  of  the  "War  on  Terrorism"  under  International  Humanitarian  Law 

IHL  is  today  largely  codified  in  treaties,  in  particular  the  four  1949  Geneva 
Conventions5  and  the  two  1977  Additional  Protocols.6  The  United  States  is  a  party 
to  the  former,  but  not  to  the  latter.  It  recognizes,  however,  Additional  Protocol  II  as 
desirable  or  even  as  restating  existing  law,  and  most,  but  not  all,  provisions  of  Ad- 
ditional Protocol  I  as  reflecting  customary  international  law. 

The  four  Geneva  Conventions  and  Additional  Protocol  I  apply  to  international 
armed  conflicts.  Article  2  common  to  the  Geneva  Conventions  states  that  they 
"shall  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."  Only  States  can  be 
parties  to  the  Geneva  Conventions.  Al  Qaeda  and  terrorism  are  not  States,  there- 
fore, the  law  of  international  armed  conflict  does  not  apply  to  a  conflict  between 
the  United  States,  a  State,  and  them.  There  is  no  indication  that  State  practice  and 
opinio  juris  go  further  and  apply  the  law  of  international  armed  conflict  to  conflicts 
between  States  and  some  non-State  actors.  On  the  contrary,  and  in  conformity 
with  the  basic  construct  of  the  Westphalian  system,  States  have  always  distin- 
guished between  conflicts  against  one  another,  to  which  the  whole  of  IHL  applied, 
and  other  armed  conflicts,  to  which  they  were  never  prepared  to  apply  the  same 
rules,  but  only  more  limited  humanitarian  rules.  Even  a  conflict  spreading  over 
borders  remained  a  non-international  armed  conflict.  "[IJnternal  conflicts  are  dis- 
tinguished from  international  armed  conflicts  by  the  parties  involved  rather  than 
by  the  territorial  scope  of  the  conflict."7 

If  the  aforementioned  principles  are  applied  to  the  "war  on  terrorism,"  the  law  of 
international  armed  conflicts  covered  the  conflict  in  Afghanistan,  because  it  was  di- 
rected against  the  Taliban,  representing  de  facto  government  of  that  State.  As  for  al 
Qaeda,  where  it  is  acting  de  facto  under  the  global  or  effective  direction  or  control  of 
the  Taliban,  the  conflict  against  al  Qaeda  may  also  be  qualified  as  international.8 
Such  direction  and  control  exists,  however,  only  in  Afghanistan  and  not  elsewhere. 


58 


Marco  Sassoli 


Each  component  of  the  "war  on  terrorism" — and  even"  situation  in  which  per- 
sons were  arrested — has  to  he  examined  and  its  status  determined  separately.  Until 
now,  it  was  regretted  that  once  there  was  an  international  element  to  a  conflict  on  a 
given  territory,  the  whole  conflict  could  not,  under  consistent  State  practice,  be  clas- 
sified as  wholly  international  but  had  to  he  split  off  into  its  components.9  Even  less 
could  a  worldwide  conflict  be  determined  to  be  international  simply  because  some  of 
its  components  were  international.  Xo  one  claimed  during  the  Cold  War  that  the 
IHL  of  international  armed  conflicts  applied  to  internal  conflicts  such  as  those  in 
Greece,  Angola,  El  Salvador,  and  Nicaragua,  or  even  to  political  tensions  and  arrests 
in  Germany,  Italy  or  Latin  America,  simply  because  those  were  part  of  the  Cold  War, 
the  "war  against  communism,"  or  because  there  were  international  armed  conflicts 
between  proxies  of  the  two  superpowers  in  the  Near  East,  Korea,  or  Vietnam. 

Components  of  the  "war  on  terrorism"  that  do  not  qualify  as  international 
armed  conflicts  may  be  non-international  armed  conflicts  covered  by  Article  3 
common  to  the  four  Geneva  Conventions  and  by  Additional  Protocol  II.  To  fall 
under  those  provisions  they  must,  however,  be  armed  conflicts.  Criteria  permitting 
such  classification  are  the  intensity;  number  of  active  participants;  number  of  vic- 
tims; duration  and  protracted  character  of  the  violence;  organization  and  disci- 
pline of  the  parties;  capability  to  respect  IHL;  collective,  open  and  coordinated 
character  of  the  hostilities;  direct  involvement  of  governmental  armed  forces  (as 
opposed  to  law  enforcement  agencies);  and  de  facto  authority  by  the  non-State  ac- 
tor over  potential  victims. - 

Other  situations  are  not  armed  conflicts  at  all.  Additional  Protocol  II  excludes 
"situations  of  internal  disturbances  and  tensions,  such  as  riots,  isolated  and  spo- 
radic acts  of  violence  and  other  acts  of  a  similar  nature,  as  not  being  armed  con- 
flicts."--  Terrorist  actions  by  private  groups  have  not  customarily  been  viewed  as 
creating  armed  conflicts.-1  The  L  nited  Kingdom  stated  when  it  ratified  Additional 
Protocol  I  "that  the  term  'armed  conflict'  of  itself  and  in  its  context  denotes  a  situa- 
tion oi  a  kind  which  is  not  constituted  by  the  commission  of  ordinary  crimes  in- 
cluding acts  of  terrorism  whether  concerted  or  in  isolation."13  The  British  and 
Spanish  campaigns  against  the  IRA  '.Irish  Republican  Army)  and  ETA  (Euskadi  ta 
Askatasuna  I  have  not  been  treated  as  armed  conflicts  under  IHL.14 

If  IHL  applies,  each  conflict  has  its  own  beginning  and  its  own  end.  At  the  end  of 
active  hostilities  in  an  international  armed  conflict,  prisoners  of  war  (not  accused 
of  or  sentenced  for  a  crime)  must  be  repatriated.  The  detention,  such  as  of  Taliban 
fighters  captured  in  Afghanistan,  cannot  be  prolonged  simply  because  in  the  Phil- 
ippines or  in  Iraq  the  "war  on  terrorism"  goes  on. 


59 


Query:  Is  There  a  Status  of  "Unlawful  Combatant?" 

The  Status  of  Persons  Held  in  the  "War  on  Terrorism" 
under  International  Humanitarian  Law 

Under  the  Law  of  International  Armed  Conflict 

In  international  armed  conflicts,  there  are  two  categories  of  "protected  persons" 
that  are  subject  to  two  very  different  legal  regimes — combatants,  who  become  pris- 
oners of  war  protected  by  Geneva  Convention  III  if  they  fall  into  the  power  of  the 
enemy,  and  civilians  protected  by  Geneva  Convention  IV  when  in  enemy  hands. 

"Unlawful  combatants?" 

The  US  administration  claims  that  the  persons  it  holds  in  the  "war  on  terrorism" 
are  neither  combatants  nor  civilians  but  "unlawful  combatants."  President  Bush 
himself  made  this  argument  concerning  the  status  of  Taliban  fighters.15  Other  ad- 
ministration officials  extend  it  to  members  of  al  Qaeda  and  others  qualified  as  "ter- 
rorists."16 According  to  the  text,  context  and  goals  of  Geneva  Conventions  III  and 
IV,  however,  no  one  can  fall  between  the  two  conventions  and  therefore  be  pro- 
tected by  neither.17 

The  first  paragraph  of  Article  4  of  Geneva  Convention  IV  states  as  follows:  "Per- 
sons protected  by  the  Convention  are  those  who,  at  a  given  moment  and  in  any 
manner  whatsoever,  find  themselves,  in  case  of  a  conflict  or  occupation,  in  the 
hands  of  a  Party  to  the  conflict  or  Occupying  Power  of  which  they  are  not  nation- 
als." According  to  the  fourth  paragraph  of  that  article,  persons  protected  by 
Geneva  Convention  III  "shall  not  be  considered  as  protected  persons  within  the 
meaning  of  the  present  Convention."  This  clearly  indicates  that  anyone  fulfilling 
the  requirement  for  protected  person  status18  that  is  not  protected  by  the  Third 
Convention  falls  under  the  Fourth  Convention.  The  Commentary  published  by  the 
International  Committee  of  the  Red  Cross  (ICRC)  provides: 

Every  person  in  enemy  hands  must  have  some  status  under  international  law:  he  is 
either  a  prisoner  of  war  and,  as  such,  covered  by  the  Third  Convention,  a  civilian 
covered  by  the  Fourth  Convention,  or  again,  a  member  of  the  medical  personnel  of  the 
armed  forces  who  is  covered  by  the  First  Convention.  There  is  no  intermediate  status; 
nobody  in  enemy  hands  can  be  outside  the  law.  We  feel  that  that  is  a  satisfactory 
solution  -  not  only  satisfying  to  the  mind,  but  also,  and  above  all,  satisfactory  from  the 
humanitarian  point  of  view.19 

The  preparatory  work  for  Article  4  confirms  this  interpretation.  The  ICRC  had 
first  suggested  referring  to  "persons  who  take  no  active  part  in  hostilities."  The 
XVI Ith  International  Red  Cross  Conference  criticized  this  phrasing  because  it  did 
not  "cover  those  who  commit  hostile  acts  whilst  not  being  regular  combatants, 

60 


Marco  Sassoli 


such  as  saboteurs  and  franc-  tireurs."20  This  problem  was  reported  to  the  Diplomatic 
Conference  that  was  negotiating  the  four  conventions,  which  then  adopted  the 
present  wording.  Moreover,  Article  5  of  Geneva  Convention  IV  allows  for  some 
derogation  from  the  protective  regime  of  that  Convention  for  persons  engaged  in 
hostile  activities.  If  such  persons  were  not  covered  by  the  Convention,  such  a  pro- 
vision would  not  have  been  necessary. 

From  a  humanitarian  perspective,  it  is  dangerous  to  revive  such  an  easy  escape 
category  for  detaining  powers  as  "unlawful  combatants."  No  one  should  fall  outside 
the  law  and  in  particular  not  outside  the  carefully  built  up  protective  system  offered 
by  the  Geneva  Conventions.  They  are  the  minimum  safety  net  in  the  profoundly  in- 
humane situation  that  is  war,  in  which  most  of  the  other  legal  safeguards  tend  to  dis- 
appear. The  US  administration  has  declared  that  it  treats  all  captured  "terrorists" 
humanely.  First,  such  a  vague  commitment  is  not  sufficient.  The  law  covers  even 
those  who  commit  the  most  horrible  crimes;  only  this  allows  us  to  judge  over  them. 
Second,  other,  less  scrupulous  States  may  take  advantage  of  such  a  new  loophole  by, 
for  example,  denying  the  protection  of  the  conventions  to  US  personnel. 

In  conclusion,  all  persons  who  are  covered  by  the  IHL  of  international  armed 
conflicts  and  fulfill  the  nationality  requirements  must  perforce  be  either  combat- 
ants or  civilians. 

Combatants 

Combatants  are  defined  as  members  of  the  armed  forces  of  a  party  to  the  interna- 
tional armed  conflict.  The  United  States  argues  that  the  Taliban  held  in 
Guantanamo,  who  are  members  of  the  armed  forces  of  the  de  facto  government  of 
Afghanistan,  are  not  prisoners  of  war,  because  they  "have  not  effectively  distin- 
guished themselves  from  the  civilian  population  of  Afghanistan.  Moreover,  they 
have  not  conducted  their  operations  in  accordance  with  the  laws  and  customs  of 
war."21  This  allegation  may  astonish  those  who  remember  that  during  Operation 
Enduring  Freedom,  the  United  States  stressed  that  it  attacked  Taliban  command 
and  control  centers  and  did  not  complain  that  it  was  impossible  to  distinguish  the 
Taliban  from  civilians.22  If  the  allegation  were  true,  the  legal  consequence  would  be 
that  the  Taliban  are  indeed  denied  prisoner  of  war  status  if  they  are  considered  as 
"members  of  other  militias  [or]  . . .  volunteer  corps,  including  . . .  resistance  move- 
ments," but  not  if  they  are  "members  of  the  armed  forces  of  a  Party  to  the  conflict."23 
It  is  at  least  arguable  that  the  Taliban  belong  to  the  latter  category.  For  regular  armed 
forces,  however,  it  would  be  dangerous  to  require  respect  for  the  laws  of  war  as  a 
precondition  for  prisoner  of  war  status.  In  all  armed  conflicts,  the  enemy  is  accused 
of  not  complying  with  IHL,  and  such  accusations  are  all  too  often  accurate.  If  IHL 
violations  by  regular  armed  forces  were  permitted  to  deprive  all  their  members, 

61 


Query:  Is  There  a  Status  of  "Unlawful  Combatant?" 

independently  of  their  individual  behavior,  of  prisoner  of  war  status,  that  status 
could  frequently  not  provide  its  protective  effect.  Historically,  the  United  States 
never  invoked  such  an  argument  concerning  the  German  Wehrmacht,  which  can- 
not be  considered  to  have  regularly  complied  with  the  laws  of  war. 

As  for  the  al  Qaeda  members  captured  in  Afghanistan,  there  may  be  justifica- 
tion to  deny  them  prisoner  of  war  status  on  two  bases.  First,  al  Qaeda  was  a  sepa- 
rate entity  that  was  distinct  from  the  military  forces  of  the  enemy  State  in  the 
international  armed  conflict,  Afghanistan.  Second,  even  if  considered  as  an 
Afghan  militia,  it  is  highly  doubtful  whether  al  Qaeda  complied  with  the  require- 
ments to  distinguish  itself  from  the  civilian  populace  and  conduct  its  operations 
in  compliance  with  the  law.24 

In  case  of  doubt  as  to  whether  persons  who  have  committed  a  belligerent  act  are 
combatants,  Geneva  Convention  III  prescribes  that  they  must  be  treated  as  prison- 
ers of  war  "until  such  time  as  their  status  has  been  determined  by  a  competent  tri- 
bunal."25 The  United  States  established  such  tribunals  in  the  Vietnam  war  and  the 
1991  Gulf  War,26  but  it  argues  that  in  the  case  of  those  detained  in  Guantanamo, 
there  is  no  doubt  that  they  are  not  entitled  to  prisoner  of  war  status.27  If  the  applica- 
bility of  the  clause  merely  depended  on  whether  the  detaining  power  has  doubts, 
the  latter  could  always  escape  from  its  obligation,  which  would  make  the  clause 
practically  useless.28 

If  a  person  fallen  into  the  power  of  the  enemy  is  determined  to  be  a  combatant, 
he  or  she  is  a  prisoner  of  war.  Prisoners  of  war  may  be  interned,  not  as  a  punish- 
ment, but  to  prevent  them  from  rejoining  the  fighting.  Therefore  no  individual  de- 
cision needs  to  be  taken  in  order  to  detain  them.  The  mere  fact  that  they  are  an 
enemy  combatant  is  sufficient  justification  for  their  detention  until  the  end  of  ac- 
tive hostilities  in  that  conflict.29  Classification  as  a  prisoner  of  war  prevails,  as  lex 
specialis  for  combatants,  over  human  rights  law  and  domestic  law  requiring  an  in- 
dividual judicial  detention  determination.  While  in  detention,  prisoners  of  war 
benefit  however  from  the  protections  of  Geneva  Convention  III,  a  detailed  regime 
that  ensures  they  are  treated  not  only  humanely,  but  also  not  as  prison  inmates,30 
since  they  are  not  serving  a  sentence  and  have  committed  no  unlawful  act. 

Civilians 

During  an  international  armed  conflict,  civilians  who  fulfill  certain  nationality 
requirements31  are  protected  if  they  fall  into  the  hands  of  a  belligerent  and  enemy,  in 
this  case  Afghan,  nationals  are  always  protected.  In  an  occupied  territory,  nationals 
of  a  third  country  other  than  an  ally  of  the  occupier  are  equally  protected.  On  a 
party's  own  territory,  only  neutral  nationals  are  protected,  and  then  only  if  they  do 
not  benefit  from  normal  diplomatic  protection.32  Protected  civilians  may  not  be 

62 


Marco  Sassoli 


detained,  except  under  two  circumstances.  First,  detention  maybe  authorized  under 
domestic  legislation  (or  security  legislation  introduced  by  an  occupying  power)  for 
the  prosecution  and  punishment  of  criminal  offenses  (including  direct  participation 
in  hostilities).  Second,  civilians  may  be  interned  for  imperative  security  reasons, 
upon  individual  decision  made  in  a  regular  procedure  (which  must  include  a  right  of 
appeal)  prescribed  by  the  belligerent  concerned.33  Such  civilians  are  civil  internees 
whose  treatment  is  governed  by  extremely  detailed  provisions  of  Geneva  Conven- 
tion IV  and  their  cases  must  be  reviewed  every  six  months.34 

Under  any  circumstances,  civilians  who  fell  into  US  hands  in  Afghanistan  may 
not  be  held  in  Guantanamo,  but  only  in  Afghanistan.  While  combatants  may  be 
held  as  prisoners  of  war  in  every  corner  of  the  earth,  civilians  protected  by  Geneva 
Convention  IV  may  indeed  never  be  deported  out  of  an  occupied  territory.35  Af- 
ghanistan was  an  occupied  territory  because  it  came  under  the  control  of  the 
United  States  and  its  allies  during  an  international  armed  conflict. 

Surprisingly,  and  much  to  my  relief,  the  Legal  Adviser  of  the  US  State  Depart- 
ment has  admitted  that  "unlawful  combatants"  are  protected  by  Geneva  Conven- 
tion IV.36  Nevertheless  the  US  administration  has  not  yet  comprehended  the 
practical  consequences  of  this  acknowledgement,  as  it  still  detains  those  persons  in 
Guantanamo  and  denies  them  individual  judicial  or  administrative  determina- 
tions of  the  basis  for  their  detention. 

It  may  appear  ironic  to  classify  heavily  armed  "terrorists"  captured  in  an  inter- 
national armed  conflict  who  are  not  entitled  to  benefit  from  combatant  and  pris- 
oner of  war  status  as  "civilians."  Borderline  cases  never  correspond  to  the 
category's  paradigm  of  the  individual  who  has  taken  no  part  in  the  hostilities.  Nev- 
ertheless these  persons  fall  within  the  parameters  of  the  law.  What  is  important  is 
that  "civilian  status"  does  not  produce  absurd  results.  As  "civilians,"  unprivileged 
combatants  may  be  attacked  while  they  unlawfully  participate  in  hostilities.  After 
arrest,  Geneva  Convention  IV  does  not  bar  their  punishment  for  unlawful  partici- 
pation in  hostilities;  it  even  prescribes  such  punishment  for  war  crimes.  In  addi- 
tion, it  permits  administrative  detention  for  imperative  security  reasons  and  for 
derogations  from  protected  substantive  rights  of  civilians  within  the  territory  of  a 
State  and  from  communication  rights  within  occupied  territory.37  Geneva  Con- 
vention IV  was  not  drafted  by  professional  do-gooders  or  academics,  but  by  expe- 
rienced diplomats  and  military  leaders  who  fully  appreciated  the  necessity  of 
concluding  an  agreement  that  addressed  the  security  needs  of  a  State  confronted 
with  dangerous  people. 

Some  may  find  it  shocking  that  unprivileged  combatants  classified  as  civilians 
have  an  advantage  over  captured  lawful  combatants  in  that  the  former  are  entitled 
to  individual  judicial  or  administrative  status  determinations,  while  the  latter  are 

63 


Query:  Is  There  a  Status  of  "Unlawful  Combatant?" 

not.  But  combatants  are  normally  easily  identified  and  given  prisoner  of  war  status 
based  on  objective  criteria.  Additionally,  members  of  a  State's  military  forces  gen- 
erally will  acknowledge  that  they  are  in  the  armed  forces.  In  contrast,  the  organiza- 
tional membership  and  past  behavior  of  an  unprivileged  combatant  and  the  future 
threat  he  or  she  represents  can  only  be  determined  individually. 

Under  the  Law  of  Non-international  Armed  Conflicts 

The  international  humanitarian  law  applicable  to  non-international  armed  con- 
flicts does  not  provide  for  combatant  or  prisoner  of  war  status,  contains  no  other 
rules  on  the  status  of  persons  detained  in  connection  with  the  conflict,  nor  details 
the  circumstances  under  which  civilians  may  be  detained.  The  question  as  to 
whether  "unlawful  combatants"  are  combatants  or  civilians  simply  does  not  arise 
in  non-international  armed  conflicts.  In  such  conflicts,  IHL  cannot  possibly  be 
seen  as  providing  a  sufficient  legal  basis  for  detaining  anyone.  It  simply  provides 
for  guarantees  of  humane  treatment  and,  in  prosecutions  for  criminal  offenses,  for 
certain  judicial  guarantees  of  independence  and  impartiality.  Possible  bases  for  ar- 
rest, detention  or  internment  are  entirely  governed  by  domestic  legislation  and  the 
human  rights  law  requirement  that  no  one  be  deprived  of  his  or  her  liberty  except 
on  such  grounds  and  in  accordance  with  procedures  as  are  established  by  law.38  In 
State  practice  too,  governments  confronted  by  non-international  armed  conflicts 
base  arrests,  detentions,  and  internment  of  rebels,  including  rebel  fighters,  either 
on  domestic  criminal  law  or  on  special  security  legislation  introduced  during  the 
conflict.  They  never  invoke  the  "law  of  war." 

Outside  Armed  Conflicts 

IHL  applies  only  to  armed  conflicts.  It  offers  no  protection  to  those  held  in  connec- 
tion with  those  components  of  the  "war  on  terrorism"  that  do  not  meet  the  thresh- 
old of  a  non-international  armed  conflict.  Because  IHL  has  no  application  to 
conduct  falling  below  this  threshold,  it  certainly  cannot  provide  a  legal  basis  for  de- 
taining in  Guantanamo  or  elsewhere  those  that  engage  in  such  conduct. 

Conclusion 

Meant  as  the  branch  of  international  law  providing  protection  to  all  those  affected 
by  or  involved  in  armed  conflicts,  IHL  has  become  for  the  US  administration  a  jus- 
tification for  denying  such  individuals  and  others  detained  under  the  rubric  of  the 
"war  on  terrorism"  any  of  the  protections  provided  by  human  rights  law  and  US 
domestic  legislation.  However,  while  the  United  States  thus  invokes  IHL,  it  is  not 
ready  to  provide  those  detained  the  full  benefit  of  this  law.  In  effect,  the  US 

64 


Marco  Sassoli 


administration  argues  that  they  are  covered  by  no  law  except  for  those  never  de- 
fined and  mysterious  rules  of  customary  IHL. 

To  properly  apply  IHL,  every  component  of  the  "war  on  terrorism,"  the  circum- 
stances of  each  individual's  arrest  or  capture,  and  the  basis  of  each  detention  must 
be  examined  and  classified  separately.  Many  of  those  held  in  the  "war  on  terror- 
ism" do  not  fall  within  the  parameters  of  persons  covered  by  IHL.  Others  benefit 
from  the  fundamental  guarantees  of  IHL  applicable  to  non-international  armed 
conflicts.  Again,  however,  that  law  provides  no  legal  basis  for  their  detention,  an  is- 
sue dealt  with  by  domestic  law.  Those  persons  who  were  captured  in  Afghanistan 
are  protected  by  the  IHL  of  international  armed  conflicts.  Under  that  law,  only 
those  who  are  prisoners  of  war  may  be  held  in  Guantanamo.  Those  who  are  not 
prisoners  of  war  are  civilians.  As  such,  they  may  only  be  detained  in  Afghanistan 
and  only  after  individual  judicial  or  administrative  determinations.  I  am  con- 
vinced that  the  "war  on  terrorism"  can  be  won — and  victory  may  even  be  easier — 
if  the  carefully  drafted  standards  of  IHL  are  respected. 

Notes 

1.  Professor  Marco  Sassoli  is  Professor  of  International  Law  at  the  University  of  Quebec  in 
Montreal,  Canada. 

2.  The  Bush  administration  uses  this  phrase  as  well  as  the  phrase  "war  on  terror"  to  describe  the 
campaign  against  terrorism.  In  this  paper,  I  will  use  the  phrase  "war  on  terrorism."  It  is  intended 
to  be  synonymous  with  the  terms  used  by  the  US  administration. 

3.  For  a  legal  explanation  of  the  US  position,  see  Anthony  Dworkin,  Crimes  of  War  Project, 
Excerpts  from  an  Interview  with  Charles  Allen,  Deputy  General  Counsel  for  International  Affairs, 
US  Department  of  Defense  (Dec.  16,  2002)  available  at  http://www.crimesofwar.org/onnews/ 
news-pentagon-trans.html  (last  visited  Oct.  31,  2003),  and,  with  a  more  moderate  approach, 
William  H.  Taft,  IV,  The  Law  of  Armed  Conflict  After  9/11:  Some  Salient  Features,  28  YALE  JOURNAL 
OF  INTERNATIONAL  LAW  319  (2003).  That  position  was  partly  accepted  by  the  courts  in  Hamdi  v. 
Rumsfeld,  296  F.3d  278  (4th  Or.  2002),  and  Hamdi  v.  Rumsfeld,  316  F.3d  450  (4th  Cir.  2003).  For  a 
critical  assessment,  see  Joan  Fitzpatrick,  Speaking  Law  to  Power:  The  War  Against  Terrorism  and 
Human  Rights,  14  EUROPEAN  JOURNAL  OF  INTERNATIONAL  LAW  241,  249  (2003);  Michael  J.  D. 
Sweeney,  Detention  at  Guantanamo  Bay — A  Linguistic  Challenge  to  Law,  30  HUMAN  RIGHTS  15 
(2003);  Jordan  J.  Paust,  War  and  Enemy  Status  after  9/11:  Attacks  on  the  Laws  of  War,  28  YALE 
JOURNAL  OF  INTERNATIONAL  LAW  325  (2003);  Luisa  Vierucci,  Prisoners  of  War  or  Protected  Persons 
qua  Unlawful  Combatants?  The  Judicial  Safeguards  to  which  Guantanamo  Bay  Detainees  are  Entitled,  1 
JOURNAL  OF  INTERNATIONAL  CRIMINAL  JUSTICE  284  (2003);  Catherine  Moore,  International 
Humanitarian  Law  and  the  Prisoners  at  Guantanamo  Bay,  7:2  INTERNATIONAL  JOURNAL  OF  HUMAN 
RIGHTS  1  (2003);  Manooher  Mofidi  &  Amy  E.  Eckert,  "Unlawful  Combatants"  or  "Prisoners  of  War": 
The  Law  and  Politics  of  Labels,  36  CORNELL  INTERNATIONAL  LAW  JOURNAL  59  (2003);  Richard  J. 
Wilson,  United  States  Detainees  at  Guantanamo  Bay:  The  Inter-American  Commission  on  Human 
Rights  Responds  to  a  "Legal  Black  Hole,"  10:3  HUMAN  RIGHTS  BRIEF  Spring  2003,  at  2,  available  at 
http://www.wcl.american.edu/hrbrief/10/3detainees.cfm  (last  visited  Oct.  31, 2003);  Neil  McDonald 
&  Scott  Sullivan,  Rational  Interpretation  in  Irrational  Times:  the  Third  Geneva  Convention  and  the 

65 


Query:  Is  There  a  Status  of  "Unlawful  Combatant?" 

War  on  Terror,'  44  Harvard  International  Law  Journal  301  (2003);  and  Gabor  Rona, 
Interesting  Times  for  International  Humanitarian  Law:  Challenges  from  the  War  on  Terror,  27 
1'u  i  Cher  Forum  of  World  Affairs  55  (2003). 

4.  See  in  particular  United  States:  Response  of  the  United  States  to  Request  for  Precautionary 
Measures — Detainees  in  Guantanamo  Bay,  Cuba  (Apr.  12,  2002),  reprinted  in  American  Society 
of  International  Law,  International  Law  in  Brief  (June  4,  2002),  http://www.asil.org/ilib/ 
ilib0508.htm#r2  (last  visited  Oct.  31,  2003). 

5.  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.  31 14,  75  U.N.T.S.  31,  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR  197  (Adam  Roberts  and  Richard  Guelff  eds.,  3d  ed.  2000);  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.N.T.S.  85,  reprinted  in  DOCUMENTS  ON  THE  LAWS 
OF  WAR,  supra,  at  222;  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,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra,  at 
244  [hereinafter  Geneva  Convention  III];  and  Geneva  Convention  Relative  [IV]  to  the  Protection  of 
Civilian  Persons  in  Time  of  War,  Aug.  12,  1949,  6  U.S.T.  3516,  75  U.N.T.S.  287,  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra,  at  301  [hereinafter  Geneva  Convention  IV]. 

6.  Protocol  Additional  [I]  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  June  8, 1977, 1 125  U.N.T.S.  3,  reprinted 
in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  422;  Protocol  Additional [II]  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  DOCUMENTS  ON 
THE  LAWS  OF  War,  supra  note  5,  at  483  [hereinafter  Additional  Protocol  II]. 

7.  LIESBETH  ZEGVELD,  ACCOUNTABILITY  OF  ARMED  OPPOSITION  GROUPS  IN  INTERNATIONAL 
LAW  136  (2002). 

8.  See  Prosecutor  v.  Tadic,  Judgment,  No.  IT-94-1-A,  International  Criminal  Tribunal  for  the 
Former  Yugoslavia,  Appeals  Chamber,  July  15, 1999,  55  1 16-144,  reprinted  in  38  INTERNATIONAL 
Legal  Materials  1518  (1999). 

9.  Dietrich  Schindler,  The  Different  Types  of  Armed  Conflicts  According  to  the  Geneva 
Conventions  and  Protocols,  in  163/11  COLLECTED  COURSES  117  (1979);  Hans-Peter  Gasser, 
Internationalized  Non-international  Armed  Conflicts:  Case  Studies  of  Afghanistan,  Kampuchea 
and  Lebanon,  33  AMERICAN  UNIVERSITY  LAW  REVIEW  145  (1983);  James  G.  Stewart,  Towards  a 
Single  Definition  of  Armed  Conflict  in  International  Humanitarian  Law:  A  Critique  of 
Internationalized  Armed  Conflict  85  (No.  850)  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  313 
(2003);  Eric  David,  Principes  de  droit  DES  CONFLITS  ARMES  153-160  (3d  ed.  2002). 

10.  See  Lindsay  Moir,  The  Law  of  Internal  Armed  Conflict  30-52  (2002). 

11.  Additional  Protocol  II,  supra  note  6,  art.  1.2. 

12.  "  [A]  cts  of  violence  committed  by  private  individuals  or  groups  which  are  regarded  as  acts  of 
terrorism  ...  are  outside  the  scope  of  [IHL]."  LESLIE  C.  GREEN,  THE  CONTEMPORARY  LAW  OF 
ARMED  CONFLICT  56  (2d  ed.  2000). 

1 3.  Reservation  by  the  United  Kingdom  to  Article  1 .4  and  Article  96.3  of  Additional  Protocol  I, 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  510,  available  at  http:// 
www.icrc.org/ihl.nsf  (last  visited  Oct.  31,  2003). 

14.  HILAIRE  MCCOUBREY  &  NIGEL  D.  WHITE,  INTERNATIONAL  LAW  AND  ARMED  CONFLICT 
318(1992). 

1 5.  White  House,  Office  of  the  Press  Secretary,  Statement  by  the  Press  Secretary  on  the  Geneva 
Convention  (May  7,  2003),  available  at  http://www.whitehouse.gov/news/releases/2003/05/ 
20030507-18.html  (last  visited  Oct.  31,  2003). 


66 


Marco  Sassoli 


1-6.  Allen,  supra  note  3;  Respondents'  Response  to,  and  Motion  to  Dismiss,  the  Amended 
Petition  for  a  Writ  of  Habeas  Corpus  at  7,  Padilla  v.  Bush,  233  F.  Supp.  2d  564  (S.D.N.Y.  2002), 
available  at  http://news.findlaw.com/hdocs/docs/padilla/padillabush82702grsp.pdf,  at  22  (last 
visited  Aug.  21,2003). 

17.  Knut  Doermann,  The  Legal  Situation  of  'Unlawful/Unprivileged  Combatants,''  85  (No.  849) 
INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  45  (2003).  That  "unlawful  combatants"  are  protected 
by  Geneva  Convention  IV  is  also  recognized  by  Richard  R.  Baxter,  So-called  'Unprivileged 
Belligerency:  Spies,  Guerillas  and  Saboteurs,  28  BRITISH  YEARBOOK  OF  INTERNATIONAL  LAW  323, 
328,  344  (1951).  When  the  concept  of  "unlawful  combatants"  was  used  by  the  US  Supreme  Court 
in  Ex  Parte  Quirin  et  al.,  317  U.S.  1  (1942),  Geneva  Convention  IV  did  not  yet  exist. 

18.  The  International  Criminal  Tribunal  for  the  Former  Yugoslavia  (ICTY)  replaces  the 
nationality  standard  laid  down  in  Article  4  by  an  allegiance  standard.  (See  Prosecutor  v.  Tadic, 
supra  note  8,  ff  163-69  and  our  criticism  Marco  Sassoli  &  Laura  Olson,  Case  Report,  Judgment, 
The  Prosecutor  v.  Dusko  Tadic,  Case  No.  IT -94- A,  ICTY  Appeals  Chamber  (July  15,  1999),  94 
American  Journal  of  International  Law  571, 576-77  (2000)). 

19.  Commentary,  IV,  Geneva  Convention  Relative  to  the  Protection  of  Civilian 
Persons  in  Time  of  War  51  (Jean  S.  Pictet  ed.,  1958). 

20.  International  Committee  of  the  Red  Cross,  Revised  and  New  Draft  Conventions  for  the 
Protection  of  War  Victims,  Remarks  and  Proposals  Submitted  by  the  ICRC  68  ( 1949). 

21.  Statement  by  the  Press  Secretary,  supra  note  15. 

22.  U.S.  Department  of  Defense  News  Briefing — Secretary  Rumsfeld  and  General  Myers  (Feb. 

8,  2002),  available  at  http://www.defenselink.mil/news/Feb2002/t02082002_t0208sd.html  (last 
visited  Nov.  22,  2003). 

23.  Geneva  Convention  III,  supra  note  5,  art.  4.A,  paras.  (2)  and  (1)  respectively. 

24.  For  a  detailed  discussion,  see  Vierucci,  supra  note  3,  at  392-95 

25.  Geneva  Convention  III,  supra  note  5,  art.  5,  para.  2. 

26.  United  States  Military  Assistance  Command,  Vietnam,  Directives  No.  381-46,  Military 
Intelligence:  Combined  Screening  of  Detainees,  27  December  1967,  reprinted  in  MARCO  SASSOLI 
&  Antoine  Bouvier,  How  Does  Law  Protect  IN  WAR?  780-783  (1999)  and  United  States 
Department  of  Defense,  Report  to  Congress  on  the  Conduct  of  the  Persian  Gulf  War  (Apr. 
1992),  reprinted  in  31  INTERNATIONAL  LEGAL  MATERIALS  612,  629  (1992). 

27.  Donald  Rumsfeld,  Fiscal  Year  2003  Department  of  Defense  Budget  Testimony,  available  at 
http://www.defenselink.mil/speeches/2002/s20020205-secdef2.html  (last  visited  Feb.  6,  2002). 

28.  Cf.  United  States  v.  Percheman,  32  U.S.  51,  69-70  (1833)  ("It  is  one  of  the  admitted  rules 
of  construction,  that  interpretations  which  lead  to  an  absurdity,  or  render  an  act  null,  are  to 
be  avoided."). 

29.  Geneva  Convention  III,  supra  note  5,  arts.  21  and  118. 

30.  Id.,  art.  22,  para.  1. 

31.  Supra  note  18. 

32.  Geneva  Convention  IV,  supra  note  5,  art.  4,  para.  2. 

33.  Id.,  arts.  41-43  and  78. 

34.  Id.,  arts.  79-135. 

35.  Id.,  arts.  49  and  76, 

36.  Taft,  supra  note  3,  at  324,  refers  to  Article  64  of  Geneva  Convention  IV,  which  is  located  in 
the  part  of  the  convention  covering  protected  civilians  in  occupied  territories. 

37.  Geneva  Convention  IV,  supra  note  5,  art.  5,  paras.  1  and  2  respectively. 

38.  International  Covenant  on  Civil  and  Political  Rights,  opened  for  signature  Dec.  19, 1966,  art. 

9,  999  U.N.T.S.  171. 


67 


VI 


Special  Forces'  Wear 
of  Non-Standard  Uniforms 


W.  Hays  Parks1 


In  February  2002,  newspapers  in  the  United  States  and  United  Kingdom  pub- 
lished complaints  by  some  nongovernmental  organizations  (NGOs)  about  US 
and  other  Coalition  Special  Operations  Forces  operating  in  Afghanistan  in  "civilian 
clothing."2  The  reports  sparked  debate  within  the  NGO  community  and  military 
judge  advocate  ranks  about  the  legality  of  such  actions.  At  the  US  Special  Operations 
Command  (USSOCOM)  Annual  Legal  Conference  May  13-17,  2002,  the  judge  ad- 
vocate debate  became  intense.  While  some  attendees  raised  questions  of  "illegality" 
and  the  right  or  obligation  of  special  operations  forces  to  refuse  an  "illegal  order"  to 
wear  "civilian  clothing,"  others  urged  caution.  The  discussion  was  unclassified,  and 
many  in  the  room  were  not  privy  to  information  regarding  Operation  Enduring 
Freedom  Special  Forces,3  its  special  mission  units,  or  the  missions  assigned  them. 

The  topic  provides  lessons  and  questions  for  consideration  of  future  issues  by 
judge  advocates.  The  questions  are: 

(a)  What  are  the  facts? 

(b)  What  is  the  nature  of  the  armed  conflict,  and  its  armed  participants? 

(c)  What  is  the  relevant  law  of  war? 

(d)  What  is  State  practice? 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


What  Are  The  Facts? 

Thirty  years  ago  it  was  my  privilege  to  serve  as  the  first  Marine  Corps  Representa- 
tive at  The  Judge  Advocate  General's  School,  US  Army,  in  Charlottesville,  Virginia. 
As  the  lone  Marine  on  the  faculty,  I  was  expected  to  attend  all  major  public  cere- 
monies, including  the  graduation  of  each  Judge  Advocate  Officers  Basic  Course — 
the  accession  course  for  new  lawyers  entering  the  Army.  Course  graduation  war- 
ranted a  speech  by  one  of  the  Army  JAG  Corps'  flag  officers.  Regardless  of  who  the 
graduation  speaker  was,  the  speech  was  the  same.  Written  by  The  Assistant  Judge 
Advocate  General  of  the  Army,  the  late  Major  General  Lawrence  H.  Williams,  it 
was  called  "the  facts  speech."  Its  message  was  simple  and  straightforward:  Before 
charging  off  to  tilt  at  windmills,  be  sure  you  have  the  facts. 

There  is  much  to  be  said  for  this  admonition  and  its  application  in  the  case  at 
hand.  Condemning  certain  actions  or  declaring  them  a  law  of  war  violation  based 
upon  news  accounts  is  not  a  sound  basis  for  analysis.  No  lawyer  would  prepare  his 
case  based  solely  upon  news  accounts.  Indeed,  media  reports  generally  are  inad- 
missible as  evidence.  Regrettably,  there  was  a  rush  to  judgment  by  some  based  on  a 
less-than-reliable  source. 

The  facts  surrounding  the  issue  were  two-fold.  The  first  had  to  do  with  what  was  be- 
ing worn,  and  by  whom.  The  second  concerned  the  motive  for  the  NGO  complaint.4 

In  response  to  the  September  11,  2001  al  Qaeda  terrorist  attacks  against  the 
World  Trade  Center  and  Pentagon,  US  and  coalition  Special  Forces  began  opera- 
tions in  Afghanistan  in  late  September  2001.  At  the  request — initially  insistence — 
of  the  leaders  of  the  indigenous  forces  they  supported,  they  dressed  in  indigenous 
attire.  For  identification  purposes  within  the  Northern  Alliance,  this  included  the 
Massoud  pakol  (a  round  brownish-tan  or  gray  wool  cap)  and  Massoud  checkered 
scarf,  each  named  for  former  Northern  Alliance  leader  Ahmad  Shah  Massoud,  as- 
sassinated days  before  the  al  Qaeda  attacks  on  the  World  Trade  Center  and  Penta- 
gon. This  attire  was  not  worn  to  appear  as  civilians,  or  to  blend  in  with  the  civilian 
population,  but  rather  to  lower  visibility  of  US  forces  vis-a-vis  the  forces  they  sup- 
ported. Al  Qaeda  and  the  Taliban  had  announced  a  $25,000  per  head  bounty  on 
uniformed  US  military  personnel.  Placing  a  US  soldier  in  Battle  Dress  Uniform 
(BDU)  or  Desert  Camouflaged  Uniform  (DCU)  in  the  midst  of  a  Northern  Alli- 
ance formation  would  greatly  facilitate  al  Qaeda/Taliban  targeting  of  US  Special 
Forces.5  As  will  be  seen  in  review  of  the  law,  dressing  in  this  manner  more  accurately 
may  be  described  as  wearing  a  "non-standard  uniform"  than  "dressing  as  civil- 
ians." Special  Forces  personnel  who  had  served  in  Afghanistan  with  whom  I  spoke 
stated  that  al  Qaeda  and  the  Taliban  had  no  difficulty  in  distinguishing  Northern 
Alliance  or  Southern  Alliance  forces  from  the  civilian  population.6 

70 


W.  Hays  Parks 

The  fall  of  Kandahar  in  early  December  2001  was  followed  by  the  collapse  of 
the  Taliban  regime  and  the  swearing-in  of  Hamid  Karzai  as  Prime  Minister.  An- 
other aspect  of  US  Special  Operations  Forces — Army  Civil  Affairs — began  to  en- 
ter Afghanistan.  In  November  2001,  US  Army  Forces  Central  Command 
(USARCENT)  had  established  the  Coalition  and  Joint  Civil  Military  Operations 
Task  Force  (CJCMOTF)  using  soldiers  from  the  377th  Theater  Support  Com- 
mand (TSC),  the  122nd  Rear  Operations  Center,  and  the  352nd  Civil  Affairs  Com- 
mand. By  January  3,  2002,  the  CJCMOTF  was  established  in  Kabul.  It  served  as 
liaison  with  local  officials  of  the  Interim  Government  and  supervised  the  human- 
itarian assistance  from  US  Army  Civil  Affairs  (CA)  teams  from  the  96th  Civil  Af- 
fairs Battalion,  who  were  beginning  to  operate  throughout  Afghanistan. 
CJCMOTF  also  was  the  liaison  with  the  US  Embassy,  and  coordinated  coalition 
humanitarian  assistance  contributions. 

The  USARCENT  Commanding  General  made  the  uniform  decision,  favoring 
civilian  clothing  over  DCU.  His  rationale  was  based  on  two  factors:  (a)  ability  of 
soldiers  to  perform  humanitarian  assistance  operations;  and  (b)  safety  of  Civil  Af- 
fairs personnel,  that  is,  force  protection.7  A  strong  desire  existed  at  the  US  Central 
Command  (USCENTCOM)  headquarters  (Tampa)  to  present  a  non-confronta- 
tional face,  as  well  as  a  sentiment  expressed  that  NGO  would  be  reluctant  to  be  seen 
working  with  uniformed  soldiers.  Additionally,  96th  Civil  Affairs  Battalion  person- 
nel, who  initially  operated  in  Islamabad,  Pakistan,  were  ordered  by  the  US  Ambas- 
sador to  Pakistan  to  wear  civilian  clothing  rather  than  their  uniforms,  reflecting  the 
sensitive  and  unique  political  environment  in  which  US  Army  forces  were  operat- 
ing. This  order  was  not  clarified  or  countermanded  on  entry  into  Afghanistan. 
Civil  Affairs  personnel  continued  to  wear  Western  civilian  attire.  Eventually  some 
adopted  Afghan  native  attire.8 

Other  reasons  existed  for  continued  wear  of  civilian  attire.  In  some  areas,  local 
governors  would  not  talk  to  uniformed  Civil  Affairs  personnel.  In  December  2001, 
the  UN-sanctioned  International  Security  Assistance  Force  (ISAF)  began  arriving 
in  Kabul  in  accordance  with  the  Bonn  Agreement.  United  Nations  representatives 
refused  to  meet  with  US  Army  Civil  Affairs  leaders  if  they  were  in  uniform. 

US  Army  Civil  Affairs  units  have  a  long,  distinguished  history.  They  played  an  in- 
dispensable role  in  the  European  Theater  of  Operations  during  and  after  World  War 
II,  and  in  the  postwar  occupation  of  Japan.  US  Army  and  Marine  Corps  Civic  Action 
units  played  an  equally  indispensable  humanitarian  assistance  role  during  the  Viet- 
nam War.  NGO  involvement  during  those  conflicts  was  virtually  non-existent 
(World  War  II)  or  extremely  limited  (Vietnam). 

Under  the  terms  of  the  1949  Geneva  Convention  Relative  to  the  Protection  of 
Civilian  Persons  in  Time  of  War  (GC),  NGOs  operate  subject  to  the  consent  of 

71 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


relevant  States  parties  to  a  conflict.9  The  GC  also  contemplated  a  linear  battlefield 
in  which  NGOs  could  operate  in  secure  areas,  a  combat  environment  different 
from  Afghanistan.  Legally  and  operationally,  military  operations  and  require- 
ments take  priority  over  NGO  activities.  However,  NGOs  provide  valuable  services 
that  the  military  might  be  expected  or  required  to  perform  were  NGOs  not  present. 
Military  commanders  must  give  due  consideration  to  this,  as  the  absence  of  NGOs 
could  add  other  responsibilities  (such  as  refugee  care)  to  a  military  commander's 
burden.  At  the  same  time,  NGOs  cannot  expect  a  risk-free  work  environment.  Mil- 
itary commanders  are  entitled  to  make  lawful  mission-supporting  decisions,  even 
if  those  decisions  might  place  NGOs  or  other  civilians  at  greater  risk. 

Service  NGOs  have  become  a  more  significant  player  in  areas  of  armed  conflict  over 
the  past  decade.  NGO  emphasis  is  on  mission  performance  following  the  principles  of 
humanity,  impartiality,  independence  and  neutrality.  NGOs  feel  obliged  to  maintain 
independence  from  the  agendas  of  both  the  donors  that  fund  them  and  governments 
and  local  authorities  that  allow  them  to  operate  in  their  territory.  In  contrast,  NGOs 
see  CA  engaged  in  assistance  activities  as  driven  by  political  and  security  objectives. 

The  US  military  leadership  was  not  entirely  successful  in  seeking  a  dialogue, 
much  less  a  working  relationship,  with  NGOs  in  Afghanistan.  The  relationship  was 
particularly  bad  as  US  Army  Civil  Affairs  arrived  in  Afghanistan.  Civil  Affairs  per- 
sonnel were  denied  access  to  NGO  meetings,  while  some  NGOs  refused  to  come  to 
CJCMOTF-hosted  meetings.  A  senior  on-scene  Army  Civil  Affairs  officer  con- 
cluded that  the  key  issue  was  NGO  image  and  market  share.  NGOs  who  had 
worked  in  Afghanistan  since  the  1980s  feared  being  upstaged  by  the  Army's  Civil 
Humanitarian  and  Liaison  Cells  (CHLC).  The  NGOs  also  objected  to  humanitar- 
ian projects  being  used  in  support  of  a  military  campaign. 

The  CJCMOTF  served  as  liaison  with  the  Interim  Government  and  supervised 
the  humanitarian  assistance  for  US  Army  Civil  Affairs  teams  beginning  to  operate 
throughout  Afghanistan.  Civil  Affairs  personnel  deployed  across  Afghanistan  to 
provide  assessments  and  identify  projects  for  some  $2  million  in  initial  aid  money. 
The  money  went  directly  to  local  contractors.  NGOs  wanted  to  be  subcontracted. 
Based  on  limited  money,  a  need  to  have  an  immediate  impact,  and  concern  about 
whether  such  use  of  these  funds  was  permissible,  US  Army  Civil  Affairs  leadership 
informed  the  NGOs  that  it  would  not  subcontract  to  NGOs.  Moreover,  due  to  se- 
curity concerns,  NGOs  were  in  the  main  cities  but  not  in  the  villages  where  Civil 
Affairs  teams  conducted  business.  Going  directly  to  local  contractors  increased  the 
fear  of  some  NGOs  that  they  would  be  cut  out  of  their  "market  share." 

Friction  also  existed  with  respect  to  fiscal  accountability.  US  Army  Civil  Affairs 
are  expected  to  account  for  100%  of  funds  allocated  to  it.  A  substantial  amount  of 
money  provided  NGO — as  much  as  60% — is  directed  to  "overhead,"  preventing 

72 


W.  Hays  Parks 

its  allocation  toward  the  designated  project,  and  full  accountability.  NGOs  resent 
scrutiny  of  their  financial  accountability  shortcomings  and  amounts  attributed  to 
overhead.  This  increased  tension  between  US  Army  Civil  Affairs  and  the  NGOs. 

Social  reform  was  another  Civil  Affairs/NGO  point  of  tension.  Contrary  to 
claims  of  neutrality  and  impartiality,  many  NGOs  in  Afghanistan  moved  into  ad- 
vocacy of  women's  rights  and  human  rights.  This  caused  friction  with  US  Army 
Civil  Affairs,  whose  role  is  to  provide  humanitarian  relief  without  interference  in 
local  customs,  however  objectionable  they  may  be.  Civil  Affairs  work  stifled  NGO 
agendas  on  non-humanitarian  issues. 

A  better  than  average,  although  uneven,  relationship  evolved  between  CA  and 
NGOs  at  the  working,  "grassroots"  level.  This  contrasts  with  a  poor  relationship 
at  higher  levels  due  to  the  conflicts  identified  above.  NGO  resentment  of  US 
Army  Civil  Affairs  and  market  share  concerns  apparently  prompted  the  NGO  com- 
plaint— led  by  Medecins  sans  Frontieres — regarding  Civil  Affairs  wear  of  civilian 
clothing.10  Philosophical  differences  between  NGOs  and  the  military  are  inevitable. 
The  uniform/civilian  clothes  issue  was  symptomatic  of  a  larger  issue.  It  should  be 
noted  that  not  all  NGOs  agreed  with  the  complaint  made  by  Medecins  sans  Frontieres. 

In  early  March  2002,  the  CJCMOTF  commander,  desiring  to  broker  a  compro- 
mise, directed  all  Civil  Affairs  personnel  in  Kabul  and  Mazar-e-Sharif  to  return  to 
full  uniform.  Some  Civil  Affairs  personnel  in  remote  locations  (where  NGOs  would 
not  work  due  to  the  risk)  were  permitted  to  stay  in  civilian  attire.  On  March  19,  fol- 
lowing its  review,  USCENTCOM  supported  CJCMOTF's  decision.  Guidance  and 
authority  was  provided  to  ground  force  commanders  to  establish  uniform  policies 
based  upon  local  threat  conditions  and  force  protection  requirements. 

As  a  result  of  the  NGO  complaint,  the  issue  of  military  wear  of  civilian  clothing 
was  reviewed  within  the  Department  of  Defense  (DOD).  Following  DOD-Joint 
Chiefs  of  Staff  (JCS)  coordination,  guidance  was  forwarded  to  USCENTCOM  in 
May  2002  that  was  consistent  with  CJCMOTF  guidance  issued  April  7,  2002.  As  a 
result  of  CENTCOM/CJCMOTF  guidance,  the  number  of  Civil  Affairs  and  other 
SOF  personnel  in  civilian  clothing  had  diminished  substantially  prior  to  DOD- JCS 
action  or  the  aforementioned  USSOCOM  Legal  Conference.11 

What  Are  The  Legal  Issues? 

Considering  an  issue  in  the  public  sector,  including  the  military,  is  similar  to  pri- 
vate practice  or  a  law  school  examination.  The  legal  issues  have  to  be  identified  and 
addressed.  In  weighing  the  situation  at  hand,  the  following  legal  issues  were 
identified: 


73 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


•  Is  it  lawful  for  combatants  to  wear  civilian  clothing  or  non-standard 
uniforms  in  combat? 

•  If  so,  are  there  legal  restrictions  in  use  of  either? 

•  Are  there  unique  law  of  war  considerations,  such  as  risks,  a  commander 
should  balance  in  making  his  decision? 

Other  questions  had  to  be  answered  prior  to  answering  these  questions. 

What  is  the  nature  of  the  armed  conflict,  and  its  armed  participants?  The  nature  of 
the  armed  conflict  in  Afghanistan  was  an  issue  that  prompted  considerable  discussion 
within  and  outside  the  government,  in  large  measure  due  to  the  nature  of  the  enemy. 

References  to  al  Qaeda  and  the  Taliban  as  separate  entities  constituted  an  in- 
complete and  inaccurate  picture.  The  enemy  consisted  of  a  loose  amalgamation  of 
at  least  three  groups:  the  Taliban  regime  (until  its  December  2001  collapse,  follow- 
ing which  it  reverted  to  its  tribal  origins),  the  al  Qaeda  terrorist  group,  used  as  the 
Praetorian  Guard  for  the  Taliban  leadership  (both  for  internal  security  prior  to  and 
following  commencement  of  US/Coalition  operations),  and  foreign  Taliban.  The 
picture  was  further  complicated  by  the  tendency  of  some  to  refer  to  the  Taliban  as 
the  de  facto  Government  of  Afghanistan  because  it  exercised  rough  control  over 
eighty  per  cent  of  the  country.  This  was  open  to  debate  until  collapse  of  the 
Taliban,  at  which  time  it  ceased  to  be  an  issue.  Up  to  the  time  of  the  Taliban  regime 
collapse  in  December  2001,  a  strong  case  could  be  made  that  this  was  an  internal 
conflict  between  non-State  actors  in  a  failed  State.12  By  the  time  of  US  Army  Civil 
Affairs  entry  into  Afghanistan,  the  case  was  absolute. 

Another  factor  was  that  the  United  States  and  its  coalition  partners  were  en- 
gaged in  military  operations  in  a  foreign  nation.  Hence  regardless  of  the  status  of 
the  Taliban,  an  argument  could  be  made  that  for  certain  purposes  this  was  an  inter- 
national armed  conflict.  However,  by  the  time  the  uniform  issue  was  raised  by 
non-government  organizations  and  considered  in  Washington,  the  conflict 
against  the  Taliban  and  al  Qaeda  looked  more  like  a  counterinsurgency  campaign 
or  counter-terrorist  operation  than  an  international  armed  conflict.  While  the  US 
Administration  chose  to  apply  the  law  of  war  applicable  in  international  armed 
conflicts  as  a  template  for  US  conduct,13  it  would  be  incorrect  to  conclude  that  all 
of  the  law  of  war  for  international  armed  conflicts  was  applicable.  For  example, 
neither  the  Taliban  nor  al  Qaeda  personnel  were  regarded  as  entitled  to  prisoner  of 
war  status.14  Nonetheless,  the  Geneva  Convention  Relative  to  the  Treatment  of 
Prisoners  of  War15  (GPW),  proved  a  useful  template  for  their  treatment. 

This  issue  was  not  entirely  new.  US  and  other  military  forces  engaged  in  the  var- 
ious peacekeeping  and  other  peace  operations  during  the  1990s  frequently  sought 
to  ascertain  where  they  were  along  the  conflict  spectrum.  From  the  standpoint  of 


74 


W.  Hays  Parks 


US  military  conduct,  the  issue  made  little  difference.  Department  of  Defense  policy 
is  that  US  military  personnel  will  comply  with  the  law  of  war  during  all  armed  con- 
flicts, however  such  conflicts  are  characterized,  and  with  the  principles  and  spirit  of 
the  law  of  war  during  all  other  operations.16  The  primary  issue  in  US  and  coalition 
operations  against  al  Qaeda  and  the  Taliban  was  entitlement  of  captured  al  Qaeda 
and  Taliban  to  prisoner  of  war  status  under  the  GPW.  That,  as  indicated,  had  been 
decided. 

What  Is  The  Relevant  Law? 

In  a  speech  at  the  United  States  Institute  of  Peace  on  March  1,  2001,  Sir  Adam 
Roberts  declared  "Lawyers  stick  to  the  safe  anchor  of  treaties."17  This  perhaps  is  a 
more  erudite  way  of  expressing  the  adage,  "If  the  only  tool  you  have  is  a  hammer, 
every  problem  is  viewed  as  a  nail."  So  it  was  in  the  debate  over  SOF  wear  of  non- 
standard uniforms.  The  argument  against  non-standard  uniforms  primarily  was 
cast  in  terms  of  the  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of 
War  (GPW).18  The  author  frequently  heard  critics  argue  that  "in  accordance 
with"  the  GPW,  (a)  SOF  were  required  to  wear  uniforms;  (b)  failure  to  wear  uni- 
forms was  a  war  crime;  and  (c)  SOF  had  to  wear  uniforms  and  treat  captured  al 
Qaeda  and  Taliban  as  enemy  prisoners  of  war  in  the  hope  of  reciprocity  should 
any  SOF  fall  into  enemy  hands.  A  closer  examination  of  the  law  reveals  (a)  and 
(b)  to  be  legally  incorrect,  while  (c)  was  highly  speculative  at  best  with  respect  to 
al  Qaeda  and  Taliban  conduct. 

The  GPW  and  its  predecessors  contain  no  language  requiring  military  person- 
nel to  wear  a  uniform,  nor  fight  in  something  other  than  full,  standard  uniform. 
Nor  does  it  make  it  a  war  crime  not  to  wear  a  uniform.  Article  4,  GPW,  lists  persons 
entitled  to  prisoner  of  war  status  and  subject  to  the  protections  set  forth  in  the 
GPW.  It  states  in  part: 

A.  Prisoners  of  war,  in  the  sense  of  the  present  Convention,  are  persons  belonging  to 
one  of  the  following  categories,  who  have  fallen  into  the  power  of  the  enemy: 

(1)  Members  of  the  armed  forces  of  a  Party  to  the  conflict,  as  well  as  members  of 
militias  and  volunteer  corps  forming  part  of  such  armed  forces. 

(2)  Members  of  other  militias  and  members  of  other  volunteer  corps,  including 
those  of  organized  resistance  movements,  belonging  to  a  Party  to  the  conflict  and 
operating  in  or  outside  their  own  territory,  even  if  this  territory  is  occupied,  provided 
that  such  militias  or  volunteer  corps,  including  such  organized  resistance 
movements,  fulfill  the  following  conditions: 


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Special  Forces'  Wear  of  Non-Standard  Uniforms 


(a)  that  of  being  commanded  by  a  person  responsible  for  his  subordinates; 

(b)  that  of  having  a  fixed  distinctive  sign  recognizable  at  a  distance; 

(c)  that  of  carrying  arms  openly; 

(d)  that  of  conducting  their  operations  in  accordance  with  the  laws  and  customs 
of  war.19 

Differing  views  as  to  whether  regular  force  combatants  are  expected  or  required 
to  meet  the  four  criteria  contained  in  Article  4A(2)  are  beyond  the  scope  of  my 
presentation.  While  history,  the  negotiating  history  of  article  4  and  predecessor 
treaties,  other  provisions  in  the  GPW,  and  recognized  experts  strongly  suggest 
that  regular  force  combatants  are  entitled  to  prisoner  of  war  status  once  they  are 
identified  as  members  of  the  regular  forces  (however  attired  when  captured),20 
other  experts  argue  that  the  4A(2)  criteria  are  prerequisites  for  prisoner  of  war  sta- 
tus for  regular  force  personnel  as  well  as  militia  members.21  Court  cases,  while  lim- 
ited in  number,  tend  to  support  the  latter  point  of  view.22  Article  46  of  the  1977 
Additional  Protocol  I23  denies  prisoner  of  war  protection  to  spies,  even  if  they  have 
been  identified  as  regular  members  of  the  military. 

Historical  State  practice,  provided  infra,  suggests  that  denial  of  prisoner  of  war 
status  is  not  automatic,  while  the  experience  of  US  military  personnel  captured 
even  when  in  uniform  has  been  one  of  refusal  of  the  captor  to  provide  prisoner  of 
war  status  and/or  suffer  serious  abuse.24  Past  abuses  of  captured  US  military  and  ci- 
vilian personnel  do  not  constitute  either  justification  or  an  argument  for  military 
personnel  to  abandon  standard  uniforms.  In  international  armed  conflict,  stan- 
dard uniforms  should  be  the  norm;  non-standard  uniform,  the  rare  exception;  ci- 
vilian attire,  even  rarer.  But  risk  of  denial  of  prisoner  of  war  status,  while  a  serious 
consideration,  does  not  answer  the  commander's  question:  Is  wearing  something 
less  than  the  standard  uniform  illegal?  The  answer  in  treaty  law  and  State  practice  is 
clear:  Wearing  a  partial  uniform,  or  even  civilian  clothing,  is  illegal  only  if  it  involves 
perfidy,  discussed  infra.  Military  personnel  wearing  non-standard  uniforms  or  civil- 
ian clothing  are  entitled  to  prisoner  of  war  status  if  captured.  Those  captured  wearing 
civilian  clothing  may  be  at  risk  of  denial  of  prisoner  of  war  status  and  trial  as  spies. 

There  is  no  doubt  that  in  an  international  armed  conflict  any  commander  will, 
and  should,  weigh  a  decision  to  authorize  the  wearing  of  civilian  clothing  carefully. 
That  being  said,  military  personnel  are  in  a  high-risk  profession,  and  commanders 
often  must  make  life-and-death  decisions.  Under  most  circumstances,  a  com- 
mander ordering  a  frontal  infantry  assault  on  a  heavily  fortified  position  under- 
stands that  in  doing  so,  he  has  accepted  that  some  soldiers  are  likely  to  lose  their 
lives  in  carrying  out  his  order.  Similarly,  individuals  who  join  the  military  should 
be  under  no  illusion  as  to  the  attendant  risks.  As  British  Special  Operations 

76 


____ W.  Hays  Parks 

Executive  historian  M.  R.  D.  Foot  acknowledged,  "The  truth  is  that  wars  are  dan- 
gerous, and  people  who  fight  them  are  liable  to  be  killed."25 

The  decision  to  wear  something  other  than  a  standard  uniform  first  requires 
military  necessity.  At  issue  then  is  what  constitutes  a  "non-standard  uniform?"  If  a 
commander  provides  military  necessity  for  a  Special  Forces  team  to  conduct  oper- 
ations in  an  international  armed  conflict  in  something  other  than  the  standard 
uniform,  what  steps  are  necessary  to  comply  with  the  law  of  war?  What  guidance,  if 
any  does  the  law  of  war  provide  as  to  what  might  constitute  a  "non-standard  uni- 
form?" Second,  what  is  "treacherous"  killing,  prohibited  by  Article  23(b),  Annex  to 
the  1907  Hague  IV? 

At  the  heart  of  the  issue  is  the  law  of  war  principle  of  distinction.  The  law  of  war 
divides  the  population  of  nations  at  war  into  the  belligerent  forces  and  civilians  not 
taking  an  active  or  direct  part  in  hostilities.26  With  a  single,  limited  exception,27 
only  military  forces  may  engage  directly  or  actively  in  hostilities,  that  is,  in  combat- 
ant-like activities.  Hostile  acts  by  private  citizens  are  not  lawful,  and  are  punish- 
able, in  order  to  protect  innocent  civilians  from  harm.28  Civilians,  and  the  civilian 
population,  are  protected  from  intentional  attack  so  long  as  they  do  not  take  an  ac- 
tive or  direct  part  in  hostilities.  In  turn,  military  forces  are  obligated  to  take  reason- 
able measures  to  separate  themselves  from  the  civilian  population  and  civilian 
objects,  to  distinguish  innocent  civilians  from  civilians  engaged  in  hostile  acts,  and 
to  distinguish  themselves  from  the  civilian  population  so  as  not  to  place  the  civilian 
population  at  undue  risk.  This  includes  not  only  physical  separation  of  military 
forces  and  other  military  objectives  from  civilian  objects  and  the  civilian  popula- 
tion as  such,  but  also  other  actions,  such  as  wearing  uniforms.  An  early  20th- 
century  law  of  war  scholar  observed:  "The  separation  of  armies  and  peaceful  in- 
habitants into  two  distinct  classes  is  perhaps  the  greatest  triumph  of  International 
Law.  Its  effect  in  mitigating  the  evils  of  war  has  been  incalculable."29 

Another  law  of  war  scholar  summarizes  the  principle  of  distinction  in  the  fol- 
lowing way: 

It  may  be  said  that  the  principle  ...  of  distinction  between  belligerents  and  civilian 
population,  had  found  acceptance  as  a  self-evident  rule  of  customary  law  in  the  second 
half  of  the  19th  century.  Indeed,  it  seems  no  more  than  a  reflection  of  practice  as 
demonstrated  in  many  of  the  wars  fought  in  Europe  in  that  period.  Soldiers  were  not 
merely  distinguishable;  they  were  conspicuous  in  their  proud  uniforms;  and  armies 
fought  each  other,  and  preferred  the  civilian  population  not  to  mingle  in  their  business.30 

State  practice  and  treaty  development  make  it  clear  that  the  principle  is  nei- 
ther absolute  nor  rigid.  Wearing  civilian  clothing  for  intelligence  collection  is  ac- 
knowledged in  treaty  law  as  a  lawful  military  activity.  SOF  wearing  civilian 

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Special  Forces'  Wear  of Non-Standard  Uniforms 


clothing  while  serving  with  partisans  was  common  State  practice  in  World  War  II 
and  codified  in  subsequent  treaties  or  their  negotiating  records,  as  will  be  shown. 
The  ancillary  law  of  war  prohibition  on  "killing  treacherously"31  does  not  pre- 
clude lawful  ruses  or  Special  Forces'  wearing  non-standard  uniforms,  or  openly 
fighting  in  civilian  attire  with  no  intent  to  conceal  their  combatant  status.32 

Wearing  of  Uniforms 

Military  wear  of  uniforms  during  conventional  combat  operations  in  international 
armed  conflict  reflects  the  general  customary  practice  of  nations,  subject  to  limited 
exceptions  discussed  infra.  State  practice  of  uniform  wear  is  extensive,  dating  at 
least  to  the  Peloponnesian  Wars  (431  to  404  B.C.).33 

The  customary  principle  of  distinction  is  applicable  to  the  regular  military 
forces.  Conventional  military  forces  should  be  distinguishable  from  the  civilian 
population  in  international  armed  conflict  between  uniformed  military  forces 
of  the  belligerent  States.  It  is  an  expectation,  with  codified  exceptions,  and  an- 
other exception  acknowledged  in  the  negotiating  record  of  the  1977  Additional 
Protocol  I.34  The  criteria  set  forth  for  militia  and  partisan  forces  not  a  part  of  the 
regular  military  had  as  their  intention  recognition  of  the  generally  accepted  prac- 
tice of  nations  with  respect  to  the  characteristics  of  conventional  forces.35 

No  rule  exists  stating  that  a  complete,  standard  uniform  is  the  only  way  by 
which  regular  armed  forces  may  make  themselves  distinguishable  from  the  civilian 
population.36  Historically  it  has  been  the  predominant  way  by  which  military  per- 
sonnel, including  special  operations  forces,  have  distinguished  themselves  from 
the  civilian  population.  But  it  has  not  been  the  exclusive  way. 

A  difficulty  lies  in  the  lack  of  definition.  There  is  no  international  standard  as  to 
what  constitutes  a  "uniform."37  Neither  the  1907  Hague  Convention  IV  nor  the 
GPW  offers  a  definition  or  precise  standard.  In  the  International  Committee  of  the 
Red  Cross  (ICRC)  Commentary  on  Article  4,  GPW,  its  author  states: 

The  drafters  of  the  1949  Convention,  like  those  of  the  Hague  Conventions,  considered 
it  unnecessary  to  specify  the  sign  which  members  of  armed  forces  should  have  for 
purposes  of  recognition.  It  is  the  duty  of  each  State  to  take  steps  so  that  members  of  its 
armed  forces  can  be  immediately  recognized  as  such  and  to  see  to  it  that  they  are  easily 
distinguishable  from  . . .  civilians.38 

Similarly,  reporting  on  discussions  of  the  same  issue  at  the  1974-1977  Diplomatic 
Conference  that  promulgated  Additional  Protocol  I,  the  ICRC  Commentary  states: 

What  constitutes  a  uniform,  and  how  can  emblems  of  nationality  be  distinguished 
from  each  other?  The  Conference  in  no  way  intended  to  define  what  constitutes  a 

78 


, W.  Hays  Parks 

uniform.  .  .  .  "[A]ny  customary  uniform  which  clearly  distinguished  the  member 
wearing  it  from  a  non-member  should  suffice."  Thus  a  cap  or  an  armlet  etc.  worn  in  a 
standard  way  is  actually  equivalent  to  a  uniform. 

The  uniform  and  other  emblems  of  nationality  are  visible  signs.  Although  certain  kinds 
of  battle  dress  of  different  countries  are  very  similar  nowadays,  it  is  nevertheless 
possible  to  distinguish  allied  armed  forces  from  enemy  armed  forces  by  means  of 
characteristics  of  outfitting  and  other  signs  of  nationality.  Furthermore,  this  makes  it 
possible  to  distinguish  members  of  the  armed  forces  from  the  civilian  population 39 

The  ICRC  Commentary  indicates  that  a  State  should  ensure  that  its  conven- 
tional military  forces  be  distinguishable  from  the  civilian  population.  It  does  not 
specify  the  manner  in  which  this  may  be  accomplished,  nor  state  that  the  complete 
standard  uniform  is  the  only  way  in  which  this  requirement  may  be  met. 

In  spite  of  the  clear  treaty  language  in  Article  4A(2)(b),  GPW  ("fixed  distinctive 
sign"),  the  device  need  not  be  permanent  or  fixed.  What  "fixed  distinctive  sign"  means 
remains  unresolved.  In  commenting  on  this,  Professor  Howard  S.  Levie  notes: 

The  ICRC  has  made  several  statements  attempting  to  offer  acceptable  interpretations 
of  the  meaning  of  the  term  "fixed  distinctive  sign"  [contained  in  Article  4A(2),  GPW]. 
In  1960  it  stated  that  the  sign  "must  be  worn  constantly";  but  in  1971  it  backtracked 
somewhat  when  it  said  that  the  sign  must  be  "fixed,  in  the  sense  that  the  resistant 
[partisan  or  guerrilla]  should  wear  it  throughout  all  the  operation  in  which  he  takes 
part."  Moreover,  at  that  same  time  the  ICRC  stated  that  the  sign  "might  be  an 
armband,  a  headdress,  part  of  a  uniform,  etc."  During  World  War  II  the  listed  items 
were,  on  various  occasions,  used  by  resistance  groups;  but  they  were  frequently 
removed  and  disposed  of  at  critical  moments  in  order  to  enable  the  individual  to 
escape  being  identified  as  a  member  of  the  resistance. . . . 40 

Given  the  generally  accepted  understanding  of  the  term  "distinctive  devices" — 
a  hat,  a  scarf,  or  an  armband — a  device  recognizable  in  daylight  with  unenhanced 
vision  at  reasonable  distance  would  meet  the  law  of  war  obligation  to  be  distin- 
guishable from  the  civilian  population.41 

There  are  at  least  five  categories  of  clothing:  (a)  a  uniform  as  such,  such  as  BDU; 
(b)  a  uniform  worn  with  some  civilian  clothing;42  (c)  civilian  clothing  only,  but 
with  a  distinctive  emblem  to  distinguish  the  wearer  from  the  civilian  population; 
(d)  civilian  clothing  only,  with  arms  and  other  accoutrements  (such  as  load-bear- 
ing equipment,  body  armor)  that,  combined  with  actions  and  circumstances, 
clearly  manifest  military  status;  and  (e)  civilian  clothing,  with  weapon  concealed 
and  no  visual  indication  that  the  individual  is  a  member  of  the  military.43  Based 
upon  historical  practice  and  treaty  negotiation  records,  the  first  three  constitute  a 


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Special  Forces*  Wear  of  Non-Standard  Uniforms 


"uniform."  The  fourth  should  protect  the  individual  from  charges  of  spying  if  cap- 
tured provided  he  is  distinguishable  from  the  civilian  population  by  physical  sepa- 
ration, clearly  military  duties,  and  other  characteristics.44  The  last  is  lawful  for 
intelligence  gathering  or  other  clandestine  activities.  As  will  be  indicated,  violation 
of  the  law  of  war  occurs  only  when  there  is  treacherous  use  of  civilian  clothing  that 
is  the  proximate  cause  of  death  or  injury  of  others.  The  1974-1977  Diplomatic 
Conference45  did  not  regard  it  as  serious  enough  to  be  classified  as  a  Grave  Breach. 

The  United  States  is  not  a  State  party  to  Additional  Protocol  I.  Following  ex- 
tensive military,  legal  and  policy  review,  the  United  States  decided  against  sub- 
mission of  Additional  Protocol  I  to  the  United  States  Senate  for  its  advice  and 
consent  to  ratification.46  However,  the  United  States  acknowledged  that  it  is 
bound  by  Additional  Protocol  I  provisions  that  constitute  a  codification  of  cus- 
tomary international  law.47 

Most  paragraphs  of  Article  44,  Additional  Protocol  I,  amended  the  customary 
law  of  war  with  respect  to  entitlement  to  prisoner  of  war  status  for  private  groups 
(so-called  "liberation  movements").  For  policy,  humanitarian  and  military  rea- 
sons these  provisions  are  regarded  as  unacceptable  by  the  United  States,  and  were  a 
major  reason  for  the  US  decision  against  ratification. 

With  respect  to  conventional  forces,  Article  44,  paragraph  7,  states:  "This  Article 
is  not  intended  to  change  the  generally  accepted  practice  of  States  with  respect  to 
wearing  of  the  uniform  by  combatants  assigned  to  regular,  uniformed  armed  units 
of  a  Party  to  the  conflict."  [Emphasis  added.] 

An  authoritative  commentary  on  Additional  Protocol  I — prepared  by  indi- 
viduals directly  involved  in  its  drafting  and  negotiation — offers  an  explanation  of 
this  provision: 

Within  the  Working  Group  the  initial  enthusiasm  for  a  single  standard  applicable  both 
to  regular  and  independent  armed  forces  was  dampened  when  concern  was  expressed 
that  the  .  .  .  [new  rules]  might  encourage  uniformed  regular  forces  to  dress  in  civilian 

clothing Accordingly,  para.  7  was  developed  to  overcome  this  concern The  report 

of  the  Working  Group,  however,  states  that  "regulars  who  are  assigned  to  tasks  where 
they  must  wear  civilian  clothes,  as  may  be  the  case  . . .  with  advisers  assigned  to  certain 
resistance  units,  are  not  required  to  wear  the  uniform."  The  implication  of  para.  7, 
construed  in  the  light  of  the  Working  Group  report  is  that  uniforms  continue  to  be  the 
principal  means  by  which  members  of  regular  uniformed  units  distinguish  themselves 
from  the  civilian  population  . . . ,  but  that  members  of  regular  armed  forces  assigned  or 
attached  to  duty  with  the  forces  of  resistance  or  liberation  movements  may  conform  to 
the  manner  in  which  irregulars  conform  to  the  requirements  of  para.  3. . .  .48 

That  being  said,  another  Diplomatic  Conference  participant  offered  the  follow- 
ing comment  as  to  uniform  requirement  in  light  of  Article  44,  paragraph  7:  "[I]t 

80 


•        W.  Hays  Parks 

should  be  noted  that  it  is  apparently  not  intended  to  exclude  all  regular  forces  from 
the  application  of  the  previous  paragraphs  of  the  article.  What  it  does  imply,  how- 
ever, is  that  regular  forces  whenever  possible  (notably  in  "conventional"  types  of 
hostilities),  should  continue  to  wear  uniforms."49 

Thus,  commentaries  by  participants  in  the  1974-1977  Diplomatic  Conference 
confirm  the  Additional  Protocol  I  acknowledgement  that,  where  warranted  by  mil- 
itary necessity,  it  may  be  permissible  in  international  armed  conflict50  for  regular 
military  forces  to  wear  civilian  clothing.  At  issue  is  whether  the  action  is  a  legiti- 
mate ruse  or  perfidy. 

Ruses  and  Perfidy 

Ruses  of  war  are  lawful  deceptive  measures  employed  in  military  operations  in  in- 
ternational armed  conflict  for  the  purpose  of  misleading  the  enemy.51  The  law  of 
war  prohibits  "killing  or  wounding  treacherously  individuals  belonging  to  the  hos- 
tile nation  or  army," 52  commonly  known  as  perfidy.53 

Article  23  of  the  Annex  to  the  1899  Hague  II  Convention  states: 

23.  Besides  the  prohibitions  provided  by  special  Conventions,  it  is  especially  prohibited  - 

(a)  To  kill  or  wound  treacherously  individuals  belonging  to  the  hostile  nation 
of  army.54 

This  article,  along  with  Articles  29  and  31,  were  re-codified  with  non-substantive 
changes  in  the  Annex  to  the  1907  Hague  IV  Convention.  They  are  important  for 
several  reasons.  They  constitute  recognition  of  the  general  obligation  for  military 
forces  to  fight  in  uniform.  However,  it  is  not  a  war  crime  for  military  personnel  to 
wear  or  fight  in  civilian  clothing  unless  it  is  done  for  the  purpose,  and  with  the  re- 
sult of  killing  treacherously.  What  constituted  "killing  treacherously"  was  defined 
as  "perfidy"  in  Article  37  of  Additional  Protocol  I: 

It  is  prohibited  to  kill,  injure  or  capture  an  adversary  by  resort  to  perfidy.  Acts  inviting 
the  confidence  of  an  adversary  to  lead  him  to  believe  that  he  is  entitled  to,  or  is  obliged 
to  accord,  protection  under  the  rules  of  international  law  applicable  in  armed  conflict, 
with  intent  to  betray  that  confidence,  shall  constitute  perfidy.  The  following  acts  are 
examples  of  perfidy: 

(a)  the  feigning  of  an  intent  to  negotiate  under  a  flag  of  truce  or  of  a  surrender; 

(b)  the  feigning  of  an  incapacitation  by  wounds  or  sickness; 

(c)  the  feigning  of  civilian,  non-combatant  status;  and 

(d)  the  feigning  of  protected  status  by  the  use  of  signs,  emblems  or  uniforms  of  the 
United  Nations  or  of  neutral  or  other  States  not  Parties  to  the  conflict." 


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Special  Forces'  Wear  of  Non-Standard  Uniforms 


In  order  to  be  perfidy,  the  act  must  be  the  proximate  cause  of  the  killing,  injury 
or  capture  of  the  enemy.36  But  while  the  Diplomatic  Conference  codified  perfidy,  it 
limited  criminal  liability.  Perfidy  was  made  a  Grave  Breach  only  if  it  involves  "the 
perfidious  use . . .  of  the  distinctive  emblem  of  the  red  cross,  red  crescent  or  red  lion 
and  sun."37  Wearing  civilian  attire  or  feigning  civilian  status  was  not  designated  a 
Grave  Breach. 

Each  differs  from  US  and  coalition  Special  Forces  operating  in  non-standard  uni- 
forms as  part  of  heavily  armed  units  clearly  known  and  identifiable  by  the  Taliban 
and  al  Qaeda  in  the  war  in  Afghanistan.  Special  Forces  wear  of  non-standard  uni- 
forms, whether  partial  BDU  or  indigenous  apparel  of  their  Northern  Alliance  part- 
ners, including  their  distinctive  pakol  hats  and/or  tribal  scarves,  did  not  constitute 
perfidy.  US  Army  Civil  Affairs  wear  of  Western-style  civilian  clothing  or  indigenous 
attire  in  Afghanistan  would  not  have  constituted  perfidy  unless  it  had  been  done  for 
the  purpose,  and  with  the  result  of,  killing  treacherously.  The  NGO  complaint  made 
no  such  allegation,  and  no  evidence  has  been  surfaced  to  suggest  such  conduct. 

That  being  said,  the  devil  always  has  been  in  the  details  in  balancing  the  allowance 
for  military  personnel  to  operate  in  enemy  denied  areas  in  civilian  attire,  and  perfidy. 
At  the  heart  of  the  balance  is  the  law  of  war  principle  of  distinction.  State  practice,  of 
which  more  will  be  said,  suggests  that  the  lines  between  the  two  are  far  from  clear. 

There  is  logic  to  this  history.  State  tolerance  of  Special  Forces  fighting  in  civilian 
clothing  in  limited,  special  circumstances,  such  as  support  for  partisans,  is  consis- 
tent with  humanitarian  tolerance  for  captured  guerrillas.  It  follows  efforts  by 
many,  including  the  International  Committee  of  the  Red  Cross,  to  provide  pris- 
oner of  war  protection  to  all  and  not  to  prosecute  except  in  the  most  egregious  cir- 
cumstances, such  as  terrorism  and  treacherous  use  of  civilian  clothing.38  The 
drafters  of  Article  44  had  a  better  sense  of  State  practice  than  did  critics  of  US  and 
coalition  Special  Forces  wear  of  non-standard  uniforms. 

Into  the  midst  of  this  discussion  steps  the  global  war  on  terrorism.  Terrorists  are 
not  entitled  to  law  of  war  protection,  and  the  law  of  war  is  not  applicable  as  such  in 
counter-terrorist  operations.59  Counter-terrorist  units  have  been  authorized  to  use 
hollow-point  or  other  expanding  ammunition,60  for  example,  and  have  worn  civil- 
ian clothing  or  non-standard  uniforms  on  missions.61  President  Bush's  radio  ad- 
dress to  the  nation  and  the  world  on  September  29, 2001,  in  response  to  the  September 
1 1  th  terror  attacks  on  the  World  Trade  Center  and  Pentagon,  may  have  prompted 
some  in  the  military  to  err  initially  and  assume  that  law  of  war  rules  relating  to  uniform 
wear  were  not  applicable  in  the  military  operations  that  followed  in  Afghanistan. 

This  leads  to  the  proper  point  for  review  of  State  practice. 


82 


. W.  Hays  Parks 

What  Is  State  Practice? 

State  practice  is  important  to  answering  legal  questions  because  it  forms  a  basis  for 
determining  customary  international  law.62  State  practice — a  synonym  for  mili- 
tary history — reveals  how  governments  interpret,  apply  and/or  enforce  law  of  war 
treaty  provisions. 

State  practice  in  international  armed  conflict  and  other  military  operations  con- 
tains a  significant  record  of  Special  Forces  wear  of  civilian  attire,  non-standard  uni- 
forms, and/or  enemy  uniforms  as  a  ruse  or  for  other  reasons.  Beginning  with 
Colonel  T.  E.  Lawrence,  the  celebrated  Lawrence  of  Arabia,  State  practice  reflects  an 
overt  tolerance  bordering  on  admiration  for  special  forces  wearing  civilian  clothing 
when  working  with  indigenous  persons  in  enemy  denied  areas,  whether  for  intelli- 
gence gathering  or  combat  operations.63  Special  forces  personnel  captured  while 
wearing  civilian  clothing  have  been  treated  as  spies  rather  than  charged  with  a  war 
crime,  while  Special  Forces  who  fought  in  civilian  clothing  and  returned  safely  have 
been  honored  as  heroes. 

The  actions  of  Colonel  Lawrence  in  all  likelihood  were  not  the  first  in  which  in- 
digenous attire  was  worn,  but  one  of  the  more  influential.  An  appreciation  of  the 
list  that  follows  necessitates  a  brief  historical  overview. 

Germany's  annexation  of  Austria  in  1938  sparked  interest  within  the  British 
military  in  the  potential  necessity  for  irregular  operations.  Recalling  the  Spanish 
guerrillas  in  Wellington's  campaign  against  the  French  in  the  Peninsular  War 
(1807-1809),  Boer  commando  success  against  the  British  in  the  1899-1902  Anglo- 
Boer  War,  Colonel  Lawrence's  success,  the  British  experience  in  facing  Sinn  Fein  in 
Ireland  19 19- 192 1,64  Chinese  guerrilla  operations  against  Japan  in  the  Sino- Japa- 
nese War,  and  other  guerrilla  activities  in  other  conflicts,  in  1938  the  Research 
Branch  of  the  British  General  Staff  (GS(R))  began  research  that  led  to  preparation 
of  Field  Service  Regulations  entitled  The  Art  of  Guerrilla  Warfare,  The  Partisan 
Leader's  Handbook,  and  How  to  Use  High  Explosives,  all  subsequently  noted  in 
GS(R)  Report  No.  8  'Investigation  of  the  Possibilities  of  Guerrilla  Activities.65 

Commencement  of  the  Second  World  War  with  the  German  invasion  of  Poland 
on  September  1,  1939,  revealed  Germany's  first  use  of  Special  Forces  in  civilian 
clothing,  enemy  uniforms,  or  non-standard  attire  as  a  ruse  to  seize  critical  objec- 
tives. British  focus  on  partisan  warfare  and  Special  Forces  was  renewed  with  Ger- 
many's invasion  of  Western  Europe,  the  fall  of  France,  and  British  Army 
evacuation  from  Dunkirk  in  May  1940.  Standing  alone,  the  British  leadership  iden- 
tified several  means  for  action.  In  addition  to  traditional  means  such  as  naval 
blockade  and  aerial  bombing,  it  directed  commando  raids  and  "the  undermining 
of  enemy  morale  and  production  possibilities  through  close  co-operation  with 

83 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


exile  governments  and  through  them — or  without  them — with  Resistance  Move- 
ments in  enemy  occupied  territory."  The  Charter  for  the  British  Special  Operations 
Executive  (SOE)  received  War  Cabinet  approval  on  July  22,  1940.  At  this  time 
Prime  Minister  Winston  S.  Churchill  offered  his  oft-quoted  edict:  "And  now  set 
Europe  ablaze."  Working  closely  with  exile  governments,  the  British  Government 
began  making  contact  with  potential  resistance  movements  throughout  Nazi-oc- 
cupied Europe,  ultimately  providing  them  personnel  and  material  support,  subse- 
quently coordinating  their  actions  to  link  them  directly  to  the  British  and  Allied 
war  effort. 

It  is  important  to  understand  what  SOE  was,  and  what  it  was  not.  SOE  was  an 
independent  secret  service.  It  was  not  a  military  service.  But  SOE  relied  heavily 
upon  assignment  of  military  officers  to  it,  coordination  of  operations  with  the  mil- 
itary chiefs  of  staff,  and  was  dependent  on  the  military  services  for  personnel,  sup- 
port, supply  and  transportation.  Although  intelligence  was  sometimes  a  by- 
product of  its  activities,  SOE  was  not  an  intelligence  collection  agency.  It  was  in- 
tended for  its  operatives  to  engage  in  clandestine,  subversive  operations  in  civilian 
clothing.  The  dagger  lay  concealed  beneath  the  cloak.  In  Prime  Minister  Chur- 
chill's words,  this  was  "'ungentlemanly  warfare'  in  which  the  'Geneva  Convention' 
rules  do  not  apply  and  the  price  of  failure  was  often  a  slow  and  terrible  death."66 
Thus  the  British  Government  and  SOE  operatives  consciously  entered  into  this 
form  of  operations  fully  cognizant  of  its  law  of  war  implications. 

The  "Geneva  Conventions"  baby  had  not  been  tossed  out  with  the  bath  water. 
As  was  the  case  with  US  Special  Forces  in  Afghanistan  in  2002,  restrictions  were 
placed  on  wearing  civilian  attire.  Military  personnel  providing  transport  to  SOE 
personnel  to  and  from  an  operation  were  required  to  be  in  uniform,  for  example, 
while  late-war  operations  enabled  some  to  wear  uniforms.  For  post-D-Day  opera- 
tions, SOE  personnel  were  provided  armbands  for  partisans  and  British  military 
personnel  not  in  uniform.  Prior  to  and  after  D-Day,  a  clear  showing  of  military  ne- 
cessity as  it  related  to  the  mission  was  necessary  for  authorization  to  wear  civilian 
clothing.  For  example,  on  May  30, 1943,  the  British  War  Office  informed  the  Com- 
mander-in-Chief, India,  that  the  Chief  of  Staff  had  decided:  "No  member  of  the 
armed  forces  . . .  should  be  sent  on  military  operations,  however  hazardous,  in  ci- 
vilian clothes,  except  in  the  case  of  subversive  activities  for  which  civilian  clothes 
are  essential."67 

Germany  invaded  Russia  on  June  22,  1941.  In  response,  Russian  Premier  Josef 
Stalin  declared  that  day: 

The  struggle  against  Germany  must  not  be  looked  upon  as  an  ordinary  war It  is  not 

merely  a  fight  between  two  armies  ...  in  order  to  engage  the  enemy  there  must  be  bands 


84 


. W.  Hays  Parks 

of  partisans  and  saboteurs  working  underground  everywhere In  territories  occupied 

by  the  enemy,  conditions  must  be  made  so  impossible  that  he  cannot  hold  out. . .  .68 

Soviet  partisan  warfare  differed  from  that  of  Great  Britain  and  (subsequently)  the 
United  States,  if  perhaps  only  slightly.  Whereas  Great  Britain  and  the  United  States  ex- 
ported support  for  underground  movements  in  Axis-occupied  nations,  the  Soviet  Un- 
ion supported  partisan  warfare  within  its  own  territory  occupied  by  Germany, 
operating  along  interior  lines.  The  partisan  movement,  organized,  trained  and  di- 
rected by  Soviet  Army  personnel,  was  substantial.  In  the  month  of  July  1943,  partisan 
forces  carried  out  10,000  separate  demolitions  of  track  to  impede  German  re-supply 
efforts.  During  the  night  of  July  4, 1944  alone,  partisans  laid  4,1 10  separate  demolition 
charges  on  rail  lines;  on  June  19,  partisans  planted  over  5,000  mines  on  the  roads  and 
railroads  behind  the  Second  and  Fourth  German  Armies.  While  it  was  estimated  that 
250,000  people  were  directly  engaged  in  partisan  operations  by  1944,  Soviet  authorities 
boasted  that  every  Soviet  civilian  in  Nazi-occupied  territory  was  at  least  indirectly  in- 
volved in  partisan  activities,  and  on  September  6,  1942,  the  partisan  movement 
achieved  the  nominal  status  of  a  separate  branch  of  the  Soviet  military — something 
thought  about  in  the  United  Kingdom  by  some,  but  never  achieved  in  either  the 
United  Kingdom  or  the  United  States.  Like  underground  operations  supported  by  the 
United  Kingdom  and  United  States,  Soviet  partisan  operations — with  civilians  and 
military  personnel  fighting  in  civilian  attire — were  State  approved  and  directed. 

United  States'  movement  into  partisan  operations  closely  followed  Russian  and 
British  actions.  Early  in  World  War  II,  the  Roosevelt  Administration  established  the 
Office  of  Strategic  Services  (OSS).  Forerunner  of  the  Central  Intelligence  Agency,  the 
OSS  was  a  hybrid  organization  led  by  Major  General  William  A.  Donovan,  a  distin- 
guished, decorated  former  Army  officer.  OSS  was  under  the  administrative  cogni- 
zance of  the  Joint  Chiefs  of  Staff  but  under  operational  control  of  the  theater 
commander.69  It  was  an  organization  focused  on  espionage,  sabotage  and  partisan 
support.  US  Army  personnel  provided  a  major  part  of  the  OSS  strength,  which 
reached  its  maximum  of  13,000  in  December  1944.  US  Army  Special  Forces  traces  its 
lineage  to  OSS. 70 

By  the  spring  of  1944,  SOE  and  OSS  were  operating  together  in  a  variety  of  mis- 
sions.71 Some  OSS  units  operated  in  uniform,  while  others  did  not  under  all  cir- 
cumstances. In  one  of  its  major  efforts,  France,  OSS  operational  units  worked  in 
Nazi-occupied  territory  in  direct  support  of  the  French  Resistance.  As  a  leading 
history  notes: 

The  first  group  consisted  of  seventy-seven  Americans  who  wore  civilian  clothes  as 
organizers  of  secret  networks,  as  radio  operators,  or  as  instructors  in  the  use  of 


85 


Special  Forces1  Wear  of  Non-Standard  Uniforms 


weapons  and  explosives.  Thirty-three  members  of  that  group  were  active  in  France 
before  6  June  1944,  D-Day. . .  .[Emphasis  added.] 

The  largest  OSS  group  in  France  consisted  of  356  Americans  who  were  members  of 
Operational  Groups  (OG).  All  recruits  for  the  OGs  were  French-speaking  volunteers 
from  US  Army  units,  primarily  infantry  and  engineer  (for  demolition  experts).  .  .  . 
Working  in  uniform,  these  teams  parachuted  behind  the  lines  after  D-Day  to  perform 
a  variety  of  missions. . .  72 

In  addition  to  its  Operational  Groups,  OSS  worked  with  SOE  in  Jedburgh 
teams.  These  teams  were  intended  to  be  composed  of  an  Englishman,  an  Ameri- 
can, and  a  continental  Europe  member,  each  military,  two  of  whom  were  officers; 
the  third  was  the  communications  specialist.73  The  initial  core  contained  fifty  US 
officers  fluent  in  French  who  were  to  parachute  in  uniform  to  resistance  groups, 
initially  throughout  France  during  the  weeks  following  the  Allied  landings  on  June 
6,  1944.  They  would  provide  liaison  with  the  underground,  arm  and  train  the  Ma- 
quis, boost  "patriotic  morale,"  and  coordinate  resistance  activity  with  Allied  mili- 
tary strategy.  Ninety-three  Jedburgh  teams  parachuted  into  France  to  join  the 
Maquis  after  D-Day,  numbering  three  hundred  French,  British  and  US  officers. 
Eventually  they  served  in  other  Nazi-occupied  territory. 

While  the  Jedburghs  normally  operated  in  uniform,  this  was  not  always  possi- 
ble. In  an  operation  in  Nazi-occupied  France,  Major  Horace  Fuller,  USMC, 
avoided  capture  as  a  result  of  accepting  the  advice  of  his  French  contact  to  wear  ci- 
vilian clothing,  including  during  combat  operations.74 

Similar  operations  occurred  in  other  theaters.  On  May  4,  1942,  a  US  Navy  offi- 
cer formed  Naval  Group  China.  Composed  of  Navy  and  Marine  Corps  personnel, 
its  mission  was  to  establish  radio  intelligence  posts,  weather-gathering  and  lookout 
stations,  form,  supply  and  train  indigenous  sabotage  units,  and  conduct  attacks  on 
Japanese  units  and  equipment.  Also  known  as  the  Sino-America  Cooperative  Or- 
ganization, it  executed  its  operations  successfully  for  the  duration  of  the  war,  many 
of  them  in  non-standard  uniform  or  indigenous  civilian  attire,  depending  on  the 
mission  and  situation.75 

This  is  not  the  time  to  recount  Allied  support  for  partisan  operations  in  World 
War  II,  nor  what  then  were  termed  "commando"  operations.  However,  several  ob- 
servations are  relevant  to  the  issue  at  hand.  First,  partisan  operations  were  univer- 
sal, occurring  in  every  Axis-occupied  nation,  actively  supported  by  each  of  the 
major  Allies — United  Kingdom,  United  States  and  Russia — and  each  government 
in  exile.  Second,  they  were  significant  in  their  breadth  and  longevity.  For  example, 
the  French  Resistance  Movement  began  shortly  following  German  conquest  in 
1940  and  continued  through  the  war.  By  1944,  approximately  three  million  men 

86 


W.  Hays  Parks 


and  women  were  associated  with  the  various  French  Resistance  organizations.  In 
Yugoslavia,  400,000  were  involved  in  partisan  operations. 

Resistance  activity  was  dependent  upon  volunteers — whether  partisans  from 
the  civilian  population  of  Axis -controlled  nations,  civilian  and  military  personnel 
serving  with  the  SOE  or  OSS,  or  members  of  Special  Forces.  All  were  aware  of  the 
possible  consequences  if  they  were  caught,  whether  in  uniform  or  other  attire.  At 
the  same  time,  execution  as  a  spy  if  captured  in  something  other  than  standard  uni- 
form was  not  a  certainty. 

Partisan  sabotage  operations  were  regarded  as  a  valuable  alternative  to 
highly  inaccurate  strategic  bombing  in  Nazi-occupied  territory,  as  the  Allies 
sought  to  reduce  collateral  civilian  casualties  to  friendly  populations.76  Partisan 
sabotage  was  the  "smart  bomb"  of  World  War  II.  In  its  employment  of  very  pre- 
cise means,  it  was  the  epitome  of  the  second  facet  of  the  fundamental  law  of  war 
principle  of  distinction.77  In  some  cases,  the  evidence  was  clear  that  partisan/ 
Special  Forces  sabotage  often  was  more  effective  than  air  operations  against  the 
same  targets,78  while  in  other  instances  OSS-lead  partisans  were  able  to  destroy 
heavily  defended  targets  that  had  resisted  air  attack.79  While  the  rationale  for 
partisan  or  Special  Forces  attacks  may  have  been  selected  over  aerial  attack 
more  for  political  than  law  of  war  reasons,80  it  offers  evidence  of  why  govern- 
ments chose  not  to  condemn  attacks  in  civilian  clothing  as  a  Grave  Breach  in 
Additional  Protocol  I.  Special  Forces/partisan  unconventional  warfare  opera- 
tions tied  down  Axis  units  that  could  have  been  used  more  effectively  engaging 
Allied  forces  but  for  the  partisan  threat,81  and  significantly  impaired  German 
efforts  to  reinforce  their  defenses  at  Allied  points  of  offensive  ground  opera- 
tions.82 Special  Forces  and  their  partisan  allies  performed  other  life-saving  ac- 
tions, such  as  the  rescue  of  downed  Allied  aircrew  and  assistance  in  running 
escape  routes.83  Special  Forces  served  as  on-the  scene  ambassadors  where  Allied 
combat  operations  killed  innocent  civilians.84 

Partisan  operations,  including  sabotage  and  direct  attacks  on  Axis  personnel, 
were  executed  primarily  in  civilian  attire,  occasionally  (after  the  Allied  return  to  Eu- 
rope on  June  6,  1944)  wearing  a  distinctive  device,  sometimes  in  a  partial  uniform, 
but  seldom  in  full  uniform.  "Uniform"  varied,  often  being  more  like  modern  "gang" 
colors  than  a  traditional  military  uniform.  The  same  was  true  for  SOE  and  OSS  mili- 
tary personnel  serving  with  resistance  movements  and,  in  some  cases,  Special  Forces. 

Finally,  partisan  operations  were  successful.  Danish  historian  Jorgen  Haestrup 
concludes  "The  Resistance  Movements,  seen  in  their  entirety,  deeply  influenced 
the  course  of  the  war,  psychologically,  militarily  and  politically."85  In  support 
thereof,  he  quotes  Russian  historian  E.  Boltin:  "History  has  never  known  a  popular 
fight  of  such  huge  dimensions  as  was  apparent  during  the   1939-1945  war. 

87 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


Furthermore  the  masses  had  never  before  taken  so  directly  a  part  in  the  military 
combat,  as  was  the  case  in  the  last  war  in  Europe."86 

The  preceding  comments  are  offered  to  show  that  the  wearing  of  civilian  attire 
by  partisans  or  military  personnel  in  Special  Forces  units  or  in  the  SOE  or  OSS  was 
neither  unique,  occasional,  nor  limited  in  time  and  space.  In  the  examples  that  fol- 
low, it  is  clear  that  the  wearing  of  civilian  attire  or  non-standard  uniform  (and,  in 
some  cases,  enemy  uniform)  was  a  deliberate  act  based  upon  a  decision  made  at  the 
highest  levels  of  government. 

The  list  set  forth  in  the  Annex  (infra)  is  illustrative  rather  than  exhaustive,  and  is 
offered  for  historical  purposes  rather  than  necessarily  with  approval  or  condemna- 
tion of  the  missions  listed.  With  the  exception  of  US  action  in  Ex  parte  Quirin87  and 
the  unsuccessful  prosecution  of  Otto  Skorzeny,88  the  list  reveals  that  State  practice 
in  international  armed  conflict  has  tended  not  to  treat  wear  of  civilian  attire,  non- 
standard uniforms,  and/or  enemy  uniforms  by  regular  military  forces  as  a  war 
crime.  Personnel  caught  in  flagrante  delicto  in  civilian  attire  or  enemy  uniforms 
have  been  treated  as  spies,  sometimes  (but  not  always)  with  severe  consequences. 
However,  those  who  returned  safely  were  decorated  rather  than  punished,  mani- 
festing an  endorsement  of  their  actions  by  their  government. 

The  wearing  of  enemy  uniforms  is  not  directly  within  the  scope  of  the  issue  under 
consideration.  However,  State  practice  is  germane  regarding  the  prohibition  on 
"killing  treacherously"  contained  in  Article  23(b)  of  the  Annex  to  the  1907  Hague 
Convention  IV.89  State  practice  shows  that  governments  have  been  willing  to  deploy 
Special  Forces  in  civilian  attire  or  enemy  uniforms  where  a  major  advantage  is  antici- 
pated, and  where  the  gain  is  greater  than  the  risk  to  the  deployed  personnel.  Such  ac- 
tions have  not  been  regarded  as  a  war  crime  either  by  the  government  ordering  them 
or  the  government  against  which  the  forces  were  employed.90 

State  practice  provides  several  points  for  fine  tuning  a  general  principle: 

(a)  Colonel  Lawrence  wore  indigenous  attire  while  leading  the  Arab  uprising 
against  the  Ottoman  Empire  in  the  Hejaz.  Coalition  Special  Forces  aligned  with 
Northern  Alliance  and  Southern  Alliance  forces  in  Afghanistan,  suggesting  a  nuance 
in  the  law  of  war  principle  of  distinction:  an  armed  military  group  recognizable  at  a 
distance  and  readily  identifiable  to  the  enemy  by  its  size  and  other  characteristics, 
even  when  wearing  indigenous  attire  with  or  without  distinctive  devices,  is  acting 
lawfully.  In  essence,  there  is  no  "treacherous  killing"  or  perfidy  because  there  has 
been  no  treacherous  use  of  civilian  clothing. 

(b)  Non-standard  uniforms  or  indigenous  attire  may  be  adopted  for  practical 
reasons  rather  than  with  intent  to  commit  perfidy.  The  British/Commonwealth 
Long  Range  Desert  Group  (LRDG),  operating  behind  enemy  lines  in  North  Africa 
from  1940-1943,  adopted  the  kaffiyeh  and  agal  as  a  standard  part  of  their  uniform 

88 


W.  Hays  Parks 

for  utilitarian  purposes,  for  example.  The  LRDG  wore  native  sheep  or  goatskin 
coats  to  ward  off  the  nighttime  desert  cold,  as  did  British  and  US  Special  Forces  op- 
erating behind  Iraqi  lines  in  the  1991  coalition  effort  to  liberate  Kuwait.  Wear  of 
the  latter  by  the  LRDG  served  partially  as  a  ruse  against  casual  observation,  such  as 
by  enemy  aircraft.  However,  their  identity  clearly  was  recognizable  at  a  distance  by 
enemy  ground  forces.91 

(c)  Law  of  war  compliance  with  something  as  simple  as  wearing  a  distinctive  device 
may  not  be  practical  where  the  enemy  is  known  to  punish  rather  than  reward  compli- 
ance. For  example,  immediately  prior  to  D-Day  (June  6,  1944),  British  air-delivered 
supplies  included  armbands  for  partisan  and  supporting  Special  Forces'  use  once 
Allied  conventional  forces  returned  to  the  continent.  However,  distinctive  emblem 
wear  was  viewed  with  skepticism  in  light  of  Hitler's  Commando  Order  denying  quarter 
to  any  partisans  or  Special  Operations  Forces.92 

(d)  Perfidy  requires  mens  rea,  that  is,  the  donning  of  civilian  attire  with  the  clear 
intent  to  deceive.  A  group  of  alert,  fit  young  men,  heavily  and  openly  armed,  sur- 
rounding an  individual  in  military  uniform,  and  themselves  surrounded  by  host 
nation  military  personnel  in  uniform,  clearly  are  a  personal  protection  detail,  and 
are  not  attempting  to  mask  their  status  nor  gain  an  advantage  over  some  unsus- 
pecting enemy  soldier. 

The  law  of  war  regards  a  uniform  as  the  principal  way  in  which  conventional 
military  forces  distinguish  themselves  from  the  civilian  population  in  international 
armed  conflict.  State  practice  (including  US  practice),  treaty  negotiation  history, 
and  the  views  of  recognized  law  of  war  experts  reveals  (i)  that  the  law  of  war  obliga- 
tion is  one  of  distinction  that  otherwise  has  eluded  precise  statement  in  all  circum- 
stances; (ii)  there  is  no  agreed  definition  of  uniform;  (iii)  the  uniform 
"requirement"  is  less  stringent  with  respect  to  Special  Forces  working  with  indige- 
nous forces  or  executing  a  mission  of  strategic  importance;  and  (iv)  a  law  of  war  vi- 
olation occurs  only  where  an  act  is  perfidious,  that  is,  done  with  an  intent  to 
deceive,  and  the  act  is  the  proximate  cause  of  the  killing,  wounding  or  capture  of 
the  enemy.  My  review  of  State  practice  found  no  enforcement  by  a  government 
against  its  own  personnel.  Enemy  combatants  captured  in  flagrante  delicto  were 
prosecuted  as  spies  rather  than  for  law  of  war  violations,  with  the  exception  of  Ex 
parte  Quirin  and  the  unsuccessful  post-World  War  II  US  prosecution  of  SS- 
Obersturmbannfuhrer  Otto  Skorzeny. 

Summary 

In  international  armed  conflict,  the  wearing  of  standard  uniforms  by  conventional 
military  forces,  including  Special  Operations  Forces,  is  the  normal  and  expected 

89 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


standard.  Wearing  civilian  attire  or  a  non-standard  uniform  is  an  exception  that 
should  be  exercised  only  in  extreme  cases  determined  by  competent  authority. 

In  international  armed  conflict,  military  necessity  for  wearing  non-standard 
uniforms  or  civilian  clothing  has  been  regarded  by  governments  as  extremely  re- 
stricted. It  has  been  limited  to  intelligence  collection  or  Special  Forces  operations 
in  denied  areas.  No  valid  military  necessity  exists  for  conventional  military  forces, 
whether  combat  (combat  arms,  such  as  infantry,  armor  or  artillery),  combat  sup- 
port (such  as  Civil  Affairs),  or  combat  service  support  personnel,  to  wear  non- 
standard uniforms  or  civilian  attire  in  international  armed  conflict. 

The  codified  law  of  war  for  international  armed  conflict  does  not  prohibit  the 
wearing  of  a  non-standard  uniform.  It  does  not  prohibit  the  wearing  of  civilian 
clothing  so  long  as  military  personnel  distinguish  themselves  from  the  civilian 
population,  and  provided  there  is  legitimate  military  necessity  for  wearing  some- 
thing other  than  the  standard  uniform.  The  generally  recognized  manner  of  dis- 
tinction when  wearing  something  other  than  the  standard  uniform  is  through  a 
distinctive  device,  such  as  a  hat,  scarf,  or  armband,  recognizable  at  a  distance. 

Violation  of  the  law  of  war  (perfidy)  occurs  when  a  soldier  wears  civilian 
clothing — not  a  non-standard  uniform — with  intent  to  deceive,  and  the  act  is  the 
proximate  cause  of  the  killing,  wounding  or  capture  of  the  enemy.  Perfidy  does 
not  exist  when  a  soldier  in  civilian  attire  or  non-standard  uniform  remains  iden- 
tifiable as  a  combatant,  and  there  is  no  intent  to  deceive. 

Discussion  of  the  issue  raises  an  appearance  of  a  double  standard  in  considering 
Taliban  militia/al  Qaeda  (in  Afghanistan)  or  Saddam  Fedayeen  (in  Iraq)  wear  of  ci- 
vilian clothing  while  justifying  SOF  wear  of  Western  civilian  attire  or  indigenous 
attire.  A  "double  standard"  exists  within  the  law  of  war  for  regular  forces  of  a  recog- 
nized government  vis-a-vis  unauthorized  combatant  acts  by  private  individuals  or 
non-State  actors.  The  issue  was  complicated  by  the  unique  nature  of  operations  in 
Afghanistan,  that  is,  counter-terrorist  operations  against  non-State  actors  in  a 
failed  State,  and  the  increased  role  of  NGOs  in  a  non-linear  combat  environment. 

The  law  of  war  principle  of  distinction  cannot  be  taken  lightly.  The  standard 
military  field  uniform  should  be  worn  absent  compelling  military  necessity  for 
wear  of  a  non-standard  uniform  or  civilian  clothing.  Military  convenience  should 
not  be  mistaken  for  military  necessity.  That  military  personnel  may  be  at  greater 
risk  in  wearing  a  uniform  is  not  in  and  of  itself  sufficient  basis  to  justify  wearing  ci- 
vilian clothing.  "Force  protection"  is  not  a  legitimate  basis  for  wearing  a  non-stan- 
dard uniform  or  civilian  attire.  Risk  is  an  inherent  part  of  military  missions,  and 
does  not  constitute  military  necessity  for  the  wear  of  civilian  attire.  But  the  law  of 
war  requirement  to  wear  a  complete,  "standard"  uniform  is  not  as  absolute  as  some 
have  recently  suggested. 

90 


W.  Hays  Parks 

To  summarize: 

(a)  The  law  of  war  requires  military  units  and  personnel  to  distinguish  them- 
selves from  the  civilian  population  in  international  armed  conflict.  Article  4  (A)  2  of 
the  1949  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War 
(GPW)93  sets  forth  standards  all  combatants  are  expected  to  satisfy.  However,  mili- 
tary personnel  may  distinguish  themselves  from  the  civilian  population  in  other 
ways,  such  as  physical  separation. 

(b)  Standard  US  military  uniforms  satisfy  the  requirements  of  GPW  Article  4A. 
"Standard  military  uniform"  refers  to  battle  dress  uniform  (BDU),  desert  camou- 
flage uniform  (DCU),  official  flight  suit,  or  other  obvious  military  apparel.94  The 
presumption  should  be  that  all  US  armed  forces  operate  in  standard  uniforms  dur- 
ing military  operations  in  international  armed  conflict. 

(c)  When  authorized,  the  requirements  of  GPW  Article  4(A)  2  maybe  satisfied 
by  other  than  the  complete  standard  military  uniform.  For  example,  a  visible  part 
of  the  standard  military  uniform,  or  a  fixed,  distinctive  sign  will  satisfy  the  require- 
ments provided  that  the  forces  are  recognizable  as  combatants  with  unenhanced 
vision  at  a  distance. 

(d)  Neither  the  Global  War  on  Terrorism  nor  the  fact  that  one  is  a  member  of 
Special  Operations  Forces  offers  carte  blanche  for  military  personnel  to  wear  some- 
thing other  than  the  full,  standard  uniform.  The  wearing  of  a  partial  uniform  or 
non-standard  uniform  with  fixed,  distinctive  sign  should  be  reserved  for  excep- 
tional circumstances  when  required  by  military  necessity.  Force  protection  does 
not  constitute  military  necessity.  Authority  should  be  regarded  as  extremely  lim- 
ited, mission  and  unit  specific,  and  decided  by  a  senior  commander  or  higher,  such 
as  (in  the  US  military)  the  Combatant  Commander  responsible  for  the  mission. 

(e)  While  a  hat,  scarf  or  armband  would  meet  the  fixed  distinctive  sign  require- 
ment, a  permanently  affixed  distinctive  sign  such  as  an  American  flag  sewn  onto 
body  armor  or  clothing  is  more  prudent. 

(f)  Forces  operating  in  other  than  the  complete  standard  uniform  should  re- 
ceive training  in  the  law  of  war  to  ensure  that  they  understand  the  requirements  of 
distinction  and  are  fully  aware  of  the  risks  they  may  face  if  captured  if  they  fail  to 
comply  with  the  law  of  war. 

(g)  Captured  US  military  personnel  (other  than  escaping  prisoners  of  war) 
wearing  civilian  apparel  without  a  fixed  distinctive  sign  and  without  visible  weap- 
ons may  be  considered  spies  by  their  captor.  The  captor  may  try  them  for  domestic 
law  violations  (e.g.,  spying).  Unless  they  otherwise  commit  an  independent  law  of 
war  violation  (e.g.,  perfidy),  history  indicates  that  the  acts  will  not  be  regarded  as 
violative  of  the  law  of  war. 


91 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


ANNEX 


TABLE  OF  HISTORICAL  STATE  PRACTICE95 


Who 

What 

When 

Where 

Disposition 
(if  any) 

Japan 

Japanese  officers  in 
Chinese  civilian  attire 
on  sabotage  mission. 

1904 

Manchuria 
(Russo-Japanese 

War) 

Captured  and 
executed. 

Russia 

Russian  soldiers  in 
Chinese  civilian  at- 
tire attacked  Japa- 
nese units. 

1904 

Manchuria 

(Russo-Japanese 

War) 

Japanese  diplo- 
matic protest. 

Col.  T.  E. 
Lawrence 
(Lawrence 
of  Arabia) 
British  Army 

Wore  Arab  attire 
while  leading  Arab 
uprising  against  the 
Ottoman  (WWI) 
Empire,  fighting 
Turkish  Army. 

1916- 
1918 

Hejaz  Province 
Arabia  (Syria) 

Lawrence 
decorated. 

Germany 

SF  dressed  as  Polish 
civilians  fake  raid  on 
customs  house  as 
pretext  for  German 
invasion  of  Poland. 

1939 

Germany 

None. 

France 

Free  French  com- 
mander wore  indige- 
nous attire  in  attack 
on  Italian  fort  at 
Murzuk,  Jan  11,  1941. 

1941 

Libya 

Killed  in  attack. 

United  Kingdom 

Special  Operations 
Executive  (SOE)  per- 
sonnel in  civilian 
clothing  supported 
partisan  operations  in 
Axis-controlled 
Nations. 

1940- 
1945 

Europe,  Asia 

SOE  agents  cap- 
tured in  flagrante 
delicto  were  incar- 
cerated, not  always 
executed.96 

92 


W.  Hays  Parks 


Who 

What 

When 

Where 

Disposition 
(if  any) 

Germany 

Danish-speaking  SF 
dressed  as  Danish 
soldiers  seize  key 
bridge  to  initiate 
invasion. 

1940 

Denmark 

None 

Germany 

SF  dressed  as  Dutch 
military  policemen 
seize  key  bridge  at 
start  of  German 
invasion. 

1940 

Netherlands 

None 

Germany 

SF  wearing  Belgian 
Army  overcoats  over 
their  uniforms  seize 
key  bridge  at  start  of 
German  invasion. 

1940 

Belgium 

None 

United  Kingdom 

Long  Range  Desert 
Group  wore  Arab 
kaffiyeh  and  agal, 
sometimes  wore  in- 
digenous coats  over 
uniforms. 

1940- 
1943 

Libya 

None.  Kaffiyeh/    * 
agal  adopted  by 
LRDG  as  official 
uniform. 

Germany 

SF  wearing  Russian 
Army  overcoats,  car- 
rying Russian  weap- 
ons, driving  Russian 
vehicles,  spearhead 
German  invasion. 

1941 

Russia 

None 

Germany 

SF  dressed  in  British 
Army  uniforms  and 
indigenous  attire, 
driving  British  vehi- 
cles, attempt  recon- 
naissance to  Suez. 

1941 

Libya 

None 

93 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


Who 

What 

When 

Where 

Disposition 
(if  any) 

United  Kingdom 

SF  in  German  uni- 
forms infiltrated 
Tobruk  as  part  of 
Operation  Agree- 
ment. Mission  exe- 
cuted with 
infiltration  by  an- 
other officer  in  indig- 
enous attire. 

1942 

Libya 

None 

United  Kingdom 

SOE-trained, 
equipped  and  trans- 
ported partisans  kill 
Obergruppenfuhrer 
Reinhard  Heydrich, 
Reichsprotektor  for 
Nazi  Governor  of 
Czechoslovakia. 

1942 

Czechoslovakia 

Partisan  agents 
commit  suicide 
rather  than 
surrender. 

Soviet  Union 

Russian  partisans  and 

1941— 

German  occu- 

Partisans captured 

military  operative 

1945 

pied  territory  in 

were  executed. 

groups  deployed  to 

Soviet  Union. 

Survivors  deco- 

support them  fought 

rated  by  Russia 

in  civilian  clothing. 

postwar. 

Soviet  Union 

Naval  Spetsnaz  con- 

1942- 

German-occupied 

Same  as  above. 

duct  operations  in  ci- 

1945 

territory  in  Soviet 

vilian  clothing, 

Union. 

enemy  uniforms. 

Japan 

Used  English-speak- 
ing Germans  (French 
Foreign  Legion)  cap- 
tured in  Thailand  in 
Feb.  1941  dressed  in 
uniforms  resembling 
British  Khaki  to  pen- 
etrate British  lines. 

1942 

Malaya 

None. 

Germany97 

Eight  Germans  on 
sabotage  mission 
captured  in  civilian 
clothing. 

1942 

US 

Tried  by  Military 
Commission  for 
violation  of  the 
law  of  war. 

94 


W.  Hays  Parks 


Who 

What 

When 

Where 

Disposition 
(if  any) 

UK/Australia 

Operation  Jaywick, 
combined  SOF  team 
navigated  to  Singa- 
pore in  Japanese  fish- 
ing boat  Kofuku 
Maru,  flying  Japanese 
flag  and  dressed  in 
native  sarongs.  At- 
tacked and  sank  seven 
ships  (38,000  tons). 

1943 

Singapore 

Participants 
commended. 

Poland 

SOE-trained  parti- 
sans, one  dressed  in 
SS  uniform,  raided 
Pinsk  prison  near 
Brest-Litovsk,  freed 
prisoners,  killed 
commandant. 

1943 

Poland 

None. 

United  Kingdom 

SOE-trained, 
equipped  and  trans- 
ported partisans  sab- 
otaged German  heavy 
water  plant  at 
Vermok. 

1943 

Norway 

None. 

Japan98 

Formed  Indian  Na- 
tional Army  from 
captured  Indian 
Army  personnel,  who 
fought  in  Indian 
Army  uniforms 
against  British  and 
Commonwealth 
forces  in  Burma. 

1943 

Burma 

Post-war  trials  of 
soldiers  under  India 
Army  Act  or  Indian 
Penal  Code  rather 
than  charged  with 
war  crimes. 

United  Kingdom 

LT.  B.J.  Barton,  No.  2 
Commando,  pene- 
trated German  de- 
fenses wearing 
indigenous  attire, 
killed  German 
commandant. 

1944 

Brae  (Ageaen) 

Awarded  Military 
Cross. 

95 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


Who 

What 

When 

Where 

Disposition 
(if  any) 

United  Kingdom 

British  officers 
dressed  as  German 
soldiers,  with  parti- 
san assistance,  abduct 
Major  General  Karl 
Kreipe,  Commander, 
22nd  Panzer  Division 
on  Crete. 

1944 

Crete 

None. 

United  Kingdom 

SAS  wore  mixed  dress 
of  British,  German 
and  Italian  uniforms, 
and  civilian  clothing. 

1944 

Aegean 

None.  One  Victo- 
ria Cross,  numer- 
ous other  awards. 

United  Kingdom, 

Operation  Rimau, 

1944 

Singapore 

Captured  died 

Australia 

combined  SF  team  in 
uniform  to  attack 
Japanese  ships. 

from  illegal  medi- 
cal experimenta- 
tion, or  were 
executed. 

United  Kingdom 

Special  Boat  Squad- 
ron(SBS)  officer 
dressed  as  priest  led 
successful  attack  on 
German  units. 

1944 

Nisiros  (Aegean) 

None. 

United  Kingdom 

SOE-trained/ 
equipped  partisans 
sabotage  and  sink 
ferry  carrying  Ger- 
man heavy  water. 

1944 

Norway 

None. 

United  States 

Office  of  Strategic 
Service  (OSS)  teams 
enter  Nazi-occupied 
Europe,  conduct  op- 
erations in  civilian 
clothing. 

1944 

France,  Yugosla- 
via, Albania,  Bul- 
garia, Rumania 

None. 

United  States 

US  Naval  Group 
China  wearing  civil- 
ian clothing  collected 
intelligence  and  exe- 
cuted direct  action 
missions  against 
Japanese. 

1944 

China 

None. 

96 


W.  Hays  Parks 


Who 

What 

When 

Where 

Disposition 

(if  any) 

United  States 

Army  Rangers  dress 
as  German  soldiers  to 
penetrate  and  fight  in 
Aachen  (OSS 
operation). 

1944 

Germany 

None. 

United  States 
United  Kingdom/ 
Host  nation 

Jedburgh  teams  oper- 
ate post-D-Day  in 
support  of  partisans, 
not  always  in  uniform. 

1944- 
1945 

France,  Italy,  Yu- 
goslavia, Albania, 
Netherlands 

None. 

Germany 

German  Kommando 
unit  dressed  in  US 
uniforms,  driving  US 
vehicles,  penetrate 
US  lines  in  Ardennes. 

1944 

Belgium 

Members  captured 
in  US  uniforms 
executed.  Mission 
commander,  Otto 
Skorzeny,  and  ten 
others  acquitted  in 
war  crimes  trial. 

United  Kingdom 

Operation  Tombola 
SAS  operation  with 
Italian  partisans.  Ci- 
vilian attire  with 
mixed  uniform. 

1945 

Italy 

None. 

Germany 

Partisan  operations 
by  German  SF  in  ci- 
vilian clothing. 

1944- 
1945 

Germany 

None. 

United  States 

OSS  team  in  German 
uniforms  to  conduct 
Operation  Iron  Cross 
to  execute  subversion 
missions  and  capture 
or  kill  senior  Nazi 
officials. 

1945 

Germany 

Mission  aborted 
by  end  of  war. 

United  States 

OSS  Operations 
Groups  operate  in  US 
uniforms,  indigenous 
attire,  Chinese  Pup- 
pet .Army  uniforms. 

1945 

China 

None. 

97 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


Who 

What 

When 

Where 

Disposition 
(if  any) 

Indonesia  (I)" 

Soldiers  dressed  in  ci- 
vilian attire  while  at- 
tacking civilian 
objects. 

1965 

Singapore 

Captured  and 
tried  under  do- 
mestic law. 

Indonesia  (II)100 

Soldiers  in  civilian  at- 
tire captured  while 
on  mission  to  attack 
civilian  objects. 

1965 

Singapore 

Captured  and 
tried  under  do- 
mestic law. 

United  States 

MACV  (SOG)  teams 
wore  non-standard 
uniforms  operating 
in  denied  areas. 

1965- 
1971 

Southeast  Asia 

None. 

United  States101 

SF  soldier  fought  in 
civilian  clothing  in 
response  to  Tet  Of- 
fensive assaults. 

1968 

South  Vietnam 

Awarded  Medal  of 
Honor. 

United  States102 

Navy  SEAL  officer 
switched  from  uni- 
form to  indigenous 
attire  to  fight  way  in 
and  out  of  encircled 
aircrew  to  rescue  him. 

1972 

South  Vietnam 

Awarded  Medal  of 
Honor. 

Israel 

Operation  Aviv 
Neurim,  IDF  SF  team 
dressed  in  civilian 
clothing  raids  PLO 
Beirut  targets. 

1973 

Lebanon 

Team  commander 
Ehud  Barac  even- 
tually becomes 
IDF  Chief  of  Staff, 
Israel  Prime 
Minister. 

Israel 

Entebbe  rescue  force 
includes  commandos 
dressed  as  Uganda 
soldiers. 

1976 

Uganda 

Mission  successful 
in  rescuing  hijacked 
aircrew  and  passen- 
gers held  hostage. 

United  States 

Team  for  rescue  of 
US  hostages  in 
AMEMB  Tehran 
wore  non-standard 
uniforms  approved 
by  Joint  Chiefs  of 
Staff,  President. 

1980 

Iran 

Mission  aborted 
due  to  helicopter 
failures. 

98 


W.  Hays  Parks 


Who 

What 

When 

Where 

Disposition 
(if  any) 

Soviet  Union,  East 

Spetsnaz  dressed  in 

Cold 

NATO  nations 

Never  executed. 

Germany  (GDR) 

civilian  clothing  or 
NATO  uniforms 
trained/planned  to 
penetrate/operate  in 
NATO  rear,  attack 
high-value  targets. 

War 

Soviet  Union 

Spetsnaz  dressed  in 
civilian  clothing  neu- 
tralized senior 
Afghan  officers,  then 
secured  Kabul  airport 
wearing  Afghan 
Army  uniforms. 

1979 

Afghanistan 

None. 

North  Korea 

Special  Forces  infil- 

1950- 

Republic  of 

Treated  as  spies 

trate  South  Korea 

1988 

Korea 

when  captured. 

wearing  Civilian 

clothing  or  ROK 

uniforms. 

Israel 

Sarayet  Maktal  wear- 
ing non-standard  uni- 
forms carry  out 
successful  direct  action 
mission  to  kill  Abu  Ji- 
had, PLO  military 
commander,  in  Tunis. 

1988 

Sidi-bou-Said, 
Tunisia 

None. 

Panama 

71  Infantry  Company 

1989 

Panama  (Opera- 

Captured members 

(Macho  de  Monte), 

tion  Just  Cause) 

treated  as  prisoners 

Panamanian  Defense 

ofwarbyUS. 

Forces  (PDF),  fought 

in  civilian  attire  of 

shorts,  t-shirts,  and 

straw  hats. 

United  States 

CINC's  SF  personal 
security  detail  wore 
civilian  attire. 

1990- 
1991 

Saudi  Arabia 

None. 

United  Kingdom/ 

SF  wore  kufiyah/agal 

1991 

Iraq 

None. 

United  States 

and  indigenous  coats 
over  uniforms  during 
operations  in  Iraq. 

99 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


Notes 

1.  Professor  Parks  holds  the  Law  of  War  Chair,  Office  of  General  Counsel,  Department  of 
Defense.  He  is  a  former  Charles  H.  Stockton  Professor  of  International  Law  at  the  Naval  War 
College.  A  version  of  this  paper  was  published  in  4  Chicago  Journal  of  International  Law  2  (Fall 
2003).  The  views  expressed  herein  are  the  personal  views  of  the  author,  and  may  not 
necessarily  reflect  an  official  position  of  the  Department  of  Defense  or  any  other  agency  of  the 
United  States  Government. 

2.  See,  for  example,  Michelle  Kelly  &  Morten  Rostrup,  Coalition  soldiers  in  Afghanistan  are 
endangering  aid  workers,  THE  GUARDIAN  (London),  Feb.  1,  2002,  at  19. 

3.  This  article  offers  a  subtle  distinction.  Special  Forces  is  limited  to  US  Army  Special  Forces 
assigned  to  Special  Forces  Groups  or  detachments,  Naval  Special  Warfare  (SEALs  and  Special 
Boat  units),  and  Air  Force  Special  Tactics  Units,  and  their  coalition  counterparts,  while  Special 
Operations  Forces  includes  Special  Forces,  Psychological  Operations  units,  and  Army  Civil 
Affairs  units.  There  are  members  of  Army  Civil  Affairs  Units  who  are  Special  Forces  soldiers.  The 
distinction  offered  in  this  article  is  one  of  unit  assignment  and  mission(s). 

4.  The  section  that  follows  was  prepared  from  personal  interviews  with  Special  Forces  personnel 
and  materials  provided  by  the  Department  of  Military  Strategy,  Planning  and  Operations,  US 
Army  War  College,  US  Army  Peacekeeping  Institute,  and  the  Department  of  State.  Pertinent 
documents  are  in  the  author's  personal  files.  In  particular,  see  US  Army  Peacekeeping  Institute, 
Civil  Military  Operations:  Afghanistan  (2003). 

5.  Special  Forces'  wear  of  Northern  Alliance  attire  was  undertaken  at  the  insistence  of  Northern 
Alliance  General  Abdul  Rashid  Dostum,  commander  of  its  8,000-man  Junbish-e-Millie,  the  largest 
Northern  Alliance  army.  President  William  J.  Clinton  ordered  the  prompt  withdrawal  of  US  forces 
from  Somalia  following  the  October  3,  1993  Battle  of  Mogadishu  in  which  eighteen  members  of 
Task  Force  Ranger  died.  See  MARK  BOWDEN,  BLACK  HAWK  DOWN:  A  STORY  OF  MODERN  WAR 
(1999).  General  Dostum  feared  US  withdrawal  from  Afghanistan  if  confronted  with  US  casualties. 
Multiple  Northern  Alliance  bodyguards  were  assigned  to  each  US  Special  Forces  soldier.  In  the  early 
days  of  fighting,  General  Dostum  told  some  of  his  subordinates  in  Mazar-e-Sharif  that  he  would  kill 
them  if  they  allowed  their  US  charges  to  be  hurt  or  killed.  Once  US  and  coalition  forces  showed  that 
they  were  not  casualty  averse,  the  bodyguard  standards  were  relaxed.  SF  wear  of  the  Northern 
Alliance  pakol,  tribal  scarves,  and  beards  prevented  them  from  being  singled  out  for  targeting  by  al 
Qaeda/Taliban  personnel.  Wearing  indigenous  attire  also  aided  SF  rapport  with  the  Northern 
Alliance  forces  it  supported.  Special  mission  unit  Special  Forces,  whose  identities  are  classified,  also 
wore  beards  to  reduce  risk  of  media/public  identification. 

The  risk  is  not  new.  In  1915,  serving  in  the  Arabian  Peninsula  as  a  military  adviser  to  Wahabi 
chief  Abdul  Aziz  Ibn  Saud,  British  Army  Captain  William  H.  I.  Shakespear  eschewed  indigenous 
attire.  During  a  battle  between  the  forces  of  Ibn  Saud  and  pro-Turkish  tribal  leader  Ibn  Rashid, 
Shakespear  was  killed  by  an  enemy  sniper  when  his  British  Army  uniform  singled  him  out  and 
identified  him  as  a  high-value  target.  See  JEREMY  WILSON,  LAWRENCE  OF  ARABIA  1043  (1990). 
Knowledge  of  the  circumstances  of  Captain  Shakespear's  death  prompted  T.E.  Lawrence  to  wear 
Arab  clothing  as  he  lead  the  Arab  Revolt  against  Ottoman  rule  that  began  June  5,  1916,  and  to 
incorporate  the  lesson  into  his  "Twenty-Seven  Articles"  (Articles  18-20)  published  in  August 
1917  as  lessons  learned.  Id.  at  1043,  n.4. 

Indigenous  personnel  over-protection  of  US  Special  Forces  personnel  is  not  new.  Office  of 
Strategic  Services  (OSS)  Operational  Team  Muskrat/Bear  experienced  the  same  phenomenon  in 
China  in  1945.  FRANCIS  B.  MILLS,  ROBERT  MILLS,  &  JOHN  W.  BRUNNER,  OSS  SPECIAL 
OPERATIONS  IN  CHINA  300,  321  (2002). 

100 


W.  Hays  Parks 

In  Operation  Enduring  Freedom,  Special  Forces  wear  of  the  pakol  was  possible  because  of  the 
Pashtun  (Taliban)  versus  Tajik/Uzbek  (Northern  Alliance)  differences  in  attire.  Special  Forces 
supporting  Southern  Alliance  forces  were  confronted  with  a  more  difficult  situation.  Southern 
Alliance  soldiers  looked  and  dressed  exactly  like  the  Taliban.  Afghan  Taliban  dressed  in  Pashtun 
attire  since  they  were  from  the  Pashtun  tribes.  Other  Taliban,  from  Pakistan  predominantly, 
wore  Pakistani  attire. 

In  the  south,  Special  Forces  wear  of  indigenous  attire  and  its  distinguishing  devices  was 
encouraged  by  Hamid  Karzai,  again  to  lower  US  visibility.  Accordingly,  these  Special  Forces 
wore  native  tops  over  their  DCU.  After  three  days,  the  Special  Forces  abandoned  the  indigenous 
tops  for  the  balance  of  their  tenure,  their  leader  having  convinced  Karzai  that  as  everyone  knew 
they  were  American,  there  was  no  reason  to  pretend  otherwise.  It  also  gave  the  soldiers  better 
access  to  their  DCU  pockets  and  load-bearing  equipment. 

6.  Because  neither  Taliban/al  Qaeda  nor  Northern  or  Southern  Alliance  forces  wore  a  uniform, 
visual  friend  or  foe  identification  at  a  distance  was  a  challenge.  Third  Battalion,  Fifth  Special 
Forces  Group,  The  Liberation  ofMazar-e  Sharif:  5th  SF  Group  UW  in  Afghanistan,  15  SPECIAL 
WARFARE  34,  36  (June  2002).  However,  this  differs  from  dressing  as  civilians  for  the  purpose  of 
using  the  civilian  population  or  civilian  status  as  a  means  of  avoiding  detection  of  combatant 
status.  From  the  standpoint  of  possible  violation  of  the  law  of  war,  the  issue  is  one  of  intent.  As 
indicated  in  the  main  text,  use  of  non-standard  uniform  (Massoud  pakol  and/or  scarf)  by  some 
Special  Forces  personnel  was  to  appear  as  members  of  the  Northern  Alliance  rather  than  be 
conspicuous  as  US  soldiers  and,  as  indicated  in  the  preceding  footnote,  high-value  targets. 

7.  In  Are  Soldiers  in  Civilian  Clothes  Protected  Under  Geneva-Hague?  (unpublished  paper,  2003)  at 
31,  Lieutenant  Colonel  H.  Allen  Irish  provided  the  following  official  rationale  for  the  decision: 

The  need  to  reduce  the  potential  for  violence  that  may  be  directed  at  CJCMOTF 
personnel  engaged  in  humanitarian  relief  efforts  in  Afghanistan  was  the  critical  factor 
mandating  the  decision  [to  operate  in  civilian  clothing].  In  uniform,  [CJCMOTF] 
personnel  may  be  targeted  since  they  could  be  confused  as  being  engaged  in  offensive 
combat  operations  instead  of  providing  humanitarian  assistance.  .  .  .  The  traditional 
wear  of  civilian  clothes  by  unconventional  forces  for  the  purpose  of  humanitarian 
assistance  is  time-proven. 

This  rationale  is  historically  inaccurate  and  legally  flawed.  Civil  Affairs  personnel  are  not 
unconventional  forces.  Civil  Affairs  personnel  performing  humanitarian  assistance  in 
operations  short  of  international  armed  conflict  have  been  authorized  to  wear  civilian  clothing. 
Civil  Affairs  personnel  in  international  armed  conflict  have  worn  standard  uniforms  only.  US 
Army  and  Marine  Corps  Civic  Action  (Civil  Affairs)  personnel  operating  in  the  Republic  of 
Vietnam  (1964-1971)  wore  standard  field  uniforms  in  threat  circumstances  similar  to  those 
faced  by  Civil  Affairs  personnel  in  Afghanistan.  US  Army  Civil  Affairs  operating  in  support  of 
Operation  Just  Cause  (Panama,  1989-1990)  and  Operations  Desert  Shield/Desert  Storm/ 
Provide  Comfort  (1991)  wore  standard  BDU.  These  operations  were  significantly  different  from 
Special  Forces  missions  in  denied  territory. 

From  a  law  of  war  standpoint,  neither  "force  protection"  nor  a  desire  to  distinguish  soldiers 
performing  "offensive  duties"  from  those  engaged  in  humanitarian  assistance  constitutes 
military  necessity  for  soldiers  to  wear  civilian  attire  in  international  armed  conflict. 

With  respect  to  the  force  protection  argument,  US  Army  Civil  Affairs  doctrine  in  preparation 
at  the  time  of  the  "force  protection"  decision  (and  subsequently  approved)  is  to  the  contrary.  US 
Army  Field  Manual  3-05.401,  Civil  Affairs  Tactics,  Techniques  and  Procedures,  Table  4-2,  at  4- 
40,  indicates  that  Civil  Affairs  personnel  in  less  than  full  Battle  Dress  Uniform,  complete  with 
combat  equipment,  to  include  Kevlar  load  bearing  vest  and  individual  weapon,  risk  reduced 

101 


Special  Forces'  Wear  ofNon-Standard  Uniforms 


force  protection,  while  noting  that  wearing  civilian  clothing  "Greatly  increases  the  possibility  of 
fratricide." 

8.  Unlike  their  Special  Forces  counterparts,  Civil  Affairs  personnel  in  indigenous  attire  did  not 
necessarily  wear  the  Massoud  pakol  or  scarf.  Whether  wearing  western  attire  or  indigenous 
attire,  some  concealed  their  weapons. 

9.  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War,  Geneva,  Aug.  12, 
1949,  art.  10,  75  U.N.T.S.  287;  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  301  (Adam 
Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000).  Article  10  provides:  "The  provisions  of  the  present 
convention  constitute  no  obstacle  to  the  humanitarian  activities  which  the  International 
Committee  of  the  Red  Cross  or  any  other  impartial  humanitarian  organization  may,  subject  to 
the  consent  of  the  Parties  to  the  conflict  concerned,  undertake  for  the  protection  of  civilian  persons 
and  for  their  relief."  [Emphasis  added.] 

10.  The  NGO  civilian  clothing  complaint  was  directed  at  Civil  Affairs  units  and  personnel  only. 
Speaking  at  a  Harvard  University  Carr  Center  Symposium,  Army-Navy  Club,  Washington, 
October  18,  2002,  Nicolas  de  Torrente,  representative  of  the  NGO  Medecins  sans  Frontieres 
(Doctors  Without  Borders  [MSF] ),  made  it  clear  that  the  NGO  complaint  was  directed  only  at  US 
Army  Civil  Affairs  personnel  operating  in  proximity  to  NGO.  He  emphasized  that  MSF  offered  no 
objection  as  to  the  attire  of  US  or  Coalition  Special  Forces  engaged  in  counter-terrorist  operations 
against  Taliban/al  Qaeda.  [Personal  knowledge  of  the  author,  who  was  present.] 

During  the  question  and  answer  period,  this  author  offered  the  counterargument  that  NGO 
personnel  working  in  proximity  to  uniformed  CA  personnel  might  be  at  greater  risk  of  being 
targeted  because  of  an  appearance  of  overt  support  for  US  operations,  or  as  collateral  casualties 
incidental  to  al  Qaeda  attacks  on  uniformed  Civil  Affairs  personnel  performing  humanitarian 
relief  operations.  Mr.  Torrente  acknowledged  the  counterargument  before  stating  that  MSF 
objected  to  the  presence  of  any  military  personnel  in  proximity  to  MSF  activities. 

11.  Six  months  later  the  Commanding  General,  US  Army  Special  Forces  Command  (USASFC), 
issued  an  order  re-enforcing  standard  uniform  and  grooming  practices  that  received  wide  media 
coverage.  See,  for  example,  Kitty  Kay,  Close  shave  for  special  forces,  TlMESONLINE,  (Sept.  13,  2002), 
available  at  http://www.timesonline.co.uk/article/0„3463-413550,00.html;  Mike  Mount,  Close  shave 
for  special  ops  forces  in  Afghanistan,  CNN.COM/WORLD,  (Sept.  13,  2002),  available  at  http:// 
www.cnn.com/2002/WORLD/asiapcf/central/09/12/afghanistan.clean/;  and  Headquarters  CJSOTF 
Afghanistan  Memorandum  (Sept.  6,  2002),  Subject:  Uniform  and  Appearance  Standards  Policy- 
Rescinding  of  Relaxed  Grooming  Standards.  According  to  the  Staff  Judge  Advocate  for  US  Army 
Special  Forces  Command,  the  commander's  intent  was  for  field  commanders  to  review  the 
appropriateness  of  continued  wear  of  non-standard  uniforms  and  beards,  particularly  by  support 
personnel  not  engaged  in  combat  missions.  This  is  borne  out  by  reports  the  author  received  from 
special  mission  units  judge  advocates,  who  advised  that  bearded  special  mission  unit  personnel  in 
non-standard  uniforms  subsequently  briefed  the  Combatant  Commander  (Commander, 
USCENTCOM).  The  USASFC  order  was  a  general  tightening  of  discipline  and  uniform  standards 
where  there  was  no  military  necessity  for  wearing  either  beards  or  non-standard  uniforms. 

Special  Mission  unit  personnel  operating  against  al  Qaeda  grew  beards  for  several  reasons: 
(1)  a  dearth  of  water  for  daily  shaving;  (2)  for  rapport  with  and  to  appear  like  the  indigenous 
personnel  with  whom  they  were  serving;  and  (3)  to  prevent  their  identification  and  thus  protect 
them,  and  their  families,  from  terrorist  attacks.  The  latter  rationale  is  not  new.  In  1918,  then 
Lieutenant  Colonel  T.E.  Lawrence  was  publicly  identified  as  a  leader  in  the  Arab  Revolt.  His 
biographer  explains: 

As  soon  as  these  reports  began  to  appear,  the  Censorship  and  Press  Committee  in 
London  issued  a  warning  to  editors  which  read:  "The  Press  are  earnestly  requested  not 


102 


W.  Hays  Parks 

to  publish  any  photograph  of  Lieutenant  Colonel  T.E.  Lawrence,  C.B.,  D.S.O.  This 
officer  is  not  known  by  sight  to  the  Turks,  who  have  put  a  price  upon  his  head,  and  any 
photograph  or  personal  description  of  him  may  endanger  his  safety. 

WILSON,  supra  note  5,  at  552. 

In  Lawrence's  case  and  the  World  War  II  cases,  identification  risks  were  limited  to  the 
battlefield.  With  ease  of  travel  and  the  global  threat  of  terrorism,  the  identity  of  special  mission 
personnel  is  classified  to  protect  them  and  their  families.  This  practice  has  existed  for  some  time; 
see,  for  example,  photographs  contained  in  PETER  RATCLIFFE,  NOEL  BOTHAM  &  BRIAN 
HlTCHEN,  EYE  OF  THE  STORM  (2000),  where  the  faces  of  current  members  of  22  British  Special 
Air  Service  (SAS)  are  obscured. 

12.  The  section  that  follows  (including  the  text  of  this  footnote)  was  prepared  from  materials 
provided  by  the  Department  of  Military  Strategy,  Planning  and  Operations,  US  Army  War 
College,  US  Army  Peacekeeping  Institute,  the  Department  of  State,  and  AHMED  RASHID, 
TALIBAN:  MILITANT  ISLAM,  OIL  AND  FUNDAMENTALISM  (2001). 

Arguments  with  respect  to  the  Taliban  militia  (as  they  called  themselves)  depend  only  so 
slightly  on  who  and  when.  The  Taliban  was  a  loose  amalgamation  of  occasional  and  disparate  tribal 
and  other  factions.  It  was  a  faction  engaged  in  a  civil  war  in  a  failed  State  that  owed  much  of  its 
strength  and  origin  to  the  Pakistani  Intelligence  Service.  It  exercised  none  of  the  usual  activities  of  a 
government,  other  than  the  negative  one  of  closing  down  all  schools.  The  Taliban  militia  never 
claimed  to  be  the  Afghanistan  government  or  armed  forces.  The  Taliban  had  no  uniformed  armed 
forces.  The  Taliban  was  structured  around  tribes  rather  than  as  a  military  unit,  recruiting  the 
allegiance  of  other  tribes  or  personnel  from  other  tribes  and  private  citizens  through  temporary 
alliances,  defections,  bribery,  and  conscription,  while  also  relying  on  foreign  volunteers. 

Since  the  collapse  of  the  Soviet  Union  and  the  break-up  of  Yugoslavia,  the  international  test 
has  been  whether  an  entity  is  permitted  to  sit  behind  the  nameplate  in  the  United  Nations  (and 
in  other  international  fora)  rather  than  the  previous  test  of  whether  it  controls  population, 
territory,  etc.  The  Taliban  was  never  permitted  to  represent  Afghanistan  at  the  United  Nations  or 
in  other  international  fora. 

The  UN  Security  Council  never  recognized  the  Taliban  as  the  representative  of  Afghanistan. 
In  a  number  of  UN  Security  Council  resolutions  issued  against  the  Taliban,  there  was  discussion 
as  to  whether  a  binding  resolution  could  be  issued  against  a  non-State  entity.  These  Security 
Council  resolutions  included  1189  (1999),  1267  (1999)  and  1363  (2001).  Security  Council 
resolution  1 1 89  referred  to  "the  continuing  use  of  Afghan  territory,  especially  areas  controlled  by 
the  Taliban;"  hence  the  Security  Council  distinguished  between  the  Taliban  and  Afghanistan. 

Prior  to  September  1,  2001,  the  Taliban  was  recognized  only  by  Saudi  Arabia,  Pakistan  and 
the  United  Arab  Emirates.  All  three  withdrew  their  recognition  following  the  terrorist  attack. 
Stated  another  way,  98.5%  of  governments,  including  the  United  States,  did  not  recognize  the 
Taliban  as  the  government  of  Afghanistan  prior  to  the  September  11,  2001,  al  Qaeda  attack.  Nor 
was  it  recognized  by  the  League  of  Islamic  Nations,  nor  by  Switzerland  (depositary  of  the  Geneva 
Conventions).  The  Taliban  was  not  invited  to  the  1999  Conference  of  Red  Cross  and  Red 
Crescent  Societies  as  the  Afghanistan  representative.  Had  it  been  invited,  it  is  likely  the  US  and 
other  governments  would  have  prevented  it  from  occupying  the  Afghanistan  delegation  seat,  as 
was  the  case  with  respect  to  the  FRY  in  Yugoslavia.  By  the  time  coalition  operations  began  in 
Afghanistan,  no  government  recognized  the  Taliban  as  the  Government  of  Afghanistan. 

Once  US  and  allied  operations  began  in  Afghanistan  in  October  2001,  al  Qaeda  assumed 
command  of  most  Taliban  militia  units.  As  the  battle  continued,  most  Taliban  withdrew  to  their 
normal  areas  of  Afghanistan,  leaving  the  fighting  to  al  Qaeda  and  foreign  members  of  the  Taliban. 


103 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


Any  perception  of  the  Taliban  as  any  sort  of  a  national  government  dissolved  following  Taliban 
abandonment  of  Kabul  (November  12, 2001 )  and  US  capture  of  Kandahar  (December  10, 2001). 
A  leading  authority,  in  discussing  guerrillas,  summed  up  the  Taliban  militia  and  al  Qaeda  status: 

The  law  of  nations,  apart  from  the  Hague  Regulations . . .  denies  belligerent  qualifications 
to  guerrilla  bands.  Such  forces  wage  a  warfare  which  is  irregular  in  point  of  origin  and 
authority,  of  discipline,  of  purpose  and  procedure.  They  may  be  constituted  at  the  beck  of 
a  single  individual;  they  lack  uniforms;  they  are  given  to  pillage  and  destruction;  they  take 
few  prisoners  and  are  hence  disposed  to  show  slight  quarter. 

Charles  Cheney  Hyde,  International  Law  Chiefly  as  Interpreted  and  Applied  by  the 
United  States  1797  (2d  ed.  1951). 

13.  See,  e.g.,  the  President's  Military  Order  of  Nov.  13,  2001,  Detention,  Treatment,  and  Trial  of 
Certain  Non-Citizens  in  the  War  on  Terrorism,  §  1  (a),  66  Fed.  Reg.  57,833  (2001 ),  also  available  at 
www.whitehouse.gov/news/releases/200 1/1 1/2001 1 1 13-27.html  ("Military  Order"). 

14.  Press  Briefing  by  Ari  Fleischer,  Feb.  7,  2002,  available  at  http://www, whitehouse.gov/ 
news/releases/2002/02/20020207-6.html;  Katherine  Q.  Seelye,  In  Shift,  Bush  Says  Geneva  Rules 
Fit  Taliban  Captives,  NEW  YORK  TIMES,  Feb.  8, 2002,  at  Al.  The  issues  are  summarized  in  John 
C.  Yoo  &  James  C.  Ho,  The  Status  of  Terrorists,  44  VIRGINIA  JOURNAL  OF  INTERNATIONAL  LAW 
207  (2003). 

15.  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Geneva,  Aug.  12,  1949,  75 
U.N.T.S.  135,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  244. 

16.  DOD  Directive  5100.77  (Dec.  9,  1998),  Subj:  DOD  Law  of  War  Program,  para.  5.3.1;  CJCSI 
58 10.01  A  (Aug.  27, 1999),  Subject:  Implementation  of  the  DOD  Law  of  War  Program,  para.  5a.  For 
this  reason,  the  decision  was  announced  that  the  United  States  would  apply  the  law  of  war  applicable 
in  international  armed  conflict  to  non-State  actors  in  Operation  Enduring  Freedom.  See  excerpts 
from  interview  with  Charles  Men,  Deputy  General  Counsel  for  International  Affairs,  US 
Department  of  Defense,  Dec.  16, 2002,  Crimes  of  War  Project,  available  at.  http://www.crimesofwar 
.org/onnews/news-pentagon-trans.html.  This  announcement  was  greeted  with  astonishment  by 
some  international  law  experts.  See,  for  example,  Marco  Sassoli,  Query:  Is  There  a  Status  of  "Unlawful 
Combatant"?,  which  is  Chapter  V  in  this  volume,  at  57.  Comments  similar  to  Professor  Sassoli's  were 
offered  privately  to  the  author  by  his  foreign  military  counterparts.  As  will  be  indicated,  the  intention 
was  to  use  the  law  of  war  applicable  in  international  armed  conflicts  as  a  template  for  US  conduct  in 
Operation  Enduring  Freedom. 

17.  Enforcement  of  International  Humanitarian  Law:  Challenges  for  the  UN  Security  Council 
and  the  USA,  US  Institute  of  Peace,  Mar.  1,  2001.  [Personal  knowledge  of  the  author,  who  was 
present.] 

18.  Supra  note  15. 

19.  Id.  at  245-46. 

20.  Historically,  regular  military  force  entitlement  to  prisoner  of  war  status  was  absolute  and 
unqualified.  Article  49  of  US  General  Orders  No.  100,  Instructions  for  the  Government  of 
Armies  of  the  United  States  in  the  Field  (1863) (the  Lieber  Code),  states:  "All  soldiers,  of 
whatever  species  of  arms  ...  all  disabled  men  or  officers  on  the  field  or  elsewhere,  if  captured  . . . 
are  prisoners  of  war,  and  as  such  exposed  to  the  inconveniences  as  well  as  entitled  to  the 
privileges  of  a  prisoner  of  war."  Reprinted  in  THE  LAWS  OF  ARMED  CONFLICT:  A  COLLECTION  OF 
Conventions,  Resolutions  and  Other  Documents  l  (Dietrich  Schindler  &  Jiri  Toman 
eds.,  4th  ed.  2004)  [hereinafter  THE  LAWS  OF  ARMED  CONFLICT].  Similarly,  COMMENTARY  ON 
the  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  August  12, 
1 949  46-47  (Jean  S.  Pictet  ed.,  1 960)  states:  "Once  one  is  accorded  the  status  of  belligerent,  one  is 
bound  by  the  obligations  of  the  laws  of  war,  and  entitled  to  the  rights  which  they  confer.  The 


104 


W.  Hays  Parks 

most  important  of  these  is  the  right,  following  capture,  to  be  recognized  as  a  prisoner  of  war,  and 
to  be  treated  accordingly." 

Entitlement  to  prisoner  of  war  status  for  members  of  the  armed  forces  existed  without  pre- 
condition in  treaty  law.  Article  1  to  the  Annex  to  Convention  (IV)  Respecting  the  Laws  and 
Customs  of  War  on  Land,  The  Hague,  Oct.  18,  1907,  36  Stat.  2277,  T.S.  539,  1  Bevans  631,  also 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  73,  and  Article  4(A)  1,  GPW, 
supra  note  15.  WILLIAM  E.  S.  FLORY,  PRISONERS  OF  WAR  27-28  (1942)  states:  "Persons  serving  in 
the  regular  army,  navy  and  air  force  of  a  belligerent  state  have  rights  as  prisoners  of  war  when 
they  fall  into  the  hands  of  the  enemy.  This  rule  is  part  of  customary  international  law  as  well  as 
treaty  law." 

Similarly,  G.I.A.D.  Draper,  The  Present  Law  as  to  Combatancy,  in  REFLECTIONS  ON  LAW  AND 
Armed  Conflicts:  The  Selected  Works  on  the  Laws  of  War  by  the  Late  Professor 
COLONEL  G.I.A.D.  DRAPER,  OBE  197  (Michael  A.  Meyer  &  Hillairie  McCoubrey  eds.,  1998), 
comments: 

Article  1  of  the  Hague  Regulations,  and  its  four  express  and  two  implicit  stringent 
conditions  for  volunteer  and  militia  corps,  represented  a  triumph  for  the  "military" 
faction  at  the  Hague  Peace  Conference.  Those  four  express  conditions:  (i)  a 
commander  responsible  for  his  subordinates;  (ii)  distinctive  sign;  (hi)  open  carrying  of 
arms  and  (iv)  compliance  with  the  Laws  of  War  in  their  operations,  enable  an  extension 
of  the  class  of  the  privileged  belligerent  by  way  of  identification  to  the  normal  features 
of  military  armed  forces.  This  identification  is  not  absolute.  Members  of  the  armed  forces 
who  persistently  violate  the  Law  of  War  do  not  lose  their  POW  status  upon  capture.  The 
effect  of  Articles  4,  5  and  85  of  the  Geneva  (POW)  Convention,  1949,  makes  this  clear 
[emphasis  provided]. 

Denial  to  regular  forces  (including  special  operations  forces)  of  prisoner  of  war  status  and  the 
protections  of  the  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Geneva,  July  27, 
1929,  reprinted  in  THE  LAWS  OF  ARMED  CONFLICT,  supra,  at  421,  predecessor  to  the  current 
GPW,  were  held  to  be  war  crimes  by  post- World  War  II  tribunals,  including  in  cases  where 
British  and  American  military  personnel  were  summarily  executed.  On  October  18,  1942,  in 
response  to  British  special  forces  missions,  Adolf  Hitler  issued  his  Fuhrerbefehl  ("Commando 
Order"),  which  declared  that  Allied  special  forces,  even  if  uniformed  members  of  the  armed 
forces,  were  to  be  "slaughtered  to  the  last  man"  (that  is,  denied  quarter,  in  violation  of  Article 
23(d),  Annex  to  the  1907  Hague  Convention  IV)  or,  if  captured,  denied  prisoner  of  war  status 
and  summarily  executed.  The  "Commando  Order"  was  declared  a  war  crime  at  Nuremberg. 
International  Military  Tribunal,  Nazi  Conspiracy  and  Aggression,  Opinion  and  Judgment  58 
(1947).  Its  implementation  resulted  in  war  crimes  convictions  by  US  military  tribunals  (In  re 
Dostler,  1  Law  Reports  of  Trial  of  War  Criminals,  22-34  (HMSO,  1945),  and  by  British  military 
courts  (In  re  Falkenhorst,  VI  War  Crimes  Reports  (HMSO,  1946),  and  Trial  of  Karl  Buck  and 
Ten  Others,  5  Law  Reports  of  Trials  of  War  Criminals,  39-44  (HMSO,  1946). 

In  the  Dostler  case,  two  officers  and  thirteen  enlisted  men  from  Unit  A,  lbt  Contingent  (OSS 
Operational  Group,  Italy)  were  captured  March  22,  1944,  and  executed  under  the  orders  from 
Major  General  Dostler,  even  though  they  had  been  captured  in  uniform.  Dostler  was  tried, 
convicted  and  executed  by  firing  squad  following  World  War  II;  In  re  Dostler,  and  photographic 
evidence  in  author's  possession.  Other  OSS  Operational  Groups  sewed  Seventh  USA  Army 
patches  on  their  left  shoulder  to  conceal  their  OSS  identity.  Ian  Sutherland,  The  OSS  Operational 
Groups:  Origin  of  Army  Special  Forces,  3  SPECIAL  WARFARE  2,  3  (June  2002). 
21.  Yoo  &  Ho,  supra  note  14,  argue  that  the  four  criteria  contained  in  Article  4A(2),  GPW,  are 
prerequisites  to  prisoner  of  war  status  for  regular  force  combatants.  That  view  is  not  consistent 

105 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


with  Articles  5,  85  and  93,  GPW  or  the  negotiating  history  of  the  four  criteria;  see,  for  example, 
Draper,  supra  note  20,  at  29;  and  Jifi  Toman,  The  Status  ofAl  Qaeda/Taliban  Detainees  Under  the 
Geneva  t  bnventions,  32  Israeli  Yearbook  on  Human  Rights  271  283, 285  (2002). 

22.  An  element  of  inconsistency  with  customary  and  treaty  law  evolved  within  the  United  States 
during  World  War  II  as  a  result  of  dicta  in  the  opinion  by  the  United  States  Supreme  Court  in  Ex 
parte  Quirin,  317  US  1  (1947),  involving  the  trial  of  eight  Nazi  saboteurs  captured  in  civilian 
clothing  in  the  United  States.  Changes  in  treaty  law  and  US  practice  since  Quirin  for  the  most 
part  have  returned  US  interpretation  to  the  pre-Quirin  position,  albeit  muddied  by  the 
experience  and  two  subsequent  Singapore  cases  that  followed  Quirin. 

Quirin  is  lacking  with  respect  to  some  of  its  law  of  war  scholarship.  Review  of  the  Court's 
citation  of  paragraphs  of  War  Department,  Field  Manual  27-10,  Rules  of  Land  Warfare  (War 
Department,  1914  and  1940)  suggests  that  the  Court  apparently  confused  provisions  relating  to 
civilians  taking  a  direct  part  in  hostilities,  who  would  be  unprivileged  belligerents,  and  those 
related  to  actions  by  military  personnel,  who  remain  entitled  to  prisoner  of  war  status.  The  Court 
correctly  stated,  citing  paragraphs  83  and  84  of  US  Army  General  Orders  No.  100  (1863),  that 
soldiers  "disguised  in  the  dress  of  the  country  . . .  if  found  lurking  about  the  lines  of  the  captor, 
are  treated  as  spies,  and  suffer  death."  This  provision  is  consistent  with  Article  29  of  the  Annex  to 
Hague  Convention  IV.  However,  the  Court  failed  to  note  paragraph  203  of  Field  Manual  27-10, 
Rules  of  Land  Warfare  (1940),  which  states  that  spies  are  not  punished  as  "violators  of  the  law  of 
war."  Rather,  the  Court  erred  in  stating  "the  absence  of  uniform . . .  renders  the  offender  liable  to 
trial  for  violation  of  the  laws  (sic.)  of  war."  The  statement  has  no  basis  in  the  law  of  war.  It  is 
contrary  to  Article  31  of  the  Annex  to  the  1907  Hague  Convention  IV  (a  treaty  to  which  the 
United  States  was  a  party  during  World  War  II),  which  states  that  "A  spy  who,  after  rejoining  the 
army  to  which  he  belongs,  is  subsequently  captured  by  the  enemy,  is  treated  as  a  prisoner  of  war, 
and  incurs  no  responsibility  for  his  previous  acts  of  espionage."  Were  absence  of  uniform  a 
violation  of  the  law  of  war,  criminal  liability  would  remain  even  after  a  soldier  returned  safely  to 
his  own  lines.  Similarly,  a  commander  who  orders  military  personnel  to  carry  out  a  mission  in 
civilian  clothing  would  incur  no  criminal  liability  for  his  order.  JAMES  MALONEY  SPAIGHT,  AIR 
Power  and  War  Rights  287  (1924). 

For  a  summary  of  the  German  operation,  trial  of  the  saboteurs,  and  critical  analysis  of  Quirin, 
see  LOUIS  FISHER,  NAZI  SABOTEURS  ON  TRIAL  (2003). 

Two  cases  from  Singapore  follow  the  reasoning  of  Quirin.  The  facts  of  each  are  similar.  In 
peacetime,  Indonesian  Marines  in  civilian  clothing  entered  Singapore  on  sabotage  missions.  The 
courts  determined  that  while  entitled  to  prisoner  of  war  status  under  Article  4A(1),  GPW,  a 
dubious  finding  in  and  of  itself,  that  entitlement  was  forfeited  when  the  soldiers  executed  their 
missions  in  civilian  clothing.  In  both  cases  the  defendants  were  charged  with  domestic  law 
violations  rather  than  violation  of  the  law  of  war.  Stanislaus  Krofan  &  Another  v.  Public 
Prosecutor,  Federal  Court  of  Criminal  Appeal,  1966, 1  Malayan  Law  Journal  (1967),  and  Osman 
bin  Haji  Mohamed  Ali  and  Another  v.  Public  Prosecutor,  Privy  Council,  1968,  1  A.C.  430. 

23.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflict  (Protocol  I),  1 125  U.N.T.S.  3,  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  9,  at  422.. 

24.  See,  for  example,  Trial  of  Lieutenant  General  Shigeru  Sawada  and  Three  Others,  V  LRTWC  1 
(HMSO,  1948)  (denial  of  prisoner  of  war  status  to  and  execution  of  eight  US  Army  Air  Corps 
personnel);  and  In  re  Dostler,  supra  note  20. 

US  military  personnel  captured  in  uniform  during  the  Vietnam  war  were  illegally  denied 
prisoner  of  war  status  by  their  captors  and  routinely  tortured.  GUENTHER  LEWY,  AMERICA  IN 
VIETNAM  332-34  (1978);  Howard  S.  Levie,  Maltreatment  of  Prisoners  of  War  in  Vietnam,  in  THE 


106 


W.  Hays  Parks 

Vietnam  War  and  International  Law  (Vol.  2)  361, 382,  (Richard  A.  Falk  ed.,  1969);  Stuart 
Rochester  &  Frederick  Kiley,  Honor  Bound:  The  History  of  American  Prisoners  of 
War  in  Southeast  Asia,  1961-1973,  at  188-194, 199-207  (1998);  and  Vernon  E.  Davis,  The 
Long  Road  Home:  US  Prisoner  of  War  Policy  and  Planning  in  Southeast  Asia  5, 64-84 
(2000).  Three  representative  personal  accounts  detailing  the  torture  and  other  violations  of  the 
GPW  are  ROBINSON  RlSNER,  THE  PASSING  OF  THE  NIGHT  (1973);  JEREMIAH  A.  DENTON,  WHEN 

Hell  Was  in  Session  (1976);  and  George  E.  Day,  Return  with  Honor  (1989). 

US  and  coalition  prisoners  of  war  captured  by  Iraq  during  the  1991  war  to  liberate  Kuwait 
were  not  provided  prisoner  of  war  treatment,  and  were  routinely  tortured.  US  Department  of 
Defense,  Final  Report  to  Congress:  Conduct  of  the  Persian  Gulf  War  619-620  (1992);  Secretary 
of  the  Army,  Report  on  Iraqi  War  Crimes  (Desert  Shield/Desert  Storm),  (1993);  United  Nations 
Security  Council  S/25441  (Mar.  12,  1993). 

25.  M.  R.  D.  FOOT,  SOE  IN  FRANCE  20  (1966). 

26.  For  example,  US  War  Department  Field  Manual  27-10,  Rules  of  Land  Warfare  (1940),  at 
4,  states:  "The  enemy  population  is  divided  in  war  into  two  general  classes,  known  as  the  armed 
forces  and  the  peaceful  population.  Both  classes  have  distinct  rights,  duties,  and  disabilities,  and 
no  person  can  belong  to  both  classes  at  one  and  the  same  time." 

See  also  The  War  Office  [United  Kingdom],  Manual  of  Military  Law,  7  (War  Office,  1929): 

The  division  of  the  enemy  population  into  two  classes,  the  armed  forces  and  the 
peaceful  population,  has  already  been  mentioned.  It  is  one  of  the  purposes  of  the  law  of 
war  to  ensure  that  an  individual  must  definitely  choose  to  belong  to  one  class  or  the 
other,  and  shall  not  be  permitted  to  enjoy  the  privileges  of  both. . . . 

Similarly,  see  War  Office,  The  Law  of  War  on  Land,  being  Part  III  of  the  Manual  of  Military 
Law,  30,  paragraph  86  (War  Office,  1958),  which  is  the  current  British  law  of  war  manual. 
"Belligerent"  is  the  classical  term.  More  recently  "belligerents"  have  been  referred  to  as 
"combatants,"  as  medical  personnel  and  chaplains  are  part  of  the  belligerent  forces  but  are  non- 
combatants. 

27.  The  levee  en  masse  which,  as  defined  in  Article  2,  Annex  to  Hague  Convention  IV  (1907), 
supra  note  20,  is  "the  inhabitants  of  a  territory  not  under  occupation  who,  on  the  approach  of  the 
enemy,  spontaneously  take  up  arms  to  resist  the  invading  troops  without  having  had  time  to 
organize  themselves."  Treaty  recognition  of  the  levee  en  masse  constituted  a  first  step  in 
relaxation  of  the  principle  of  distinction. 

28.  L.  OPPENHEIM,  INTERNATIONAL  LAW  (7th  ed.,  Vol.  II)  206  (H.  Lauterpacht  ed.,  1952). 

29.  James  Maloney  Spaight,  War  Rights  on  Land  37  ( 19 1 1). 

30.  Frits  Kalshoven,  The  Law  of  Warfare  3 1  ( 1973). 

31.  Article  23,  paragraph  (b)  of  the  Annex  to  the  1907  Hague  Convention  IV,  supra  note  20, 
states  that  it  is  prohibited  "to  kill  or  wound  treacherously  individuals  belonging  to  the  hostile 
nation  or  army. " 

32.  Article  24,  1907  Hague  Convention  IV,  id.,  states:  "Ruses  of  war  and  the  employment  of 
measures  necessary  for  obtaining  information  about  the  enemy  and  the  country  are  considered 
permissible."  See  also  Paragraph  51,  US  Army  Field  Manual  27-10,  at  101-102  (1956),  The  Law 
of  War  on  Land. 

33.  Where  soldiers  in  international  armed  conflict  lacked  proper  uniforms  through  no  fault  of 
their  own,  they  were  expected  to  wear  a  distinctive  emblem  to  distinguish  themselves  from  the 
civilian  population.  OPPENHEIM,  supra  note  28,  at  429-430. 

34.  The  negotiating  record  exception  is  discussed  infra.  Two  treaty  exceptions  exist.  Article  93, 
GPW,  supra  note  15,  states  in  part: 


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Special  Forces'  Wear  of  N on-Standard  Uniforms 


[Ojffenses  committed  by  prisoners  of  war  with  the  sole  intention  of  facilitating  escape 
and  which  do  not  entail  any  violence  against  life  or  limb,  such  as  offenses  against  public 
property,  theft  without  intention  of  self-enrichment,  the  drawing  up  or  use  of  false 

papers,  the  wearing  of  civilian  clothing,  shall  occasion  disciplinary  punishment  only 

[Emphasis  added]. 

35.  Richard  R.  Baxter,  The  Juridical  Basis  of  the  Distinction  between  Lawful  Combatant  and 
Unprivileged  Belligerent  47-51  (1959)  (unpublished  thesis,  The  Judge  Advocate  General's 
School,  US  Army). 

GPW,  Article  4A(2)  constituted  acknowledgement  of  the  legitimacy  of  World  War  II  partisan 
warfare  in  its  amendment  of  previous  treaty  categories  to  "Members  of  other  militias  and 
members  of  other  volunteer  corps,  including  those  of  organized  resistance  movements.  .  .  ." 
[Emphasis  added.]  This  was  a  further  relaxation  of  the  principle  of  distinction.  See 
COMMENTARY  ,  supra  note  20,  at  52-61. 

36.  US  Department  of  War  Manual,  Rules  of  Land  Warfare  (1914,  Corrected  to  April  15,  1917), 
paragraph  22,  states:  "  The  distinctive  sign. — This  requirement  will  be  satisfied  by  the  wearing  of  a 
uniform  or  even  less  than  a  complete  uniform."  See  also  ALLAN  ROSAS,  THE  LEGAL  STATUS  OF 
Prisoners  of  War:  A  Study  in  International  Humanitarian  Law  Applicable  in  Armed 
Conflict  349  (1976). 

37.  ROSAS,  supra  note  36,  at  349.  ("[T]he  concept  of  uniforms  has  never  been  explicitly  defined 
in  international  law.") 

38.  COMMENTARY,  supra  note  20,  at  52.  SPAIGHT,  supra  note  29,  at  57,  emphasizes  "The 
'distinctive  device'  does  not  mean  a  uniform." 

39.  Commentary  on  the  Additional  Protocols  of  8  June  1977  to  the  Geneva 
CONVENTIONS  OF  12  AUGUST  1949,  at  468  (Yves  Sandoz  et  al.  eds.,  1987).  The  ICRC  Commentary 
does  not  reflect  the  complexity  of  the  discussions  within  the  Working  Group.  As  three  Diplomatic 
Conference  participants  indicate  in  their  separate  commentary,  the  Working  Group  experienced 
considerable  difficulty  with  the  practical  details  of  this  issue.  See  MICHAEL  BOTHE,  KARL  PARTSCH 
&  Waldemar  Solf,  New  Rules  for  Victims  of  Armed  Conflicts  205-206  (1982). 

40.  Howard  S.  Levie,  Prisoners  of  War  in  International  Armed  Conflict  49  (1977) 
(Vol.  59,  US  Naval  War  College  International  Law  Studies).  SPAIGHT,  supra  note  29,  at  57, 
argued  that  the  distinctive  device  "must  be  fixed — externally,  so  as  not  to  be  assumed  or 
concealed  at  will."  This  is  not  consistent  with  prior  or  subsequent  practice.  The  original  view 
regarding  a  distinctive  device  was  expressed  by  Francis  Lieber  in  his  "Guerrilla  Parties 
Considered  with  Reference  to  the  Laws  and  Usages  of  War."  In  it  he  noted  "Nor  would  it  be 
difficult  to  adopt  something  of  a  badge,  easily  put  on  and  off,  and  to  call  it  a  uniform".  RICHARD  S. 
HARTIGAN,  LlEBER'S  CODE  &  THE  LAW  OF  WAR  40  (1983).  [Emphasis  added.] 

41 .  SPAIGHT,  supra  note  29,  commented  at  57: 

At  what  distance  should  the  sign  be  recognizable?  The  German  authorities  demanded 
in  1870  that  French  irregulars  should  be  distinguishable  at  rifle  range.  This,  says  an 
eminent  English  jurist,  is  "to  ask  not  only  for  a  complete  uniform  but  for  a  conspicuous 
one,"  [citing  WILLIAM  EDWARD  HALL,  INTERNATIONAL  LAW  523  (5th  ed.  1904)]. 
When  rifles  are  sighted  to  2,000  yards  and  over,  the  German  requirement  is  clearly 
unreasonable.  If  the  sign  is  recognizable  at  a  distance  at  which  the  naked  eye  can 
distinguish  the  form  and  color  of  a  person's  dress,  all  reasonable  requirements  appear 
to  be  met. 

At  the  commencement  of  the  Russo-Japanese  War,  the  Russian  Government  addressed 
a  note  to  Tokio  (sic),  stating  that  Russia  had  approved  the  formation  of  certain  free 
corps  composed  of  Russian  subjects  in  the  seat  of  war,  and  that  these  corps  would  wear 


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___ W.  Hays  Parks 

no  uniform  but  only  a  distinctive  sign  on  the  cap  or  sleeve.  Japan  replied:  "The  Japanese 
Government  cannot  consider  as  belligerents  the  free  corps  mentioned  in  the  Russian 
Note,  unless  they  can  be  distinguishable  by  the  naked  eye  from  ordinary  people  or  fulfill 
the  conditions  required  for  militia  or  volunteers  by  the  Hague  Reglement."  [Emphasis 
in  SPAIGHT] .  Similarly,  US  War  Department  Manual,  Rules  of  Land  Warfare,  supra 
note  36,  followed  the  Japanese  Government's  test: 

The  distinctive  sign. — This  requirement  will  be  satisfied  by  the  wearing  of  a  uniform,  or 
even  less  than  a  complete  uniform.  The  distance  that  the  sign  must  be  visible  is  left 
vague  and  undetermined  and  the  practice  is  not  uniform.  This  requirement  will  be 
satisfied  certainly  if  the  sign  is  "easily  distinguishable  by  the  naked  eye  of  ordinary  people" 
at  a  distance  at  which  the  form  of  the  individual  can  be  determined.  [Emphasis  added.] 

HYDE,  supra  note  12,  at  1793,  cites  this  provision  as  authority. 

The  term  "unenhanced  vision"  is  utilized  in  Article  1  of  the  Additional  Protocol  on  Blinding 
Laser  Weapons  (Protocol  IV)  to  the  Convention  on  Prohibitions  or  Restrictions  on  the  Use  of 
Certain  Conventional  Weapons  Which  May  be  Deemed  to  be  Excessively  Injurious  or  to  Have 
Indiscriminate  Effects,  Oct.  12,  1995,  Doc.  CCW/CONF.I/7  (1995),  35  INTERNATIONAL  LEGAL 
MATTERS  1218.  It  means  normal  vision  without  enhancements,  such  as  binoculars,  or  vision 
corrected  to  20/20.  For  its  negotiating  history,  see  Headquarters,  Department  of  the  Army,  Office 
of  The  Judge  Advocate  General,  DAJA-IO  Memorandum  of  Law  (Dec.  20, 1996),  Subject:  Travaux 
Preparatoires  and  Legal  Analysis  of  Blinding  Laser  Weapons  Protocol.  The  memorandum,  at  8, 
notes  the  intent  of  its  drafters: 

Unenhanced  vision  means  "the  naked  eye  or  . . .  the  eye  with  corrective  eyesight  devices," 
such  as  glasses  or  contact  lens.  It  does  not  mean  binoculars,  a  telescopic  sight,  night- vision 
goggles  or  similar  devices  used  to  increase  visual  capability  above  that  required  by  an 
ordinary  person  to  perform  routine  tasks,  such  as  reading  or  driving  an  automobile. 

42.  As  noted  at  the  text  accompanying  note  99,  infra,  British  Special  Forces  in  North  Africa  in 
World  War  II,  and  British  and  US  Special  Forces  operating  behind  enemy  lines  in  Iraq  during  the 
1990-1991  war  to  liberate  Kuwait,  frequently  wore  indigenous  overcoats  over  their  BDUs  to 
counter  one  of  the  coldest  winters  on  record,  but  also  as  a  ruse  to  reduce  immediate,  positive 
identification  at  a  distance  by  Iraqi  military  units. 

43.  Treaty  negotiation  records  suggest  participants  did  not  rely  upon  "carrying  arms  openly" 
for  regular  forces.  This  is  one  of  the  four  prerequisites  for  militias  or  partisans  seeking  combatant 
and  prisoner  of  war  status.  The  phrase  "carrying  arms  only"  has  itself  been  plagued  with  lack  of 
agreement  as  to  its  meaning.  See,  for  example,  W.  Hays  Parks,  Air  War  and  the  Law  of  War,  32 
AIR  FORCE  LAW  REVIEW  1,  84  (1990)  (the  debate  with  regard  to  Article  44(3),  Additional 
Protocol  I).  It  also  was  of  limited  to  no  value  in  Afghanistan,  as  most  Afghan  civilians  carry 
military  weapons.  Similarly,  following  cessation  of  formal  combat  operations  in  Iraq  (May  1, 
2003),  private  Iraqi  citizens  were  permitted  to  retain  Kalashnikov  AK-47  or  AK-74  select  fire 
weapons  in  their  homes  for  personal  protection.  Coalition  Provisional  Authority  Order  Number 
3  (May  23,  2003).  [Copy  in  author's  personal  files.] 

44.  As  summarized  in  this  memorandum,  there  is  substantial  State  practice  of  Special  Forces 
wear  of  civilian  clothing  or  non-standard  uniforms.  As  an  example  of  the  fourth  category,  the 
personal  security  detail  for  Commander  in  Chief,  US  Central  Command  [Combatant 
Commander] ,  during  Operations  Desert  Shield  and  Desert  Storm  ( 1 990-9 1 ) ,  wore  civilian  attire 
on  the  basis  that  VIP  protection  from  terrorist  attack  is  not  a  traditional  military  mission. 
(Attack  by  conventional  Iraqi  forces  was  not  regarded  as  a  viable  threat.)  The  personal  security 
detail  worked  in  close  proximity  to  the  Combatant  Commander,  who  wore  standard  BDU.  The 


109 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


personal  security  detail  in  turn  was  surrounded  by  an  outer  perimeter  of  uniformed  Saudi 
soldiers.  The  civilian  attire  of  the  personal  security  detail  was  dictated  in  large  measure  by  host 
nation  concerns.  Their  immediate  proximity  to  the  commander  and  uniformed  Saudi  military, 
and  their  physical  separation  from  the  civilian  population  was  consistent  with  the  principle  of 
distinction.  No  reasonable  case  could  be  made  that  their  actions  were  tantamount  to  perfidy. 
[Personal  knowledge  of  author  and  photograph  in  author's  files.] 

45.  Diplomatic  Conference  on  the  Reaffirmation  and  Development  of  International 
Humanitarian  Law  Applicable  in  Armed  Conflicts.  Convened  by  the  Swiss  Government  in  1974, 
the  Conference  formally  adopted  Additional  Protocols  I  and  II  on  June  8,  1977. 

46.  On  January  28,  1987,  President  Ronald  Reagan  informed  the  United  States  Senate  that 
Additional  Protocol  I  would  not  be  submitted  for  Senate  advice  and  consent  to  ratification. 
Message  of  the  President  of  the  United  States  Transmitting  the  Protocol  II  Additional  to  the 
Geneva  Conventions  of  August  12,  1949,  and  Relating  to  the  Protection  of  Victims  of 
Noninternational  Armed  Conflicts,  Concluded  at  Geneva  on  June  10,  1977,  100lh  Congress,  1st 
Session  (1987);  26  INTERNATIONAL  LEGAL  MATERIALS  561  (1987). 

47.  US  Department  of  State,  3  Cumulative  Digest  of  United  States  Practice  in  International  Law, 
1981-1988,  at  3434-3435.  See  also  DOD  Law  of  War  Working  Group,  Memorandum  for  Assistant 
Counsel  (International),  OSD  (May  9,  1986),  Subject:  1977  Protocols  Additional  to  the  Geneva 
Conventions;  Customary  International  Law  Application.  See  also  Michael  J.  Matheson,  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  AND 
POLICY  419  (1987),  based  upon  a  speech  Mr.  Matheson  made  at  an  American  University  workshop. 
Mr.  Matheson's  statements  with  regard  to  the  provisions  of  Additional  Protocol  I  regarded  by  the 
United  States  as  customary  law  are  based  upon  the  DOD  Law  of  War  Working  Group 
memorandum,  cited  above.  Thereafter  he  expresses  his  personal  opinion  that  other  provisions 
"should  be  observed  and  in  due  course  [may  be]  recognized  as  customary  law,  even  if  they  have  not 
already  achieved  that  status  and  their  relationship  to  the  provisions  of  Protocol  I."  Id.  at  422. 

48.  BOTHE,  PARTSCH  &  SOLF,  supra  note  39,  at  256-257.  The  new  rules  set  forth  in  Article  44, 
paragraph  3,  were  among  those  found  unacceptable  to  the  United  States  in  taking  its  decision 
against  ratification.  Paragraph  3  provides: 

In  order  to  promote  the  protection  of  the  civilian  population  from  the  effects  of 
hostilities,  combatants  are  obliged  to  distinguish  themselves  from  the  civilian  civilian 
population  while  they  are  engaged  in  an  attack  or  in  a  military  operation  preparatory  to 
an  attack.  Recognizing,  however,  that  there  are  situations  in  armed  conflicts  where, 
owing  to  the  nature  of  the  hostilities  an  armed  combatant  cannot  so  distinguish 
himself,  he  shall  retain  his  status  as  a  combatant,  provided  that,  in  such  situations,  he 
carries  his  arms  openly: 

(a)  during  each  military  engagement,  and 

(b)  during  such  time  as  he  is  visible  to  the  adversary  while  he  is  engaged  in  a  military 
deployment  preceding  the  launching  of  an  attack  in  which  he  is  to  participate. 

Acts  which  comply  with  the  requirements  of  this  paragraph  shall  not  be  considered  as 
perfidious. .  . . 

49.  ROSAS,  supra  note  36,  at  333.  Continuing,  the  author  notes: 

[T]his  provision  does  not  seem  to  imply  that  all  members  of  regular  forces  have  to  wear 
uniforms  in  all  situations  in  order  to  benefit  from  prisoner-of-war  status.  On  the  other 
hand  it  serves  as  a  reminder  that  the  uniform  continues  to  be  the  normal  way  for  regular 
combatants  to  distinguish  themselves  from  the  civilian  population.  [Emphasis  added.] 


110 


W.  Hays  Parks 

The  footnote  in  support  thereof  states: 

In  the  1976  report  of  Committee  III  [of  the  Diplomatic  Conference]  it  is  stated  that 
"regulars  who  are  assigned  to  tasks  where  they  must  wear  civilian  clothes,  as  may  be  the 
case,  for  example,  with  advisers  assigned  to  certain  resistance  units,  are  not  required  to 
wear  the  uniform  when  on  such  assignments."  CDDH/236/Rev.  1,  at  29. 

See  also,  PROTECTION  OF  WAR  VICTIMS:  PROTOCOL  I  TO  THE  1949  GENEVA  CONVENTIONS 
(Vol.  2)  475  (Howard  S.  Levie  ed.,  1980). 

50.  The  uniform  requirement  has  not  been  codified  for  military  operations  short  of 
international  armed  conflict. 

51.  Article  24,  Annex  to  the  1907  Hague  IV  Convention,  supra  note  20;  SPAIGHT,  supra  note 
29,  at  152-156;  OPPENHEIM,  supra  note  28,  at  428;  War  Office  Manual,  Part  III,  supra  note  26, 
at  101. 

52.  Article  23(b),  Annex  to  the  1907  Hague  IV  Convention,  supra  note  20. 

53.  The  distinction  between  a  ruse  and  perfidy  is  offered  as  "whenever  a  belligerent  has 
expressly  or  tacitly  engaged,  and  is  therefore  bound  by  a  moral  obligation,  to  speak  the  truth  to 
an  enemy,  it  is  perfidy  to  betray  his  confidence,  because  it  constitutes  a  breach  of  good  faith." 
OPPENHEIM,  supra  note  28,  at  420;  see  also  FM  27-10  (1956),  supra  note  32,  ff  49-55. 

54.  Convention  (II)  with  Respect  to  the  Laws  and  Customs  of  War  on  Land  and  its  Annex: 
Regulations  Respecting  the  Laws  and  Customs  of  War  on  Land,  The  Hague,  July  29,  1899, 
reprinted  in  THE  LAWS  OF  ARMED  CONFLICT,  supra  note  20,  at  60-82. 

55.  Supra  note  23. 

56.  BOTHE,  PARTSCH  &  SOLF,  supra  note  39,  at  203-04.  As  neither  Afghanistan  nor  the  United 
States  is  a  State  party  to  Additional  Protocol  I,  the  United  States  is  bound  by  this  article  only  to 
the  extent  that  it  codifies  customary  law. 

57.  Additional  Protocol  I,  supra  note  23,  art.  85,  f  3(f). 

58.  This  approach,  taken  by  the  United  States  in  Vietnam,  was  praised  by  the  International 
Committee  of  the  Red  Cross;  see  GEORGE  S.  PRUGH,  Law  AT  WAR:  VIETNAM  1964-1973,  at 
66-67(1975). 

This  legal  approach  is  not  new.  During  the  American  Civil  War  (1861-1865)  and  the 
Anglo-Boer  War  (1899-1902),  rebel  soldiers  captured  wearing  either  enemy  uniforms  or 
civilian  clothing  were  treated  as  prisoners  of  war  and  not  prosecuted  unless  their  actions 
involved  treachery.  See,  for  example,  SPAIGHT,  supra  note  29,  at  105-109.  Boer  commandos' 
wearing  of  portions  of  British  uniforms  produced  one  of  the  more  sensational  historic 
examples.  In  1902  three  Australian  officers  serving  with  the  Bushveldt  Carbineers  were  tried  by 
British  court-martial  for  murder  of  captured  Boers  and  murder  of  a  civilian.  Their  plea  with 
regard  to  the  murder  of  the  captured  Boers  was  one  of  superior  orders  on  the  basis  that  Lord 
Kitchener  had  ordered  the  execution  of  Boers  wearing  "British  khaki."  The  prosecution 
argued  that  Boer  punishment  was  authorized  only  if  the  captured  Boers  had  worn  British 
khaki  with  intent  to  deceive.  Convicted,  two  of  the  three — Captain  Harry  "Breaker"  Morant 
and  Lieutenant  Peter  Handcock — were  executed  by  British  firing  squad,  resulting  in  a 
controversy  between  Great  Britain  and  Australia  that  remains  to  this  day;  see,  for  example, 
Nick  Bleszynski,  Shoot  Straight,  You  Bastards!  (2002).  (This  title  is  based  upon 
Morant's  last  words.)  The  incident  was  the  basis  for  the  1979  Australian  movie  Breaker  Morant 
starring  Edward  Woodward  and  Bryan  Brown.  Its  screenplay  was  based  upon  KIT  DENTON, 
THE  BREAKER  (1973).  Subsequently,  Denton  authored  the  non-fiction  CLOSED  FILE:  THE 
True  Story  behind  the  Execution  of  Breaker  Morant  and  Peter  Handcock  (1983), 
less  sympathetic  to  Morant  than  THE  BREAKER.  Comprehensive,  authoritative  accounts  are 
contained  in  BREAKER  MORANT  AND  THE  BUSHVELDT  CARBINEERS  (Arthur  Davey  ed.,  1987) 

111 


Special  Forces*  Wear  of  Non-Standard  Uniforms 


and  William  woolmore,  The  Bushveldt  Carbineers  and  the  Pietersburg  Light 
Horse  (2000). 

59.  Toman,  supra  note  21,  at  287. 

60.  Headquarters,  Department  of  the  Army,  Office  of  The  Judge  Advocate  General,  DAJA-IA 
Memorandum  1985/7026  (23  Sept.  1985),  Subject:  Use  of  Expanding  Ammunition  by  US 
Military  Forces  in  Counterterrorist  Incidents.  Hollow  point  or  expanding  small  arms 
ammunition  is  prohibited  in  international  armed  conflict  by  Declaration  (IV,  3)  Concerning 
Expanding  Bullets,  The  Hague,  July  29,  1899,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR, 
supra  note  9,  at  64.  The  United  States  is  not  a  State  party  to  this  treaty,  but  has  taken  the  position 
that  it  will  adhere  to  its  terms  in  its  military  operations  in  international  armed  conflict  to  the 
extent  that  its  application  is  consistent  with  the  object  and  purpose  of  article  23(e)  of  the  Annex 
to  the  1907  Hague  Convention  IV,  supra  note  20,  which  prohibits  employment  of  "arms, 
projectiles,  or  material  calculated  to  cause  unnecessary  suffering."  See,  for  example, 
Headquarters,  Department  of  the  Army,  Office  of  The  Judge  Advocate  General,  DAJA-IO 
Memorandum  (May  19,  2000),  Subject:  5.56mm,  77-grain  Sierra  MatchKing™  Bullet;  Legal 
Review. 

6 1 .  For  example,  German  counterterrorist  Grenzschutzgruppe  9  (GSG-9)  and  British  Special  Air 
Service  soldiers  wore  civilian  clothing  in  the  October  18,  1977  hostage  rescue  of  Lufthansa  Flight 
181  in  Mogadishu,  Somalia;  BARRY  DAVIES,  FIRE  MAGIC  (1994),  photographs  between  82-83; 
Rolf  Tophoven,  GSG9:  The  German  Response  to  Terrorism  66-73  (1985).  The  SAS  wore 
non-standard,  fireproof  uniforms  during  its  hostage  rescue  operation  in  the  Iranian  Embassy  at 
Princes  Gate  in  London  on  May  6,  1980;  MICHAEL  PAUL  KENNEDY,  SOLDIER  T  SAS  (1989), 
which  contains  photographs  between  pages  1 16-117;  and  SIR  PETER  DE  LA  BlLLIERE,  LOOKING 
FOR  TROUBLE  319-337  (1994)  and  photographs  between  296-97.  Other  examples  are  provided 
in  the  State  practice  section  of  this  paper,  infra. 

62.  As  the  United  States  Supreme  Court  stated  in  The  Paquette  Habana,  175  U.S.  677  (1900): 
"International  law  is  part  of  our  law,  and  must  be  ascertained  and  administered  by  the  courts  of 
justice. . .  [W]here  there  is  no  treaty  and  no  controlling . . .  judicial  decision,  resort  must  be  had 
to  the  customs  and  usages  of  civilized  nations. . . ." 

63.  In  an  experience  similar  to  that  of  US  Special  Forces  in  Afghanistan  eighty-five  years  later, 
Lawrence  donned  indigenous  attire  at  the  request  of  the  Arab  forces  he  joined,  in  part  because 
the  only  soldiers  many  Arabs  had  seen  wearing  khaki  were  Turkish,  the  enemy.  Mindful  of  the 
death  of  Captain  William  Shakespear  the  previous  year  because  he  wore  his  British  uniform, 
Lawrence  obliged  his  hosts.  WILSON,  supra  note  5,  at  334-335. 

As  noted  by  James  Maloney  Spaight,  Colonel  Lawrence  was  not  alone  in  wearing  civilian 
clothing  on  combat  missions  during  World  War  I.  SPAIGHT,  supra  note  29,  at  273-74. 

64.  M.  R.  D.  Foot,  The  IRA  and  the  Origins  ofSOE,  in  WAR  AND  SOCIETY,  HISTORICAL  ESSAYS  IN 
HONOUR  AND  Memory  OF  J.  R.  WESTERN,  1928-1971,  at  57-69  (1973);  M.  R.  D.  FOOT, 
RESISTANCE:  EUROPEAN  RESISTANCE  TO  NAZISM  1940-45,  at  7  (1977). 

65.  These  two  publications  were  distributed  free  in  the  hundreds  of  thousands  throughout 
Europe  and  Southeast  Asia  during  World  War  II,  either  in  English  or  in  translated  form  in 
Burmese,  Chinese,  Czech,  Danish,  Dutch,  French,  German,  Greek,  Italian,  Malay,  Norwegian, 
Polish,  Serbo-Croat,  Slovak,  Slovene,  and  Thai.  M.  R.  D.  FOOT,  SOE:  THE  SPECIAL  OPERATIONS 
Executive  14(1984). 

The  association  of  British  thinking  with  Lawrence's  success,  the  Anglo-Boer  War,  the  Irish 
War,  and  the  Sino-Japanese  War  is  acknowledged  in  J0RGEN  FLESTRUP,  EUROPE  ABLAZE  38-39 
(1978);  FOOT,  SOE  IN  FRANCE,  supra  note  25,  at  2-4;  FOOT,  SOE:  THE  SPECIAL  OPERATIONS 

Executive,  supra  this  note,  at  1 1-15;  David  Stafford,  Britain  and  European  Resistance, 


112 


W.  Hays  Parks 

1940-1945,  at  19,  21  (1980);  PETER  WILKINSON  &  JOAN  BRIGHT  ASHLEY,  GUBBINS  &  SOE  34,  36 
(1993);  W.  J.  M.  MACKENZIE,  THE  SECRET  HISTORY  OF  SOE:  THE  SPECIAL  OPERATIONS 
EXECUTIVE,  1940-1945,  at  10,  38-39  (2000).  The  Mackenzie  volume,  the  official  "in-house" 
history  of  the  British  Special  Operations  Executive,  was  compiled  in  the  late  1940s.  It  remained 
classified  until  1998,  and  reached  open  publication  in  redacted  form  in  2000. 

66.  ELESTRUP,  supra  note  65,  at  36,  76,  198.  The  "Geneva  Conventions"  were  referred  to  as  a 
general  reference  to  the  law  of  war.  Churchill's  reference  to  the  "Geneva  Convention"  otherwise 
would  have  been  to  the  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Geneva,  July 
27,  1929,  reprinted  in  THE  LAWS  OF  ARMED  CONFLCITS,  supra  note  20,  at  421.  Article  1  thereof 
incorporated  by  reference  Article  1  of  the  Annex  to  the  1907  Hague  IV,  supra  note  20,  to  establish 
criteria  for  prisoner  of  war  status. 

67.  India  Office  Records  L/WS/ 1/1296,  as  cited  in  CHARLES  CRUICKSHANK,  SOE  OPERATIONS 
IN  THE  FAR  EAST  249  (1983). 

68.  STAFFORD,  supra  note  65,  at  68. 

69.  Presidential  Military  Order  (June  13,  1942),  Subject:  Office  of  Strategic  Services;  and  JCS  67 
(June  21, 1942),  Subject:  Office  of  Strategic  Services.  The  latter  stated  in  part  that  "Under  direction  of 
the  Joint  US  Chiefs  of  Staff . . .  [OSS  will]  prepare  plans  for  and . . .  execute  subversive  activities."  See 
also  R.  Harris  Smith,  OSS:  The  Secret  History  of  America's  First  Central  Intelligence 
Agency  (1972);  Edward  Hymoff,  The  OSS  in  World  War  II  (1972);  Richard  Dunlop, 
Behind  Japanese  Lines:  With  the  OSS  in  Burma  (1979);  William  Casey,  The  Secret  War 
Against  Hitler  (1988);  Roger  Hilsman,  American  Guerrilla  (1990);  Tom  Moon,  This  Grim 
and  Savage  Game  (1991);  Franklin  Lindsay,  Beacons  in  the  Night:  With  the  OSS  and 
Tito's  Partisans  in  Wartime  Yugoslavia  (1993);  Mills,  Mills  &  Brunner,  supra  note  5;  and 
Dan  Pinck,  Journey  to  Peking:  A  Secret  Agent  in  Wartime  China  (2003). 

70.  Colonel  Aaron  Bank,  in  a  paper  done  at  The  Presidio  in  1986  entitled  From  OSS  to  Green 
Beret  [on  file  with  author] ,  traces  the  OSS  to  US  Army  Special  Forces  lineage,  as  does  ALFRED  H. 
Paddock,  Jr.,  US  Army  Special  Warfare:  Its  Origins  (Rev.  ed.,  2002);  and  Ian  Sutherland, 
The  OSS  Operational  Groups:  Origin  of  Army  Special  Forces,  25  SPECIAL  WARFARE  2,3  (Summer 
2002).  As  indicated  in  the  main  text,  the  OSS  also  was  a  forerunner  of  the  Central  Intelligence 
Agency.  See  THOMAS  F.  TROY,  DONOVAN  AND  THE  CIA  (1981)  and  RICHARD  DUNLOP, 

Donovan:  America's  Master  Spy  (1982). 

71.  SOE/Special  Operations  (SO)  became  Special  Forces  Headquarters  on  May  1,  1944.  British 
SOE  and  US  OSS  components  in  the  United  Kingdom  were  amalgamated  into  the  Special  Projects 
Operation  Center  (SPOC)  on  May  23,  1944.  FOOT,  SOE  IN  FRANCE,  supra  note  25,  at  32. 

72.  PADDOCK,  supra  note  70,  at  28. 

73.  This  nationality  mix  became  more  the  exception  more  than  the  rule.  Of  the  101  Jedburgh 
teams  deployed  to  France,  only  ten  were  so  composed.  Sutherland,  supra  note  20,  at  13,  n.ll; 
Arthur  Layton  Funk,  Hidden  Ally:  The  French  Resistance,  Special  Operations,  and 
the  landings  in  southern  france,  1944,  at  141,  145  (1992). 

74.  robert  mattingly,  herringbone  cloak-gi  dagger:  marines  in  the  oss  140  (1989). 

Another  Marine,  Captain  Peter  J.  Ortiz,  followed  the  SOE  practice  of  parachuting  in  civilian 
clothes,  but  carried  his  Marine  Corps  uniform.  In  a  touch  of  bravado,  he  frequently  wore  it  in 
populated  areas,  thereby  alerting  the  Germans  and  forcing  his  team  to  remain  on  the  move.  FOOT, 
SOE  IN  FRANCE,  supra  note  25,  at  357.  On  one  occasion  Captain  Ortiz  entered  a  cafe  dressed  in  a 
long  (civilian)  cape.  Hearing  a  German  soldier  denigrate  Americans,  Ortiz  drew  his  weapons — two 
.45  pistols — then  threw  back  his  cape  to  reveal  his  Marine  uniform  before  opening  fire  on  the 
Germans.  MATTINGLY,  supra  at  116.  For  his  OSS  service,  Captain  Ortiz  was  awarded  two  Navy 
Crosses,  a  Legion  of  Merit,  made  a  member  of  the  Order  of  the  British  Empire,  and  received  the 


113 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


French  Croix  de  Guerre.  Captain  Peter  ).  Ortiz,  18  FORTITUDINE  14  (Marine  Corps  History  and 
Museums  Division  Historical  Bulletin),  XVIII,  2  (Fall  1988);  Benis  Frank,  "Colonel  Peter  Julien 
Ortiz,  US  Marine,"  unpublished  manuscript.  [On  file  with  author.] 

75.  Mills,  Mills  &  Brunner,  supra  note  5,  at  9;  Milton  E.  Miles,  A  Different  Kind  of  War 
274,371  (1967);PlNCK,swpranote69,at  134;  Dale  Andrade,  Every  Man  a  Tiger,  NAVAL  HISTORY 
(VII,  6,  Nov./Dec.  1994),  at  16-21. 

76.  The  French,  Dutch,  Belgian  and  Norwegian  governments-in-exile  expressed  concern 
over  collateral  civilian  damage  and  injuries  resulting  from  Allied  air  attacks.  HENRI  MICHEL, 
The  Shadow  War:  European  Resistance,  1939-1945,  at  212,  216-217  (1972).  As  it's 
author  notes,  "The  Allies  undoubtedly  committed  a  major  error  in  disregarding  such 
appeals  and  in  persisting  to  bomb  Europe — including  their  friends  in  the  Resistance."  Id.,  at 
2 1 7.  Sabotage  vis-a-vis  air  attacks  did  reduce  civilian  casualties.  An  example  is  the  successful 
SOE  attack  on  the  SCNF  (French  national  railways)  locomotive  works  at  Fives,  described  as 
one  of  the  largest  and  most  important  in  France,  on  June  27,  1943.  The  factory  was  in  a 
heavily  populated  area,  and  bombing  would  have  caused  many  collateral  civilian  casualties. 
Dressed  as  gendarmerie  with  the  raid  leader  disguised  as  Gestapo,  the  factory  was  attacked 
successfully  with  no  loss  of  life.  FOOT,  SOE  IN  FRANCE,  supra  note  25,  at  266.  Another 
example — the  Peugeot  factory  at  Sochaux  near  Montbeliard,  which  manufactured  tank 
turrets — was  taken  out  of  action  by  an  SOE-delivered  satchel  charge  after  an  earlier  Royal 
Air  Force  attack  missed  the  target  and  resulted  in  heavy  civilian  casualties  nearby.  FOOT, 
SOE:  The  Special  Operations  Executive,  supra  note  65,  at  219-220.  For  a  list  of  key  SOE 
industrial  sabotage,  see  FOOT,  SOE  IN  FRANCE,  supra  note  25,  at  505-5 1 7.  Benjamin  F.  Jones, 
The  Moon  is  Down:  The  Jedburghs  and  Support  for  the  French  Resistance,  40  (1999) 
(unpublished  MA  thesis,  University  of  Nebraska),  describes  the  Resistance  process  for 
infiltrating  and  attacking  these  targets.  [Copy  in  author's  files.]  FOOT,  SOE:  THE  SPECIAL 
OPERATIONS  EXECUTIVE,  supra  note  65,  at  505,  notes  that  the  industrial  sabotage  listed  was 
accomplished  with  a  total  of  approximately  3,000  pounds  of  explosive.  In  contrast,  a  single 
Royal  Air  Force  Lancaster  bomber  could  carry  14,000  pounds  of  bombs,  with  some  modified 
to  carry  the  22,000  pound  Grand  Slam  bomb.  SIR  CFIARLES  WEBSTER  &  NOBLE  FRANKLAND, 
The  Strategic  Air  Offensive  Against  Germany,  1939-1945,  Vol.  1,452-53  (1961).  For 
heavy  bomber  accuracy,  see  W.  Hays  Parks,  "Precision"  and  "Area"  Bombing:  Who  Did 
Which,  and  When?.,  18  JOURNAL  OF  STRATEGIC  STUDIES  147  (March  1995).  In  contrast  to 
SOE  accuracy  through  industrial  sabotage,  it  took  9,070  bombs  dropped  by  3,024  US  heavy 
bomber  aircraft  to  achieve  a  90%  probability  of  a  single  hit  on  a  target  60  by  100  feet  in  size. 
RICHARD  HALLION,  STORM  OVER  IRAQ  283,  Table  2  (1992). 

77.  Distinction  is  the  customary  international  law  obligation  of  parties  to  a  conflict  to  engage 
only  in  military  operations  the  effects  of  which  distinguish  between  the  civilian  population  (or 
individuals  not  taking  a  direct  part  in  hostilities),  and  combatant  forces  or  military  objectives, 
directing  the  application  of  force  solely  against  the  latter. 

The  principle  of  distinction  was  acknowledged  in  Articles  20-23  of  the  1863  US  Army 
General  Orders  No.  100  (the  Lieber  Code),  supra  note  20. 

78.  MACKENZIE,  supra  note  65,  at  599,  provides  the  following  report  from  a  French  railway 
engineer  who  reached  England  in  December  1943: 

Aircraft  attacks  on  Locomotives.  Since  the  beginning  of  1943  650  locomotives  have  been 
hit  (an  average  of  70  a  month)  out  of  10,200  in  service.  The  damage  is  very  slight  and  the 
average  period  of  repair  is  a  fortnight.  There  are  therefore  on  an  average  35  locomotives 
under  repair,  about  0.34%  of  the  total.  In  order  to  achieve  this  derisory  result  78 
railwaymen  have  been  killed  and  378  wounded. .  .  . 


114 


W.  Hays  Parks 

Sabotage  of  Locomotives.  40  locomotives  on  an  average  were  sabotaged  each  month,  but 
the  repairs  required  were  much  more  serious.  The  average  time  required  has  not  yet 
been  established.  But  if  we  take  it  as  six  months,  this  means  240  locomotives  under 
repair,  2.40%  of  the  total,  eight  times  as  many  as  those  damaged  by  aircraft. 

See  also  MICHEL,  supra  note  76,  at  215-216,  describing  the  SOE  attack  on  the  Vermork  heavy 

water  facility  in  Norway. 

79.  MILLS,  MILLS  &  BRUNNER,  supra  note  5,  at  45, 47, 186-203  describe  one  such  case  in  China. 
The  Yellow  River  Bridge  carrying  Ping-Han  railway  traffic  had  been  attacked  repeatedly  but 
unsuccessfully  by  the  311  (US)  Air  Force,  with  heavy  friendly  losses.  OSS  Operational  Team 
Jackal  severed  the  bridge  on  August  9,  1945. 

80.  As  a  matter  of  policy,  Great  Britain  prohibited  area  bombing  attacks  in  Nazi-occupied 
territories.  WEBSTER  &  FRANKLAND,  supra  note  76,  at  Vol.  I,  463;  ROBIN  NEILLANDS,  THE 
BOMBER  WAR,  288-289  (2001). 

81.  See,  for  example,  MICHEL,  supra  note  76,  at  289,  who  notes  that  in  Russia  in  the  summer 
of  1942,  it  was  necessary  for  Germany  to  employ  fifteen  divisions  in  counter-partisan 
operations. 

82.  FOOT,  SOE:  THE  SPECIAL  OPERATIONS  EXECUTIVE,  supra  note  65,  at  225-227;  STAFFORD,  supra 
note  65,  at  153-154;  HAESTRUP,  supra  note  65,  at  434-^135.  The  latter  notes  at  435,  for  example,  that: 
"On  D-Day  itself,  about  950  actions  were  carried  through,  out  of  a  planned  1,050,  and  German 
Divisions  which  relied  upon  railway  transport  were  delayed  in  their  movements  towards  the  [Allied] 
bridgehead  at  Normandy  for  up  to  two  weeks,  by  which  time  the  bridgehead  had  been  consolidated." 

83.  rTESTRUP,  supra  note  65,  at  373-374;  AlREY  NEAVE,  ESCAPE  ROOM  (1970);  M.  R.  D.  FOOT  & 
J.  M.  I.  LANGLEY,  MI9:  ESCAPE  AND  EVASION  1939-1945  (  1979). 

84.  For  example,  on  August  13, 1944,  a  US  Fifteenth  Air  Force  heavy  bomber  attack  on  a  bridge 
across  the  Drome  River  in  southern  France  missed  the  bridge  and  struck  the  town  of  Crest, 
killing  280  civilians,  wounding  200,  and  destroying  480  buildings  in  Crest.  OSS  Operational 
Group  ALICE  arrived  on  the  scene,  and  reported: 

Upon  arriving  they  were  greeted  by  a  very  downhearted  and  somewhat  belligerent 
group  of  people.  The  damage  consisted  of  destruction  of  about  one-fourth  of  the 
town. . . .  Lt.  Barnard  and  Lt.  Meeks  talked  with  the  people,  visited  the  hospital  and 
encouraged  the  people  that  the  bombing  was  a  mistake  and  would  not  occur  again. 

FUNK,  supra  note  73,  at  79,  153;  THE  ARMY  AIR  FORCES  IN  WORLD  WAR  II,  COMBAT 
CHRONOLOGY  1941-1945,  at  424  (Kit  C.  Carter  &  Robert  Mueller  eds.,  1973). 

85.  LTESTRUP,  supra  note  65,  at  9,  42 1-43 1 . 

86.  Id.  at  7.  At  42-43,  the  same  author  attributes  emphasis  on  partisan  warfare  to  several  factors, 
not  the  least  of  which  were  technical  advances  in  aircraft  and  radios  that  facilitated  partisan 
operations. 

87.  Supra  note  22. 

88.  Trial  of  Otto  Skorzeny  and  Others,  IX  LRTWC  (HMSO,  1949),  at  90-94.  SS- 
Obersturmbannfuhrer  (Lieutenant  Colonel)  Otto  Skorzeny  commanded  a  commando  mission 
during  the  last-ditch  December  1944  German  Ardennes  Offensive  to  infiltrate  US  lines  wearing  US 
Army  uniforms.  Eighteen  members  of  his  forty- four  man  team  were  captured  in  US  uniform;  each 
was  executed  as  a  spy.  Skorzeny  was  arrested  in  1947.  As  he  was  not  captured  in  flagrante  delicto,  he 
could  not  be  charged  as  a  spy.  Article  31,  Annex  to  1907  Hague  IV,  supra  note  20.  Nor,  however, 
was  he  charged  with  violation  of  Article  23(b)  of  that  Annex,  that  is,  "killing  treacherously." 

The  court  delivered  its  acquittal  without  explanation.  Popular  speculation  has  been  that  the 
court  accepted  Skorzeny's  claim  that  his  men  did  not  fight  in  US  uniforms.  Skorzeny's  defense 
was  less  that  he  and  his  men  did  not  fight  in  US  uniforms  nor  necessarily  tu  quoque  ("you  also"), 

115 


Special  Forces'  Wear  of  N on-Standard  Uniforms 


but  rather  based  upon  the  international  law  principle  of  rebus  sic  stantibus.  A  major  contribution 
to  Skorzeny's  acquittal  was  the  testimony  of  Royal  Air  Force  Wing  Commander  Forest  Yeo- 
Thomas,  a  highly  decorated  veteran  of  British  Special  Operations  Executive  service,  who 
acknowledged  that  British  Special  Operations  Executive  engaged  in  similar  conduct.  Other 
evidence  was  offered  of  similar  US,  Russian  and  British  operations.  OTTO  SKORZENY,  My 
COMMANDO  OPERATIONS  450-451  (1995)  and  James  J.  Weingartner,  Otto  Skorzeny  and  the 
Laws  of  War,  55  JOURNAL  OF  MILITARY  HISTORY  207,  217-18  (1991). 

89.  Supra  note  20. 

90.  Special  Forces'  wear  of  enemy  uniforms  is  more  common  than  generally  known.  For 
example,  summarizing  the  practice  of  the  German  special  operations  Brandenburg  Regiment, 
one  study  concluded:  "Throughout  the  period  1941-1943,  the  usual  operational  technique  was 
the  use  of  disguise  in  enemy  uniforms."  [Emphasis  in  original.]  Edward  N.  Luttwak,  Steven  L. 
Canby  &  David  L.  Thomas,  A  Systematic  Review  of  "Commando"  (Special)  Operations  1939— 
1980,11-188  (C8cL  Associates  unpublished  report).  [On  file  with  author.]  Efforts  at  summarizing 
pre-Protocol  I  law  as  to  the  wearing  of  enemy  uniforms  are  Valentine  Jobat  III,  Wearing  of  the 
Enemy's  Uniform,  35  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  435  (July  1941)  and  R.  C. 

Hingorani,  Prisoners  of  War  28-30  (1963). 

Article  39,  paragraph  2  of  Additional  Protocol  I,  supra  note  23,  states:  "It  is  prohibited  to  make 
use  of  the  flags  or  military  emblems,  insignia  or  uniforms  of  adverse  Parties  while  engaging  in  attacks 
or  in  order  to  shield,  favor,  protect  or  impede  military  operations."  This  new  law  has  not  been  tested. 
In  addition  to  the  list,  infra,  there  is  considerable  historical  evidence  to  the  contrary,  including  since 
1977.  See  Parks,  supra  note  43,  at  77  n.  259.  The  list  that  follows  shows  that  this  provision  is  new  law 
rather  than  a  codification  of  customary  practice.  Canada  took  a  reservation  to  Article  39(2)  upon  it's 
ratification  of  the  Protocol.  The  Canadian  reservation,  available  at  http://www.icrc.org/ihl.nsf/ 
677558c021ecf2cl41256739003e6370/172fTec04adc80f2cl256402003fb314?OpenDocument,  states: 
"Article  39 — Emblems  of  nationality  (Enemy  uniforms).  The  Government  of  Canada  does  not 
intend  to  be  bound  by  the  prohibitions  contained  in  paragraph  2  of  Article  39  to  make  use  of 
military  emblems,  insignia  or  uniforms  of  adverse  parties  in  order  to  shield,  favor,  protect  or 
impede  military  operations." 

One  may  speculate  on  why  the  Diplomatic  Conference  supported  this  provision.  Part  of  the 
reason  is  that  State  practice  was  neither  acknowledged  nor  well  known.  Aside  from  personal 
accounts  and  the  official  works  of  M.  R.  D.  Foot  and  Charles  Cruickshank  cited  herein,  OSS 
records  were  not  declassified  until  1985,  and  the  official  SOE  history  (MACKENZIE,  SECRET 
HISTORY  OF  SOE,  supra  note  65)  was  not  declassified  until  1998.  Speaking  from  this  author's 
experience,  a  "wall"  between  special  operations  forces  and  the  negotiating  process  existed  that 
does  not  exist  within  the  US  government  today.  While  US  negotiation  guidance  was  coordinated 
within  the  Department  of  Defense,  in  all  likelihood  it  did  not  reach  the  closed-door,  Cold  War 
special  operations  environment  that  prevailed  at  that  time.  Even  if  it  had,  it  is  entirely  probable 
that  the  decision  was  taken  not  to  comment.  The  author's  work  with  counterparts  in  other 
governments  suggests  that  this  wall  persists  to  this  day  within  many  governments. 

91.  See  also  supra  note  42. 

92.  FOOT,  SOE:  THE  SPECIAL  OPERATIONS  EXECUTIVE,  supra  note  65,  at  98;  DOUGLAS  DODDS- 
PARKER,  SETTING  EUROPE  ABLAZE  85,  124  (1983).  This  pessimism  was  confirmed  in  a  number 
of  cases.  Four  uniformed  British  soldiers  captured  during  a  failed  attack  on  the  German  heavy 
water  plant  at  Vermork,  Norway,  were  executed  in  compliance  with  this  order  on  November  20, 
1942.  Richard  Wiggan,  Operation  Freshman:  The  Rjukan  Heavy  Water  Raid  1942,  at 
81-82  (1986).  During  the  night  of  March  22,  1994,  a  uniformed  US  Army  special  operations 
team  landed  along  the  Italian  coast  about  60  miles  north  of  La  Spezia.  Captured  two  days  later, 


116 


W.  Hays  Parks 

they  were  executed  on  the  orders  of  General  Anton  Dostler  who,  in  turn,  was  following  Hitler's 
Fiihrerbefehl  (Commando  Order)  of  October  18,  1942,  which  ordered  all  SOF  to  be  executed, 
even  if  captured  in  uniform.  Dostler  was  tried  and  convicted  by  a  US  Military  Commission  8-12 
October  1945,  sentenced  to  death,  and  executed.  In  re  Dostler,  supra  note  20,  (cited  in  n.31). 

The  background  to  Hitler's  Fiihrerbefehl  is  contained  in  FOOT,  SOE  IN  FRANCE,  supra  note 
25,  at  186-187.  The  Fiihrerbefehl  declared: 

All  enemies  on  so-called  commando  missions  in  Europe  or  Africa  challenged  by 
German  troops,  even  if  they  are  to  all  appearances  soldiers  in  uniforms  or  demolition 
troops,  whether  armed  or  unarmed,  in  battle  or  in  flight,  are  to  be  slaughtered  to  the  last 
man.  .  .  .  Even  if  these  individuals  when  found  should  apparently  be  prepared  to  give 
themselves  up,  no  pardon  is  to  be  granted  them. 

At  a  minimum,  the  Commando  Order  violated  Article  23(d)  (prohibiting  denial  of  quarter), 
of  the  Annex  to  the  1907  Hague  Convention  IV,  supra  note  23.  The  Commando  Order  is 
contained  in  its  entirety  in  United  States  v.  Wilhelm  von  Leeb,  et  al.  ("High  Command  Case"), 
XI TWC  (GPO,  1951),  at  73-75,  525-527,  with  additional  implementing  orders  at  76-110.  The 
Court's  judgment  that  the  Fiihrerbefehl  was  "criminal  on  its  face"  is  at  527.  The  Fiihrerbefehl 
also  is  discussed  in  1 1  International  Military  Tribunal  (1946),  at  26,  and  15  International  Military 
Tribunal  (1946),  at  296-306,  403^110,  the  trial  of  major  German  war  criminals. 

In  Operation  Cold  Comfort,  two  members  of  a  British  SAS  team  captured  in  uniform  in  Italy  in 
February  1945  were  executed.  ROY  FARRAN,  OPERATION  TOMBOLA  7-8  (1960);  JOHN  STRAWSON, 
A  HISTORY  OF  THE  S.A.S.  REGIMENT  275  (1984).  Similarly,  German  Security  Forces  (SD)  leader 
Josef  Keiffer  was  tried  and  executed  for  the  murder  of  captured  uniformed  British  Special  Air 
Service  troops.  FOOT,  SOE  IN  FRANCE,  supra  note  25,  at  305.  See  also  Trial  of  Karl  Buck,  supra  note 
20,  at  39-44,  and  Trial  of  Karl  Adam  Golkel  and  Thirteen  Others,  V  LRTWC,  at  45-53  (murder  of 
captured  uniformed  SAS  pursuant  to  Fiihrerbefehl);  Trial  of  Generaloberst  Nickolaus  Von 
Falkenhorst,  XI  LRTWC  (HMSO,  1949),  at  18-30,  and  VI WCT  (William  Hodge,  1949)  (murder 
of  captured  uniformed  British  commandoes  pursuant  to  Fiihrerbefehl);  and  Trial  of  Werner 
Rohde  and  Eight  Others,  V  LRTWC,  at  54-59  (murder  of  captured  female  SOE). 

The  Japanese  issued  similar  orders  directing  the  execution  of  aviators  and/or  SOF.  In  1944 
members  of  a  combined  British-Australian  SOF  team  captured  in  uniform  were  executed  or 
died  as  a  result  of  illegal  medical  experimentation,  pursuant  to  such  an  order.  As  a  result  of 
postwar  proceedings,  Japanese  General  Dihihara  was  hanged,  while  other  participants  received 
lesser  sentences.   LYNETTE  RAMSAT  SILVER,  THE  HEROES  OF  RlMAU:  UNRAVELLING  THE 

Mystery  of  One  of  World  War  H's  Most  Daring  Raids  225  (1990).  See  also  The  Jaluit  Atoll 
Case,  1  LRTWC  (HMSO,  1947),  at  71-80,  and  Trial  of  Lieutenant  General  Shigeru  Sawada  and 
three  others,  V  LRTWC  (HMSO,  1948),  at  1-24  (execution/murder  of  three  captured  US 
airmen);  Trial  of  Lieutenant  General  Harukei  Isayama  and  Seven  Others,  V  LRTWC  (HMSO, 
1948),  at  60-65  (murder  of  captured  US  aircrew). 

93.  Supra  note  15. 

94.  For  example,  a  heavily-armed  Navy  SEAL  attired  in  a  wet  suit,  fins  and  face  mask  would  be 
distinctive  from  the  civilian  population  except,  perhaps,  in  the  annual  zany  Bay-to-Breakers  foot 
race  in  San  Francisco. 

95.  Examples  contained  in  this  Table  are  documented  in  the  Chicago  Journal  of  International 
Law  version  of  this  paper,  supra  note  1. 

96.  Where  captured  SOE  personnel  were  executed  without  trial,  those  responsible  were 
prosecuted  following  World  War  II.  See,  for  example,  Trial  of  Wolfgang  Zeuss,  et  al.  (The 
Natzweiler  Trial),  V  WCT  (HMSO,  1949). 


117 


Special  Forces'  Wear  of  Non-Standard  Uniforms 


97.  Ex  parte  Quirin,  supra  note  22.  The  eight  German  saboteurs  were  civilians.  They  wore 
German  naval  uniforms  when  they  boarded  the  submarine,  and  again  at  the  time  of  their 
landings  in  the  United  States.  After  landing,  they  changed  into  civilian  clothing.  The  uniforms 
were  sent  back  to  the  U-boat.  FISHER,  supra  note  22,  at  23,  26,  35. 

98.  A  detailed  and  fascinating  account  is  contained  in  LESLIE  C.  GREEN,  ESSAYS  ON  THE  MODERN 
LAW  OF  War  41-434  (2d  ed.  1999)  based  upon  Professor  Green's  participation  in  the  post-war 
trials.  Later  in  his  long  and  distinguished  career,  Professor  Green  was  the  Charles  H.  Stockton 
Professor  of  International  Law  at  the  Naval  War  College.  See  INTERNATIONAL  LAW  ACROSS  THE 
Conflict  Spectrum:  Essays  in  Honour  of  Professor  L.  C.  Green  (Michael  N.  Schmitt  ed., 
2001)  (Vol.  75,  US  Naval  War  College  International  Law  Studies). 

99.  Stanislaus  Krofan  &  Another  v.  Public  Prosecutor,  [1967]  1  Malayan  L  J  133  Fed  Ct  Cr  App 
1966  (Singapore). 

100.  Osman  bin  Haji  Mohammed  Ali  and  Another  Appellant  v.  The  Public,  Privy  Council,  3  All. 
E.R.  488,  3  W.L.R.  1076,  112  S.J.  802  (1968). 

101.  The  Medal  of  Honor  citation  of  Sergeant  Drew  D.  Dix,  USA,  reads  as  follows: 

Learning  that  a  nurse  was  trapped  in  a  house  near  the  center  of  the  city,  Staff  Sergeant 
Dix  organized  a  relief  force,  successfully  rescued  the  nurse,  and  returned  her  to  the 
safety  of  the  Tactical  Operations  Center.  Being  informed  of  other  trapped  civilians 
within  the  city,  Staff  Sergeant  Dix  voluntarily  led  another  force  to  rescue  eight  civilian 
employees  located  in  a  building  which  was  under  heavy  mortar  and  small  arms  fire. 
Staff  Sergeant  Dix  then  returned  to  the  center  of  the  city.  Upon  approaching  a  building, 
he  was  subjected  to  intense  automatic  rifle  and  machine  gun  fire  from  an  unknown 
number  of  Viet  Cong.  He  personally  assaulted  the  building,  killing  six  Viet  Cong,  and 
rescuing  two  Filipinos  {sic).  The  following  day  Staff  Sergeant  Dix,  still  on  his  own 
volition,  assembled  a  twenty-man  force  and  under  intense  enemy  fire  cleared  the  Viet 
Cong  out  of  the  hotel,  theater,  and  other  adjacent  buildings  within  the  city.  During  this 
portion  of  the  attack,  Army  Republic  of  Vietnam  soldiers  inspired  by  the  heroism  and 
success  of  Staff  Sergeant  Dix,  rallied  and  commenced  firing  upon  the  Viet  Cong.  Staff 
Sergeant  Dix  captured  twenty  prisoners,  including  a  high-ranking  Viet  Cong  official. 
He  then  attacked  enemy  troops  who  had  entered  the  residence  of  the  Deputy  Province 
Chief  and  was  successful  in  rescuing  the  official's  wife  and  children.  Staff  Sergeant  Dix's 
personal  heroic  actions  resulted  in  fourteen  Viet  Cong  killed  in  action  and  possibly 
twenty-five  more,  the  capture  of  twenty  prisoners,  fifteen  weapons,  and  the  rescue  of 
fourteen  United  States  and  free  world  civilians.  The  heroism  of  Staff  Sergeant  Dix  was 
in  the  highest  tradition  and  reflects  great  credit  upon  the  US  Army. 
Citation  available  at  http://www.army.mil/cmh-pg/mohviet.htm  (under  Drew  Dennis  Dix). 

102.  This  was  the  famous  rescue  by  Lieutenant  Thomas  R.  Norris,  USN,  of  Lieutenant  Colonel 
Iceal  E.  Hambleton,  USAF,  commonly  referred  to  as  Bat  21,  the  designation  of  the  B66  in 
which  Lieutenant  Colonel  Hambleton  served  as  navigator.  (Lieutenant  Colonel  Hambleton 
actually  was  Bat  21B.).  See  DARREL  D.  WHITCOMB,  THE  RESCUE  OF  BAT  21  (1998).  The 
Vietnamese  mentioned  in  Norris'  citation  was  Nguyen  Van  Kiet,  a  South  Vietnamese 
frogman.  For  his  actions,  he  became  the  only  Vietnamese  in  the  war  to  be  awarded  the  US  Navy 
Cross.  T.L.  BOSILJEVAC,  SEALS:  UDT/SEAL  OPERATIONS  IN  VIETNAM  213  (1990).  The  1988 
movie  Bat-21  starring  Danny  Glover  and  Gene  Hackman  errs  in  depicting  this  as  solely  an  Air 
Force  rescue.  Lieutenant  Norris'  Medal  of  Honor  citation  clearly  acknowledges  his  fighting  in 
civilian  clothing,  and  the  US  Government's  approval  of  his  actions: 

Lieutenant  Norris  completed  an  unprecedented  ground  rescue  of  two  downed  pilots 
deep  within  heavily  controlled  enemy  territory  in  QuangTri  Province.  Lieutenant  Norris, 


118 


W.  Hays  Parks 

on  the  night  of  10  April,  led  a  five-man  patrol  through  2,000  meters  of  heavily  controlled 
enemy  territory,  located  one  of  the  downed  pilots  at  daybreak,  and  returned  to  the 
Forward  Operating  Base  (FOB).  On  1 1  April,  Lieutenant  Norris  led  a  three-man  team  on 
two  unsuccessful  rescue  attempts  for  the  second  pilot.  On  the  afternoon  of  the  12' ,  a 
forward  air  controller  located  the  pilot  and  notified  Lieutenant  Norris.  Dressed  in 
fisherman  disguises  and  using  a  sampan,  Lieutenant  Norris  and  one  Vietnamese  traveled 
through  the  night  and  found  the  injured  pilot  at  dawn.  Covering  the  pilot  with  bamboo 
and  vegetation,  they  began  the  return  journey,  successfully  evading  a  North  Vietnamese 
patrol.  Approaching  the  FOB,  they  came  under  heavy  machinegun  fire.  Lieutenant 
Norris  called  in  an  air  strike  which  provided  suppression  fire  and  a  smokescreen,  allowing 
the  rescue  party  to  reach  the  FOB.  By  his  outstanding  display  of  decisive  leadership, 
undaunted  courage,  and  selfless  dedication  in  the  face  of  extreme  danger,  Lieutenant 
Norris  enhanced  the  finest  traditions  of  the  US  Naval  Service  [Emphasis  added.] 
Citation  available  at  http://www.army.mil/cmh-pg/mohviet2.htm  (under  Thomas  R.  Norris). 


119 


VII 


Strategic  Targeting  and  International  Law: 

The  Ambiguity  of  Law  Meets  the  Reality 

of  a  Single-Superpower  World 

Jeffrey  K.  Walker1 

Strategic  Targeting  in  Recent  Conflicts 

My  charge  is  to  address  strategic  targeting  and  the  law  of  war.  And  isn't  this 
an  ironic  moment  in  history  for  such  a  discussion?  For  just  at  the  moment 
when  the  evolution  of  the  technology  of  aerial  bombardment  allows  for  the  fulfill- 
ment of  Billy  Mitchell's  vision,  we  stand  on  the  verge  of  jettisoning  his  underlying 
theory  as  anachronistic  and  redundant.  For  60  years,  airmen  have  bemoaned  that  if 
they  but  had  pinpoint  accurate,  survivable,  and  reliable  all-weather  day/night  weap- 
ons, the  vision  of  the  strategic  bombardment  gurus  would  inevitably  and  inexorably 
be  proven  correct.  We  now  have  the  technology,  but  no  longer  the  need. 

As  is  surely  evident  in  Afghanistan  and  Iraq,  strategic  bombardment  just  isn't 
the  main  event  anymore.  Kosovo  was  the  seeming  fruition  of  the  airman's  years  of 
toil — a  campaign  limited  from  the  outset  to  a  purely  air  operation  and  therefore  by 
necessity  heavily  focused  on  strategic  targets.  The  problem  is  that  air  power  didn't 
win  the  Kosovo  campaign.  The  bombing  showed  little  effect  on  Serbian  ground 
forces  and  the  will  of  the  Serb  regime  showed  little  signs  of  cracking  in  the  face  of 
around-the-clock  bombing — in  fact,  just  the  opposite.  And  ultimately,  the  precipi- 
tating event  that  caused  Slobodan  Milosevic  to  fold  his  tents  was  the  very  public 


Strategic  Targeting  and  International  Law 


withdrawal  of  the  support — brought  about  by  diplomacy  more  than  by  bombs — 
of  his  long-time  patron,  Russia. 

So  in  Kosovo,  airmen  hit  the  apparent  high-water  mark  for  strategic  bombing 
theory,  but  at  the  same  time  many  failed  to  notice  that  the  plug  in  the  bottom  of  the 
doctrinal  bathtub  had  already  been  pulled.  Which  brings  us  to  Afghanistan.  The 
Afghan  campaign  brought  unreconstructed  airmen  face-to-face  with  a  horrible 
problem:  how  do  you  draw  Colonel  Jack  Warden's  concentric  circles2  when  there's 
nothing  attackable  to  draw  them  around?  What  do  you  do  when  strategic  bombing 
doctrine  meets  an  enemy  that  would  like  nothing  more  than  to  be  bombed  back  a 
few  centuries?  To  the  Taliban,  there  wasn't  much  of  value  we  could  bomb  in  Af- 
ghanistan, since  they  placed  little  or  no  value  on  the  technological,  industrial,  or 
economic  trappings  so  dear  to  Western  notions  of  modernity  and  progress.  Al 
Qaeda  traveled  light  and  could  easily  disperse  and  regroup  after  air  attacks.  So  the 
air  war  in  Afghanistan  took  a  decidedly  different  turn  for  air  planners.  What  the  air 
arm  of  Operation  Enduring  Freedom  became  was  that  much-maligned  role  as- 
signed them  by  Heinz  Guderian,  father  of  the  blitzkrieg.  Air  forces  became  what  air 
doctrine  purists  most  dreaded — "flying  artillery"  for  the  very  thin,  very  light,  and 
very  agile  special  operations  ground  forces  supporting  whatever  indigenous  forces 
could  be  allied  with  us. 

Iraq  seemed  to  offer  airmen  a  reprieve  from  this  ignominy,  but  it  didn't  quite 
pan  out  that  way.  Operation  Iraqi  Freedom  became  something  of  a  laboratory  for 
the  future  non-strategic  uses  of  air  power,  with  five  distinct  and  geographically  de- 
fined air  sub-campaigns. 

First,  with  the  quick  capitulation  of  all  but  a  few  pockets  of  resistance  in  the 
southern  quarter  of  Iraq,  air  forces  assumed  the  role  of  airborne  SWAT  teams  for 
what  was  essentially  peacekeeping  work.  Second,  there  was  the  Scud  hunt  and  bor- 
der patrol  of  the  Western  desert.  Like  in  Afghanistan,  this  was  a  special  operations 
show,  with  air  power  acting  as  an  airborne  surgeon — precise  applications  of  mea- 
sured amounts  of  force  against  emerging  or  fleeting  targets  with  tight  control  by 
ground  forces  with  eyes  on  target  or  from  low  and  slow  tactical  drones.  Third,  there 
was  the  Kurdish  northern  front.  Reduced  to  a  wait-and-see  role  by  Turkish  skit- 
tishness  and  the  lightness  of  US  forces  in  the  area,  the  role  of  air  power  became 
mostly  that  of  airborne  cavalry,  providing  rescue  as  needed  and  exploitation  of  en- 
emy missteps  when  possible.  Fourth,  there  was  the  Big  Show — the  dual  armored 
thrusts  up  the  river  valleys.  This  was  classic  close  air  support  and  what  used  to  be 
called  battlefield  air  interdiction.  In  this  area  of  operations,  air  power  was  undeni- 
ably cast  in  the  role  of  airborne  artillery — and  to  very  great  effect. 

Finally,  there  were  bombs  over  Baghdad.  This  was  the  classic  strategic  hammer 
role  for  airpower  wistfully  dreamt  of  in  its  idealized  form  from  Giulio  Douhet  to 

122 


Jeffrey  K.  Walker 


Jack  Warden.  However,  this  piece  of  Iraqi  Freedom  was,  in  comparison  to  Opera- 
tion Desert  Storm  in  1991,  a  very  small  sideshow.  Why  was  this?  Unlike  Afghani- 
stan, Iraq  was  a  modern  country  with  a  government  and  population  that  had 
grown  accustomed  to  the  infrastructure  of  a  modern  economy — electrical  power, 
effective  transportation,  good  telecommunications,  urban  living — so  there  were 
certainly  strategic  targets  available.  However,  Iraqi  Freedom  presented  in  clear  fo- 
cus the  second  tectonic  shift  that  if  not  exactly  sounding  the  death  knell  for  strate- 
gic bombardment  has  served  notice  that  airmen  better  start  rethinking  strategic 
doctrine.  The  primary  reason  why  the  strategic  bombing  campaign  over  Baghdad 
was  not  more  vigorous  was  because  from  the  beginning  of  planning,  everyone  real- 
ized that  it  would  be  foolhardy  to  break  any  more  china  than  absolutely  necessary 
since  we  would  be  expected  to  fix  most  everything  we  broke.  And  high  on  the  list  of 
the  plates  we  wanted  to  remain  unbroken  was  the  good  will  of  the  Iraqi  populace. 

Military  Objectives  and  Collateral  Injury  in  a  Non-Strategic  World 

So  where  does  all  this  get  us  in  terms  of  the  law  of  war?  On  the  one  hand,  the  air 
campaign  is  fragmenting  and  over-specializing,  with  the  result  that  fewer  and 
fewer  targets  are  now  planned  through  the  target  planning  cycle  and  air  tasking  or- 
der (ATO).  As  a  result,  the  opportunity  for  systematic  review  and  analysis  for  col- 
lateral damage  effects  and  law  of  war  compliance  is  rapidly  fading.  In  the  Iraq  air 
campaign,  less  than  20%  of  all  targets  struck  ever  appeared  on  an  ATO.  This  means 
that  the  business  of  operations  lawyers  is  getting  more  complicated  with  less  time 
and  more  uncertainty.  Lawyers  will  need  to  think  outside  the  "JAG  signs  the  legal 
review  line  on  the  target  folder"  box — those  days  are  mostly  gone.  And  there  is  an 
enormous  amount  of  work  being  done  right  now  on  strategy  tools,  collaborative 
software,  and  other  air  campaign  planning  tools  that  offer  many  opportunities  for 
innovative  new  approaches  to  target  review  and  law  of  war  compliance  in  air  cam- 
paigns. The  legal  community  must  take  advantage  of  these  opportunities  to  de- 
velop future  procedures. 

On  the  other  hand,  the  legal  equation  is  being  somewhat  simplified  in  one  im- 
portant respect.  Since  the  strategic  bombing  campaigns  of  World  War  II,  one  of  the 
messiest  and  most  intractable  questions  to  dog  the  law  of  war  has  been  the  issue  of 
dual- civilian/military  use  targets.  Unfortunately,  modern  industrial  warfare  relies 
upon  essentially  the  same  infrastructure  as  the  modern  industrial  economy — rail- 
roads, ports,  marshalling  yards,  highways,  telecommunications,  and,  above  all, 
electricity  and  oil.  Therefore,  striking  strategic  targets  for  maximum  impact  upon 
the  enemy's  war-making  capacity  by  necessity  impacts  greatly  upon  the  enemy's  ci- 
vilian population.  In  addition,  much  of  this  dual-use  infrastructure  tends  to  cluster 

123 


Strategic  Targeting  and  International  Law 


in  and  around  urban  areas — for  completely  logical  reasons — and  therefore  strik- 
ing these  targets  in  densely  populated  areas  heightens  the  risk  of  civilian  collateral 
injury  and  damage.  More  accurate  weaponry  helps  to  reduce  collateral  injury  from 
misdirected  bombs,  but  the  blast,  heat,  and  fragmentation  from  a  perfectly  placed 
bomb  cannot  be  completely  contained,  so  adjoining  structures  and  nearby  persons 
cannot  be  completely  spared  from  collateral  effects.  With  the  eclipse  of  the  impor- 
tance of  "going  downtown"  and  of  the  traditional  infrastructure-centric  strategic 
bombing  in  general,  we  will  be  granted  some  relief  from  these  thorny  legal  prob- 
lems. It  is  a  pity  that  after  having  finally  gotten  some  serious  tools  for  analyzing  dif- 
ficult urban  and  infrastructure  targets — I  am  thinking  of  Bug  Splat,3  JMEM  multi- 
tiered  analysis,4  and  the  ready  availability  of  sophisticated  computer  modeling  of 
weapons  effects — the  need  for  them  is  declining. 

Expanding  the  Notion  of  Lawful  Targets? 

However,  the  frustration  borne  from  the  slow  realization  of  how  ineffective  or  un- 
important strategic  bombing  was  in  Kosovo  and  Afghanistan  and  Iraq  has  caused 
some  airmen  to  suggest  that  the  problem  lies  not  with  the  limitations  of  strategic 
bombing  itself,  but  rather  with  the  artificial  restrictions  of  international  law.  Why 
should  the  will  of  the  enemy's  population  not  be  a  lawful  target?  Some  have  sug- 
gested that  the  parameters  of  lawful  objectives  should  be  expanded  to  include  ob- 
jectives that  if  struck  would  discomfort  or  distress  the  civilian  population.  (To  be 
fair,  everyone  stops  well  short  of  advocating  directly  killing  civilians.)  For  example, 
why  not  target  symbols  of  cultural  pride  like  the  national  soccer  stadium?  Why  not 
acknowledge  that  making  life  difficult  for  the  civilian  population  in  the  enemy  cap- 
ital is  a  lawful  objective  in  that  it  will  undermine  political  support  for  the  enemy 
leadership  and  sap  their  desire  to  continue  the  war?  Of  course,  this  was  one  of  the 
publicly  articulated — and  more  regrettable — reasons  why  the  electrical  grids  in 
Baghdad  in  1991  and  in  Belgrade  in  1999  were  attacked  early  in  those  bombing 
campaigns.  Some  commanders  from  Desert  Storm  have  stated  at  various  times 
that  one  goal  of  the  initial  wave  of  bombing  over  Baghdad  was  to  impress  upon  the 
Iraqi  people  that  they  were  now  at  war — most  obviously  evidenced  by  the  lights  go- 
ing out  for  both  the  Iraqi  military  and  civilians  all  over  the  city. 

There  is,  of  course,  a  problem  with  this  expansive  approach.  First,  it  is  arguably 
illegal.  Second,  it  should  remain  illegal.  There  are  several  reasons  why. 

First,  targeting  the  will  of  the  people — explicitly  illegal  but  tacitly  accepted  as  at 
least  a  collateral  purpose  of  nearly  every  bombing  campaign — doesn't  work.  Never 
has  and  probably  never  will.  Killing,  wounding,  or  displacing  civilians  just  makes 
them  angry  and  generally  more  resolved  to  resist — it's  a  tragic-comic  aspect  of 

124 


Jeffrey  K.  Walker 


human  nature  that  the  more  we  get  hurt  the  more  we  are  willing  to  get  hurt  just  to 
spite  the  one  who's  doing  the  hurting.  Even  carpet  bombing  and  fire  bombing  Ger- 
man and  Japanese  cities  didn't  really  break  the  resolve  of  the  civilian  populations. 
We  saw  no  evidence  of  this  in  Serbia  in  1999  either. 

Second,  even  a  weak  declarative  norm  is  still  better  than  nothing  in  that  we  at 
least  default  to  not  attacking  civilians.  Eliminating  or  even  reversing  that  default 
could  easily  put  us  on  the  infamous  slippery  slope  and  become  a  race  to  the  bot- 
tom. If  selecting  targets  to  make  the  enemy  population  uncomfortable  is  lawful,  the 
parameters  of  just  what  constitutes  discomfort  will  inevitably  expand.  If  the  goal  is 
to  sap  the  population's  will  without  directly  killing  them — our  consciences  would 
hardly  allow  that — then  why  not  attack  irrigation  systems  or  grain  elevators  or 
hospitals  or  mosques?  Some  commentators  have  even  suggested  this  is  exactly 
what  the  United  States  did  in  the  first  Gulf  War  by  hard  killing  the  electrical  genera- 
tion systems  in  Iraq,  resulting  in  prolonged  famine.  We  have  already  engaged  in  ill- 
advised  expansions  of  the  definition  of  "military  object"  even  under  the  current 
rules — television  and  radio  stations  and  the  infamous  "crony  targets"  in  Serbia  are 
good  examples.  It  would  be  disastrous  were  we  completely  to  jettison  the  presump- 
tion that  civilians — and  the  will  of  the  people — are  immune  from  direct  attack. 

Third,  allowing  direct  targeting  of  the  enemy  civilian  population  in  any  way  as- 
sumes some  sort  of  collective  responsibility  on  the  part  of  the  enemy  population. 
This  completely  ignores  the  nature  of  totalitarian  or  authoritarian  regimes.  A  total- 
itarian regime  exercising  a  stern  monopoly  over  the  levers  of  power  can  stay  in 
place  for  a  very,  very  long  time  with  little  or  no  direct  support  from  the  population. 
In  such  States,  the  opportunities  for  dissent  and  resistance  are  generally  very  lim- 
ited. In  fact,  the  very  regimes  we  most  want  to  remove  are  generally  those  with  the 
least  direct  popular  support — the  Ba'ath  regime  in  Iraq  and  the  communist  regime 
in  North  Korea  spring  to  mind.  (Recall  that  even  in  the  raucously  democratic 
United  States,  the  first  Bush  "regime"  initially  enjoyed  the  support  of  a  bit  less  than 
half  of  the  52%  of  the  population  that  even  bothered  to  vote.)  Deliberately  target- 
ing the  will  of  the  civilian  population  in  these  circumstances  constitutes  nothing 
more  than  collective  punishment  and  random  reprisal. 

The  final  and  most  significant  reason  why  we  must  avoid  loosening  the  declara- 
tive norm  against  directly  targeting  the  civilian  population  is  that  we  surely  don't 
want  any  further  weakening  of  the  admittedly  less- than- effective  existing  legal 
standards  protecting  civilians  from  the  effects  of  armed  attack.  It  is  the  sad  history 
of  the  documents  that  compromise  the  law  of  war  that  they  were  written  predomi- 
nantly by  soldiers  (or  diplomatic  surrogates  afraid  to  offend  soldiers)  to  the  over- 
whelming benefit  of  soldiers. 


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Strategic  Targeting  and  International  Law 


Let  us  take  the  example  of  an  important  law  of  war  concept,  proportionality. 
The  law  of  war  states  "indiscriminate  attacks  are  prohibited"  and  that  an  indis- 
criminate attack  includes  one  which  "may  be  expected  to  cause  incidental  loss  of 
civilian  life,  injury  to  civilians,  damage  to  civilian  objects,  or  a  combination 
thereof,  which  would  be  excessive  in  relation  to  the  concrete  and  direct  military  ad- 
vantage anticipated."5  Thus  says  Additional  Protocol  I  on  the  rule  of  proportion- 
ality in  the  attack. 

The  problem  of  course  is  that  the  rule  implicitly  accepts  that  it  is  the  attacker 
who  decides  what  is  and  is  not  excessive  injury,  damage,  or  death.  And  the  determi- 
nation of  excessiveness  turns  on  the  equally  ambiguous  term  "military  advan- 
tage"— or  as  further  obfuscated  in  US  practice,  military  advantage  "when  viewed 
in  the  context  of  the  campaign  as  a  whole,"6  whatever  on  Earth  that  means.  Except 
in  the  most  obvious  or  ludicrous  marginal  cases,  this  studied  ambiguity  yields  a 
systemic  default  to  rendering  any  military  advantage  thrown  into  the  balance  by 
the  attacker  as  not  excessive  in  relation  to  resulting  civilian  injury  and  death. 

The  baby  elephant  in  the  room  that  most  of  us  choose  to  ignore  is  the  inherent 
and  completely  irreconcilable  subjectivity  built  into  this  so-called  balancing  test. 
I  vividly  recall  reading  the  Kosovo  post-conflict  report  by  Human  Rights  Watch7 
while  working  in  the  Pentagon.  This  thorough  and  well-substantiated  report  esti- 
mated that  500  civilians  had  been  killed  during  the  78-day  bombing  campaign. 
The  reaction  of  my  colleagues  and  me  was  "not  bad."  The  reaction  of  Human 
Rights  Watch  was  substantially  different.  In  the  report  prepared  for  the  Interna- 
tional Criminal  Tribunal  for  the  former  Yugoslovia  prosecutor  in  response  to  al- 
legations of  NATO  war  crimes  in  the  Kosovo  air  war,  the  rapporteur  stated, 

The  main  problem  with  the  principle  of  proportionality  is  not  whether  or  not  it  exists 
but  what  it  means  and  how  it  is  to  be  applied  ....  For  example,  bombing  a  refugee 
camp  is  obviously  prohibited  if  its  only  military  significance  is  that  people  in  the  camp 
are  knitting  socks  for  soldiers.  Conversely,  an  air  strike  on  an  ammunition  dump 
should  not  be  prohibited  merely  because  a  farmer  is  plowing  a  field  in  the  area. 
Unfortunately,  most  applications  of  the  principle  of  proportionality  are  not  quite  so 
clear  cut  ....  It  is  unlikely  that  a  human  rights  lawyer  and  an  experienced  combat 
commander  would  assign  the  same  relative  values  to  military  advantage  and  to  injury 

to  noncombatants It  is  suggested  that  the  determination  of  relative  values  must  be 

that  of  the  "reasonable  military  commander."8 

So  we  are  stuck  with  a  rule  of  paramount  importance  that  rests  on  comparing 
two  incomparable  concepts,  purports  to  subjectively  quantify  the  basically  un- 
quantifiable  notion  of  "military  advantage,"  and  defers  all  decision-making  to  the 
party  in  interest  with  the  least  personal  and  most  amorphous  stake  (soldiers)  at  the 


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enormous  expense  of  the  other  party  in  interest  with  the  greatest  and  very  tangible 
personal  stake  (civilians) .  To  quote  the  immortal  Yul  Brenner,  "Is  a  puzzlement."9 

Sadly,  I  have  come  to  believe  this  was  a  knowing  and  deliberate  process  all  along. 
The  agenda  worked  by  the  major  powers — led  by  the  interests  of  their  military  es- 
tablishments— during  the  negotiation  of  all  the  major  law  of  war  conventions  was 
to  find  a  way  to  present  a  humane  face  to  the  world  while  avoiding  any  meaningful 
restrictions  on  the  use  of  military  force.  It  is  poignantly  ironic  to  note  that  the  most 
historically  effective  niches  in  the  law  of  war  explicitly  protect  soldiers,  not  civil- 
ians— bans  on  dum-dum  bullets,  glass  projectiles,  poison  gas,  and  provisions  con- 
cerning the  protection  of  the  wounded  and  prisoners  of  war. 

As  a  result  of  this  studied  creation  of  irreconcilable  ambiguity  into  the  critical 
concept  of  proportionality,  it  will  remain  little  more  than  an  aspirational  norm. 
The  very  ambiguity  of  the  rule  has  the  perverse  effect  of  offering  significantly  less 
protection  to  the  innocent  victims  than  to  those  who  enjoy  a  monopoly  on  the  use 
of  force.  Until  such  time  as  the  law  explicitly  reapportions  the  greater  risk  of  injury 
and  death — as  a  normative  legal  concept  and  a  moral  prescription — to  those  who 
wield  armed  force  and  have  voluntarily  assumed  the  risks  attendant  upon  its  use, 
civilians  will  continue  to  receive  scant  protection  from  the  laws  of  war. 

Why  Does  It  Matter  Who  Bears  the  Risk? 

Why,  it  may  well  be  asked,  am  I  distressed  by  the  notion  that  the  law  of  war  dispro- 
portionately benefits  soldiers  at  the  expense  of  civilians?  Quite  simply,  because  one 
has  willingly  assumed  the  risk  of  death,  injury,  or  capture  and  the  other  has  not. 
This  requires  a  little  explanation. 

As  the  great  British  military  historian  John  Keegan  persuasively  argues,  since  the 
advent  of  means  and  methods  of  warfare  that  allow  the  application  of  force  at  a  dis- 
tance— basically  gunpowder  weapons — the  mark  of  a  great  and  valorous  military 
officer  has  ceased  being  the  ability  to  inflict  injury  on  the  enemy  with  his  strong 
right  arm.  Rather,  with  distant  means  of  killing,  the  mark  of  the  courageous  officer 
has  become  an  indifference  to  personal  safety,  a  scorn  for  injury  or  death.  This 
reached  its  most  ludicrous  extreme  in  World  War  I,  when  young  lieutenants  fresh 
from  Oxford  or  Cambridge  went  over  the  top  with  nothing  but  an  umbrella  or  rid- 
ing crop  or  soccer  ball.  However,  this  is  a  very  clear  manifestation  of  the  most  fun- 
damental characteristic  of  the  profession  of  arms — the  willingness  to  engage  in 
self-sacrifice  up  to  and  including  death.  Military  men  and  women  often  say,  "It's 
not  about  the  money."  The  military  profession  has  traditionally  and  still  does  fancy 
itself  a  unique  calling.  It  must  not  be  all  about  the  money,  otherwise  you  could  sim- 
ply contract  out  for  infantry  to  the  lowest  bidder. 

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As  the  United  States  continues  to  engage  in  conflict  marked  by  its  vast  technologi- 
cal superiority  and  with  its  leadership's  aversion  to  friendly  casualties — almost  al- 
ways at  the  expense  of  higher  civilian  casualties — what  will  it  mean  to  this  culture  of 
self-sacrifice,  to  the  ultimate  defining  characteristic  of  the  profession  of  arms?  Mi- 
chael Ignatieff,  in  a  New  Yorker  article  soon  after  the  end  of  the  Kosovo  air  campaign 
in  1999,  asserted,  "It  was  a  virtual  war,  fought  in  video  teleconference  rooms,  using 
target  folders  flashed  on  screens  ...  [it]  never  reached  deep  into  the  psyche  of  a  peo- 
ple .. .  [did]  not  demand  blood  and  sacrifice."10  Even  the  wars  of  the  post-9/1 1  era 
have  demanded  little  of  the  American  people — indeed,  immediately  after  9/11  the 
President's  call  for  "blood  and  sacrifice"  consisted  for  most  people  of  shoe  removal 
in  airports  and  an  enjoinder  to  spend  more  money  shopping.  Hardly  the  stuff  that 
will  render  us  the  next  "Greatest  Generation." 

Assumption  of  the  Risk 

So  soldiers  have  willingly  assumed  the  heightened  risk  of  death  or  injury  as 
members  of  the  profession  of  arms.  This  is  not  to  say  that  I  am  all-over  warm  and 
fuzzy  about  every  civilian.  Just  as  soldiers  assume  risk,  there  has  long  been  a  tacit 
but  universal  acceptance  within  the  law  of  war  regime  that  in  some  circumstances 
civilians  also  assume  a  heightened  risk.  For  example,  although  the  blanket  prohibi- 
tion against  making  civilians  the  direct  object  of  attack  still  applies,  there  are  few 
who  would  argue  that  the  killing  of  war  workers  busily  assembling  tanks  inside  a 
munitions  factory  is  a  war  crime.  Likewise,  the  torpedoing  of  civilian  merchant 
vessels  laden  with  war  materiel  is  not  a  war  crime.  On  the  other  hand,  few  would  be 
so  bold  as  to  assert  that  night  area  bombing  of  the  housing  estate  where  the  tank 
factory  workers  sleep  is  lawful — although  soldiers  asleep  in  their  barracks  do  bear 
this  risk.  The  difference  is  that  the  law  of  war  tacitly  acknowledges  that  civilians 
willingly  present  within  a  lawful  military  target  assume  the  risk  of  being  attacked. 
The  concept  seems  to  be  that  although  one  should  not  go  out  of  your  way  to  kill 
them,  this  category  of  civilian  quite  simply  weighs  quite  lightly  in  the  proportional- 
ity equation  when  attacking  an  otherwise  lawful  military  target.  Again,  I  can  find 
no  explicit  statement  of  this  in  law — it  just  seems  to  be  a  generally  accepted  princi- 
ple of  application. 

Voluntary  human  shields  are  another  category  of  persons  that  assume  the  risk  of 
death  or  injury  by  willfully  placing  themselves  in  harms  way  at  a  lawful  military  ob- 
jective. Of  course,  the  law  is  only  the  law,  and  as  we  saw  in  Kosovo,  policy  consider- 
ations can  render  immune  from  attack  otherwise  lawful  targets  protected  by 
volunteer  civilians. 


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Perhaps  of  more  moment  for  US  forces,  contractor  or  civilian  employees  ac- 
companying US  forces  in  the  field  logically  fall  into  the  category  of  assumers  of  the 
risk.  The  law  of  war  hints  at  this  in  1949  Geneva  Convention  III11  by  extending 
some  protections  to  these  civilians  if  they  fall  into  the  hands  of  an  enemy  force. 
Both  defense  contractors  and  the  government  have  tacitly  acknowledged  this  by 
paying  significantly  higher  wages  to  such  civilians.  As  more  and  more  functions 
heretofore  performed  by  uniformed  soldiers  are  contracted  out — and  lest  anyone 
be  uninformed  on  this  subject,  huge  swathes  of  traditional  military  functions  are 
being  contracted — the  very  notion  of  what  constitutes  a  combatant  versus  a  civil- 
ian is  being  thoroughly  muddled. 

The  Issue  of  Impunity 

One  final  factor — and  this  is  a  big  one — is  rapidly  undermining  what  we  all  were 
taught  as  the  positivist  legal  regime  regulating  armed  conflict.  From  the  earliest 
conferences  in  St.  Petersburg,  there  was  a  very  rough  equivalency  of  threat  amongst 
the  major  powers  who  created  the  law  of  war  treaty  regime.  Be  it  the  Great  Powers 
of  the  19th  century,  Democracies  versus  Fascists  in  the  inter-war  years,  or  the  US 
bloc  versus  the  Soviet  bloc  of  the  Cold  War,  there  was  always  a  rough  equivalency 
in  the  damage  each  could  do  to  the  other.  This  more  or  less  balanced  military  threat 
produced  a  mutuality  of  self-interest  amongst  the  major  players  who  most  influ- 
enced the  development  of  the  law  of  war  treaties.  If  all  your  potential  enemies  have 
the  wherewithal  to  do  to  you  what  you  can  do  to  them — be  it  take  prisoners  or  stra- 
tegically bomb  or  sink  merchant  shipping — then  everyone  faced  a  somewhat  tar- 
nished Golden  Rule:  don't  do  some  things  unto  others  or  they  just  might  do  the 
same  unto  you.  And  this  was  until  recently  the  positivistic  enforcement  mecha- 
nism— admittedly  less  than  totally  effective — that  underpinned  whatever  success 
the  law  of  war  regime  may  have  enjoyed  in  theory  and  application. 

But  with  the  emergence  of  the  United  States  as  the  last  superpower  left  standing, 
we  are  faced  with  a  significant  threat  to  this  implicit  enforcement  mechanism — 
impunity.  Now  I  don't  intend  to  use  this  word  with  any  of  its  negative  connota- 
tions. I  mean  plain  old  impunity — the  ability  to  act  without  constraint.  This  is  after 
all  what  the  Holy  Grail  of  air  campaign  planners,  air  supremacy,  means — the  abil- 
ity to  act  with  impunity  over  the  entire  area  of  operations.  And  in  a  military 
sense — although  not  a  political  one — the  United  States  and  its  usual  allies  find 
themselves  in  this  position.  Militarily,  we  can  pretty  much  do  whatever  we  want 
with  little  reciprocal  risk  of  an  enemy  doing  much  back  at  us. 

That  said,  any  positivist  notions — and  you  will  notice  that  I  don't  count  the 
marginally  effective  international  criminal  tribunals  in  this  mix — of  the  laws  of  war 

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Strategic  Targeting  and  International  Law 


are  basically  gone.  They  have  become  what  the  more  cynical  among  us  have  always 
suspected — merely  an  admirable  collection  of  declaratory  and  aspirational  norma- 
tive statements,  to  be  obeyed  or  not  as  the  exigencies  of  the  situation  dictate. 

Where  Do  We  Go  from  Here? 

So  I  have  painted  us  into  a  corner — the  law  is  inherently  ambiguous,  is  more 
aspirational  than  effective,  and  was  never  really  intended  to  protect  civilians  much 
in  the  first  place.  With  one  enormous  military  power  now  ruling  the  international 
roost,  the  self-interest  and  reciprocity  of  threat  that  served  to  shore  up  what  com- 
pliance there  was  has  evaporated.  But  the  law  of  war  regime  as  it  exists  today  is  all 
we've  got.  Can  we  do  any  better  with  it? 

I'm  not  really  sure,  although  I'm  willing  to  give  it  some  serious  thought  and 
hope  the  readers  will  as  well.  The  law  of  proportionality  is  hardly  unique  in  its  in- 
herent ambiguity — a  lot  of  domestic  law  falls  into  the  same  category.  If  you're  a 
full-blown  critical  legal  studies  disciple,  all  law  is  inherently  ambiguous  because 
law  is  a  creature  of  language  and  all  language  is  inherently  ambiguous.  And  in  in- 
ternational law  we  get  the  added  confounding  factor  of  equally  authentic  texts  in 
several  languages.  What's  a  lawyer  to  do? 

Step  one  may  be  to  simply  acknowledge  that  we  need  to  make  clear  policy 
choices  rather  than  tortured  legal  justifications  as  to  the  allocation  of  risks  from  the 
use  of  military  force.  As  lawyers,  we  need  to  stop  hiding  behind  pseudo-positivist 
"black  letter"  arguments — there  really  is  very  little  if  any  truly  black  letter  law  in 
this  area.  And  in  modern  democracies,  there  is  already  a  mechanism  for  making 
these  policy-driven  allocations  of  risk — political  control  of  the  military.  Much  as 
soldiers  grind  their  teeth  at  what  is  often  perceived  as  niggling  interference  from 
the  political  masters,  this  is  the  most  effective  way  to  allocate  risk  in  an  open  and 
coherent  fashion.  And  as  professional  soldiers  doing  the  dirty  work  of  democracy, 
you  might  as  well  stop  carping  about  it  and  acknowledge  this  is  not  only  the  way 
things  are,  it  is  the  way  things  should  be. 

Notes 

1 .  Lieutenant  Colonel  Walker  is  a  retired  US  Air  Force  judge  advocate. 

2.  John  A.  Warden,  The  Enemy  as  a  System,  AlRPOWER  JOURNAL  40  (Spring  1995).  Colonel 
Warden's  five  rings  are  ( 1 )  the  command  ring — the  enemy  command  structure,  which  may  be 
a  civilian  at  the  seat  of  government  or  a  military  commander;  (2)  the  enemy's  organic 
essentials — those  facilities  or  processes  without  which  the  State  cannot  maintain  itself,  e.g.,  in 
many  instances,  electricity  and  petroleum  products;  (3)  the  infrastructure  ring  containing  the 
enemy  State's  transportation  system,  including  rail  lines,  airlines,  highways,  bridges,  airfields, 


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Jeffrey  K.  Walker 


ports,  and  other  similar  systems;  (4)  the  enemy  State's  population;  and  (5)  the  enemy's  fielded 
military  forces. 

3.  A  mathematically  based  software  program  that  predicts  a  munition's  fragmentation  pattern 
based  on  the  angle  and  direction  at  which  the  munition  is  falling. 

4.  The  Joint  Munitions  Effectiveness  Manuals  provide  methodologies  to  permit  standardized 
comparison  of  weapon  effectiveness  against  a  variety  of  targets. 

5.  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  art.  57.2(b),  June  8, 1977, 1 125  U.N.T.S. 
3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  422  (Adam  Roberts  &  Richard  Guelff  eds.,  3d 
ed.  2000). 

6.  See  Chairman,  Joint  Chiefs  of  Staff,  Standing  Rules  of  Engagement  for  U.S.  Forces,  CJCS  Inst. 
3121.01A  (series). 

7.  Human  Rights  Watch,  Civilian  Deaths  in  the  NATO  Air  Campaign  (Feb.  2000),  available  at 
www.hrw.org/reports/2000/nato/. 

8.  Final  Report  to  the  Prosecutor  by  the  Committee  Established  to  Review  the  NATO  Bombing 
Campaign  Against  the  Federal  Republic  of  Yugoslavia,  39  INTERNATIONAL  LEGAL  MATERIALS 
1257,  f  48  (2000),  available  fltwww.un.org/icty/pressreal/nato061300.htm. 

9.  Yul  Brenner  in  Oscar  Hammerstein  and  Richard  Rogers'  The  King  and  J  (1951). 

10.  Michael  Ignatieff,  The  Virtual  Commander:  How  NATO  Invented  a  New  Kind  of  War,  THE 
New  Yorker,  Aug.  2, 1999,  at  31. 

11.  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12,  1949,  6  U.S.T. 
3316,  75  U.N.T.S.  135,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  244. 


131 


VIII 


Air  Power,  Accuracy, 

and  the  Law  of  Targeting: 

Why  No  Brave  New  World? 


Adam  Roberts1 


Jeffrey  Walker's  paper  on  "Strategic  Targeting  and  International  Law"  is  clear, 
punchy,  and  splendidly  heretical.  I  agree  with  much  of  it.  It  is  indeed  useful  to 
focus  a  discussion  of  targeting  on  one  dimension  of  warfare.  Today  it  is  undoubt- 
edly air  power  that  is  the  driver  of  revolutionary  changes  in  the  conduct  of  war,  and 
that  presents  some  of  the  most  difficult  and  challenging  problems  as  regards  the 
implementation  or  adaptation  of  existing  legal  norms.  As  Mr.  Walker  notes,  for 
generations  airmen  have  yearned  for  accurate,  survivable  and  reliable  all-weather 
day/night  weapons.  Now  they  have  got  them.  He  and  I  agree  that  this  situation  is 
strewn  with  hazards,  and  that  there  is  no  brave  new  world  of  precise  and  legally  un- 
controversial  bombing.  I  suspect  that  this  situation  reminds  both  of  us  of  that  an- 
cient and  clever  curse:  "May  your  wishes  be  granted." 

However,  as  will  be  seen  from  what  follows,  I  disagree  with  his  main  conclusions. 
Specifically,  I  disagree  with  him  about  why,  despite  improvements  in  accuracy,  the 
role  of  bombing  in  contemporary  warfare  remains  costly  in  civilian  lives  and  de- 
struction. In  addition,  I  do  not  share  his  extreme  pessimism  about  the  role  of  the  laws 
of  war  in  imposing  some  limits  on  bombing.  As  regards  his  proposed  solution — 


Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

more  effective  political  control  of  the  military — I  am  all  in  favor  of  it,  but  for  reasons 
indicated  below  it  does  not  solve  the  particular  problems  he  identifies. 

In  responding  to  his  paper  I  will  focus  on  four  main  issues  relating  to  air  power. 
First,  the  significance  of  the  technical  developments  that  have  made  possible  a 
greater  degree  of  accuracy  and  discrimination  in  bombing  than  in  earlier  eras.  Sec- 
ond, the  provisions  of  the  laws  of  war  that  relate  to  targeting,  and  the  ways  in  which 
they  have  shaped  and  reinforced  the  tendency  toward  discrimination  in  bombing. 
Third,  certain  problems  that  remain,  that  help  to  explain  why  air  bombardment  is 
far  from  achieving  perfect  precision  and  discrimination.  Fourth,  the  special  diffi- 
culties that  have  arisen  regarding  the  obligations  on  the  defender  to  distinguish 
military  activities  from  civilian  objects.  Finally  I  will  attempt  to  draw  some 
conclusions. 

In  each  of  the  sections  below,  my  discussion  of  the  issues,  like  Mr.  Walker's,  will 
focus  on  four  wars: 

•  The  War  over  Kuwait  (1990-1) 

•  The  War  over  Kosovo  (1999) 

•  The  War  in  Afghanistan  (200 1-) 

•  The  War  in  Iraq  (2003-)2 

These  wars  have  certain  similarities.  In  all  of  them  there  have  been  United  States- 
led  coalitions — though  the  coalitions  have  involved  combat  forces  from  progres- 
sively fewer  countries.3  In  all,  the  US-led  forces  had  more  or  less  complete  command 
of  the  air,  and  used  air  power  (including  precision-guided  munitions)  extensively.  In 
all,  they  were  fighting  against  one  essentially  third-world  State  that  was  more  or  less 
isolated  diplomatically  and  had  been  subject  to  economic  sanctions.  In  all,  there  was 
at  some  stage  a  civil  war  or  regional  rebellion  ongoing  in  the  country  concerned,  as 
well  as  an  international  war.  In  short,  these  were  all  thoroughly  unequal  contests. 

The  bombing  in  these  wars  has  been  a  mixture  of  strategic  (intended  to  bring 
about  change  on  its  own)  and  tactical  (in  support  of  ground  operations).  Mr. 
Walker  says  of  strategic  bombardment:  "We  now  have  the  technology  but  no  lon- 
ger the  need."4  If  one  interprets  this  to  mean,  as  much  of  his  paper  suggests,  that  the 
actual  uses  of  air  power  in  recent  wars  have  been  very  different  from  any  of  the  clas- 
sic visions  such  as  those  of  Giulio  Douhet  and  Billy  Mitchell,  I  have  no  problem 
with  his  statement.  However,  if  he  takes  this  to  suggest  that  air  power  today  is  a 
would-be  solution  in  search  of  a  non-existent  problem,  then  while  I  sympathize 
with  the  spirit  of  his  remarks  I  have  difficulty  in  accepting  the  analysis.  He  is  right 
that  there  is  a  danger  of  using  air  power,  as  a  default  option  in  situations  where,  for 
whatever  reason,  it  is  not  appropriate.  However,  for  better  or  for  worse,  some  situ- 
ations arise  in  which  the  application  of  air  power  is  capable  of  achieving  significant 

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results — usually  in  combination  with  other  armed  forces,  whether  on  the  ground 
or  at  sea.  Further,  we  live  in  an  age  in  which  the  implementation  of  international 
norms,  including  resolutions  of  the  UN  Security  Council,  sometimes  depends  on  a 
capacity  for  strategic  coercion,  i.e.,  the  use  of  military  and  other  pressures  against  a 
State  to  secure  its  compliance  with  specific  demands:  in  this  process,  the  threat  and 
actuality  of  air  power  may  have  some  part  to  play. 

As  in  Mr.  Walker's  paper  itself,  the  main  focus  here  is  on  the  laws  of  war  (jus  in 
hello)  aspects  of  these  wars.  The  focus  is  not  on  the  lawfulness  of  the  resort  to  force 
(jus  ad  helium).  This  subject,  while  in  principle  entirely  separate,  is  not  always  so  in 
practice.  As  regards  the  use  of  air  power,  there  is  particular  cause  for  concern  about 
a  possible  overlap  between  jus  ad  helium  and  jus  in  hello.  If  air  power  were  believed 
(even  if  erroneously)  to  be  a  precision  surgical  instrument  that  can  be  applied  at 
low  risk  to  the  United  States  and  with  a  strong  likelihood  of  success,  that  could  in- 
cline the  government  to  use  it  in  circumstances  in  which,  in  earlier  periods,  it 
would  have  hesitated  to  use  force.  In  actual  cases,  of  course,  other  considerations 
have  entered  in  to  decisions  to  use  force.  In  the  first  three  wars  under  consider- 
ation, the  resort  to  force  by  the  US-led  coalitions  was  widely  viewed  as  justifiable  in 
the  circumstances,  the  most  contentious  of  these  three  being  Kosovo.  The  Iraq  War 
in  2003  was  and  remains  much  more  problematical.  In  this  case  the  United  States 
and  partners  relied  on  one  principal  legal  justification  for  the  action:  implementa- 
tion of  earlier  UN  Security  Council  resolutions.  This  justification  for  the  resort  to 
force  in  Iraq  was  based  on  serious  considerations,  but  its  application  was  under- 
mined by  several  difficulties:  flawed  assessments  of  Iraqi  capabilities,  a  question- 
able denigration  of  the  ongoing  inspection  process,  failure  to  secure  explicit 
Security  Council  support,  and  a  failure  to  plan  for  the  occupation  of  Iraq.5  How- 
ever, in  principle  any  problems  that  may  exist  under  the  jus  ad  helium  regarding  the 
international  legal  validity  of  an  intervention  do  not  affect  consideration  of  the  jus 
in  hello  aspects. 

Because  air  power  in  general,  and  bombing  in  particular,  played  a  significant 
part  in  these  four  wars,  it  does  not  follow  that  they  are  necessarily  keys  to  victory 
in  all  modern  wars.  For  example,  in  the  1982  Falklands  War  the  United  Kingdom 
used  air  power  in  a  much  more  restricted  and  limited  way  than  in  these  four  more 
recent  wars.  A  major  bombing  campaign  against  Argentina  and  its  armed  forces 
would  have  been  hard  to  sustain,  of  limited  relevance  to  the  situation,  and  highly 
questionable  on  moral  and  political  grounds.  Such  considerations  will  apply  to 
many  future  campaigns.  The  extensive  use  of  air  power  is  particularly  question- 
able in  pacification  operations,  for  example  in  support  of  a  friendly  government 
or  an  occupation  regime,  because  it  risks  antagonizing  the  very  people  whose 
support  or  neutrality  is  needed.  In  these  and  other  cases,  the  reasons  for  avoiding 

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Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

the  use  of  air  power,  or  for  exercising  discrimination  in  how  it  is  used,  are  not 
narrowly  legal  in  character:  they  also  involve  considerations  of  interest,  common 
sense  and  prudence.  As  Mr.  Walker  notes,  everyone  involved  in  planning  the 
bombing  of  Baghdad  in  2003  "realized  that  it  would  be  foolhardy  to  break  any 
more  china  than  absolutely  necessary."6  Taking  all  these  reasons  into  account, 
Mr.  Walker's  skepticism  about  the  use  and  utility  of  strategic  bombardment, 
even  if  presented  in  broad-brush  terms,  is  a  healthy  antidote  to  Douhet-like  ex- 
cesses in  devotion  to  bombing. 

The  Impact  of  Technical  Developments 

Since  the  Second  World  War  there  has  been  a  slow  evolution  of  the  means  of  deliv- 
ery of  so-called  conventional  weapons.  The  United  States  has  been  at  the  forefront 
of  this  process.  At  the  same  time,  concern  about  the  indiscriminate  use  of  air 
power,  including  by  the  United  States,  has  endured.  The  US  bombing  of  North 
Vietnam  from  1964  to  1972,  and  also  the  use  of  air  power  within  South  Vietnam, 
reflected  certain  improvements  in  technology  but  also  reinforced  this  concern. 
That  was  one  basis  for  the  development  of  the  law  of  targeting  contained  in  1977 
Geneva  Protocol  I. 

At  first  glance,  the  dramatic  improvement  in  the  accuracy  of  air-delivered  weap- 
ons would  appear  to  have  improved  the  prospects  of  certain  air  campaigns  being 
conducted  in  a  manner  that  is  compatible  with  long-established  law-of-war  princi- 
ples, especially  the  principle  of  discrimination.7  It  has  even  encouraged  the  hope 
that,  at  least  in  some  instances,  air  war  can  comply  with  the  more  specific  rules 
about  targeting  contained  in  Protocol  I.  Indeed,  engineers  could  be  seen  as  having 
contributed  at  least  as  much  as  international  lawyers  to  improving  the  possibilities 
of  discrimination  in  the  use  of  air  power. 

The  principle  that  the  use  of  air-delivered  weaponry  should  be  discriminate  was 
frequently  repeated  in  all  four  wars,  particularly  by  senior  US  government  and  mil- 
itary decision-makers.  The  remarkable  improvement  in  accuracy  compared  to  ear- 
lier eras  was  widely  noted  in  the  1991  Iraq  War.  Subsequent  US  bombing 
campaigns,  right  up  to  the  2003  Iraq  War,  reflected  both  quantitative  and  qualita- 
tive developments  in  the  use  of  accurate  air-delivered  weapons.  The  way  in  which 
many  citizens  of  Baghdad  went  about  their  business  in  the  midst  of  a  major  bomb- 
ing campaign  in  March- April  2003  indicates  that  they  seemed  to  have  some  under- 
standing of  the  US  attempt  to  apply  the  principle  of  discrimination. 

In  all  four  wars,  civilian  casualties  among  the  population  of  the  territory  be- 
ing bombed  were  significantly  lower  than  many  forecasts  made  before  the  com- 
mencement of  military  hostilities.  For  example,  in  the  United  Kingdom  the 

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"Stop  the  War  Coalition"  published  an  advertisement  in  March  2003  in  which 
it  stated:  "We  want  to  stop  a  war  which  will  result  in  an  estimated  50,000  civil- 
ian deaths,  500,000  injured  and  2  million  refugees."8  In  the  subsequent  Iraq 
War — at  least  in  its  intense  phase  in  March-April  2003 — casualties  and  refugee 
movements  were,  by  any  count,  far  below  these  levels.  This  is  not  to  say  that 
they  were  not  worryingly  high,  and  cause  for  major  concern.9  In  summary,  I 
agree  with  Mr.  Walker  that  civilian  casualties  in  these  wars,  and  in  particular  ca- 
sualties of  bombing,  have  been  comparatively  low  by  historical  standards;  and  I 
also  agree  with  him  that  this  fact  does  not  change  everything.  Thus  there  is  a 
need  to  explore  why,  despite  developments  in  the  law  and  in  weaponry,  civilian 
damage  and  casualties  have  continued.  These  themes  are  explored  in  the  next 
two  sections. 

The  Law  on  Targeting 

Probably  the  law's  most  important  contribution  in  these  four  wars  has  been  the 
part  it  has  played  in  the  larger  overall  process  of  improving  discrimination  in 
targeting,  especially  targeting  of  airborne  weapons.  Since  at  least  1868  the  laws 
of  war  have  required  that  only  armed  forces  and  military  targets  should  be  at- 
tacked. This  apparently  simple  rule  is  in  fact  hugely  problematical.  It  has  now 
been  given  much  greater  specificity  in  the  rules  on  targeting  contained  in  1977 
Geneva  Protocol  I. 

On  this  matter,  my  emphasis  differs  from  Mr.  Walker's.  He  is  a  skeptic  about  the 
value  of  the  rules  on  targeting.  There  is  still,  as  he  says,  an  "inherent  and  completely 
irreconcilable  subjectivity"10  built  in  to  the  balancing  test  when  decisions  have  to 
be  made  as  between  military  advantage  and  protection  of  civilian  life.  Human 
Rights  Watch  sees  certain  issues  one  way,  while  the  Pentagon  has  a  different  spin 
on  them.  He  even  implies  that  there  may  have  been  a  deliberate  and  ongoing  collu- 
sive process  by  which  we  have  ended  up  with  a  body  of  combat  law  that  seeks  only 
ostensibly  to  balance  the  two  "incomparable  concepts"11  of  military  advantage  and 
civilian  protection.  As  he  puts  it: 

Sadly,  I  have  come  to  believe  this  was  a  knowing  and  deliberate  process  all  along.  The 
agenda  worked  by  the  major  powers — led  by  the  interests  of  their  military 
establishments — during  the  negotiation  of  all  the  major  law  of  war  conventions  was  to 
find  a  way  to  present  a  humane  face  to  the  world  while  avoiding  any  meaningful 
restriction  on  the  use  of  military  force.  It  is  poignantly  ironic  to  note  that  the  most 
historically  effective  niches  in  the  law  of  war  explicitly  protect  soldiers,  not  civilians — 
bans  on  dum-dum  bullets,  glass  projectiles,  poison  gas,  and  provisions  concerning  the 
protection  of  the  wounded  and  prisoners  of  war.12 


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Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

This  is  quite  an  accusation,  but  it  neglects  a  basic  fact.  It  is  in  the  very  nature  of 
things  that  combat  is  extremely  hard  to  regulate;  and  therefore  that  some  of  the 
more  effective  parts  of  the  laws  of  war  should  be  those  that  deal,  not  with  combat  as 
such,  but  with  the  treatment  of  individuals  who  are  hors  de  combat  or  have  fallen 
into  the  hands  of  the  adversary.  Against  this  background,  it  is  remarkable  that  there 
is  any  significant  body  of  law  at  all  that  regulates  combat.  The  most  detailed  rules  of 
this  type  are  those  in  1977  Geneva  Protocol  I.  The  fact  that  the  United  States  has  se- 
rious disagreements  with  parts  of  this  treaty,  which  it  has  not  ratified,  does  not  ne- 
gate the  importance  of  these  rules. 

Mr.  Walker's  analysis  is  short  of  concrete  examples.  He  is  not  to  be  blamed 
for  this.  To  prove  beyond  doubt  that  the  law  has  a  benevolent  influence  on  tar- 
geting, it  would  be  necessary  to  report  in  detail  on  the  process  by  which  the  de- 
cision was  made  whether  or  not  to  attack  particular  targets;  and,  if  so,  with  what 
weapon,  at  what  time,  and  in  what  way.  Most  people,  even  specialists  in  strate- 
gic matters,  simply  do  not  have  access  to  such  information.  Information  of  this 
kind  might  confirm  the  substantial  positive  contribution  of  law  in  the  decision- 
making process.  In  this  context,  there  is  a  particular  need  for  evidence  of  plans 
or  missions  that  were  abandoned  or  modified  because  of  undue  risk  to  civilians 
and  civilian  objects. 

What  are  the  main  rules  of  law  that  are  applicable  to  targeting?  The  rules  in  1977 
Protocol  I  are  contained  in  its  Part  IV,  which  is  on  "Civilian  Population,"  and  in 
particular  in  its  Section  I  on  "General  Protection  Against  the  Effects  of  Hostilities." 
Within  this  section,  eleven  articles — 48  to  58 — contain  all  the  main  rules.  Article 
52.2  is  particularly  important: 

Attacks  shall  be  limited  strictly  to  military  objectives.  In  so  far  as  objects  are  concerned, 
military  objectives  are  limited  to  those  objects  which  by  their  nature,  location,  purpose 
or  use  make  an  effective  contribution  to  military  action  and  whose  total  or  partial 
destruction,  capture  or  neutralization,  in  the  circumstances  ruling  at  the  time,  offers  a 
definite  military  advantage. 

Article  52  has  to  be  read,  and  implemented,  in  conjunction  with  other  provi- 
sions of  Protocol  I.  Among  the  most  important  of  these  is  Article  57  on  precautions 
in  attack,  which  establishes  a  strong  set  of  procedures  and  criteria  that  must  be  sat- 
isfied in  the  conduct  of  all  military  attacks.  For  example,  as  regards  so-called  "dual- 
use"  facilities — a  term  not  used  in  the  conventions — Article  57.2(b)  sets  out  strin- 
gent criteria  on  the  basis  of  which  many  planned  attacks  on  such  facilities  might 
have  to  be  canceled  or  suspended.13 


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These  rules  on  targeting  in  1977  Protocol  I  are  well  known  to  present  prob- 
lems for  certain  States.  For  example,  Article  52,  cited  above,  has  been  the  sub- 
ject of  interpretative  declarations  by  a  number  of  parties  to  the  Protocol.14  The 
UK's  sixteen  statements  made  at  the  time  of  ratification  of  the  Protocol  include 
no  less  than  eight  that  relate  to  Articles  50  to  57.  All  eight  articles,  and  all  eight 
UK  statements,  relate  in  one  way  or  another  to  targeting.  A  key  theme  of  these 
eight  UK  statements  is  that  the  commander  must  necessarily  act  on  the  basis  of 
the  knowledge  that  was  available  at  the  time,  as  distinct  from  information  that 
might  have  been  available  to  others,  or  might  have  emerged  later.  In  short,  the 
commander  should  not  be  judged  by  an  unrealistic  standard.  Other  NATO 
member  States  have  made  some  similar  interpretative  statements  about  Arti- 
cles 51  to  57. 

What  is  the  official  US  line  on  the  rules  on  targeting  in  1977  Protocol  I?  Even 
though  it  is  not  a  party  to  the  Protocol,  the  United  States  has  indicated  that  it  ac- 
cepts and  applies  many  of  its  provisions.  In  one  major  official  publication  it  has 
stated:  "The  US  views  the  following  GP  I  articles  as  either  legally  binding  as  cus- 
tomary international  law  or  acceptable  practice  though  not  legally  binding."15 
The  US  list  includes  the  following  articles  that  relate  directly  to  targeting: 

•  Article  5 1  except  paragraph  6 

•  Article  52 

•  Article  54 

•  Articles  57-60 

The  fact  of  US  acceptance  in  principle  of  these  articles  does  not  mean  that  there 
are  no  problems  regarding  the  US  understanding  of  them.  US  interpretations, 
while  basically  along  similar  lines  to  some  of  the  statements  made  by  NATO  mem- 
bers when  ratifying  Protocol  I,  sometimes  go  further.  For  example,  official  US  defi- 
nitions of  "military  objectives"  use  language  that  is  significantly  broader  than  that 
of  Article  52.2  as  quoted  above.  One  US  version  (with  italics  added  here  for  empha- 
sis) reads: 

Military  objectives  are  combatants  and  those  objects  which,  by  their  nature,  location, 
purpose,  or  use,  effectively  contribute  to  the  enemy's  war-fighting  or  war-sustaining 
capability  and  whose  total  or  partial  destruction,  capture  or  neutralization  would 
constitute  a  definite  military  advantage  to  the  attacker  under  the  circumstances  at  the 
time  of  the  attack.16 


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Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

In  one  subsequent  US  version  of  this  definition,  namely  Military  Commission 
Instructions  issued  in  2003,  the  word  'definite'  has  been  omitted.17  This  would  ap- 
pear to  represent  a  further  departure  from  the  text  of  Article  52(2). 

Some  legal  experts  in  the  US  armed  forces  have  expressed  serious  concerns 
about  Article  52.  For  example,  Major  Jeanne  Meyer,  co-editor  of  the  Operational 
Law  Handbook,  stated  in  2001  that  this  article  "tries  to  constrict  the  use  of  air  power 
to  the  specific  tactical  military  effort  at  hand"  and  "ignores  the  reality  that  a  na- 
tion's war  effort  is  composed  of  more  than  just  military  components."18  While  not 
suggesting  total  rejection  of  the  provision,  she  urged  the  United  States  to  "resist  the 
pressure  to  accept  restrictive  interpretations  of  Article  52.2." 19  In  general,  the 
United  States  is  anxious  to  retain  some  legal  justification  for  attacks  on  certain  tar- 
gets that  may  not  themselves  be  purely  military,  but  which  may,  for  example,  con- 
tribute to  the  military  effort  or  constitute  key  parts  of  a  regime's  infrastructure. 

All  in  all,  it  is  not  surprising  that  some  commentators  have  indicated  concern 
about  US  interpretations  of  what  constitutes  a  military  objective.  They  see  the  US 
interpretation  as  differing  significantly  from  Article  52,  and  as  tending  towards  a 
more  permissive  definition.20  Are  such  expressions  of  concern  well  founded?  One 
could  question  the  extent  to  which  the  current  US  position  really  represents,  as  is 
sometimes  claimed,  a  shift  as  compared  to  earlier  US  positions;  and  also  whether 
the  US  positions  generally  have  not  been  similar  in  their  meaning  to  some  of  the  in- 
terpretative declarations  on  Article  52  made  by  certain  other  States.  However,  it  is 
clear  beyond  doubt  that  the  definition  of  military  targets  in  Article  52  poses  certain 
problems  for  the  United  States  despite  its  general  acceptance  of  this  article.  More- 
over, there  are  some  differences  of  national  approach  on  these  matters,  including 
between  the  United  Kingdom  and  the  United  States;  and  these  can  cause  problems 
during  coalition  military  operations. 

Is  the  law  as  it  stands  satisfactory?  Mr.  Walker  suggests  that  it  is  not.  He  may  be 
right  that  the  provisions  of  1977  Protocol  I  are  not  as  strong  as  many  would  wish; 
and  that  when  it  comes  to  actual  decisions  on  actual  targets,  they  sometimes  leave 
considerable  scope  for  interpretation  and  even  for  a  necessarily  subjective  balanc- 
ing process.  However,  he  does  not  suggest  specific  changes,  and  he  goes  too  far 
when  he  states  that  "there  really  is  very  little  if  any  truly  black  letter  law  in  this 
area."21  The  real  problem  may  be,  not  the  weakness  of  the  law  itself,  but  the  very 
broad  official  US  interpretation  of  it.  Although  Mr.  Walker  is  critical  of  US  prac- 
tice, especially  the  danger  it  poses  to  civilians,  he  does  not  explicitly  note  the 
above-quoted  US  statements  that,  arguably,  stretch  almost  to  breaking  point  that 
very  scope  for  interpretation  of  which  he  is  critical.  There  are  serious  arguments 
both  for  and  against  the  US  emphasis  oh  concentrating  attacks  on  the  enemy  re- 
gime's sources  of  power  and  war-sustaining  capability — and  the  debate  about  the 

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Adam  Roberts 


adequacy  or  otherwise  of  the  existing  law  needs  to  take  account  of  this  critically 
important  debate. 

My  main  disagreement  with  Mr.  Walker's  treatment  of  the  law  on  targeting  re- 
lates, not  to  the  law's  content  or  interpretation,  but  to  its  effect.  In  the  four  wars  un- 
der consideration  there  is  evidence  that,  so  far  as  the  United  States  is  concerned,  the 
effect  of  all  the  provisions  on  targeting  contained  in  Protocol  I,  and  even  of  the  more 
restricted  list  of  those  provisions  accepted  by  the  United  States,  has  been  much  more 
than  the  vague  and  subjective  requirement  for  proportionality  mentioned  in  Mr. 
Walker's  paper.  This  is  not  the  place  to  elaborate  on  this  point,  or  go  into  the  many 
relevant  sources.22  At  this  stage  it  may  be  enough  simply  to  assert  that  the  process  of 
identifying  and  attacking  targets  in  these  four  wars  has  been  influenced  by  legal  re- 
quirements, including  those  of  1977  Protocol  I.  The  fact  that  the  US  armed  forces 
have  to  defend  their  actions  by  the  criteria  established  in  the  law  of  war  has  had  more 
effect  on  target  selection  and  on  policy  generally  than  Mr.  Walker  allows.  However,  it 
has  had  less  effect  in  mitigating  the  horrors  of  war  than  might  have  been  hoped. 
Some  of  the  reasons  for  this  are  explored  in  the  next  section. 

Continuing  Problems  in  the  Use  of  Air  Power 

The  increased  accuracy  of  air- delivered  weapons,  while  undoubtedly  a  momen- 
tous development  in  the  history  of  war,  is  no  cure-all.  Even  when  coupled  with 
attempts  to  observe  legal  restrictions  on  targeting,  it  cannot  guarantee  either  suc- 
cess or  no  deaths  of  innocents.  In  the  course  of  these  four  wars,  figures  for  civilian 
deaths  have  apparently  not  decreased  in  proportion  to  the  increase  in  the  use  of 
precision-targeted  weapons.  Why  is  this  so? 

Despite  the  improvements  in  accuracy,  all  four  bombing  campaigns  aroused  in- 
ternational concern,  largely  on  account  of  the  danger  to  non-combatants.  There 
were  reports  of  many  attacks  causing  significant  civilian  casualties  and  damage. 
Accuracy  in  hitting  the  intended  target  area  did  not  itself  necessarily  eliminate  such 
problems.  The  US  bombing  of  the  Amiriya  bunker  in  Baghdad  on  February  13, 
1991  caused  approximately  300  civilian  casualties.  In  the  Kosovo  war  in  1999,  a 
railway  bridge  was  bombed  when  a  passenger  train  was  crossing  it,  with  heavy  loss 
of  life.  In  Afghanistan,  the  International  Committee  of  the  Red  Cross  warehouse  in 
Kabul  was  hit  twice,  on  October  16  and  26,  2001;  and  there  were  numerous  subse- 
quent incidents  in  which  large  numbers  of  villagers  were  killed. 

The  question  is:  what  are  the  specific  reasons  why  the  combination  of  increased 
accuracy  of  air-delivered  weapons  and  increased  acceptance  of  certain  rules  relat- 
ing to  targeting  have  not  produced  a  more  dramatic  change  for  the  better?  Mr. 
Walker  suggests  that  the  main  problem  is  that  the  relevant  body  of  law  is  weak, 

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especially  as  regards  protection  of  civilians;  and  that  the  United  States,  as  the  last 
superpower  left  standing,  is  in  a  situation  of  impunity.23  However,  a  broader  range 
of  factors  is  at  work,  many  but  not  all  of  which  are  recognized  in  his  paper.  In  the 
hostile  relations  between  adversaries  in  the  four  wars,  at  least  eleven  types  of  opera- 
tional problems  can  be  identified: 

1 .  No  weapon  is  more  accurate  than  the  intelligence  on  which  its  use  is  based,  and 
this  may  sometimes  be  wrong  or  out  of  date,  resulting  in  civilian  damage  and  deaths. 

2.  Many  targets  are  selected  at  very  short  notice,  for  example  by  ground-based 
personnel  in  radio  contact  with  aircraft  overhead.  This  can  mean  that  targets  are 
sometimes  attacked  without  being  subjected  to  cross-checking  of  information,  or 
lengthy  legal  and  policy  consideration.  As  Mr.  Walker  states,  "fewer  targets  are  now 
planned  through  the  target  planning  cycle  and  air  tasking  order."24 

3.  Precision-guided  weapons  are  generally  better  at  hitting  fixed  objects,  such  as 
buildings,  than  moving  objects  that  can  be  concealed,  such  as  people  and  tanks. 
This  could  lead  to  a  perverse  prioritization  in  favor  of  targeting  buildings.  (How- 
ever, preliminary  evidence  from  the  2003  war  suggests  effective  use  of  air  power 
even  against  tanks  that  had  been  concealed  under  tree  cover.) 

4.  In  all  countries,  some  military  targets,  whether  fixed  or  mobile,  are  likely  to  be 
in  close  proximity  to  civilians  and  civilian  objects.  Thus,  even  when  a  military  tar- 
get is  accurately  hit,  there  may  be  significant  "collateral"  damage,  including  de- 
struction of  houses  and  deaths  of  civilians. 

5.  As  a  response  to  the  increased  accuracy  of  targeting,  the  "receiving  State"  may 
deliberately  co-locate  military  objects  close  to  civilians  and  civilian  objects — thus 
making  it  harder  to  attack  them  without  harming  civilians  and  incurring  interna- 
tional criticism  on  that  account.  (This  problem  is  discussed  further  below.) 

6.  So-called  "dual-use  targets,"  such  as  a  power  station  producing  electricity  for 
both  military  and  civilian  uses,  are  sometimes  attacked — often  with  serious  short  - 
and  long-term  effects  on  the  infrastructure  of  society. 

7.  Weapons,  even  if  delivered  with  great  precision,  may  themselves  be  of  such  a 
nature  as  to  cause  serious  and  indiscriminate  damage.  For  example,  it  is  notorious 
that  cluster  bombs  frequently  pose  a  hazard  to  civilians,  including  children — and 
may  continue  to  do  so  long  after  a  war  is  over. 

8.  Malevolence,  callousness,  incompetence,  and  poor  or  inappropriate  training 
can  also  lead  to  attacks  on  the  wrong  places  or  people. 

9.  The  greater  accuracy  of  weapons  risks  creating  a  high  level  of  anger  against 
those  individuals  and  States  responsible  for  target  selection.  If  it  is  perceived 
(whether  rightly  or  wrongly)  that  what  is  hit  is  what  a  targeter  intended  to  hit,  there 
may  be  a  greater  sense  of  outrage  among  the  population  of  the  target  State  and  in 


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international  opinion  generally.  There  is  ample  scope  for  conspiracy  theories  as  to 
why  a  particular  target  was  attacked. 

10.  The  greater  accuracy  of  bombing  makes  possible  certain  forms  of  action, 
such  as  targeted  killings  of  individuals,  that  maybe  exposed  to  a  wide  range  of  legal 
and  other  criticisms.  One  example  is  a  targeted  killing  that  risks  deaths  of  large 
numbers  of  civilians  (e.g.,  the  Baghdad  restaurant  attack  intended  to  kill  Saddam 
Hussein  at  the  start  of  the  2003  Iraq  War).  Another  example  that  could  incur  criti- 
cism, mainly  on  human  rights  and  jus  ad  bellum  grounds,  would  be  a  targeted  kill- 
ing (e.g.,  of  an  alleged  terrorist)  in  the  territory  of  a  foreign  country  when  there  is 
no  state  of  war  with,  or  within,  that  country.  Absence  of  formal  consent  of  its  gov- 
ernment would  aggravate  the  problem. 

11.  In  an  era  marked  by  frequent  threats  of  "strategic  coercion"  against  certain 
States  to  change  their  policies  or  even  their  regimes,  there  is  sometimes  tension  be- 
tween the  perceived  need  to  make  an  impressive  threat  (such  as  that  of  "shock  and 
awe"  against  Iraq  in  the  run-up  to  the  2003  war)  and  then,  if  force  is  actually  used,  the 
need  to  observe  certain  limitations  on  its  use.  An  actual  military  campaign  may  be  at 
risk  of  conforming  more  to  the  preceding  threats  than  to  the  legal  and  other  consid- 
erations that  might  point  in  the  direction  of  using  force  discriminately. 

The  problem  of  "friendly  fire"  confirms  that  the  reasons  for  disasters  often  re- 
late particularly  to  poor  intelligence  and  hasty  decision-making.  In  many  cases  in 
the  two  wars  in  Iraq  and  in  the  Afghan  war,  US  bombings  led  to  casualties  among 
coalition  forces.  It  appears  that  in  most  instances  the  target  was  incorrectly  identi- 
fied or  a  weapon  incorrectly  "locked  on"  to  the  wrong  target.  "Friendly  fire"  is  not  a 
laws-of-war  issue  as  such.  However,  it  is  a  legal  issue  under  the  national  law  of  the 
States  concerned,  and  can  lead  to  national  legal  action — as  it  has  done  in  the 
United  States  as  a  result  of  an  incident  involving  the  death  of  Canadian  soldiers  in 
Afghanistan.25  Incidents  of  US  "friendly  fire"  have  also  caused  considerable  con- 
cern in  the  United  Kingdom,  especially  as  a  result  of  the  2003  Iraq  War.26  The  fre- 
quency of  such  incidents  confirms  the  thesis  of  this  commentary,  that  modern 
means  of  war  can  lead  to  disaster  not  because  the  law  is  weak,  but  because  the  fog, 
chaos,  confusion  and  sheer  malevolence  of  war  have  survived  into  a  new  era. 

A  further  problem  with  the  new  type  of  US  bombing  campaign  concerns  per- 
ceptions of  the  balance  of  risk.  In  the  eyes  of  third  parties,  it  can  easily  look  as  if  the 
United  States  puts  a  lower  value  on  the  lives  of  Iraqis,  Serbs  or  Afghans — even  if  ci- 
vilian— than  it  does  on  its  own  almost- invulnerable  aircrews.  Mr.  Walker  seems  to 
share  this  view  when  he  refers  to  "conflict  marked  by  its  [the  United  States']  vast 
technological  superiority  and  its  leadership's  aversion  to  friendly  casualties — al- 
most always  at  the  expense  of  higher  civilian  casualties."27 1  am  skeptical  about  this 
proposition.  It  is  far  from  proven  that  there  is  any  straightforward  link  between  the 

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Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

safety  of  US  aircrew  and  higher  civilian  casualties.  It  might  just  as  easily  be  argued 
that  the  capacity  to  make  decisions  and  to  release  (or  refrain  from  releasing)  weap- 
ons in  relative  safety  may  contribute  to  the  careful  and  discriminate  use  of 
airpower.  However,  the  hostile  perception  has  some  plausibility.  Bombing  from 
high  altitude  must  sometimes  increase  the  risk  of  a  target  being  inaccurately  identi- 
fied; and  must  also  increase  the  time  a  weapon  takes  to  reach  its  target  on  the 
ground — by  which  time,  for  example,  a  previously  empty  bridge  may  have  a  pas- 
senger train  running  across  it.  The  perception  of  invulnerable  warriors  risking  the 
lives  of  civilians  underneath  feeds  those  hostile  views  of  the  United  States  that  form 
a  background  against  which  terrorism  can  flourish. 

Perhaps  the  most  profound  problem  of  all  regarding  the  use  of  bombing  is  that 
the  United  States  and  its  allies  have  developed  a  concept  of  war  aimed  at  targeting 
the  sources  of  an  adversary's  power,  not  all  of  which  may  be  strictly  and  narrowly 
military  in  character.  Mr.  Walker  appears  to  equate  this  with  "targeting  the  will  of 
the  people."28  He  is  rightly  opposed  to  the  idea  of  a  policy  aimed  at  civilians,  criti- 
cizing it  on  both  legal  and  practical  grounds.  However,  the  US  doctrine  is  not  nec- 
essarily one  of  targeting  the  will  of  the  people.  Rather,  it  aims  principally  at 
targeting  the  key  sources  and  instruments  of  a  regime's  power — something  that 
may  in  particular  cases  be  very  different.  This  is  the  biggest  single  challenge  to  the 
existing  legal  regime  on  targeting. 

The  debate  about  the  bombing  of  the  TV  station  in  Belgrade  in  1999  exemplifies 
the  difficulty  of  determining  what  is  a  legal  target.  Mr.  Walker  calls  this  an  example 
of  "ill-advised  expansions  of  the  definition  of 'military  object'  even  under  the  cur- 
rent rules."  However,  it  is  not  clear  that  what  is  involved  is  an  expansion  of  the  defi- 
nition of  military  object.  On  the  basis  of  the  pre- 1977  law,  especially  the  1954 
Hague  Cultural  Property  Convention,  Article  8(1) (a),29  a  serious  argument  can  be 
made  that  attacks  on  a  broadcasting  station  are  not  necessarily  illegal.  The  question 
is  rather  whether  1977  Protocol  I  drastically  changed  this  situation  by  narrowing 
the  definition  of  "military  object."  It  may  or  may  not  be  relevant  that  in  the  Yugo- 
slav revolution  of  September/October  2000  the  resisters  to  the  Milosevic  regime 
treated  the  same  TV  station  as  a  high-priority  target.  One  thing  is  certain:  it  will  al- 
ways, and  quite  properly,  be  difficult  to  persuade  TV  reporters  that  television  sta- 
tions are  legitimate  targets! 

The  Kosovo  War  raised  many  other  issues  indicating  how  easily  a  bombing 
campaign  can  conflict  with  the  targeting  provisions  of  the  laws  of  war.  For  exam- 
ple, there  were  debates  about  what  NATO  should  do  when  it  started  to  run  out  of 
military  targets:  should  it  then  abandon  the  bombing  campaign,  or  move  on  to 
other  targets?  There  is  also  the  closely  related  analytical  question:  did  attacks  on 
dual-use  targets,  and/or  a  perceived  threat  of  further  attacks  directed  at  civilians  and 

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civilian  objects,  play  a  major  part  in  the  Yugoslav  decision  of  June  3,  1999  to  accept 
the  terms  that  were  being  pressed  upon  it?30  It  is  difficult  to  provide  a  definite  answer 
to  that  last  question.  One  can  certainly  doubt  whether  any  "single-factor"  explana- 
tion is  adequate.  However,  while  agreeing  with  Mr.  Walker  that  Russia's  abandon- 
ment of  Serbia  was  of  crucial  importance,  I  cannot  agree  with  his  strong  assertion 
that  "air  power  didn't  win  the  Kosovo  campaign."31  At  the  very  least  it  was  one  im- 
portant contributory  factor.  The  more  difficult  question  is  whether  the  potential 
threat  to  specifically  civilian  objects  and  people  was  a  part  of  the  equation  that  con- 
tributed to  Serbia's  defeat. 

Defender's  Obligation  to  Distinguish  Military  Activities  from  Civilian  Objects 

There  are  extensive  requirements  that  apply  as  much  to  defenders  as  to  attackers, 
including  the  requirement  not  to  locate  military  forces  and  equipment  in  civilian 
areas  or  in  protected  buildings  such  as  hospitals  or  mosques.32  In  these  four  wars 
it  appears  that  these  legal  requirements  were  deliberately  violated  by  adversaries 
in  order  to  induce  the  US-led  coalition  to  engage  in  an  attack  that  caused  civilian 
casualties  and  destruction.  On  several  occasions  the  United  States  asserted  that 
its  opponents  had  faked  civilian  damage  or,  by  illegally  locating  military  assets  in 
or  close  to  civilian  ones  (for  example  putting  gun  emplacements  next  to 
mosques),  had  willfully  created  a  situation  in  which  US  bombing,  if  it  went 
ahead,  would  be  likely  to  cause  civilian  damage  and  incur  international  criticism. 
Some  evidence  from  the  2003  Iraq  War  in  particular  suggested  that  this  may  have 
been  happening  systematically. 

In  this  reading  of  events,  the  laws  of  war  are  being  cynically  misused  in  order  to 
make  the  attacker's  actions  appear  indiscriminate  and  disproportionate.  Such  con- 
duct, if  it  were  proved  to  have  the  intention  imputed  here,  would  of  course  constitute 
a  tribute  of  sorts  to  the  practical  importance  of  the  principles  of  proportionality  and 
discrimination.  Such  conduct  is  all  part  of  what  Brigadier  General  Charles  Dunlap 
has  called  "lawfare,"  or  "the  strategy  of  using — or  misusing — law  as  a  substitute  for 
traditional  means  to  achieve  an  operational  objective."33 

Why  is  there  such  a  tendency  of  States  subjected  to  coalition  bombing  to  locate 
military  assets  in  or  near  civilian  objects  such  as  schools  and  mosques?  Part  of  the 
answer  may  be  that  it  is  a  logical  if  deplorable  reaction  to  the  situation  created  by 
effective  US  dominance  of  the  air.  If  the  United  States  and  its  partners  can  see  and 
strike  anywhere,  or  at  least  it  is  believed  that  they  can  do  so,  it  is  not  surprising  that 
its  adversaries  should  locate  their  military  assets  in  a  place  where  any  US  attack 
would  be  open  to  condemnation  in  the  court  of  world  opinion.  Similarly,  the  very 


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Air  Power \  Accuracy ',  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

dominance  the  United  States  exerts  on  the  battlefield  generally  may  induce  adver- 
saries to  other  illegal  forms  of  response,  including  international  terrorism. 

Conclusions 

There  is  no  denying  some  obvious  truths  about  the  impact  of  technological  devel- 
opments. The  increased  accuracy  in  the  delivery  of  weapons  has  had  significant  ef- 
fects; ought  to  improve  possibilities  that  bombing  can  bear  a  reasonable  relation  to 
the  law  of  armed  conflict;  and  may  contribute  to  a  reduction  in  numbers  of  civilian 
casualties  in  the  territory  being  bombed.  However,  as  this  survey  has  suggested, 
none  of  this  means  that  we  are  in  a  brave  new  world  of  casualty- free  warfare.  In- 
deed, the  new  accuracy  in  bombing  poses  a  range  of  difficult  and  even  threatening 
problems,  many  of  which  relate  to  the  rules  on  targeting  in  the  laws  of  war.  Such 
problems  contribute  to  Mr.  Walker's  pessimistic  conclusion  that  "any  positivist 
notions  . . .  of  the  laws  of  war  are  basically  gone.  They  have  become  what  the  more 
cynical  among  us  have  always  suspected — merely  an  admirable  collection  of  de- 
claratory and  aspirational  normative  statements,  to  be  obeyed  or  not  as  the  exigen- 
cies of  the  situation  dictate."34 

I  cannot  agree  with  this  conclusion.  Mr.  Walker  admits  that  he  has  "painted  us 
into  a  corner."35  Yet  his  account  of  the  corner  is  not  completely  convincing.  He  is 
right  to  focus  on  the  uniqueness  of  the  situation  where  there  is  only  one  Great 
Power.  However,  what  he  says  about  the  supposed  impunity  of  the  United  States 
and  its  allies  does  not  reflect  accurately  the  full  range  of  constraints  on  decision- 
makers. True,  US  decision-makers  are  protected  from  the  attentions  of  the  Inter- 
national Criminal  Court  (though  in  theory  their  British  counterparts  are  not); 
and  in  some  measure  they  are  protected  from  military  reprisals  as  there  is  no  ad- 
versary of  remotely  equal  military  power.  However,  US  decision-makers  in- 
volved in  such  matters  as  targeting  must  always  have  in  mind  the  possibility  of  a 
wide  range  of  adverse  consequences.  Any  actions  which  fly  in  the  face  of  the  de- 
cent opinions  of  humankind,  or  which  plainly  violate  the  laws  of  war,  may  result  in 
adverse  publicity,  internal  US  legal  procedures,  local  opposition  in  the  area  of  op- 
erations, and  a  loss  of  support  both  domestically  and  internationally  that  could  un- 
dermine ongoing  US  policies.  In  the  twentieth  century  the  United  States  acquired  a 
unique  international  role  thanks  largely  to  its  success  in  building,  maintaining  and 
leading  coalitions  of  States.  That  success  is  now  in  jeopardy,  as  the  diminishing 
number  of  member  States  in  the  coalitions  between  the  1991  and  the  2003  Iraq 
wars  perhaps  indicates. 

What,  if  anything,  can  the  United  States  and  allies  do  in  regard  to  the  existing 
(and  admittedly  modest)  body  of  law  as  it  applies  to  the  use  of  air  power  in  war?  In 

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Adam  Roberts 


principle  three  courses  of  action  are  possible.  All  three  have  strengths,  and  the  pru- 
dent conduct  of  policy  must  involve  elements  of  all  of  them. 

1.  Adhere  strictly  to  the  existing  black-letter  law  on  targeting,  especially  the  law  as 
outlined  in  1977  Geneva  Protocol  I.  This  course  has  serious  merits,  and  Mr.  Walker, 
despite  his  conclusion  that  there  is  "very  little  black  letter  law,"  shows  his  sympathy 
for  it,  advocating  strongly  a  default  rule  of  not  attacking  civilians.36 

2.  Recognize  some  right  to  interpret  and  adapt  the  rules  in  practice.  The  fact  that 
many  States  have  made  interpretative  declarations  in  respect  of  some  of  these  rules 
suggests  the  strength  of  this  approach.  It  indicates  that  the  rules  can  properly  be  in- 
terpreted to  take  account  of  changing  circumstances  and  the  legitimate  interests  of 
States.  In  principle  some  degree  of  flexibility  in  treaty  interpretation  can  have  an 
important  function  if  the  law  is  not  to  be  seen  as  rigid  and  irrelevant.  However, 
there  is  a  difference  between  a  legitimate  interpretation  of  the  rules  and  an  unac- 
ceptable departure  from  them.  Any  actual  departure  needs  to  be  managed  carefully 
if  it  is  to  be  accepted  by  other  States.  A  purely  unilateral  US  departure  from  the  tar- 
geting provisions  of  Protocol  I  would  be  problematical.  A  possible  difficulty  of  this 
course  is  that  different  States  might  want  to  adapt  or  weaken  the  rules  in  different 
ways,  until  very  little  was  left  of  the  treaty  regime. 

3.  Revise  the  law.  In  general,  there  is  remarkably  little  pressure  to  change  or 
amend  the  basic  rules  on  targeting,  including  those  in  1977  Geneva  Protocol  I. 
There  has  been  a  dearth  of  specific  proposals  for  formal  agreement  on  these  mat- 
ters— whether  to  strengthen  the  law  by  making  it  more  restrictive,  or  alternatively 
to  dilute  it  in  order  to  bring  regime-supporting  activities  and  institutions  more  ex- 
plicitly into  the  category  of  legitimate  targets.  The  main  impetus  for  new  law,  so  far 
as  the  use  of  weapons  is  concerned,  is  focused  on  such  highly  specific  tasks  as  limit- 
ing or  prohibiting  the  use  of  cluster  bombs. 

Perhaps  because  he  senses  the  difficulty  of  all  these  courses,  Mr.  Walker  con- 
cludes with  a  plea  for  political  control  of  the  military,  which  he  sees  as  "the  most  ef- 
fective way  to  allocate  risk  in  an  open  and  coherent  fashion."37 1  am  all  in  favor  of 
political  control  of  the  military,  but  to  imagine  that  it  is  a  solution  to  the  problems 
addressed  in  his  paper  is  sheer  escapism.  The  track  record,  including  recently,  sug- 
gests that  on  the  particular  issue  that  concerns  us  here — effective  implementation 
of  the  law  of  armed  conflict — political  control  often  leads  to  confusion  and  failure. 
We  have  heard  eloquent  testimony  at  this  conference  suggesting  that  in  early  2003 
it  was  political  control  that  contributed  to  the  remarkable  failure  of  the  Pentagon 
to  make  plans  for  the  occupation  phase  in  Iraq.  Similarly,  in  January  2002  it  was 
largely  at  the  political  level  that  a  number  of  confusing  statements  were  made 
about  the  status  and  treatment  of  detainees  at  Guantanamo.  Unfortunately  both 
the  US  and  UK  governments  are  somewhat  distrustful  of  their  own  bureaucracies 

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Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

and  those  in  the  bureaucracies  with  specialist  skills  (including  the  law)  sometimes 
suffer  in  consequence. 

My  conclusions  are  that  despite  dramatic  improvements  in  accuracy  we  are  not 
in  an  era  in  which  the  use  of  air  power  offers  an  escape  from  the  cruelties  and  disas- 
ters of  war;  that,  albeit  alongside  a  wide  range  of  other  considerations,  the  law  as  it 
currently  exists  does  offer  a  useful  practical  guide  to  targeting;  that  no  country,  not 
even  the  United  States,  can  afford  to  ignore  basic  legal  provisions  applicable  to  tar- 
geting; that  the  interpretation  to  be  placed  on  the  law  of  targeting  poses  problems 
for  many  countries,  and  not  just  the  United  States;  that  the  law  faces  a  major  chal- 
lenge in  doctrines  based  on  attacking  the  adversary  regime's  sources  of  power;  that 
implementation  of  the  laws  of  war,  while  certainly  a  matter  for  political  control, 
must  also  remain  central  to  the  activities,  planning  and  ethos  of  the  armed  forces; 
and,  finally,  that  recent  air  campaigns  show  how  complex  and  paradoxical  imple- 
mentation of  the  law  can  be — but  not  that  it  has  ceased  to  be  an  important  stan- 
dard for  guiding  the  conduct  of  military  operations. 

Notes 

1.  Sir  Adam  Roberts  is  Montague  Burton  Professor  of  International  Relations  at  Oxford 
University  and  Fellow  of  Balliol  College. 

2.  I  have  deliberately  not  followed  the  common  and  ethnocentric  practice  of  referring  to  the 
events  of  1990-91  as  "the  first  Gulf  War"  and  those  of  2003  as  "the  second  Gulf  War."  If  there 
was  a  "first  Gulf  War,"  it  was  the  Iran-Iraq  War  of  1980-88,  which  was  a  more  catastrophic  event 
for  both  societies  than  either  of  the  subsequent  wars.  It  is  hard  to  justify  the  use  of  terminology 
that  appears  to  ignore  that  war  completely. 

3.  The  term  "coalition  forces"  is  used  here  as  convenient  shorthand  for  the  United  States-led 
forces  in  all  four  wars.  As  regards  Iraq  in  March-April  2003,  it  is  questionable  whether  the  term  is 
appropriate  to  describe  what  was  principally  a  "coalition"  of  only  two  armed  forces,  from  the 
United  States  and  United  Kingdom,  with  the  addition  of  a  few  Scud-hunting  Australian 
commandos  in  the  western  desert,  and  Polish  troops  assisting  US  Navy  Seals  in  the  south.  The 
use  of  the  term  was  much  criticized,  mainly  because  it  was  seen  as  implying  the  active 
involvement  in  the  conflict  of  a  larger  grouping  of  countries  than  was  in  fact  the  case. 

4.  See  Mr.  Walker's  article,  Strategic  Targeting  and  International  Law,  which  is  Chapter  VII  in 
this  volume,  at  121. 

5.  On  international  legal  aspects  of  the  decision  to  use  force  in  Iraq,  see  Adam  Roberts,  Law  and 
the  Use  of  Force  After  Iraq,  45  SURVIVAL  31  (Summer  2003). 

6.  Walker,  supra  note  4,  at  123. 

7.  The  principle  of  discrimination,  which  is  about  the  selection  of  weaponry,  methods  and 
targets,  includes  the  idea  that  non-combatants  and  those  hors  de  combat  should  not  be 
deliberately  targeted. 

8.  Half-page  advertisement  for  Stop  the  War  Coalition,  THE  GUARDIAN  (London),  Mar.  3, 2003, 
at  17. 

9.  An  independent  US  think-tank  has  estimated  that  between  3,200  and  4,300  civilian  non- 
combatants  died  as  a  result  of  the  military  operations  in  Iraq  between  March  19  and  April  20, 

148 


Adam  Roberts 


2003.  Carl  Conetta,  The  Wages  of  War:  Iraqi  Combatant  and  Noncombatant  Fatalities  in  the 
2003  Conflict,  Project  on  Defense  Alternatives  Research  Monograph  no.  8,  at  2-3  (Oct.  2003). 

10.  Walker,  supra  note  4,  at  126. 

11.  Id. 

12.  Mat  127. 

13.  Mr.  Walker  cites  part  of  Article  57.2(b)  of  1977  Protocol  I  in  his  paper,  id.  at  126. 

14.  Declarations  made  by  States  that  have  a  bearing  on  their  understanding  of  1977  Geneva 
Protocol  I,  Article  52,  include  those  by  Australia,  Belgium,  Canada,  Germany,  Ireland,  Italy, 
Netherlands,  Spain  and  the  United  Kingdom.  Texts  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  500- 
1 1  (Adam  Roberts  and  Richard  Guelff  eds.,  3d  ed.  2000). 

15.  Judge  Advocate  General's  School,  Operational  Law  Handbook,  JA  422,  ch.  2,  p.l  1  (2002). 

16.  US  Navy/Marine  Corps/Coast  Guard,  The  Commander's  Handbook  on  the  Law  of  Naval 
Operations,  NWP  1-14M,  MCWP  5-2.1,  COMDTPUB  P5800.7  J  8.1.1  (1995).  For  an  annotated 
text,  see  ANNOTATED  SUPPLEMENT  TO  THE  COMMANDER'S  HANDBOOK  ON  THE  LAW  OF  NAVAL 
OPERATIONS  402  (A.  R.  Thomas  and  James  C.  Duncan  eds.,  1999)  (Vol.  73,  US  Naval  War 
College  International  Law  Studies). 

17.  US  Department  of  Defense,  Military  Commission  Instruction  No.  2,  Crimes  and  Elements 
for  Trials  by  Military  Commission,  April  30,  2003,  available  at  www.defenselink.mil/news/ 
May2003/d20030430milcominstno2.pdf. 

1 8 .  Jeanne  M.  Meyer,  Tearing  Down  the  Facade:  A  Critical  Look  at  the  Current  Law  on  Targeting  the 
Will  of  the  Enemy  and  Air  Force  Doctrine,  51  AIR  FORCE  LAW  REVIEW  143,  166, 181  (2001). 

19.  Mat  182. 

20.  See,  e.g.,  Bofaxe  No.  256E  of  May  15,  2003,  issued  by  the  Institute  for  International  Law  of 
Peace  and  Humanitarian  Law  of  the  Ruhr-University  Bochum,  available  at  http://www.ifhv.de. 

21.  Walker,  supra  note  4,  at  130. 

22.  On  the  relevance  of  legal  considerations  in  the  bombing  campaign  in  the  1991  Gulf  War,  see 
Adam  Roberts,  The  Laws  of  War  in  the  1990-91  Gulf  Conflict,  18  INTERNATIONAL  SECURITY  134 
(Winter  1993/94). 

23.  Walker,  supra  note  4,  at  129. 

24.  Id.  at  123. 

25.  On  September  13,  2002,  two  US  pilots,  Major  Harry  Schmidt  and  Major  William 
Umbach,  were  charged  by  the  US  Air  Force  following  an  incident  in  which  they  mistakenly 
bombed  and  killed  Canadian  troops  in  Afghanistan  on  April  17,  2002.  These  were  the  first 
criminal  charges  against  US  pilots  in  connection  with  the  events  in  Afghanistan.  In  the  course 
of  2003  Major  Umbach  announced  plans  to  retire  from  the  military  with  a  reprimand  on  his 
file.  Meanwhile  Major  Schmidt  initially  declined  an  offer  of  administrative  punishment,  but 
later  agreed  to  accept  a  nonjudicial  hearing.  At  that  hearing,  on  July  6,  2004,  he  was  found 
guilty  of  dereliction  of  duty  and  was  punished  with  a  reprimand  and  a  forfeiture  of  US  $5,672 
in  pay.  He  lost  his  final  Air  Force  appeal  on  August  3,  2004.  News  report  in  THE  TIMES 
(London),  Sept.  14,  2002,  at  16;  and  Associated  Press  reports  of  June  25  and  October  18,  2003, 
and  July  7  and  August  3,  2004. 

26.  In  October  2003  a  UK  soldier,  Trooper  Christopher  Finney,  was  awarded  the  George 
Cross — the  second  highest  honor  for  gallantry — for  his  bravery  under  US  "friendly  fire"  in  the 
2003  Iraq  War.  In  November  2003  the  BBC's  World  Affairs  Editor  published  an  account  of 
another  such  incident  in  Iraq  in  which  at  least  16  people  were  killed  and  45  injured.  See  JOHN 
Simpson,  The  Wars  Against  Saddam:  Taking  the  Hard  Road  to  Baghdad  (2003). 

27.  Walker,  supra  note  4,  at  128. 

28.  Id.  at  124. 


149 


Air  Power,  Accuracy,  and  the  Law  of  Targeting:  Why  No  Brave  New  World? 

29.  Hague  Convention  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict, 
May  14,  1954,  249  U.N.T.S.  240,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  14, 
at  373. 

30.  Re  the  factors  that  led  Milosevic  to  back  down,  see  Adam  Roberts,  The  Laws  of  War  After 
Kosovo,  in  LEGAL  AND  ETHICAL  LESSONS  OF  NATO'S  KOSOVO  CAMPAIGN  416-17  (Andru  E. 
Wall  ed.,  2002)  (Vol.  78,  US  Naval  War  College  International  Law  Studies).  As  mentioned  there, 
for  a  challenging  argument  that  the  NATO  bombing  was  a  key  factor  in  leading  to  the  decision  to 
back  down,  and  that  one  element  was  a  belief  that  the  bombing  would  become  less  discriminate 
if  Milosevic  did  not  settle,  see  Stephen  T.  Hosmer,  The  Conflict  Over  Kosovo:  Why  Milosevic 
Decided  to  Settle  When  He  Did,  RAND  report  MR-1351-AF,  at  91-107  (2001). 

3 1 .  Walker,  supra  note  4,  at  121. 

32.  Geneva  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War,  Aug.  12, 
1949,  art.  18,  6  U.S.T.  3516,  75  U.N.T.S.  287,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR, 
supra  note  14,  at  301;  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and 
Relating  to  the  Protection  of  Victims  of  International  Armed  Conflicts,  June  8,  1977,  art.  58, 
1 125  U.N.T.S.  3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  14,  at  422.  Two 
States  against  which  the  United  States  fought  in  recent  wars — Afghanistan  and  Iraq — were  not 
parties  to  1977  Protocol  I. 

33.  Brigadier  General  Charles  Dunlap,  US  Air  Force,  Air  and  Information  Operations:  A 
Perspective  on  the  Rise  of"Lawfare"  in  Modern  Conflicts,  presentation  prepared  for  the  US  Naval 
War  College  Conference  on  Current  Issues  in  International  Law  and  Military  Operations, 
Newport,  Rhode  Island,  June  25-7,  2003. 

34.  Walker,  supra  note  4,  at  130. 

35.  Id. 

36.  Id. 

37.  Id. 


150 


IX 


Targeting  and  Humanitarian  Law: 
Current  Issues 


Michael  N.  Schmitt1 


In  the  21st  century,  the  art  and  science  of  targeting,  particularly  in  the  aerial 
environment,  has  become  extraordinarily  complex.  So  too  has  compliance 
with  humanitarian  law.  Battlefields  of  centuries  past  were  linear  in  character, 
with  opposing  forces  facing  each  other  across  a  FEBA  (forward  edge  of  the  bat- 
tle area).  This  positioning,  together  with  the  limited  range  and  mobility  of 
weapons  systems,  rendered  civilian  populations  relatively  immune  to  the  direct 
effects  of  warfare.  Civilians  were  either  distant  from  the  battlefield  or  fled  as 
hostilities  drew  near. 

The  advent  of  long-range  strike  capability  led  to  a  revolution  in  military-legal 
affairs.2  Civilian  populations  and  objects  were  not  only  placed  at  greater  risk  due  to 
their  proximity  to  lucrative,  and  now  viable,  military  and  infrastructure  targets, 
but  civilians  and  civilian  objects  became  objectives  themselves  in  various  strategic 
bombing  doctrines.3  Humanitarian  law  reacted  by  affirming  their  immunity  from 
direct  attack,  most  notably  with  the  1977  codification  of  the  distinction  principle  in 
Protocol  Additional  I  to  the  Geneva  Conventions.4 

Today,  technological  advances  in  range,  precision,  and  stealth,  as  well  as  the  trans- 
parency resulting  from  advanced  C4ISR  technologies,5  have  again  transformed  the 
nature  of  warfare.  Entire  countries  now  comprise  the  battlespace.  And  the  technologi- 
cal "haves"  can  strike  the  assets  of  their  ill-equipped  adversaries  with  near  total 


Targeting  and  Humanitarian  Law:  Current  Issues 

impunity.  For  instance,  during  Operation  Iraqi  Freedom,  coalition  forces  lost  only  one 
fixed  wing  aircraft  to  enemy  fire.6  Such  asymmetry  has  momentous  consequences,  not 
only  for  combat  operations,  but  also  for  the  application  of  humanitarian  law. 

This  article  explores  several  of  the  more  pressing  legal  issues  involving  tar- 
geting during  2  lst-century  armed  conflict — targeting  doctrine,  targeting  an  op- 
ponent's leadership,  targeting  terrorists,  the  use  of  human  and  civilian  object 
shields,  treating  military  installations  as  a  unitary  target,  and  computer  net- 
work attack.  Each  is  especially  relevant  given  the  likely  use  of  "lawfare"  by  op- 
ponents of  the  United  States  and  its  coalition  partners,  most  recently 
demonstrated  during  Operation  Iraqi  Freedom.7  Humanitarian  law  has  be- 
come a  permanent  fixture  on  the  modern  battlefield.  Those  who  ignore  this  re- 
ality do  so  at  their  own  risk. 

Targeting  Doctrine,  Compellance  Campaigns,  and  Military  Objectives 

Effects-based  operations  (EBO)  have  replaced  attrition  targeting  in  US  doctrine. 
In  attrition  warfare,  extensive  pre-planned  target  lists  are  developed  and  targets 
are  then  destroyed  serially,  while  engaging  targets  of  opportunity  as  located.  Re- 
duced to  basics,  the  enemy  is  defeated  by  progressively  weakening  its  military 
forces.  In  contrast,  effects-based  operations  represent  "the  maturation  of  .  .  . 
technologies  merged  with  the  theory  of  targeting  for  systematic  effect  rather  than 
absolute  destruction."8  The  confluence  of  three  factors  makes  EBO  possible:  ad- 
vanced technologies;  effects-based  planning;  and  parallel  warfare,  a  new  concept 
of  operations.9 

Technological  advances  enable  effects-based  operations  by  generating  new  op- 
tions for  attack.  For  example,  the  use  of  low-observable  (stealth)  technologies  in 
the  F- 1 1 7  Nighthawk  or  B-2  Spirit  aircraft  permits  smaller  attack  packages  because 
stealth  aircraft  need  no  escorts.10  This  frees  systems  that  would  otherwise  be  tasked 
for  escort  duties  to  conduct  attacks  themselves.  It  also  heightens  the  likelihood  of 
mission  success  by  making  attacks  less  detectable  than  would  be  the  case  with  pen- 
etration by  a  large  package. 

Advances  in  precision  also  facilitate  effects-based  operations.  The  Joint  Direct 
Attack  Munition  (JDAM)  constitutes  the  great  leap  forward  in  this  regard.  JDAMs 
are  guidance  tail  kits  that  use  an  inertial  navigation  system  and  global  positioning 
system  satellite  (GPS)  linkage  to  achieve  a  CEP  (circular  error  probable — radius  of 
a  circle  within  which  Vi  of  the  bombs  will  strike)  of  approximately  20  feet  when  at- 
tached to  free-fall  1,000  and  2,000-pound  bombs.11  A  500-pound  variant  entering 
the  inventory  will  improve  accuracy  and  allow  aircraft  to  carry  more  weapons  per 
sortie.   Nearly  all  attack  aircraft  can  carry  the  JDAM,  and  each  weapon  is 

152 


Michael  N.  Schmitt 


independently  targetable.  Thus,  even  single-seat  fighters  such  as  the  F-16  can  now 
strike  multiple  targets  during  a  single  sortie.  JDAM's  bargain  price  tag  of  approxi- 
mately $2 1 ,000  per  tail  kit  makes  it  an  affordable  option  against  the  vast  majority  of 
targets.  Combined,  these  characteristics  dramatically  increase  the  number  of  tar- 
gets that  can  be  struck  in  a  very  short  period  with  a  high  degree  of  accuracy.12  The 
net  result  is  the  capability  to  conduct  "shock  and  awe"  campaigns,  i.e.,  campaigns 
that  stun  opponents  into  confusion  and  dismay. 

Advances  in  information  technology  also  enable  effects-based  operations.  In- 
formation systems  now  make  it  possible  to  "rapidly  collect,  share,  access,  and  ma- 
nipulate information,"  while  sometimes  linking  the  sensor  directly  to  delivery 
system.13  By  doing  so  more  quickly  and  comprehensively  than  an  opponent  (and 
by  using  information  technology  to  blind  the  enemy),  friendly  forces  can  operate 
inside  his  OODA  (observe,  orient,  decide,  act)  loop.14  Paralysis  eventually  results. 

The  second  element  of  EBO  is  effects-based  planning.  This  method  of  planning 
seeks  to  achieve  specific  effects  with  the  least  risk,  in  the  shortest  time  possible,  and 
with  minimal  expenditure  of  resources  by  considering  both  direct  and  indirect  ef- 
fects. Direct  effects  are  "immediate,  first  order  consequences,"15  i.e.,  the  damage 
directly  caused  by  the  weapon.  Classic  attrition  warfare  emphasizes  direct  effects. 
However,  effects-based  planning  also  factors  in  indirect  effects — "the  delayed  and/ 
or  displaced  second-  and  third-order  consequences  of  military  action."16  A  typical 
example  is  loss  of  support  for  a  regime  that  appears  inept  or  impotent  in  the  face  of 
repeated  enemy  attacks.17 

Both  direct  and  indirect  effects  have  three  fundamental  characteristics.  The  first 
is  the  cumulative  nature  of  individual  effects.  This  occurs  when  the  overall  impact 
of  various  attacks  is  greater  then  the  sum  of  the  individual  attacks  themselves;  the 
attacks  operate  synergistically.  Loss  of  support  for  the  regime  in  the  example  cited 
above  exemplifies  this  phenomenon. 

Cascading  effects  are  "indirect  effects  [that]  ripple  through  an  adversary  target 
system,  often  influencing  other  target  systems  as  well."18  Typically,  they  occur 
when  striking  targets  at  a  higher  level  of  conflict.  For  instance,  damaging  a  national 
level  command  and  control  net  will  influence  lower  levels  of  the  conflict  as  the  abil- 
ity to  receive  intelligence  and  direction  from  above,  and  to  coordinate  operations 
with  other  units,  diminishes.  Targeting  leadership  represents  perhaps  the  pinnacle 
of  a  cascading  effects  focused  mission. 

Collateral  effects  are  the  unintended  consequences  of  an  attack.19  To  the  extent 
that  foreseeable  collateral  effects  affect  civilians  or  civilian  objects,  the  humanitarian 
law  principle  of  proportionality  requires  balancing  them  against  the  military  advan- 
tage that  accrues  from  attacking  the  target.20  Further,  although  it  is  sometimes 


153 


Targeting  and  Humanitarian  Law:  Current  Issues 

questioned  whether  reverberating  effects  must  be  assessed  during  proportionality 
calculations,  US  doctrine  affirmatively  requires  planners  to  consider  them.21 

Effects-based  planners  deconstruct  target  systems  to  identify  that  element 
thereof  the  neutralization  or  destruction  of  which  best  achieves  the  desired  effect. 
Sensitivity  to  the  typology  of  effects  expands  the  universe  of  possible  attacks  likely 
to  yield  that  result.  Moreover,  targeting  only  components  of  the  target  system  gen- 
erating the  desired  effect  means  tasking  fewer  sorties,  thereby  increasing  the  avail- 
ability of  weapons  systems  for  missions  against  other  targets.  EBO  also  creates 
opportunities  to  avoid  causing  collateral  damage  and  incidental  injury.  In  the 
words  of  one  Pentagon  briefer,  "The  best  way  to  mitigate  collateral  damage  is  only 
strike  the  stuff  you  need  to  strike — or  affect  the  stuff  you  need  to  affect."22 

As  to  the  objects  or  individuals  against  which  EBO  is  most  effective,  one  must 
understand  that  the  effect  sought  determines  the  precise  target;  categories  of  tar- 
gets cannot  be  assessed  in  the  abstract.  That  said,  because  Colonel  John  Warden's 
strategic  rings  concept  continues  to  resonate  in  airpower  circles,  political  leader- 
ship, economic  systems,  supporting  infrastructure,  population,  and  military  forces 
remain  attractive  targets  to  planners. 23  Focusing  on  these  key  target  sets  does  not 
imply  that  civilians  or  civilian  objects  should  be  attacked  directly,  although,  as  will 
be  discussed  later,  some  commentators  are  suggesting  exactly  that.  Instead,  EBO 
creatively  identifies  targets  likely  to  affect,  but  not  necessarily  harm,  these  strategic 
centers  of  gravity. 

In  addition  to  a  fresh  planning  approach,  EBO  leverages  a  new  concept  of  opera- 
tions, Parallel  Warfare  and  Simultaneous  Attack.24  Traditionally,  warfare  was  serial 
and  sequential.  In  an  oversimplified  example,  because  planners  usually  deemed  it  es- 
sential to  establish  air  superiority  before  conducting  a  concentrated  bombing  cam- 
paign against  other  targets,  the  enemy  air  defense  system  typically  dominated  air 
tasking  orders  in  the  early  days  of  a  conflict.  Within  that  target  set,  the  attack  plan 
tended  to  be  sequential — early  warning  radars,  then  interceptor  operations  centers, 
followed  by  airfields  and  surface-to-air  missiles.  To  a  measurable  degree,  this  ap- 
proach dominated  planning  during  Operation  Desert  Storm  in  1991. 

Serial  and  sequential  attack  evolved  into  parallel  and  sequential  attack,  in  which 
elements  of  a  single  target  system  are  struck  simultaneously,  but  systems  are  hit  se- 
quentially. For  instance,  Operation  Allied  Force,  the  1999  NATO  conflict  against 
Yugoslavia,  was  planned  as  a  phased  air  campaign:  Phase  0 — deploy;  Phase  1 — air 
superiority  over  Kosovo;  Phase  2 — military  targets  in  Kosovo;  Phase  3 — high  value 
military  and  security  forces  in  the  Federal  Republic  of  Yugoslavia;  and  Phase  4 — 
redeploy.  Once  operations  began,  however,  the  seemingly  bright  lines  faded.  With 
air  superiority  attacks  underway,  political  pressure  mounted  to  stop  the  ongoing 
slaughter  of  the  Kosovar  Albanians.  When  the  weight  of  attack  shifted  to  military 

154 


Michael  N.  Schmitt 


targets  in  Kosovo  in  response  to  such  pressure,  calls  for  attacking  regime  targets 
grew  louder  in  the  belief  that  Milosevic  held  the  key  to  ending  the  conflict  on  ac- 
ceptable terms. 

Inevitably,  a  new  concept  of  operations  emerged,  one  that  leverages  the  techno- 
logical superiority  of  US  forces  and  fits  neatly  with  effects-based  planning  ap- 
proaches— parallel  and  simultaneous  attack.  Illustrated  by  Operation  Iraqi 
Freedom,  this  concept  calls  for  simultaneous  attack  on  every  element  of  a  target 
system,  as  well  as  on  all  systems,  from  the  initiation  of  hostilities.  The  beauty  of  the 
concept  is  that  it  encourages  treating  the  enemy  as  a  single  system,  thereby  taking 
advantage  of  cascading  and  cumulative  effects  occurring  across  what  were  for- 
merly treated  as  separate  systems.  This  frees  up  weapons  systems  for  other  attacks, 
which  in  turn  increase  the  intensity  and  speed  of  the  campaign. 

The  dilemma  with  EBO  from  the  humanitarian  law  point  of  view  is  that  it  coin- 
cides with  an  era  in  which  technological  advances  and  dramatic  asymmetries  in 
military  capabilities  make  possible  coercive  strategies  that  seek  to  compel  (a 
compellance  strategy)  an  opponent  to  engage  in,  or  desist  from,  a  particular  course 
of  conduct.25  The  archetypal  example  was  Operation  Allied  Force,  which  was  de- 
signed to  compel  President  Milosevic  to  return  to  the  bargaining  table  and  end  sys- 
tematic mistreatment  of  the  Kosovar  Albanian  population. 

If  one  is  trying  to  conquer  an  enemy  absolutely,  destroying  its  military  through 
attrition  warfare,  albeit  less  efficient  and  effective  than  EBO,  makes  some  sense; 
given  the  objective,  the  military  is  a  logical  center  of  gravity.  But  if  the  objective  is 
compellance,  force  must  be  applied  surgically,  striking  at  centers  of  gravity  likely  to 
alter  the  opponent's  cost-benefit  analysis,  without  imposing  costs  so  great  as  to 
render  him  either  intransigent  or  irrational.26  Because  the  objectives  underlying 
the  use  of  force  determine  centers  of  gravity,  they  may  shift  from  the  enemy's 
armed  forces  to  non-military  targets  dear  to  the  civilian  population  or  leadership.27 
Indeed,  as  Allied  Force  demonstrated,  striking  military  targets  may  actually  em- 
bolden the  civilian  population.28 

Since  effects-based  targeting  involves  precisely  this  sort  of  search  for  effects  tied 
to  both  military  and  political  objectives,  it  subtly  suggests  an  expansive  view  of  the 
appropriate  targets  and  target  sets  in  a  conflict.  For  instance,  dual-use  facilities  be- 
come particularly  appealing  targets  because  the  attacker  not  only  benefits  from  de- 
struction or  neutralization  of  the  target's  military  value,  but  also  from  cumulative 
effects  on  the  civilian  population. 

Lieutenant  General  Michael  Short,  Air  Component  Commander  for  Operation 
Allied  Force,  made  it  clear  that  this  is  how  commanders  tasked  with  compellance 
missions  think.  In  a  controversial  interview,  General  Short  was  reported  as  saying  "I 
felt  that  on  the  first  night  the  power  should  have  gone  off,  and  major  bridges  around 

155 


Targeting  and  Humanitarian  Law:  Current  Issues 

Belgrade  should  have  gone  into  the  Danube,  and  the  water  should  be  cut  off  so  the 
next  morning  the  leading  citizens  of  Belgrade  would  have  got  up  and  asked  'Why  are 
we  doing  this?'  and  asked  Milosevic  the  same  question."29  A  crescendo  of  criticism 
followed,  for  he  seemed  to  be  suggesting  that  in  a  compellance  campaign  it  was  ap- 
propriate to  attack  civilian  targets  because  this  would  hasten  victory. 

General  Short  backtracked  somewhat  at  a  2001  US  Naval  War  College 
conference  on  the  Kosovo  campaign.  After  stating  that  the  center  of  gravity  was 
"Milosevic  and  the  men  and  women  around  him  who  depend  upon  him  and  who 
he,  in  turn,  depends  upon,"  he  stated, 

I  do  not  think  that  you  are  so  naive  that  I  do  not  say  to  myself  and  to  my  planners  that 
this  will  also  make  the  Serb  population  unhappy  with  their  senior  leadership  because 
they  allowed  this  to  happen.  But  that  is  a  spin  off — a  peripheral  result — of  me  targeting 
a  valid  military  objective.30 

The  problem  is  that  Article  57  of  Protocol  Additional  I,  which  the  United  States 
accepts  as  reflective  of  customary  international  law,  provides  that "  [w]hen  a  choice 
is  possible  between  several  military  objectives  for  obtaining  a  similar  military  ad- 
vantage, the  objective  to  be  selected  shall  be  that  the  attack  on  which  may  be  ex- 
pected to  cause  the  least  danger  to  civilian  lives  and  to  civilian  objects."31  Thus, 
collateral  damage  and  incidental  injury  are  only  lawful  when  they  are  unavoidable 
consequences  of  an  otherwise  proportionate  attack  selected  as  the  most  "humani- 
tarian" option  from  among  equally  militarily  advantageous  alternatives. 

In  fact,  we  are  seeing  these  sorts  of  fissures  in  the  guise  of  both  interpretive  dis- 
agreement and  revisionist  claims  of  the  inadequacy  of  the  humanitarian  law  defini- 
tion of  "military  objectives."  Article  52  defines  military  objectives  as  "objects  which 
by  their  nature,  location,  purpose  or  use  make  an  effective  contribution  to  military 
action  and  whose  total  or  partial  destruction,  capture  or  neutralization,  in  the  cir- 
cumstances ruling  at  the  time,  offers  a  definite  military  advantage."32  Protocols  II 
and  III  of  the  Conventional  Weapons  Convention33  and  the  Second  Protocol  to  the 
Cultural  Property  Convention,34  as  well  as  many  military  manuals  and  training 
material  (including  those  of  the  US),35  repeat  this  formula. 

While  even  the  United  States  accepts  this  as  the  correct  articulation  of  the  legal 
concept  of  "military  objective,"  explanations  of  the  standard  differ.  Most  notably, 
the  United  States  takes  an  expansive  stance.  For  instance,  the  authoritative  US 
Navy's  The  Commanders  Handbook  on  the  Law  of  Naval  Warfare  includes  "war  sus- 
taining" activities  within  the  scope  of  the  phrase.36  Similarly,  US  joint  doctrine  pro- 
vides that "  [c]  ivilian  objects  consist  of  all  civilian  property  and  activities  other  than 
those  used  to  support  or  sustain  the  adversary's  warfighting  capability."37 


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Michael  N.  Schmitt 


This  interpretation  has  generated  some  negative  reaction,  particularly  within 
the  non-governmental  organization  (NGO)  community  and  academia.  For  in- 
stance, one  respected  academic  has  opined  that 

Acts  of  violence  against  persons  or  objects  of  political,  economic  or  psychological 
importance  may  sometimes  be  more  efficient  to  overcome  the  enemy,  but  are  never 
necessary,  because  every  enemy  can  be  overcome  by  weakening  sufficiently  its  military 
forces.  Once  its  military  forces  are  neutralized,  even  the  politically,  psychologically  or 
economically  strongest  enemy  can  no  longer  resist.38 

Such  assertions  are  overly  simplistic.  First,  they  assume  that  both  sides  of  a  con- 
flict are  willing  to  commit  the  resources  necessary  to  conquer  the  enemy.  Operation 
Allied  Force  demonstrates  that  this  is  not  always  the  case.  It  may  well  be  that  one  side 
is  seeking  limited  objectives  and  therefore  only  prepared  to  employ  (or  risk)  forces 
necessary  to  achieve  those  specific  objectives.  In  the  campaign  against  the  Federal 
Republic  of  Yugoslavia,  NATO  explicitly  ruled  out  the  use  of  ground  forces,  thereby 
effectively  pre-announcing  its  unwillingness  to  commit  all  the  resources  at  its  dis- 
posal to  fully  neutralize  the  Yugoslavian  military.  Instead,  NATO's  strategy  was  to 
successively  impose  costs  on  Milosevic  until  his  cost-benefit  calculations  shifted 
enough  to  force  him  into  compliance  with  its  demands.39  Indeed,  given  21st-century 
attitudes  towards  the  use  of  force,  and  despite  the  conquest  of  both  Afghanistan  and 
Iraq  by  the  United  States  and  its  partners,  most  States  initiating  a  conflict  are  likely  to 
seek  limited  objectives  not  involving  conquest,  and  therefore  will  be  unwilling  to  risk 
the  forces  that  would  be  required  to  fully  "neutralize"  its  opponent.  Any  attempt  to 
convince  States  to  narrowly  interpret  "military  objective"  because  "every  enemy" 
can  be  overcome  by  sufficiently  weakening  its  military  forces  (albeit  probably  true), 
fails  to  take  cognizance  of  the  realities  of  modern  conflict. 

The  explanation  offered  above  also  rather  optimistically  assumes  that  neutral- 
ization of  enemy  forces  is  sufficient  to  achieve  one's  objectives.  However,  United 
States  and  coalition  forces  have  suffered  more  casualties  in  Iraq  since  President 
Bush  declared  hostilities  at  an  end  than  during  the  preceding  period  in  which  they 
"neutralized"  the  Iraqi  military  as  an  organized  armed  force.  Clearly,  victory  re- 
quires much  more  than  simply  defeating  one's  opponents  on  the  field  of  battle. 

Humanitarian  concerns  may  actually  auger  against  an  overly  restrictive  defini- 
tion of  military  objective.  Consider,  again,  Operation  Allied  Force.  Had  NATO 
limited  its  attack  to  Yugoslavia's  military  forces,  Milosevic  might  never  have 
yielded,  for  he  could  have  simply  sheltered  his  forces  while  waiting  for  NATO  re- 
solve to  dissolve.  In  the  process,  identifying  and  destroying  military  forces  would 
have  become  more  difficult  as  attacks  reduced  the  number  of  unambiguous  and 


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Targeting  and  Humanitarian  Law:  Current  Issues 

vulnerable  targets.  The  likelihood  of  collateral  damage  and  incidental  injury  would 
resultantly  have  increased.  Many  analysts  feared  exactly  this  would  happen  once 
the  decision  not  to  mount  a  ground  campaign  became  public — that  Milosevic 
would  wait  out  NATO  while  his  centers  of  gravity  remained  intact  and  the  Yugo- 
slav population  suffered  (and  his  support  grew).  Without  doubt,  limiting  the  target 
sets  to  enemy  military  forces  can  paradoxically  sometimes  be  less  humanitarian 
than  embracing  a  broader  interpretation  of  military  objectives. 

Although  few  States  explicitly  accept  the  overt  US  extension  to  "war  sustaining" 
targets,  the  definition  of  military  objectives  is  nevertheless  generally  applied  con- 
textually.  The  Report  to  the  Prosecutor  of  the  International  Criminal  Tribunal  for 
the  former  Yugoslavia  (ICTY)  on  the  NATO  bombing  campaign  provides,  for  in- 
stance, that 

When  the  definition  is  applied  to  dual-use  objects  which  have  some  civilian  uses  and 
some  actual  or  potential  military  use  (communications  systems,  transportation 
systems,  petrochemical  complexes,  manufacturing  plants  of  some  types),  opinions 
may  differ.  The  application  of  the  definition  to  particular  objects  may  also  differ 
depending  on  the  scope  and  objectives  of  the  conflict.  Further,  the  scope  and  objectives 
of  the  conflict  may  change  during  the  conflict.40 

That  there  is  a  gray  area  regarding  the  meaning  of  military  objectives  was  per- 
haps best  illustrated  in  the  controversy  generated  by  the  NATO  attack  on  the  Bel- 
grade's Radio  Televisija  Srbije  (RTS)  facility.  The  ensuing  litigation  in  the 
European  Court  of  Human  Rights  focused  on  whether  the  facility  was  a  civilian  ob- 
ject.41 Although  the  Court  eventually  dismissed  the  case  on  jurisdictional  grounds, 
and  despite  the  fact  that  the  ICTY  prosecutor  found  that  there  was  insufficient  ba- 
sis to  indict,42  many  in  the  humanitarian  law  community  believe  the  attack  was  un- 
lawful under  the  circumstances.  This  despite  a  prominent  military  law  expert's 
inclusion  of  "broadcast  and  television  stations"  in  an  illustrative  list  of  military  ob- 
jectives in  his  award-winning  book,43  something  the  ICRC  had  done  decades  ear- 
lier in  a  proposed  list  of  military  objectives  it  offered  in  1956.44 

Application  of  the  concept  of  military  objective  clearly  expands  or  contracts 
based  on  the  scope  and  goals  of  the  conflict.  Interestingly,  when  one  compares  the 
academic  commentary  on  the  subject  to  application  of  the  principle,  the  practical 
differences  narrow.  For  instance,  a  premier  legal  thinker  in  the  field  has  stated  that 
the  US  approach  "goes  too  far."  But,  a  review  of  air  campaigns  conducted  by  the 
United  States,  the  country  that  coined  the  term  "war-sustaining,"  reveals  that 
strikes  in  which  the  military  nature  of  the  target  is  questionable  are  extraordinarily 
rare.  Instead,  criticism  of  US  attacks  tends  to  center  on  their  proportionality  or 
compliance  with  the  requisite  duty  of  care. 45  That  said,  EBO  has  the  capacity  to  put 

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Michael  N.  Schmitt 


greater  substance  into  the  debate.  After  all,  if  one,  in  a  Clausewitzian  manner,  fo- 
cuses on  effects  during  a  conflict  intended  to  coerce  and  compel  an  opponent 
rather  than  conquer  him,  the  war  sustaining  verbiage  looks  very  attractive. 

Interestingly,  it  is  arguably  not  interpretive  disagreement  that  presents  the 
greatest  threat  to  humanitarian  law,  but  rather  revisionism  on  the  part  of  those 
who  argue  that  the  principle  itself  needs  to  be  adjusted.  Most  significant  in  this  re- 
gard are  the  fascinating  writings  of  Brigadier  General  Charles  Dunlap,  a  US  Air 
Force  judge  advocate  who  serves  as  senior  legal  adviser  for  the  Air  Force's  Air  Com- 
bat Command.  In  a  very  thoughtful — and  very  provocative — 2000  Strategic  Re- 
view article,  he  argues  that 

We  need  a  new  paradigm  when  using  force  against  societies  with  malevolent 
propensities.  We  must  hold  at  risk  the  very  way  of  life  that  sustains  their  depredations, 
and  we  must  threaten  to  destroy  the  world  as  they  know  it  if  they  persist.  This  means 
the  air  weapon  should  be  unleashed  against  entirely  new  categories  of  property  that 
current  conceptions  of  LOAC  put  off-limits.46 

General  Dunlap  limits  this  deviation  from  current  principles  of  humanitarian 
law  to  conflicts  with  "societies  whose  moral  compass  is  wildly  askew."  Moreover, 
he  does  not  advocate  targeting  either  noncombatants  or  objects  that  are  "genu- 
inely indispensable  to  the  survival  of  the  noncombatant,"  although  "almost  ev- 
erything else  would  be  fair  game."47  As  an  example,  he  suggests  "reducing  the 
middle  and  upper  classes  to  a  subsistence  level  through  the  destruction  of  all  but 
essential  goods"  might  pressure  the  very  groups  best  positioned  to  effect  the  de- 
sired change.48  In  General  Dunlap's  view,  doing  so  is  just  because  the  population 
bears  some  culpability  for  supporting  the  government,  or  at  least  failing  to  fulfill 
a  duty  to  oppose  it.49  To  an  extent,  he  is  a  21st-century  adherent  to  the  views  of 
Giulio  Douhet,  the  Italian  air  war  theorist  who,  in  his  1921  classic  Command  of 
the  Air ;  suggested  that  the  civilian  population  and  its  morale  were  important  cen- 
ters of  gravity.50 

Although  not  addressing  it  directly,  the  Dunlap  proposal  takes  EBO  to  the  ex- 
treme. Indeed,  General  Dunlap  suggests  that  the  purpose  behind  the  use  of  force  is 
not  punishment,  but  rather  "eviscerating  the  disposition  of  the  adversary  to  conduct 
objectionable  activities."51  His  views  resonate  with  many.  For  instance,  another 
thoughtful  active  duty  officer,  in  a  200 1  Air  Force  Law  Review  article,  has  suggested 
that  it  might  be  more  humane  to  attack  civilian  property  if  doing  so  would  demoral- 
ize the  population  and  contribute  to  conflict  termination,  than  to  protect  property  at 
the  expense  of  prolonging  hostilities.52  What  General  Dunlap  and  his  supporters  are 
calling  for  appears  to  be  nothing  less  than  a  fundamental  rejection  of  a  major 


159 


Targeting  and  Humanitarian  Law:  Current  Issues 

element  of  the  principle  of  distinction,  a  principle  that  the  International  Court  of 
Justice  labeled  "intransgressible"  in  its  Nuclear  Weapons  Advisory  Opinion.55 

Effects-based  operations,  focused  as  they  are  on  effects  vice  targets,  enliven  the 
debate  over  the  distinction  principle's  effectiveness  in  infusing  humanitarian  ends 
into  armed  conflict.  But  suggesting  civilian  objects  can  be  legitimate  targets  of  at- 
tack risks  the  spiral  of  violence  against  innocents  that  humanitarian  law,  such  as 
that  prohibiting  certain  reprisals,  seeks  to  prevent.  Moreover,  suggesting  that  at- 
tacking civilian  objects  is  appropriate  when  there  is  a  moral  imbalance  between 
belligerents  would  effectively  mean  malevolent  leaders  could  deprive  innocents 
among  their  population  of  humanitarian  law's  protection  against  the  ill-effects  of 
war.  Although  an  "ends  justify  the  means"  philosophy  may  be  appealing  in  the 
short  term,  it  will  ultimately  prove  a  very  slippery  slope. 

The  appropriate  balance  lies  between  the  extremes.  As  General  Short  correctly 
noted  above,  there  is  nothing  wrong  with  striking  legitimate  military  objectives 
in  a  manner  intended  to  affect  the  enemy's  will  to  continue  the  fight  or  the  civil- 
ian population's  support  for  the  government.  For  instance,  in  order  to  demon- 
strate that  they  controlled  the  air  during  the  Korean  conflict,  US  forces  dropped 
leaflets  pre-announcing  strikes  on  legitimate  military  targets.54  US  air  forces  suc- 
cessfully employed  this  tactic  again  during  Operation  Desert  Storm,  when  warn- 
ings of  impending  B-52  strikes  led  to  mass  surrender  by  Iraqi  forces.  There  is 
nothing  inherently  immoral  or  illegal  about  targeting  the  will  of  the  people  or 
their  leader.  That  said,  humanitarian  law  does,  and  should,  dictate  how  that  may 
be  accomplished. 

Moreover,  one  must  be  careful  what  one  wishes  for.  Opponents  of  advanced 
militaries  have  far  more  to  gain  from  a  relaxation  of  the  distinction  standard  than 
those  capable  of  fielding  state-of-the-art  forces.  The  disadvantaged  side  in  an 
asymmetrical  fight  has  every  incentive  to  strike  at  civilians  and  civilian  objects 
because  it  cannot  hope  to  prevail  on  the  field  of  battle.  Thus,  its  sole  chance  of 
victory  (or  chance  offending  off  defeat)  lies  in  striking  a  center  of  gravity  other 
than  the  military.  This  being  so,  a  restrictive  reading  of  military  objective  actually 
benefits  the  advantaged  side  by  allowing  it  to  leverage  its  superior  military  capa- 
bilities. It  is  only  when  mixing  ad  helium  and  in  hello  principles  by  labeling  one 
belligerent  malevolent  (as  suggested  by  General  Dunlap),  that  it  makes  any  sense 
for  the  militarily  advantaged  side  to  adopt  a  less  restrictive  standard;  so  long  as  its 
cause  is  just,  it  need  not  fear  attacks  against  its  civilians  or  civilian  objects.  This  is 
naive.  The  difficulty  of  objectively  determining  that  a  belligerent  is  in  the  wrong 
(consider  the  case  of  Iraq)  means  that  in  practice  any  shift  in  the  law  will  apply 
equally  to  both  sides. 


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Michael  N.  Schmitt 


Relaxing  the  principle  of  distinction  would  also  deprive  the  advantaged  side  of 
the  opportunity  to  use  what  General  Dunlap  has  labeled  "lawfare."55  To  the  extent 
the  enemy  begins  targeting  civilians  and  civilian  objects,  it  can  be  publicly  branded 
criminal,  thereby  potentially  undercutting  both  domestic  and  international  sup- 
port. Thus,  lawfare  can  impose  costs  on  an  adversary's  attempt  to  compensate  for 
military  weakness  by  shifting  the  center  of  gravity  he  is  attacking.  What  proponents 
of  relaxing  humanitarian  law  norms  seem  to  have  missed  is  that  the  question,  from 
a  purely  practical  point  of  view,  is  not  whether  relaxation  of  a  norm  benefits  your 
side;  rather,  it  is  the  relative  costs  and  benefits  of  doing  so  vis-a-vis  likely  oppo- 
nents. Therefore,  adopting  an  effects-based  operations  doctrine  should  not  neces- 
sarily lead  to  support  for  any  relaxation  of  the  principle  of  distinction,  because 
doing  so  might  well  enhance  the  opponent's  ability  to  achieve  enhanced  effects 
with  his  own  operations. 

Targeting  Leadership 

Always  an  appealing  target  set,  EBO  doctrine  and  the  growing  emergence  of 
compellance  as  a  campaign  objective  have  heightened  the  desire  to  strike  directly  at 
enemy  leadership.  During  Operation  Allied  Force,  for  instance,  government  min- 
istries were  included  as  strategic  targets,  ostensibly  because  of  the  "longer  term  and 
broader  impact  on  the  Serb  military  machine."56  Of  late,  killing  the  enemy  leader 
himself  has  become  an  open  objective  of  military  operations;  failure  to  do  so  is 
sometimes  even  deemed  operational  failure — consider  the  survival  of  Osama  bin 
Laden.  During  Operation  Iraqi  Freedom,  the  media  was  actually  reporting  at- 
tempts to  kill  Saddam  Hussein  in  nearly  real  time.57  Contrast  this  with  the  removal 
of  the  US  Air  Force  Chief  of  Staff  in  1990  for  suggesting  Saddam's  death  was  an  aim 
of  the  Operation  Desert  Storm  air  campaign.58 

Targeting  leadership  is  often  mislabeled  "assassination."  In  fact,  the  lineage  of 
the  humanitarian  law  prohibition  on  assassination  (e.g.,  Article  148  of  the  1863 
Lieber  Code)  demonstrates  that  the  term  is  best  interpreted  as  the  "treacherous 
killing  of  one's  enemy,"59  for  example  by  perfidiously  feigning  protected  status.60  It 
is  not  the  target's  status  that  determines  whether  a  wartime  assassination  has  been 
conducted,  but  rather  the  method  by  which  he  or  she  is  attacked. 

Recall  that  humanitarian  law  requires  distinguishing  between  combatants  (and 
illegal  noncombatants)  and  civilians  in  conducting  attacks.  With  regard  to  target- 
ing enemy  leadership,  therefore,  the  determinative  issue  is  the  status  of  the  individ- 
ual in  question;  those  who  are  combatants  or  wrongfully  taking  a  direct  part  in 
hostilities,  i.e.,  illegal  combatants,  may  legally  be  attacked. 

Article  5 1  of  Protocol  Additional  I  sets  forth  the  relevant  principle: 

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Targeting  and  Humanitarian  Law:  Current  Issues 

Art.  5 1 .2.  The  civilian  population  as  such,  as  well  as  individual  civilians,  shall  not  be  the 
object  of  attack  .... 

Art.  51.3.  Civilians  shall  enjoy  the  protection  afforded  by  this  section,  unless  and  for 
such  time  as  they  take  a  direct  part  in  hostilities. 

Violations  are  grave  breaches  under  Article  85  of  the  Protocol,  and,  therefore, 
States  party  to  the  Protocol  are  obligated  to  search  for  individuals  alleged  to  have 
targeted  civilians  (or  ordered  them  to  be  targeted)  and  either  try  them  for  the  of- 
fense or  turn  them  over  to  another  State  party  willing  to  do  so.61  An  analogous  ban 
for  non-international  armed  conflict  appears  in  Protocol  Additional  II,62  while  the 
Statute  of  the  International  Criminal  Court  contains  prohibitions  along  these  lines 
for  both  international  and  non-international  armed  conflict.63 

Since  "civilians"  enjoy  immunity  from  attack,  it  is  necessary  to  define  the  term. 
Under  Article  50  of  Protocol  Additional  I,  a  protected  civilian  is  someone  who  does 
not  fall  into  the  categories  enumerated  in  Article  4  of  the  Third  Geneva  Convention 
of  1949  and  Article  43  of  Protocol  Additional  I.64  Excluded  as  civilians  are  members 
of  the  armed  forces;  militia,  volunteer  corps,  or  members  of  an  organized  resistance 
commanded  by  a  person  responsible  for  subordinates,  who  wear  a  distinctive  sign  or 
uniform,  carry  weapons  openly,  and  are  subject  to  a  disciplinary  system  capable  of 
enforcing  the  law  of  armed  conflict;  and  members  of  a  levee  en  masse.  Article  44  re- 
duces the  requirement  to  carry  arms  openly  and  wear  distinctive  emblems  or  cloth- 
ing, but  not  in  situations  likely  to  have  much  bearing  on  whether  a  member  of  the 
enemy  leadership  can  be  targeted.65  Combatant  organizations  can  include  paramili- 
tary or  armed  law  enforcement  agencies  when  incorporated  into  the  armed  forces  if 
other  parties  to  the  conflict  have  been  formally  notified  of  the  integration.66 

There  is  little  doubt  that  any  member  (except  chaplains  and  medical  personnel) 
of  such  organizations  can  be  targeted,  although  not  directly  applying  force  them- 
selves. For  instance,  a  public  affairs  officer  in  the  military  is  a  legitimate  target  de- 
spite the  fact  that  he  or  she  does  not  perform  typically  military  functions.67  Even 
heads  of  State  or  government  who  are  active  members  of  the  armed  forces  may  be 
targeted;  humanitarian  law  provides  them  no  specially  protected  status.68 

Senior  leaders  who  are  not  members  of  the  armed  forces,  but  lie  in  the  chain  of 
command,  are  more  difficult  to  categorize.  Their  legitimacy  as  a  target  must  be  as- 
sessed contextually  and  holistically.  For  instance,  wearing  military  uniforms,  carry- 
ing weapons,  or  using  military  rank  suggest  combatant  status,  but  are  not  dispositive. 
The  Queen  of  England  wears  a  uniform  and  carries  a  ceremonial  dagger  during  the 
"trooping  of  the  colours,"  but  is  hardly  a  combatant  by  virtue  of  doing  so. 


162 


Michael  N.  Schmitt 


A  more  telling  indication  is  the  proposed  target's  role  in  the  command  of  the 
armed  forces.  Civilians  often  fill  dejure  positions  relative  to  the  armed  forces.  As  an 
example,  by  Article  II  of  the  US  Constitution,  the  President  is  the  "Commander-in- 
Chief."69  Similarly,  the  Queen  of  England  is  the  British  Commander-in-Chief  pursu- 
ant to  the  unwritten  constitution  of  the  United  Kingdom,  and  each  of  the  royals 
serves  as  a  regimental  "Colonel-in-Chief."  In  fact,  British  officers  swear  an  oath  of  al- 
legiance to  the  Queen,  not  the  State,  and  it  is  the  Queen  who  issues  their  commission. 

It  would  be  incongruous  to  suggest  that  all  such  individuals  are  legitimate  targets. 
Obviously,  if  a  post  is  purely  ceremonial,  or  otherwise  solely  dejure  in  nature,  i.e.,  if  it 
involves  no  military  decision-making,  then  the  incumbent  is  a  civilian  who  enjoys 
protected  status.  State  practice  would  also  suggest  that  decision-making  at  the  strate- 
gic level  of  war  does  not  render  the  participant  a  combatant  (legal  or  illegal),  because 
such  decisions  are  in  essence  political.  As  an  example,  attempting  to  build  an  inter- 
national coalition  would  not  alone  suffice.  However,  if  an  individual  occupying  a  de 
jure  position  makes  decisions  affecting  the  operational  or  tactical  level  of  war,  he  or 
she  is  sufficiently  involved  in  military  operations  to  become  legitimately  targetable.70 

At  times,  individuals  without  a  de  jure  position  in  the  chain  of  command  also 
exercise  influence  over  military  operations.  For  example,  Congress  must  approve 
all  military  funding  in  the  United  States.  This  makes  Senators  and  Congressmen, 
particularly  those  on  committees  dealing  with  the  military,  enormously  influential 
vis-a-vis  defense  policy.  Or  consider  individuals  tied  to  a  dictator  who  exercise 
great  influence  over  particular  aspects  of  a  conflict,  such  as  certain  members  of 
Saddam  Hussein's  family  or  other  highly  placed  members  of  his  tribe  from  Tikrit. 

In  such  cases,  the  critical  issue  is  whether  they  are  taking  a  direct  part  in  hostili- 
ties as  envisaged  by  Article  51.3  of  Protocol  Additional  I  (see  text  above).  As  to  the 
meaning  of  the  term  "direct  part,"  the  Commentary  to  the  Protocol  states  that 
"  [d]  irect  participation  in  hostilities  implies  a  direct  causal  relationship  between  the 
activity  engaged  in  and  the  harm  done  to  the  enemy  at  the  time  and  place  where  the 
activity  takes  place."71  If  a  leader  makes  combat  decisions  at  the  tactical  level  such 
as  target  selection,  then  he  or  she  would  certainly  be  directly  participating.  Argu- 
ably, the  same  is  true  for  those  who  act  in  a  like  manner  at  the  operational  level.  Es- 
sentially, leaders  who  decide  how  and  where  to  use  military  force  are  directly 
participating  in  hostilities. 

As  an  aside,  note  the  Article  51.3  "unless  and  for  such  time"  qualifier.  Some 
have  suggested  that  this  allows  direct  participants  who  are  not  formally  part  of 
the  armed  forces  to  opt  in  and  out  of  "direct  participant"  status,  and,  as  a  result, 
susceptibility  to  attack.  This  position  runs  counter  to  the  underlying  purposes  of 
humanitarian  law  because  it  would  encourage  a  lack  of  respect  for  the  principle 
of  distinction  on  the  part  of  the  victims  of  those  moving  back  and  forth  through 

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Targeting  and  Humanitarian  Law:  Current  Issues 

the  revolving  door.  A  much  more  logical  and  practical  standard  provides  that 
once  an  individual  has  opted  into  the  hostilities,  he  or  she  remains  a  valid  military 
objective  until  unambiguously  opting  out.  This  may  occur  through  extended 
non-participation  or  an  affirmative  act  of  withdrawal.72  Since  the  individual  who 
directly  participated  did  not  enjoy  any  privilege  to  engage  in  hostilities  in  the  first 
place,  it  is  reasonable  that  he  or  she  assumes  the  risk  that  the  other  side  is  unaware 
of  such  withdrawal. 

Obviously,  gray  area  situations  exist  in  which  the  sufficiency  of  the  causal  rela- 
tionship to  the  conduct  of  hostilities  is  unclear.  Indeed,  the  issue  of  the  scope  of  di- 
rect participation  is  the  subject  of  an  ongoing  international  project  sponsored  by 
the  International  Committee  of  the  Red  Cross.  In  uncertain  cases,  it  is  prudent  to 
interpret  the  concept  narrowly,  since  striking  directly  at  an  opponent's  leadership 
can  be  highly  destabilizing.  This  is  especially  so  where  the  proposed  target  is  not  in 
the  chain  of  command,  for  the  absence  of  a  position  in  an  armed  force  or  its  civilian 
control  structure  creates  a  rebuttable  presumption  that  he  or  she  enjoys  protected 
status  as  a  civilian. 

As  should  be  apparent,  applying  the  humanitarian  law  bearing  on  leadership 
targeting  can  prove  difficult  in  practice.  With  the  exception  of  situations  in  which 
the  leaders  are  members  of  the  armed  forces,  decapitation  operations  inevitably 
risk  condemnation  on  legal,  or  even  moral,  grounds.  Consider  the  Israeli  targeted 
killing  strategy.73  Although  the  operations  are  clearly  legal  in  many  cases,74  they  are 
widely  condemned  as  violations  of  international  law.75 

Non-legal  reasons  also  militate  against  mounting  decapitation  strikes.  They 
may  strengthen  enemy  resolve  or  morale,  particularly  if  the  target  becomes  a  mar- 
tyr in  the  eyes  of  the  enemy  population.  Leadership  attacks  also  risk  retaliation 
against  one's  own  leadership  or  other  high  value  targets  like  the  civilian  popula- 
tion. When  the  target  has  ties  to  terrorist  groups,  this  possibility  is  especially  acute. 
Targeting  leadership  may  further  be  perceived  as  escalation,  an  upping  of  the 
stakes  which  increases  the  level  of  violence  and  complicates  conflict  termination. 
Indeed,  an  individual  aware  of  being  targeted  may  become  intransigent,  even  irra- 
tional, thereby  rendering  his  military  operations  less  predictable. 

Of  course,  there  is  always  the  chance  that  targeted  individuals  may  be  replaced 
by  less  acceptable  alternatives.  And  if  they  had  civil  responsibilities,  their  death  may 
limit  the  ability  of  the  State  to  recover  from  conflict,  thereby  presenting  the  victori- 
ous occupying  forces  with  greater  occupation  challenges.  The  simple  fact  is  that 
quite  aside  from  normative  barriers,  targeting  an  enemy  leader  may  be  insensible 
from  a  practical  point  of  view. 


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Michael  N.  Schmitt 


Targeting  Terrorists 

In  the  aftermath  of  the  tragic  attacks  of  September  11,  the  use  of  force  against  ter- 
rorists has  been  fervently  debated,  particularly  as  the  preferred  response  paradigm 
shifted  from  law  enforcement  to  military  action.  Unfortunately,  the  analysis  has 
tended  to  be  overcomplicated. 

During  armed  conflict,  whether  international  or  non-international  in  nature, 
the  issue  of  terrorism  is  irrelevant  vis-a-vis  targeting.  All  combatants  and  individu- 
als taking  direct  part  in  hostilities  are  targetable  regardless  of  their  motive  or  the 
object  or  persons  they  attack. 

The  quandary  surfaces  in  cases  of  terrorism  occurring  outside  armed  conflict.  As  a 
matter  of  law,  the  issue  is  one  of  self-defense.  Article  51  of  the  UN  Charter  sets  forth 
the  codified  law  on  the  subject.  It  provides,  in  relevant  part,  that  "[n]othing  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 "76  The  ques- 
tion is  whether  non-State  actors  such  as  terrorists  can  commit  an  "armed  attack"  that 
allows  the  victim  State  to  respond  with  military  force  as  if  it  had  been  attacked  by  an- 
other State. 

It  is  incontrovertible  that  since  9/11  the  international  community  has  ac- 
cepted just  such  an  interpretation  of  the  law  of  self-defense.  Virtually  no  State 
voiced  any  opposition  to  the  US  and  coalition  attacks  on  al-Qaeda  forces  in  Af- 
ghanistan that  began  October  7,  2001.  Indeed,  two  pre-October  7th  Security 
Council  resolutions  specifically  cited  the  right  to  self-defense  with  reference  to 
the  9/11  attacks,77  NATO  and  other  international  organizations  invoked  the  col- 
lective defense  provisions  of  their  constitutive  treaties,78  and  many  States  either  con- 
tributed forces  to  the  effort  or  provided  other  forms  of  support.79  Following  com- 
mencement of  hostilities  in  Afghanistan,  international  support  for  the  coalition 
operations  remained  strong  and  widespread.80  Clearly,  international  law  is  now 
interpreted  as  permitting  military  operations  in  self  or  collective  defense  against 
terrorist  acts  committed  by  non- State  actors.  However,  when  may  those  defensive 
operations  occur? 

Self-defense  is  obviously  permissible  in  response  to  an  ongoing  attack;  that 
much  is  clear  from  Article  51  on  its  face.  When  armed  action  follows  an  attack,  its 
legality  becomes  murkier.  Some  have  suggested  that  since  the  attack  is  over,  the  ap- 
propriate responses  are  law  enforcement  {vis-a-vis  the  terrorists)  or  diplomacy  and 
sanctions  (vis-a-vis  State  support).  Negative  reaction  to  past  responses  to  terrorist 
attacks,  such  as  the  near  universal  criticism  of  Operation  El  Dorado  Canyon  that 
followed  the  1986  bombing  of  the  La  Belle  discotheque  in  Berlin,81  demonstrates 
that  States  have  tended  to  be  uneasy  with  counter-terrorist  actions  that  smack  of 

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Targeting  and  Humanitarian  Law:  Current  Issues 

retaliation  or  retribution.  Yet,  denying  the  possibility  of  post-attack  military  action 
would  surrender  the  initiative  to  non-State  terrorist  actor's  intent  on  continuing 
their  campaign  of  violence  against  the  target  State  and  its  citizens. 

A  much  more  effective  and  appropriate  way  to  analyze  terrorism  and  military 
responses  thereto  is  to  ask  whether  an  attack  was  part  of  a  continuing  campaign 
conducted  by  the  terrorist  group  against  the  responding  State.  If  so,  the  individual 
actions  constituting  it  are  no  more  separate  and  distinct  than  tactical  engagements 
in  a  military  campaign.  For  instance,  al-Qaeda  has  been  attacking  US  targets  for 
over  a  decade  in  a  regular  and  very  violent  campaign.  In  the  face  of  such  campaigns, 
defensive  actions  may  continue  until  it  is  reasonable  to  conclude  the  terrorist  cam- 
paign has  ended. 

By  this  approach,  the  defending  State  may  conduct  strikes  against  those  who  would 
carry  out  subsequent  attacks,  not  in  retaliation  or  retribution  and  not  in  anticipation  of 
future  acts  of  terrorism,  but  rather  because  the  terrorist  campaign  is  underway.  As  with 
all  defensive  actions,  the  two  requirements  of  self-defense  apply.  First,  defensive  action 
has  to  be  necessary,  i.e.,  non-forceful  measures  (such  as  law  enforcement,  diplomacy, 
economic  sanctions,  etc.)  would  not  suffice  to  deter  further  attacks  making  up  the  ter- 
rorist campaign.  Second,  the  use  of  force  must  be  proportional.82  Proportionality  does 
not  refer  to  the  relationship  between  the  force  against  which  one  is  defending  and  that 
used  in  self-defense.  Rather,  proportional  force  is  that  amount  offeree  necessary  to  ef- 
fectively defend  against  the  attack,  and  no  more.  Assessed  on  a  case-by-case  basis,  it 
may  either  exceed  or  fall  short  of  that  used  by  the  attacker. 

Characterizing  individual  terrorist  attacks  as  a  part  of  a  single  integrated  campaign 
clarifies  the  legality  of  responses  thereto.  For  instance,  when  a  CIA-controlled  Predator 
attacked  a  car  carrying  Qaed  Senyan  al-Harthi,  al-Qaeda's  senior  operative  in  Yemen, 
in  2002,  there  was  much  discussion  about  targeted  killings,  the  nature  of  the  conflict, 
and  so  forth.  Yet,  al-Harthi  had  been  tied  to  the  October  2000  attack  on  the  USS  Cole 
and  was  still  active  in  a  terrorist  group  against  which  law  enforcement  had  proven  inef- 
fective and  which  had  vowed  to  carry  out  more  terrorist  strikes  against  the  United 
States  in  the  aftermath  of  their  highly  successful  attacks  of  September  ll.83  Addi- 
tionally, the  CIA  conducted  the  operation  with  the  cooperation  of  the  Yemeni  intelli- 
gence service.84  The  only  debatable  issue  from  a  self-defense  perspective  was  whether 
al-Harthi  could  have  been  arrested  instead  of  killed.  Although  ultimately  a  question  of 
fact,  it  appears  reasonable  for  US  officials  to  have  concluded  that  there  was  a  possibility 
he  would  elude  capture,  thereby  necessitating  the  lethal  attack. 

An  analogous  analysis  applies  to  Israel  Defense  Force  operations  targeting  specific 
Palestinians.  To  the  extent  the  targets  are  clearly  involved  in  an  ongoing  campaign  of 
terrorism,  and  in  the  absence  of  other  reliable  means  of  neutralizing  them,  they  may 
be  attacked  in  self-defense  when  there  is  a  "specific  and  imminent"  threat.85  Thus,  in 

166 


Michael  N.  Schmitt 


such  cases,  the  operations  are  legal  quite  aside  from  the  separate  issues  of  whether  an 
armed  conflict  is  underway  and,  if  so,  its  character  under  humanitarian  law. 

A  third  possibility  is  mounting  counter-terrorist  strikes  before  the  initial  terror- 
ist attack  has  taken  place.  The  seminal  legal  issue  here  is  neither  necessity  nor  pro- 
portionality, but  rather  imminency,  for  the  weight  of  authority  in  international  law 
requires  that  an  attack  be  imminent  before  acting  in  self-defense.  In  the  immortal 
words  of  Secretary  of  State  Daniel  Webster  in  correspondence  with  Lord  Ash- 
burton  following  the  1837  Caroline  incident,  the  need  for  defensive  actions  must  be 
"instant,  overwhelming,  leaving  no  choice  of  means,  and  no  moment  for  delibera- 
tion."86 Webster's  verbiage  has  matured  over  time  into  a  requirement  that  the  de- 
fending party  wait  until  the  last  possible  moment  before  acting  anticipatorily.87 

Professor  Yoram  Dinstein  has  rejected  the  term  "anticipatory"  in  favor  of  "in- 
terceptive"  on  the  basis  that  Article  5 1  requires  an  armed  attack,  not  the  possibility 
thereof.  He  propounds  a  standard  that  requires  the  attacker  to  have  "committed  it- 
self to  an  armed  attack  in  an  ostensibly  irrevocable  way."  As  Professor  Dinstein  ex- 
plains, "[t]he  crucial  question  is  who  embarks  upon  an  irreversible  course  of 
action,  thereby  crossing  the  Rubicon."88  By  this  approach,  no  shot  need  be  fired 
prior  to  the  defensive  action,  but  the  attack  operation  must  have  been  launched. 

Professor  Dinstein's  analysis  is  an  insightful  balancing  of  the  practical  need  to 
deliver  a  defensive  blow  before  the  opponent  strikes  (lest  it  be  too  late  to  mount  an 
effective  defense)  with  the  apparent  clarity  of  the  Article  5 1  requirement  that  an 
armed  attack  have  occurred.  The  one  difficulty  with  his  approach  is  the  require- 
ment of  irrevocability,  a  criterion  that  may  be  too  difficult  to  judge  except  ex  post 
facto.  A  more  workable  tack  may  be  to  appraise  the  attacker's  commitment  to  fol- 
low through,  the  nature  of  the  acts  already  performed,  and  the  extent  to  which  the 
defensive  action  occurs  during  the  last  viable  window  of  opportunity  to  mount  an 
effective  defense. 

If  a  State  initiates  defensive  action  before  being  attacked,  the  evidence  of  the 
pending  attack  (or  follow-on  attacks  in  case  of  a  terrorist  campaign),  the  need  to 
militarily  defend  oneself,  and  the  perpetrator's  identity,  must  be  very  credible.  This 
was  the  unambiguous  lesson  of  the  widespread  criticism  of  the  US  strikes  into  Su- 
dan in  1998  following  terrorist  bombings  of  its  embassies  in  Dar-es-Salaam  and 
Nairobi.  Compare  the  muted  criticism  of  related  strikes  against  terrorist  camps  in 
Afghanistan.  Since  the  two  operations  were  conducted  simultaneously  and  in  re- 
sponse to  the  same  terrorist  attacks,  the  logical  explanation  for  the  dramatically 
different  international  reactions  was  a  pervasive  belief  that  in  the  case  of  the  attacks 
into  Khartoum,  the  United  States  got  it  wrong  by  striking  a  pharmaceutical  plant 
with  no  ties  to  terrorism. 


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Targeting  and  Humanitarian  Law:  Current  Issues 

Evidentiary  issues  again  surfaced  in  the  aftermath  of  US  and  allied  operations  in 
Iraq  in  2003.  Failure  to  locate  convincing  evidence  of  any  Iraqi  weapons  of  mass 
destruction  programs  or  Iraqi  ties  to  al-Qaeda  generated  significant  criticism  of  the 
decision  to  attack.89  As  in  the  Sudanese  case,  concern  that  the  attack  was  based  on 
insufficient  and  faulty  intelligence  was  pervasive. 

Given  that  terrorists  intentionally  seek  to  mask  their  activities,  evidence  in  ter- 
rorism cases  will  seldom  be  unassailable;  therefore,  to  demand  perfect  evidence  of 
future  attacks  and  their  source  would  be  to  render  victims  defenseless.  A  better 
threshold  is  one  that  requires  evidence  on  which  counterterrorist  operations  are 
justified  to  be  "clear  and  compelling."  The  United  States  proffered  this  standard  in 
its  notification  to  the  Security  Council  that  it  was  acting  in  self-defense  when  at- 
tacking al-Qaeda  and  Taliban  assets  in  Afghanistan.  It  articulated  the  same  crite- 
rion when  briefing  the  North  Atlantic  Council  on  the  complicity  of  the  two  groups 
in  the  9/11  attacks.90  Both  the  Security  Council  and  North  Atlantic  Council  appear 
to  have  accepted  the  standard  as  sufficiently  high,  for  neither  criticized  the  ensuing 
military  operations.  A  mere  preponderance  standard  would  certainly  be  too  low  to 
justify  resort  to  military  force,  the  most  significant  act  in  international  relations, 
whereas  a  beyond  a  reasonable  doubt  standard  would  clearly  be  too  high  in  the 
shadowy  world  of  terrorism. 

Finally,  the  issue  of  who  can  legally  conduct  counterterrorism  operations  in- 
volving armed  force  has  drawn  some  attention.  Specifically,  must  operations  be 
mounted  by  combatants  or  can  others,  such  as  members  of  intelligence  agencies  or 
law  enforcement  personnel,  conduct  them? 

If  the  operations  are  conducted  during  an  international  armed  conflict,  and  the 
terrorists  are  taking  part  in  the  conflict,  then  combat  operations  may  be  conducted 
only  by  combatants.  Article  43  of  Protocol  Additional  I  codifies  this  point  of  cus- 
tomary international  law.91  As  noted  earlier,  combatants  are  members  of  the 
armed  forces  and  paramilitary  or  armed  law  enforcement  agencies  incorporated 
into  the  armed  forces.92 

No  such  limitation  applies  in  a  non-international  armed  conflict.  On  the  con- 
trary, intelligence  and  law  enforcement  agencies  are  regularly  involved  in  attempt- 
ing to  maintain  law  and  order  during  an  internal  conflict.  The  latter  are  often  the 
lead  agencies  in  such  conflicts,  as  was  the  case,  for  example,  during  the  distur- 
bances in  Macedonia  in  2001. 

In  cases  of  violence  between  a  State  and  transnational  terrorists  unrelated  to  an 
ongoing  armed  conflict,  humanitarian  law,  with  the  exception  of  general  principles 
pervading  all  uses  of  force  (such  as  discrimination,  proportionality,  unnecessary  suf- 
fering), does  not  apply.  The  applicability  of  the  humanitarian  law  to  international 
armed  conflict  depends  on  the  participation  of  at  least  one  State  on  each  side,93  while 

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Michael  N.  Schmitt 


that  applicable  to  non-international  armed  conflicts  requires  a  situation  resembling 
classic  civil  war.  With  respect  to  the  latter,  Common  Article  3  to  the  Geneva  Conven- 
tions envisions  a  "Party  in  revolt  against  the  dejure  Government  [that]  possess  an  or- 
ganized force,  an  authority  responsible  for  its  acts,  acting  within  a  determinate 
territory."94  Protocol  Additional  II  requires  a  conflict  "which  takes  place  in  the  Terri- 
tory of  a  high  contracting  Party  between  its  armed  forces  and  dissident  armed  forces 
[that] . . .  exercise  control  over  part  of  its  territory."95  In  any  case,  and  as  noted  above, 
the  humanitarian  law  of  non-international  armed  conflict  imposes  no  limitation  on 
the  participation  of  other  than  members  of  the  armed  forces. 

Therefore,  except  in  an  international  armed  conflict,  intelligence  or  law  en- 
forcement agents  may  conduct  counter-terrorist  strikes  such  as  occurred  in  Ye- 
men. Thus,  President  Bush's  authorization  to  the  Central  Intelligence  Agency  to 
target  specific  al-Qaeda  members  outside  the  confines  of  armed  conflict  did  not  vi- 
olate humanitarian  law,96  nor  did  the  creation  of  a  CIA  Special  Operations  Group 
of  several  hundred  officers  to  conduct  this  type  of  missions.97 

Finally,  where  may  operations  in  other  than  an  armed  conflict  be  conducted? 
Obviously,  they  may  take  place  on  the  territory  of  the  State  conducting  them  or,  as 
in  the  case  of  the  strike  in  Yemen,  on  the  territory  of  any  State  that  has  consented. 
The  more  difficult  question  is  when  may  counterterrorist  operations  be  mounted 
without  the  consent  of  the  State  of  situs. 

States  enjoy  the  right  of  territorial  integrity  under  international  law,  a  custom- 
ary right  enshrined  within  Article  2(4)  of  the  Charter.98  At  the  same  time,  interna- 
tional law  recognizes  a  right  of  self-defense,  itself  enshrined  within  Article  5 1  of  the 
Charter.  When  legal  rights  appear  to  conflict,  an  effort  must  be  made  to  best  bal- 
ance them  in  the  context  in  which  they  are  to  be  applied. 

In  this  situation,  recall  that  States  have  a  duty  to  "use  due  diligence  to  prevent 
the  commission  within  its  dominions  of  criminal  acts  against  another  nation  or 
people."99  This  duty  plainly  includes  keeping  one's  territory  free  from  use  for  ter- 
rorist ends.100  In  light  of  this  obligation,  the  only  sensible  balancing  of  the  territo- 
rial integrity  and  self-defense  rights  is  one  that  allows  the  State  exercising  self- 
defense  to  conduct  counterterrorist  operations  in  the  State  where  the  terrorists 
are  located  if  that  State  is  either  unwilling  or  incapable  of  policing  its  own  terri- 
tory. A  demand  for  compliance  should  precede  the  action  and  the  State  should  be 
permitted  an  opportunity  to  comply  with  its  duty  to  ensure  its  territory  is  not  be- 
ing used  to  the  detriment  of  others.101  If  it  does  not,  any  subsequent 
nonconsensual  counterterrorist  operations  into  the  country  should  be  strictly 
limited  to  the  purpose  of  eradicating  the  terrorist  activity  (purpose  and  propor- 
tionality),   and    the    intruding    force    must    withdraw    immediately    upon 


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Targeting  and  Humanitarian  Law:  Current  Issues 

accomplishment  of  its  mission  since  the  necessity  for  these  specific  defensive  op- 
erations evaporates  at  that  point.102 

Human  Shields  and  Shielding  with  Civilian  Objects 

The  US  Defense  Intelligence  Agency  has  framed  this  issue  as  "the  placement  of  any 
category  of  non-combatant  personnel,  or  of  civilian  equipment,  vehicles,  or  mate- 
rial at  or  near  a  recognized  or  suspected  military  or  government  facility  immedi- 
ately before  or  during  hostilities."103  It  would  also  include  placing  military  objects 
or  personnel  near  protected  individuals,  objects,  or  locations.  In  technical  terms, 
such  activity  falls  into  the  category  of  "counter-targeting,"  i.e.,  "preventing  or  de- 
grading detection,  characterization,  destruction,  and  post-strike  assessment."104 
The  goals  of  using  human  or  civilian  object  shields  include  complicating  an  oppo- 
nent's military  planning,  reducing  the  effectiveness  of  its  strikes,  preserving  key 
military  forces  and  facilities  such  as  command  and  control  assets,  and/or  generat- 
ing a  strategic  incident  by  creating  the  impression  that  the  attacker  is  careless,  in- 
competent, or,  most  significantly  in  the  CNN  age,  lawless.105 

Sadly,  there  have  been  many  instances  of  the  use  of  human  or  civilian  object 
shields  in  recent  history.  All  have  been  uniformly  condemned.  For  instance, 
Iraq's  use  of  human  shields  during  the  first  Gulf  War  was  labeled  by  the  UN  Gen- 
eral Assembly  as  a  "most  grave  and  blatant  violation  of  Iraq's  obligations  under 
international  law."106  A  dozen  years  later,  Human  Rights  Watch,  in  Off  Target,  its 
report  on  the  conduct  of  the  second  Gulf  War,  condemned  Iraqi  use  of  civilians 
both  to  protect  Iraqi  forces  during  hostilities  and  to  advance  on  US  and  British 
forces.107  Similarly,  the  use  of  human  shields  was  widespread  during  the  1999 
NATO  bombing  campaign  against  the  Federal  Republic  of  Yugoslavia.  Even  UN 
peacekeepers  have  been  used  as  human  shields,  most  infamously  with  the  seizure 
of  United  Nations  Protection  Force  (UNPROFOR)  personnel  by  the  Bosnia 
Serbs  in  1995.108 

As  a  matter  of  law,  the  use  of  shields  presents  two  issues:  Can  shields  be  targeted 
directly  (discrimination)  and,  if  not,  how  do  they  factor  into  the  proportionality  cal- 
culation? In  considering  these  questions,  it  is  useful  to  note  that  US  targeting  doc- 
trine closely  tracks  the  principles  set  forth  in  Protocol  Additional  I.  For  instance, 
Joint  Publication  3-60  (discussed  above)  adopts  the  proportionality  formula  con- 
tained in  Articles  51.5(b)  and  57.2  verbatim.109  With  regard  to  discrimination,  the 
Joint  Publication  requires  US  forces  to  "engage  only  in  military  operations  the  effects 
of  which  distinguish  between  the  civilian  population  (or  individual  civilians  not  tak- 
ing a  direct  part  in  hostilities)  and  combatant  forces,  directing  the  application  of 


170 


Michael  N.  Schmitt 


force  solely  against  the  latter.  Similarly,  military  force  may  be  directed  only  against 
military  objects  or  objectives,  and  not  against  civilian  objects."110 

Without  question,  using  human  or  civilian  object  shields  violates  humanitarian 
law.  Article  28  of  the  Fourth  Geneva  Convention  provides  that "  [t]he  presence  of  a 
protected  person  may  not  be  used  to  render  certain  points  or  areas  immune  from 
military  operations."111  The  analogous  Protocol  Additional  I  provision  is  even 
more  explicit. 

The  presence  or  movements  of  the  civilian  population  or  individual  civilians  shall  not 
be  used  to  render  certain  points  or  areas  immune  from  military  operations,  in 
particular  attempts  to  shield  military  objectives  from  attacks  or  to  shield,  favour  or 
impede  military  operations.  The  Parties  to  the  conflict  shall  not  direct  the  movement 
of  the  civilian  population  or  individual  civilians  in  order  to  attempt  to  shield  military 
objectives  from  attacks  or  to  shield  military  operations.112 

The  International  Criminal  Court  Statute  includes  these  prohibitions  as  war 
crimes  in  Article  8.113 

Uncertain,  though,  are  the  effects  of  such  misconduct  on  an  opponent's  military 
operations.  To  address  this  issue,  it  is  necessary  to  distinguish  between  involuntary 
shields  and  those  who  volunteer  to  serve  in  this  role.  Beginning  with  the  former, 
Article  51  of  Protocol  Additional  I  explicitly  provides  that "  [a]  ny  violation  of  these 
prohibitions  [which  includes  the  prohibition  on  shielding]  shall  not  release  the 
Parties  to  the  conflict  from  their  legal  obligations  with  respect  to  the  civilian  popu- 
lation and  civilians.  .  .  ,"114  Therefore,  an  attacker  continues  to  be  bound  both  by 
the  prohibition  on  directly  attacking  civilians  and  the  proportionality  principle. 
Taking  these  requirements  together,  the  attacker  must  consider  the  deaths  and  in- 
juries shields  might  suffer  when  determining  whether  the  military  advantage  ac- 
cruing from  attack  on  the  military  objective  they  are  shielding  outweighs  likely 
collateral  damage  and  incidental  injury. 

Few  have  suggested  that  an  attacker  should  be  released  from  the  obligation  not 
to  directly  target  human  shields.  However,  there  is  far  less  satisfaction  with  pure 
application  of  the  principle  of  proportionality,  for  some  are  concerned  that  a  ma- 
levolent opponent  might  turn  the  use  of  human  shields  into  a  significant  military 
advantage.  Specifically,  by  using  shields,  an  opponent  could  so  alter  the  extent  of 
likely  civilian  death  and  injury  resulting  from  a  strike,  that  the  military  objective  is 
rendered  immune  from  attack.  Thus,  the  1976  US  Air  Force  law  of  armed  conflict 
manual  states  that "  [a]  party  to  a  conflict  which  places  its  own  citizens  in  positions 
of  danger  by  failing  to  carry  out  the  separation  of  military  activities  from  civilian 
activities  necessarily  accepts,  under  international  law,  the  results  of  otherwise 


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Targeting  and  Humanitarian  Law:  Current  Issues 

lawful  attacks  upon  valid  military  objectives  in  their  territory."1 15  And  no  less  a  dis- 
tinguished scholar  and  practitioner  than  A.P.V.  Rogers  has  suggested  that 

...  a  tribunal  considering  whether  a  grave  breach  has  been  committed  [a  disproportionate 
attack]  would  be  able  to  take  into  account  when  considering  the  rule  of  proportionality  the 
extent  to  which  the  defenders  had  flouted  their  obligation  to  separate  military  objectives 

from  civilian  objects  and  to  take  precautions  to  protect  the  civilian  population The 

proportionality  approach  taken  by  the  tribunals  should  help  to  redress  the  balance  which 
would  otherwise  be  tilted  in  favour  of  the  unscrupulous.116 

Despite  such  calls,  the  prevailing  practice  appears  to  be  unqualified  fidelity  to 
the  principle  of  proportionality;  this  is  the  position  taken  in  US  doctrine.  In  ad- 
dressing use  by  the  enemy  of  human  shields,  Joint  Publication  3-60  states  that: 
"Joint  force  responsibilities  during  such  situations  are  driven  by  the  principle  of 
proportionality. . . .  When  an  adversary  employs  illegal  means  to  shield  legitimate 
targets,  the  decision  to  attack  should  be  reviewed  by  higher  authority  in  light  of 
military  considerations,  international  law,  and  precedent."117  The  US  Air  Force,  in 
its  own  doctrine,  acknowledges  the  shields  dilemma,  but  likewise  retains  the  pro- 
tection civilians  enjoy  under  humanitarian  law.  Air  Force  Pamphlet  14-210  points 
out  that 

[a]  state's  failure  to  segregate  and  separate  its  own  military  activities  and  to  avoid 
placing  military  objectives  in  or  near  a  populated  area  may  greatly  weaken  protection 
of  its  civilian  population.  Such  protection  is  also  compromised  when  civilians  take  a 
direct  part  in  hostilities  or  are  used  unlawfully  in  an  attempt  to  shield  attacks  against 
military  objectives.118 

Note  that  protection  is  "weakened,"  not  canceled;  in  other  words,  14-210  recog- 
nizes that  such  practices  have  a  de  facto  effect  of  weakening  protection  of  civilians 
and  civilian  objects  because  their  proximity  to  military  objectives  increases  their  like- 
lihood of  being  incidentally  injured  or  collaterally  damaged — but  there  is  no  dejure 
relaxation  of  the  proportionality  standard. 

Perhaps  the  best  guidance  on  the  subject  is  that  set  forth  in  the  Air  Force's  Oper- 
ations and  the  Law  text: 

[Sjtandards  of  conduct  should  apply  equally  to  the  attacker  and  defender.  In  other 
words,  that  the  responsibility  to  minimize  collateral  injury  to  the  civilian  population 
not  directly  involved  in  the  war  effort  remains  one  shared  by  the  attacker  and  the 
defender;  and  that  the  nation  that  uses  its  civilian  population  to  shield  its  own  military 

forces  violates  the  law  of  war  at  the  peril  of  the  civilians  behind  whom  it  hides At  the 

same  time,  however,  targeteers  and  judge  advocates  should  consider  the  necessity  of 


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Michael  N.  Schmitt 


hitting  the  particular  target,  the  expected  results  versus  expected  collateral  damage, 
and  ways  to  minimize  civilian  casualties,  if  possible."119 

An  approach  which  refuses  to  release  one  side  from  its  full  obligations  under  hu- 
manitarian law  when  the  other  violates  it  is  consistent  with  the  underlying  purpose 
of  that  body  of  law — protection  of  those  who  are  not  engaged  in  the  conflict  from  its 
effects.  While  humanitarian  law  takes  account  of  the  practicalities  of  warfare  (the 
principle  of  proportionality  being  perhaps  the  best  example),  it  is  not  intended  nor 
designed  to  ensure  a  "fair  fight."  Suggestions  that  the  wrongful  behavior  of  one  side 
justify  a  revision  of  the  other's  obligations  under  humanitarian  law  in  order  to  re- 
dress the  balance  between  the  two  appear  under  girded  by  concerns  over  the  inequity 
of  the  malevolent  side  achieving  de  facto  immunity  for  its  military  objectives.  Yet, 
even  the  highly  controversial  law  of  reprisals  is  justified  solely  on  the  basis  that  repri- 
sals (otherwise  unlawful  acts)  can  compel  the  other  side  back  into  compliance  with 
its  humanitarian  law  obligations;  it  has  never  been  justified  on  the  basis  that  it  is  un- 
fair for  one  side  to  be  limited  by  humanitarian  law  when  the  other  ignores  it.120 

The  issue  becomes  more  contentious  when  human  shields  volunteer.  As  with 
the  use  of  involuntary  shields,  there  has  been  a  marked  increase  in  the  readiness  of 
civilians  to  willingly  shield  military  objectives.  Recent  examples  include  Iraqis 
flocking  to  various  locations  when  coalition  forces  threatened  force  to  enforce  the 
UN  weapons  inspection  regimes  in  1997;121  Serb  civilians  standing  on  bridges  dur- 
ing Operation  Allied  Force  in  1999;  and  international  volunteer  shields  traveling  to 
Iraq  in  anticipation  of  Operation  Iraqi  Freedom.122 

Although  there  is  no  explicit  distinction  between  voluntary  and  involuntary 
shields  in  targeting  doctrine,  some  States,  including  the  United  States,  assert  a  dif- 
ference. In  their  view,  voluntary  shields  of  military  objectives  lose  their  protected 
status  as  civilians.123  Human  Rights  Watch,  inter  alia,  takes  the  opposite  position. 
In  a  February  2002  Briefing  Paper,  it  opined  that 

[l]ike  workers  in  munitions  factories,  civilians  acting  as  human  shields,  whether 
voluntary  or  not,  contribute  indirectly  to  the  war  capability  of  a  state.  Their  actions  do 
not  pose  a  direct  risk  to  opposing  forces.  Because  they  are  not  directly  engaged  in 
hostilities  against  an  adversary,  they  retain  their  civilian  immunity  from  attack.  They 
may  not  be  targeted,  although  a  military  objective  protected  by  human  shields  remains 
open  to  attack,  subject  to  the  attacking  party's  obligations  under  IHL  to  weigh  the 
potential  harm  to  civilians  against  the  direct  and  concrete  military  advantage  of  any 
given  attack,  and  to  refrain  from  attack  if  civilian  harm  would  appear  excessive.124 

The  more  defensible  view  is  that  adopted  by  the  United  States.  Human  Rights 
Watch  wrongly  equates  voluntary  human  shields  with  munitions  workers,  which  they 


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Targeting  and  Humanitarian  Law:  Current  Issues 

correctly  characterize  as  only  indirectly  contributing  to  the  war-making  capabilities  of 
a  State.  The  contribution  of  human  shields  is,  by  contrast,  very  direct — they  are  at- 
tempting to  deter  an  actual  attack  on  a  valid  military  objective.  In  a  sense,  they  are  no 
less  involved  in  defending  a  potential  target  than  air  defenses. 

As  discussed  earlier,  civilians  may  lose  their  protected  status  by,  in  the  termi- 
nology of  Protocol  Additional  I,  taking  "a  direct  part  in  hostilities."  When  they 
do,  immunity  from  attack  vanishes  for  such  time  as  that  participation  contin- 
ues.125 The  Statute  of  the  International  Criminal  Court  adopts  this  standard  by 
making  it  a  war  crime  to  intentionally  attack  civilians  unless  they  are  "taking  di- 
rect part  in  hostilities."126 

There  is  much  uncertainty  regarding  the  meaning  of  direct  participation.  The 
Commentary  to  Protocol  Additional  I  states  that  the  term  "implies  a  direct  casual 
relationship  between  the  activity  engaged  in  and  the  harm  done  to  the  enemy  at  the 
time  and  place  where  the  activity  occurs."127  Elsewhere,  the  Commentary  describes 
direct  participation  as  "acts  which  by  their  nature  and  purpose  are  intended  to 
cause  actual  harm  to  the  personnel  and  equipment  of  the  armed  forces."128  Seem- 
ingly, these  comments  support  the  Human  Rights  Watch  position  that  shields 
must  pose  an  immediate  risk  to  the  enemy  before  they  can  be  directly  attacked. 

Such  a  narrow  position  does  not  fit  well  into  the  architecture  of  humanitarian 
law.  Recall  the  definition  of  military  objective.  Military  objectives  are  "objects 
which  by  their  nature,  location,  purpose,  or  use  make  an  effective  contribution  to 
military  action  and  whose  total  or  partial  destruction,  capture  or  neutralization,  in 
the  circumstances  ruling  at  the  time,  offers  a  definite  military  advantage."129  By 
acting  to  render  a  military  objective  immune  from  attack  (or  contributing  to  the 
enemy's  hesitancy  to  attack  it),  voluntary  human  shields  contribute  to  the  survival 
of  an  object  that  by  definition  contributes  to  military  action;  thus,  they  themselves 
contribute  to  that  action  in  a  very  direct  way.  Indeed,  by  immunizing  the  military 
objective  against  attack  as  a  matter  of  law,  in  many  cases  shields  would  more  effec- 
tively defend  it  than  would  traditional  defenses  such  as  anti-aircraft  artillery  or  sur- 
face-to-air missiles,  which  have  proven  highly  ineffective  against  air  forces 
equipped  with  state  of  the  art  weaponry. 

When  viewed  in  the  context  of  humanitarian  law  generally,  the  most  reasonable 
characterization  of  voluntary  shields  is  that  they  are  directly  participating  in  hostil- 
ities and,  resultantly,  lose  their  protected  civilian  status.130  Consequently,  volun- 
tary human  shields  can  be  legitimate  targets.  Further,  because  they  no  longer  enjoy 
protected  status,  death  or  injury  to  voluntary  shields  should  not  be  considered  in 
any  proportionality  analysis.  Practically  speaking,  though,  their  military  contribu- 
tion only  emerges  at  the  point  that  they  are  shielding  the  military  objective;  thus, 
they  enjoy  no  military  significance  distinct  from  the  objective  itself.  This  being  so, 

174 


Michael  N,  Schmitt 


there  is  no  military  necessity  for  attacking  them  when  they  are  not  engaged  in 
shielding.  Further,  even  when  they  are  shielding  a  target,  there  is  no  military  ratio- 
nale for  attacking  them  directly  instead  of,  or  in  addition  to,  the  actual  military  ob- 
jective. Therefore,  the  only  practical  impact  of  their  willingness  to  serve  as  shields  is 
that  they  need  not  be  included  in  proportionality  calculations. 

An  exception  to  this  analysis  involves  children.  For  instance,  Palestinian  mili- 
tants have  used  child  shields  to  protect  themselves  because  they  know  the  Israel 
Defense  Forces  have  been  ordered  not  to  use  live  ammunition  against  children.131 
As  a  matter  of  law,  children  should  be  deemed  incapable  of  forming  the  intent  nec- 
essary to  "directly  participate"  in  hostilities,  particularly  in  light  of  humanitarian 
law's  increasing  recognition  of  their  unique  predicament  in  armed  conflict.132  Even 
beyond  the  legal  aspects  of  the  phenomenon,  as  a  practical  matter  it  would  usually 
be  impossible  to  determine  whether  a  child  present  at  a  prospective  target  is  there 
of  his  or  her  own  volition. 

Finally,  there  is  the  issue  of  using  civilian  objects  to  shield  military  objectives. 
What  is  often  forgotten  in  the  debates  is  that  civilian  objects  can  become  military  ob- 
jectives when  their  use  makes  an  effective  contribution  to  military  action  and  their 
total  or  partial  destruction  or  neutralization  offers  a  definite  military  advantage  in 
the  circumstances.133  When  one  side  intentionally  places  military  objectives  near  ci- 
vilian objects  or  places  civilian  objects  close  to  military  objectives  in  order  to  shield 
them  (a  wrongful  act  as  discussed  above),  those  objects  may  take  on  a  status  analo- 
gous to  "military  objective."  Their  use  contributes  directly  to  defense  of  the  target 
and  if  their  role  as  shields  could  be  neutralized,  a  military  advantage  would  accrue  to 
the  attacker.  That  said,  and  like  voluntary  shields,  because  their  sole  use  is  as  a  mili- 
tary shield,  there  is  no  need  to  attack  them  directly  unless  they  physically  impede  at- 
tack on  the  intended  target.  Of  course,  they  are  vulnerable  to  damage  during  attack 
on  the  target,  but,  having  taken  on  the  character  of  a  military  objective  through  use, 
such  damage  should  not  be  included  within  the  proportionality  calculation. 

Note  that  the  case  of  intentionally  using  civilian  objects  as  shields  differs  from 
that  of  the  civilian  object  unintentionally  located  near  a  military  objective.  To  sug- 
gest otherwise  would  create  an  exception  that  would  swallow  the  rule  of  propor- 
tionality. Obviously,  objects  near  the  intended  target  incur  the  heaviest  collateral 
damage.  Therefore,  if  mere  proximity  to  a  target  transforms  a  civilian  object  into  a 
military  objective,  there  would  be  no  need  for  the  rule  because  there  would  be  few 
civilian  objects  to  protect. 


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Targeting  and  Humanitarian  Law:  Current  Issues 

Area  Targets 

An  emerging  issue  in  targeting  involves  attacking  military  installations  on  which 
civilian  facilities  exist.  In  the  past,  this  issue  rarely  presented  itself.  First,  civilian  fa- 
cilities seldom  existed  at  military  bases.  However,  with  the  demise  of  conscription, 
the  average  age  of  military  personnel  has  increased,  and  a  greater  percentage  is 
married.  Thus,  military  installations  increasingly  contain  facilities  meeting  the 
needs  of  military  families.  Further,  in  the  era  of  all-volunteer  forces,  quality  of  life 
has  become  an  important  factor  in  recruiting  and  retaining  military  personnel.  To- 
day, for  instance,  the  typical  US  base  offers  family  housing,  schools,  child  care  cen- 
ters, youth  sports  fields,  stores,  post  offices,  pools,  and  even  the  inevitable 
American  fast  food  restaurant. 

Second,  weapons  systems  of  the  past  did  not  have  the  range  to  strike  at  military 
bases  far  from  the  front.  Today,  by  contrast,  some  systems  have  global  capabilities. 
Globalization  itself,  with  increasingly  borderless  travel,  has  made  it  possible  to 
conduct  special  operations  thousands  of  miles  from  the  front.  Simply  put,  in  the 
21st  century  most  military  installations  lie  "within  range"  of  enemy  action. 

The  question  is  whether  an  entire  area  or  installation  can  be  treated  as  a  single 
unitary  whole  during  an  attack.  To  some  extent,  this  defense  was  mounted  in  the  trial 
of  Major-General  Stanislav  Galic,  former  commander  of  the  Sarajevo  Romanija 
Corps,  before  the  ICTY.  The  case  involved  allegations  that  troops  under  his  com- 
mand conducted  a  sniping  and  shelling  campaign  against  the  civilian  population  of 
Sarajevo  intended  to  spread  terror.  The  defense  argued  that  the  presence  of  some 
40,000  Bosnian  Muslim  troops  spread  throughout  the  city  rendered  the  entire  area  a 
target  and  the  fact  that  only  3,000  civilians  died  out  of  an  original  population  of  ap- 
proximately 300,000  meant  the  attacks  were  not  disproportionate.  After  carefully  re- 
viewing the  facts,  the  Trial  Chamber  determined  that  the  attacks  on  the  civilians  were 
intentional  and  sentenced  the  general  to  10  years  imprisonment.134  While  not  ruling 
out  the  possibility  of  treating  an  entire  area  or  installation  as  a  unitary  whole,  the 
Chamber's  meticulous  focus  on  the  facts  of  individual  deaths  demonstrates  that,  in 
its  view,  questions  of  discrimination  are  resolved  on  a  case-by-case  basis.135 

This  approach  comports  well  with  Article  51's  characterization  of  "an  attack  by 
bombardment  .  .  .  which  treats  as  a  single  military  objective  a  number  of  clearly 
separated  and  distinct  military  objectives  located  in  a  city,  town,  village  or  other 
area  containing  a  similar  concentration  of  civilians  and  civilian  objects"  as  indis- 
criminate.136 By  parallel  logic,  the  presence  of  a  clearly  distinct  civilian  area,  such  as 
a  shopping  complex  or  housing  area,  on  a  military  installation  precludes  treating 
the  entire  installation  as  targetable. 


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Michael  N.  Schmitt 


Further,  Article  57  requires  belligerents  to  employ  reasonable  steps  to  verify  that 
the  target  is  military  in  nature  and  to  "take  all  feasible  precautions  in  the  choice  of 
means  and  methods  of  attack  with  a  view  to  avoiding,  and  in  any  event  minimizing, 
incidental  loss  of  civilian  life,  injury  to  civilians  and  damage  to  civilian  objects."137 
Therefore,  whether  an  attack  is  discriminate  enough  depends  both  on  the  extent  to 
which  the  attacker  used  information  assets  to  confirm  the  nature  of  the  target  and 
selected  weapons  and  tactics  designed  to  avoid  causing  harm  to  civilians  and  civil- 
ian objects.  Again,  these  requirements  auger  against  treating  military  installations 
as  a  single  entity  for  targeting  purposes. 

At  any  rate,  military  planners  are  now  able  to  more  accurately  refine  the  choice  of 
targets  and  aimpoints.  Intelligence,  surveillance,  and  reconnaissance  (ISR)  system  im- 
provements have  made  it  far  easier  to  distinguish  between  military  and  civilian  objects, 
whereas  advances  in  precision  have  made  striking  the  intended  target  with  great  surety 
more  practicable.138  In  fact,  since  installations  are  fixed,  most  missions  against  them 
will  be  preplanned.  This  allows  a  highly  complex  and  in-depth  planning  process  that 
considers  such  factors  as  maximum  effective  range  of  weaponry  and  their  circular  er- 
ror probable,  likely  collateral  damage,  and  aim  point,  fusing,  and  azimuth  of  attack  al- 
ternatives. Perhaps  most  importantly,  it  is  poor  airmanship  (or  soldiering)  to  treat 
areas  in  which  discrimination  is  possible  as  a  single  target  because  doing  so,  in  an  age  of 
precision,  would  be  wasteful;  it  violates  the  principle  of  economy  of  force. 

That  said,  in  those  cases  where  it  is  impossible  to  verify  that  individual  facilities 
on  an  installation  are  military  objectives  (e.g.,  does  the  warehouse  contain  muni- 
tions or  school  supplies?),  a  presumption  that  they  are  military  attaches.  This  is  be- 
cause the  Protocol  Additional  I,  Article  52,  presumption  that  a  prospective  target  is 
not  making  an  effective  contribution  to  military  action,  and  therefore  not 
targetable,  applies  only  to  objects  "normally  dedicated  to  civilian  purposes,  such  as 
a  place  of  worship,  a  house  or  other  dwelling,  or  a  school."139  The  presence  of  a  fa- 
cility on  an  active  military  installation,  combined  with  the  fact  that  it  does  not,  after 
reasonable  steps  have  been  taken  to  ascertain  its  status,  appear  to  be  normally  dedi- 
cated to  civilian  purposes,  makes  striking  it  consistent  with  the  principle  of  distinc- 
tion. For  instance,  hangar  facilities  often  line  runways.  In  most  cases,  they  are  used 
for  traditional  military  purposes  such  as  aircraft  maintenance.  However,  if  one  is 
the  community  gymnasium,  as  is  the  case  at  an  actual  US  military  facility,  an  at- 
tacker should  be  permitted  to  strike  it  after  exhausting  reasonable  measures  under 
the  circumstances  to  determine  its  nature.  The  attack  may,  ex  post  facto,  be  shown 
to  have  been  a  mistake,  but  that  mistake  will  have  been  reasonable. 


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Targeting  and  Humanitarian  Law:  Current  Issues 

Computer  Network  Attack 

Targeting  one's  enemy  through  computer  networks  is  a  relatively  new  method  of 
warfare  that  raises  a  number  of  complex  legal  issues.140  Many  derive  from  the  jus  ad 
helium  and  have  been  addressed  elsewhere.141  With  regard  to  the  jws  in  hello,  and 
specifically  the  law  of  targeting,  three  merit  mention.142 

The  first  centers  on  the  requirement  of  precautions  in  attack.  As  noted  above, 
humanitarian  law  imposes  a  duty  on  the  attacker  to  select  methods  and  means  of 
warfare  "with  a  view  to  avoiding,  and  in  any  event  to  minimizing,  incidental  loss  of 
civilian  life,  injury  to  civilians  and  damage  to  civilian  objects."143  This  is  a  signifi- 
cant obligation  because  it  means  that  even  if  a  target  is  a  lawful  military  objective 
that  can  be  attacked  with  a  particular  weapon  without  causing  disproportionate 
collateral  damage  or  incidental  injury,  a  different  weapon  must  be  employed  if  it 
could  achieve  a  comparable  military  advantage  with  less.  Of  course,  the  require- 
ment is  subject  to  a  rule  of  reason  that  would  take  into  account  such  factors  as  the 
inventory  of  available  weapons,  particularly  in  light  of  the  anticipated  length  of  the 
conflict,  and  any  increased  risk  to  those  executing  the  mission. 

This  obligation  may  increasingly  drive  armed  forces  possessing  CNA  capabilities 
to  employ  them  in  lieu  of  kinetic  weapons.  The  precision  of  computer  network  at- 
tack (in  which  particular  systems  can  be  isolated  and  attacked),  the  generally  low  risk 
to  the  attacker,  and  the  fact  that  attacks  do  not  expend  "ordnance"  that  might  be 
needed  later  in  the  conflict,  all  lend  themselves  to  selecting  CNA  in  place  of  more  tra- 
ditional weaponry.  For  instance,  typical  goals  in  air  campaigns  include  destroying  air 
defense  networks,  blinding  intelligence  capabilities,  and  disrupting  command  and 
control.  Doing  so  might  involve  hundreds  of  sorties  by  aircraft  dropping  or  launch- 
ing explosive  munitions  with  significant  risk  of  collateral  damage  and  incidental  in- 
jury. However,  all  such  target  systems  now  rely  heavily  on  computers  of  some  sort, 
thereby  making  them  vulnerable  to  computer  network  attack. 

A  related  humanitarian  law  requirement  is  that  "[w]hen  a  choice  is  available  be- 
tween several  military  objectives  for  obtaining  a  similar  military  advantage,  the  ob- 
jective to  be  selected  shall  be  that  the  attack  on  which  maybe  expected  to  cause  the 
least  danger  to  civilian  lives  and  civilian  objects."144  Again,  the  fact  that  many  pro- 
spective targets  rely  on  computer  systems  in  some  fashion  opens  up  opportunities 
to  avoid  striking  targets  in  ways  that  might  cause  harm  to  civilians  and  civilian  ob- 
jects. As  an  example,  one  might  wish  to  destroy  an  enemy  air  force  by  bombing  air 
bases.  However,  in  an  age  of  computer  network  attack,  it  may  be  less  collaterally 
destructive  to  feed  the  enemy  false  information  that  causes  enemy  aircraft  to  un- 
knowingly travel  into  aerial  ambushes.  Alternatively,  consider  the  bombing  of  the 
media  station  in  Belgrade  during  Operation  Allied  Force  that  resulted  in  the 

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Michael  N.  Schmitt 


Bankovic  litigation  before  the  European  Court  of  Human  Rights.145  Using  CNA,  it 
might  have  been  possible  to  target  that  aspect  of  the  electrical  grid  providing  the 
station  electricity,  thereby  simply  taking  it  off  the  air  during  offending  program- 
ming. In  an  increasingly  networked  age,  the  possibilities  of  computer  network  at- 
tack grow  exponentially. 

The  second  issue  posed  by  computer  network  attack  is  that  of  the  targets  against 
which  it  may  legally  be  directed.  The  requirement  that  parties  to  a  conflict  "direct  op- 
eration only  against  military  objectives"146  would  seem  to  imply  that  CNA  launched 
against  civilians  or  civilian  objects  would  be  unlawful.  A  careful  reading  of  Protocol 
Additional  I,  most  of  which  is  characterized  by  even  non-Party  States  as  reflective  of 
customary  law,  reveals  that  it  is  "attack"  on  civilians  which  is  forbidden,  not  opera- 
tions directed  against  them  writ  large.  Thus,  the  "civilian  population  . . .  shall  not  be 
the  object  of  attack";147  "civilian  objects  shall  not  be  the  object  of  attack";148  "indis- 
criminate attacks  are  forbidden";149  "attacks  shall  be  limited  strictly  to  military  ob- 
jectives";150 and  so  forth. 

In  Article  49,  the  Protocol  defines  "attacks"  as  "acts  of  violence  against  the  ad- 
versary, whether  in  offense  or  defense."151  The  Commentary  on  Article  48  echoes 
the  centrality  of  violence  by  describing  the  term  "operations"  as  "military  opera- 
tions during  which  violence  is  applied."152  Utilizing  this  definition,  the  prohibition 
is  actually  on  attacking  other  than  military  objectives  through  the  application  of  vi- 
olence, that  is,  force  which  injures,  kills,  damages,  or  destroys. 

This  interpretation  does  not  imply  that  all  CNA  is  lawful  merely  because  kinetic 
force  is  absent.  Instead,  the  term  "attack"  can  best  be  understood  as  prescriptive 
shorthand  for  a  particular  set  of  consequences,  specifically  the  type  of  consequences 
violence  would  cause — injury  to  humans  and  damage  to  objects.153  The  prohibition 
would  also  reasonably  extend  to  intentionally  creating  severe  mental  anguish,  partic- 
ularly in  light  of  humanitarian  law's  prohibition  on  terrorizing  the  civilian  popula- 
tion.154 However,  conducting  computer  network  attacks  that  merely  inconveniences 
the  civilian  population,  harasses  them,  or  causes  a  decline  in  their  quality  of  life  is 
permissible.  This  interpretation  does  not  represent  a  relaxation  of  humanitarian  law 
in  any  way;  indeed,  the  law  already  countenances  such  results  through,  for  example, 
non-violent  psychological  operations  directed  at  the  civilian  population. 

Finally,  there  needs  to  be  greater  sensitivity  to  who  can  conduct  computer  net- 
work attacks.  Obviously,  military  personnel  who  possess  the  privilege  to  apply  ki- 
netic force  during  an  armed  conflict  may  do  so.  However,  many  countries  rely  on 
either  civilian  defense  employees  or  contractors  for  their  computer  network  attack 
capabilities.  Any  civilian  who  launches  a  CNA  "attack,"  as  that  term  has  just  been 
described,  is  directly  participating  in  hostilities  and  thus  an  unprivileged  belliger- 
ent. So  too  are  those  who  conduct  computer  network  attacks  that  do  not  damage 

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Targeting  and  Humanitarian  Law:  Current  Issues 

or  injure,  but  nevertheless  affect  the  enemy's  immediate  war-fighting  capabilities. 
Typical  examples  would  include  directing  a  computer  network  attack  against  en- 
emy command  and  control  facilities,  air  defense  networks,  and  combat  communi- 
cations nets.  Simply  put,  to  the  extent  that  a  computer  network  attack  neutralizes 
or  diminishes  the  capabilities  of  a  military  objective,  the  individual  launching  it  is 
directly  participating  in  hostilities. 

Concluding  Thoughts 

In  A  Man  for  All  Seasons,  Sir  Thomas  More  and  William  Roper  engage  in  the  fol- 
lowing now  familiar  exchange  on  the  law. 

Roper:  So  now  you'd  give  the  Devil  benefit  of  law. 

More:  Yes.  What  would  you  do?  Cut  a  great  road  through  the  law  to  get  after  the  Devil? 

Roper:  I'd  cut  down  every  law  in  England  to  do  that. 

More:  Oh?  And  when  the  law  was  down — and  the  Devil  turned  round  on  you — where 
would  you  hide?  Yes,  I'd  give  the  Devil  benefit  of  law,  for  my  own  safety's  sake.155 

To  some  degree,  each  of  the  targeting  issues  addressed  in  this  article  illustrate 
similar  contradictions.  Targeting  doctrine  that  seeks  particular  effects  subtly 
incentivizes  attacking  protected  persons  or  objects  when  facing  a  malevolent  op- 
ponent or  when  doing  so  might  operate  to  lessen  likely  collateral  damage  and  in- 
cidental injury.  Similarly,  many  argue  that  it  is  acceptable  to  strike  at  a  wicked 
leader,  even  if  he  or  she  does  not  meet  the  requirements  for  combatant  status  or 
direct  participation.  Others  suggest  that  humanitarian  law  should  be  relaxed  in 
meeting  the  new  phenomenon  of  catastrophic  transnational  terrorism.  Similar 
concerns  underlie  suggestions  that  involuntary  shields  should  be  treated  differ- 
ently from  civilians  or  that  military  installations  or  other  areas  where  the  enemy 
has  positioned  military  and  civilian  objects  in  close  proximity  may  be  treated  as  a 
unitary  whole  when  targeting.  Finally,  computer  network  attack  opens  entirely 
new  targeting  options,  some  which  enhance  the  protections  of  humanitarian  law, 
others  that  challenge  them. 

What  is  remarkable  throughout  the  discussions  of  these  complex  issues,  how- 
ever, is  the  extent  to  which  humanitarian  law  resolves  them.  In  the  vast  majority  of 
cases,  application  of  the  law,  interpreted  with  sensitivity  to  both  the  context  in 
which  it  is  to  be  applied  and  its  underlying  purposes,  meets  the  concerns  of  the 


180 


Michael  N.  Schmitt 


William  Ropers  who  assert  its  insufficiency  in  meeting  the  challenges  of  21st-century 
conflict.  The  law  hardly  needs  to  be  "cut  down";  on  the  contrary,  it  still  effectively 
shelters  non-participants  from  the  effects  of  hostilities,  while  adequately  meeting 
the  practical  concerns  of  the  warfighters.  Most  importantly,  Sir  Thomas  More's 
words  remain  prescient,  for  in  these  troubling  times  we  must  preserve  the  law  . . . 
for  our  own  sake. 

Notes 

1.  Professor  Schmitt  is  Professor  of  International  Law,  George  C.  Marshall  European  Center  for 
Security  Studies,  Garmisch-Partenkirchen,  Germany.  The  views  expressed  herein  are  those  of 
the  author  in  his  personal  capacity  and  do  not  necessarily  represent  those  of  any  United  States  or 
German  government  agency. 

2.  For  an  introduction  to  the  concept  of  revolutions  in  military  affairs,  see  Jeffrey  McKitrick,  et. 
al.,  The  Revolution  in  Military  Affairs  (Sept.  1995),  www.airpower.Maxwell.af.mi/airchronicles/ 
battle/chp3.html. 

3.  Most  notably,  Giulio  Douhet,  an  Italian  air  power  strategist  who  argued  that  "war  is  won  by 
crushing  the  resistance  of  the  enemy;  and  this  can  be  done  more  easily,  faster,  and  more 
economically,  and  with  less  bloodshed  by  directly  attacking  that  resistance  at  its  weakest  point." 
For  Douhet,  that  point  was  the  population  itself.  GlULIO  DOUHET,  THE  COMMAND  OF  THE  AIR 
196  (Dino  Ferrari  trans.,  1942). 

4.  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  June  8, 1977,  arts.  48-52, 1 125  U.N.T.S. 
3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  422  (Adam  Roberts  and  Richard  Guelff  eds., 
3d  ed.  2000)  [hereinafter  Protocol  Additional  I]. 

5.  Command,  control,  communications,  computers,  intelligence,  surveillance,  and  reconnaissance. 

6.  Between  March  19  and  April  18,  2003,  during  which  41,404  sorties  were  flown  (excluding 
special  operations  and  Army  helicopter  flights).  The  Iraqis  also  downed  6  helicopters.  US 
Central  Command  Air  Forces  (CENTAF),  Assessment  and  Analysis  Division,  Operation  Iraqi 
Freedom — By  the  Numbers  (Apr.  30,  2003),  www.globalsecurity.org/military/library/report/ 
2003/uscentaf_oif_report_30apr2003.pdf. 

7.  Lawfare  refers  to  the  effort  to  undercut  an  opponent's  support  by  making  it  appear  to  violate 
international  humanitarian  or  human  rights  law  (or  publicize  actual  violations).  That  support  may 
be  either  domestic  or  international.  For  a  discussion  of  lawfare,  see  Charles  J.  Dunlap,  Jr.,  Law  and 
Military  Interventions:  Preserving  Humanitarian  Values  in  21st  Century  Conflicts,  paper  presented  at 
Humanitarian  Challenges  in  Military  Intervention  Workshop,  Carr  Center,  Harvard  University 
(Nov.  29-30,  2001),  http://www.ksg.harvard.edu/cchrp/UseofForcePapers.shtml. 

8.  Gary  L.  Crowder,  Department  of  Defense  Effects-Based  Operations  Briefing  (Mar.  19,  2003), 
http://www.defenselink.mil/transcripts/2003/t03202003_t0319effects.html. 

9.  Chairman  of  the  Joint  Chiefs  of  Staff,  Joint  Publication  3-60,  Joint  Doctrine  for  Targeting,  at 
1-4  (2002)  [hereinafter  Joint  Pub  3-60]. 

10.  Escorts  perform  such  missions  as  defense  suppression  of  ground  air  defense  systems  or 
defense  of  the  attacking  aircraft  against  enemy  fighters. 

11.  A  description  of  these  and  other  weapons  and  weapon  systems  can  be  found  on  the  Air 
Force  Link  website,  http://www.af.mil/factsheets/. 


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Targeting  and  Humanitarian  Law:  Current  Issues 

12.  Thus,  while  roughly  9%  of  air  munitions  used  during  Operation  Desert  Storm  were 
precision-guided,  by  Operation  Iraqi  Freedom  that  figure  had  grown  to  nearly  70%. 

13.  Joint  Pub  3-60,  supra  note  9,  at  1-5. 

14.  The  term  was  coined  by  Colonel  John  Boyd,  United  States  Air  Force.  Operating  within  an 
opponent's  OODA  loop  is  a  decision-making  concept  in  which  one  party,  maintaining  constant 
situational  awareness,  assesses  a  situation  and  acts  on  it  more  rapidly  than  his  opponent.  When  this 
happens,  the  opponent  is  forced  into  a  reactive  mode,  thereby  allowing  the  first  party  to  maintain 
the  initiative.  As  the  process  proceeds,  the  opponent  eventually  begins  to  react  to  actions  that  no 
longer  bear  on  the  immediate  situation.  The  resulting  confusion  results  in  paralysis. 

15.  Joint  Pub  3-60,  supra  note  9,  at  1-6. 

16.  Id. 

1 7.  Joint  Publication  3-60  offers  the  following  example:  "For  example,  the  plane  destroyed  as  a 
direct  effect  of  an  attack  on  an  airfield,  combined  with  similar  attacks  on  all  the  assets  of  an 
adversary's  air  defense  system,  over  time  may  ultimately  degrade  the  legitimacy  of  the  regime  by 
portraying  them  as  incapable  of  protecting  the  populace."  Id. 

18.  Id. 

19.  In  humanitarian  law,  the  proper  term  for  unintended  injury  or  death  of  civilians  is 
"incidental  injury."  Technically,  the  term  "collateral  damage"  refers  only  to  unintended  damage 
or  destruction  of  civilian  objects.  However,  many  lay  publications,  such  as  Joint  Publication  3- 
60,  group  the  two  under  the  general  category  of  "collateral  damage." 

20.  Protocol  Additional  I,  supra  note  4,  arts.  51.5(b),  57.2(a)(iii),  8c  57.2(b). 

21.  Joint  Pub  3-60,  supra  note  9,  at  1-7. 

22.  Crowder,  supra  note  8. 

23.  John  A.  Warden,  The  Enemy  as  a  System,  AlRPOWER  JOURNAL  40  (Spring  1995).  For  a 
commentary  on  Warden's  theory,  see  DAVID  R.  METS,  THE  AIR  CAMPAIGN:  JOHN  WARDEN  AND 
the  Classical  Airpower  Theorists  (1998). 

24.  Department  of  Defense  Effects-Based  Operations  Briefing,  Briefing  Slides  (Mar.  19,  2003), 
www.defenselink.mil/news/Mar2003/g030318-D-9085.html. 

25.  Interestingly,  both  Operation  Enduring  Freedom  and  Operation  Iraqi  Freedom  were  classic 
campaigns  of  conquest,  rather  than  compellance.  Nevertheless,  compellance  campaigns  are 
likely  to  remain  a  prominent  feature  in  the  21st-century  strategic  landscape. 

26.  United  States  Air  Force,  Air  Force  Basic  Doctrine  (AFDD  1)  (Sept.  1997),  at  79.  Centers  of 
gravity  are  "those  characteristics,  capabilities,  or  localities  from  which  a  military  force  derives  its 
freedom  of  action,  physical  strength,  or  will  to  fight."  Department  of  Defense,  Dictionary  of 
Military  and  Associated  Terms,  Joint  Publication  1-02  (as  amended  through  June  5,  2003), 
available  at  www.dtic.mil/doctrine/jel/doddict  [hereinafter  Joint  Pub  1-02]. 

27.  A  dynamic  entirely  consistent  with  Clausewitz's  assertion  that  war  is  "a  true  political 
instrument,  a  continuation  of  political  intercourse,  carried  on  with  other  means."  CARL  VON 
CLAUSEWITZ,  On  WAR  87  (Michael  Howard  and  Peter  Paret  trans.,  1989). 

28.  Out  of  a  sense  of  latent  patriotism. 

29.  Craig  R.  Whitney,  The  Commander;  Air  Wars  Won't  Stay  Risk-Free,  General  Says,  NEW 
YORK  TIMES,  June  18,  1999,  at  Al. 

30.  Michael  Short,  Operation  Allied  Force  from  the  Perspective  of  the  NATO  Air  Commander,  in 
Legal  and  Ethical  Lessons  of  NATO's  Kosovo  Campaign  29  (Andru  E.  Wall  ed.,  2002) 
(Vol.  78,  US  Naval  War  College  International  Law  Studies). 

31.  Protocol  Additional  I,  supra  note  4,  art.  57.3.  Although  not  a  Party  to  the  Protocol  I,  the 
United  States  considers  many  its  provisions  to  be  declaratory  of  customary  international  law. 
For  a  non-official,  but  generally  considered  authoritative,  delineation  of  those  viewed  as 


182 


Michael  N.  Schmitt 


declaratory,  see  Michael  J.  Matheson,  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  and  Policy  419  (1987).  See  also 
International  &  Operational  Law  Division,  Office  of  the  Judge  Advocate  General,  Department  of 
the  Air  Force,  Operations  Law  Deployment  Deskbook,  tab  12  (no  date),  and  comments  by  the 
then  State  Department  Legal  Advisor  Abraham  D.  Soafer  in  Agora:  Tfte  US  Decision  Not  to  Ratify 
Protocol  I  to  the  Geneva  Conventions  on  the  Protection  of  War  Victims,  82  AMERICAN  JOURNAL  OF 
International  Law  784  (1988). 

32.  Protocol  Additional  I,  supra  note  4,  art.  52.2. 

33.  Convention  on  Prohibitions  or  Restrictions  on  the  Use  of  Certain  Conventional  Weapons 
Which  May  be  Deemed  to  be  Excessively  Injurious  or  to  have  Indiscriminate  Effects,  Oct.  10,1980, 
1342  U.N.T.S.  137,  reprinted  in  DOCUMENTS  ON  THE  Laws  OF  War,  supra  note  4,  at  515  (1980); 
Protocol  on  Prohibitions  or  Restrictions  on  the  Use  of  Mines,  Booby  Traps  and  Other  Devices 
(Protocol  II),  Oct.  10, 1980,  as  Amended,  May  3,  1996,  art.  2.6,  reprinted  in  id.  at  536;  Protocol  on 
Prohibitions  or  Restrictions  on  the  Use  of  Incendiary  Weapons  (Protocol  III),  Oct.  10,  1980,  art. 
1.3,  reprinted  in  id.  at  533. 

34.  Second  Protocol  to  the  Hague  Convention  of  1954  for  Protection  of  Cultural  Property  in 
Event  of  Armed  Conflict,  Mar.  26, 1996,  art.  If,  38  INTERNATIONAL  LEGAL  MATERIALS  769  ( 1999). 

35.  See,  e.g.,  Judge  Advocate  General's  School,  Operational  Law  Handbook  10  (2003);  US  Navy/ 
Marine  Corps/Coast  Guard,  The  Commander's  Handbook  on  the  Law  of  Naval  Operations, 
NWP  1-14M,  MCWP  5-2.1,  COMDTPUB  P5800.7  5  8.1.1(1995),  reprinted  in  its  annotated 
version  as  volume  73  of  the  US  Naval  War  College's  International  Law  Studies  series. 

36.  Id.  J  8.1.1.  This  assertion  is  labeled  a  "statement  of  customary  international  law."  The 
Handbook  cites  General  Counsel,  Department  of  Defense,  Letter  of  Sept.  22, 1972,  reprinted  in  67 
AMERICAN  JOURNAL  OF  INTERNATIONAL  Law  123  (1973 ),  as  the  basis  for  this  characterization. 

37.  Joint  Pub  3-60,  supra  note  9,  at  A-2. 

38.  Marco  Sassoli,  Legitimate  Target  of  Attacks  Under  International  Humanitarian  Law, 
International  Humanitarian  Law  Research  Initiative  Brief  3  (Jan.  2003),  available  at 
www.ihlresearch.org/portal/ihli/Sessionl.pdf. 

39.  NATO's  demands  were  set  forth  in  a  Statement  of  the  Extraordinary  Meeting  of  the  North 
Atlantic  Council  on  April  12,  1999,  and  reaffirmed  by  the  Heads  of  State  and  Government  at 
Washington  on  April  23.  They  included  a  cessation  of  military  action,  as  well  as  ending  violence 
and  repression  of  the  Kosovar  Albanians;  withdrawal  from  Kosovo  of  military,  police,  and 
paramilitary  forces;  an  international  military  presence  in  Kosovo;  safe  return  of  refugees  and 
displaced  persons  and  unhindered  access  to  them  by  humanitarian  aid  organizations;  and  the 
establishment  of  a  political  framework  agreement  on  the  basis  of  the  Rambouillet  Accords.  Press 
Release  M-NAC- 1(99)51  (Apr.  12, 1999),  availableat  w-ww.nato.mt/docWpr/1999/p99-051e.htm; 
Press  Release  S-l(99)62  (Apr.  23,  1999),  available  afw-w-w.nato.mt/docu/pr/1999/p99-062e.htm 

40.  Final  Report  to  the  Prosecutor  by  the  Committee  Established  to  Review-  the  NATO 
Bombing  Campaign  Against  the  Federal  Republic  of  Yugoslavia,  39  INTERNATIONAL  LEGAL 
MATERIALS  1257,  f  37  (2000),  available  at  www.un.org/icty/pressreal/nato06 1300.htm 
[hereinafter  Report  to  the  Prosecutor]. 

41.  Bankovic  8c  Others  v.  Belgium,  the  Czech  Republic,  Denmark,  France,  Germany,  Greece, 
Hungary,  Iceland,  Italy,  Luxembourg,  the  Netherlands,  Norway,  Poland,  Portugal,  Spain, 
Turkey  and  the  United  Kingdom,  European  Court  of  Human  Rights  Application  no.  52207/99. 

42.  The  attack  was  addressed  in  the  Report  to  the  Prosecutor,  supra  note  40,  at  W  71-79.  The 
Prosecutor  announced  her  decision  not  to  proceed  to  the  Security  Council  on  June  2,  2000.  UN 
Doc.  S/PV.4150  (2000). 


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Targeting  and  Humanitarian  Law:  Current  Issues 

43.  A.  P.  V.  ROGERS,  LAW  ON  THE  BATTLEFIELD  37  (1996).  A  second  edition  of  this  excellent 
book  was  published  in  2004. 

44.  Draft  Rules  for  the  Limitation  of  the  Dangers  incurred  by  the  Civilian  Population  in  Time 
of  War,  Annex  (1956).  The  list,  which  is  not  included  with  the  ICRC  on-line  text 
(www.icrc.org/ihl/nsf),  is  reprinted  in  paragraph  39  of  Report  to  the  Prosecutor,  supra  note  40. 
The  Report  to  the  Prosecutor  failed  to  take  a  firm  position  on  the  attack  (and  on  attacks  against 
media  facilities  generally). 

The  media  as  such  is  not  a  traditional  target  category.  To  the  extent  particular  media 
components  are  part  of  the  C3  (command,  control  and  communications)  network  they 
are  military  objectives.  If  media  components  are  not  part  of  the  C3  network  then  they 
may  become  military  objectives  depending  upon  their  use.  As  a  bottom  line,  civilians, 
civilian  objects  and  civilian  morale  as  such  are  not  legitimate  military  objectives.  The 
media  does  have  an  effect  on  civilian  morale.  If  that  effect  is  merely  to  foster  support  for 
the  war  effort,  the  media  is  not  a  legitimate  military  objective.  If  the  media  is  used  to  incite 
crimes,  as  in  Rwanda,  it  can  become  a  legitimate  military  objective.  If  the  media  is  the 
nerve  system  that  keeps  a  war-monger  in  power  and  thus  perpetuates  the  war  effort,  it 
may  fall  within  the  definition  of  a  legitimate  military  objective.  As  a  general  statement,  in 
the  particular  incidents  reviewed  by  the  committee,  it  is  the  view  of  the  committee  that 
NATO  was  attempting  to  attack  objects  it  perceived  to  be  legitimate  military  objectives. 

Id.  555. 

45.  See  supra  note  38.  Coalition  forces  dropped  over  29,000  guided  and  unguided  munitions  during 
Operation  Iraqi  Freedom.  Operation  Iraqi  Freedom — By  the  Numbers,  supra  note  6.  Yet,  the 
Human  Rights  Watch  report  on  the  operation  found  only  the  destruction  of  media  facilities  and 
electrical  power  distribution  facilities  "questionable."  Instead,  it  criticized  an  "unsound  targeting 
methodology . . .  compounded  by  the  lack  of  an  effective  assessment  both  prior  to  the  attacks  of  the 
risk  to  civilians  .  .  .  and  following  the  attacks  of  their  success  and  utility"  as  the  primary  culprits  in 
causing  civilian  casualties.  Human  Rights  Watch,  Off  Target:  The  Conduct  of  the  War  and  Civilian 
Casualties  in  Iraq  (Dec.  2003),  available  at  www.hrw.org/reports/2003/usal203/  [hereinafter  Off 
Target]  .  The  Human  Rights  Watch,  Amnesty  International,  and  ICTY  Prosecutor's  Office  reports 
on  the  1999  air  campaign  in  Yugoslavia  are  consistent,  with  over  28,000  combat  sorties  and  only  a 
handful  of  targets  questioned  as  legitimate  military  objectives.  See,  respectively,  Human  Rights 
Watch,  Civilian  Deaths  in  the  NATO  Air  Campaign  (Feb.  2000),  available  arwww.hrw.org/reports/ 
2000/nato/;  Amnesty  International,  "Collateral  Damage"  or  Unlawful  Killings?:  Violations  of  the 
Laws  of  War  by  NATO  during  Operation  Allied  Force  (June  6, 2000),  available  flfwww.amnesty.org/ 
library/index/ENGEUR700 182000;  Report  to  the  Prosecutor,  supra  note  40. 

46.  Charles  J.  Dunlap,  Jr.,  The  End  of  Innocence:  Rethinking  Noncombatancy  in  the  Post-Kosovo 
Era,  STRATEGIC  REVIEW  14  (Summer  2000).  He  further  suggests  that  current  technology  allows 
the  United  States  to  apply  "tremendous  destructive  power . . .  discreetly  and  efficiently  against  a 
wide  range  of  objects  that  opportunistic,  materialistic  societies  like  Yugoslavia  value."  Id. 

47.  Id. 

48.  Id.  He  continues, 

[ajdditional  targets  under  this  proposal  could  include  selected  cultural, 
educational,  and  historical  sites  whose  existence  provides  support — to  include 
psychological  sustenance — to  the  malignant  ideology  that  stimulates  the  behaviors 
the  use  of  force  is  intended  to  support..  Furthermore,  resorts,  along  with  other 
entertainment,  sports,  and  recreational  facilities  could  be  slated  for  destruction.  Of 
course,  government  offices  and  buildings  of  every  kind  would  be  subject  to 
eradication,  even  if  they  do  not  directly  support  military  activities  (except  those 


184 


Michael  N.  Schmitt 


whose  destruction  would  seriously  impede  the  delivery  of  services  indispensable  for 
noncombatant  survival).  Finally,  to  the  extent  it  is  feasible  to  do  so,  the  personal 
property  of  the  sentinent,  adult  population  ought  to  be  held  at  risk  so  long  as  it  is 
not,  again,  indispensable  to  human  survival.  Milosevic's  bank  accounts  would  be 
high  on  the  target  list  under  the  revised  model. 

Id. 

49.  Id. 

This  proposal  openly  acknowledges  an  intent  to  inflict  hardship  upon  the  sentient, 
adult  (albeit  putatively  noncombatant)  populace  who  must  be  held  responsible  for  the 
deeds  of  their  military  forces.  It  includes  even  those  who  may  oppose  their 
government's  policies.  Given  the  tremendous  scale  of  atrocities  that  are  infecting  the 
world,  not  to  mention  the  globalization  of  WMD  technology,  ethical  norms  should 
place  an  affirmative  duty  on  a  nation's  citizenry  to  actively  frustrate  their  government's 
actions  when  they  become  patently  inhumane. 

Id. 

50.  DOUHET,  supra  note  3. 

51.  Dunlap,  supra  note  46,  at  15.  Arguably  he  contorts  the  principles  of  necessity  and 
proportionality  to  support  this  effects-based  objective:  "The  scope  and  severity  of  the  attacks  must 
bear  a  reasonable  relationship  to  the  egregiousness  of  the  conduct  sought  to  be  prevented,  and  the 
level  of  force  necessary  to  purge  the  enemy  society  of  its  perverse  beliefs."  The  classic  articulation  of 
military  necessity  is  drawn  from  the  case  of  United  States  v.  List  "The  destruction  of  property  to  be 
lawful  must  be  imperatively  demanded  by  the  necessities  of  war  ....  There  must  be  some 
reasonable  connection  between  the  destruction  of  property  and  the  overcoming  of  the  enemy 
forces."  United  States  v.  List,  11  Trials  of  the  Major  War  Criminals  before  the  Nuremberg 
Tribunals  1253  (1950). 

52.  Jeanne  M.  Meyer,  Tearing  Down  the  Facade:  A  Critical  Look  at  the  Current  Law  on  Targeting 
the  Will  of  the  Enemy  and  Air  Force  Doctrine,  51  AIR  FORCE  LAW  REVIEW  143  (2001). 

53.  Advisory  Opinion  on  the  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons,  1996  I.C.J  78, 
79  (July  8) .  He  partially  rejects  the  principle  of  distinction  by  treating  civilian  objects  as  a  military 
objective  and  the  principle  of  necessity  is  transformed  by  measuring  it  against  need  to  reeducate 
the  enemy  population.  Doing  so  ignores  the  preambular  language  of  the  1868  St.  Petersburg 
Declaration,  a  foundation  of  modern  humanitarian  law:  "The  only  legitimate  object  which 
States  should  endeavour  to  accomplish  during  war  is  to  weaken  the  military  forces  of  the 
enemy."  St.  Petersburg  Declaration  Renouncing  the  Use,  in  Time  of  War,  of  Explosive 
Projectiles  under  400  Grammes  Weight,  Dec.  11,  1868,  18  Martens  474-5,  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at  54.  It  also  flies  in  the  face  of  Article  22  of  the 
1863  Lieber  Code,  the  manual  for  Union  forces  during  the  American  Civil  War,  and  also  a 
foundational  document  of  humanitarian  law: 

Nevertheless,  as  civilization  has  advanced  during  the  last  centuries,  so  has  likewise 
steadily  advanced,  especially  in  war  on  land,  the  distinction  between  the  private 
individual  belonging  to  a  hostile  country  and  the  hostile  country  itself,  with  its  men  in 
arms.  The  principle  has  been  more  and  more  acknowledged  that  the  unarmed  citizen  is 
to  be  spared  in  person,  property  and  honor  as  much  as  the  exigencies  of  war  will  admit. 

War  Department,  Adjutant  General's  Office,  Instructions  for  the  Government  of  Armies  of  the 
United  States  in  the  Field,  General  Orders  No.  100,  art.  22  (Apr.  24, 1863),  reprinted  in  THE  LAWS 
OF  ARMED  CONFLICTS  3  (Dietrich  Schindler  &  Jiri  Toman  eds.,  4th  ed.  2004). 


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Targeting  and  Humanitarian  Law:  Current  Issues 

Numerous  contemporary  instruments  contain  the  principle,  most  notably  the  Protocol 
Additional  I  requirement  that  Parties  "shall  direct  their  operations  only  against  military 
objectives."  Protocol  Additional  I,  supra  note  4,  art.  48.  Of  course,  this  principle  assumes  a  legal 
fiction,  albeit  a  defensible  one,  because  if  the  civilian  population  opposes  the  war  effort,  there  is 
little  doubt  that  the  State's  ability  to  wage  war  will  be  seriously  degraded. 

54.  ROBERT  F.  FUTRELL,  THE  UNITED  STATES  AIR  FORCE  IN  KOREA  1950-1953,  at  516  (1983). 

55.  See  supra  note  7. 

56.  Lord  Robertson,  Kosovo  One  Year  On:  Achievement  and  Challenge  13  (Mar.  21,  2000), 
www.nato.int/Kosovo/repo2000/index.htm. 

57.  Indeed,  the  first  attack  sortie  of  Operation  Iraqi  Freedom  was  an  attempt  to  kill  Saddam 
Hussein.  Mark  Kinkaid,  The  First  Shot,  AIRMAN  MAGAZINE,  July  23,  2003,  available  at 
www.af.mil/news/airman/0703/air.html. 

58.  Bruce  van  Voorst,  Ready,  Aim,  Fired,  TIME,  Oct.  1,  1990,  at  55.  Also  recall  the  controversy 
surrounding  Operation  Phoenix,  the  CIA's  program  to  neutralize  the  Vietcong  civilian 
infrastructure  (resulting  in  nearly  20,000  deaths).  Michael  Ratner,  The  Bob  Kerry  Case,  Crimes  of 
War  Expert  Analysis  (July  2001 ),  www.crimesofvvar.org/expert/rather.html.  The  High  Command 
Case  of  1 948  was  based  in  part  on  Hitler's  order  to  kill  Soviet  Commissars  (political  leaders).  The 
judgment  labeled  the  order  "notorious"  and  the  case  yielded  multiple  convictions.  United  States 
v.  Von  Leeb  (High  Command  Case),  1 1  Trials  of  War  Criminals  before  the  Nuremberg  Military 
Tribunals  under  Control  Council  Law  No.  10,  at  1  (1950). 

59.  Lieber  Code,  supra  note  53,  art.  148.  For  a  fuller  explanation  of  this  analysis,  see  Michael  N. 
Schmitt,  State  Sponsored  Assassination  in  International  and  Domestic  Law,  17  YALE  JOURNAL  OF 
INTERNATIONAL  Law  609  (1992).  See  also  W.  Hays  Parks,  Memorandum  of  Law:  Executive  Order 
1233  and  Assassination,  THE  ARMY  LAWYER  4  (1989). 

60.  The  British  Manual  of  1958  is  illustrative:  "assassination,  the  killing  or  wounding  of  a 
selected  individual  behind  the  line  of  battle  by  enemy  agents  or  partisans  . .  .  and  the  killing  or 
wounding  by  treachery  of  individuals  belonging  to  the  opposing  nation  or  army,  are  not  lawful 
acts  of  war."  War  Office,  The  Law  of  War  on  Land,  Being  Part  III  of  the  Manual  of  Military  Law, 
art.  115  (1958),  reprinted  in  10  DIGEST  OF  INTERNATIONAL  LAW  (1968). 

6 1 .  Protocol  Additional  I,  supra  note  4,  art.  85.3(a). 

62.  Protocol  Additional  (II)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  Non-International  Armed  Conflicts,  June  8, 1977,  art.  4.2, 1 125  U.N.T.S. 
609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at  483  [hereinafter  Protocol 
Additional  II]. 

63.  Rome  Statute  ofthe  International  Criminal  Court,  July  17,  1998,  UN  Doc.  A/CONF.183/9* 
(1998),  arts.  8.2(b)(i)  &  (e)(i)  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at 
671  (hereinafter  ICC  Statute]. 

64.  Protocol  Additional  I,  supra  note  4,  art.  50.1. 

65.  The  exception  applies  in  "situations  in  armed  conflict  where  owing  to  the  nature  of  hostilities 
an  armed  combatant  cannot  so  distinguish  himself."  In  such  cases,  he  need  only  distinguish 
himself  during  each  military  engagement  and  while  engaged  in  "a  military  deployment  preceding 
the  launching  of  an  attack"  during  such  time  as  he  is  visible  to  the  adversary.  Id.,  art.  44.3. 

66.  M.,  art  43.3. 

67.  The  Commentary  to  Article  43  of  Protocol  Additional  I  makes  it  clear  that  only  religious  and 
medical  personnel  enjoy  a  spcual  status  in  the  armed  fortes: 

In  lad,  in  the  army  there  are  numerous  important  categories  of  soldiers  whose 
foremost  or  normal  t.isk  has  little  to  do  with  firing  weapons.  These  include  auxiliary 
services,  administrative  services,  the  military  legal  service  and  others.  Whether  they 

186 


Michael  N.  Schmitt 


actually  engage  in  firing  weapons  is  not  important.  They  are  entitled  to  do  so,  which 
does  not  apply  to  either  medical  or  religious  personnel .... 

Commentary  on  the  Additional  Protocols  of  8  June  1977  to  the  Geneva 
CONVENTIONS  OF  12  AUGUST  1949,  f  1677,  at  515  (Yves  Sandoz,  Christophe  Swinarki  &  Bruno 
Zimmerman  eds.,  1987)  [hereinafter  PROTOCOLS  COMMENTARY]. 

68.  The  Rome  Statute  specifically  makes  them  subject  to  prosecution,  another  indication  that 
humanitarian  law  carves  out  no  special  regime  for  heads  of  State.  ICC  Statute,  supra  note  63,  art. 
27.  On  targeting  heads  of  States,  see  also  Thomas  Wingfield,  Taking  Aim  at  Regime  Elites: 
Assassination,  Tyrannicide,  and  the  Clancy  Doctrine,  22  MARYLAND  JOURNAL  OF 
INTERNATIONAL  LAW  287  (1999);  Robert  F.  Turner,  It's  Not  Really  "Assassination":  Legal  and 
Moral  Implications  of  Intentionally  Targeting  Terrorists  and  Aggressor-State  Regime  Elites,  37 
UNIVERSITY  OF  RICHMOND  LAW  REVIEW  787  (2003);  Nathan  Canestaro,  American  Law  and 
Policy  on  Assassinations  of  Foreign  Leaders:  The  Practicality  of  Maintaining  the  Status  Quo,  26 
Boston  College  International  &  Comparative  Law  Review  1  (2003);  Louis  Beres, 

Assassinating  Saddam  Hussein:  The  View  from  International  Law,  13  INDIANA  INTERNATIONAL  & 
Comparative  Law  Review  847  (2003). 

69.  US  Constitution,  art.  II,  sect.  2,  cl.  1 .  Casper  Weinberger  has  suggested  that  a  head  of  State  or 
government  who  serves  as  commander  of  the  armed  forces  is  a  combatant.  As  a  matter  of  law,  he 
overreaches.  Casper  Weinberger,  When  Can  We  Target  the  Leaders?,  STRATEGIC  REVIEW  21 
(Spring  2001).  See  also  Chris  A.  Anderson,  Assassination,  Lawful  Homicide,  and  the  Butcher  of 
Baghdad,  13  HAMLINE  JOURNAL  OF  LAW  AND  PUBLIC  POLICY  306  (1992). 

70.  The  Department  of  Defense  Dictionary  of  Military  and  Associated  Terms  offers  the 
following  definitions  for  the  levels  of  war: 

Strategic  Level  of  War:  The  level  of  war  at  which  a  nation,  often  as  a  member  of  a  group  of 
nations,  determines,  national  or  multinational  (alliance  or  coalition)  security  objectives 
and  guidance,  and  develops  and  uses  national  resources  to  accomplish  these  objectives. 
Activities  at  this  level  establish  national  and  multinational  military  objectives;  sequence 
initiatives;  define  limits  and  assess  risks  for  the  use  of  military  and  other  instruments  of 
national  power;  develop  global  plans  or  theater  war  plans  to  achieve  these  objectives;  and 
provide  military  forces  and  other  capabilities  in  accordance  with  strategic  plans. 
Operational  Level  of  War.  The  level  of  war  at  which  campaigns  and  major  operations  are 
planned,  conducted,  and  sustained  to  accomplish  strategic  objectives  within  theaters  or 
other  operational  areas.  Activities  at  this  level  link  tactics  and  strategy  by  establishing 
operational  objectives  needed  to  accomplish  the  strategic  objectives,  sequencing  events  to 
achieve  the  operational  objectives,  initiating  actions,  and  applying  resources  to  bring  about 
and  sustain  these  events.  These  activities  imply  a  broader  dimension  of  time  or  space  than 
do  tactics;  they  ensure  the  logistic  and  administrative  support  of  tactical  forces,  and  provide 
the  means  by  which  tactical  successes  are  exploited  to  achieve  strategic  objectives. 
Tactical  Level  of  War:  The  level  of  war  at  which  battles  and  engagements  are  planned 
and  executed  to  accomplish  military  objectives  assigned  to  tactical  units  or  task  forces. 
Activities  at  this  level  focus  on  the  ordered  arrangement  and  maneuver  of  combat 
elements  in  relation  to  each  other  and  to  the  enemy  to  achieve  combat  objectives. 
Joint  Pub  1-02,  supra  note  26. 

71.  PROTOCOLS  COMMENTARY,  supra  note  67,  f  1678,  at  515.  In  the  context  of  non- 
international  armed  conflict,  the  Commentary  to  Protocol  Additional  II  provides:  "Direct 
participation  in  hostilities  implies  that  there  is  a  sufficient  casual  relationship  between  the  act  of 
participation  and  its  immediate  consequences."  Id.  f  4787,  at  1453. 


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1 1  For  a  full  discussion  of  the  issue  of  direct  participation  in  hostilities,  see  Michael  X.  Schmitt, 
"Direct  Participation  in  Hostilities"  and  21st  Century  Armed  Conflict,  in  FESTSCHRIFT  FUR  DIETER 
FLECK  505  'Horst  Fischer  et  al.  eds.,  2004),  available  at  www.michaelschrnitt.org/ 
Publications.html.  Israel  takes  the  position  that  Protocol  Additional  I,  .Article  51(3),  which 
provides  that  civilians  taking  part  in  the  hostilities  can  only  be  targeted  Tor  such  times  as  they 
take  a  direct  part  in  hostilities,"  should  be  broadly  construed  such  that  those  who  participate 
remain  targetable  throughout  the  entire  period  of  their  involvement  in  the  conflict.  Yuval  Shanv, 
Israeli  Counter-Terrorism  Measures:  Are  They  "Kosher"  under  International  Law,  in  TERRORISM 
D  International  Law-  Challenges  and  Responses  96, 104  Michael  X.  Schmitt  &  Gian 
Luca  Benito  eds.,  2003). 

1 3  .Although  Israel  has  acknowledged  killing  over  30  Palestinians  pursuant  to  the  policy,  non- 
governmental organizations  estimate  that  nearly  three  times  that  number  have  been  targeted. 
Techniques  include  using  snipers,  bombs,  and  airstrikes.  Most  of  the  strikes  have  occurred  in 
Palestinian  controlled  territory  and  have  been  mounted  against  mid-  or  high-level  militants 
involved  in  attacks  against  Israeli  targets.  Id,  at  103.  On  the  policy  of  targeted  killings,  see  also  Orna 
Ben-Xaftali  and  Keren  R.  Michaeli,  mVit  Must  not  Make  a  Scarecrow  of  the  Law":  A  Legal  Analysis  of 
the  Israeli  Policy  of  Targeted  Killings,  36  CORNELL  INTERNATIONAL  Law  JOURNAL  233  2003). 
1  -  The  Israel  Defense  Forces  Judge  Advocate  General  has  set  four  conditions  for  conducting  such 
stri- 

1)  well- supported  information  showing  the  terrorist  will  plan  or  earn'  out  a  terror 
attack  in  the  near  future;  2)  after  appeals  to  the  Palestinian  Authority  calling  for  the 
terrorist's  arrest  have  been  ignored;  3 1  attempts  to  arrest  the  suspect  by  use  of  IDF 
troops  have  failed;  4 1  the  assassination  is  not  to  be  carried  out  in  retribution  for  events 
of  the  pasL  Instead,  it  can  only  be  done  to  prevent  attacks  in  the  future  which  are  liable 
to  toll  multiple  casualties. 

H     IBE1Z  7r:   4  1J02. 

7 r  See,  e.g.,  Amnesty  International,  Israel,  and  the  Occupied  Territories:  State  .Assassinations  and 
Other  Unlawful  Killings  |  Feb.  21, 2001 ),  at www.anmesly.org/hbran7index.  EXGMDE 1 50052001 . 

UN  CHARTER,  art.  5 1 . 
77.   S.C.  Res.  1368,  UN  SCOR,  56th  Sess.,  4370th  mtg.,  UN  Doc.  S/  RES/1368  (2001 1;  S.C.  Res. 
1373,  UN  SCOR,  56th  Sess.,  4385th  mtg.,  UN  Doc.  S/RES/1373  (2001). 

"  ■  NATO— North  Atlantic  Treat)-,  Apr.  4,  1949,  art.  5,  63  Stat.  2241,  2244,  34  U.X.T.S.  243, 
246;  Xorth  Atlantic  Treaty  Organization  NATO  ,  Press  Release  No.  124,  Statement  by  the 
North  Atlantic  Council  'Sept.  12,  2001),  www.nato.int/docu/pr/2001/p01  -124e.htm. 

O.AS — Inter- American  Treat).*  of  Reciprocal  Assistance,  Sept.  2,  1947,  art.  3.1,  62  Stat. 
1681,  1700,  21  U.N.T.S  77  f3;  Terrorist  Threat  to  the  Americas,  Res.  1,  Twenty-Fourth 
Meeting  of  Consultation  of  Ministers  of  Foreign  Affairs  Acting  as  Organ  of  Consultation  in 
Application  of  the  Inter-American  Treaty-  of  Reciprocal  Assistance,  OEAVSer.F/II.24,  RC.24/ 
RES.  1/01  ( Sept.  21,2001). 

ANZUS — Security  Treaty-  between  Australia,  Xew  Zealand,  United  States,  Sept.  1,  1951,  art. 
IV,  3  U.S.T.  3420,  3423,  131  U.X.T.S.  83,  86;  'by  Australia;,  Prime  Minister  John  Howard, 
Government  Invokes  ANZUS  Treaty- — Press  Conference  ^Sept.  14,  2001',  available  at 
aiistralianrx>htics.com.au/foreign/aiizus/0 1  -09- 1 4anzus-  in  voked.  shtml. 

79.  Russia,  China,  and  India  agreed  to  share  intelligence  with  the  United  States,  while  Japan  and 
South  Korea  offered  logistics  support.  The  United  Arab  Emirates  and  Saudi  Arabia  broke  off 
diplomatic  relations  with  the  Taliban,  and  Pakistan  agreed  to  cooperate  fully  with  the  United 
States.  Twenty-seven   nations  granted  overflight  and  landing  rights  and  46  multilateral 


188 


Michael  N.  Schmitt 


declarations  of  support  were  obtained.  White  House,  Fact  Sheet:  Operation  Enduring  Freedom 
Overview,  Oct.  1,  2001,  www.state.go v/s/ct/rls/fs/200 1/5 194.htm. 

80.  In  addition  to  United  Kingdom  participation  in  the  initial  strikes,  Georgia,  Oman,  Pakistan, 
the  Philippines,  Qatar,  Saudi  Arabia,  Tajikistan,  Turkey  and  Uzbekistan  provided  airspace  and 
facilities.  China,  Egypt,  Russia,  and  the  European  Union  publicly  backed  the  operations,  while 
even  the  Organization  for  the  Islamic  Conference  limited  itself  to  urging  the  United  States  to 
restrict  its  campaign  to  Afghanistan.  Australia,  Canada,  the  Czech  Republic,  Germany,  Italy, 
Japan,  the  Netherlands,  New  Zealand,  Turkey,  and  the  United  Kingdom  offered  ground  troops. 
Sean  D.  Murphy,  Terrorism  and  the  Concept  of  "Armed  Attack"  in  Article  51  of  the  U.N.  Charter, 
43  HARVARD  INTERNATIONAL  LAW  JOURNAL  41,  49  (2002);  Sean  D.  Murphy,  Contemporary 
Practice  of  the  United  States  Relating  to  International  Law,  96  AMERICAN  JOURNAL  OF 
INTERNATIONAL  LAW  237,  248  (2002). 

81.  With  the  exception  of  the  United  Kingdom  and  Israel,  many  of  the  closest  US  allies 
criticized  the  airstrikes  against  government  and  terrorist  targets  in  Libya.  The  General  Assembly 
passed  a  condemnatory  resolution  following  the  attack.  GA  Res.  41/38,  UN  GAOR,  41st  Sess., 
78th  plen.  mtg.  at  34,  UN  Doc  A/RES/41/38  (1986).  See  W.  Michael  Reisman,  International  Legal 
Responses  to  Terrorism,  22  HOUSTON  JOURNAL  OF  INTERNATIONAL  LAW  3,  33-34  (1999)  for  a 
detailed  description  of  international  reaction.  See  also  Stuart  G.  Baker,  Comparing  the  1993  US 
Airstrike  on  Iraq  to  the  1986  Bombing  of  Libya:  The  New  Interpretation  of  Article  51,  24  GEORGIA 
Journal  of  International  and  Comparative  Law  99  (1994). 

82.  Proportionality  and  necessity  have  specifically  been  cited  as  customary  international  law  by 
the  International  Court  of  Justice.  Military  and  Paramilitary  Activities  (Nicar.  v.  US),  1986  I.C.J. 
5  194  (June  27);  Case  Concerning  Oil  Platforms  (Iran  v.  US),  Judgment  (Merits)  Jf  43  &  74 
(Nov.  6,  2003),  www.icj-cij.org. 

83.  Profile:  Ali  Qaed  Senyan  al-Harthi,  BBC  News  World  Report,  Nov.  5,  2002,  at 
news.bbc.co.uk/2/hi/middle_east/2404443.stm. 

84.  Anthony  Dworkin,  The  Yemen  Strike,  Nov.  14,  2002,  at  www.crimesofwar/onnews/ 
news-yemen.html. 

85.  Ministry  of  Foreign  Affairs,  Israel:  Targeting  Terrorists — Background  (Aug.  1,  2001),  at 
www.mfa.gov.il/mfa/go. asp?MFAH0k9d0. 

86.  Letter  from  Daniel  Webster  to  Lord  Ashburton  (Aug.  6,  1842),  in  29  BRITISH  AND  FOREIGN 
STATE  PAPERS  1840-1,  at  1 129, 1 138.  The  incident  involved  the  Caroline,  a  vessel  used  to  supply 
Canadian  rebels  fighting  British  rule  during  the  Mackenzie  Rebellion.  British  forces  crossed  into 
the  United  States  (after  asking  the  United  States,  without  result,  to  put  an  end  to  rebel  activities 
on  its  territory),  captured  the  Caroline,  set  it  ablaze,  and  sent  it  over  Niagara  Falls.  Two  US 
citizens  perished.  An  exchange  of  diplomatic  notes  ensued  in  which  Secretary  of  State  Daniel 
Webster  articulated  the  standard.  Lord  Ashburton,  his  British  counterpart,  accepted  this 
formula  as  the  basis  of  their  exchange.  Letter  from  Lord  Ashburton  to  Daniel  Webster,  US 
Secretary  of  State  (July  28,  1842),  in  30  BRITISH  AND  FOREIGN  STATE  PAPERS  1841-1842, 
available  at  www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm. 

87.  In  addition  to  acceptance  of  the  standard  by  the  International  Court  of  Justice  (see  supra 
note  82),  the  Nuremberg  Tribunal  cited  the  case  approvingly  when  rejecting  the  argument  that 
Germany  had  attacked  Poland  in  1939  and  Norway  in  1940  in  (anticipatory)  self-defense. 
International  Military  Tribunal  (Nuremberg),  Judgment,  41  AMERICAN  JOURNAL  OF 
International  Law  172, 205  (1947). 

88.  YORAM  DlNSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  172  (3d  ed.  2001). 

89.  On  January  8,  2004,  Secretary  of  State  Powell,  referring  to  "evidence  of  a  connection  between 
Saddam  Hussein  and  al-Qaida  and  ...  a  likelihood  that  he  would  transfer  weapons  to  al-Qaida," 


189 


Targeting  and  Humanitarian  Law:  Current  Issues 

stated  that  he  has  "not  seen  smoking-gun,  concrete  evidence  about  the  connection,  but  I  think 
the  possibility  of  such  connections  did  exist  and  it  was  prudent  to  consider  them  at  the  time  that 
we  did."  Colin  L.  Powell,  Secretary  Powell's  Press  Conference  (Jan.  8,  2004),  www.state  .gov/ 
secretary/rm/28008.htm. 

90.  Letter  from  the  Permanent  Representative  of  the  United  States  of  America  to  the  United 
Nations  Addressed  to  the  President  of  the  Security  Council  (Oct.  7, 2001),  UN  Doc.  S/2001/946, 
www.un.int./usa/s-200  l-946.htm;  Secretary  General  Lord  Robertson,  Statement  at  NATO 
Headquarters  (Oct.  2,  2001),  www.nato.int/docu/speech/2001/s011002a.htm. 

91.  "Members  of  the  armed  forces  of  a  party  to  a  conflict  (other  than  medical  personnel  and 
chaplains  covered  by  Article  33  of  the  Third  Convention)  are  combatants,  that  is  to  say,  they 
have  the  right  to  participate  directly  in  hostilities."  Protocol  Additional  I,  supra  note  4,  art.  43.2. 

92.  Law  enforcement  incorporation  must  be  notified  to  the  other  side  for  combatant  status  to 
attach.  Id.  art.  43.3. 

93.  Common  Article  2  to  the  four  Geneva  conventions  provides  that  "the  present  Convention 
shall  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." 
(Emphasis  added).  Geneva  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded 
and  Sick  in  Armed  Forces  in  the  Field,  Aug.  12, 1949,  art.  2, 6  U.S.T.  31 14, 75  U.N.T.S.  31,  reprinted 
in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at  197;  Geneva  Convention  for  the 
Amelioration  of  the  Condition  of  the  Wounded,  Sick  and  Shipwrecked  Members  of  the  Armed 
Forces  at  Sea,  Aug.  12, 1949,  art.  2, 6  U.S.T.  3217, 75  U.N.T.S.  85,  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR,  supra  note  4,  at  222;  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of 
War,  Aug.  12, 1949,  art.  2, 6  U.S.T.  3316,  75  U.N.T.S.  135,  reprinted  in  DOCUMENTS  ON  THE  LAWS 
OF  WAR,  supra  note  4,  at  244;  and  Geneva  Convention  Relative  to  the  Protection  of  Civilian 
Persons  in  Time  of  War,  Aug.  12,  1949,  art.  2,  6  U.S.T.  3516,  75  U.N.T.S.  287,  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  4,  at  30 1 .  Article  1 .2  of  Protocol  Additional  I  states 
that  it  applies  to  "situation  referred  to  in  Article  2  common."  It  then  controversially  expands 
coverage  to  armed  conflicts  in  which  "people  are  fighting  against  colonial  domination  and  alien 
occupation  and  against  racist  regimes  in  the  exercise  of  their  right  of  self-determination."  Protocol 
Additional  I,  supra  note  4,  arts.  1.3  &  1.4. 

94.  Commentary  on  the  Geneva  Convention  for  the  Amelioration  of  the  Condition 
of  the  Wounded  and  Sick  of  the  Armed  Forces  in  the  Field  49  (J.  Pictet  ed.,  1952). 

95.  Protocol  Additional  II,  supra  note  62,  art  1.1. 

96.  James  Risen  &  David  Johnston,  Threats  and  Responses:  Hunt  for  Al  Qaeda,  NEW  YORK 
TIMES,  Dec.  15,  2002,  at  1. 

97.  See  report  of  the  group's  activities  in  Douglas  Waller,  The  CIA's  Secret  Army,  TIME,  Feb.  3, 
2003,  www.time.com/covers/ 1 101030203/. 

98.  UN  CHARTER,  art.  2(4):  "All  Members  shall  refrain  in  their  international  relations  from  the 
threat  or  use  offeree  against  the  territorial  integrity  or  political  independence  of  any  state,  or  in  any 
other  manner  inconsistent  with  the  Purposes  of  the  United  Nations."  This  prohibition  extends  not 
only  to  seizure  of  territory,  but  also  to  non-consensual  penetration.  Albrecht  Randelzhoffer,  Article 
2,  in  I  The  Charter  of  the  United  Nations:  A  Commentary  1 12, 123  (Bruno  Simma  ed.,  2d 
ed.  2002).  See  also  Declaration  on  Principles  of  International  Law  Concerning  Friendly  Relations 
and  Cooperation  Among  States  in  Accordance  with  the  Charter  of  the  United  Nations: 

Every  State  has  a  duty  to  refrain  in  its  international  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.  Such  a  threat  or 


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Michael  N.  Schmitt 


use  of  force  constitutes  a  violation  of  international  law  and  the  Charter  of  the  United 
Nations  and  shall  never  be  employed  as  a  means  of  settling  international  issues. 
G.A.  Res.  2625  (XXV),  UN  GAOR ,  25th  Sess.,  annex,  UN  Doc.  A/Res/2625  (1970),  reprinted  in 
65  American  Journal  of  International  Law  243  (1971)  and  in  Key  Resolutions  of  the 
UNITED  NATIONS  GENERAL  ASSEMBLY,  1946-1996,  at  3  (Dietrich  Rauschning,  Katja  Wiesbrock 
&  Martin  Lailach  eds.,  1997)  [hereinafter  Declaration  on  Friendly  Relations].  The  resolution  was 
adopted  by  acclamation. 

99.  Noted  by  John  Basset  Moore  in  his  dissent  in  the  Lotus  case.  S.S.  Lotus  (Fr.  v.  Turk.)  1927 
P.C.I.J.  (ser.  A)  No.  10,  at  4,  88  (Sept.  7)(Moore,  J.,  dissenting). 

100.  See,  e.g.,  Declaration  on  Friendly  Relations,  supra  note  98;  Declaration  on  Measures  to 
Eliminate  International  Terrorism,  G.A.  Res.  49/60,  UN  GAOR  6th  Comm.,  49th  Sess.,  84th  plen. 
mtg.,  UN  Doc.  A/49/743  (1994);  Declaration  to  Supplement  the  1994  Declaration  on  Measures  to 
Eliminate  International  Terrorism,  G.A.  Res.  51/210,  UN  GAOR  6th  Comm.,  51st  Sess.,  88th 
plen.  mtg.,  UN  Doc.  A/51/631  (1996);  S.C.  Res.  1363,  UN  SCOR,  56th  Sess.,  4352d  mtg.,  UN 
Doc.  S/RES/1363  (2001);  S.C.  Res.  1267,  UN  SCOR,  54th  Sess.,  4051st  mtg.,  UN  Doc.  S/RES/ 
1267(1999). 

101.  In  the  case  of  Afghanistan,  the  United  Nations  had  demanded  that  the  Taliban  put  an  end  to 
terrorist  activities  on  territory  it  controlled  both  before  and  after  September  11.  See,  e.g.,  S.C. 
Res.  1267,  supra  note  100;  S.C.  Res.  1363,  supra  note  100;  S.C.  Res.  1378,  UN  SCOR,  56th  Sess., 
4415th  mtg.,  UN  Doc.  S/RES/1378  (2001);  S.C.  Res.  1390,  UN  SCOR,  57th  Sess.,  4452d  mtg.,  UN 
Doc.  S/RES/ 1390  (2002).  After  9/11,  President  Bush  made  the  demand  explicit.  President 
George  W.  Bush,  Address  Before  a  Joint  Session  of  Congress  on  the  United  States  Response  to 
the  Terrorist  Attacks  of  September  11,  37  WEEKLY  COMPILATION  OF  PRESIDENTIAL 
DOCUMENTS  1347  (Sept.  20,  2001).  The  United  States  also  made  back-channel  demands 
through  Pakistan. 

102.  Perhaps  the  most  significant  case  of  a  State  crossing  into  another  to  deal  with  attacks  is  the 
Caroline  case  itself,  since  the  correspondence  between  Webster  and  Ashburton  is  universally 
cited  as  the  source  of  the  requirements  of  self-defense. 

103.  Defense  Intelligence  Agency,  Saddam's  Use  of  Human  Shields  and  Deceptive  Sanctuaries: 
Special  Briefing  for  the  Pentagon  Press  Corps  (Feb.  26,  2003),  www.defenselink.mil/news/ 
Feb2003/g030226-D-9085M.html.  On  this  subject,  see  also  Central  Intelligence  Agency,  Putting 
Noncombatants  at  Risk:  Saddam's  Use  of  Human  Shields,  January  2003,  www.cia.gov/cia/ 
reports/iraq_human_shields/;  Emanuel  Gross,  Use  of  Civilians  as  Human  Shields:  What  Legal 
and  Moral  Restrictions  Pertain  to  a  War  by  a  Democratic  State  against  Terrorism,  16  EMORY 
International  Law  Review  445  (2002). 

104.  Defense  Intelligence  Briefing,  supra  note  103. 

105.  For  a  version  of  these  points,  see  id. 

106.  G.A.  Res.  46/134,  UN  GAOR,  46th  Sess.,  f  2(c),  UN  Doc.  A/RES/46/134  (1991). 

107.  Off  Target,  supra  note  45. 

108.  In  May  1995,  Bosnian  Serbs  seized  UNPROFOR  peacekeepers  and  used  them  as  human 
shields  against  NATO  airstrikes.  In  response,  the  United  Nations  condemned  the  action, 
demanded  release,  and  authorized  the  creation  of  a  rapid  reaction  force  to  handle  such 
situations.  S.C.  Res.  998,  UN  SCOR,  3543d  mtg.,  UN  Doc  S/RES/998  (1995). 

109.  Joint  Pub  3-60,  supra  note  9,  app.  A. 

110.  Id. 

111.  Geneva  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time  of  War,  supra 
note  93,  art.  28. 

112.  Protocol  Additional  I,  supra  note  4,  art  51.7. 


191 


Targeting  and  Humanitarian  Law:  Current  Issues 

113.  ICC  Statute,  supra  note  63,  art  8.2(b)(xxiii):  "Utilizing  the  presence  of  a  civilian  or 
other  protected  person  to  render  certain  points,  areas  or  military  forces  immune  from 
military  operations." 

1 14.  Protocol  Additional  I,  supra  note  4,  art.  51.8. 

115.  Department  of  the  Air  Force,  International  Law — The  Conduct  of  Armed  Conflict  and  Air 
Operations  (AFP  110-31),  at  5  5-4b  (Nov.  19,  1976). 

1 16.  ROGERS,  supra  note  43,  at  79.  See  also  W.  Hays  Parks,  Air  War  and  the  Law  of  War,  32  AIR 
Force  Law  Review  l,  163  (1992). 

117.  Joint  Pub  3-60,  supra  note  9,  at  A-2-A-3. 

118.  Department  ofthe  Air  Force,  USAF  Intelligence  Targeting  Guide,  at  A4.2. 1.2  (Feb.  1, 1998). 

1 19.  Department  ofthe  Air  Force,  Judge  Advocate  General's  Department,  Air  Force  Operations 
and  the  Law  293  (2002). 

120.  A  belligerent  reprisal  is  an  unlawful,  but  proportionate,  act  taken  to  compel  one's  adversary  to 
desist  in  its  own  unlawful  course  of  conduct.  On  reprisals,  see  FRITS  KALSHOVEN,  BELLIGERENT 
REPRISALS  (1971).  Protocol  Additional  I  went  far  beyond  prior  humanitarian  law  in  prohibiting 
reprisals,  a  fact  that  led  to  US  opposition  to  the  treaty.  See  Protocol  Additional  I,  supra  note  4,  arts. 
51.6  (civilians  and  civilian  population),  52.1  (civilian  objects),  53  (cultural  objects  and  places  of 
worship),  54.4  (objects  indispensable  to  the  survival  ofthe  civilian  population),  55.2  (the  natural 
environment),  and  56.4  (dams,  dykes  and  nuclear  electrical  generating  stations). 

121.  CNN  Interactive,  Iraqis  Volunteering  as  Human  Shields  (Nov.  14, 1997),  afwww.cnn.com/ 
WORLD/971 1/14/iraq.al.sahhaf.presser.  They  used  force  for  that  purpose  during  Operation 
Desert  Fox  in  December  1998. 

122.  Although  most  came  to  shield  civilian  objects,  the  Iraqi  government  urged  them  to  shield 
military  objectives. 

123.  Department  of  Defense,  Background  Briefing  on  Targeting  (Mar.  5,  2003),  at  www 
.defenselink.mil/news/Mar2003/t03052003_t305targ.html. 

And  then,  the  other  target  category  that  is  a  challenge  for  us  is  where  the  human  shields 
that  we've  talked  of  before  might  be  used.  And  you  really  have  two  types  of  human 
shields.  You  have  people  who  volunteer  to  go  and  stand  on  a  bridge  or  a  power  plant  or 
a  water  works  facility,  and  you  have  people  that  are  placed  in  those  areas  not  of  their 
own  free  will.  In  the  case  of  some  ofthe  previous  use  of  human  shields  in  Iraq,  Saddam 
placed  hostages,  if  you  will,  on  sensitive  sites  in  order  to  show  that  these  were  human 
shields,  but,  in  fact,  they  were  not  there  of  their  own  free  will.  Two  separate  problems  to 
deal  with  that,  and  it  requires  that  we  work  very  carefully  with  the  intelligence 
community  to  determine  what  that  situation  might  be  at  a  particular  location. 

124.  Human  Rights  Watch,  International  Humanitarian  Law  Issues  in  a  Potential  War  in  Iraq 
(Feb.  20,  2002),  http://www.hrw.Org/backgrounder/arms/iraq0202003.htm#l. 

125.  Protocol  Additional  I,  supra  note  4,  art.  51(3). 

126.  ICC  Statute,  supra  note  63,  art.  8.  The  notion  of  direct  participation  also  appears  in  the 
humanitarian  law  pertaining  to  non-international  armed  conflict.  Common  Article  3  to  the  four 
1949  Geneva  Conventions  specifically  applies  to  "persons  taking  no  active  part  in  hostilities." 
Geneva  Conventions,  supra  note  93,  art.  3(1).  The  very  limited  nature  ofthe  article's  protections 
were  augmented  in  1977  by  Protocol  Additional  II  to  the  Geneva  Conventions,  which  provides 
far  more  extensive  protection  to  civilians  "unless  and  for  such  time  as  they  take  a  direct  part  in 
hostilities."  Protocol  Additional  II,  supra  note  62,  art  13.3.  Although  Common  Article  3  and 
Protocol  II  employ  different  terminology  ("active"  and  "direct"  respectively),  the  International 
Criminal  Tribunal  for  Rwanda  reasonably  opined  in  the  Akayesu  judgment  that  the  terms  are  so 
similar  they  should  be  treated  synonymously.  ICTR,  Prosecutor  v.  Jean-Paul  Akayesu,  Case 
ICTR-96-4-T,  Judgment,  2  Sept.  1998,  5  629. 


192 


Michael  N.  Schmitt 


127.  Protocols  Commentary,  supra  note  67,  f  1679,  at  516. 

128.  Id.  J 1942,  at  618. 

129.  Protocol  Additional  I,  swpra  note  4,  art.  52.2. 

130.  This  is  arguably  consistent  with  US  doctrine.  Joint  Publication  3-60  provides, 

The  protection  offered  civilians  carries  a  strict  obligation  on  the  part  of  civilians  not  to 
participate  directly  in  armed  combat,  become  combatants,  or  engage  in  acts  of  war. 
Civilians  engaging  in  fighting  or  otherwise  participating  in  combat  operations,  singularly 
or  as  a  group,  become  unlawful  combatants  and  lose  their  protected  civilian  status. 

Joint  Pub  3-60,  supra  note  9,  at  A-2. 

131.  Justus  R.  Weiner,  Co-existence  Without  Conflict:  The  Implementation  of  Legal  Structures  for 
Israeli-Palestinian  Cooperation  Pursuant  to  the  Interim  Peace  Agreements,  26  BROOKLYN 
Journal  of  International  Law  591, 679  n.407  (2000). 

132.  For  instance  with  the  entry  into  force  on  February  12,  2002  of  the  Optional  Protocol  to  the 
Convention  on  the  Rights  of  the  Child  on  the  Involvement  of  Children  in  Armed  Conflicts,  G.A. 
Res.  54/263,  Annex  I,  54  UN  GAOR  Supp.  No.  49,  UN  Doc.  A/54/49  (2000). 

133.  Protocol  I,  supra  note  4,  art.  52.2. 

134.  Prosecutor  v.  Stanislav  Galic,  Judgement,  Dec.  5, 2003,  Case  No.  IT-98-29-T,  www.un.org/ 
icty/galic/trialc/judgement/index.htm. 

135.  The  Report  to  the  Prosecutor  on  the  NATO  bombing  campaign  usefully  addresses  the  actus 
reus  and  mens  rea  of  the  offense  of  unlawful  attack  under  Article  3  of  the  ICTY  Statute: 

Attacks  which  are  not  directed  against  military  objectives  (particularly  attacks  directed 
against  the  civilian  population)  and  attacks  which  cause  disproportionate  civilian 
casualties  or  civilian  property  damage  may  constitute  the  actus  reus  for  the  offence  of 
unlawful  attack  under  Article  3  of  the  ICTY  Statute.  The  mens  rea  for  the  offence  is 
intention  or  recklessness,  not  simple  negligence.  In  determining  whether  or  not  the 
mens  rea  requirement  has  been  met,  it  should  be  borne  in  mind  that  commanders 
deciding  on  an  attack  have  duties: 

a)  to  do  everything  practicable  to  verify  that  the  objectives  to  be  attacked  are  military 
objectives,  . 

b)  to  take  all  practicable  precautions  in  the  choice  of  methods  and  means  of  warfare 
with  a  view  to  avoiding  or,  in  any  event  to  minimizing  incidental  civilian  casualties 
or  civilian  property  damage,  and 

c)  to  refrain  from  launching  attacks  which  maybe  expected  to  cause  disproportionate 
civilian  casualties  or  civilian  property  damage. 

Report  to  the  Prosecutor,  supra  note  40,  f  28. 

136.  Protocol  Additional  I,  supra  note  4,  art.  51.5(a). 

137.  Id.,  art.  57.2.  The  Report  to  the  Prosecutor  on  the  NATO  bombing  campaign  expanded  on 
this  obligation: 

The  obligation  to  do  everything  feasible  is  high  but  not  absolute.  A  military  commander 
must  set  up  an  effective  intelligence  gathering  system  to  collect  and  evaluate 
information  concerning  potential  targets.  The  commander  must  also  direct  his  forces 
to  use  available  technical  means  to  properly  identify  targets  during  operations.  Both  the 
commander  and  the  aircrew  actually  engaged  in  operations  must  have  some  range  of 
discretion  to  determine  which  available  resources  shall  be  used  and  how  they  shall  be 
used.  Further,  a  determination  that  inadequate  efforts  have  been  made  to  distinguish 
between  military  objectives  and  civilians  or  civilian  objects  should  not  necessarily  focus 
exclusively  on  a  specific  incident.  If  precautionary  measures  have  worked  adequately  in 


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Targeting  and  Humanitarian  Law:  Current  Issues 

a  very  high  percentage  of  cases  then  the  fact  they  have  not  worked  well  in  a  small 
number  of  cases  does  not  necessarily  mean  they  are  generally  inadequate. 

Report  to  the  Prosecutor,  supra  note  40,5  29. 

138.  Indeed,  the  International  Criminal  Tribunal  for  the  Former  Yugoslavia  addressed  the 
failure  to  use  discriminate  weapons  where  civilians  were  collocated  with  the  military  in  the 
Blaskic  case.  The  case  involved  shelling  of  the  village  of  Ahmici  and  several  others  in  Lasva  River 
Valley  with  "baby-bombs,"  home  made  mortars  that  are  difficult  to  aim  accurately.  The  Trial 
Chamber  found  this  to  be  a  deliberate  attack  on  civilians  with  "blind  weapons."  Prosecutor  v. 
Blaskic,  Judgment,  March  3,  2000,  Case  No.  IT-95-14. 

139.  Protocol  Additional  I,  supra  note  4,  art.  52.3. 

140.  Information  warfare  consists  of  "information  operations  conducted  during  time  of  crisis  or 
conflict  to  achieve  or  promote  specific  objectives  over  a  specific  adversary  or  adversaries."  Computer 
network  attacks  (CNA),  a  form  of  information  warfare,  are  "operations  to  disrupt,  deny,  degrade,  or 
destroy  information  resident  in  computers  and  computer  networks,  or  the  computers  and  networks 
themselves."  Joint  Pub  1-02,  supra  note  26.  The  essence  of  CNA  is  that,  regardless  of  the  context  in 
which  it  occurs,  a  data  stream  is  relied  on  to  execute  the  attack.  Methods  include,  inter  alia,  gaining 
access  to  a  computer  system  so  as  to  acquire  control  over  it,  transmitting  viruses  to  destroy  or  alter 
data,  using  logic  bombs  that  sit  idle  in  a  system  until  triggered  on  the  occasion  of  a  particular 
occurrence  or  at  a  set  time,  inserting  worms  that  reproduce  themselves  upon  entry  to  a  system 
thereby  overloading  the  network,  and  employing  sniffers  to  monitor  and/or  seize  data. 

141.  On  CNA  and  the  jus  ad  helium,  see  Michael  N.  Schmitt,  Computer  Network  Attack  and  Use 
of  Force  in  International  Law:  Thoughts  on  a  Normative  Framework,  37  COLUMBIA  JOURNAL  OF 
Transnational  Law  885  (1999). 

142.  On  CNA  and  the  jus  in  hello,  see  Michael  N.  Schmitt,  Wired  Warfare:  Computer  Network 
Attack  and  International  Law,"  84  (No.  846)  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  365 
(June  2002).  On  the  subject  generally,  see  COMPUTER  NETWORK  ATTACK  AND  INTERNATIONAL 
LAW  (Michael  N.  Schmitt  &  Brian  T.  O'Donnell  eds.,  2002)  (Vol.  76,  US  Naval  War  College 
International  Law  Studies). 

143.  Protocol  Additional  I,  supra  note  4,  art.  57.2  (a)(ii). 

144.  Id.,  art.  57.3. 

145.  See  Bankovic,  supra  note  41. 

146.  Protocol  Additional  I,  supra  note  4,  art.  48. 

147.  Id.,  art.  51.2. 

148.  Id,  ait.  52.1. 

149.  Id.,  art.  51.4. 

150.  Id.,  art.  52.2. 

151.  Id.,  art.  49. 

152.  PROTOCOLS  COMMENTARY,  supra  note  67,  f  1875,  at  600. 

153.  See  Schmitt,  Wired  Warfare:  Computer  Network  Attack  and  International  Law,  supra  note 
142,  at  375-78. 

154.  See  discussion  at  id.  at  377. 

155.  Robert  Bolt,  A  Man  for  All  Seasons,  act.  I,  scene  6  (1954). 


194 


X 


Coalition  Operations  and  the  Law 


M.  H.  MacDougalT 


This  paper  addresses  the  practical  side  of  the  application  of  the  law  of  armed 
conflict  and  domestic  law  requirements  during  coalition  combat  opera- 
tions; highlighting  areas  where  different  legal  structures  or  divergent  national  in- 
terpretation of  the  applicable  international  framework  may  have  significant 
impact.  I  am  going  to  do  this  by  briefly  canvassing  three  such  areas  in  the  context  of 
Operation  Enduring  Freedom.  Two  of  these  are  directly  related  to  the  topic  of 
combatants  and  civilians.  The  third  is  a  completely  distinct  topic — the  conduct  of 
coalition  investigatory  boards. 

Coalition  Boards  of  Inquiry 

The  first  area  I  would  like  to  discuss  is  coalition  boards,  using  the  Coalition  Board 
that  was  convened  by  the  United  States  Air  Force  to  investigate  the  Tarnak  Farms 
Range  friendly  fire  incident  and  the  Canadian  Board  of  Inquiry  that  was  ordered  by 
the  Minister  of  National  Defence  (MND)  to  investigate  the  same  incident  as  a  fo- 
cus. I  do  not  intend,  however,  to  comment  on  any  substantive  findings  of  either 
board.  Rather,  my  emphasis  will  be  on  the  procedural  issues  that  arose  during  the 
conduct  of  the  concurrent  boards  that  were  investigating  the  incident  and  the  reso- 
lution of  those  issues. 

The  facts  are  undisputed.  On  the  evening  of  April  17,  2002,  soldiers  from  Alpha 
Company,  Third  Battalion,  Princess  Patricia's  Canadian  Light  Infantry  were 


Coalition  Operations  and  the  Law 


engaged  in  a  night  live  fire  training  exercise  at  Tarnak  Farms  Range  just  south  of 
Kandahar,  Afghanistan.  While  the  Canadian  soldiers  were  training,  two  US  F-16 
fighter  aircraft  were  returning  from  an  on-call  mission  to  support  coalition  ground 
forces.  As  the  aircraft  passed  south  of  Kandahar,  the  flight  leader  observed  what  he 
described  as  fireworks  coming  from  an  area  a  few  miles  south  of  Kandahar.  Per- 
ceiving this  as  surface-to-air  fire,  the  pilot  asked  for  and  received  permission  from 
the  mission  crew  of  a  US  Airborne  Warning  and  Control  System  (AWACS)  aircraft 
to  determine  the  precise  coordinates  of  the  surface-to-air  fire.  While  attempting  to 
obtain  the  coordinates,  the  pilot  of  the  second  aircraft,  the  wingman,  requested 
permission  to  fire  on  the  location  with  his  20-millimeter  cannon.  The  AWACS 
crew  told  him  to  stand  by,  and  later  requested  that  the  wingman  provide  additional 
information  on  the  surface-to-air  fire  while  directing  him  to  hold  fire.  The  pilot 
immediately  responded  "I've  got  some  men  on  a  road  and  it  looks  like  a  piece  of  ar- 
tillery firing  at  us.  I  am  rolling  in  in  self  defense."  The  pilot  then  called  "bombs 
away"  as  he  released  one  500-pound  GBU- 12  laser-guided  bomb.  The  bomb  struck 
a  Canadian  fire  position  at  Tarnak  Farms.  Four  Canadians  were  killed,  eight  were 
wounded. 

As  a  result  of  this  tragic  incident,  two  boards,  one  exclusively  Canadian  and  one 
American  with  a  Canadian  co-chairman  (Coalition  Board),  were  convened  to  in- 
vestigate the  incident. 

However,  although  each  Board  was  investigating  the  same  incident,  the  primary 
purpose  for  the  respective  investigations  was  quite  different.  As  will  be  highlighted 
later,  this  difference  in  purpose  had  significant  impact  on  the  procedural  processes 
applicable  to  each  board. 

The  primary  purpose  for  the  Coalition  Board  was  of  a  disciplinary  nature.  This 
board  was  convened  with  the  specific  mandate  to  make  disciplinary  recommenda- 
tions, if  such  were  warranted.  The  Canadian  Board  of  Inquiry  was  convened  under 
Section  45  of  the  National  Defence  Act  whereby  the  MND  may  convene  such  a  board 
when  it  is  appropriate  for  the  MND  to  be  informed  on  a  matter  connected  with  the 
Canadian  Forces  or  that  affects  a  member  thereof.  The  primary  purpose  of  the  Cana- 
dian board  was  quite  different  than  that  of  the  Coalition  Board.  It  was  convened  for 
administrative/safety  purposes  and  was  designed  to  meet  the  Canadian  public  expec- 
tation that  this  tragic  incident  would  be  investigated  in  a  balanced  and  transparent 
manner.  Recommendations  as  to  potential  disciplinary  action  were  never  contem- 
plated and  under  Canadian  jurisprudence,  the  conduct  of  the  investigation  could 
have,  in  fact,  prejudiced  future  criminal/disciplinary  action. 

The  conduct  of  simultaneous  investigatory  boards  into  the  same  incident,  with 
different  purposes,  poses  unique  challenges.  The  first  is  that  of  sharing  and  disclosure 
of  information.  This  issue  has  two  facets:  first,  how  to  ensure  both  boards  had  access 


196 


M.  H.  MacDougall 


to  the  necessary  information  to  reach  informed  conclusions  and  recommendations; 
and  second,  what  information  could  be  publicly  disclosed  once  the  respective  boards 
had  completed  their  investigation  and  made  their  recommendations. 

Because  the  co-chairman  of  the  Coalition  Board  was  Brigadier  General  Marc 
Dumais,  a  Canadian,  one  obvious  option  for  the  sharing  of  the  requisite  information 
would  have  been  to  use  General  Dumais  as  a  conduit  of  information  between  the  two 
boards.  This  option  was  not  a  viable  one  because  of  the  significant  impact  such  an  ar- 
rangement could  have  on  the  perceived  independence  and  impartiality  of  each 
board.  The  second  option,  and  the  one  that  was  utilized,  was  the  establishment  of  a 
protocol  for  the  release  of  information  to  the  boards.  This  protocol  established  the 
process  for  requesting  documentary  evidence  and  witnesses  and  set  out  the  parame- 
ters under  which  the  information  could  be  released.  In  the  case  of  requests  by  the  Ca- 
nadian Board  of  Inquiry  for  information  from  US  authorities,  these  parameters 
formed  part  of  the  legal  basis  for  the  determination  of  what  information  could  be  re- 
leased publicly.  In  light  of  the  raison  d'etre  (a  balanced  and  transparent  investigation) 
for  the  Canadian  Board  of  Inquiry  and  the  fact  that  it  had  been  Canadian  soldiers 
who  had  been  injured  or  died,  as  much  public  disclosure  as  possible  was  of  great  im- 
portance. Equally  important,  however,  was  the  desire  not  to  release  classified  infor- 
mation, personal  information  protected  from  release  under  privacy  legislation  or 
information  the  release  of  which  could  impact  on  potential  disciplinary  proceedings. 
Balancing  these  conflicting  priorities  takes  a  great  deal  of  coordination  and  coopera- 
tion between  national  authorities  to  ensure  consistent  and  coordinated  public  re- 
lease of  information.  One  of  the  most  important  lessons  learned  in  this  whole 
process  is  never  assume  full  knowledge  of  the  legal  and  political  constraints  a  coali- 
tion partner  may  be  operating  under,  particularly  when  dealing  with  such  an  emo- 
tion charged  issue  as  the  death  of  coalition  soldiers  as  a  result  of  friendly  fire.  Even  for 
Canada  and  the  United  States,  who  share  such  similar  legal,  political  and  cultural 
foundations,  reaching  a  compromise  that  addressed  both  countries  concerns  took 
significant  effort  and  coordination  and,  I  might  add,  a  lot  of  late  nights,  last  minute 
panics  and  very  senior  intervention. 

Returning  to  the  initial  theme  of  the  impact  of  procedural  processes  adopted  by 
the  respective  boards  as  a  result  of  their  differing  primary  purposes,  I'd  like  to 
touch  briefly  on  the  issue  of  compellability  of  witnesses.  As  I  understand  it,  no  wit- 
ness could  be  compelled  to  testify  before  the  Coalition  Board.  In  contrast,  the  Ca- 
nadian board  could  compel  anyone  subject  to  Canadian  law  to  testify,  but  their 
testimony  could  not  be  used  as  evidence  in  a  legal  proceeding  (civil,  disciplinary  or 
criminal),  save  for  perjury  charges.  This  striking  difference  in  procedural  process  is 
directly  linked  to  the  primary  purpose  for  the  convening  of  the  board.  In  the  Cana- 
dian context,  because  no  evidence  given  to  a  Board  of  Inquiry  can  be  used  in  future 

197 


Coalition  Operations  and  the  Law 


legal  proceedings,  witnesses  can  be  compelled  to  testify  because  it  does  not  impact 
on  their  fundamental  right  "not  to  be  compelled  to  be  a  witness  in  proceedings 
against  oneself."  Because  the  purpose  of  the  investigation  is  an  administrative  one, 
tied  primarily  to  safety  issues,  the  balance  is  tipped  in  favor  of  compelling  the  wit- 
nesses to  testify  in  the  interests  of  a  full  exploration  of  the  facts. 

Having  now  identified  in  a  very  cursory  manner  some  of  the  legal 
interoperability  issues  related  to  coalition  boards  let  me  close  this  issue  by  saying 
that  I  believe  that  none  of  these  challenges  are  insurmountable.  In  fact,  in  this  in- 
stance I  believe  these  differences  in  process,  dictated  largely  by  different  national 
legal  standards,  actually  enhanced  the  credibility  of  the  findings  and  recommenda- 
tions of  the  respective  Boards.  In  the  case  of  the  Tarnak  Farms  tragedy,  the  struc- 
tured process  that  evolved  for  disclosure  of  information  to  the  respective  boards, 
ensuring  that  there  was  no  collusion  or  collaboration  between  the  boards,  led  to 
the  public  perception  that  there  had  been  a  balanced  and  transparent  investigation 
into  the  matter.  A  closer  relationship  between  the  two  boards  during  the  investiga- 
tive process  may  not  have  resulted  in  the  same  perception. 

Transfer  of  Detainees 

The  second  area  where  different  legal  structures  or  divergent  national  interpreta- 
tion of  the  applicable  international  framework  may  have  an  impact  on  operations 
is  that  of  the  transfer  of  detainees  to  another  coalition  partner.  Let  me  again  paint  a 
brief  background  of  the  issue  in  the  context  of  Operation  Apollo,  Canada's  contri- 
bution to  Operation  Enduring  Freedom.  Throughout  the  campaign  against  terror- 
ism, the  tasks  and  capabilities  of  Canadian  Forces  (CF)  units,  as  well  as  some  other 
coalition  partners,  deployed  in  the  theater  of  operations  did  not  permit  the  long- 
term  detention  of  persons  detained  by  the  CF.  Persons  detained  by  the  CF  were  ei- 
ther released  or  evacuated  from  the  point  of  capture  to  a  facility  where  proper 
screening,  long-term  treatment  and  security  could  be  ensured.  For  Operation  En- 
during Freedom,  the  United  States  assumed  the  responsibility  of  establishing  and 
maintaining  the  coalition's  short-  and  long-term  detention  facilities  in  Afghani- 
stan and  Guantanamo  Bay,  Cuba.  The  Government  of  Canada  has  noted  several 
times  that  Canada,  as  a  coalition  partner,  will,  as  a  general  rule,  transfer  persons  de- 
tained by  the  CF,  and  who  are  suspected  members  of  the  Taliban  and  al-Qaida,  to 
the  United  States. 

I  would  like  to  highlight  some  of  the  legal  issues  that  may  impact  on  the  decision 
of  a  coalition  partner  whether  or  not  to  transfer  detainees  to  another  coalition 
partner.  As  with  so  many  other  issues  related  to  international  law  these  are  not 
"black  letter  law"  issues  and  different  coalition  partners  will  likely  have  different 

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M.  H.  MacDougall 


interpretations  of  the  applicable  law  or  even  what  is  the  applicable  law.  This,  of 
course,  is  one  of  the  significant  challenges  of  coalition  operations. 

Before  addressing  the  specifics  of  these  legal  issues,  let  me  provide  an  example  of 
how  fundamental  these  different  interpretations  can  be.  As  part  of  the  overall 
campaign  against  terrorism,  Canada  and  its  coalition  partners  are  engaged  in  an 
armed  conflict  and  are  exercising  their  inherent  right  of  collective  and  individual 
self-defense  against  the  al-Qaida  and  the  Taliban.  But  what  is  the  legal  regime  ap- 
plicable to  these  hostilities?  Generally,  where  a  State  is  entitled  to  use  force  in  an 
armed  conflict,  it  must  conduct  hostilities  in  accordance  with  international  law, 
particularly  the  law  of  armed  conflict.  However,  al-Qaida  is  a  non-State  entity  (not 
qualifying  as  a  "national  liberation  movement")  and  prior  to  September  1 1th  most 
States  rejected  the  Taliban  as  the  legitimate  government  of  Afghanistan  (previous 
legitimate  governments  of  Afghanistan  had  signed  and  ratified  the  Geneva  Con- 
ventions of  19492).  This  has  led  to  a  debate  as  to  whether  the  coalition  partners  are 
engaged  in  an  international  or  non-international  armed  conflict  and,  if  one  accepts 
that  it  is  an  international  armed  conflict,  whether  the  Geneva  Conventions  and  the 
1977  Additional  Protocol  I3  apply  as  a  matter  of  conventional  law  to  the  conflict.  For 
example,  on  February  7,  2002,  the  United  States  announced  that  although  it  has 
never  recognized  the  Taliban  as  the  legitimate  Afghan  Government,  the  President 
determined  that  the  Taliban  members  are  covered  by  the  Geneva  Conventions  be- 
cause Afghanistan  is  a  party  to  them.  Other  coalition  partners  may  have  taken  the 
view  that  the  Geneva  Conventions  and  the  1977  Additional  Protocol  I  may  not  tech- 
nically apply  to  the  conflict  as  a  matter  of  strict  conventional  or  treaty  law.  However, 
regardless  of  the  legal  position  adopted  by  coalition  partners,  all  coalition  partners 
are  applying  the  same  standards,  either  as  a  matter  of  law  or  policy. 

What  is  the  legal  authority  for  one  coalition  partner  to  transfer  detainees  to 
another  coalition  partner? 

Turning  now  to  the  specific  issue  of  transfer  of  detainees  from  one  coalition  part- 
ner to  another,  one  issue  that  legal  advisors  may  have  to  analyze  prior  to  a  decision 
being  made  is  whether  there  is  legal  authority  for  such  a  transfer.  Geneva  Conven- 
tion (III)  Relative  to  the  Treatment  of  Prisoners  of  War  provides  for  the  transfer  of 
prisoners  of  war  to  other  nations  who  are  willing  and  able  to  abide  by  the  Conven- 
tion's obligations  for  the  handling  and  treatment  of  such  persons.  In  particular, 
Article  12  states:  "Prisoners  of  war  may  only  be  transferred  by  the  Detaining  Power 
to  a  Power  which  is  a  party  to  the  Convention  and  after  the  Detaining  Power  has 
satisfied  itself  of  the  willingness  and  ability  of  such  transferee  Power  to  apply  the 
Convention."  (Emphasis  added.)  There  are  no  specific  provisions  for  those  de- 
tained persons  who  have  taken  part  in  hostilities  but  are  not  entitled  to  prisoner  of 

199 


Coalition  Operations  and  the  Law 


war  status  (i.e.,  unlawful  combatants)  and  therein  may  be  the  rub  for  some  coali- 
tion partners. 

In  the  context  of  Operation  Enduring  Freedom,  a  review  of  US  treatment  of  de- 
tainees at  Kandahar  and  Guantanamo  Bay  and  statements  made  by  President 
Bush,  indicate  the  United  States  is  willing  and  able  to  apply  the  appropriate  inter- 
national law  standards.  In  particular,  on  February  7,  2002,  the  White  House  clari- 
fied the  US  position  on  the  applicability  of  the  Geneva  Conventions  to  members  of 
the  Taliban  and  al-Qaida.4  The  White  House  Spokesman's  comments  can  be  sum- 
marized as: 

•  The  United  States  is  committed  to  applying  the  principles  of  the  Geneva 
Conventions; 

•  The  United  States  applied  the  Geneva  Conventions  (including  Article  4  of 
Convention  III)  to  the  Taliban  and  made  a  blanket  determination  that  members 
of  the  Taliban  are  not  prisoners  of  war; 

•  The  United  States  has  decided  not  to  apply  the  Geneva  Conventions  to 
members  of  al-Qaida  because  they  do  not  represent  any  State  that  is  a  party  to  the 
Geneva  Conventions.  Accordingly,  they  cannot  have  prisoner  of  war  status  under 
the  Geneva  Conventions; 

•  The  United  States  will  treat  all  detainees  humanely  and  consistent  with  the 
principles  of  the  Geneva  Conventions;  and 

•  The  International  Committee  of  the  Red  Cross  (ICRC)  has  been  allowed, 
and  will  continue  to  have,  access  to  facilities  and  detained  persons. 

In  circumstances  such  as  this,  it  maybe  reasonable  to  argue  that  a  coalition  partner 
can  transfer  these  unlawful  combatants  to  the  United  States  in  accordance  with 
standards  analogous  to  the  provisions  of  Article  12  of  Geneva  Convention  III. 

Are  blanket  determinations  of  PW  status  permissible  under  international  law? 

Even  if  a  coalition  partner  is  satisfied  that  the  receiving  State  is  willing  and  able  to 
apply  the  Geneva  Conventions  and  other  appropriate  international  legal  stan- 
dards, the  issue  of  the  reasonableness  of  a  blanket  determination  that  members  of  a 
group  are  not  entitled  to  prison  of  war  status  may  be  problematic.  This  was  poten- 
tially an  issue  for  coalition  partners  during  the  campaign  against  terrorism.  On  the 
one  hand,  you  have  the  position  that  such  blanket  determinations  are  supportable 
under  international  law  if  based  on  appropriate  evidence.  (The  United  States 
decided  that  members  of  the  Taliban  and  al-Qaida  are  not  entitled  to  prisoner  of 
war  status.  This  was  based  on  its  determination  that  al-Qaida  met  none  of  the  re- 
quirements for  prisoner  of  war  status — a  responsible  commander,  a  distinctive 


200 


M.  H.  MacDougall 


and  visible  insignia,  the  open  bearing  of  arms  and  compliance  with  the  laws  and 
customs  of  war.  The  Taliban  failed  to  meet  the  last  requirement.) 

On  the  other  hand,  you  have  the  argument  that  Article  5  of  Geneva  Convention 
III  requires  a  case-by-case  evaluation  of  the  status  of  detained  persons  if  prisoner  of 
war  status  is  not  being  conferred,  based  on  the  plain  reading  of  Article  5.  Article  5 
addresses  the  issue  of  the  legal  status  of  a  captured  or  detained  person  who  has 
committed  a  belligerent  act.  It  notes  that  a  person  who  is  classified  as  a  "combat- 
ant" under  Article  4  will  be  treated  in  all  respects  as  a  prisoner  of  war.  If  there  is  any 
doubt  about  whether  a  detainee  is  entitled  to  prisoner  of  war  status,  Article  5  delin- 
eates the  requirement  to  conduct  a  status  determination  tribunal  as  follows: 

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  [i.e.,  combatants],  such  persons  shall  enjoy  the  protection  of  the  present 
convention  until  such  time  as  their  status  has  been  determined  by  a  competent  tribunal. 

One  could  argue  that  a  simple  way  for  a  coalition  partner  to  solve  this  debate  is  to 
conduct  its  own  status  determination  hearing  prior  to  transfer,  but  there  is  no  re- 
quirement at  law  to  do  so  and  this  approach  ignores  the  reality  of  the  operational 
situation  where  it  may  be  impossible  to  do  so  in  a  timely  and  effective  manner. 

What  is  the  impact  on  the  decision  to  transfer  if  it  is  known  at  the  time  of 
transfer  that  a  detainee  is  likely  to  be  charged  and  may  be  subject  to  the  death 
penalty  and/or  judicial  proceedings  that  may  not  meet  minimal  fair  trial 
guarantees  under  international  or  domestic  law? 

This,  of  course,  is  the  thorny  issue  of  transferring  detainees  to  a  State  whose  penal 
code  authorizes  the  death  penalty  or  has  a  judicial  system  with  less  procedural 
guarantees  than  those  found  under  the  coalition  partner's  law.  International  law, 
including  the  law  of  armed  conflict,  contemplates  that  detainees,  including  prison- 
ers of  war  and  unlawful  combatants,  maybe  subject  to  judicial  proceedings  and  ul- 
timately sentenced  to  death.5  International  law  imposes  minimum  legal  standards 
on  the  conduct  of  these  proceedings.  Unlawful  combatants  may  be  prosecuted  as 
criminals  for  having  taken  part  in  hostilities.  Prisoners  of  war  could  be  liable  for 
prosecution  if  they  committed  violations  of  the  laws  of  war. 

The  real  legal  issue  for  coalition  operations,  however,  is  likely  to  be  how  the  do- 
mestic law  of  the  respective  coalition  partners  impacts  on  the  transfer  of  detainees 
to  a. coalition  partner,  who  could  potentially  subject  the  detainee  to  the  death  pen- 
alty. Unlike  the  United  States,  most  other  western  nations'  domestic  human  rights 
standards  have  some  extraterritorial  application  to  aliens.  For  example,  Section  7 


201 


Coalition  Operations  and  the  Law 


of  Canada's  Charter  of  Rights  and  Freedoms  guarantees  individuals  the  right  not  to 
be  deprived  of  their  life,  liberty  or  security  of  the  person  except  in  accordance  with 
the  principles  of  fundamental  justice.  The  Supreme  Court  of  Canada  has  held  that 
extradition  to  face  the  death  penalty6  or  immigration  removal  where  there  is  a  sub- 
stantial risk  of  torture7  would  violate  Section  7  in  all  but  exceptional  circum- 
stances. Arguably  the  issue  of  transfer  of  detainees  in  the  context  of  a  military 
operation  abroad  is  quantifiably  different  than  the  extradition  or  immigration  re- 
moval of  a  person  who  is  on  Canadian  territory,  but  the  application  of  the  Charter 
to  such  operations  has  yet  to  be  addressed  by  Canadian  courts.  In  a  similar  vein,  the 
European  Court  of  Human  Rights  ruled  in  Bankovic8  that  while  Article  1  of  the  Eu- 
ropean Convention  on  Human  Rights9  contemplates  the  ordinary  and  essentially 
territorial  notion  of  jurisdiction,  extra-territorial  jurisdiction  by  a  contracting  state 
is  possible  in  exceptional  circumstances  depending  on  the  particular  circum- 
stances of  each  case. 

Additional  Protocol  I — Article  51  (3) 

The  final  issue  I  would  like  to  touch  on  today  is  what  Hayes  Parks  calls  the  "revolv- 
ing door"  for  certain  civilians  provided  by  Article  51(3)  of  Additional  Protocol  I. 
As  a  trade-off  for  the  protection  they  enjoy  against  the  dangers  arising  from  mili- 
tary operations,  civilians  should  not  directly  participate  in  hostilities.  According  to 
Article  51(3)  of  Additional  Protocol  I,  their  direct  participation  in  hostilities  auto- 
matically entails  loss  of  immunity  from  attack  "for  such  time  as  they  take  a  direct 
part  in  hostilities"  In  principle,  the  trade-off  does  not  appear  to  be  problematic, 
particularly  in  the  context  of  those  armed  conflicts  where  there  is  no  difficulty  in 
precisely  defining  combatant  and  civilian  status.  But  in  the  context  of  Operation 
Enduring  Freedom,  the  practical  application  of  this  temporal  limitation  could  be 
problematic,  particularly  from  a  targeting  perspective.  How  can  the  period  during 
which  a  civilian  who  directly  participates  in  hostilities  loses  immunity  from  attack 
be  defined  in  practical  terms?  Does  it  mean  that  civilians  only  lose  their  protected 
status  and  become  lawful  targets  while  they  carry  a  weapon  and  they  revert  to  their 
protected  status  once  they  throw  down  their  weapon  or  return  home  from  a  day  in 
the  trenches?  Or  do  they  continue  to  be  lawful  targets  so  long  as  they  perform  the 
functions  of  combatants,  such  as  planning  and  command  as  well  as  the  actual  con- 
duct of  operations?  There  is  no  international  consensus  on  this  issue  and  these  are 
not  academic  questions,  the  answer  to  which  is  of  no  practical  import.  Nor  are  they 
only  relevant  to  those  nations  who  are  parties  to  Additional  Protocol  I.  Targeting 
decisions  will  remain  subject  to  legal  review  as  part  of  the  accountability  process 
that  is  integral  to  the  principle  of  command  responsibility.  There  will  be  an  effect 

202 


M.  H.  MacDougall 


on  the  whole  coalition  as  a  result  of  each  partner's  interpretation  on  this  issue  as 
each  nation's  position  on  this  issue  may  have  a  direct  impact  on  the  targets  as- 
signed to  each  partner  by  the  coalition  commander. 

Notes 

1 .  Captain  M.  H.  (N)  McDougall,  Canadian  Forces,  is  the  Deputy  Judge  Advocate/Operations. 

2.  Geneva  Convention  (I)  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in 
Armed  Forces  in  the  Field,  Geneva,  Aug.  12,  1949,  75  U.N.T.S.  31;  Geneva  Convention  (II)  for 
the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of  Armed 
Forces  at  Sea,  Aug.  12, 1949,  75  U.N.T.S.  85;  Geneva  Convention  (III)  Relative  to  the  Treatment 
of  Prisoners  of  War,  Aug.  12,  1949,  75  U.N.T.S.  135;  Geneva  Convention  Relative  to  the 
Protection  of  Civilians  Persons  in  Time  of  War,  Aug.  12,  1949,  75  U.N.T.S.  287;  all  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000)  at  197, 
222,  244  and  301,  respectively. 

3.  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  (hereinafter  Additional  Protocol  I),  June 
8,  1977,  1125  U.N.T.S.  3,  reprinted  in  id.  at  422. 

4.  See  the  White  House  statement  on  the  applicability  of  the  Geneva  Conventions,  available  at 
www.CBC.CA  "US  Guarantees  Rights  to  Taliban  Detainees,"  Feb.  8,  2002  and  at  www.CNN 
.Com  "Bush:  Geneva  Treaty  Applies  to  Taliban  Detainees,"Feb.  7,  2002. 

5.  For  example,  see  Geneva  Convention  (III),  Articles  99-107  of  Part  III  (Judicial  Proceedings), 
and  Geneva  Convention  (IV),  Articles  64-68  of  Part  III,  Section  III  (Occupied  Territories), 
DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  2. 

6.  United  States  v.  Burns  [2001]  1  S.C.R.  283. 

7.  Suresh  v.  Canada  (Minister  of  Citizenship  and  Immigration)  [2002]  1  S.C.R.  3. 

8.  Bankovic  and  Others  v.  Belgium  and  16  Other  Contracting  States,  2001 -XII  Eur.  Ct.  H.R.  333 
(Grand  Chamber). 

9.  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms,  Nov.  4,  1950, 
ETS  No.  5,  213  U.N.T.S.  222. 


203 


PART  III 


MARITIME  OPERATIONAL  CHALLENGES 


XI 


Current  Legal  Issues  in  Maritime  Operations: 

Maritime  Interception  Operations  in  the 

Global  War  on  Terrorism,  Exclusion  Zones, 

Hospital  Ships  and  Maritime  Neutrality 

Wolff  Heintschel  von  Heinegg1 

Preliminary  Remarks 

With  the  adoption  of  the  UN  Law  of  the  Sea  Convention  in  19822  there  was 
a  strong  belief  that  with  that  "constitution  of  the  world's  oceans"  all  the 
disputed  issues  relating  to  coastal  State  rights  on  the  one  hand,  and  to  freedom  of 
navigation  on  the  other  hand,  had  been  settled  for  good.  Since  1982,  however, 
coastal  State  legislation  has  frequently  had  a  negative  impact  on  the  latter.  The  US 
Freedom  of  Navigation  Program  gives  ample  proof  of  excessive  maritime  claims 
ranging  from  restrictions  of  the  rights  of  innocent  passage,  transit  passage,  and 
archipelagic  sea  lanes  passage,  to  the  establishment  of  illegal  baselines  and  mari- 
time security  zones,  all  of  which  have  no  basis  in  either  the  LOS  Convention  or  in 
customary  international  law.3  The  problem  of  "creeping  jurisdiction"  has  gradu- 
ally been  reinforced  by  national  legislation  on  the  protection  of  the  marine  envi- 
ronment. Many  coastal  States  have  understood  that  when  a  deviation  from  the 
established  rules  and  principles  of  the  law  of  the  sea  is  justified  on  environmental 
grounds,  it  creates  enormous  difficulties  for  those  States  that  are  prepared  to  coun- 
ter these  claims.  The  general  public  will  all  too  easily  accept  them  as  reasonable  and 


Current  Legal  Issues  in  Martime  Operations 


legitimate.  Still,  for  countries  like  the  United  States  and  the  member  States  of  the 
European  Union,4  in  view  of  their  dependence  on  the  freedom  of  navigation  for  se- 
curity and  economic  reasons,  it  is  of  tantamount  importance  to  preserve  the 
achievements  of  the  LOS  Convention. 

At  the  same  time,  these  very  States  are  confronted  with  new  challenges.  There  al- 
ready exists  reliable  intelligence  information  that  transnational  terrorists  may  tar- 
get ships  and  ports.  Moreover,  transnational  terrorism  may  well  seek  to  take 
advantage  of  navigational  freedoms  by  transporting  weapons,  including  weapons 
of  mass  destruction,  by  sea.  In  order  to  prevent  them  from  reaching  their  destina- 
tion it  is  necessary  not  only  to  establish  effective  control  mechanisms  in  ports5  but 
also  to  interfere  with  international  shipping  on  the  high  seas  if  there  is  no  such  ef- 
fective control  mechanism  in  the  port  of  origin,  or  if  the  flag  State  is  unwilling  to 
comply  with  its  obligations  under  treaties  in  force6  or  under  the  respective  resolu- 
tions of  the  UN  Security  Council.7 

The  dilemma  the  target  States  of  transnational  terrorism  find  themselves  in  seems 
to  be  obvious.  On  the  one  hand,  there  is  a  necessity  to  interfere  with  foreign  shipping, 
thus  restricting  the  freedom  of  navigation.  On  the  other  hand,  these  measures  may 
be  precedents  for  a  modification  of  the  law  which  would,  if  going  too  far,  be  contrary 
to  the  vital  interests  of  these  States  whose  economies  depend  on  the  free  flow  of 
goods  by  sea  and  whose  security  interests  presuppose  that  their  navies  remain  in  a 
position  to  exercise  power  projection  whenever  and  wherever  necessary. 

The  first  section  of  this  paper  will  deal  with  the  question  of  whether  and  to  what 
extent  the  law  as  it  stands  provides  a  sufficient  legal  basis  for  Maritime  Intercep- 
tion/Interdiction Operations  (MIO)8  in  the  Global  War  on  Terrorism  (GWOT).9 
If  the  answer  to  this  question  is  affirmative,  the  said  dilemma  will  prove  to  be  less 
dramatic  than  it  seems  to  be  at  first  glance. 

The  second  part  of  this  paper  will  be  devoted  to  three  further  current  legal  issues 
in  maritime  operations  that,  although  dealing  with  the  law  of  naval  warfare  and 
neutrality  at  sea,  are  not  in  toto  unrelated  to  the  issues  dealt  with  in  the  first  part. 
Firstly,  the  establishment  of  "exclusion/operational  zones"  during  an  international 
armed  conflict  will,  in  any  event,  interfere  with  the  freedom  of  navigation  of  "neu- 
tral" and  innocent  shipping.  Secondly,  the  threat  posed  by  transnational  terrorism 
will  not  vanish  or  even  decrease  during  an  international  armed  conflict.  Rather, 
transnational  terrorists  may  consider  warships  and  hospital  ships  perfect  targets, 
be  it  only  for  propaganda  reasons.10  Hence,  the  question  arises  as  to  which  mea- 
sures belligerents  may  take  in  order  to  effectively  protect  their  units.  Thirdly,  and 
finally,  in  view  of  the  persisting  terrorist  threat  during  an  international  armed  con- 
flict, the  traditional  rules  and  principles  of  the  law  of  (maritime)  neutrality,  if 


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applied  in  a  strict  manner,  may  prove  to  be  a  considerable  obstacle  for  non-bellig- 
erent States  in  their  contribution  to  the  GWOT. 

War  on  Terrorism 

Developments  following  the  terrorist  attacks  of  September  11,  2001,  have  led  to  a 
broader  understanding  of  the  right  of  self-defense.11  It  not  only  applies  to  situa- 
tions where  a  State,  either  with  its  armed  forces  or  in  some  other  way  attributable  to 
it,  has  attacked  another  State.  It  also  comes  into  operation  if  an  armed  attack  is 
launched  against  a  State  from  outside  its  borders12  by  persons  whose  acts  cannot, 
or  for  the  time  being  cannot,  be  attributed  to  another  State.  Moreover,  the  target 
State,  or  the  potential  target  State,  and  its  allies  do  not  have  to  adopt  a  wait-and-see 
policy  but  they  may  take  all  measures  reasonably  necessary  to  prevent  future  at- 
tacks as  early  and  as  effectively  as  possible. 

MIO  in  the  GWOT 

In  the  maritime  context  such  preventive  measures  may  comprise,  inter  alia: 

Surveillance  and  control  of  sea  traffic; 

Providing  for  freedom  and  safety  of  navigation; 

Protection  of  endangered  vessels; 

Disruption  of  lines  of  communication; 

Visit,  search  (boarding)  and  capture; 

Diversion; 

Establishment  of  security  zones  and  of  restricted  sea  areas; 

Capture/arrest  of  cargos  and  persons. 

Self-defense 

However,  if  maritime  interception/interdiction  operations13  are  solely  based  upon 
the  right  of  self-defense  there  needs  to  be  a  sufficiently  clear  link  to  the  threat  posed 
by  transnational  terrorism.  This  will,  for  example,  be  the  case  if  there  are  reason- 
able grounds  for  suspicion  that  a  given  vessel  is  involved  in  the  carrying  of  terror- 
ists and/or  of  weapons  destined  for  an  area  known  to  serve  as  a  hiding  place  or 
training  ground  for  terrorist  groups.  In  any  event,  the  generally  accepted  legal  limi- 
tations of  the  right  of  self-defense — immediacy,  necessity,  proportionality — have 
to  be  observed.14  Indiscriminate  MIO  exercised  in  vast  sea  areas  would  be  dispro- 
portionate and,  hence,  not  justified  by  the  right  of  self-defense. 


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It  may  be  added  in  this  context  that  if  a  vessel  can  be  connected  to  the  persisting 
threat  posed  by  transnational  terrorism  no  further  conditions  have  to  be  met.  Es- 
pecially, any  form  of  consent — be  it  by  the  flag  State  or  by  the  ship's  master — is  ir- 
relevant. The  right  of  self-defense  has  never  been  made  dependent  upon  the  will  of 
third  States  or  of  individuals.  The  UN  Security  Council  alone  would  be  in  a  posi- 
tion, by  taking  effective  measures,  to  terminate  the  exercise  of  that  inherent  right.15 

Law  of  the  Sea 

While  MIO  could  be  based  upon  the  rules  of  the  law  of  naval  warfare  on  prize  mea- 
sures (measures  short  of  attack)16  and  on  targeting17  this  would  presuppose  the  ex- 
istence of  an  international  armed  conflict.  While  the  United  States  is,  at  present,  a 
party  to  an  international  armed  conflict  (Iraq),  the  exercise  of  the  right  of  visit  and 
search  and  the  targeting  of  vessels  could  be  based  on  these  rules.  However,  transna- 
tional terrorism  poses  an  ongoing  threat  that  will  not  disappear  with  the  termina- 
tion of  the  hostilities  in  Iraq.  Hence,  the  question  is  whether  there  are — apart  from 
the  right  of  self-defense  and  the  law  of  naval  warfare — other  rules  of  international 
law  that  could  serve  as  a  legal  basis  for  MIO  on  the  high  seas. 

Of  course,  the  law  of  the  sea,  as  embodied  in  the  LOS  Convention  and  in 
customary  international  law,  recognizes  the  right  of  warships  and  of  other  State 
ships  to  take  measures  against  a  merchant  vessel,  including  visit  and  search,18  if 

•  the  vessel  is  flying  the  same  flag  as  the  intercepting  warship; 

•  the  vessel  is  "stateless"; 

•  there  are  reasonable  grounds  for  suspicion  that  the  vessel  is  engaged  in 

(a)  piracy,19 

(b)  slave  trade,  or 

(c)  unauthorized  broadcasting. 

Accordingly,  the  boarding  of  the  So  San20  was  justified  not  merely  according  to 
the  right  of  collective  self-defense,  but  also  according  to  Article  110  of  the  LOS  Con- 
vention because,  at  the  time  of  the  interception,  it  could  be  considered  stateless  and 
because  it  did  not  give  satisfactory  information  about  its  origin  and  about  its  destina- 
tion. Hence,  all  measures,  including  visit  and  search  (boarding,  including  opposed 
boarding),  undertaken  for  the  purpose  of  verifying  the  true  character,  function,  and 
destination  of  the  vessel  were  admissible.21  The  fact  that,  after  the  boarding,  the  na- 
tionality of  the  vessel  proved  to  be  North  Korean  and  that  it  was  engaged  in  the  "in- 
nocent" shipping  of  missiles  does  not  justify  a  different  legal  evaluation.22 

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Against  allegations  to  the  contrary  it  is,  however,  doubtful  whether  it  would  be 
admissible  to  draw  an  analogy  between  transnational  terrorists  and  pirates.  While  in 
some  cases  acts  of  transnational  terrorism  may  be  characterized  as  piratical,  or  at 
least  similar  to  piracy,  it  must  be  remembered  that,  according  to  the  consensus  of 
States,  there  still  is  a  clear  distinction  between  terrorism  on  the  one  hand  and  piracy 
on  the  other.23  Therefore,  according  to  the  law  as  it  stands,  the  rules  on  piracy  can  not 
be  applied  to  terrorists,  unless  their  acts  qualify  as  piracy  proper. 

It  may  be  added  that,  according  to  the  LOS  Convention,  coastal  States  may  take 
action  against  foreign  merchant  vessels  to  enforce  their  domestic  laws.  This  right  to 
enforce  varies  and  decreases  with  the  sea  area  in  question.  While  it  would  be  in 
accordance  with  international  law  to  enforce  domestic  immigration  and  security 
regulations  in  the  internal  waters,  in  the  territorial  sea  and  in  the  contiguous 
zone,24  especially  if  the  vessel  affected  is  believed  to  be  involved  in  acts  of 
transnational  terrorism,  the  law  of  the  sea  does  not  provide  for  such  enforcement 
measures  in  the  costal  State's  sea  areas  beyond  the  12-nm  territorial  sea  or  the  24- 
nm  contiguous  zone.  In  the  exclusive  economic  zone  (EEZ)  coastal  States  are  only 
entitled  to  prescribe  and  enforce  rules  that  are  designed  to  regulate  the  exploration 
and  exploitation  of  the  natural  resources  and  to  protect  the  marine  environment  of 
that  sea  area.25  With  regard  to  activities  of  foreign  vessels  not  affecting  these 
"sovereign  rights"  nor  resulting  in  severe  damage  to  the  marine  environment,  the 
flag  State  principle  has  precedence  over  the  coastal  State's  rights.  Hence,  Article 
110  of  the  LOS  Convention  provides  a  legal  basis  for  MIO  on  the  high  seas. 

Other  Legal  Bases  for  MIO? 

There  remains  one  legal  aspect  that  seemingly  has  not  been  made  use  of  in  the  cur- 
rent discussion  on  the  legality  of  MIO  in  the  GWOT,  i.e.,  countermeasures  and/or 
reprisals.  In  this  context,  it  is  of  great  importance  that  the  UN  Security  Council,  in 
Resolution  1373,26  has  decided — in  a  legally  binding  way  (!) — that  with  regard  to 
transnational  terrorism  States  shall,  inter  alia: 

Prohibit  their  nationals  or  any  persons  and  entities  within  their  territories  from 
making  any  funds,  financial  assets  or  economic  resources  or  financial  or  other  related 
services  available,  directly  or  indirectly,  for  the  benefit  of  persons  who  commit  or 
attempt  to  commit  or  facilitate  or  participate  in  the  commission  of  terrorist  acts,  of 
entities  owned  or  controlled,  directly  or  indirectly,  by  such  persons  and  of  persons  and 
entities  acting  on  behalf  of  or  at  the  direction  of  such  persons; 


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(a)  Refrain  from  providing  any  form  of  support,  active  or  passive,  to  entities  or 
persons  involved  in  terrorist  acts,  including  by  suppressing  recruitment  of  members 
of  terrorist  groups  and  eliminating  the  supply  of  weapons  to  terrorists; 

(b)  Take  the  necessary  steps  to  prevent  the  commission  of  terrorist  acts,  including  by 
provision  of  early  warning  to  other  States  by  exchange  of  information; 

(c)  Deny  safe  haven  to  those  who  finance,  plan,  support,  or  commit  terrorist  acts,  or 
provide  safe  havens; 

(d)  Prevent  those  who  finance,  plan,  facilitate  or  commit  terrorist  acts  from  using 
their  respective  territories  for  those  purposes  against  other  States  or  their  citizens; 

(e)  Ensure  that  any  person  who  participates  in  the  financing,  planning,  preparation 
or  perpetration  of  terrorist  acts  or  in  supporting  terrorist  acts  is  brought  to  justice 
and  ensure  that,  in  addition  to  any  other  measures  against  them,  such  terrorist  acts 
are  established  as  serious  criminal  offences  in  domestic  laws  and  regulations  and  that 
the  punishment  duly  reflects  the  seriousness  of  such  terrorist  acts; 


(g)  Prevent  the  movement  of  terrorists  or  terrorist  groups  by  effective  border 
controls  and  controls  on  issuance  of  identity  papers  and  travel  documents,  and 
through  measures  for  preventing  counterfeiting,  forgery  or  fraudulent  use  of  identity 
papers  and  travel  documents. 

Hence,  if  a  State  either  assists  transnational  terrorism  or  has  knowledge  that  its  na- 
tionals or  merchant  vessels  are  engaged  in  such  assistance,  etc.,  but  still  remains  inac- 
tive, that  State  is  in  clear  violation  of  its  obligations  under  the  UN  Charter.27 

Of  course,  if  the  assistance  rendered  amounts  to  direct  participation  in  an 
armed  terrorist  attack  or  if  the  terrorist  attack  is  in  some  other  way  attributable  to 
the  sponsoring  State,  the  target  State  will  be  entitled  to  take  self-defense  measures. 
Whether  the  armed  response  qualifies  as  an  "on-the-spot  reaction"  or  a  "defensive 
armed  reprisal"28  is  merely  a  matter  of  the  modalities  of  the  exercise  of  the  right  of 
self-defense.  In  any  event,  the  target  State  will  have  the  right  to  respond  by  the  use 
of  armed  force. 

But  what  if  the  assistance  by  the  sponsoring  State  or  its  inactivity  does  not 
amount  to  assistance  in  an  armed  attack?  On  the  one  hand,  the  sponsoring  or 
inactive  State  would  still  be  in  violation  of  its  obligations  specified  in  Resolution 
1373.  Even  more,  the  inactivity  would  be  supportive  of  acts  of  transnational  terrorism 
and  could,  therefore,  constitute  a  prohibited  use  of  force,  not  amounting,  however,  to 
an  armed  attack  or  an  act  of  aggression  ("smaller  scale  use  of  force").  In  such  a 
situation  the  target  State,  on  the  other  hand,  would  not  be  under  an  obligation  to 
remain  inactive.  Rather  it  would  be  entitled  to  take  all  necessary  countermeasures  or 
reprisals  in  response  to  the  illegal  acts  of  the  sponsoring  State.  To  some  surprise  this  has 


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recently  been  expressly  acknowledged  by  Judge  Simma  who  is  far  from  being  a 
supporter  of  a  broad  understanding  of  the  law  governing  the  use  of  force.  In  his 
separate  opinion  to  the  Court's  judgment  in  the  Oil  Platforms  case29  Judge  Simma 
stated,  inter  alia: 

In  my  view,  the  permissibility  of  strictly  defensive  military  action  taken  against  attacks 
of  the  type  involving,  for  example,  the  Sea  Isle  City  or  the  Samuel  B.  Roberts  cannot  be 
denied.  What  we  see  in  such  instances  is  an  unlawful  use  of  force  "short  of  an  armed 
attack  ('agression  armee')  within  the  meaning  of  Article  51,  as  indeed  "the  most  grave 
form  of  the  use  of  force."  Against  such  smaller-scale  use  offeree,  defensive  action — by 
force  also  "short  of  Article  51 — is  to  be  regarded  as  lawful.  In  other  words,  I  would 
suggest  a  distinction  between  (full-scale)  self-defence  within  the  meaning  of  Article  51 
against  an  "armed  attack"  within  the  meaning  of  the  same  Charter  provision  on  the 
one  hand  and,  on  the  other,  the  case  of  hostile  action,  for  instance  against  individual 
ships,  below  the  level  of  Article  51,  justifying  proportionate  defensive  measures  on  the 
part  of  the  victim,  equally  short  of  the  quality  and  quantity  of  action  in  self-defence 
expressly  reserved  in  the  United  Nations  Charter.30 

Applied  to  the  GWOT,  the  target  State  of  acts  of  transnational  terrorism  would 
be  entitled  to  take  defensive  countermeasures  "short  of  Article  51"  against  the  State 
that  is,  actively  or  passively,  assisting  or  otherwise  furthering  transnational 
terrorism.  Accordingly,  countermeasures/reprisals  involving  visit  and  search 
could  be  taken  against  vessels  for  the  mere  reason  that  they  are  flying  that  State's 
flag  (genuine  link).  However,  in  view  of  the  importance  of  the  freedom  of 
navigation  such  measures  must  be  necessary  and  strictly  proportionate.  That  will 
only  be  the  case  if  there  are  reasonable  grounds  for  suspicion  that  the  vessels 
affected  are  indeed  engaged  in  activities  of — or  in  assistance  of — transnational 
terrorism,  e.g.,  if  the  State  in  question  fails  to  prevent  the  merchant  vessels  flying  its 
flag  from  transporting  terrorists  or  objects  that  are  designed  to  further 
transnational  terrorism. 

The  Use  of  "Zones"  in  the  Context  of  Anti-Terror/Force  Protection 

When  it  comes  to  "zones"  in  a  maritime  context  there  are  a  number  of  misunder- 
standings due  to  connotations  to  "war  zones"  known  from  the  two  World  Wars31 
or  to  "exclusion  zones"  known  from  the  Falklands/Malvinas  War  (1982)32  and 
from  the  Iran-Iraq  War  ( 1980-1 988). 33  As  a  method  of  naval  warfare  such  a  zone — 
whatever  its  purpose  or  legality  may  be — cannot  be  made  use  of  in  times  other  than 
international  armed  conflict. 

"Defense  bubbles"  or  rather  warning  zones  established  around  warships  or 
naval  units  are  also  to  be  distinguished  from  "operational,"  "exclusion"  or  other 
zones.  Such  warning  zones  merely  serve  to  protect  the  naval  vessels  from  attack  or 

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from  other  illegal  activities  and  are  generally  recognized  as  in  accordance  with 
international  law.34  Shipping  and  aviation  are  notified  of  potentially  hazardous 
conditions  and  are  requested  to  clearly  identify  themselves  if  they  are  approaching 
the  warning  zone.  The  extent  of  these  zones  and  the  measures  taken  cannot  be 
determined  in  abstracto.  Rather,  it  will  depend  on  the  circumstances  of  each  single 
case,  especially  on  a  known  threat  and  on  the  location  of  the  ships  concerned, 
whether  the  extent  of  the  warning  area  may  be  reasonable  or  excessive.35  As  the 
attack  on  the  USS  Cole  clearly  demonstrates,  the  threat  posed  by  terrorist  activities 
is  obvious  but  will  vary  according  to  the  region  of  operation  and  to  the  general 
security  environment.  If,  however,  the  extent  of  the  defensive/protective/warning 
zone  is  proportionate  to  that  threat,  the  inconveniences  imposed  upon  sea  and  air 
traffic  will  not  amount  to  a  violation  of  the  freedom  of  navigation.  This  holds  true 
for  times  of  peace  and  during  periods  of  international  armed  conflict.  Still,  it  needs 
to  be  kept  in  mind  that,  unless  the  threat  is  overwhelming  and  leaves  no  choice  of 
deliberations,  such  warning  zones  will  have  to  be  based  upon  some  form  of  an 
agreement  with  the  respective  coastal  State,  if  the  warships  or  naval  unit  are 
deployed,  or  are  operating,  in  the  internal  waters  or  territorial  sea  of  that  State. 

In  addition,  warning  zones  are  not  to  be  equated  with  "special  warnings"  which 
are  merely  a  tool  for  implementing  the  warning  zone  and  for  notifying  it  to  other 
States  and  to  international  shipping  and  aviation.  For  example,  US  forces  are 
presently  operating  under  a  heightened  state  of  readiness.  Accordingly, 
approaching  aircraft  and  ships  are  requested  to  maintain  radio  contact  and  are 
warned  that  the  US  forces  will  exercise  appropriate  self-defense  measures,  without, 
however,  impeding  freedom  of  navigation.36 

The  question  remains  whether  zones  may  also  be  made  use  of  in  the  GWOT  for 
purposes  other  than  force  protection.  Certainly,  in  view  of  the  importance  of  the 
freedom  of  navigation  for  international  trade  and  security,  the  closure  of  larger  areas 
of  the  high  seas  to  international  navigation  and  aviation  would  be  illegal.  Up  to  the 
present,  assertions  by  some  States  of  a  right  to  extend  their  sea  areas  for  security 
reasons  beyond  the  12-nm  territorial  sea  have  regularly  met  protests  and  have,  thus, 
never  been  recognized.37  Older  concepts,  like  the  so-called  "pacific  blockade,"38  or 
singular  precedents,  like  the  "quarantine"  of  Cuba,39  would  not  justify  such  far 
reaching  infringements  of  the  freedom  of  navigation  either.  Although,  in  theory, 
the  establishment  of  an  "exclusion  zone"  could  be  based  upon  the  right  of  self- 
defense  there  is  but  one  realistic  scenario  this  author  can  conceive  of  in  which  such 
a  measure  would  meet  the  test  of  immediacy,  necessity  and  proportionality:  A 
group  of  transnational  terrorists  gains  control  over  a  submarine  with  launching 
capabilities  for  intermediate-range  missiles  and  there  is  sufficient  intelligence 
information  that  they  will  attack  from  a  given  sea  area.  Then  it  may  be  in 

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Wolff Heintchel  von  Heinegg 


accordance  with  the  right  of  self-defense  of  the  threatened  State  to  close  that  sea 
area  to  all  underwater  vehicles. 

Apart  from  such  a  scenario,  however,  the  extensive  use  of  a  given  sea  area  in  the 
GWOT  will  always  be  in  conformity  with  international  law,  when  approached  from 
a  different  perspective.  If  the  target  States  of  terrorist  attacks  and  their  allies  are  al- 
lowed to  conduct  MIO  worldwide  on  the  high  seas,  clearly  a  decision  to  restrict  such 
operations  only  to  certain  limited  seas  areas  is  lawful,  particularly  if  the  sea  areas  con- 
cerned are  known  to  be  used  for  the  transport  of  terrorists  and  of  weapons  destined 
to  terrorist  groups.  The  States  cooperating  in  the  framework  of  Operation  Enduring 
Freedom  have  been  doing  exactly  this  by  restricting  MIO  to  the  sea  areas  surround- 
ing the  Arabian  Peninsula.  Up  to  the  present,  no  State  seems  to  have  protested  or 
otherwise  contested  the  legality  of  these  measures.  Accordingly,  and  subject  to  the 
principles  of  necessity  and  proportionality,  an  operational  area — that  is  to  be  distin- 
guished from  any  form  of  "zone"— may  be  established  in  the  context  of  the  fight 
against  transnational  terrorism  in  order  to  enable  the  target  States  and  their  allies  to 
identify  and  control  international  shipping  and  aviation  or,  if  reasonable  grounds  for 
suspicion  of  an  activity  supportive  of  transnational  terrorism  exist,  to  prevent  them 
from  approaching  the  coastline  of  a  State  that  has  proved  to  be  either  unwilling  or 
unable  to  comply  with  its  obligations  under  the  UN  Security  Council  resolutions  on 
transnational  terrorism. 

Law  of  Naval  Warfare  and  Maritime  Neutrality 

While  the  San  Remo  Manual  in  most  of  its  parts  reflects  customary  international 
law,  three  aspects  of  the  law  of  naval  warfare  addressed  therein  either  remain  dis- 
puted or,  in  view  of  new  threats  and  exigencies,  seemingly  need  to  be  reconsidered: 
maritime  exclusion/operational  zones,  technical  equipment  of  hospital  ships,  and 
maritime  neutrality. 

Maritime  Exclusion/Operational  Zones 

There  is  general  agreement  that  the  "war  zones"  established  by  the  belligerents  of  the 
two  World  Wars  were,  and  remain,  illegal.40  No  zone,  whatever  its  denomination  or 
alleged  purpose  relieves  the  proclaiming  belligerent  of  the  obligation  under  the  law 
of  naval  warfare  to  refrain  from  attacking  vessels  and  aircraft  which  do  not  constitute 
legitimate  military  objectives.41  In  other  words,  a  zone  amounting  to  a  "free-fire- 
zone"  has  no  basis  in  the  existing  law.  Considerations  of  military  necessity — e.g., 
from  a  submariner's  point  of  view — do  not  justify  a  conclusion  to  the  contrary.42 

Still,  in  view  of  State  practice,  the  discussion  on  the  legality  of  some  other  kind  of 
"zone"  has  not  ceased.   On  the  one  hand,  modern  weapons  are  far  more 

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discriminating  than  any  means  of  naval  warfare  used  during  World  War  II.  On  the 
other  hand,  modern  weapons  have  brought  about  over-the-horizon  targeting 
capabilities.  At  the  same  time,  naval  platforms,  in  view  of  their  construction  and 
technical  equipment,  are  rather  vulnerable  and  can  suffer  severe  damage  inflicted 
by  comparatively  "primitive"  means.  Moreover,  the  number  of  the  world's 
merchant  vessels  has  increased  considerably.  They  may  be  engaged  in  innocent 
trade  but  they  may  also  be  integrated  into  the  enemy's  war-fighting  or  war- 
sustaining  effort,  thus  constituting  a  threat  to  the  overall  effort  to  bring  the  armed 
conflict  to  a  successful  end  without  suffering  unreasonable  damage.  Therefore, 
naval  armed  forces  are  forced  to  control  large  sea  areas  in  order  to  remain  in  a 
position  to  effectively  protect  their  units  and  to  achieve  their  military  goal. 

Before  dealing  with  the  legality  of  such  exclusion/operational  zones  under  the 
law  of  naval  warfare  it  needs  to  be  stressed  that  they  must  be  distinguished  from 
warning  zones43  and  from  the  customary  belligerent  right  to  control  the  immediate 
area  or  vicinity  of  naval  operations.  It  is  generally  acknowledged  that  belligerents 
are  entitled  to  take  all  measures  necessary  against  neutral  vessels  and  aircraft  whose 
presence  may  otherwise  jeopardize  naval  operations  in  that  area.44  While  in  many 
cases  such  measures  will  consist  of  a  belligerent's  control  over  the  communications 
of  these  vessels  and  aircraft,  they  may,  depending  on  the  circumstances,  include  the 
closure  of  the  sea  area  in  which  naval  operations  are  conducted.45 

State  Practice 

After  the  condemnation  of  unrestricted  submarine  warfare  by  the  Nuremberg  Tri- 
bunal, the  first  precedent  of  an  exclusion  zone  obviously  occurred  during  the 
Falklands/Malvinas  conflict  of  1982.  On  April  7,  the  United  Kingdom  proclaimed  a 
"maritime  exclusion  zone"  around  the  islands.  Argentina  followed  on  April  8  by 
proclaiming  a  "maritime  zone."  On  April  23,  the  British  Government  proclaimed  a 
"defensive  bubble"46  limited  to  the  protection  of  the  British  forces  against  Argen- 
tine warships  and  Argentine  military  and  civilian  aircraft.  However,  on  April  28, 
the  United  Kingdom  proclaimed  a  "total  exclusion  zone"  (TEZ)  that  came  into  ef- 
fect on  April  30: 

[T]he  exclusion  zone  will  apply  not  only  to  Argentine  warships  and  naval  auxiliaries 
but  also  to  any  other  ship,  whether  naval  or  merchant  vessel,  which  is  operating  in 
support  of  the  illegal  occupation  of  the  Falkland  Islands  by  Argentine  Forces.  The  zone 
will  also  apply  to  any  aircraft,  whether  military  or  civil,  which  is  operating  in  support  of 
the  Argentine  occupation.  Any  ship  and  any  aircraft,  whether  military  or  civil,  which  is 
found  within  the  zone  without  authority  from  the  Ministry  of  Defence  in  London  will 
be  regarded  as  operating  in  support  of  the  illegal  occupation  and  will  therefore  be 
regarded  as  hostile  and  will  be  liable  to  be  attacked  by  British  Forces. 


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In  view  of  the  wording  of  the  proclamation  that  clearly  indicates  the  British  were 
prepared  to  attack  any  vessel  or  aircraft  encountered  within  the  TEZ,  it  is  rather 
astonishing  that  one  commentator  has  characterized  the  TEZ  as  a  "reasonable 
temporary  appropriation  of  a  limited  area  of  the  high  seas."47  This  conclusion  is 
mainly  based  on  the  fact  that  the  zone  had  been  adequately  notified,  that  it  had 
been  established  in  a  remote  sea  area  without  significant  sea  traffic,  and  that  it  had 
not  resulted  in  any  casualties  to  neutral  ships  or  aircraft.48  While  these  arguments 
are  without  doubt  reflecting  reality,  they  do  not  alter  the  wording  of  the 
proclamation.  On  the  other  hand,  due  to  other  rather  obscure  statements  of  the 
British  government  it  may  well  be  that,  in  reality,  the  British  forces  were  not 
allowed  to  target  just  any  contact  within  the  TEZ — at  least  not  without  prior 
authorization  from  the  highest  political  level.  Therefore,  the  United  Kingdom  was 
either  lucky  that  its  naval  units  were  not  forced  to  really  enforce  the  TEZ  vis-a-vis 
neutral  vessels  and  aircraft  or,  what  is  more  likely,  the  proclamation  of  the  TEZ  was 
nothing  but  a  most  effective  ruse  of  war  because  it  obviously  induced  the  Argentine 
forces  to  avoid  the  area.  If  the  latter  holds  true,  the  British  measure  was  not  illegal 
under  the  law  of  naval  warfare.  At  the  same  time,  however,  the  British  TEZ  may  not 
serve  as  a  legal  precedent  for  the — alleged — legality  of  exclusion  zones  as  a  method 
of  naval  warfare. 

During  the  Iran-Iraq  War  both  belligerents  made  use  of  zones.  The  Iranian 
government  issued  guidelines  for  the  safety  of  merchant  shipping  in  the  Persian 
Gulf  obliging  vessels  to  transit  the  Strait  of  Hormuz  south  and  east  of  a  designated 
line,  declaring  a  "war  zone"  covering  all  Iranian  waters,  and  prohibiting  all 
transportation  of  cargo  to  Iraqi  ports.49  The  Iraqi  government  declared  the  area 
North  of  29-30N  a  prohibited  war  zone  and  warned  all  vessels  appearing  within  the 
zone  to  be  liable  to  attack.  The  Iraqi  government  further  warned  that  all  tankers, 
regardless  of  nationality,  docking  at  Kharg  Island  were  targets  for  the  Iraqi  air 
force.50  In  contrast  to  the  practice  of  the  Falklands/Malvinas  conflict  both 
belligerents  of  the  Iran-Iraq  conflict,  by  attacking  neutral  tankers,  did  enforce  their 
zones  thus  providing  sufficient  evidence  that  they  regarded  them  as  "free-fire 
zones."  Since  the  attacks  were  not  directed  solely  against  legitimate  military 
objectives,51  the  zones  of  that  conflict  are  generally  considered  illegal.52 

Military  Manuals  and  Expert  Opinions 

In  view  of  the  general  condemnation  of  the  zones  established  and  enforced  during 
the  two  World  Wars  and  during  the  Iran-Iraq  War,  States  that  are  prepared  to 
characterize  exclusion  zones  as  a  legitimate  method  of  naval  warfare  take  a  rather 
cautious  approach.  The  respective  parts  of  their  military  manuals53  all  stress  that 


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Current  Legal  Issues  in  Martime  Operations 


•  the  establishment  of  such  a  zone  does  not  relieve  the  proclaiming  belligerent 
of  the  obligation  under  the  law  of  armed  conflict  to  refrain  from  attacking  vessels 
and  aircraft  which  do  not  constitute  lawful  targets, 

•  the  zone  may  not  unreasonably  interfere  with  neutral  commerce,  and  that 

•  the  geographical  area  covered,  the  duration,  and  the  measures  taken  within 
the  zone  should  not  exceed  what  is  strictly  required  by  military  necessity  and  the 
principle  of  proportionality. 

Accordingly,  those  States  agree  that  the  same  body  of  law  applies  both  inside  and 
outside  the  zone  and,  moreover,  that  the  establishment  of  an  exclusion  zone  is  in 
conformity  with  the  law  as  an  exceptional  measure  only.  If  all  these  conditions  are 
met,  exclusion  zones  are  accepted  as  in  conformity  with  the  law  of  naval  warfare 
both  in  the  San  Remo  Manual54  and  in  the  International  Law  Association's  Hel- 
sinki Principles.55 

Still,  the  question  remains  what  object  and  purpose  an  exclusion  zone  is  to  serve.  To 
that  end,  the  San  Remo  Manual  is  ambiguous.56  According  to  the  US  Navy 
Commander's  Handbook  on  the  Law  of  Naval  Operations  an  exclusion  zone  may 
either  contain  the  geographic  area  of  the  conflict  or  it  may  keep  neutral  shipping  at  a 
safe  distance  from  areas  of  actual  or  potential  hostilities.57  A  similar  approach  underlies 
the  German  Navy  Commander's  Handbook  that  refers  to  "comprehensive  control 
rights"  and  to  the  denial  of  access  to  a  given  sea  area  "in  order  to  protect  [vessels  and 
aircraft]  from  the  effects  of  armed  conflicts."58  The  Helsinki  Principles  also  contain  a 
reference  to  particular  risks  to  which  neutral  shipping  is  exposed.59  Hence,  if  not 
designed  to  contain  or  restrict  the  area  of  naval  operations60  and  if  not  a — legitimate — 
ruse  of  naval  warfare,  an  exclusion  zone  may  either  serve  the  protection  of  neutral 
navigation  and  aviation  or  it  may  imply  that  a  belligerent,  in  a  given  area,  will 
extensively  exercise  the  control  rights  already  conferred  on  it  by  the  law  of  naval 
warfare  and  of  maritime  neutrality.  Then,  however,  the  zone  will  rather  resemble  a 
geographical  restriction  of  belligerent  rights  of  control — the  establishment  of  the  zone 
would  merely  indicate  that  in  sea  areas  not  covered  by  the  zone  the  belligerent  may 
refrain  from  exercising  these  rights.  Be  that  as  it  may,  if  serving  these  purposes,  and  if 
the  further  conditions  set  out  above  are  met,  there  can  be  no  doubt  about  the  legality  of 
exclusion  zones. 

Hospital  Ships:  New  Necessities  and  Threats 

At  the  time  of  their  adoption,  the  rules  on  hospital  ships  laid  down  in  Articles  22  et 
seq.  of  the  1949  Second  Geneva  Convention  (GC  II)  were  a  well-balanced  compro- 
mise between  considerations  of  humanity  and  of  military  necessity  and  were  adapted 
to  the  weapons  technology  of  that  time.   However,  the  rapid  technological 


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Wolff  Heintchel  von  Heinegg 


development  soon  gave  rise  to  concerns.  At  first,  the  rules  on  the  marking  of  hospital 
ships  proved  no  longer  sufficient  to  ensure  their  effective  identification  as  specially 
protected  platforms  under  the  law  of  naval  warfare.61  Then  it  became  clear  that  the 
rules  regulating  the  technical  equipment  of  hospital  ships  for  communication  pur- 
poses had  become  outdated  in  view  of  modern  forms  of  communication  via  satellite 
and  other  means.  Today  there  is  a  realistic  danger  that  a  hospital  ship,  although  ex- 
clusively employed  in  its  humanitarian  role,  may  be  attacked  by  transnational  terror- 
ists who  will  consider  it  an  easy  and  very  effective  target.  Therefore  the  question 
arises  whether  and  to  what  extent  hospital  ships,  during  an  international  armed  con- 
flict, may  be  equipped  with  secure  communications  devices  and  with  an  armament 
enabling  them  to  effectively  defend  themselves  against  illegal  attacks. 

Secure  Communications 

Article  34,  paragraph  2,  of  GC II  emphasizes  that  "hospital  ships  may  not  possess  or 
use  a  secret  code  for  their  wireless  or  other  means  of  communication."  This  provi- 
sion appears  to  imply  a  prohibition  on  possession  and  use  of  secure  communica- 
tion equipment  for  both  sending  and  receiving  encrypted  communications, 
However,  the  English  version  is  not  the  only  authoritative  text  of  the  Convention. 
The  equally  authentic  French  and  Spanish  texts  prohibit  only  the  sending  of  en- 
crypted traffic  ("les  navires-hopitaux  ne  pourront  posseder  ni  utiliser  de  code  se- 
cret pour  leurs  emissions  par  T.S.F.  ou  par  tout  autre  moyen  de  communication"). 
According  to  Article  33,  paragraph  3,  of  the  Vienna  Convention  on  the  Law  of 
Treaties,  "the  terms  of  the  treaty  are  presumed  to  have  the  same  meaning  in  each 
authentic  text."62  Therefore,  the  conclusion  is  justified  that  only  the  possession  or 
use  of  secure  communications  equipment  for  transmitting,  not  for  receiving,  mes- 
sages in  secret  code  is  prohibited. 

While  some  States,  like  the  United  Kingdom  during  the  Falklands/Malvinas 
conflict,63  hesitate  to  share  this  interpretation,  others,  like  the  United  States64  and 
Germany,65  obviously  are  prepared  to  provide  hospital  ships  with  equipment  that 
would  enable  them  to  receive  messages  in  secret  code.  Indeed,  that  would  not  only 
be  in  accordance  with  the  generally  accepted  rules  on  the  interpretation  of 
multilingual  treaties,  it  would  also  guarantee  the  effective  performance  of  the 
genuinely  humanitarian  function  of  hospital  ships.  If  hospital  ships  were  not 
allowed  to  receive  encrypted  messages,  the  enemy  would  be  in  a  position  to 
intercept  messages  sent  to  them  and  to  deduce  from  that  message  the  location  of  a 
possible  naval  or  military  operation.66  If  a  "Red  Cross  Box"  is  not  a  feasible 
alternative,  the  hospital  ship  would  be  prevented  from  performing  its 
humanitarian  function  because  the  respective  flag  State  would  be  forced  to,  at  least, 
delay  the  message  in  order  not  to  jeopardize  the  military  operation  in  question.67  In 

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Current  Legal  Issues  in  Martime  Operations 


view  of  the  overall  importance  of  the  protection  of  the  wounded,  sick  and 
shipwrecked,  an  interpretation  leading  to  such  a  result  would  be  manifestly  absurd 
or  unreasonable.  Hence,  it  is  no  surprise  that  the  San  Remo  Manual  provides  in 
paragraph  171:  "In  order  to  fulfill  most  effectively  their  humanitarian  mission, 
hospital  ships  should  be  permitted  to  use  cryptographic  equipment.  The 
equipment  shall  not  be  used  in  any  circumstances  to  transmit  intelligence  data  nor 
in  any  other  way  to  acquire  any  military  advantage."68 

This  statement  implies  that  hospital  ships  should  be  permitted  to  also  use 
cryptographic  equipment  for  the  sending  of  messages.  Indeed,  in  the  explanations 
to  the  San  Remo  Manual,69  the  commentators  state: 

The  participants  were  of  the  opinion  that  as  the  inability  to  receive  encrypted  information 
jeopardises  the  ability  of  hospital  ships  to  operate  effectively,  the  rule  ought  to  concentrate 
on  the  sending  of  military  intelligence.  Therefore,  in  order  to  fulfil  their  humanitarian 
mission  effectively,  hospital  ships  should  be  permitted  to  use  cryptographic  equipment 
(modem  terminology  for  a  secret  code)  which  in  modem  technology  is  an  integral  part  of 
most  communications  systems.  This  cryptographic  equipment  may  not  be  used  for  any 
purpose  other  than  the  humanitarian  tasks  of  the  vessel,  obviously  not  to  transmit 
intelligence  data,  nor  for  any  other  incompatible  purpose. 

Seemingly,  according  to  the  San  Remo  Manual,  hospital  ships  would  not  be 
prohibited  from  sending  encrypted  messages  as  long  as  they  are  strictly  related  to 
the  humanitarian  function  of  the  hospital  ship  and  not  used  for  any  militarily 
useful  purposes.  In  view  of  the  importance  of  the  humanitarian  function  and  in 
view  of  modern  communications  technology,  it  would  indeed  make  sense  if  Article 
34,  paragraph  2,  GC  II  could  be  interpreted  in  that  way.  In  this  context  it  needs  to 
be  kept  in  mind  that  the  prohibition  of  a  "secret  code"  is  solely  designed  to 
reinforce  the  prohibition  of  committing  acts  harmful  to  the  enemy  in  Article  34, 
paragraph  1,  GC  II.  Moreover,  according  to  Article  35  (1)  GC  II,  a  hospital  may 
have  on  board  an  "apparatus  exclusively  intended  to  facilitate  navigation  or 
communication."  Today,  however,  modern  means  of  communication  necessitate 
the  use  of  equipment  that  could  be  considered  as  violating  the  "secret  code" 
prohibition  of  Article  34,  GC  II.  The  same  holds  true  for  navigation  equipment, 
e.g.,  if  using  the  military  Global  Positioning  System  (GPS).  The  rules  on  medical 
aircraft  in  Article  28.2  of  the  1977  Additional  Protocol  I  take  that  development  into 
account.  While  medical  aircraft  are  prohibited  to  "be  used  to  collect  or  transmit 
intelligence  data"  this  implies  that  they  are  allowed  to  receive  and  transmit 
messages  in  a  secret  code  as  long  as  the  data  are  not  of  a  military  nature. 

Hence,  an  extensive  interpretation  would  certainly  be  in  accordance  with  the 
object    and    purpose    of  Article    34,    paragraph    2,    GC    II.    However,    every 


220 


Wolff Heintchel  von  Heinegg 


interpretation  finds  its  limits  in  the  "ordinary  meaning  to  be  given  to  the  terms  of 
the  treaty."  These  terms  merely  justify  an  interpretation  allowing  hospital  ships  the 
use  of  equipment  for  the  receiving,  not  for  the  sending,  of  encrypted  messages.  The 
San  Remo  Manual  together  with  the  explanations  does  not  serve  as  evidence  for  a 
view  to  the  contrary.  In  the  explanations  it  is  made  clear  that  paragraph  171  does 
not  reflect  the  law  as  it  stands.  Rather,  the  majority  view  was  that  "the  present  law 
still  prohibits  the  use  of  such  equipment  and  that  this  law  has  not  fallen  into  desuetude. 
[Therefore  the  majority  was]  of  the  opinion  that  the  text  needed  to  reflect  this  fact  and 
that  the  participants  were  encouraging  a  change  in  the  law."70 

Since  the  sending  of  encrypted  messages  by  hospital  ships  cannot  be  based  upon 
the  lex  lata,  States  whose  interests  are  specially  affected  should  endeavor  to 
contribute  to  a  modification  of  the  law.  While  a  codification  conference  is  not  a 
realistic  option,  those  States  should  focus  on  convincing  other  States  to  recognize  a 
deviating  practice  as  reasonable  in  order  to  safeguard  the  specially  protected 
humanitarian  function  of  such  ships  under  lexferenda.  Numerous  statements  to 
that  effect  would  certainly  contribute  to  a  modification  of  the  law  as  it  now  stands. 

Protective  Arming  of  Hospital  Ships 

The  provisions  of  GC II  on  hospital  ships  neither  expressly  prohibit  the  arming  of 
hospital  ships  for  self-defense  purposes  nor  expressly  provide  for  such  protection 
or  defense.  Article  35(1),  according  to  which  a  hospital  ship  is  not  deprived  of  its 
special  protection  if  the  "crews  of  ships  or  sick-bays  are  armed  for  the  maintenance 
of  order,  for  their  own  defense  or  that  of  the  sick  and  wounded,"  is  restricted  to  an 
exclusively  personal  scope  of  protection.  As  such  it  does  not  seem  to  allow  any  con- 
clusion with  regard  to  the  protection  or  defense  of  the  hospital  ship  itself.  Rather, 
the  said  provisions  are  based  on  the  assumption  that  the  special  protection  pro- 
vided for  hospital  ships  is  sufficient  to  ensure  that  they  will  not  be  captured  or  at- 
tacked. That  may  have  been  true  in  the  past  but  it  is  more  than  doubtful  whether 
under  present  conditions  that  assumption  is  still  valid.71 

Still,  the  manuals  of  the  US  Navy  and  of  the  German  Navy,72  as  well  as  the  San 
Remo  Manual,  reflect  a  strict  position  with  regard  to  the  protective/defensive  arming 
of  hospital  ships.  While  they  either  expressly  or  implicitly  refer  to  Article  35(1)  GC  II, 
they  prohibit  all  arms  other  than  light,  portable,  individual  weapons  such  as  pistols 
and  rifles.73  Only  the  German  Manual  and  the  San  Remo  Manual  acknowledge  the 
right  of  hospital  ships  to  take  defensive  measures  against  erroneous  or  arbitrary  at- 
tacks, especially  by  missiles,  and  they  conclude  that  they  "may  be  equipped  with 
purely  deflective  means  of  defence,  such  as  chaff  and  flares."74 

Indeed,  it  is  more  than  likely  that  the  respective  enemy  belligerent  will  not  be 
prepared  to  any  longer  respect  the  special  protection  of  a  hospital  ship  whose  crew 

221 


Current  Legal  Issues  in  Martime  Operations 


is  armed  with  other  than  small  pistols  and  rifles.  And  as  the  provision  of  the  San 
Remo  Manual  referred  to  above  clearly  shows  it  would  be  nearly  impossible  to 
reach  consensus  on  the  criteria  that  would  make  possible  a  distinction  between  the 
offensive  or  defensive  character  of  such  arming.  The  reference  to  chaff  and  flares 
was  the  utmost  the  participants  felt  able  to  agree  upon. 

The  United  Kingdom,  during  the  Iraq-Kuwait  conflict,  decided  that  they  were 
unable  to  effectively  protect  hospital  ships  and  that  it  was  preferable  to  abandon 
the  special  protection  altogether.  Hence,  RFA  Argus,  which  was  equipped  with 
light  air  defense  systems,  was  not  a  hospital  ship  proper  but  a  "primarily  casualty 
receiving  ship"  that  also  served  for  the  transportation  of  troops.75 

If  the  British  practice  were  copied  by  other  States  the  special  protection  of 
hospital  ships  would  become  obsolete.  This,  however,  would  be  detrimental  to  the 
humanitarian  function  of  such  ships  and  certainly  politically  inopportune.  States 
feeling  unable  to  directly  contribute  to  a  multinational  military  operation  would 
be  deprived  of  the  possibility  of  indirectly  participating  by  deploying  a  hospital 
ship.  The  deployment  of  a  hospital  ship  would  not  be  a  merely  symbolic  act.  It 
would  imply  a  most  valuable  contribution  for  all  States  and  parties  involved.  On 
the  one  hand,  the  belligerents  would  equally  profit  from  making  use  of  the 
impartial  humanitarian  service.  On  the  other  hand,  the  deploying  State  would  be 
in  a  position  to  prove  its  credibility  and  to  contribute  to  confidence  building  that 
would  facilitate  a  future  return  to  normal  relations. 

These  considerations  do  not,  of  course,  rule  out  the  basic  legal  problem  of  the 
admissibility  of  the  defensive  arming  of  hospital  ships,  the  interest  in  which  has  re- 
cently increased  considerably  in  view  of  the  worldwide  terrorist  threat.  Moreover, 
it  is  quite  probable  that  in  an  asymmetric  war  environment  at  least  one  "party  to 
the  conflict"  will  disrespect  the  fundamental  protection  of  such  vessels  under  the 
law  of  naval  warfare. 

It  is  doubtful  whether  the  drafters  of  GC II  were  at  all  aware  of  this  new  threat.  As 
already  stated  above,  they  started  from  the  assumption  that  all  parties  to  an 
international  armed  conflict  will  respect  and  protect  hospital  ships  as  long  as  they  are 
employed  in  their  normal  role  and  as  long  as  they  do  not  commit  acts  harmful  to  the 
enemy.  Then,  however,  an  attack  against  a  hospital  ship  will  in  any  event  be  in 
violation  of  the  law.  The  drafters  of  GC  II  may  have  been  under  the  belief  that  no 
belligerent  would  consider  such  illegal  behavior  and  that,  if  it  occurred  after  all,  the 
parties  to  the  conflict  would  find  a  solution  ex  post  facto.  If  one  party  to  the  conflict, 
or  the  attacker,  is  not  a  State  or  other  recognized  subject  of  international  law,  such 
as  transnational  terrorists,  any  remedy  provided  for  by  the  law  of  naval  warfare  will 
be  void.  Moreover,  the  law  of  naval  warfare  contains  no  rule  or  other  provision  that 
would  justify  the  conclusion  that  a  belligerent  is  obliged  to  suffer  an  illegal  attack  or 

222 


Wolff Heintchel  von  Heinegg 


other  illegal  act  and  to  remain  passive.  In  other  words,  the  inherent  right  of  self- 
defense  that  is  not  abolished  by  any  known  legal  order  is  also  implicitly  recognized 
by  the  law  of  naval  warfare.  Accordingly,  if  there  exists  reasonable  grounds  for 
suspicion  that  hospital  ships  will  be  the  target  of  an  illegal  attack,  a  belligerent  is 
entitled  to  take  all  necessary  measures  to  effectively  prevent  or  counter  that  attack. 
If  the  only  means  available  to  achieve  that  aim  is  the — defensive — arming  of  a 
hospital  ship,  then  this  would  not  constitute  a  violation  of  the  law  of  naval  warfare. 
This,  however,  is  a  solution  to  the  problem  that  is  far  from  having  passed  the  test 
of  practice.  As  already  indicated  above,  the  enemy  belligerent  may  well  consider 
the  arming  of  a  hospital  ship  a  hostile  act.  Hence,  even  if  the  arming  of  a  hospital 
ship  is,  in  the  circumstances  ruling  at  the  time,  a  necessary  measure  of  protection 
or  of  self-defense  there  is  no  guarantee  for  a  continuing  respect  and  protection  by 
the  opposing  belligerent.  In  addition,  it  would  imply  a  deviation  from  a  rather 
settled  interpretation  of  the  existing  law76  that  only  provides  for  small  and  light 
weapons  for  strictly  personal  protection.  Any  State  that  is  willing  to  deviate  from 
that  interpretation  must  be  prepared  to  take  the  consequences  and  "to  live  with  the 
precedent."  This  may  lead  either  to  the  total  abolishment  of  the  protection  of 
hospital  ships  or  to  the  deployment  of  hospital  ships  whose  "employment  in  an 
innocent  role"  and,  consequently,  whose  specially  protected  status,  could  no 
longer  be  determined  with  the  certainty  necessary. 

(Maritime)  Neutrality 

The  Law  of  Neutrality  is  laid  down  in  two  of  the  Hague  Conventions  of  October 
18,  1907: 

•  Convention  V  Respecting  the  Rights  and  Duties  of  Neutral  Powers  in  Case 
of  War  on  Land  [hereinafter  Hague  V];77 

•  Convention  XIII  Concerning  the  Rights  and  Duties  of  Neutral  Powers  in 
Naval  War  [hereinafter  Hague  XIII]  ,78 

There  is  no  international  treaty — apart  from  the  1977  Additional  Protocol  I  (AP 
I)79 — dealing  with  aerial  warfare,  neutrality  in  aerial  war  or  with  the  legal  status  of 
neutral  airspace.  The  only  authoritative  document  dealing  with  these  issues  is  the 
Hague  Rules  on  Air  Warfare  of  192380 — a  private  draft  whose  customary  character 
remains  an  unsettled  matter. 

In  view  of  the  limited  time  and  space  available  we  do  not  intend  to  deal  here  with 
the  law  of  neutrality  in  a  comprehensive  way.  Still,  it  is  clear  that,  if  applied  to  an 
international  armed  conflict,  such  as  the  current  hostilities  in  Iraq,  that  body  of  law 
would  imply  far-reaching  obligations  of  abstention  and  of  prevention  on  part  of 
those  States  that  have  decided  not  to  take  part  in  the  hostilities.81  It  needs  to  be 


223 


Current  Legal  Issues  in  Martime  Operations 


emphasized,  however,  that  allegations  of  an  absolute  duty  of  neutral  States  to 
intern  all  members  of  belligerent  armed  forces  present  on  their  territory  have  no 
basis  in  the  traditional  law  of  neutrality.  According  to  Article  11,  paragraph  1,  of 
Hague  V,  such  an  obligation  presupposes  that  the  neutral  State  "receives  on  its 
territory  troops  belonging  to  the  belligerent  armies."  This  does,  therefore,  not 
apply  to  members  of  the  belligerent  armed  forces  whose  presence  on  the  neutral 
State's  territory  is  due  to  a  status  of  forces  agreement.  Additionally,  escaped 
prisoners  of  war  and  prisoners  of  war  "brought  by  troops  taking  refuge  in  the 
territory  of  a  neutral  Power"  shall  be  left  at  liberty.  Finally,  according  to  Article  5, 
paragraph  1  (in  conjunction  with  Article  2)  of  Hague  V,  a  neutral  State  "must  not 
allow"  the  movement  of  belligerent  "troops  or  convoys  of  either  munitions  of  war 
or  supplies"  across  its  territory.  This  means  that  the  neutral  State  is  under  an 
obligation  to  prevent  such  movements  but  it  does  not  necessarily  imply  an 
obligation  to  intern  the  persons  engaged  in  such  transports.  Hence,  the  duty  of 
internment  only  applies  to  members  of  the  belligerent  armed  forces  who  have 
already  actively  taken  part  in  the  hostilities  and  who,  thus,  have  to  be  prevented 
from  reentering  the  war  from  the  territory  of  the  neutral  State  concerned. 

Scope  of  Applicability  of  the  Law  of  Neutrality 

It  is  a  well-known  fact  that  the  applicability  of  the  law  of  neutrality  has  always  been 
a  highly  disputed  issue.  While  some  assert  that  it  applies  only  in  the  context  of  a 
state  of  war,82  others  maintain  that  that  determination  depends  upon  the  more  or 
less  unrestricted  decision  of  the  non-participating  States.83 

There  is,  however,  only  one  situation  in  which  the  law  of  neutrality  clearly  does 
not  apply — the  authoritative  determination  by  the  UN  Security  Council  that  one 
party  to  an  international  armed  conflict  is  the  aggressor.84  If  the  Security  Council 
merely  refers  to  its  powers  under  Chapter  VII,  without  expressly  identifying  the 
aggressor,  it  will  remain  unclear  which  State  has  breached  the  law  and  which  State 
is  the  victim  of  an  act  of  aggression  or  of  a  breach  of  the  peace.  A  fortiori,  this  holds 
true  if  the  Security  Council  remains  inactive. 

Still,  despite  the  unsettled  scope  of  applicability  of  the  law  of  neutrality,  and  apart 
from  situations  in  which  the  Security  Council  has  identified  the  aggressor,  State 
practice  since  1945  gives  sufficient  evidence  that  that  body  of  law  has  not  become  ob- 
solete. That  very  State  practice  also  reveals,  however,  that  there  is  no  longer  any  room 
for  an  automatic  application  of  that  law  to  every  international  armed  conflict  in  the 
sense  of  common  Article  2  of  the  four  Geneva  Conventions  of  1949. 


224 


Wolff Heintchel  von  Heinegg 


Current  State  of  the  Law  of  Neutrality 

The  parties  to  post-World  War  II  international  armed  conflicts,  as  well  as  those 
States  not  actively  taking  part  in  those  conflicts  have,  by  their  actual  behavior, 
shown  that  they  were  not  prepared  to  accept  the  automatic  and  comprehensive  ap- 
plicability of  the  law  of  neutrality,  even  if  the  situation  in  question,  either  materi- 
ally or  formally,  amounted  to  a  "war"  proper.85  On  the  other  hand,  international 
armed  conflicts  that  were  not  characterized  as  "wars" — either  by  the  parties  to  the 
conflict  or  by  non-participating  States  or  by  international  legal  scholars — have  cer- 
tainly had  an  influence  on  the  conduct  of  States  not  being  parties  to  those  con- 
flicts.86 Therefore,  the  doctrine  of  the  necessity  of  a  state  of  war  proper,  as  well  as 
the  doctrine  of  "status  mixtus,"  lack  authoritative  substantiation  by  State  practice. 
During  international  armed  conflicts  since  1945,  the  conduct  of  non-participating 
States  at  least  indirectly  gives  evidence  of  their  belief  that  the  law  of  peace  is  not  in 
toto  replaced  but  is  partially  modified  by  the  law  of  neutrality.  It  is  also  clear  from 
that  conduct  that  the  legally  binding  effects  of  that  body  of  law  does  not  depend 
upon  an  individual  decision  of  the  non-participating  States  but  upon  the  mere  ex- 
istence of  an  international  armed  conflict.  Either  those  States  have  refrained  from 
providing  arms  and  other  war  material  to  the  belligerents  altogether,  have  denied 
providing  such  supplies  officially,  or  have  provided  them  clandestinely. 

Hence,  modern  State  practice  gives  proof  of  a  functional  and  differential  ap- 
proach. As  far  as  the  relationship  between  States  (that  is  to  be  distinguished  from  the 
relations  between  belligerents  and  neutral  nationals)  is  concerned,  the  law  of  neu- 
trality automatically  comes  into  operation  only  insofar  as  the  applicability  of  its  rules 
is  strictly  necessary  for  the  achievement  of  the  very  object  and  purpose  of  that  body 
of  law.  Accordingly,  during  an  international  armed  conflict,  non-participating  States 
are  obliged  to  refrain  from  any  act  that  may  escalate  that  conflict.  Especially,  they  are 
prohibited  from  assisting  one  party  to  the  conflict  in  a  way  that  may  lead  to  a  tempo- 
ral, territorial  or  other  expansion  of  the  armed  hostilities.87  The  delivery  of  weapons 
and  of  other  war  material  by  States  is  prohibited.  Activities  of  private  persons  who  at- 
tempt such  deliveries  must  be  prevented  according  to  domestic  laws  and  regulations 
already  in  effect.  The  territory,  including  the  territorial  sea  and  archipelagic  waters, 
and  the  superjacent  national  airspace,  may  not  be  made  available  as  a  base  of  opera- 
tions to  any  party  of  the  conflict.88  Moreover,  non-participating  States  must  take  all 
measures  necessary  to  prevent  one  of  the  belligerents  from  gaining  military  advan- 
tages by  abusing  their  neutral  status.  Any  permissions  or  restrictions  with  regard  to 
the  use  of  neutral  territory  must  be  applied  and  enforced  impartially.  The  parties 
to  the  conflict,  on  their  part,  are  obliged  to  respect  the  sovereignty  of  the  non- 
participating  States,  as  well  as  their  territorial  integrity  and  their  economic  rela- 
tions with  other  States.  The  economic  relations  with  the  opposing  belligerent  to  the 

225 


Current  Legal  Issues  in  Martime  Operations 


conflict  may  be  interfered  with  only  according  to,  and  within  the  limits  of,  the  law  of 
maritime  neutrality.  In  other  words,  the  law  of  neutrality  sets  an  upper  limit  to  the 
rights  of  the  belligerent  States.89 

As  far  as  these  essentialia  neutralitatis  are  concerned,  there  is  no  room  for  a 
facultative  stance  on  behalf  of  a  non-participating  State  if,  and  as  long  as,  it  does 
not  wish  to  become  directly  involved  in  the  armed  hostilities.  Neither  does  their 
applicability  presuppose  the  existence  of  a  "war"  or  of  a  "state  of  war."  These 
fundamental  obligations  apply  to  every  international  armed  conflict.  It  has  to  be 
kept  in  mind,  however,  that  in  case  of  a  violation  of  these  fundamental  obligations 
of  the  law  of  neutrality  by  a  non-participating  State,  the  aggrieved  belligerent 
remains  free  to  assert  its  rights.90 

The  functional  and  differential  approach,  which  leaves  aside  the  admissibility  of 
belligerent  measures  under  the  law  of  neutrality,  is  based  on  the  consideration  that 
an  effective  prevention  of  unlawful  activities  of  non-participating  States,  as  well  as 
of  an  escalation  of  an  ongoing  international  armed  conflict,  can  be  achieved  only  if 
these  upper  legal  limits  are  observed  by  all  States  concerned.  As  regards  the  further 
rights  and  duties  of  neutral  States,  their  applicability  will  not  depend  upon  a 
unilateral  decision  but  rather  on  whether  the  belligerents  are  willing  and  able  to 
enforce  the  law  of  neutrality  that  goes  beyond  the  said  essentialia  neutralitatis.  If  the 
belligerents  decide — for  whatever  reason — not  to  enforce  the  law  of  neutrality  in  a 
comprehensive  manner,  that  abstention  will  have  no  impact  upon  the  material 
contents  of  that  body  of  law.  Modern  State  practice  has  merely  led  to  the 
abolishment  of  a  comprehensive  automatism  regarding  its  applicability.  Only  this 
approach  enables  us  to  explain  why  States  continue  to  maintain  that  the  material 
contents  of  the  traditional  law  of  neutrality  have  not  been  modified. 

Concluding  Remarks 

While  there  can  be  no  doubt  about  the  "reactive"  character  of  any  legal  order,  it  has 
been  one  of  the  purposes  of  the  present  paper  to  show  that  an  early  call  for  a  modi- 
fication of  the  existing  rules  in  view  of  new  threats  and  necessities  is  not  always  the 
correct  way  of  approaching  the  solution  of — allegedly — new  problems.  Rather,  a 
sober  and  not  too  formalistic  scrutiny  of  the  law  as  it  stands  will  in  most  cases  help 
identify  the  way  in  which  a  given  situation  should  be  addressed.  Of  course,  it  is  not 
always  comfortable  or  convenient  to  comply  with  the  law.  Considerations  of  mili- 
tary or  political  necessity  and  the  need  to  rapidly  react  to  new  threats  may  suggest 
and  justify  a  deviation  from  the  law.  It  is,  however,  one  of  the  most  important 
achievements  of  civilized  nations  that  they  adhere  to  the  law  and,  thus,  show  their 
respect  for  the  rule  of  law  even  in  situations  in  which  this  complicates  things.  In  the 

226 


Wolff Heintchel  von  Heinegg 


context  of  international  law  it  should,  moreover,  not  be  left  out  of  consideration 
that  any  deviation  from  the  law  will  be  a  precedent  closely  observed  by  other  States 
which  may,  in  the  near  future,  adopt  a  similar  conduct.  Although  the  precedent 
may  have  served  a  different,  and  legitimate,  purpose,  it  may  prove  impossible  to 
prevent  those  other  States  from  referring  to  it  and  claiming  their  conduct  to  be  in 
conformity  with  the  modified  law. 

Notes 

1.  Professor  Wolff  Heintschel  von  Heinegg  is  a  Professor  of  International  Law  at  Europe- 
University  in  Frankfurt  (Oder)  Germany.  He  is  a  former  Charles  H.  Stockton  Professor  of 
International  Law  at  the  US  Naval  War  College. 

2.  United  Nations  Convention  on  the  Law  of  the  Sea,  New  York,  Dec.  10,  1982,  21 
INTERNATIONAL  LEGAL  MATERIALS  1261  [hereinafter  LOS  Convention].  145  member  States  and 
entities  are  parties  as  of  November  13, 2003.  See  also  Agreement  Relating  to  the  Implementation 
of  Part  XI  of  the  United  Nations  Convention  on  the  Law  of  the  Sea  of  10  December  1982,  Aug.  7, 
1994,  UN  Doc.  A/RES/48/263,  August  17,  1994,  33  INTERNATIONAL  LEGAL  MATERIALS  1309. 
117  member  States  and  entities  are  parties  as  of  November  13,  2003. 

3.  For  a  comprehensive  study  of  such  claims,  see  J.  ASHLEY  ROACH  &  ROBERT  W.  SMITH,, 
United  States  Responses  to  Excessive  Maritime  Claims  (2d  ed.  1996). 

4.  While  the  United  States  has  continuously  pursued  the  "Freedom  of  Navigation  Program" 
which  had  been  introduced  to  respond  to  excessive  maritime  claims,  the  European  States  have 
not  yet  decided  on  a  similar  program,  although  there  have  been  private  initiatives  to  that  end. 
See,  e.g.,  Ger  Teitler,  Enforcing  UNCLOS:  A  Discussion  of  Means  and  Ends,  in  THE  ROLE  OF 
European  Naval  Forces  after  the  Cold  War  171-84  (Gert  de  Nooy  ed.,  1996). 

5.  For  recent  US  practice,  see  J.  Ashley  R.oach,  Container  and  Port  Security:  A  Bilateral 
Perspective,  18  THE  INTERNATIONAL  JOURNAL  OF  MARINE  AND  COASTAL  LAW  341-362  (2003). 

6.  The  first  treaty  dealing  with  terrorism  was  adopted  in  1 963,  followed  by  other  treaties  in  1 97 1 , 
1973,  1977,  1979,  1980,  1988,  1991,  and  1998.  Of  special  interest  in  the  present  context  are: 
Convention  for  the  Suppression  of  Unlawful  Acts  against  the  Safety  of  Navigation,  Rome,  Mar.  10, 
1988, 1678  U.N.T.S.  221, 27  INTERNATIONAL  LEGAL  MATERIALS  668;  Protocol  for  the  Suppression 
of  Unlawful  Acts  against  the  Safety  of  Fixed  Platforms  on  the  Continental  Shelf,  Rome,  Mar.  10, 
1988, 1678  U.N.T.S  304, 27  INTERNATIONAL  LEGAL  MATERIALS  685;  International  Convention  for 
the  Suppression  of  the  Financing  of  Terrorism;  New  York,  Dec.  9,  1999,  UN  Doc.  A/RES/54/109, 
27  International  Legal  Materials  270. 

7.  UNSCR  1368  of  September  12,  2001;  UNSCR  1373  of  September  28,  2001;  UNSCR  1377  of 
November  12,  2001. 

8.  While  it  is  common  to  speak  of  "Maritime  Interdiction  Operations,"  it  seems  preferable  to 
rather  speak  of  Interception  Operations  in  view  of  the  wide  spectrum  of  measures  involved. 

9.  The  term  "GWOT"  is  of  a  purely  political  nature.  According  to  the  position  taken  here,  it 
does  not  imply  the  existence  of  a  "state  of  war"  or  of  an  "international  armed  conflict"  unless 
military  measures  are  directed  against  another  State. 

10.  The  attack  on  the  USS  Cole,  although  not  committed  during  an  international  armed 
conflict,  has  demonstrated  the  propaganda  effects  of  such  attacks:  some  persons  equipped  with 
rather  cheap  and  unsophisticated  means  are  capable  of  inflicting  harm  to  a  warship  of  the  sole 
remaining  superpower. 


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Current  Legal  Issues  in  Martitne  Operations 


1 1.  While  this  broad  understanding  may  have  been  the  prevailing  view  in  the  United  States,  in 
view  of  UNSCRs  1368,  1373,  and  1377  (supra  note  7),  it  is  not  shared  by  the  international 
community  as  a  whole.  See  Wolff  Heintshel  von  Heinegg,  The  Legality  of  Maritime  Interception 
Operations/Interdiction  Operations  Within  the  Framework  of  Operation  ENDURING  FREEDOM, 
in  International  Law  and  the  War  on  Terror  255-73  (Fred  L.  Borch  &  Paul  S.  Wilson 
eds.,  2003)  (Vol.  79,  US  Naval  War  College  International  Law  Studies).  See  also  Wolff  Heintschel 
von  Heinegg  &  Tobias  Gries,  Der  Einsatz  der  Deutschen  Marine  im  Rahmen  der  "Operation 
Enduring  Freedom ,"  40  ARCHIV  DES  VOLKERRECHTS  145-182  (2002). 

12.  Accordingly,  acts  of  domestic  or  internal  terrorism  do  not  trigger  the  right  of  self-defense 
under  public  international  law.  Note  that  in  its  resolutions  the  Security  Council  has  steadily 
referred  to  "international"  terrorism. 

13.  Note  that  the  above  list  of  measures  is  rather  comprehensive.  In  practice,  the  term 
"Leadership  Interdiction  Operations"  (LIO)  is  also  used  in  order  to  distinguish  between 
measures  taken  against  persons  and  those  taken  against  objects.  This  is  not  useful  because  it 
implies  that  there  are  two  distinct  (legal)  concepts.  However,  when  it  comes  to  interference  with 
foreign  vessels  it  does  not  make  a  difference  whether  this  is  aimed  at  persons  or  at  objects. 

14.  See  YORAM  DlNSTEIN,  WAR,  AGGRESSION  AND  SELF-DEFENCE  207  (3d  ed.  2001). 

15.  See  Article  51  UN  Charter:  "[U]ntil  the  Security  Council  has  taken  measures  necessary  to 
maintain  international  peace  and  security."  For  an  evaluation,  see  DlNSTEIN,  supra  note  14,  at  185. 

16.  It  suffices  here  to  refer  to  SAN  REMO  MANUAL  ON  INTERNATIONAL  LAW  APPLICABLE  TO 
ARMED  CONFLICTS  AT  SEA  W  1 12-117  (Louise  Doswell-Beck  ed.,  1995)  [hereinafter  SAN  REMO 
MANUAL].  For  a  detailed  analysis,  see  the  commentary  in  Explanations,  id.,  at  187-95. 

17.  Annotated  Supplement  to  The  Commander's  Handbook  on  the  Law  of  Naval 
OPERATIONS,  chap.  8  (A.  R.  Thomas  &  James  C.  Duncan  eds.,  1999)  (Vol.  73,  US  Naval  War 
College  International  Law  Studies)  [hereinafter  ANNOTATED  SUPPLEMENT].  SAN  REMO 
MANUAL,  supra  note  16,  5  38-77. 

18.  LOS  Convention,  supra  note  2,  art.  110.  See  also  UNITED  NATIONS  CONVENTION  ON  THE 
LAW  OF  THE  SEA  1982,  A  COMMENTARY  (Vol.  Ill)  237  (Myron  H.  Nordquist  ed.,  1995). 

19.  It  needs  to  be  stressed  that  "piracy"  is  rather  narrowly  defined  in  Article  101  of  the  LOS 
Convention  and  does  not  cover  any  form  of  "armed  robbery  at  sea." 

20.  On  December  11,  2002,  the  So  San,  was  seized  by  a  Spanish  frigate — acting  on  information 
from  US  sources — 600  miles  (965  km)  off  the  Horn  of  Africa  in  the  Indian  Ocean.  The  vessel  was 
found  to  be  carrying  15  Scud  missiles  that  were  being  shipped  from  North  Korea  to  Yemen. 

21.  See  LOS  Convention,  supra  note  2,  art.  1 10.2. 

22.  Note  that  Article  110.3  of  the  LOS  Convention  provides:  "If  the  suspicions  prove  to  be 
unfounded,  and  provided  that  the  ship  boarded  has  not  committed  any  act  justifying  them,  it  shall 
be  compensated  for  any  loss  or  damage  that  may  have  been  sustained"  (emphasis  added). 

23.  As  for  the  treaties  on  terrorism,  see  supra  note  6.  In  view  of  those  treaties,  it  is  more  than 
doubtful  whether  there  exists  a  lacuna  at  all.  Moreover,  being  consensual  in  character,  public 
international  law  only  in  rare  cases  is  open  for  analogies. 

24.  Note  that  in  its  contiguous  zone  the  coastal  State,  according  to  LOS  Convention,  Article 
33.1(a),  may  only  "punish  infringements  of  [its]  laws  and  regulations  committed  within  its 
territory  or  territorial  sea." 

25.  LOS  Convention,  supra  note  2,  arts.  73  and  213. 

26.  UNSCR  1373  of  September  28,  2001,  at  5  1(d)  and  W  2  (a)  and  (e). 

27.  The  Security  Council  has  been  criticized  for  having  acted  as  a  "quasi-legislator."  However, 
in  view  of  the  wide  margin  of  discretion  it  undoubtedly  has  when  it  comes  to  its  primary 
responsibility  for  international  peace  and  security  and  to  enforcement  measures  under  Chapter 


228 


Wolff  Heintchel  von  Heinegg 


VII,  this  criticism  is  not  justified.  The  legally  binding  effect  of  this  resolution,  under  Article  25  of 
the  UN  Charter,  therefore  allows  no  conclusion  to  the  contrary. 

28.  For  these  concepts,  see  DINSTEIN,  supra  note  14,  at  192. 

29.  Oil  Platforms  (Iran  v.  US),  2003  LC.J.  (Nov.  6)  (Judgment  (Merits)). 

30.  Separate  Opinion  of  Judge  Simma,  id.  5  12. 

31.  For  an  overview  of  the  practice  of  "war  zones"  during  the  two  World  Wars,  see  William  J. 
Fenrick,  The  Exclusion  Zone  Device  in  the  Law  of  Naval  Warfare,  24  CANADIAN  YEARBOOK  OF 
INTERNATIONAL  LAW  91  (1986);  E.  Schmitz,  Sperrgebiet  im  Seekrieg,  8  ZEITSCHRIFT  FUR 
AUSLANDISCHES  OFFENTLICHES  RECHT  UND  VOLKERRECHT  641-71  (1938);  L.F.E.  Goldie, 
Maritime  War  Zones  &  Exclusion  Zones,  in  THE  LAW  OF  NAVAL  OPERATIONS  156-204  (H.  B. 
Robertson  ed.,  1991)  (Vol.  64,  US  Naval  War  College  International  Law  Studies);  Karl  Zemanek, 
War  Zones,  in  ENCYCLOPEDIA  OF  PUBLIC  INTERNATIONAL  LAW  (VOL.  4)  337  (R.  Bernhardt  ed., 
2000);  JURGEN  SCHMITT,  DIE  ZULASSIGKEIT  VON  SPERRGEBIETEN  IM  SEEKRIEG  (1966);  George 
P.  Politakis,  Waging  War  at  Sea:  The  Legality  of  War  Zones,  38  NETHERLANDS  INTERNATIONAL 
LAW  REVIEW  125-172  (1991/2);  Wolff  Heintschel  von  Heinegg,  Exclusion  Zones,  Mines,  Abuse  of 
Neutral  Flags  and  Insignia,  Booty  in  Naval  Warfare,  in  THE  GLADISCH  COMMITTEE  ON  THE  LAW 
OF  NAVAL  WARFARE  39-59  (Dieter  Fleck  ed.,  1990). 

32.  R.  P.  Barston  &  P.  W.  Birnie,  The  Falkland  Islands/Islas  Malvinas  Conflict — A  Question  of 
Zones,  7  MARINE  POLICY  14-24  (1983);  T.  Orford,  Exclusion  Zones  at  Sea:  Some  Observations  on 
the  Conduct  of  the  Falkland  War  1982,  2  SEA  CHANGES  91-120  (1985). 

33.  M.  Jenkins,  Air  Attacks  on  Neutral  Shipping  in  the  Persian  Gulf:  The  Legality  of  the  Iraqi 
Exclusion  Zone  and  Iranian  Reprisals,  7  BOSTON  COLLEGE  INTERNATIONAL  AND  COMPARATIVE 
LAW  REVIEW  517-549  (1985);  R.  Leckow,  The  Iran-Iraq  Conflict  in  the  Gulf:  The  Law  of  War 
Zones,  37  INTERNATIONAL  AND  COMPARATIVE  LAW  QUARTERLY  629-644  (1988). 

34.  See,  inter  alia,  ANNOTATED  SUPPLEMENT,  supra  note  17,  f  2.4.4;  KOMMANDANTEN- 
HANDBUCH  (Commander's  Handbook  of  the  German  Navy),  no.  115  (2002). 

35.  The  US  Navy  established  a  5nm  warning  zone  around  its  warships  in  the  Persian  Gulf 
during  the  Tanker  War  in  the  1980s  to  contend  with  suicide  craft  laden  with  high  explosives.  See 
George  K.  Walker,  The  Tanker  War,  1980-88:  Law  and  Policy  57-8  (2000)  (Vol.  74,  US 
Naval  War  College  International  Law  Studies).  Following  the  Iraqi  air-to-surface  missile  attack 
on  USS  Stark  on  May  17,  1987,  the  fixed  distance  criterion  (i.e.,  5nm)  was  deleted  from  the 
warning  zone  published  in  the  Notice  to  Mariners.  Id.  at  61-2.  While  a  5nm  zone  in  those  waters 
may  be  reasonable  vis-a-vis  a  small  craft  suicide  threat,  a  zone  broad  enough  to  deal  effectively 
with  an  air-to-surface  missile  threat  would  likely  have  been  excessive  in  that  setting,  which  may 
explain  why  the  5nm  criterion  was  deleted  rather  than  expanded. 

36.  International  shipping  and  aviation  was  informed  about  this  condition  by  the  following 
"special  warning": 

1.  Due  to  recent  events  in  the  Middle  East  and  the  American  homeland,  US  Forces 
worldwide  are  operating  at  a  heightened  state  of  readiness  and  taking  additional 
defensive  precautions  against  terrorist  and  other  potential  threats.  Consequently,  all 
aircraft,  surface  vessels,  and  subsurface  vessels  approaching  US  Forces  are  requested  to 
maintain  radio  contact  with  US  Forces  on  bridge-to-bridge  channel  16,  international 
air  distress  (121.5  MHZ  VHF)  or  MILAIR  distress  (243.0  MHZ  UHF). 

2.  US  Forces  will  exercise  appropriate  measures  in  self-defense  if  warranted  by  the 
circumstances.  Aircraft,  surface  vessels,  and  subsurface  vessels  approaching  US  Forces 
will,  by  making  prior  contact  as  described  above,  help  make  their  intentions  clear  and 
avoid  unnecessary  initiation  of  such  defensive  measures. 


229 


Current  Legal  Issues  in  Martime  Operations 


3.  US  Forces,  especially  when  operating  in  confined  waters,  shall  remain  mindful  of 
navigational  considerations  of  aircraft,  surface  vessels,  and  subsurface  vessels  in  their 
immediate  vicinity. 

4.  Nothing  in  the  special  warning  is  intended  to  impede  or  otherwise  interfere  with  the 
freedom  of  navigation  or  overflight  of  any  vessel  or  aircraft,  or  to  limit  or  expand  the 
inherent  self-defense  rights  of  US  Forces.  This  special  warning  is  published  solely  to 
advise  of  the  heightened  state  of  readiness  of  US  Forces  and  to  request  that  radio 
contact  be  maintained  as  described  above  ( 162045Z  NOV  2001 ). 

37.  See  ROACH  &  SMITH,  supra  note  3,  and  F.  C.  Leiner,  Maritime  Security  Zones:  Prohibited  Yet 
Perpetuated,  24  VIRGINIA  JOURNAL  OF  INTERNATIONAL  LAW  967-992  (1984). 

38.  This  concept  was  made  use  of  in  the  19th  and  beginning  20th  centuries  and  predominantly 
served  to  evade  the  consequences  that  would  have  arisen  if  a  "state  of  war"  had  been  recognized. 

39.  If  at  all,  the  Cuban  Quarantine  was  a  legitimate  measure  of  self-defense.  See,  inter  alia,  C.  Q. 
Christol  &  C.  R.  Davis,  Maritime  Quarantine:  The  Naval  Interdiction  of  Offensive  Weapons  and 
Associated  Materiel  to  Cuba,  1962,  57  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  525-543  (1963). 

40.  See  the  references  cited  at  supra  note  3 1 . 

41.  San  Remo  Manual,  supra  note  16,  f  105;  Annotated  Supplement,  supra  note  17,  f  7.9; 
KOMMANDANTEN-HANDBUCH,  supra  note  34,  no.  304;  The  Helsinki  Principles  on  Maritime 
Neutrality,  f  3.3,  in  International  Law  Association  (ILA),  Report  Of  The  Sixty-Eighth 
Conference  497  (1998)  [hereinafter  Helsinki  Principles];  AUSTRALIAN  BOOK  OF  REFERENCE — 
ABR  5179 — Manual  of  International  Law — Nov.  3, 1998. 

42.  Hence  it  is  contrary  to  the  law  of  naval  warfare  to  claim:  "There  are  two  things  out  there: 
submarines  and  targets."  It  needs  to  be  stressed,  however,  that  most  of  the  doubts  surrounding 
the  employment  of  submarines  during  armed  conflict  have  now  been  settled.  The  only  merchant 
vessels — enemy  and  neutral — exempt  from  attack  are  those  that  are  innocently  employed  in 
their  normal  role.  If,  e.g.,  a  neutral  merchant  vessel  is  transporting  enemy  troops  it  may  be 
attacked  on  sight.  There  is  no  duty  to  first  provide  for  the  safety  of  passengers,  crew  and  the 
vessel's  documents. 

43.  See  supra  note  34  and  accompanying  text. 

44.  San  Remo  Manual,  supra  note  16, 5  108;  Annotated  Supplement,  supra  note  17,  f  7.8; 
KOMMANDANTEN-HANDBUCH,  supra  note  33,  no.  303.  See  also,  Helsinki  Principles,  supra  note 
41,f  3.3,  which  expressly  recognizes  the  "rights  of  commanders  in  the  zone  of  immediate  naval 
operations." 

45.  ANNOTATED  SUPPLEMENT,  supra  note  17,  f  7.8:  "A  belligerent  may  not,  however,  purport 
to  deny  access  to  neutral  nations,  or  to  close  an  international  strait  to  neutral  shipping,  pursuant 
to  this  authority  unless  another  route  of  similar  convenience  remains  open  to  neutral  traffic." 

46.  The  language  was  as  follows: 

Her  Majesty's  Govt  wishes  to  make  clear  that  any  approach  on  the  part  of  Argentine 
warships,  including  submarines,  naval  auxiliaries  or  military  aircraft  which  could 
amount  to  a  threat  to  interfere  with  the  mission  of  British  Forces  in  the  South  Atlantic 
will  encounter  appropriate  responses.  All  Argentine  aircraft,  including  civil  aircraft 
engaging  in  surveillance  of  these  British  Forces  will  be  regarded  as  hostile  and  are  liable 
to  be  dealt  with  accordingly. 

THE  TIMES  (London),  Apr.  26,  1982,  at  5. 

47.  Fenrick,  supra  note  3 1 ,  at  92. 

48.  See  also  references  cited  supra  note  32.  . 


230 


Wolff  Heintchel  von  Heinegg 


49.  Notice  to  Mariners  Nos.  17/59  of  September,  22,  1980;  18/59  of  October  1,  1980;  20/59  of 
November  4,1980;  22/59  of  January  21,  1981;  and  23/59  of  January  21,  1981. 

50.  See  the  documentation  in  THE  IRAN-IRAQ  WAR  (1980-1988)  AND  THE  LAW  OF  NAVAL 
WARFARE  83  (Andrea  de  Guttry  &  Natalino  Ronzitti  eds.,  1993). 

51.  Note,  however,  that  if  a  "contribution  to  the  war-sustaining  effort"  is  considered  sufficient 
to  render  an  object  a  legitimate  military  objective,  the  illegality  of  the  attacks  on  tankers  during 
the  Iran-Iraq  War  may  not  be  that  clear  after  all.  Both  belligerents  were  able  to  continue  the  war 
for  eight  years  because  the  revenues  of  oil  sales  enabled  them  to  purchase  weapons  abroad. 

52.  See  R.  Danziger, The  Persian  Gulf  Tanker  War,  111  UNITED  STATES  NAVAL  INSTITUTE 
PROCEEDINGS  160-167  (May  1985);  B.  A.  Boczek,  Law  of  Warfare  at  Sea  and  Neutrality:  Lessons 
from  the  Gulf  War,  20  OCEAN  DEVELOPMENT  AND  INERNATIONAL  LAW  239-264  (1989).  See  also 
references  cited  at :  supra  note  33. 

53.  Australia:  OPERATIONS  LAW  FOR  RAAF  COMMANDERS — DI  (AF)  AAP  1003  and 
Australian  Book  Of  Reference,  supra  note  41;  United  States:  The  Commander's 
Handbook  on  the  Law  of  Naval  Operations  (NWP  1-14M/MCWP  5-2.1/COMPDTPUB 

P5800.1)  5  7.9  [hereinafter  COMMANDER'S  HANDBOOK],  in  ANNOTATED  SUPPLEMENT,  supra 
note  17;  Germany:  KOMMANDANTEN-HANDBUCH,  supra  note  34,  no.  304. 

54.  SAN  REMO  MANUAL,  supra  note  16,  ff  105-108. 

55.  Helsinki  Principles,  supra  note  41,  5  3.3: 

Subject  to  Principle  5.2.9  and  without  prejudice  to  the  rights  of  commanders  in  the  zone 
of  immediate  naval  operations,  the  establishment  by  a  belligerent  of  special  zones  does 
not  confer  upon  that  belligerent  rights  in  relation  to  neutral  shipping  which  it  would  not 
otherwise  possess.  In  particular,  the  establishment  of  a  special  zone  cannot  confer  upon  a 
belligerent  the  right  to  attack  neutral  shipping  merely  on  account  of  its  presence  in  the 
zone.  However,  a  belligerent  may,  as  an  exceptional  measure,  declare  zones  where  neutral 
shipping  would  be  particularly  exposed  to  risks  caused  by  the  hostilities.  The  extent, 
location  and  duration  must  be  made  public  and  may  not  go  beyond  what  is  required  by 
military  necessity,  regard  being  paid  to  the  principle  of  proportionality.  Due  regard  shall 
also  be  given  to  the  rights  of  all  States  to  legitimate  uses  of  the  seas.  Where  such  a  zone 
significantly  impedes  free  and  safe  access  to  the  ports  of  a  neutral  State  and  the  use  of 
normal  navigation  routes,  measures  to  facilitate  safe  passage  shall  be  taken. 

56.  Paragraph  106  merely  refers  to  an  "exceptional  measure"  without  specifying  which 
measures  a  belligerent  may  take  within  the  zone. 

57.  Commander's  Handbook,  supra  note  17,  57.9. 

58.  KOMMANDANTEN-HANDBUCH,  supra  note  34,  no.  304. 

59.  Helsinki  Principles,  supra  note  41,  5  3.3. 

60.  Note  that  the  British  TEZ  during  the  Falklands/Malvinas  conflict  was  misunderstood  as 
being  such  a  geographical  restriction.  It  maybe  that  it  originally  was  meant  to  serve  that  purpose. 
However,  in  the  course  of  the  armed  conflict  the  General  Belgrano  was  sunk  outside  the  TEZ. 
This  clearly  shows  that  a  belligerent  making  use  of  the  exclusion  zone  device  ought  to  be  as  clear 
as  possible  as  regards  his  intentions. 

61.  Accordingly,  the  States  parties  to  Additional  Protocol  I  to  the  Geneva  Conventions  of  12 
August  1949,  and  relating  to  the  Protection  of  Victims  of  International  Armed  Conflict,  June 
8,  1977,  1125  U.N.T.S.  3,  agreed  on  Annex  I  "Regulations  concerning  Identification."  That 
Annex  was  revised  and  now  also  allows  for  underwater  identification.  See  Philippe  Eberlin, 
Underwater  Acoustic  Identification  of  Hospital  Ships,  229  INTERNATIONAL  REVIEW  OF  THE  RED 
CROSS  202-215  (July/ August  1982).  However,  these  modern  means  designed  to  facilitate  the 
identification  of  hospital  ships  are  far  from  being  effective. 


231 


Current  Legal  Issues  in  Martime  Operations 


62.  Convention  on  the  Law  of  Treaties,  Vienna,  May  22,  1969,  1 155  U.N.T.S.  331.  For  an  equal 
consideration  of  the  other  authentic  texts,  see  J.  Ashley  Roach,  The  Law  of  Naval  Warfare  at  the 
Turn  of  Two  Centuries,  94  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  64,  75  (2000); 
Commentary  on  the  Additional  Protocols  of  8  June  1977  to  the  Geneva 
Conventions  OF  12  AUGUST  1949,  at  1262-63  (Yves  Sandoz  et  al.  eds.,  1987). 

63.  The  British  did  not  want  to  send  messages  in  the  clear  because  they  did  not  want  the 
Argentine  forces  to  get  advance  information  about  the  possible  movements  of  their  forces. 
Instead,  they  created  so-called  "Red  Cross  Boxes"  where  the  hospital  ships  were  deployed  and 
where  they  waited  to  receive  wounded  soldiers. 

64.  COMMANDER'S  HANDBOOK,  supra  note  17,  5  8.2.3:  "Use  or  possession  of  cryptographic  means 
of  transmitting  message  traffic  by  hospital  ships  is  prohibited  under  current  law"  (emphasis  added). 

65.  KOMMANDANTEN-HANDBUCH,  supra  note  34,  no.  357:  "Devices  designed  for  the  reception 
of  encrypted  messages  should  also  be  permitted  when  they  are  employed  solely  for  the  effective 
performance  of  humanitarian  tasks." 

66.  As  early  as  1970  the  late  Professor  D.  P.  O'Connell  noted  that  dilemma.  See  D.  P.  O'Connell, 
International  Law  and  Contemporary  Naval  Operations,  64  BRITISH  YEAR  BOOK  OF 
International  Law  19, 59  (1970). 

67.  During  the  Falklands/Malvinas  conflict  the  "Red  Cross  Box"  created  considerable  problems 
because  the  hospital  ships  were  not  informed  prior  to  the  arrival  of  the  wounded  and  were  thus 
not  well  prepared  to  treat  them  efficiently.  See  S.  S.  Junod,  La  protection  des  victims  du  conflit 
arme  des  ties  Falkland — Malvinas  (1982),  in  DROIT  INTERNATIONAL  HUMANITAIRE  ET  ACTION 
HUMANITAIRE  26  (2d  ed.  1985). 

68.  SAN  REMO  MANUAL,  supra  note  16,  5  171. 

69.  Id.1  171.4. 

70.  Id.  5  171.5.  Therefore,  the  participants  could  not  agree  on  the  formulation  "may"  but 
merely  on  the  formulation  "should  be  allowed  to." 

71.  For  an  early  analysis  of  this  problem,  see  S.  L.  Oreck,  Hospital  Ships:  The  Right  of  Limited 
Self -Defense,  1 14  UNITED  STATES  NAVAL  INSTITUTE  PROCEEDINGS  62-66  (Nov.  1988). 

72.  COMMANDER'S  HANDBOOK,  supra  note  53,  f  8.2.3:  "Hospital  ships  may  not  be  armed 
although  crew  members  may  carry  light  individual  weapons  for  the  maintenance  of  order,  for 
their  own  defense  and  that  of  the  wounded,  sick  and  shipwrecked."  Accord  KOMMANDANTEN- 
HANDBUCH,  supra  note  33,  no.  357. 

73.  See  also  THE  GENEVA  CONVENTIONS  OF  12  AUGUST  1949:  COMMENTARY,  II  GENEVA  FOR 
THE  AMELIORATION  OF  THE  CONDITION  OF  WOUNDED,  SlCK  AND  SHIPWRECKED  MEMBERS  OF 
ARMED  FORCES  AT  SEA  194  (Jean  S.  Pictet  et  al.  eds.,  1960). 

74.  SAN  REMO  MANUAL,  supra  note  16,  5  170;  KOMMANDANTEN-HANDBUCH,  supra  note  34, 
no.  357. 

75.  D.  Foxwell  &  R.  Jolly,  The  RFA  Argus — A  Gas-Tight,  Floating  Field  Hospital,  2 
International  Defense  Review  116-117  (1991);  A.  Bouvier,  Fighting  Hospital  Ships,  3 
International  Defense  Review  246(1992). 

76.  See  references,  supra  note  72. 

77.  Convention  (V)  Respecting  the  Rights  and  Duties  of  Neutral  Powers  and  Persons  in  Case  of 
War  on  Land,  The  Hague,  Oct.  18,  1907,  36  Stat.  2277,  reprinted  in  DOCUMENTS  ON  THE  LAWS 
OF  WAR  87  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000). 

78.  Convention  (XIII)  Concerning  the  Rights  and  Duties  of  Neutral  Powers  in  Naval  War,  The 
Hague,  Oct.  18,  1907,  36  Stat.  2415,  reprinted  in  id.  at  128. 

79.  Note,  however,  that  AP  I  regulates  aerial  warfare  only  in  part.  According  to  Article  49, 
paragraph  3,  Articles  48-67  apply  to  air  warfare  only  if  it  "may  affect  the  civilian  population, 


232 


Wolff  Heintchel  von  Heinegg 


individual  civilians  or  civilian  objects  on  land"  or  if  air  attacks  are  launched  against  "objectives 
on  land."  Neutral  air  space  is  dealt  with  in  the  context  of  medical  aircraft  alone  in  Article  31. 

80.  Hague  Draft  Rules  of  Aerial  Warfare,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR, 
supra  note  77,  at  141. 

81.  For  an  overview  of  the  rights  and  duties  of  neutral  States  under  the  traditional  rules  of  the 
law  of  neutrality,  see,  inter  alia,  ERIK  CASTREN,  The  PRESENT  LAW  OF  WAR  AND  NEUTRALITY 
421  (1954);  L.  OPPENHEIM  &  H.  LAUTERPACHT,  INTERNATIONAL  LAW  (Vol.  II)  673  (7th  ed. 
1963);  C.  J.  COLOMBOS,  THE  INTERNATIONAL  LAW  OF  THE  SEA  627  (6th  ed.  1968). 

82.  Then,  however,  the  question  arises  of  how  to  define  "war"  or  a  "state  of  war."  For  those 
claiming  a  "state  of  war"  to  be  a  necessary  precondition  for  the  applicability  of  the  law  of  neutrality, 
see  L.  KOTZSCH,  THE  CONCEPT  OF  WAR  IN  CONTEMPORARY  HISTORY  AND  INTERNATIONAL  LAW 
141  (1956);  D.  Schindler,  State  of  War,  Belligerency,  Armed  Conflict,  in  THE  NEW  HUMANITARIAN 
LAW  OF  ARMED  CONFLICT  3-20  (A.  Cassese  ed.,  1979);  CASTREN,  supra  note  81,  at  34,  423. 

83.  In  that  context,  some  of  those  authors  refer  to  a  status  mixtus,  i.e.,  a  situation  of 
international  armed  conflict  not  amounting  to  "war"  proper.  See  G.  Schwarzenberger,  Jus  Pads 
ac  Belli!,  37  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  460-479  (1943);  C.  Greenwood,  The 
Concept  of  War  in  Modern  International  Law,  36  INTERNATIONAL  AND  COMPARATIVE  LAW 
Quarterly  298, 300  (1987);  P.  Guggenheim,  Traitede  Droit  International  Public  (Vol. 

II)  510  (1954);  J.  STONE,  LEGAL  CONTROLS  OF  INTERNATIONAL  CONFLICT  313  (1959);  Phillip  C. 
Jessup,  Should  International  Law  Recognize  an  Intermediate  Status  between  Peace  and  War?,  48 
American  Journal  of  International  Law  98-103  (1954). 

84.  Helsinki  Principles,  supra  note  41,  Principle  1.2: ...  In  particular,  no  State  may  rely  upon  the 
Principles  stated  herein  in  order  to  evade  obligations  laid  upon  it  in  pursuance  of  a  binding 

decision  of  the  Security  Council "  SAN  REMO  MANUAL,  supra  note  16,  5  7:  "Notwithstanding 

any  rule  in  this  document  or  elsewhere  on  the  law  of  neutrality,  where  the  Security  Council, 
acting  in  accordance  with  its  powers  under  Chapter  VII  of  the  Charter  of  the  United  Nations,  has 
identified  one  or  more  of  the  parties  to  an  international  armed  conflict  as  responsible  for 
resorting  to  force  in  violation  of  international  law,  neutral  States  :  (a)  are  bound  not  to  lend 
assistance  other  than  humanitarian  assistance  to  that  State;  and  (b)  may  lend  assistance  to  any 
State  which  has  been  the  victim  of  a  breach  of  the  peace  or  an  act  of  aggression  by  that  State." 

85.  Schindler,  supra  note  82,  at  14;  D.  Schindler,  Transformations  in  the  Law  of  Neutrality  Since 
1945,  in  Humanitarian  Law  of  Armed  Conflict — Challenges  Ahead — Essays  In 
HONOUR  Of  FRITS  KALSHOVEN  367-86  (A.  J.  M.  Delissen  &  G.  J.  Tanja  eds.,  1991);  Greenwood, 
supra  note  83,  at  297-300. 

86.  See  references  cited  at  supra  note  85. 

87.  The  validity  of  this  obligation  is  confirmed  by  the  statements  of  the  United  Kingdom:  57 
BRITISH  YEAR  BOOK  OF  INTERNATIONAL  LAW  638  (1987);  United  States:  88  US  Department  of  State 
Bulletin  61  (1988) — during  the  Iraq-Iran  War;  and  by  the  resolutions  of  the  UN  Security  Council 
(UNSCR  540  of  October  31, 1983;  UNSCR582  of  October  8, 1986;andUNSCR598of  July  20, 1987). 

88.  The  United  States  attack  against  Cambodia  was,  inter  alia,  justified  by  the  violations  of  the 
law  of  neutrality  by  that  State.  See  the  statement  by  the  legal  advisor  of  the  Department  of  State,  J. 
R.  Stevenson  of  May  28, 1970, 62  US  Department  of  State  Bulletin  765  (May  1970).  See  also  R.  A. 
Falk,  The  Cambodian  Operation  and  International  Law,  in  THE  VIETNAM  WAR  AND 
INTERNATIONAL  LAW  (Vol.  3)  35-57  (R.  A.  Falk  ed.,  1972). 

89.  For  a  similar  approach,  see  Greenwood,  supra  note  83,  at  299. 

90.  See  P.  M.  Norton,  Between  the  Ideology  and  the  Reality:  The  Shadow  of  the  Law  of  Neutrality, 
17  HARVARD  INTERNATIONAL  LAW  JOURNAL  249,  276  (1976). 


233 


XII 


The  Legal  Efficacy 
of  Freedom  of  Navigation  Assertions 


Dale  Stephens1 


The  1982  Law  of  the  Sea  Convention2  (1982  LOS  Convention)  is  a  quintessen- 
tial product  of  the  modernist  period.  The  emphasis  of  the  1982  LOS  Conven- 
tion is  decidedly  communitarian  and  its  content  is  fully  influenced  by  an  evolved 
institutionalization  of  process.  It  is  thus  typical  of  the  co-operative  pragmatism  of 
current  approaches  to  international  law.3  The  interaction  of  sovereign  interests  in 
exploiting  and  utilizing  the  sea  and  its  resources  are  "managed"  within  its  frame- 
work, and  potential  conflicts  concerning  such  rights  are  intended  to  be  resolved 
through  emphatic  utilization  of  dispute  settlement  mechanisms  which  will  pay  "due 
regard"  to  the  sovereign  participants.4  The  1982  LOS  Convention  continues  the  cod- 
ification process  of  its  antecedents,  especially  the  1958  Conventions,5  though  it  sets  a 
"progressive"  course  with  the  inclusion  of  new  concepts  hitherto  not  recognized  un- 
der the  law  including,  in  particular,  the  archipelagic  concept  as  a  juridical  entity. 

Given  the  holistic  character  of  the  1982  LOS  Convention,  it  is  ironic,  although 
not  surprising,  that  security  issues  are  not  directly  tackled.  When  it  comes  to  such 
issues,  the  potential  for  a  clash  of  sovereignty,  or  at  least  conceptions  of  the  doc- 
trinal substance  of  sovereignty,  is  likely.  It  is  within  this  context  that  questions  con- 
cerning the  efficacy  of  freedom  of  navigation  rights  are,  naturally,  most 
pronounced.  The  United  States,  a  notable  absentee6  from  the  Convention,  is  the 
most  significant  proponent  of  exercising  navigational  freedom  through  use  of  its 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

naval  and  air  forces.  This  has  been  driven  from  a  measured  agenda  to  ensure  that  it 
is  instrumental  in  creating  advantageous  customary  norms.7  Additionally,  the  US 
Freedom  of  Navigation  Program  is  designed  to  influence  interpretations  of  ambig- 
uous provisions  of  the  1982  LOS  Convention  as  a  whole.  In  this  latter  respect  espe- 
cially, the  concerns  of  the  United  States  are  shared  by  a  number  of  other  maritime 
powers  who  have  either  commenced  their  own  navigational  assertion  programs8 
or  have  otherwise  relied  upon  US  practice.9 

It  is  a  critical  time  for  preserving  international  navigational  freedom.  The  in- 
creasing ratification  of  and  accession  to  the  1982  LOS  Convention  means  that  nav- 
igational regimes  are  being  established  that  will  have  a  permanent  impact  upon 
political  and  strategic  realities.  The  "game"  is  not  necessarily  being  played  accord- 
ing to  established  rules  by  many  coastal  States.  There  are  discordant  voices  in  op- 
position to  maritime  State  strategies  and  the  stakes  for  all  remain  impossibly  high, 
thus  the  need  for  precise  and  resolute  action.  Naval  and  air  forces  remain  at  the 
forefront  of  this  critical  campaign  and  are  the  principal  instruments  for  ensuring 
effective  and  peaceful  resolution  of  these  threats. 

The  Freedom  of  Navigation  Program  which  was  first  authorized  by  the  United 
States  Government  in  the  late  1970s  has  been  criticized  in  both  legal  and  normative 
terms.  10  Arguments  have  been  rendered  which  criticize  the  legal  efficacy  of  the 
program  and  question  the  apparent  provocative  nature  of  such  assertions  as  un- 
necessary exercises  of  hegemonic  power  projection.  Moreover,  such  criticism  con- 
tends that  the  preservation  of  navigational  freedom  can  be  more  effectively 
achieved  through  other,  less  invasive,  means.11  Indeed  these  arguments  suggest 
that  the  exercise  of  the  operational  assertions  may  offend  general  principles  of  in- 
ternational law  concerning  "abuse  of  rights."12  It  is  contended  that  such  arguments 
are  misplaced  and  that  the  freedom  of  navigation  assertions  undertaken  by  the 
United  States  and  others  do  provide  the  most  effective  means  of  preserving  the  bal- 
ance of  interests  reflected  in  the  legal  architecture  of  the  1982  LOS  Convention. 
The  current  cacophony  of  claims  made  by  some  coastal  States  collectively  to  limit 
navigational  freedom  is  strident  in  both  frequency  and  depth.  In  this  dynamic 
world  of  strategic  norm  creation  and  suppression,  it  is  contended  that  navigational 
assertions  are  an  essential  means  of  addressing  these  suspect  claims.  More  criti- 
cally, such  assertions  are  undertaken  in  concert  with  the  jurisprudence  of  the  Inter- 
national Court  of  Justice  that  has  repeatedly  endorsed  the  principle  of  navigational 
freedom  and  recognized  the  legitimacy  of  asserting  such  rights.  This  paper  argues 
for  the  continued  maintenance  of  the  Freedom  of  Navigation  Program  as  an  essen- 
tial means  of  preserving  the  integrity  of  the  1982  LOS  Convention  and  seeks  to 
demonstrate  the  risks  involved  in  failing  to  be  vigilant  to  contrary  strategies  de- 
signed to  limit  the  freedoms  so  desperately  won. 

236 


Dale  Stephens 

Law  of  the  Sea  Legal  Regime 

The  1982  LOS  Convention  is  a  very  well  subscribed  treaty.  As  of  this  writing,  145 
States  have  ratified  or  acceded  to  the  Convention,13  which  list  includes  four  of  the 
permanent  five  members  of  the  Security  Council.  Following  the  resolution  of  issues 
associated  with  Part  XI  of  the  Convention  dealing  with  deep  seabed  mining,14  Presi- 
dent Clinton  submitted  the  1982  LOS  Convention,  together  with  the  1994  Agree- 
ment Relating  to  the  Implementation  of  Part  XI,  to  the  United  States  Senate  on 
October  7,  1994  for  its  consent,  respectively,  to  their  accession  and  ratification.15 
Notwithstanding  its  broad  acceptability,  the  1982  LOS  Convention  is  not  yet  univer- 
sally subscribed  and  thus  is  not,  in  its  terms,  binding  on  all.  Moreover,  the  Third 
United  Nations  Conference  on  the  Law  of  the  Sea  (UNCLOS  III) 16  debates  that  led  to 
the  drafting  of  the  1982  LOS  Convention  were  conducted  under  the  aegis  of  a  con- 
sensus negotiation  practice  that  ensured  that  the  convention  was,  in  many  respects,  a 
"package  deal"  of  concessions  which  resulted  in  a  number  of  constructive  ambigu- 
ities in  the  text.17  Unlike  the  previous  1958  Conventions  dealing  with  maritime  regu- 
lation,18 the  1982  LOS  Convention  does  not  permit  the  making  of  general 
reservations19  and  was  intended  to  be  a  discrete  enunciation  of  maritime  regulation, 
thus  further  ensuring  a  compromised  language  in  the  text.  Indeed,  a  recent  com- 
mentary has  identified  over  60  terms,  a  dozen  of  which  are  critical,  included  within 
the  1982  LOS  Convention  that  are  either  ambiguously  used  or  not  fully  defined.20 
Significantly,  the  issue  of  the  use  of  force  in  the  maritime  environment  is  barely  tack- 
led, which  is  not  altogether  surprising  given  the  cold  war  environment  prevailing  at 
the  time  of  negotiation.  Accordingly,  military  subjects  do  not  loom  large  within  the 
text  of  the  Instrument  and  assessment  of  State  actions  must  be  undertaken  more  spe- 
cifically under  general  principles  of  international  law.21 

The  Issue  of  Sovereignty 

Article  2  of  the  1982  LOS  Convention  confirms  that  coastal  States  exercise  sover- 
eignty over  their  territorial  sea  "subject  to  [the]  Convention  and  other  rules  of  in- 
ternational law."22  That  article  provides  a  reliable  touchstone  for  the 
conceptualization  of  nuanced  "sovereignty"  applicable  in  the  territorial  sea.  Fol- 
lowing the  conclusion  of  the  negotiating  process  it  was  evident  that  coastal  State 
sovereignty  over  newly  expanded  territorial  sea  limits  would  be  "subject"  both  to 
the  positively  stated  terms  of  the  Convention,  especially  the  rights  of  innocent  pas- 
sage, and  other,  more  general  rules  of  international  law.  International  legal  dis- 
course does  not  admit  to  a  unified  theory  of  sovereignty.23  Since  the  treaties  of 
Westphalia  in  1648,  both  courts  and  publicists  have  wrestled  with  the  significance 

237 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

of  the  concept.  The  writings  of  Henry  Wheaton24  in  the  nineteenth  century,  and 
the  determination  of  the  Permanent  Court  of  Justice  of  the  early  twentieth  century 
in  the  Lotus  case,25  have  recognized  an  absolute  quality  to  the  concept  of  sover- 
eignty, upon  which  infringements  could  not  be  presumed.26  Alternatively,  the  ju- 
risprudence of  the  US  Supreme  Court  of  the  early  nineteenth  century27  and  writers 
in  the  current  period28  equate  "sovereignty"  more  with  a  collection  or  "bundle"  of 
rights  to  which  there  are  concomitant  rights  enjoyed  by  other  "sovereign"  States.29 
Within  this  paradigm,  the  enduring  challenge  of  international  law  is  the  reconcilia- 
tion of  such  rights.  Modern  theoretical  conceptions  seek  to  demystify  the  character 
of  sovereignty  in  order  to  address  questions  of  international  community  structure 
comprehensively.  Hence,  the  theorist  Hans  Kelsen  tackled  the  nature  of  sover- 
eignty by  positing  that  it  was  a  conception  premised  upon  an  authority  of  order 
and  nothing  more.30  However,  as  a  manifestation  of  order  he  was  able  to  perceive 
the  international  community  equally  possessing  the  mechanics  of  an  order 
through  an  expression  of  collective  will  and  thus  was  able  to  conclude  that  based 
upon  its  coercive  predicate,  international  law  exists  as  an  equally  binding  legal  or- 
der by  which  State  sovereignty  is  necessarily  limited. 31 

The  monolithic  and  "mystical"  nature  of  sovereignty  expressed  in  the  vocabu- 
lary of  defense  of  measures  to  restrict  and  hamper  navigational  freedom,  especially 
of  warships,  can  be  seen  as  representative  of  a  particular  schism  of  absolutist  atti- 
tudes towards  the  legal  nature  of  sovereignty.  This  essentialism  seems  to  brook  no 
heresy  on  the  character  of  such  claims.  Notwithstanding  this  approach,  it  is  evident 
that  the  sovereignty  expressed  to  exist  in  the  territorial  sea  of  a  coastal  State  is,  in 
accordance  with  Article  2  of  the  1982  LOS  Convention,  a  disaggregated  sover- 
eignty. International  law  is  now  replete  with  authoritative  expressions  on  the  frac- 
tured nature  of  this  sovereignty.32  It  was  this  realization  within  the  Corfu  Channel 
case  that  prompted  Judge  Alvarez  to  acknowledge  the  social  interdependence  be- 
tween States  and  to  conclude  that  sovereignty  carried  with  it  both  rights  and  obli- 
gations, stating  in  his  individual  opinion  that  "we  can  no  longer  regard  sovereignty 
as  an  absolute  and  individual  right  of  every  State  as  used  to  be  done  under  the  old 
law  founded  on  the  individualist  regime."33  The  relationship  between  the  coastal 
State  and  the  navigating  State  is  thus  a  relationship  of  intersecting  rights  and  obli- 
gations. Accordingly,  it  is  not  possible  to  conclude  that  under  either  customary  law 
or  the  1982  LOS  Convention,  there  is  necessarily  a  "weighted"  significance  to  be 
accorded  the  sovereign  status  of  the  territorial  sea  of  a  coastal  State  based  upon  ap- 
peals to  mystical  conceptions  of  what  underpins  the  nature  of  sovereignty,34  a  fortiori 
with  respect  to  international  straits  and  archipelagic  sea  lanes. 


238 


Dale  Stephens 


The  1982  Law  of  the  Sea  Convention 

UNCLOS  III  was  ambitious  in  its  goals.  Addressing  age  old  doctrinal  antagonisms 
concerning  theories  of  mare  clausum  and  mare  liberum  naturally  meant  that  there 
would  be  deep  divisions  between  coastal  State  preferences,  which  sought  to  expand 
maritime  jurisdiction,  and  those  of  the  maritime  States  who  sought  to  emphasize 
more  liberal  navigational  regimes.35  The  1982  LOS  Convention  itself  is  a  statement 
par  excellance  in  affirming  a  general  theme  of  "balance"  throughout  its  provisions. 
The  Convention  pits  one  principle  against  another  in  repeated  provisions  through- 
out its  text.  Thus  coastal  States  were  able  to  win  consensus  for  a  greatly  expanded 
territorial  sea  limit  (from  three  to  twelve  nautical  miles)  in  exchange  for  rights  of 
concisely  defined  innocent  or  transit  passage.  Similarly,  the  archipelagic  concept 
was  recognized  in  exchange  for  rights  of  archipelagic  sea  lane  passage,  as  were 
rights  of  high  seas  navigation  and  freedoms  within  the  newly  established  exclusive 
economic  zone  (EEZ).  It  is  this  thematic  goal  of  "balance"  that  especially  under- 
pins the  nature  of  the  freedom  of  navigation  programs. 

Excessive  Claims 

As  a  result  of  the  ambiguity  in  the  language  contained  within  the  1982  LOS  Con- 
vention, and  in  conjunction  with  independent  strategies  designed  to  shape  the  de- 
velopment of  the  law,  there  have  been  a  multitude  of  claims  made  by  coastal  States 
concerning  their  sovereign  or  jurisdictional  rights  within  maritime  areas,  the  legal 
basis  of  which  is  suspect.  Thus,  the  broad  language  of  the  Convention  regarding  the 
drawing  of  baselines36  has  led  a  number  of  States  to  adopt  an  excessively  generous 
approach  to  designating  such  co-ordinates.  In  this  regard,  for  example,  Vietnam 
draws  it  baselines  in  a  manner  that  extend  up  to  50nm37  around  islands  within  the 
South  China  Sea  and  cannot,  under  any  reasonable  interpretation,  be  regarded  as 
"generally  following  the  direction  of  the  coastline"  as  provided  for  in  Article  7  of 
the  1982  LOS  Convention38  and  supporting  customary  international  law.39  Simi- 
larly, a  United  Nations  publication  from  199440  identified  a  number  of  States  that 
acted  inconsistently  with  the  terms  of  the  1982  LOS  Convention.  Such  countries 
included  Myanmar  which  adopted  excessively  long  straight  baselines  (including 
one  222  nautical  miles  long),41  as  well  as  the  Democratic  People's  Republic  of  Ko- 
rea which  had  drawn  straight  baselines  that  did  not  follow  the  direction  of  the 
coast.42  Moreover,  the  report  noted  a  number  of  States  that  purported  to  require 
prior  notification  or  authorization  pending  the  exercise  of  innocent  passage  by 
vessels,  especially  warships.  Such  countries  included,  inter  alia,  Bangladesh,  China, 
India,  Iran  and  Maldives.43  Critically,  the  report  noted  that  such  restrictions  on 

239 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

navigational  freedom  were  inconsistent  with  the  right  of  innocent  passage  for  all 
vessels  as  guaranteed  under  the  1982  LOS  Convention.44 

States  such  as  North  Korea45  assert  that  special  "security  zones"  may  be  imposed  in 
adjoining  maritime  areas  which  purportedly  enable  them  independently  and  selec- 
tively to  restrict  navigational  freedom  on  self-conceived  terms  relating  to  "security." 
Countries  such  as  Brazil,  India,  Malaysia  and  Pakistan  all  seek  to  restrict  naval  activities 
within  their  EEZ's  in  terms  not  readily  recognized  under  the  1982  LOS  Convention.46 
The  catalogue  of  "excessive  maritime  claims"  is  quite  large.  The  following  non-exhaus- 
tive list  provides  a  representative  outiine  of  the  types  of  claims  made: 

•  Excessive  and  very  broad  claims  for  historic  bay  status,47 

•  Territorial  sea  limits  beyond  the  12nm  range,48 

•  Imposition  of  a  multitude  of  environmental  or  safety  conditions  on 
"innocent  passage"  which  effectively  denies  the  right,49  and 

•  Denied  transit  passage  rights  within  international  straits.50 

Perhaps  the  most  striking  challenge  to  navigational  freedom  comes  from  the  re- 
cent adoption  of  legislation  by  the  Indonesian  Government  in  December  200251  that 
purported  to  restrict  all  passage  through  its  archipelago  to  three  north/south 
archipelagic  sea  lanes.  Passage  from  east-west  through  the  Indonesian  archipelago  is 
permitted,  on  the  face  of  the  legislation,  to  be  with  Indonesian  Government  permis- 
sion only.52  The  legislation  also  provided  that  archipelagic  sea  lanes  passage  was  only 
exercisable  within  a  limited  number  of  north-south  archipelagic  sea  lanes  that  had 
been  partially  designated  with  the  International  Maritime  Organization.53 

Such  legislation  is  inconsistent  with  a  general  right  to  engage  in  innocent  passage 
through  archipelagic  waters  as  outlined  in  the  1982  LOS  Convention.54  Moreover, 
with  respect  to  both  innocent  passage  and  the  partial  designation  of  archipelagic  sea 
lanes,  the  legislation  is  contrary  to  the  terms  of  the  1998  Resolution  of  the  Maritime 
Safety  Committee  of  the  International  Maritime  Organization  (IMO)  which  said,  re- 
spectively, that  "[ejxcept  for  internal  waters  within  archipelagic  waters,  ships  of  all 
States  enjoy  the  right  of  innocent  passage  through  archipelagic  waters  and  the  terri- 
torial sea"55  and  "[w]here  a  partial  archipelagic  sea  lanes  proposal  has  come  into  ef- 
fect, the  right  of  archipelagic  sea  lanes  passage  may  continue  to  be  exercised  through 
all  normal  passage  routes  used  as  routes  for  international  navigation  or  overflight  in 
other  parts  of  archipelagic  waters  in  accordance  with  UNCLOS."56  The  Explanatory 
Note  to  the  Indonesian  Regulations  declared  that  designation  of  routes  under  which 
innocent  passage  could  be  exercised  was  a  right  reserved  to  the  Indonesian  Govern- 
ment notwithstanding  the  provisions  of  the  1982  LOS  Convention.57 


240 


Dale  Stephens 

175  Freedom  of  Navigation  Program 

The  US  Freedom  of  Navigation  Program  was  established  in  1979  and  has  enjoyed 
bipartisan  political  support  since  that  time.58  Developed  against  the  background  of 
the  debates  at  UNCLOS  III,  the  program  was  conceived  as  a  means  to  shape  the  de- 
velopment of  the  law  in  a  manner  consistent  with  ensuring  the  maintenance  of 
navigational  freedoms  so  desperately  won  through  the  negotiations.59  American 
economic  and  strategic  policy  goals  are  ad  idem  in  relation  to  ensuring  maximiza- 
tion of  maritime  freedom60  and  such  coalescence  of  interests  are  naturally  similar 
with  other  maritime  State  goals.  Such  freedom  critically  underpins61  existing  US 
and  coalition  military  strategy  of  deterrence,  forward  defense  and  alliance  solidar- 
ity.62 The  Freedom  of  Navigation  Program  is  a  composite  policy  of  both  diplomatic 
exchange  and  physical  operational  assertion.63  Moreover,  the  program  is  to  be  seen 
as  an  important  element  in  an  overall  process  of  US  supported  bilateral  and  multi- 
lateral military  efforts  to  foster  consistency  in  recognition  of  maritime  freedoms. 
Such  efforts  are  contextualized  in  the  transparency  of  the  international  military  ex- 
ercise programs  which  are  conducted  in  all  regions  of  the  world. 64  The  agreed  mar- 
itime legal  framework  and  associated  rules  of  engagement  issued  for  the  conduct  of 
such  exercises  seek  to  reinforce  the  strategic  balance  of  interests  reflected  in  both 
the  1982  LOS  Convention  and  equivalent  customary  law.  65 

The  thematic  focus  of  the  Freedom  of  Navigation  Program  is  to  consolidate  US 
and,  collaterally,  coalition  rights  of  global  maritime  mobility,  particularly  in  relation  to 
contentious  "choke  points"  within  strategic  waterways  (e.g.,  Strait  of  Malacca,  Strait  of 
Hormuz,  etc.).  The  program  is  mandated  by  Presidential  Directive  to  be  "non-provoc- 
ative," "even-handed"  and  "politically  neutral"  in  its  application.66  In  this  regard, 
"non-provocative"  does  not  necessarily  equate  with  "non-confrontational"  as  the  very 
essence  of  the  program  is  to  contest  excessive  claims.67  As  will  be  subsequently  argued, 
such  actions  do  not  in  themselves  constitute  a  violation  of  United  Nations  Charter 
prohibitions  under  Article  2(4)68  nor  other  norms  proscribing  intervention  within  the 
domestic  jurisdiction  of  a  State.69 

The  Freedom  of  Navigation  Program  is  a  critical  part  of  an  overall  strategic  focus 
of  US  policy  with  respect  to  maritime  freedom.  While  not  a  party  to  the  1982  LOS 
Convention,  President  Reagan  declared  in  1983  that  the  United  States  would  act 
consistently  with  the  provisions  of  the  Convention  with  respect  to  navigation  and 
overflight  rights,  acknowledging  that  they  were  representative  of  customary  interna- 
tional law.70  Significantly,  President  Reagan  counseled  that  the  "United  States  will 
not . . .  acquiesce  in  unilateral  acts  of  other  States  designed  to  restrict  the  rights  and 
freedoms  of  the  international  community  in  navigation  and  overflight  and  other  re- 
lated high  seas  uses.'71  Critically,  US  policy  perceives  its  Freedom  of  Navigation 

241 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

Program  as  an  instrumental  aspect  of  preserving  the  integrity  of  the  1982  LOS  Con- 
vention. Thus  the  actions  of  US  naval  forces  are  rationalized  as  representing  not  only 
US  strategic  interests  but  also  those  of  the  international  community  generally.72  As 
the  commentator  Richard  Grunawalt  has  opined,  "[t]o  that  end,  the  Freedom  of 
Navigation  Program  encourages  nations  to  modify  their  domestic  laws  and  regula- 
tions so  as  to  bring  them  into  conformity  with  the  Convention."73 

Australian  Freedom  of  Navigation  Program 

In  the  mid-1990s,  the  Royal  Australian  Navy  (RAN)  adopted  an  informal  policy  of 
asserting  lawful  navigational  rights  under  the  1982  LOS  Convention.  The  focus  of 
this  policy  was  specifically  within  the  South  Pacific/Southeast  Asian  region.  Akin  to 
the  US  program,  the  Australian  approach  is  an  amalgam  of  navigational  assertion 
coupled  with  coordinated  diplomatic  exchange. 

Australia's  geographic  proximity  demands  that  it  have  free  regional  maritime 
mobility  capacity.  A  key  feature  of  that  mobility  is  assured  access  through  the  Indo- 
nesian Archipelago  so  as  to  access  important  regional  ports  within  Southeast  Asia  as 
well  as  North  Asia.  While  access  through  the  Indonesian  Archipelago  is  necessarily  a 
critical  aspect,  it  is  not  the  sole  focus  of  the  Australian  program.  In  April  2001,  an 
Australian  naval  task  force  of  three  ships  transited  the  Taiwan  Strait  in  order  to  travel 
efficiently  between  Hong  Kong  and  South  Korea.  The  Taiwan  Strait  lies  within  the 
so-called  Chinese  "security  zone"  which  led  to  a  non-violent  confrontation  with 
Chinese  naval  units.74  Australian  diplomatic  responses  to  Chinese  protests  relied 
upon  conventional  rights  contained  within  the  1982  LOS  Convention  and  the  mat- 
ter was  not  permitted  by  either  side  to  escalate  beyond  an  oral  diplomatic  exchange. 

Legal  Critique  of  Freedom  of  Navigation  Program 

The  approach  taken  by  the  United  States  in  undertaking  freedom  of  navigation  as- 
sertions seeks  to  achieve  two  principal  legal  goals.  Firstly,  as  a  non-party  to  the  1982 
LOS  Convention,  the  United  States  is  bound  to  ensure  that  customary  international 
law  develops  in  a  manner  consistent  with  its  own  strategic  interests.  The  stated  secu- 
rity goals  of  the  United  States  in  ensuring  free  access  through  maritime  "choke 
points"  and  unencumbered  exercise  of  navigational  freedom  do  accord  with  the 
goals  of  almost  all  maritime  States.  To  that  end,  such  navigational  assertions  seek  to 
create  a  "practice"  necessary  to  shape  the  evolution  of  customary  norms  recogniz- 
able in  accordance  with  Article  38  (1)  (b)  of  the  Statute  of  the  International  Court  of 
justice.75  Such  practice  is  accompanied  by  statements  concerning  US  convictions  as 


242 


Dale  Stephens 

to  the  state  of  opinio  juris  concerning  the  establishment  of  a  permissive  regime  of 
transit  through  contested  areas.76 

The  actions  taken  by  those  coastal  States  that  maintain  excessive  maritime 
claims  or  that  otherwise  seek  to  impose  restrictions  on  free  navigation  do  not  ap- 
pear to  have  been  taken  in  concert.  The  International  Court  of  Justice  (ICJ)  has  de- 
clared that  freedom  of  navigation,  in  the  form  of  a  right  of  innocent  passage 
through  territorial  seas  and  more  generally  through  other  foreign  maritime  zones, 
is  a  right  possessed  under  customary  law.77  The  Court  has  opined  that  the  right  is 
guaranteed  to  include  "all  the  freedom  necessary  for  maritime  navigation"78  which 
was  not  to  be  hindered  by  the  coastal  State.  The  1982  LOS  Convention,  in  the  opin- 
ion of  the  Court,  "does  no  more  than  codify  customary  international  law  on  this 
point."79  Having  regard  to  the  ICJ's  pronouncements  therefore,  it  seems  an  en- 
tirely vacuous  process  for  such  countries  to  be  seeking  to  set  a  contrary  "practice" 
which  should  crystallize  into  a  rule  of  customary  international  law.  Contemporary 
theory  posits  that  in  the  face  of  a  generally  established  rule  of  customary  interna- 
tional law  (as  has  been  declared  by  the  ICJ  in  this  instance),  there  is  a  need  for  a 
"great  quantity  of  practice  to  overturn  existing  rules  of  customary  international 
law."  80  With  a  strong  presumption  against  the  change  in  law81  there  would  need  to 
be  demonstrated  an  extremely  widespread  and  uniform82  practice  in  opposition  to 
the  existing  rule  for  there  to  be  any  opportunity  for  even  beginning  an  assessment 
as  to  the  emergence  of  a  contrary  rule.  The  brief  survey  of  the  multifarious  claims 
by  some  coastal  States  indicates  that  there  is  no  such  uniformity,  but  rather  a  spo- 
radic and  somewhat  disjointed  array  of  challenges.  It  is  notable  that  during  the  lat- 
ter stages  of  the  UNCLOS  III  debates  there  was  an  unsuccessful  attempt  by 
approximately  29  States  to  impose  a  requirement  for  prior  notification  and/or  au- 
thorization for  innocent  passage  into  the  Convention.83  Had  such  countries  been 
uniform  in  their  continued  insistence  on  this  requirement  in  subsequent  years, 
there  may  well  have  been  afforded  a  basis  to  assert  that  such  a  proposition  had  crys- 
tallized into  a  rule  of  customary  law  (assuming,  of  course,  evidence  of  opinio  juris 
and  acquiescence  by  other  States)  but  this  has  not  been  the  case.  While  some  States 
persist  with  claims  for  either  prior  notification  or  authorization,  there  is  no  wide- 
spread uniformity  in  practice  on  either  element  or  indeed  any  particular  claim  or 
principle  of  law  that  would  act  to  undermine  the  guarantees  of  navigational  free- 
dom contained  within  the  1982  LOS  Convention  relating  to  warships. 

Alternatively  an  argument  might  be  advanced  that  rather  than  relying  on  the 
specificity  of  claims  regarding  the  restriction  on  navigation  (i.e.  security  zones,  prior 
permission  etc.),  opposing  States  maybe  able  to  frame  a  broader  enunciation  of  the 
opposing  "rule"84  to  collectively  bring  it  within  a  single  normative  framework.  Thus 
it  might  be  contended  that  the  rule  is  simply  that  "navigational  freedom  is 

243 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

constrained  by  a  number  of  factors"  and  the  multifarious  actions  by  coastal  States 
would  all  be  consistent  with  such  a  broadly  stated  rule.  Such  an  approach  would, 
however,  be  disingenuous.  The  reasoning  employed  by  the  ICJ  in  the  North  Sea  Con- 
tinental Shelf  case  insisted  that  a  level  of  exacting  uniformity  was  required  before  de- 
termining the  existence  of  a  new  rule,  especially  one  that  seemed  to  be  in  conflict 
with  an  existing  rule.85  In  the  current  scenario,  coastal  States  which  seek  to  restrict 
navigational  freedom  do  so  in  widely  inconsistent  ways.  Thus,  some  States  purport 
to  have  discretion  to  deny  innocent  passage  where  others  simply  seek  to  be  provided 
with  information  beforehand  of  an  impending  passage  so  as  to  "ensure"  that  such 
passage  is  innocent  while  not  denying  outright  the  "right"  of  innocent  passage.  In  his 
analysis  of  customary  law  formation,  Michael  Akehurst  has  noted  "practice  which  is 
marked  by  major  inconsistencies  at  all  relevant  times  is  self  defeating  and  cannot  give 
rise  to  a  customary  rule."86  On  any  level  of  analysis  therefore,  the  development  of  a 
general  customary  rule  contrary  to  the  existing  customary  status  quo  concerning 
freedom  of  navigation  is  fraught  with  considerable  difficulty. 

Persistent  Objectors 

If  there  is  little  likelihood  that  there  will  develop  a  contrary  general  customary  rule 
restricting  navigational  freedom,  what  then  is  the  efficacy  of  the  US  Freedom  of 
Navigation  Program?  Given  that  navigational  freedom  exercised  in  accordance 
with  the  terms  of  the  1982  LOS  Convention  is  not  yet  a  norm  of  peremptory  status 
("jus  cogens")  the  existing  international  legal  structure  does  permit  individual 
States  the  right  to  opt  out  of  the  application  of  prevailing  general  international  cus- 
tomary law.  While  strictly  defined,  the  so-called  "persistent  objector"  theory  per- 
mits a  particular  State  the  opportunity  to  resist  the  application  of  customary 
international  law  but  only  in  relation  to  that  State.  To  qualify,  a  State  must  express 
a  protest  to  a  developing  rule  during  its  formulative  stages  (i.e.,  protest  ah  initio) 
and  must  be  vigilant  in  maintaining  its  opposition  to  a  developing  rule.87 

In  view  of  the  "persistent  objector"  principle,  the  utility  of  the  US  Freedom  of 
Navigation  Program  can  best  be  understood  as  testing  the  resolve  of  those  States 
who  may  seek  to  develop  opposition  to  the  application  of  customary  international 
law  to  them.  It  is  notable  that  the  2000  International  Law  Association  (ILA)  Com- 
mittee Report  on  the  Formation  of  Customary  (General)  International  Law  relies 
upon  the  actual  physical  actions  of  States  in  the  maritime  environment  to  provide 
the  most  effective  demonstration  of  State  intent.  Hence,  the  ILA  uses  the  example 
of  a  State  purporting  to  restrict  navigational  rights  through  its  territorial  sea  as  an 
illustration  of  the  general  need  to  discern  the  nature  of  the  express  or  implied  claim 
and  response  as  to  the  applicability  of  a  norm  of  international  law.  Thus  the 


244 


Dale  Stephens 

authors  of  the  report  note  that  "if  State  A  expressly  claims  the  right  to  exclude  for- 
eign warships  from  passing  through  its  territorial  sea,  and  State  B  sends  a  warship 
through  without  seeking  the  permission  of  A . . .  [and]  ...  A  fails  to  protest  against 
this  infringement,  this  omission  can,  in  its  turn,  constitute  a  tacit  admission  of  the 
existence  of  a  right  of  passage  after  all."88 

It  is  in  this  context  that  "actions"  do  indeed  speak  louder  than  "words."  Some 
interpreters  of  sources  doctrine  have  traditionally  been  insistent  on  pointing  to 
"deeds"  over  "words"  as  the  critical  "practice"  of  a  State  for  determining  the  le- 
gitimacy of  a  new  rule  of  customary  international  law.  In  support  of  this  proposi- 
tion, the  publicist  Anthony  D'Amato  notes  that  "acts  are  visible,  real  and 
significant;  it  crystallizes  policy  and  demonstrates  which  of  the  many  possible 
rules  of  law  the  acting  State  has  decided  to  manifest."89  Such  arguments  have 
been  diluted  by  other  commentators  who  have  opined  that  more  general  means 
are  available  to  gauge  State  practice.90  Akehurst,  for  example  concludes  that 
statements,  in  either  abstract  or  concrete  contexts,  may  also  be  constitutive  of 
State  practice.91  This  latter  view  is  surely  the  correct  one,  indeed  it  has  been  ob- 
served that  the  ICJ  in  the  Nicaragua  case  itself  appeared  to  conclude  that  both 
State  practice  and  sufficient  opinio  juris  can  be  gauged  from  public  statements 
made  by  States,  or  even  international  organizations  in  circumstances  where  such 
entities  are  purporting  to  declare  the  state  of  the  law.92 

While  diplomatic  statements  may  be  acceptable  for  discerning  the  formulation  of 
norms,  the  principal  difficulty  remains  in  identifying  the  specificity  of  the  norm  cre- 
ated. It  is  as  much  a  matter  of  probative  value  than  anything  else  in  discerning  the 
quality  and  content  of  a  rule,  and  in  the  absence  of  a  clearly  directed  public  statement 
there  is  little  value  in  its  evidentiary  effect.93  Blanket  verbal  protests  by  maritime 
States  could  be  met  with  equally  blanket  ripostes  from  coastal  States  contending  their 
enduring  resistance.  In  this  flurry  of  statements  and  counter- statements  it  may  be 
difficult  to  assess  the  cogency  of  any  new  rule  or  exception  to  a  rule.  As  recognized  by 
the  ILA  Committee,  the  matter  only  becomes  truly  tested  when  a  transit  is  under- 
taken through  contested  waters  and  reactions  gauged.  Such  a  practical  demonstra- 
tion is  necessary  to  determine  the  coherency  of  claims,  especially  in  circumstances 
where  a  well  subscribed  multilateral  instrument  has  established  a  rule  in  conflict.  In- 
deed, as  the  ILA  Committee  report  notes,  the  persistent  objector  rule  is  useful  in  an 
exceptional  sense  by  allowing  "the  convoy  of  the  law's  progressive  development . . . 
[to].  .  .  move  forward  without  having  to  wait  for  the  slowest  vessel."94  Such  an  ap- 
proach can  be  supported  upon  a  utilitarian  basis  in  the  maritime  context,  especially 
given  the  sophisticated  level  of  the  balance  struck  in  the  1982  LOS  Convention  be- 
tween coastal  and  maritime  State  rights  and  obligations. 


245 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

It  is  in  this  context  that  the  "relative  normativity"  theory95  of  interpretation  of 
international  legal  "sources"  finds  useful  application.  The  development  of  both 
"hard"  and  "soft"  arguments  within  customary  normative  discourse  concerning 
coastal  State/maritime  State  interaction  does  require  attention  to  the  "more  or 
less"  calculus  so  resisted  by  traditional  approaches.  Accordingly,  specific  physical 
State  action  and  counter-action  in  a  very  public  and  concrete  manner  plays  a 
much  more  compelling  role  in  the  establishment  of  international  legal  norms.  In 
essence,  navigational  assertions  do  carry  with  them  greater  normative  signifi- 
cance with  respect  to  this  issue  than  only  diplomatic  exchange  of  notes. 

The  1982  Convention  and  Legal  Framework  of  Navigational  Rights 

As  outlined  in  the  introduction  of  this  paper,  the  1982  LOS  Convention  is  a  well-sub- 
scribed treaty.  Given  the  widespread  nature  of  its  support,  it  may  be  wondered  why 
the  rights  concerning  freedom  of  navigation  that  are  contained  within  the  Conven- 
tion are  sought  to  be  denied  by  some  coastal  States.  The  answer  to  this  question  is 
varied.  Plainly,  in  the  face  of  "constructively  ambiguous"  provisions,  a  coastal  State 
may  seek  an  interpretation  that  is  advantageous  to  that  State.  Hence,  arguments  may 
be  proffered  in  the  case  of  innocent  passage,  for  example,  that  read  much  into  the 
terms  of  Article  19(1)  that  "Passage  is  innocent  so  long  as  it  is  not  prejudicial  to  the 
peace,  good  order  or  security  of  the  coastal  State."  Such  terminology  is  on  its  face  ab- 
stract enough96  to  permit  a  wide  array  of  challenges,  especially  to  warships.  Such  rea- 
soning is,  however,  quite  disingenuous.  Article  3 1  of  the  Vienna  Convention  on  the 
Law  of  Treaties97  prescribes  that  "A  Treaty  shall  be  interpreted  in  good  faith  in  accor- 
dance with  the  ordinary  meaning  to  be  given  to  the  terms  of  the  treaty  in  their  con- 
text and  in  light  of  its  object  and  purpose."98  With  respect  to  the  issue  of  warships 
and  innocent  passage,  it  is  evident  that  the  abstract  propositions  concerning  "peace, 
good  order  or  security"  are  necessarily  informed  by  the  detailed  terms  of  Article 
19(2)  of  the  1982  LOS  Convention  which  provides  a  very  specific  contextual  outline 
of  those  activities  that  a  warship  must  observe  to  come  within  the  definition  of  "in- 
nocent."99 As  with  the  remainder  of  the  treaty,  this  prescriptive  catalogue  was  the 
necessary  "price"  for  expanded  territorial  sea  jurisdiction  and  obviously  provides  a 
reliable  basis  for  legal  interpretation.  As  the  Indian  commentator  Shekhar  Ghosh  ac- 
knowledged at  the  time  of  the  UNCLOS  III  debates, "  [t]  he  scope  of  coastal  discretion 
has  been  undeniably  reduced  to  an  unavoidable  minimum"100  under  this  provision. 
In  essence,  the  rights  of  navigational  freedom  were  "won"  in  the  context  of  ensuring 
a  necessary  balance  with  coastal  State  interests. 

Beyond  a  textual  interpretation  of  the  terms  of  the  1982  LOS  Convention,  it  is 
open  to  a  coastal  State  to  observe  the  positively  stated  obligations  while  still  relying 

246 


Dale  Stephens 

upon  "gaps"  in  the  terms  of  the  Convention  to  advance  a  restrictive  agenda.  In  this 
context  so  called  rights  to  insist  upon  prior  notification  before  undertaking  inno- 
cent passage  might  be  asserted  consistently  with  primary  obligations  under  the 
Convention.  Thus,  under  this  paradigm,  the  "right"  of  innocent  passage  has  not 
been  infringed  by  insisting  upon  prior  notification,  rather  it  is  contended  to  be 
merely  a  procedural  "condition  precedent"  necessary  to  give  effect  to  that  right. 
Such  an  approach  would,  however,  deny,  in  practical  terms,  a  substantive  right.101 
In  asserting  such  a  claim,  a  coastal  State  may  seek  to  rely  upon  Article  31(3)(b)  of 
the  Vienna  Convention102  that  provides  that  interpretation  of  a  treaty's  terms  may 
be  determined  by  "subsequent  practice  in  the  application  of  the  treaty  which  estab- 
lishes the  agreement  of  the  parties  regarding  its  interpretation."  Compliance  with 
"prior  notification"  demands  might  therefore  constitute  a  "practice"  which  will  ce- 
ment an  interpretation  of  the  1982  LOS  Convention  that  necessarily  undermines 
navigational  freedom  by  indirectly  denying  a  unilateral  right  of  passage.  Such  ac- 
tions would  be  akin  to  the  process  of  customary  norm  formulation,  though  they  do 
not  require  the  demonstration  of  opinio  juris,  merely  acquiescence  with  respect  to 
"subsequent  practice."  This  article's  reliance  upon  "practice"  anticipates  a  level  of 
State  interaction.  Accordingly,  the  demands  of  a  coastal  State  in  limiting  freedom 
of  navigation  through  its  maritime  zones  if  met  with  indifference  by  other  States 
parties  could  conceivably  permit  the  establishment  of  a  specific  interpretation  to 
the  Convention.  While  diplomatic  protest  is  obviously  a  means  of  challenging  such 
a  development,  the  normally  bilateral  and  confidential  nature  of  such  action 
means  that  there  is  a  lack  of  visibility  by  all  States  party  to  the  process.  The  assertion 
of  navigational  rights  in  a  contentious  zone  remains  a  publicly  visible  event,  which 
tangibly  constitutes  a  "subsequent  practice"  that  other  States  parties  may  overtly, 
or  tacitly  support,  thus  shaping  an  interpretation  consistent  with  the  underlying 
balance  of  preserving  navigational  freedom. 

Criticism  of  the  US  Freedom  of  Navigation  Program 

In  his  analysis  of  US  navigational  assertions,  William  Aceves103  takes  issue  with 
the  manner  in  which  the  United  States  undertakes  these  assertions.  His  criticism 
stems  from  a  reading  of  the  constituent  elements  of  customary  norm  generation  and 
he  argues  that  the  program  is  overly  provocative  and  inconsistent  with  more  general 
requirements  of  international  law  to  settle  disputes  peacefully.104  He  cites  the  re- 
quirements of  Article  279  of  the  1982  LOS  Convention  that  in  turn  refers  to  Article 
2(3)  of  the  United  Nations  Charter,  which  mandates  that  all  international  disputes 
are  to  be  settled  in  a  peaceful  manner.  Additionally,  he  contends  that  US  naval  ac- 
tions undertaken  in  the  context  of  a  freedom  of  navigation  assertion  have  the 

247 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

potential  to  offend  general  principles  of  international  law,  particularly  the  "abuse 
of  rights"  doctrine105  by  adopting  an  unnecessarily  militarily  confrontational  ap- 
proach to  the  resolution  of  points  of  law. 

The  critique  by  Aceves  that  navigational  assertions  are  unduly  confrontational, 
and  thus  potentially  violative  of  Article  279  of  the  1982  LOS  Convention,  as  well  as 
Articles  2(3)  and  (4)  the  UN  Charter,  is  curious.  As  Aceves  himself  notes,106  the  is- 
sue of  navigational  assertions  and  innocent  passage  was  considered  by  the  ICJ  in 
the  Corfu  Channel  case  which  determined  that  a  British  transit  of  a  naval  squadron 
in  full  battle  readiness  in  order  to  assert  a  right  of  innocent  passage  that  Albania 
had  sought  to  resist  was  justified  as  a  mission  designed  to  affirm  a  right  which  had 
been  unjustly  denied.107  Admittedly,  the  Court  subsequently  condemned  a  later 
British  transit  through  the  channel  to  sweep  for  mines,  however  the  reasoning  em- 
ployed by  the  Court  was  not  predicated  upon  the  fact  of  the  transit,  but  rather,  con- 
centrated upon  the  number  of  ships  and  the  manner  in  which  the  transit  had  been 
undertaken.  Indeed,  the  Court  expressly  noted  that  the  British  government  itself 
admitted  that  the  transit  was  not  innocent  and  thus  the  Court  found  that  the  tran- 
sit was  an  impermissible  intervention.108 

The  broader  implications  of  the  decision  have  been  subject  to  significant  con- 
troversy in  subsequent  years.  While  it  may  be  fairly  argued  whether  the  ratio  of  the 
decision  is  broad  enough  to  permit  a  general  exception  to  the  prohibition  on  the 
use  of  force,  there  does  seem  to  be  a  consensus  as  to  the  significance  of  the  ability  to 
affirm  rights  operationally  in  the  maritime  context.  Thus,  the  eminent  publicist 
Ian  Brownlie,  who  rejected  any  general  implication  of  the  decision,  did  feel  con- 
strained to  acknowledge  the  import  of  the  decision  as  to  its  facts,  namely  the  right 
to  use  force  to  assert  a  right  unjustly  denied  in  the  maritime  context.109  As  such, 
even  on  its  narrowest  construction,  the  case  stands  as  a  specific  precedent  in  sup- 
port of  the  legality  of  the  Feedom  of  Navigation  Program,  at  least  in  circumstances 
where  "innocent  passage"  is  sought  to  be  unlawfully  denied. 

The  issue  received  indirect  consideration  some  40  years  following  the  delivery  of  the 
judgment  in  the  Corfu  Channel  case,  in  the  1986  decision  of  the  ICJ  in  the  Nicaragua 
case.1 10  The  decision  of  the  Court  in  the  Nicaragua  case  reviewed  contemporary  juris- 
prudence concerning  the  prohibition  against  intervention  under  international  law  that 
has  significance  for  assessing  the  confrontational  nature  of  navigational  assertions. 

The  majority  opinion  of  the  Court  in  the  Nicaragua  decision  confirmed  that  the 
principle  of  "non-intervention"  did  relate  to  the  question  of  the  use  of  force.  Signifi- 
cantly, the  Court  determined  that  the  central  criterion  for  determining  whether  this 
prohibition  had  been  violated  turned  upon  a  determination  of  the  existence  of  "co- 
ercion."1'  '  The  Court's  assessment  of  this  concept  was  somewhat  holistic  in  seeking 
an  objective  assessment  of  whether  the  internal  choices  made  by  a  State  had  been 

248 


Dale  Stephens 

influenced  as  a  result  of  "coercion"  by  another  State.112  Such  a  formulation  may  in- 
deed have  an  impact  upon  a  navigational  assertion  and  thus  come  within  the  terms 
of  objections  raised  by  Aceves  in  circumstances  where  it  is  the  intention  of  the 
transiting  State  to  "coerce"  or  intimidate  a  State  to  adopt  behavior  that  it  otherwise 
would  not  freely  adopt.  Such  an  interpretation  does  not  arise,  however,  in  the  con- 
text of  a  "normal"  freedom  of  navigation  assertion.  The  purpose  of  such  an  assertion 
is  not  to  intervene  in  the  manner  contemplated  by  the  Court  where  it  spoke  of  spon- 
soring armed  bands  or  financing  internal  disruption.113  The  interplay  of  maritime 
and  coastal  States,  particularly  those  that  have  ratified  the  1982  LOS  Convention,  is 
quite  the  opposite,  relating  to  an  "external"  settlement  of  rights  concerning  maritime 
areas.  This  is  not  to  suggest  that  the  maritime  State  should  not  be  cognizant  of  inter- 
nal political  machinations  at  the  time  of  a  programmed  transit,  as  such  an  assertion 
may  have  a  destabilizing  significance  in  the  context  of  specific  internal  fractures.  It  is 
contended  though  that  such  circumstances  are  not  typical.  Moreover,  where  a  State 
does  have  internal  concerns  regarding  security  issues,  it  may  (if  a  party  to  the  1982 
LOS  Convention)  temporarily  and  legitimately  suspend  all  innocent  passage 
through  its  territorial  sea  on  a  non-discriminatory  basis.114 

The  criticisms  raised  as  to  the  inherently  threatening  behavior  of  a  navigational 
assertion  are  imprecise.  This  was  particularly  reinforced  in  the  Nicaragua  case 
where  the  majority  opinion  determined  not  only  that  innocent  passage  was  a  well 
established  right  of  customary  international  law,  but  so  were  other  navigational 
freedoms  extending  beyond  the  territorial  sea.  Indeed,  the  Court  in  that  instance 
determined  that  the  conduct  of  US  naval  exercises  just  beyond  the  territorial  sea 
limits  of  Nicaragua  was  not,  in  itself,  a  violation  of  the  prohibition  of  the  threat  to 
use  force  which  Nicaragua  had  expressly  contended,  but  rather  was  consistent  with 
the  exercise  of  maritime  freedoms.115 

Abuse  of  Rights 

A  further  criticism  of  the  Freedom  of  Navigation  Program  relates  to  the  con- 
frontational nature  of  such  assertions  as  potentially  constituting  an  "abuse  of 
right"  contrary  to  both  Article  300  of  the  1982  LOS  Convention116  and  more  gener- 
ally under  "general  principles"  of  international  law,  of  a  type  recognized  under  Ar- 
ticle 38(1  )(c)  of  the  Statute  of  the  International  Court  of  Justice.117 

The  general  principle  of  "abuse  of  rights"  may  reasonably  be  regarded  as  having 
a  settled  place  within  the  doctrine  of  sources  comprising  international  law.118  The 
principle  essentially  seeks  to  restrict  a  State  from  exercising  its  rights  in  a  manner 
which  significantly  impedes  the  enjoyment  by  other  States  of  their  own  rights  or  is 
exercised  for  an  end  different  from  that  which  the  right  was  created  in  a  manner 

249 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

that  causes  injury  to  another  State.  The  doctrine  is  an  essential  one  to  the  function- 
ing of  international  legal  society  if  the  notion  of  sovereignty  is  not  to  be  regarded  as 
being  absolute.  In  his  separate  opinion  in  the  Corfu  Channel  case,  Judge  Alvarez 
was  able  to  give  judicial  expression  to  his  theory  of  disaggregated  sovereignty  that 
he  had  been  advocating  for  some  twenty  years.  Hence,  if  sovereignty  is  to  be  ac- 
cepted as  a  "bundle"  of  rights  and  duties,  then  a  method  for  their  reconciliation 
among  States  was  essential.  Premised  upon  a  foundation  of  "social  justice,"  Judge 
Alvarez  advanced  a  theory  of  limitation  on  the  "absolute  nature"  of  the  exercise  of 
untrammeled  sovereignty  and  considered  that  such  an  approach  was  mandated  by 
the  authority  of  the  United  Nations  Charter.119 

In  the  context  of  navigational  freedom,  it  is  unclear  how  the  doctrine  of  "abuse 
of  rights"  might  apply  in  a  manner  to  impinge  the  assertion  of  navigational  rights 
prescribed  by  the  1982  LOS  Convention  and  reflected  in  customary  international 
law.  As  has  been  outlined  above,  the  jurisprudence  of  the  ICJ  has  provided  a  frame- 
work for  testing  whether  such  transits  could  violate  more  general  principles  of  in- 
ternational law  concerning  the  prohibition  on  intervention  which  is  determined 
on  the  basis  of  coercion.  This  element  is  singularly  lacking  in  the  context  of  the 
simple  exercise  of  innocent  passage  or  transit  passage  provided  the  criteria  for  such 
methods  of  passage  are  observed.  Ironically,  during  the  drafting  of  the  predecessor 
Article  38  of  the  Statute  of  the  Permanent  Court  of  International  Justice  in  1920,  it 
has  been  noted  that  the  Italian  commissioner  to  the  negotiations  expressly  consid- 
ered that  the  doctrine  of  "abuse  of  rights"  had  its  place  in  the  context  of  ensuring 
that  coastal  States  actually  recognized  the  principle  of  freedom  of  the  seas.120  It  has 
been  observed  that  the  doctrine  of  "abuse  of  rights"  is  based  upon  conceptions  of 
reasonableness  in  the  exercise  of  rights.121  In  that  regard,  it  seems  to  be  a  remark- 
able invocation  of  the  doctrine  to  assert  the  legality  of  actions  designed  to  extend 
the  breadth  of  maritime  zones  beyond  what  the  1982  LOS  Convention  prescribes 
or  to  otherwise  impose  unilateral  conditions  on  the  exercise  of  navigational  rights 
contrary  to  the  terms  of  the  Convention.  While  positivist  theory  does  not  ascribe  a 
formal  hierarchy  among  sources  of  international  law,122  principles  of  good  faith 
(pacta  sunt  servanda)  in  accepting  the  balance  of  rights  and  duties  under  the  1982 
LOS  Convention  surely  dictate  that  the  exercise  of  navigational  rights  in  accor- 
dance with  the  tenor  of  the  Convention  must  be  accepted  and  cannot  of  themselves 
be  a  violation  of  the  principle  of  "abuse  of  rights." 

Conclusion 

It  is  possibly  an  irresistible  human  impulse  that  compels  States  to  be  extremely  pro- 
tective about  the  sanctity  of  their  maritime  areas.  Most  assuredly  what  is  "one  man's 

250 


Dale  Stephens 

distant  water  is  another  man's  maritime  backyard"123  and  this  has  created  what  one 
author  has  termed  "psycho-legal  boundaries"124  in  popular  perception.  Such  a  senti- 
ment does  not  accord  with  modern  legal  analysis  of  the  nature  of  the  "sovereignty" 
exercisable  in  offshore  areas,  which  is  of  a  disaggregated  kind  and  which  is  necessarily 
limited  by  equally  compelling  rights  of  navigational  freedom.  This  historical  doc- 
trinal struggle  between  freedom  of  the  seas  and  protection  of  sovereign  interests  has 
found  its  most  recent  incantation  within  the  terms  of  the  1982  LOS  Convention  and 
supporting,  indeed  largely  identical,  customary  international  law. 

The  1982  LOS  Convention  does  reflect  the  necessary  balance  of  coastal  and 
maritime  interests  throughout  its  composition.  It  provides  for  an  extended  sover- 
eign range  for  coastal  States  through  their  adjacent  maritime  areas,  yet  preserves 
the  necessary  freedoms  sought  by  maritime  States  to  traverse  these  areas,  thus 
achieving  the  economic  and  security  priorities  that  were  necessary  for  such  States. 
The  entry  into  force  of  the  1982  LOS  Convention  does  provide  a  level  of  certainty 
for  the  realization  of  goals,  yet  notwithstanding  high  hopes125  on  the  normative  po- 
tential of  the  Convention,  it  was  never  going  to  be  the  last  word  on  the  reconcilia- 
tion of  interests.126  As  a  result  of  both  the  ambiguity  within  the  terms  of  the 
Convention  and  the  determination  of  some  States  to  press  claims  that  are  plainly 
contrary  to  its  terms,  it  is  necessary  for  those  relying  upon  the  integrity  of  lawful 
rights  of  free  navigation  to  demonstrate  an  equal  resolve.  The  operational  aspect  of 
the  Freedom  of  Navigation  Program  has  its  place,  indeed  as  has  been  argued  in  this 
paper,  its  critical  place  in  the  dynamic  of  international  legal  rule  determination. 
The  Program  draws  considerable  support  from  ICJ  jurisprudence  and  has  been 
successful  in  ensuring  conformity  to  legal  standards.127  It  is  ironic  that  interna- 
tional law  is  sometimes  derided  as  being  too  ephemeral  for  realist  approaches  to  in- 
ternational relations  theory,  yet  the  operational  assertion  aspect  of  the  Freedom  of 
Navigation  Program  reflects  the  very  vibrancy  of  international  legal  discourse  and 
ultimately  is  a  testament  to  the  power  of  the  law. 

Notes 

1 .  Commander  Dale  Stephens  is  a  Legal  Officer  in  the  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  Defense  Force,  or  the  Royal  Australian  Navy. 

2.  1982  United  Nations  Convention  on  the  Law  of  the  Sea,  Montego  Bay,  December  10,  1982, 
UN  Doc.  A/CONF.62/122  (1982),  reprinted  in  21  INTERNATIONAL  LEGAL  MATERIALS  1261 
[hereinafter  1982  LOS  Convention]. 

3.  David  Kennedy,  When  Renewal  Repeats:  Thinking  Against  The  Box,  32  NEW  YORK 
University  Journal  of  international  Law  and  Policy  335, 389  (2000). 

4.  David  Kennedy,  International  Legal  Structures  204  (1987). 


251 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

5.  Convention  on  Fishing  and  Conservation  of  the  Living  Resources  of  the  High  Seas,  Geneva, 
Apr.  29,  1958,  559  U.N.T.S.  285;  Convention  on  the  Continental  Shelf,  Geneva,  Apr.  29,  1958, 
499  U.N.T.S.  311;  Convention  on  the  High  Seas,  Geneva,  Apr.  29,  1958,  450  U.N.T.S.  82; 
Convention  on  the  Territorial  Sea  and  Contiguous  Zone,  Geneva,  Apr.  29  1958,  516  U.N.T.S. 
205  [hereinafter  1958  Conventions]. 

6.  The  United  States  did  not  sign  the  1982  LOS  Convention  during  the  two-year  period  that  it 
was  open  for  signature  (December  10,  1982  -  December  9,  1984)  and  has  yet  to  accede  to  it.  See 
text  infra  notes  14  and  15. 

7.  William  J.  Aceves,  The  Freedom  of  Navigation  Program:  A  Study  of  the  Relationship  Between 
Law  &  Politics,  9  HASTINGS  INTERNATIONAL  AND  COMPARATIVE  LAW  REVIEW  259, 307  (1996). 

8.  Australia  has  an  informal  policy  of  asserting  lawful  rights  of  navigational  freedom  which  is 
discussed  infra. 

9.  Professor  Wolff  Heintschel  von  Heinegg  notes  "the  member  States  of  the  European  Union, 
even  though  heavily  dependent  upon  free  sea  lanes,  have  shown  but  a  minor  interest  in 
upholding  the  achievements  of  UNCLOS.  Rather,  they  have  relied  upon  the  United  States  and 
the  US  Navy's  Freedom  of  Navigation  program."  Paper,  Current  Legal  Issues  in  Maritime 
Operations,  delivered  at  US  Naval  War  College,  June  26,  2003  (on  file  with  author). 

10.  Aceves,  supra  note  7,  at  264. 

11.  Id.  at  318. 

12.  Id.  at  321. 

13.  As  of  November  13,  2003.  For  current  status  of  State  parties  see  a  consolidated  table  of 
ratifications/accessions,  available  at  http://www.un.org/Depts/los/convention_agreements/ 
convention_overview_convention.htm. 

14.  UN  General  Assembly  Resolution  A/RES/48/263  of  17  Aug  1994  and  accompanying  Annex 
"Agreement  Relating  to  the  Implementation  of  Part  XI  of  the  United  Nations  Convention  on  the  Law 
of  the  Sea  of  10  December  1982,"  reprinted  in  33  INTERNATIONAL  LEGAL  MATERIALS  1309  (1994). 

1 5.  Letter  of  Transmittal  and  Letter  of  Submittal  Relating  to  the  UN  Convention  on  the  Law  of 
the  Sea  and  "Agreement,"  reprinted  in  ANNOTATED  SUPPLEMENT  TO  THE  COMMANDER'S 
Handbook  on  the  Law  of  Naval  Operations  32-42  (A.  R.  Thomas  &  James  C.  Duncan  eds., 
1999)  (Vol.  73,  US  Naval  War  College  International  Law  Studies). 

16.  UNCLOS  III  debates  extended  from  1973  to  1982. 

17.  Richard  J.  Grunawalt ,  Freedom  of  Navigation  in  the  Post-Cold  War  Era,  in  NAVIGATIONAL 
Rights  and  Freedoms  and  the  New  Law  of  the  Sea  16  (Donald  R.  Roth  well  &  Sam 
Bateman  eds.,  2000). 

18.  1958  Conventions,  supra  note  5. 

19.  1982  LOS  Convention,  supra  note  2,  art.  309 

20.  See  George  K.  Walker  &  John  E.  Noyes,  "Words,  Words,  Words":  Definitions  for  the  1982  Law 
of  the  Sea  Convention,  32  CALIFORNIA  WESTERN  INTERNATIONAL  LAW  JOURNAL  343  (2002)  and 
George  K.  Walker  &  John  E.  Noyes,  Definitions  of  the  1 982  Law  of  the  Sea  Convention — Part  II,  33 
California  Western  International  Law  Journal  191  (2003). 

21.  Article  298(1  )(b),  1982  LOS  Convention,  supra  note  2,  permits  exclusion  of  military 
activities  from  compulsory  procedures  entailing  binding  decisions  and  there  is  very  little  specific 
concentration  on  these  activities  within  the  1982  Convention. 

22.  Id.,  art.  2. 

23.  David  Kennedy,  Some  Reflections  on  the  Role  of  Sovereignty  in  the  New  International  Order,  in 
State  Sovereignty:  The  Challenge  of  a  Changing  World,  Proceedings  of  the  1992 
Conference  of  the  Canadian  Council  of  International  Law  236  (1992). 


252 


-        Dale  Stephens 

24.  Henry  Wheaton,  Elements  of  International  Law  17-23  (Richard  Dana  ed.,  8th 
ed.  1866). 

25.  S.S.  Lotus  (France  v  Turkey),  1927  P.C.I.J.  (ser.  A)  No  10. 

26.  Id.  From  an  inter-jurisdictional  perspective,  see  also  Judgment  of  Holmes  J.  in  American 
Banana  Company,  Plff.  Err  v.  United  Fruit  Company,  213  US  347,  353;  29  S.  Ct.  51 1  (1909). 

27.  The  Antelope,  23  US  (10  Wheaton)  66  (1825).  See  also  Corfu  Channel  (Merits)  (U.K.  v. 
Alb.),  1949  I.C.J.  4  (April  19)  (individual  opinion  of  Judge  Alvarez),  at  40-44  [hereinafter  Corfu 
Channel  case] . 

28.  Alejandro  Alvarez,  The  New  International  Law,  15  TRANSACTIONS  OF  THE  GROTIUS 
SOCIETY  35-51  (1929),  whose  views  were  given  greater  legal  import  in  subsequent  decades  upon 
his  election  to  the  International  Court  of  Justice. 

29.  Elisabeth  Mann  Borgese,  Sovereignty  and  the  Law  of  the  Sea,  in  OCEAN  GOVERNANCE: 
STRATEGIES  AND  APPROACHES  FOR  THE  2 1ST  CENTURY  37  (Thomas  A  Mensah  ed.,  1996). 

30.  Hans  Kelsen,  Law  and  Peace  in  International  Relations  72  ( 1942). 

31.  Id. 

32.  Borgese,  supra  note  29. 

33.  Individual  opinion  of  Judge  Alvarez  in  Corfu  Channel  case,  supra  note  27,  at  43. 

34.  See  Alfred  P.  Rubin,  Enforcing  the  Rules  of  International  Law,  34  HARVARD  INTERNATIONAL 
LAW  JOURNAL  149  (1993)  where  the  author  examines  appeals  to  "naturalist"  authority  and 
provides  an  effective  template  of  analysis  in  addressing  arguments  based  upon  this  and  the  other 
traditional  source  category  of  positivism. 

35.  Ken  Booth,  Law,  Force  and  Diplomacy  at  Sea  95  (1985). 

36.  Article  7,  1982  LOS  Convention,  supra  note  2,  provides  general  and  somewhat  subjective 
criteria  for  the  drafting  of  straight  baselines. 

37.  Grunawalt,  supra  note  17,  at  17. 

38.  1982  LOS  Convention,  supra  note  2. 

39.  See  generally  Fisheries  (U.K.  v.  Nor  J,  1951  I.C.J.  1 16. 

40.  Division  for  Ocean  Affairs  and  the  Law  of  the  Sea,  Office  of  Legal  Affairs,  United  Nations, 
The  Law  of  the  Sea:  Practice  of  States  at  the  Time  of  Entry  into  Force  of  the  United  Nations 
Convention  on  the  Law  of  the  Sea,  (United  Nations)  ( 1 994)  [hereinafter  United  Nations  Practice 
of  States]. 

41.  Id.  at  65. 

42.  Id. 

43.  Id.  2X66. 

44.  Id.  at  34. 

45.  Grunawalt,  supra  note  17,  at  17. 

46.  George  Galdorisi  &  Alan  Kaufman,  Military  Activities  in  the  Exclusive  Economic  Zone: 
Prevailing  Uncertainty  and  Defusing  Conflict,  32  CALIFORNIA  WESTERN  INTERNATIONAL  LAW 
JOURNAL  253,  282-283  (2002). 

47.  The  United  States  has  protested  historic  bay  claims  made  by,  inter  alia,  Argentina, 
Australia,  Cambodia,  Canada,  Dominican  Republic,  India,  Italy,  Libya,  Panama,  Russia  and 
Vietnam.  See  Table  Al-4,  "Claimed  Historic  Bays"  in  ANNOTATED  SUPPLEMENT,  supra  note 
15,  at  96. 

48.  As  of  1997,  there  were  15  States  that  claimed  a  territorial  sea  in  excess  of  12  nautical  miles. 
See  Table  Al-6  "The  Expansion  of  Territorial  Sea  Claims"  in  id.  at  100. 

49.  Donald  R.  Rothwell,  Innocent  Passage  in  the  Territorial  Sea:  The  UNCLOS  Regime  and  Asia 
Pacific  State  Practice,  in  NAVIGATIONAL  RIGHTS  AND  FREEDOMS,  supra  note  17,  at  90-91. 


253 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

50.  Yemen,  for  example,  has  sought  to  provide  conditions  for  transit  of  the  Bab-el-Mandeb 
strait  including  prior  authorization.  See  United  Nations  Practice  of  States,  supra  note  40,  at  103. 

51.  Indonesian  Government  Regulations  Numbers  36  and  37  of  2002  which  are  titled 
respectively,  "Rights  and  Obligations  of  Foreign  Vessels  When  Exercising  An  Innocent  Passage 
Via  the  Indonesian  Waters"  and  "Rights  and  Obligations  of  Foreign  Ships  and  Aircraft  When 
Exercising  Right  of  Archipelagic  Sea  Lane  Passage  Via  The  Established  Archipelagic  Sea  Lanes" 
(translated  copies  of  the  Indonesian  legislation  in  the  author's  files). 

52.  Article  2  of  Regulation  36,  id.,  provides: 

( 1 )  All  foreign  vessels  may  exercise  the  right  to  Innocent  Passage  via  the  Territorial 
Waters  and  Archipelago  Waters  for  the  purpose  of  passing  from  a  part  of  the  open  sea 
or  exclusive  economic  zone  to  the  other  part  of  the  open  sea  or  exclusive  economic 

zone (2)  The  exercise  of  Innocent  Passage  Right  as  referred  to  paragraph  ( 1 )  shall  be 

carried  out  only  by  using  the  Sea  Lanes  commonly  used  for  international  sailing  in 
compliance  to  Article  11. 

Article  1 1  details  a  number  of  north-south  routes  only. 

53.  Article  3  of  Regulation  37,  id.,  provides: 

( 1 )  The  Right  of  Archipelagic  Sea  Lane  passage  . . .  can  be  exercised  via  a  sea  lane  or  via 
the  air  above  a  sea  lane  which  has  been  described  as  an  archipelagic  sea  lane  for  the 
purpose  of  the  Right  of  Archipelagic  Sea  Lane  Passage  as  described  in  paragraph  1 1.  (2) 
In  accordance  with  this  regulation,  the  Right  of  Archipelagic  Sea  Lane  Passage  can  be 
exercised  on  other  Indonesian  waters  after  those  waters  have  been  established  as 
archipelagic  sea  lanes  which  can  be  used  for  the  purpose  of  Right  of  Archipelagic  Sea 
Lane  Passage." 

Article  1 1  of  the  Regulation  designates  only  three  main  north-south  sea  lanes. 

54.  1982  LOS  Convention,  supra  note  2,  art.  52, 

55.  Resolution  MSC.7 1(69) (adopted  on  May  19,  1998)— Article  6.5 

56.  Id.,  art.  6.7. 

57.  The  second  paragraph  of  the  Explanatory  Note  provides  "Although  foreign  vessels  enjoy 
innocent  passage  ...  in  compliance  to  the  provisions  of  the  United  Nations  Convention 
concerning  Law  of  the  Sea  of  1982,  Indonesia  reserves  the  right  to  determine  the  sea  lanes  that 
may  be  used  by  such  foreign  vessels  to  exercise  innocent  passage." 

58.  Grunawalt,  supra  note  17,  at  15. 

59.  Id. 

60.  Bernard  H.  Oxman,  Panel  on  the  Law  of  Ocean  Uses:  United  States  Interests  in  the  Law  of 
the  Sea  Convention,  88  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  167,  168  (1994). 

61.  Dennis  Mandsager,  David  Grimord  &  Patricia  Battin,  Cooperative  Engagement  and  the 
Ocean:  Policy  and  Process,  in  OCEAN  GOVERNANCE,  supra  note  29,  at  39. 

62.  Grunawalt,  supra  note  17,  at  11. 

63.  Id.  at  17. 

64.  The  RIMPAC  biennial  military  exercise  involves  over  20,000  individual  participants  from 
the  Pacific  Rim  region,  including  from  Australia,  Canada,  Chile,  Japan,  South  Korea  and  the 
United  States. 

65.  For  example,  the  Combined  Exercise  Agreement  for  the  RIMPAC  Exercise  includes  Exercise 
ROE  that  are  reviewed  by  participating  legal  representatives  for  ongoing  accuracy  and  are 
designed  to  be  reflective  of  the  navigational  freedoms  and  obligations  existing  under  the  1982 
LOS  Convention  and  at  customary  law. 

66.  Grunawalt,  supra  note  17,  at  18. 


254 


Dale  Stephens 

67.  Id. 

68.  Article  2(4)  of  the  Charter  of  the  United  Nations,  San  Francisco,  June  26,  1945,  1  U.N.T.S. 
xvi,  [hereinafter  UN  Charter]  provides  "All  members  shall  refrain  in  their  international  relations 
from  the  threat  or  use  of  force  against  the  territorial  integrity  or  political  independence  of  any 
state,  or  in  any  manner  inconsistent  with  the  Purposes  of  the  United  Nations." 

69.  Id.,  arts.  2(3)  and  2(7). 

70.  "United  States  Ocean  Policy,"  Statement  by  the  President,  March  10,  1983: 

[T]he  Convention  also  contains  provisions  with  respect  to  traditional  uses  of  the 
oceans  which  generally  confirm  existing  maritime  law ...  the  United  States  will  exercise 
and  assert  its  navigation  and  overflight  rights  and  freedoms  ...  in  a  manner  that  is 
consistent  with  the  balance  of  interests  reflected  in  the  Convention. 
Reprinted  in  22  INTERNATIONAL  LEGAL  MATERIALS  464  (1983). 

71.  Id. 

72.  Grunawalt ,  supra  note  17,  at  15. 

73.  Id. 

74.  See  generally,  Fia  Cumming,  The  Day  Our  Boys  Stared  Down  China,  SYDNEY  SUN  HERALD, 
Apr.  29, 2001,  at  7  and  also  Tom  Allard,  PM  Defends  "Innocence"  Of  Ships  In  China  Row,  SYDNEY 
MORNING  HERALD,  Apr.  30,  2001,  at  5. 

75.  The  Statute  of  the  International  Court  of  Justice  is  annexed  to  the  UN  Charter,  supra  note  68. 

76.  Michael  Akehurst,  Custom  as  a  Source  of  International  Law,  47  BRITISH  YEAR  BOOK  OF 
INTERNATIONAL  LAW  1,  36-37  (1974-75). 

77.  Military  and  Paramilitary  Activities  (Nicar.  v.  US),  1986  I.C.J.  14  (June  27),  at  111 
[hereinafter  Nicaragua  case]. 

78.  Id. 

79.  Id. 

80.  Akehurst,  supra  note  76,  at  19. 

81.  Id. 

82.  North  Sea  Continental  Shelf  (FRG  v.  Den.,  FRG  v.  Neth.),  1969  I.C.J.  3  (Feb.  20),  at  42-43, 
[hereinafter  North  Sea  Continental  Shelf  case]. 

83.  E.  D.  Brown,  The  International  Law  of  the  Sea  67-68  (1994)  details  that  late  in  the 
UNCLOS  III  deliberations  two  amendments  were  proposed,  one  explicit  on  this  point  and  the 
other  more  indirect.  Both  were  withdrawn. 

84.  The  2000  Final  Report  of  the  Committee  of  the  International  Law  Association's  Committee 
on  Formation  of  Customary  (General)  International  Law  does  accept  that  legal  "principles"  can 
constitute  customary  rules  but  that  there  needs  to  be  evidence  of  a  high  degree  of  constant  and 
uniform  practice  (at  8)  [hereinafter  ILA  Report]. 

85.  North  Sea  Continental  Shelf  case,  supra  note  82,  at  42-43. 

86.  Akehurst,  supra  note  76,  at  21. 

87.  Id.  at  24;  ILA  Report,  supra  note  84,  at  27-28. 

88.  ILA  Report,  supra  note  84,  at  10. 

89.  Anthony  A.  D'amato,  The  Concept  of  Custom  in  International  Law  88  (1971). 

90.  Leo  Gross,  Essays  on  International  Law  and  Organization  (Vol.  l )  393  (1984)  notes 
that  "auto  interpretation"  is  a  fact  of  international  discourse  and  as  there  exists  "no  formal, 
institutionalized  procedure  to  declare  or  formulate  the  will  of  the  family  of  nations"  a  diffuse 
mechanism  of  customary  norm  assertion,  identification  and  acceptance  is  a  necessary  feature  of 
the  decentralized  character  of  the  international  legal  order. 

91.  Akehurst,  supra  note  76,  at  53. 


255 


The  Legal  Efficacy  of  Freedom  of  Navigation  Assertions 

92.  HCM  Charlesworth,  Customary  International  Law  and  the  Nicaragua  Case,  1 1  AUSTRALIAN 
Year  Book  of  International  Law  28  (1991 ). 

93.  ILA  Report,  supra  note  84,  at  5. 

94.  Mat  28. 

95.  Prosper  Weil,  Towards  Relative  Normativity  in  International  Law?  77  AMERICAN  JOURNAL 
of  International  Law  413  (1983). 

96.  Shekhar  Ghosh,  The  Legal  Regime  of  Innocent  Passage  Through  the  Territorial  Sea,  20  INDIAN 
Journal  of  International  Law  216, 228  (1980). 

97.  Convention  on  the  Law  of  Treaties,Vienna,  May  23,  1969,  1155  U.N.T.S.  331,  [hereinafter 
Vienna  Convention]. 

98.  Id. 

99.  Rothwell,  supra  note  49,  at  80. 

100.  Ghosh,  supra  note  96,  at  238. 

101.  Rothwell,  supra  note  49,  at  75. 

102.  Vienna  Convention,  supra  note  97. 

103.  Aceves,  supra  note  7. 

104.  Mat  324. 

105.  Id.  at  323. 

106.  Id.  at  309. 

107.  Corfu  Channel  case,  supra  note  27,  at  30. 

108.  Mat  33-35. 

109.  Ian  Brownlie,  International  Law  and  the  Use  of  Force  by  States  287  (1963).  See 
also  the  general  discussion  of  the  competing  academic  arguments  in  Dale  Stephens,  The  Impact 
of  the  1982  Law  of  the  Sea  Convention  on  Peacetime  Naval/ Military  Operations,  29  CALIFORNIA 
Western  International  Law  Journal  283, 295-296  (1999). 

1 10.  Nicaragua  case,  supra  note  77. 

111.  Id.  at  107-8. 

112.  Id.  See  also  Stephens,  supra  note  109,  at  298-9. 

113.  Id. 

1 14.  1983  LOS  Convention,  supra  note  2,  art.  25(3). 

1 15.  Nicaragua  case,  supra  note  77,  at  118. 

116.  1982  LOS  Convention,  supra  note  2.  Article  300  mandates  that  States  Parties  ".  .  .  shall 
exercise  the  rights,  jurisdiction  and  freedoms  recognized  in  this  Convention  in  a  manner  which 
would  not  constitute  an  abuse  of  right." 

117.  Aceves,  supra  note  7,  at  323. 

118.  Michael  Byers,  Abuse  of  Rights:  An  Old  Principle,  New  Age,  47  McGlLL  LAW  JOURNAL  389, 
431  (2002).  See  International  Law:  Cases  and  Materials  129-30  (Lori  Damrosch  et  al.  eds., 
4th  ed.  2001). 

1 19.  Individual  Opinion  of  Judge  Alvarez,  Corfu  Channel  case,  supra  note  27,  at  40. 

120.  Byers,  supra  note  1 18,  at  402. 

121.  M.  at  411. 

122.  International  Law,  supra  note  1 18,  at  107. 

123.  BOOTH,  supra  note  35,  at  44. 

124.  Mat  117. 

125.  George  V.  Galdorisi  &  Kevin  R.  Vienna,  Beyond  the  Law  of  the  Sea,  New 
Directions  for  US  Oceans  Policy  85  (1997). 

1 26.  BOOTH,  supra  note  35,  at  88. 

127.  Susan  Biniaz,  The  US  Freedom  of  Navigation  Program,  in  THE  LAW  OF  THE  SEA:  NEW 
WORLDS,  NEW  DISCOVERIES  59  (Edward  L.  Miles  &  Tullio  Treves  eds.,  1993). 

256 


XIII 


Military  Activities  in  the 

Exclusive  Economic  Zone: 

Preventing  Uncertainty  and  Defusing  Conflict 


Hyun-Soo  Kim1 


Coastal  States  have  jurisdiction  over  the  establishment  of  artificial  islands,  in- 
stallations and  structures  under  the  1982  United  Nations  Convention  on 
the  Law  of  the  Sea  (hereinafter  the  LOS  Convention).2  On  the  other  hand,  foreign 
States  enjoy  freedom  of  navigation,  freedom  of  overflight,  and  freedom  to  lay  sub- 
marine cables  and  pipelines  in  the  exclusive  economic  zone  (EEZ)  of  coastal 
States.3  The  contemporary  issue  in  the  LOS  Convention  is  whether  foreign  States 
have  the  right  to  conduct  military  activities,  including  naval  task  force  maneuver- 
ing, flight  operations,  military  exercises,  surveillance,  intelligence  gathering,  and 
weapons  testing  or  firing,  in  coastal  States'  EEZs. 

It  is  argued  that  the  foreign  States'  military  and  missile  exercises  may  result  in  vi- 
olating the  LOS  Convention  in  two  fundamental  respects:  first,  it  will  interfere  with 
reasonable  use  of  the  high  seas  by  others;  and,  second,  it  will  violate  the  prohibition 
against  use  of  the  high  seas  for  non-peaceful  purposes.4  Thus,  foreign  States'  mili- 
tary activities  in  the  EEZs  of  coastal  States  would  be  inconsistent  with  the  principles 
and  norms  governing  States'  military  actions  at  sea  under  international  conven- 
tions or  customary  law.5 


Military  Activities  in  the  Exclusive  Economic  Zone 

As  a  result,  the  legal  question  concerning  military  activities  conducted  at  sea  has 
become  much  more  complicated  since  the  establishment  of  the  legal  regime  of  the 
EEZ.  This  is  so  mainly  because  Article  58  of  the  LOS  Convention  provides  that: 

1.  In  the  exclusive  economic  zone,  all  States,  whether  coastal  or  land-locked,  enjoy, 
subject  to  the  relevant  provisions  of  this  Convention,  the  freedoms  referred  to  in  article 
87  of  navigation  and  overflight  and  of  the  laying  of  submarine  cables  and  pipelines,  and 
other  internationally  lawful  uses  of  the  sea  related  to  these  freedoms,  such  as  those 
associated  with  the  operation  of  ships,  aircraft  and  submarine  cables  and  pipelines,  and 
compatible  with  the  other  provisions  of  this  Convention.  (Emphasis  added) 

2.  Articles  88  to  1 1 5  and  other  pertinent  rules  of  international  law  apply  to  the  exclusive 
economic  zone  in  so  far  as  they  are  not  incompatible  with  this  Part. 

During  the  negotiation  of  the  LOS  Convention,  agreement  on  the  above  itali- 
cized wording  was  perceived  as  vital  by  the  maritime  powers  because  in  their  inter- 
pretation it  implied  the  legality  of  naval  maneuvers  in  a  coastal  State's  EEZ  as  an 
activity  "associated  with  the  operation  of  ships."  The  cross-reference  to  Article  87 
is  also  important  to  the  maritime  nations  because  it  lists  the  major  freedoms  of  the 
high  seas,  which  include  freedom  of  navigation,  freedom  of  overflight,  and  free- 
dom to  lay  submarine  cables  and  pipelines.  Accordingly,  other  States'  freedoms  in 
a  coastal  State's  EEZ  are  the  same  as  those  in  the  high  seas.  Moreover,  the  phrase 
"and  other  internationally  lawful  uses  of  the  sea  related  to  these  freedoms"  implies 
that  other  States  may  enjoy  other,  unspecified  freedoms  in  a  coastal  State's  EEZ  in 
addition  to  the  ones  listed  in  Article  58.1. 

Furthermore,  Article  58.2  makes  a  general  cross-reference  to  Articles  88-115 
and  other  pertinent  rules  of  international  law  as  applying  to  the  EEZ  in  so  far  as 
they  are  not  incompatible  with  Part  V  (the  EEZ  articles)  of  the  LOS  Convention. 
However,  some  coastal  States  interpreted  Article  58  much  more  narrowly,  arguing 
that  it  does  not  authorize  other  States  to  carry  out  military  activities  in  a  coastal 
State's  EEZ,  and  that  the  consent  of  the  coastal  State  is  required  before  conducting 
such  activities.6 

The  question  of  whether  a  foreign  country  has  the  right  to  conduct  military  ac- 
tivities in  a  coastal  State's  EEZ  was  a  controversial  issue  in  the  negotiations  of  the 
text  of  the  LOS  Convention  and  continues  to  be  in  State  practice.7  The  maritime 
powers  argued  for  a  broad  range  of  military  activities  consonant  with  traditional 
high  seas  freedoms.  Consequently,  they  believe  the  right  to  naval  maneuvers  in  the 
EEZ  of  a  coastal  State  is  implied  in  the  freedom  of  navigation  and  overflight.8  That 
is,  they  interpret  the  phrase  "other  internationally  lawful  uses  of  the  sea  related  to 
these  freedoms"  contained  in  Article  58.1  as  including  military  activities  such  as 


258 


Hyun-Soo  Kim 


task  force  maneuvering,  flight  operations,  military  exercises,  naval  surveys,  intelli- 
gence gathering,  and  weapons  testing  and  firing. 

During  the  negotiations,  some  States9  expressed  strong  opposition  to  military 
activities10  in  the  EEZ  because  such  activities  can  result  in  threats  to  coastal  States. 
However,  nowhere  in  the  LOS  Convention  does  it  clearly  state  whether  a  third 
State  may  or  may  not  conduct  military  activities  in  the  EEZ  of  a  coastal  State.11  Ab- 
sent clarity  in  the  text  of  the  Convention,  resolution  of  this  issue  is  very  compli- 
cated and  controversial.  Despite  the  apparent  ambiguity,  it  seems  that  the  general 
understanding  of  the  text  of  the  LOS  Convention  would  permit  such  activities  to 
be  conducted.12 

Nevertheless,  due  to  the  ambiguity  found  in  Article  59,  and  the  absence  of  any 
compulsory  judicial  settlement  of  disputes  concerning  military  activities  in  the 
EEZ,  it  is  very  difficult  to  render  an  authoritative  legal  interpretation  whenever  dis- 
putes arise.  The  question  of  whether  naval  maneuvers  and  exercises  within  a 
coastal  State's  EEZ  are  permissible  under  international  law  will  remain.  No  author- 
itative legal  rulings  will  be  made  unless  actual  international  disputes  arise,  and  the 
parties  contest  the  issue  before  the  International  Court  of  Justice  or  the  Interna- 
tional Tribunal  for  the  Law  of  the  Sea. 

The  question  concerning  the  legality  of  laying  military- related  submarine  ca- 
bles, pipelines,  and/or  devices  by  a  State  in  another  State's  EEZ  is  also  subject  to  dif- 
ferent interpretations  of,  and  application  to,  the  relevant  provisions  of  the  LOS 
Convention.  The  coastal  State  should  have  the  exclusive  right  in  its  EEZ  to  con- 
struct, and  to  authorize  and  regulate  the  construction,  operation  and  use  of  artifi- 
cial islands,  installations  and  structures  for  economic  purposes,  and  installations 
and  structures  which  may  interfere  with  the  exercise  of  the  right  of  the  coastal  State 
in  the  EEZ.  Accordingly,  other  States  should  obtain  consent  before  laying  military- 
related  submarine  cables,  pipelines,  and/or  devices  in  the  EEZ  of  the  coastal  State. 
Therefore,  the  subsequent  practices  of  States  will  become  particularly  important 
for  determining  the  proper  interpretation  of  the  LOS  Convention's  provisions. 

Some  States  argued  that  "the  right  of  the  coastal  State  to  build  and  to  authorize 
the  construction,  operation  and  the  use  of  installations  and  structures  in  the  EEZ 
and  on  the  continental  shelf  is  limited  only  to  the  categories  of  such  installations 
and  structures  as  listed  in  Article  60  of  the  LOS  Convention."  Accordingly,  they  ar- 
gue that  it  is  not  necessary  to  obtain  consent  from  a  coastal  State  if  another  State  in- 
tends to  lay  military- related  submarine  cables,  pipelines,  and/or  devices  in  the  EEZ 
or  on  the  continental  shelf  of  the  coastal  State.  It  should  be  remembered  that  under 
Article  58.3  "other"  States,  when  exercising  their  rights  in  the  EEZ  of  a  coastal  State, 
are  required  to  "have  due  regard  to  the  rights . . .  of  the  coastal  State"  in  accordance 
with  the  provisions  of  the  LOS  Convention.  If  the  military  activities  conducted  by  a 


259 


Military  Activities  in  the  Exclusive  Economic  Zone 

foreign  country  in  a  coastal  State's  EEZ  interfere  with  the  lawful  resource  rights  and 
interests  of  that  coastal  State,  the  latter's  rights  and  interests  would  prevail. 

In  the  future,  no  matter  how  international  disputes  concerning  the  issue  of  na- 
val maneuvers  and  other  military  activities  conducted  in  the  EEZ  of  a  coastal  State 
might  be  generated,  or  how  the  disputes  are  settled,  the  possibility  of  this  kind  of 
dispute  arising  could  be  avoided  entirely  or  at  least  reduced.  This  is  possible  if  the 
State  conducting  military  activities  in  the  coastal  State's  EEZ  shows  "reasonable  re- 
gard" for  the  interests  of  that  coastal  State  and  other  States.13  In  other  words,  if  the 
coastal  State's  rights  and  interests  in  relation  to  exploration,  exploitation,  conser- 
vation and  management  of  natural  resources;  the  establishment  and  use  of  artifi- 
cial islands,  installations  and  structures;  marine  scientific  research;  the  protection 
and  preservation  of  the  marine  environment  in  its  EEZ;  and  other  States'  rights  and 
interests  in  the  coastal  State's  EEZ,  such  as  freedoms  of  navigation  and  overflight 
and  freedom  to  lay  submarine  cables  and  pipelines,14  are  not  affected  by  the  mili- 
tary activities  of  another  State,  these  kinds  of  military  activities  are  permissible  un- 
der the  LOS  Convention. 

Article  58  of  the  LOS  Convention  should  be  applied  in  order  to  answer  the  ques- 
tion of  whether  foreign  States  have  the  right,  under  international  law,  to  conduct 
military- related  activities  in  the  coastal  State's  EEZ.  The  answer  will  depend  on  the 
nature  and  purposes  of  the  activities.  Because  the  operation  of  foreign  States'  intel- 
ligence gathering  ships  in  the  coastal  States'  EEZ  involve  no  use  of  weapons  and  ex- 
plosives, and  is  thus  considered  to  be  "associated  with  the  operation  of  the  ships"  in 
exercising  freedom  of  navigation  in  the  coastal  State's  EEZ,  it  can  hardly  be  main- 
tained that  the  foreign  States'  activities  violate  international  law.  As  a  matter  of  law, 
if  "due  regard"  indeed  has  been  given  to  the  coastal  States'  rights  and  interests,  the 
foreign  States  do  have  the  right  to  conduct  military  activities,  including  weapons 
testing  or  firing,  in  the  coastal  State's  EEZ.  Of  course,  if  any  live-fire  military  exer- 
cises are  to  be  conducted,  the  establishment  of  a  warning  or  exclusion  zone  to  pro- 
tect others  using  the  affected  ocean  area  is  required  because  engaging  in  any  live- 
fire  military  exercises  creates  dangers.15 

In  addition,  military  intelligence-gathering  is  different,  because  it  is  not  related 
to  the  construction,  operation  and  the  use  of  installations  in  the  EEZ  and  also 
would  not  normally  be  published  or  disseminated.  Intelligence-gathering  activities 
can  also  take  many  forms,  and  activities  that  involve  "drilling  into  the  continental 
shelf,  the  use  of  explosives,  or  the  introduction  of  harmful  substances  into  the  ma- 
rine environment"16  would  certainly  implicate  concerns  of  the  coastal  State  and 
should  require  its  consent. 

In  light  of  the  foregoing  analysis,  foreign  States  are  allowed,  under  international 
law,  to  conduct  military  activities  in  the  EEZ,  provided  that  the  coastal  State's 

260 


Hyun-Soo  Kim 

resource  rights  and  interests  are  not  affected  by  the  activities,  and  provided  that  the 
purpose  for  conducting  the  activities  is  not  to  intimidate  the  coastal  States  by  threat 
or  use  of  force.  However,  it  would  be  considered  a  violation  of  international  law  if 
foreign  States  were  to  fire  missiles  into  a  water  area  in  the  coastal  State's  EEZ  without 
giving  due  regard  to  the  resource  rights  and  interests  of  the  coastal  States  and/or  if  it 
affected  other  States'  freedoms  of  navigation  and  overflight  in  the  coastal  State's  EEZ, 
or  had  an  adverse  impact  on  other  States'  national  interests  concerning  maintenance 
of  peace  and  stability  in  the  coastal  States'  region.  In  these  circumstances,  the  legality 
of  the  foreign  State's  military  activities  should  be  examined  in  accordance  with  the 
relevant  provisions  of  the  LOS  Convention,  in  particular  Articles  58  and  301,  and 
other  international  legal  instruments,  such  as  the  Charter  of  the  United  Nations. 

In  conclusion,  even  if  all  States  have  navigational  and  overflight  rights  in  the 
EEZ  of  a  coastal  State  under  the  LOS  Convention,  these  rights  should  be  balanced 
against  the  resource  interests  of  the  coastal  State.  If  there  is  interference  in  the 
coastal  State's  economic  utilization  of  its  EEZ,  limitations  on  the  above  mentioned 
freedom  of  navigation  and  overflight  should  be  accepted.  Conflicts  between  coastal 
and  maritime  States  regarding  military  activities  in  the  EEZ  ''should  be  resolved  on 
the  basis  of  equity  and  in  the  light  of  all  relevant  circumstances,  taking  into  account 
the  respective  importance  of  the  interests  involved  to  the  parties  as  well  as  to  the  in- 
ternational community  as  a  whole."17 

Notes 

1.  Captain  Hyun-Soo  Kim  of  the  Republic  of  Korea  Navy  is  Professor  of  International  Law  and 
Director  of  the  Law  of  the  Sea  Research  Division  of  the  Republic  of  Korea  Naval  War  College. 

2.  United  Nations  Convention  on  the  Law  of  the  Sea,  Dec.10,  1982,  art.  56.1(b     I  v.:?  UN.T.S. 

3.  21  INTERNATIONAL  LEGAL  MATERLALS  1261  [hereinafter  LOS  Convention]. 

3.  Id.,  arts.  58,  87. 

4.  Id.,  arts.  301. 

5.  Id.,  arts.  56(1). 

6.  Brazil  (1982  declaration),  Cape  Verde  (1997  declaration),  India  ( 1995  declaration  ,  Malavsia 
(1996  declaration),  Pakistan  ( 1997  declaration)  and  LTruguay  ( 1992  declaration ') .  Peru  and  Iran 
also  prohibit  foreign  military  activities  and  practices  within  their  EEZ.  See  Maritime  Claims 
Reference  Manual,  US  Department  of  Defense  2005.1-M,  http://www.dtic.mil  whs  direc: 
corres/html/20051m.htm  (Apr.  2,  2001). 

7.  Francisco  Orrego  Vicuna,  The  Exclusive  Economic  zone:  regime  and  Legal 
Nature  under  International  law  309  (1989). 

8.  Germany  (1994),  Italy  (1995),  the  Netherlands  (1996)  and  the  United  Kingdom     1997 
declared  in  general  that  the  Convention  does  not  authorize  the  coastal  states  to  prohibit  military 
exercises  in  the  EEZ  and  the  rights  and  jurisdiction  of  the  coastal  states  in  the  EEZ  do  not  include 
the  right  to  require  either  prior  notification  or  permission  for  the  conducting  oi  militarv 
exercises  or  maneuvers.  The  text  of  these  declarations  is  available  at  http:    www.un.Ofg; 
los/convention_agreements/convention_declarations.htrn. 

261 


Military  Activities  in  the  Exclusive  Economic  Zone 

9.  Peru,  Albania,  the  Philippines,  the  Khmer  Republic,  North  Korea,  Costa  Rica,  Ecuador,  Pakistan, 
Portugal,  Senegal,  Somalia,  and  Uruguay.  UNCLOS  III  Official  Records,  Vol.  II,  28  (1975). 

10.  For  example,  the  use  of  weapons,  the  launching  of  aircraft,  espionage,  interference  with 
coastal  communications,  and  propaganda  aimed  at  the  coastal  communities. 

11.  See  VICUNA,  supra  note  7,  at  108;  TULLIO  SCOVAZZI,  THE  EVOLUTION  OF  INTERNATIONAL 

Law  of  the  Sea:  New  Issues,  New  Challenges  162  (2001). 

12.  See  Consensus  and  Confrontation:  The  United  States  and  the  Law  of  the  Sea 
303-304  (Jon  M.  Van  Dyke  ed.,  1985). 

13.  See  LOS  Convention,  supra  note  2,  art.  56.1. 

14.  Id.,  art.  87. 

15.  Jon  M.  Van  Dyke,  Military  Exclusion  and  Warning  Zones  on  the  High  Sea,  1 5  MARINE  POLICY 
164(1991). 

16.  J.  Ashley  Roach  &  Robert  W.  Smith,  United  States  Response  to  Excessive 
Maritime  Claims  426  (1996). 

17.  LOS  Convention,  supra  note  2,  art.  59. 


262 


XIV 


The  Unique  and  Protected  Status  of  Hospital 
Ships  under  the  Law  of  Armed  Conflict 


D.  L.  Grimord 
and  G.  W.  Riggs1 


Hospital  ships  have  long  enjoyed  a  unique  position  under  the  law  of 
armed  conflict.  The  Geneva  Convention  for  the  Amelioration  of  the 
Condition  of  Wounded,  Sick,  and  Shipwrecked  Members  of  the  Armed  Forces 
at  Sea  (GWS-Sea)2  codifies  the  protection  afforded  hospital  ships  that  are  serv- 
ing in  an  area  of  hostilities  during  international  armed  conflict.  In  light  of  the 
deployment  of  USNS  Comfort  (T-AH  20)  in  support  of  Operation  Iraqi  Freedom 
(OIF),  the  protected  status  of  hospital  ships  and  the  maintenance  of  that  status 
remain  important  topics.  The  import  is  even  more  pronounced  in  light  of  the 
sweeping  changes  in  technology  since  the  1949  Geneva  Conventions  and  the 
modern-day  terrorist  threat  from  non-State  actors  who  do  not  adhere  to  the 
law  of  armed  conflict. 

Background 

Article  22  of  GWS-Sea  provides  that  military  hospital  ships  may  in  no  circum- 
stances be  attacked  or  captured,  but  shall  at  all  times  be  respected  and  protected. 
This  provision  extends  to  hospital  ships  the  immunity  conferred  on  the  wounded, 
sick  and  shipwrecked.3  Article  3 1  of  GWS-Sea  provides  the  means  by  which  parties 


The  Unique  and  Protected  Status  of  Hospital  Ships 

to  a  conflict  can  verify  that  hospital  ships  are  abiding  by  the  provisions  of  GWS- 
Sea,  specifically  that  they  are  not  committing  acts  outside  their  humanitarian  du- 
ties and  harmful  to  the  enemy.  It  includes  the  right  for  parties  to  the  convention  to 
control  and  search  the  vessels,  direct  their  movement  or  even  detain  them  for  a 
limited  period  of  time.  Parties  may  place  a  commissioner  on  board  to  ensure  com- 
pliance. Additionally,  the  parties  may  also  arrange  for  the  placement  on  board  of 
neutral  observers  who  shall  verify  "the  strict  observation  of  the  provisions  con- 
tained in  the  present  Convention."4  Article  34  of  GWS-Sea  provides  that  the  pro- 
tection to  which  hospital  ships  are  entitled  shall  not  cease  unless  they  are  used  to 
commit,  outside  their  humanitarian  duties,  acts  harmful  to  the  enemy.5  In  short, 
hospital  ships  must  refrain  from  all  interference,  direct  or  indirect,  in  military  op- 
erations.6 In  addition,  the  second  paragraph  of  Article  34  provides  that  hospital 
ships  may  not  possess  or  use  a  secret  code  for  their  wireless  or  other  means  of  com- 
munication. Article  35  of  GWS-Sea  enumerates  conditions  that  shall  not  be  con- 
sidered as  depriving  hospital  ships  of  the  protections  afforded.  Specifically,  the 
arming  of  crews  for  the  maintenance  of  order  or  self-defense,  the  presence  on 
board  of  apparatus  exclusively  intended  to  facilitate  navigation  or  communication, 
and  the  storage  of  arms  taken  from  the  sick  and  wounded  are  not  actions  that  de- 
prive a  hospital  ship  of  its  protected  status.  Two  points  that  must  be  reassessed  in 
light  of  modern  conditions  are  the  use  of  secure  communications  aboard  hospital 
ships  and  the  arming  of  hospital  ships  beyond  the  traditional  "small  arms"  paradigm. 

Secure  Communications 

Article  34  of  GWS-Sea  has  been  viewed  as  prohibiting  the  use  of  secure  communi- 
cations equipment  on  hospital  ships  during  international  armed  conflict. 
Changing  technology  and  the  practical  necessity  to  communicate  in  a  manner  con- 
sistent with  present-day  technology  requires  that  the  prohibition  against  hospital 
ships  using  secure  communication  equipment  be  reevaluated.  While  the  intent  of 
the  prohibition  (the  right  of  belligerents  to  be  assured  that  hospital  ships  do  not 
commit  "acts  harmful  to  the  enemy")  must  be  maintained,  the  realities  of  modern 
communications  and  navigation  technology  should  also  be  taken  into  consider- 
ation. In  today's  highly  technological  environment  where  most  computer  and  sat- 
ellite communications  are  routinely  encrypted,  hospital  ships  should  be  able  to 
utilize  these  state-of-the-art  communications  assets  in  order  to  operate  safely  and 
accomplish  their  humanitarian  mission.7  In  today's  highly  technological  operating 
environment,  the  ship's  capacity  to  operate  safely  and  fulfill  its  humanitarian  mis- 
sion during  armed  conflict  would  be  degraded  without  access  to  encrypted 
communications. 


264 


D.  L.  Grimord  &  G.  W.  Riggs 


Since  1949,  discussions  among  international  legal  authorities  have  recognized 
the  need  to  reevaluate  the  use  of  secure  communications  equipment  that  may  vio- 
late, or  appear  to  violate,  the  "secret  code"  prohibition  of  Article  34. 

As  early  as  the  close  of  the  Diplomatic  Conference  of  Geneva  of  1949,  there  was 
concern  among  the  Conference  participants  that  the  ability  of  hospital  ships  to 
communicate  efficiently  with  warships  and  military  aircraft  was  in  jeopardy  and 
needed  further  study.8 

More  recently,  paragraph  171  of  the  1994  San  Remo  Manual  on  International 
Law  Applicable  to  Armed  Conflicts  at  Sea9  recommends  a  different  rule  than  Arti- 
cle 34.  Paragraph  171  provides:  "In  order  to  fulfill  most  effectively  their  humani- 
tarian mission,  hospital  ships  should  be  permitted  to  use  cryptographic 
equipment.  The  equipment  shall  not  be  used  in  any  circumstances  to  transmit  in- 
telligence data  nor  in  any  other  way  to  acquire  any  military  advantage." 

The  Explanation  to  the  San  Remo  Manual10  details  the  reasons  for  this  new  rule, 
that  being,  the  general  wording  of  Article  34  has  caused  difficulties.  The  British, 
during  the  Falklands  War,  found  that  transmitting  to  or  from  their  hospital  ships 
in  the  clear  risked  giving  away  the  positions  or  planned  movements  of  combat 
forces.  The  participants  in  the  San  Remo  process  evidently  thought  that,  since  Arti- 
cle 34  jeopardizes  the  ability  of  hospital  ships  to  operate  effectively,  the  rule  ought 
to  concentrate  on  the  sending  of  military  intelligence  and  that  in  order  to  fulfill 
their  humanitarian  mission  effectively,  hospital  ships  should  be  permitted  to  use 
secure  communication  equipment  that  in  modern  technology  is  an  integral  part  of 
most  communications  systems.11 

Given  the  interpretation  of  Article  34  of  GWS-Sea,  the  use  of  encrypted  communi- 
cations equipment  on  board  hospital  ships  is  problematic.  It  is  clear  that  as  technology 
has  changed,  the  terms  of  paragraphs  2  of  GWS-Sea  Article  34  have  been  rendered  ob- 
solete. Nonetheless,  States  parties  to  the  GWS-Sea  arguably  remain  bound  by  its  terms. 
One  possible  approach  to  effecting  a  change  in  the  law  is  the  premise  that  an  accepted 
change  in  practice  by  parties  can  be  utilized  to  further  interpret  and  modify  a  treaty. 
This  concept  is  reflected  in  Article  3 1  of  the  Vienna  Convention  on  the  Law  of  Treaties 
which  states,  "any  subsequent  practice  in  the  application  of  the  treaty  which  establishes 
the  agreement  of  the  parties"  can  be  used  to  interpret  the  meaning  of  that  treaty.12 

The  prohibition  against  the  use  of  secret  codes  by  hospital  ships  was  born  in  a  by- 
gone era.  In  the  past,  use  of  encrypted  communications  was  not  needed  for  safe  navi- 
gation or  for  affecting  the  humanitarian  mission  of  hospital  ships,  rather,  only  for  mili- 
tary operational  reasons  such  as  receiving  or  transmitting  intelligence.  Paragraph  171 
of  the  San  Remo  Manual,  as  well  as  varied  other  international  sources,13  illustrate  the 
widespread  recognition  that,  in  concert  with  the  necessities  of  modern  technology,  the 
use  of  encrypted  communication  equipment  on  hospital  ships  in  furtherance  of  their 

265 


The  Unique  and  Protected  Status  of  Hospital  Ships 

humanitarian  mission  and  safe  navigation  should  be  permitted.  Encrypted  communi- 
cation equipment  necessary  for  safe  operation  and  efficient  long-range  communica- 
tion is  now  in  common  use  at  sea.  The  necessity  for  this  now  commonplace  use  of 
encrypted  communications  equipment  should  apply  equally  to  hospital  ships,  as  long 
as  they  commit  no  act  harmful  to  the  enemy.  The  modification  of  existing  treaty  obli- 
gations between  parties  envisioned  by  Article  3 1  of  the  Vienna  Convention  could  be 
applied  to  the  practice  of  using  encrypted  communications  by  hospital  ships. 

Accordingly,  use  of  encrypted  communications  should  be  permissible  when  its 
purpose  is  to  facilitate  the  navigation14  or  communication15  of  the  hospital  ship  in 
furtherance  of  its  humanitarian  mission  and  is  not  employed  in  a  manner  that  is 
harmful  to  the  enemy.  Under  such  circumstances,  the  presence  and  use  of  such 
equipment  violates  neither  the  spirit  nor  the  intent  of  GWS-Sea. 

Defensive  Arming  of  Hospital  Ships 

The  arming  of  a  hospital  ship  for  self-defense  against  terrorists  and  other  non-State 
actors  must  also  be  reconsidered.  The  Geneva  Conventions  by  their  own  terms 
only  apply  during  "declared  war  or  any  other  armed  conflict  which  may  arise  be- 
tween two  or  more  of  the  High  Contracting  Parties."  Terrorists  and  their  organiza- 
tions (the  threat  against  which  hospital  ships  are  now  defending  themselves)  are 
not  States  party  to  the  Geneva  Conventions  and  their  tactics  (attacking  "soft"  tar- 
gets normally  protected  under  the  law  of  armed  conflict  (LOAC))  fall  outside  the 
traditional  definition  of  international  armed  conflict.  Although  it  is  doubtful  that 
the  Geneva  Conventions  apply  to  self-defense  measures  that  hospital  ships  may 
take  against  terrorist  acts,  an  analysis  of  this  issue  is  required  based  on  the  US  policy 
position  reflected  in  Department  of  Defense(DoD)  Directive  5100.77  (DoD  Law  of 
War  Program)  that  US  forces  will  apply  the  LOAC  to  all  military  operations. 

GWS-Sea  does  not  directly  address  weapons  systems  for  hospital  ships.  As  noted 
above,  Article  34  provides  that  the  "protection  to  which  hospital  ships  and  sick- 
bays are  entitled  shall  not  cease  unless  they  are  used  to  commit,  outside  their  hu- 
manitarian duties,  acts  harmful  to  the  enemy."  Article  35  provides  that  the  fact  the 
crews  of  ships  or  sick-bays  are  armed  for  the  maintenance  of  order,  for  their  own 
defense  or  that  of  the  sick  and  wounded,  shall  not  be  considered  as  depriving  hos- 
pital ships  or  sick-bays  of  vessels  of  their  protected  status. 

While  it  is  clear  that  crews  of  hospital  ships  may  be  armed  for  their  own  defense, 
GWS-Sea  does  not  specify  what  are  permissible  weapons.  The  accepted  norm  for 
arming  medical  personnel  ashore  has  been  "small  arms"  such  as  pistols  and  rifles, 
and  that  norm  was  equally  applied  to  the  crews  of  hospital  ships.  Traditionally,  it 
was  thought  that  light,  portable,  individual  weapons  such  as  pistols  and  rifles  were 

266 


D.  L.  Grimord  &  G.  W.  Riggs 


all  that  was  needed  for  personal  defense  on  hospital  ships.16  Crew-served  weapons, 
such  as  machine  guns,  were  presumed  to  go  beyond  the  need  for  use  in  self-de- 
fense, given  that  belligerents  were  bound  to  not  attack  hospital  ships  under  the 
provisions  of  GWS-Sea. 

However,  current-day  suicide-style  terrorist  tactics  against  so-called  "soft-tar- 
gets," exemplified  by  the  attacks  on  the  World  Trade  Center,  the  Pentagon,  US 
embassies  in  Africa,  and  on  the  USS  Cole,  demonstrate  the  need  for  enhanced  de- 
fenses against  individuals  or  groups  not  complying  with  the  law  of  armed  conflict.  In 
this  new  threat  environment,  where  large-scale,  deadly,  and  indiscriminate  attacks 
on  civilians  and  civilian  objects  have  become  part  of  terrorists'  modus  operandi, 
mounted  machine  guns  have  become  by  necessity  standard  elements  of  defensive 
force  protection  systems  for  naval  vessels.  Such  weapons  have  offensive  capability 
when  installed  on  helicopters  and  small  boats,  but  in  the  context  of  being 
mounted  on  board  a  large,  relatively  slow  and  not- easily- maneuverable  ship,  any 
offensive  capability  is  greatly  diminished  (if  not  lost  altogether)  and  the  weapon 
becomes  purely  defensive  in  nature.  To  that  end,  hospital  ships  should  be  able  to 
employ  machine  guns  and  similar  armament  solely  for  self-defense  against  terror- 
ists and  other  persons  who  do  not  recognize  or  follow  the  law  of  armed  conflict. 
This  interpretation  is  consistent  with  the  long-standing  US  Army  interpretation  of 
self-defense  permissible  under  Article  22  of  Geneva  Convention  I17  (pertaining  to 
wounded  and  sick  forces  on  land)  as  "personal  defense  and  for  the  protection  of 
the  wounded  and  sick  under  their  charge  against  marauders  and  other  persons  vio- 
lating the  law  of  war."18  Such  weapons  would  not  be  used  in  an  offensive  capacity 
nor  against  lawful  belligerents  complying  with  the  law  of  armed  conflict  and  who 
are  exercising  their  rights  under  GWS-Sea.  It  is  only  as  a  result  of  the  emergent 
threat  to  targets  traditionally  protected  under  the  law  of  armed  conflict  (such  as  a 
hospital  ship)  that  it  is  necessary  to  enhance  the  defensive  measures  available  to 
these  protected  platforms.  Although  the  Geneva  Conventions  would  not  likely  ap- 
ply, the  use  of  machine  guns  in  self-defense  against  non-State  actors  is  consistent 
with  Articles  34  and  35  of  GWS-Sea,  as  well  as  the  underlying  principles  governing 
the  protected  status  of  hospital  ships  under  the  law  of  armed  conflict. 

Notes 

1.  Captain  Grimord  is  the  Deputy  Assistant  Judge  Advocate  General,  Navy  International  and 
Operational  Law  Division.  Major  Riggs  is  the  Head  of  the  Operational  Law  Branch,  Navy 
International  and  Operational  Law  Division.  The  opinions  expresses  herein  are  those  of  the  authors 
and  do  not  necessarily  reflect  thsoe  of  the  Department  of  the  Navy  or  Department  of  Defense. 


267 


The  Unique  and  Protected  Status  of  Hospital  Ships 

2.  Convention  (II)  for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked 
Members  of  Armed  Forces  at  Sea,  Geneva,  Aug.  12, 1949, 75  U.N.T.S.  85,  reprinted  in  DOCUMENTS 
ON  THE  LAWS  OF  WAR  222  (Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000). 

3.  Commentary  on  the  Geneva  Conventions  of  12  August  1949,  II  Geneva 
Convention  for  the  Amelioration  of  the  Condition  of  Wounded,  Sick  and 
Shipwrecked  Members  of  Armed  Forces  at  Sea  157  (Jean  S.  Pictet  et.  al.  eds.,  i960). 

4.  This  provision  dates  from  the  draft  Additional  Articles  Relating  to  the  Condition  of  the 
Wounded  in  War,  Geneva,  Oct.  21,  1868,  which  did  not  enter  into  force.  See  THE  LAWS  OF 
ARMED  CONFLICTS:  A  COLLECTION  OF  CONVENTIONS,  RESOLUTIONS  AND  OTHER  DOCUMENTS 
369  (Dietrich  Schindler  &  Jiri  Toman  eds.,  4th  ed.  2004).  The  wording  was  only  somewhat 
modified  to  take  its  present  form  as  found  in  GWS-Sea. 

5.  Additionally,  hospital  ships  must  be  warned  of  the  offending  action  and  given  a  reasonable 
amount  of  time  to  comply  before  their  protected  status  can  be  violated.  Harmful  acts  are,  for 
example,  transporting  combatants  or  arms,  transmitting  military  intelligence  via  radio  or 
providing  cover  for  a  warship. 

6.  Commentary,  supra  note  3,  at  191. 

7.  A  secondary,  but  important  additional  consideration,  is  the  current  standards  relating  to  the 
privacy  of  medical  records  pursuant  to  the  requirements  of  the  Health  Insurance  Portability  and 
Accountability  Act  of  1996  (HIPAA).  The  Standards  for  Privacy  of  Individually  Identifiable 
Health  Information  ("Privacy  Rule")  establishes,  for  the  first  time,  a  set  of  national  standards  for 
the  protection  of  certain  health  information.  The  US  Department  of  Health  and  Human  Services 
issued  the  Privacy  Rule  to  implement  the  requirement  of  HIPAA.  The  Privacy  Rule  standards 
address  the  use  and  disclosure  of  individuals'  health  information — called  "protected  health 
information"  by  organizations  subject  to  the  Privacy  Rule — called  "covered  entities,"  as  well  as 
standards  for  individuals'  privacy  rights  to  understand  and  control  how  their  health  information 
is  used. 

8.  See  Resolution  6  of  the  Diplomatic  Conference  of  Geneva,  1949,  reprinted  in  The  LAWS  OF 
Armed  Conflicts,  supra  note  4,  at  691. 

9.  Sponsored  by  the  International  Committee  of  the  Red  Cross  (ICRC)  and  completed  in  June 
1994  by  a  group  of  legal  scholars  and  naval  practitioners,  the  Manual  serves  as  a  contemporary 
restatement  of  international  law  applicable  to  armed  conflict  at  sea  and  comprehensively 
addresses  the  subject  for  the  first  time  since  the  1913  Oxford  Manual.  In  most  respects,  the 
Manual  correctly  states  the  law  and,  with  the  exception  of  some  portions,  is  consistent  with  US 
practice.  The  San  Remo  Manual  is  reprinted  in  Schindler  &  Toman,  supra  note  4,  at  1 153.  The 
1913  Oxford  Manual  is  reprinted  in  id.  at  1123. 

10.  San  Remo  Manual  on  International  Law  Applicable  to  Armed  Conflicts  at  Sea 
236-37  (Louise  Doswald-Beck  ed.,  1995). 

11.  It  is  important  to  note  that  the  San  Remo  Manual  recommendation  is  consistent  with  the 
rules  regarding  the  use  of  secure  communications  equipment  by  medical  aircraft  and  vehicles. 
See  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  (Protocol  I),  Geneva,  June  8,  1977,  art. 
28,  1 125  U.N.T.S.  3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  2,  at  422. 
Unlike  hospital  ships,  other  medical  transports  are  not  restricted  from  using  encryption 
equipment.  They  are,  however,  bound  by  the  same  requirement  that  they  commit  no  acts 
harmful  to  the  enemy.  International  law  permits  medical  aircraft  and  vehicles  to  possess  and  use 
encrypted  communications  equipment  "solely  to  facilitate  navigation,  communications,  or 
identification."  Hospital  ships  have  the  same  or  similar  navigation,  communication,  and 
identification  requirements  as  medical  transport  aircraft. 


268 


D.  L.  Grimord  &  G.  W.  Riggs 


12.  Convention  on  the  Law  of  Treaties,Vienna,  May  22,  1969,  1 155  U.N.T.S.  331. 

13.  In  The  Handbook  of  Humanitarian  Law  in  Armed  Conflict,  the  German  equivalent 
to  the  US  Annotated  Supplement  to  The  Commander's  Handbook  on  the  Law  of 
NAVAL  OPERATIONS  (A.  R.  Thomas  &  James  C  Duncan  eds.,  1999)  (Vol.  73,  US  Naval  War 
College  International  Law  Studies),  Professor  Heintschel  von  Heinegg  recommends  that  the  San 
Remo  rule  be  adopted.  International  Committee  of  the  Red  Cross  (ICRC)  senior  legal  advisor 
Louise  Doswald-Beck  notes  that  the  San  Remo  Manual's  recommended  change  in  Article  34 
derives  from  the  British  experience  during  the  Falklands  conflict.  See  Louise  Doswald-Beck,  San 
Remo  Manual  on  International  Law,  309  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  583,  593 
(1995).  Phillip  Eberlin,  Merchant  Navy  and  Maritime  Security  Officer,  ICRC,  in  his  modern 
Commentary  to  the  1923  Hague  Rules  for  the  Control  of  Radio  in  Time  of  War,  argues  that  rules 
should  be  clarified  to  allow  the  use  of  modern  communications  equipment  by  hospital  ships. 

14.  Military  Global  Positioning  System  (GPS)  is  encrypted. 

15.  Video  teleconferencing  of  real  time  medical  procedures  and  other  patient  information  would 
by  necessity  have  to  be  encrypted  in  order  to  utilize  the  necessary  satellite  communications. 

16.  See  COMMENTARY,  supra  note  3,  at  1 94.  See  also  ANNOTATED  SUPPLEMENT,  supra  note  1 3,  at 
5  8.2.3. 

17.  Convention  (I)  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Geneva,  12  Aug.  1949,  75  U.N.T.S.  31,  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR,  supra  note  2,  at  197. 

18.  US  Army  Field  Manual  27-10  J  223b  (1956). 


269 


PART  IV 


THE  FUTURE  OF  LAW  IN  WAR: 

DIFFERENT  APPLICATION 

OR  DIFFERENT  RULES? 


XV 


Legal  and  Tactical  Dilemmas  Inherent 

in  Fighting  Terror: 

Experience  of  the  Israeli  Army 

in  Jenin  and  Bethlehem 

(April-May  2002) 

Alan  Baker l 

Introduction 


One  of  the  major  challenges  presently  facing  the  international  community 
is  the  extent  to  which  the  laws  of  armed  conflict,  as  understood  today, 
maybe  applied  to  conflict  scenarios  of  today's  world  realities,  and  specifically  in  a 
situation  in  which  the  international  community  finds  itself  in  a  concerted  global 
campaign  against  terror.2  In  other  words,  is  the  law  of  armed  conflict,  as  articu- 
lated, understood  and  applied  in  what  we  have  grown  up  to  understand  to  be  to- 
day's world,  capable  of  guiding  States  in  the  fight  against  today's  terror? 

When  faced  with  legal  issues  arising  in  a  "standard  situation"  of  armed  con- 
flict— whether  in  regard  to  ground  operations,  air  or  naval  targeting  opera- 
tions—the legal  parameters  are  usually  relatively  clear.  This  is  because  the  laws 
and  customs  of  war  and  international  humanitarian  law — which  constitute  inte- 
gral components  of  international  law — set  out  the  norms  and  standards  by  which 


Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror 

States  are  obligated  to  act  and  armed  forces  required  to  operate.  The  term  "stan- 
dard situation"  assumes  that  the  clearly-defined  armed  forces  of  the  two  sides — 
usually  belonging  to  States — confront  one  another  on  a  defined  or  clear  battle- 
field, and  engage  in  such  actions  as  are  necessary  to  conduct  the  armed  conflict. 

The  term  "armed  conflict,"  as  understood  up  to  now,  thus  serves  as  a  code-word 
or  form  of  algebra,  indicative  of  a  series  of  norms,  rules,  articles,  principles,  rights, 
prohibitions  and  requirements,  obligating  the  forces,  and  the  governments  send- 
ing them,  in  guiding  the  military  conduct  of  the  war.  The  assumption  is,  in  most 
cases,  that  armed  forces — on  both  sides — will  indeed  conduct  themselves  in  accor- 
dance with  such  rules  and  norms.  More  important,  the  assumption  is  also  that  each 
relies  on  the  fact  that  the  other  will  indeed  observe  the  requisite  norms  and  rules. 
That  is,  perhaps,  the  underlying  assumption  of  any  logical  and  viable  armed  con- 
flict situation  in  today's  international  legal  system. 

This  is  a  somewhat  idealistic  and  even  simplistic  description  of  any  normal  legal 
system — both  civil  and  international — in  which  the  individual  components  within 
the  system  are  able  to  live  and  conduct  themselves  within  the  orderly  parameters  of 
the  system,  on  the  assumption  that  the  other  components  of  the  system  will  com- 
port themselves  in  the  same  way.  Departure  from  such  parameters  and  behavior  in 
violation  of  such  a  normative  system  undermines  and  threatens  the  very  existence 
of  the  system  and  raises  the  question  as  to  the  need  to  review  the  system,  adjust  the 
norms  or  adapt  them  to  meet  the  new  realities  or  developments. 

Thus,  as  long  as  the  conduct  of  armed  conflict  includes  the  accepted  compo- 
nents and  follows  the  accepted  normative  guidelines — whether  from  the  point  of 
view  of  the  parties  to  the  conflict  or  as  to  the  modes  of  behavior  and  the  theater  of 
war — then  the  "standard  situation"  prevails.  To  conduct  a  war  in  Iraq  against  the 
Iraqi  army,  or  in  Afghanistan  against  organized  armed  forces  fighting  for  the  re- 
gime in  Afghanistan,  or  even  a  collective  NATO  action  against  organized  Serbian 
military  forces  in  Yugoslavia,  would  generally  fall  within  the  parameters  of  the 
"standard  situation,"  even  if,  during  the  course  of  such  conflict,  the  necessity  might 
arise  to  deal  with  exceptional  occurrences,  including  terror,  violations  of  the  law  of 
armed  conflict,  war  crimes,  crimes  against  humanity  and  other  irregular  events. 

Today's  international  community  is  faced  with  a  dichotomy,  because  what  is  cur- 
rently known  and  acknowledged  to  be  "the  law  of  armed  conflict,"  by  which  States 
and  their  armed  forces  are  supposed  to  function,  developed  over  the  years,  and  was 
set  out  in  clear  terms  in  the  late  1800's  and  early  1900's,3  amended  in  the  post-Sec- 
ond World  War  years  (1949),4  and  again  in  the  1974-7  timeframe5  in  the  back- 
ground of  the  Vietnam  War,  and  has  since  not  really  been  touched  (apart  from 
specific  instruments  to  reflect  the  need  for  protection  of  cultural  property  in  time  of 
war,6  as  well  as  instruments  reflecting  technological  developments  in  conventional7 

274 


Alan  Baker 


and  non-conventional  warfare.8)  However,  it  is  questionable  whether  the  law  of 
armed  conflict  as  it  exits  today,  incorporating  as  it  does,  international  humanitarian 
law,  is  really  capable  of  providing  legal  as  well  as  operative  answers  to  the  practical  is- 
sues arising  out  of  today's  struggle,  directed  not  necessarily  against  a  defined  and 
identifiable  armed  force  of  a  State,  but  rather  against  terror  as  a  concept  and  a  phe- 
nomenon. This  may  not  necessarily  be  confined  to  the  territory  of  a  particular  State, 
and  certainly,  by  its  very  definition,  is  not  necessarily  directed  against  military  forces 
of  a  State  in  the  reality  of  today. 

"Global  War  on  Terror" 

While  the  concept  of  "war"  or  even  "global  war"  maybe  clear,  while  the  phenome- 
non of  "terror"  is  rapidly  and  ever-increasingly  becoming  understood  to  more  and 
more  countries,  and  while  the  challenge  placed  before  the  international  commu- 
nity may  be  patently  evident,  the  concept  of  a  "global  war  on  terror"  in  interna- 
tional legal  terms  nevertheless  raises  innumerable  questions.  Can  such  a  war  legally 
take  place?  Is  the  existing  law  of  armed  conflict,  based  as  it  is  on  well-defined  crite- 
ria, capable  of  identifying,  categorizing  and  recognizing  the  needs  and  components 
of  such  a  war,  especially  when  considering  that  the  parties  to  the  conflict  are  not 
necessarily  States,  and  the  geographical  boundaries  of  the  war  are  not  necessarily 
within  the  confines  of  one  State?  Similarly,  as  the  tactics  and  the  weapons  needed  to 
deal  with  terror  are  not  necessarily  the  same  as  those  used  vis-a-vis  a  conventional 
enemy  in  a  standard  war,  are  the  law  of  armed  conflict  and  international  humani- 
tarian law  equipped  to  deal  with  this? 

To  fight  against  Iraqi  or  Afghani  armed  forces,  or  in  Israel's  case,  a  Syrian  or 
Lebanese  army,  is  theoretically  and  legally  relatively  simple,  and  can  indeed  be  ad- 
dressed in  terms  of  the  existing  rules  and  sanctions  of  warfare.  But  as  has  become 
evident,  to  fight  against  al  Qaeda,  Hamas,  Hezbollah,  Islamic  Jihad  and  Fedayeen 
Saddam,  and  other  such  nebulous  and  vague  terrorist  opponents,  may  be  quite  a 
different  kettle  offish  for  a  number  of  very  significant  reasons: 

•  They  openly  and  demonstratively  shun  and  violate  the  accepted  norms  and 
rules  of  armed  conflict.  Their  very  modus  operandi  and  inherent  functioning 
philosophy  are  built,  and  rely  as  a  tactical  assumption,  on  the  fact  that  the 
organized,  western  armies — as  well  as  the  society  that  they  defend — will  indeed 
abide  by  the  norms  and  rules.  Thus,  they  utilize  civilian  locations,  homes,  churches, 
mosques,  medical  facilities  and  ambulances,  and  schools  as  shields  for  placement 
and  concealing  of  weapons,  bases,  headquarters,  laboratories  and  training  camps, 
assuming  that  an  organized  army  of  a  State  obligated  by  the  law  of  armed  conflict 
and  international  humanitarian  law,  will  not  risk  causing  collateral  civilian  damage 

275 


Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror 

to  civilians  and  civilian  facilities  by  responding  and  targeting  such  blatantly  civilian 
objects,  and  will  not  wish  to  be  accused  of  using  disproportionate  military  force 
against  groups  of  apparently  unorganized  civilians. 

•  They  target  civilians  as  a  distinct,  deliberate  and  concerted  means  to 
demoralize  and  terrorize  the  civil  population  and  to  pressure  organized 
governments  and  society.  This  is  their  tactical  modus  operandi. 

•  In  so  doing,  they  knowingly  violate,  and  operate  outside  the  law  of  armed 
conflict  and  thereby  place  themselves  outside  the  bounds  of  any  accepted  norms 
entitling  them  to  protection  or  combatant  status  and  privileges.  This  in  itself 
undermines  and  abuses  the  basic  assumption  of  an  organized  society,  functioning 
pursuant  to  legal  norms  and  obligations — both  in  its  civil  legal  system  as  well  part 
of  its  international  conventional  and  customary  obligations. 

•  Such  modus  operandi  undermines  and  abuses  the  humanitarian  sense  of 
responsibility  and  obligation  instilled  into  the  psyche  of  soldiers,  whether  in 
military  training  and  academies,  or  whether  stemming  from  the  basic  sense  of 
decency  and  morality  emanating  from  home,  childhood,  family  values,  education, 
Sunday  school,  church,  synagogue  and  upbringing. 

•  This  phenomenon  produces  the  impossible  and  paradoxical  predicament  in 
which,  on  the  one  hand,  organized  armed  forces  or  police  forces  of  the  State  are 
obliged  to  function  within  the  limitations  of  the  law  and  the  accepted  norms, 
while  on  the  other  hand,  the  terrorists  openly,  deliberately  and  proudly  violate 
such  law  and  norms.  This  is  perhaps  the  essence  of  terror. 

Israel  Defense  Force  (IDF)  Case  Studies — Jenin  and  Bethlehem 

Following  are  two  pertinent  case  studies  and  other  examples  from  Israel's  own  ex- 
periences of  the  blatant  abuse  by  Palestinian  terrorists  of  the  laws  and  accepted 
norms  of  armed  conflict,  and  the  sometimes  tragic  moral  and  humanitarian  di- 
lemma that  this  creates  in  the  psyche  of  the  field  commanders,  soldiers,  as  well  as 
the  political  leadership  that  holds  responsibility.  This  is  no  less  of  a  dilemma  for  the 
judiciary  that  is  often  called  upon  to  judge  the  actions  of  the  government  or  the 
armed  forces  during  real  time  conflict. 

These  studies  are  also  indicative  of  a  certain  element  of  hypocrisy  and  dual  stan- 
dards within  parts  of  the  international  community,  which  to  a  certain  extent 
would,  for  reasons  of  political  interest,  appear  to  prefer  to  sit  on  the  side  and  rush 
to  judgment  rather  than  seek  to  unify  efforts  and  engage  in  the  fight  against  terror. 

The  situations  covered  are: 


276 


Alan  Baker 


•  The  IDF  operation,  between  April  3-10,  2002  to  overcome  an  armed  and 
fortified  terrorist  infrastructure  in  the  Jenin  refugee  camp  and  to  prevent  its 
conversion  into  a  training  and  exit  base  for  suicide  terrorism. 

•  The  37-day  occupation  and  violation  by  Palestinian  terrorists  of  one  of  the 
holiest  sites  to  Christianity — the  Church  of  the  Nativity  in  Bethlehem,  between 
April  2  and  May  8,  2002. 

•  Other  pertinent  examples. 

Scenario 

The  refugee  camp  in  Jenin  occupied  a  corner  of  the  south-eastern  outskirts  of  the 
town.  The  refugee  institutions  (schools,  clinics  and  related  facilities)  were  under 
the  administration  and  responsibility  of  the  United  Nations  Refugee  and  Works 
Agency  (UNRWA),  within  the  general  context  of  the  United  Nations'  responsibil- 
ity for  handling  refugees.9 

In  fact,  this  camp  (together  with  others  in  the  West  Bank  and  the  Gaza  Strip) 
had,  for  a  considerable  period  of  time  prior  to  the  hostilities  in  the  area,  been  over- 
run and  controlled  by  the  Hamas  and  Islamic  Jihad  terror  organizations,  which 
had  established  a  series  of  terror  training  centers,  explosive-producing  laborato- 
ries, suicide-belt  sewing  workshops,  metal-working  facilities  and  foundries  to  pro- 
duce, cut  and  sharpen  metal  shavings,  ball  bearings,  screws,  bolts  and  related 
objects  comprising  part  of  the  "suicide  kits,"  and  related  equipment.  This  despite 
clear  United  Nations  requirements  prohibiting  use  of  refugee  camps  under  its  ad- 
ministration for  military  purposes,  including  a  call  by  the  United  Nations  Secre- 
tary-General establishing  that  "[rjefugee  camps  should  be  free  of  any  military 
presence  or  military  equipment,  including  weapons  and  munitions . . .  the  neutral- 
ity and  the  humanitarian  nature  of  the  camps  must  be  meticulously  kept,"10  and 
despite  a  series  of  very  clear  obligations  undertaken  by  the  Palestinian  Authority, 
and  witnessed  by  the  international  community,  to  dismantle  terrorist  infrastruc- 
ture and  arrest  and  prosecute  those  involved  in  all  forms  of  terror.11 

The  schools  and  kindergarten  facilities — ostensibly  under  the  administration  of 
the  United  Nations — were  used  to  train  terrorists,  replete  with  posters  covering  the 
classrooms  and  nurseries  depicting  the  shaheeds  ("martyrs")  suicide  bombers,  as 
folk  heroes,  and  as  role-models  for  the  children.  Children's  playing  cards  depicted 
the  faces  of  these  "folk-heroes."12 

The  presence  and  control  by  the  various  terror  organizations  was  no  secret  and 
was  not  done  in  a  covert  manner.13  Jenin  was  proudly  dubbed  in  the  Palestinian 
propaganda  apparatus  as  "capital  of  the  shaheeds,"  having  produced  over  20  suc- 
cessful suicide  bombings  within  Israel. 


277 


Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror 

During  the  course  of  the  armed  activities  prior  to  the  entry  of  IDF  into  the 
camp,  the  terror  organizations  had  evacuated  the  majority  of  the  refugees,  sending 
them  into  the  town  of  Jenin,  and  proceeded  to  booby-trap  buildings  within  the 
camp,  disperse  small  mines  connected  to  piping  along  the  narrow  streets,  and 
booby-trap  doorknobs,  toys,  household  utensils  and  other  objects. 

The  Legal  Situation 

In  strict  legal  terms,  in  the  context  of  the  law  of  armed  conflict,  the  Jenin  refugee 
camp  had  been  turned  into  a  military  objective/location,  which  openly  and  clearly 
served  and  rendered  an  effective  contribution  to  the  Palestinian  unique  form  of 
military  action.  The  camp  served  as  a  purveyor  and  chief  supply  depot  and  training 
base  for  acts  of  terror — predominantly  suicide  bombings  both  during  the  days  im- 
mediately preceding  the  military  action,  as  well  as  having  supplied  an  unknown 
number  of  potential  future  suicide  bombers,  the  neutralization  of  which  was 
clearly  required  in  order  to  gain  military,  psychological  and  tactical  advantage.14 

Despite  the  obvious  factors  pointing  to  this  case  as  being  a  classical  "military  ob- 
jective" by  all  criteria  of  international  humanitarian  law,  and  despite  the  lack  of  any 
doubt  that  might  place  it  within  the  "grey  area"  set  out  in  paragraph  3  of  Article  52 
of  Additional  Protocol  I,15  the  legal  and  moral  dilemma  facing  the  IDF  was  whether 
indeed  to  treat  it  as  such,  or  whether,  in  light  of  its  overall  denomination  as  a  refu- 
gee camp  and  the  protected  status  to  which  such  camps  are  entitled,  nevertheless  to 
grant  it  immunity  as  a  civilian  object. 

The  Action 

In  reaching  the  decision  to  enter  the  camp,  consideration  was  given  to  the  fact  that 
most  of  the  civilian  population  had  been  sent  out  of  the  camp  and  virtually  all  re- 
maining persons  were  presumed  to  be  terrorists  (about  200).  The  extent  of  the  for- 
tification of  the  camp  as  ascertained  through  intelligence  and  aerial  photographs, 
subsequently  became  evident  from  a  series  of  statements  made  by  the  Palestinian 
terrorists  who  fought  in  the  camp: 

•  "The  fighting  forces,  from  all  the  factions  in  the  camp,  have  been  equipped 
with  explosive  belts  and  grenades."16 

•  "Our  fighters  are  blowing  themselves  up  in  front  of  the  soldiers  and  planting 
explosive  devices  on  the  roads."17 

•  "We  had  more  than  50  houses  booby-trapped  around  the  camp.  We  chose 
old  and  empty  buildings  and  the  houses  of  men  who  were  wanted  by  Israel 
because  we  knew  the  soldiers  would  search  for  them.  .  .  ."  "We  cut  off  lengths  of 
main  water  pipes  and  packed  them  with  explosives  and  nails.  Then  we  placed 


278 


Alan  Baker 


them  about  four  meters  apart  throughout  the  houses — in  cupboards,  under  sinks, 

and  in  sofas "  "They  were  lured  there.  We  all  stopped  shooting  and  the  women 

went  out  to  tell  the  soldiers  that  we  had  run  out  of  bullets  and  were  leaving.  The 
women  alerted  the  fighters  as  the  soldiers  reached  the  booby-trapped  area."18 

However,  due  to  the  cramped  nature  of  the  building,  the  narrow  and  winding 
streets  and  the  possibility  that  some  refugees  remained,  or  were  nevertheless  being 
held  as  hostages  or  human  shields  within  the  camp,  a  tactical  decision  was  made 
not  to  use  artillery,  tank  or  aerial  targeting,  with  their  concomitant  potential  of  in- 
discriminate or  collateral  damage  to  civilian  life  and  property,  but  rather  to  send 
ground  forces  into  the  camp  and  to  move  from  house  to  house  with  a  view  to  limit- 
ing offensive  action  strictly  to  armed  terrorists  and  to  military  objectives. 

During  the  action,  IDF  forces  suffered  heavy  casualties  as  a  result  of  the  booby- 
trapped  buildings  and  suicide  bombers  who  exploded  themselves  within  and  close 
to  buildings  that  collapsed  on  to  the  soldiers.  23  soldiers  were  killed  (10  in  one 
house).  This  required  introduction  of  heavier  equipment  to  enable  acquisition  of 
control  by  widening  the  narrow  routes  for  heavier  military  equipment.  By  the  end 
of  the  action,  a  total  of  59  terrorists  had  been  killed  in  the  entire  action — most  of 
whom  were  discovered  together  with  their  weapons. 

International  Reaction 

In  the  immediate  aftermath  of  the  action,  Israel  and  its  forces  were  widely  accused 
of  carrying  out  a  "massacre"  and  of  killing  hundreds  of  innocent  civilians.  Senior 
United  Nations  officials  came  out  with  televised  statements  describing  the  situa- 
tion in  such  terms  as  "horrific"  and  "morally  repugnant."19  The  United  Nations 
Human  Rights  Commission,  Amnesty  International,  Human  Rights  Watch  and 
others  determined  that  Israel  had  committed  war  crimes.20 

Pursuant  to  consultations  between  the  Israeli  leadership  and  the  US  Adminis- 
tration, Israel  agreed  to  the  sending  of  a  team  composed  of  US  military  experts,  un- 
der United  Nations  auspices,  to  ascertain  the  situation  on  the  ground  and  to  view 
the  terrorist  infrastructure  prevalent  in  the  camp  and  the  terrorist  activity  that  ren- 
dered the  camp  a  military  target.  The  Secretary- General  of  United  Nations,  through 
the  United  Nations  Security  Council,  converted  this  into  a  fully-fledged  interna- 
tional fact-finding  commission21  with  the  substantive  components  of  an  interna- 
tional tribunal  (headed  by  the  ex-President  of  Finland  who  had  previously  served  as 
an  Under-Secretary-General  of  the  United  Nations,  ex-President  of  the  International 
Committee  of  the  Red  Cross,  ex- United  Nations  High  Commissioner  for  Refugees 
and  a  US  retired  general,  with  legal,  political  and  technical  staff  and  advisers)  with  an 
extended  mandate  to  interview  witnesses  and  officers,  to  attribute  blame,  place 


279 


Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror 

responsibility,  and  to  extend  the  commission  to  cover  other  areas  of  the  West  Bank  ter- 
ritory, rather  than  the  initial  intention  to  analyze  the  Jenin  situation. 

The  Government  of  Israel  objected  to  the  extended  format  of  the  Fact  Finding 
Commission.  The  team  was  subsequently  disbanded  by  the  Secretary-General,  espe- 
cially after  it  became  publicly  and  internationally  evident  that  no  massacre  had  been 
perpetrated;  that  those  killed  were  terrorists;  and  that  the  camp  had  become  a  military 
object  to  all  intents  and  purposes.  The  Secretary- General  subsequently  issued  a  report 
acknowledging  the  misuse  by  the  Palestinian  terrorists  of  the  civilian  infrastructure  in 
the  camp  and  affirming  the  fact  that  only  59  Palestinians  had  been  killed,  specifically 
rejecting  the  claim  by  Palestinian  leaders  and  echoed  by  several  senior  United  Nations 
and  other  international  personalities  that  300-500  had  been  massacred.22 

IDF  Operation  in  Bethlehem — the  Church  of  the  Nativity  (2  April-8  May  2002) 

Scenario 

The  Church  of  the  Nativity  is  one  of  the  major  holy  sites  for  all  of  Christianity 
(Catholics,  Greek  Orthodox,  Armenians  and  others).  It  is  the  site  at  which  the  na- 
tivity scene,  as  described  in  the  New  Testament,  took  place.  It  is  the  site  of  the  an- 
nual pilgrimage  by  all  the  various  Christian  sects  and  general  public  to  Bethlehem 
to  conduct  the  Christmas  Eve  midnight  mass.  It  contains  a  complex  of  chapels  and 
altars  serving  the  various  Christian  sects.23 

The  Abuse 

On  April  2,  2002,  some  220  armed  Palestinian  terrorists  belonging  to  the  Hamas, 
Palestinian  Islamic  Jihad,  Popular  Front  for  the  Liberation  of  Palestine  and  the  Al 
Aksa  Martyrs  group,  entered  the  main  church  areas  with  weapons  and  ammuni- 
tion, barricaded  themselves  inside  the  Church,  used  the  roofs  and  balconies  as 
shooting  positions,  held  priests,  monks,  religious  officials  serving  in  the  church,  as 
well  as  ordinary  citizens  who  happened  to  be  there,  as  hostages  and  human  shields, 
and  abused  holy  artifacts  (chalices,  baptismal  fonts,  altars,  carpets,  tapestries).24 

The  Moral,  Military  and  Legal  Dilemma 

Clearly  this  was  not  merely  a  simple  combat  situation  of  the  use  of  a  municipal  or 
local  holy  site  for  shielding  hostile  action,  or  the  occupation  by  enemy  forces  of  a 
neighborhood  church  or  mosque  (which  in  itself  is  no  less  a  violation  of  the  laws  of 
armed  conflict).  This  situation  centered  within  one  of  the  world's  major  holy  sites 
revered  by  over  one  billion  Christians  throughout  the  world,  from  as  far  afield  as 
Italy,  Spain,  Greece,  Russia,  Germany,  Scandinavia,  Central  and  South  America, 
the  Philippines,  South  Korea,  Ireland,  and  Africa.  The  Holy  See  immediately  issued 


280 


Alan  Baker 


stern  warnings  to  Israel  to  ensure  the  integrity  and  holiness  of  the  site.25  Whether 
any  admonishment  was  passed  on  to  the  Palestinian  authorities  for  encouraging 
and  supporting  the  terrorist  overrunning  of  the  site,  is  unknown. 

The  moral  and  tactical  dilemma  faced  by  the  IDF  and  the  Israeli  government 
was  clear.  Both  Article  4  of  the  1954  Hague  Convention  for  the  Protection  of  Cul- 
tural Property  in  the  Event  of  an  Armed  Conflict,26  as  well  as  Article  53  of  Addi- 
tional Protocol  I  to  the  Geneva  Conventions,27  regarding  the  protection  of  cultural 
objects  and  places  of  worship,  prohibit  acts  of  hostility  against  the  historic  monu- 
ments, works  of  art  or  places  of  worship  which  constitute  the  cultural  or  spiritual 
heritage  of  peoples,  and  prohibit  the  use  of  such  objects  in  support  of  the  military 
effort  and  as  objects  of  reprisals.  While  indeed  the  immunity  of  the  site,  as  a  place  of 
worship,  had  been  clearly  prejudiced  and  abused,  and  technically  and  legally  the 
circumstances  (including  the  intense  publicity  worldwide  and  concomitant  psy- 
chological warfare)  were  such  that  there  existed  an  imperative  element  of  military 
necessity  as  a  criterion  for  active  intervention  against  those  who  had  occupied  the 
Church,  in  order  to  bring  the  stand-off  to  an  end,  could  Israel,  the  lewish  State,  of 
all  countries,  nevertheless  afford  to  bring  upon  itself  the  ire  of  all  of  Christendom 
by  responding  to  this  provocation  and  undertaking  any  military  action  that  might 
prejudice  the  status  of  or  damage  the  Church? 

Action  by  the  Israeli  Army 

Apart  from  responding  to  sniper  fire  emanating  from  the  terrorists  using  the  Church 
as  cover  (sometimes  leading  to  casualties),  and  pressuring  the  terrorists  through  the 
withholding  of  supplies,  the  matter  was  handled  by  negotiation  between  officers 
comprising  a  special  negotiating  unit,  and  a  group  of  priests  held  hostage  within  the 
Church  who  negotiated — principally  by  cell  phone — on  behalf  of  the  terrorists. 

Ultimately,  after  twenty  five  days,  an  agreement  was  negotiated,  with  assistance 
from  such  foreign  actors  as  the  Italian  government  and  the  Vatican,  whereby  the 
majority  of  those  occupying  the  Church  were  able  to  leave  for  their  homes  in  the  vi- 
cinity of  Bethlehem,  while  twenty  six  were  transferred  to  Gaza  and  thirteen  wanted 
men  were  deported  to  a  number  of  European  countries  that  undertook  to  host 
them  in  restrictive  conditions. 

Additional  Examples  of  Abuse 

While  the  case  studies  analyzed  above  clearly  exemplify  on  a  large  scale  the  modus 
operandi  of  terror  organizations  in  utilizing  and  abusing  accepted  civil  and  human- 
itarian norms  and  institutions,  other  less  grandiose,  but  no  less  serious  examples  of 
such  abuses  abound  on  a  daily  basis,  all  of  which  involve  some  manner  of  element 

281 


Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror 

shielding  and  perfidy  in  violation  of,  and  abuse  by,  the  terrorists  of  central  compo- 
nents of  international  humanitarian  law  norms  and  instruments.  The  use  of  civil- 
ian ambulances  for  carrying  arms  and  terrorists  under  recognized  humanitarian 
emblems;  the  use  of  mosques,  churches  and  schools  as  storage  space  for  weapons  and 
explosives;  travel  by  wanted  terrorists  in  vehicles  accompanied  by  children  and  family; 
location  of  offices  and  headquarters  in  dense  residential  areas;  and  the  use  of  innocent 
vehicles  to  approach  and  attack  roadblocks  are  illustrative  examples. 

The  techniques  developed  for  rendering  the  weapons  of  terrorism  more  lethal 
cynically  and  blatantly  utilize  normal  civilian  objects  in  order  to  enhance  the  extent 
of  the  damage  caused  by  a  suicide  bomber.  For  instance,  sharpened  metal  shavings, 
rusty  screws  and  ball  bearings  are  added  to  the  "concoction"  of  explosive  materials 
and  placed  into  the  suicide  belts  in  order  to  increase  the  damage  to  internal  organs 
and  to  increase  infection,  germ  impregnation  and  other  such  inventive  and  horrific 
means — all  clearly  in  violation  of  basic  humanitarian  principles. 

Legal  Dilemma 

The  irony  of  the  situation  is  that  despite  the  fact  that  the  accepted  rationale  of  such 
terms  as  "combatant,"  "legitimate  target,"  "defended  locality"  and  "human 
shield,"  as  well  as  the  situation  of  "military  necessity,"  have  become  blurred  in  the 
context  of  a  war  on  terror,  the  international  community  is  still  geared  to  somewhat 
anachronistic  conceptions  of  armed  conflict  between  States,  and  presumes  to 
judge  those  fighting  terror  by  such  criteria  and  standards.  Hence,  in  some  cases,  re- 
action in  international  fora  to  actions  by  Israel  and  the  United  States  (as  well  as 
others)  takes  a  more  critical  view  of  the  actions  taken  against  the  terrorists,  while 
overlooking  the  terrorist  acts  that  have  themselves  given  rise  to  the  need  for  re- 
sponse. This  dilemma  is  compounded  by  a  situation  in  the  various  international 
political  fora  in  which  automatic  majority  resolutions  are  adopted  condemning 
those  that  fight  terror  while  unwittingly  (or  deliberately)  giving  encouragement  to 
those  supporting  and  perpetrating  the  terror,  instilling  them  with  the  confidence 
that  their  actions  are  indeed  achieving  their  intended  political  ends. 

Conclusion 

Clearly,  the  international  community  must  come  to  terms  with  the  existence  of 
modern-day  terror  and  the  need  to  deal  with  it  both  militarily  and  legally.  To  do  so 
requires  addressing  the  motivation  driving  terror — especially  the  religious,  educa- 
tional and  social  element  inherent  in  the  vast  rate  of  incitement  feeding  terror  from 
the  youngest  of  ages.  This  might  require  some  reevaluation  of  human  rights  concepts 


282 


Alan  Baker 


in  the  context  of  dealing  with  terrorist  infrastructures.  It  also  requires  addressing  the 
capability  of  terrorists  to  act,  including  dealing  with  those  States  and  organizations  that 
finance,  support,  encourage,  and  glorify  terror,  and  thereby  grant  the  terrorists  the 
green  light  to  continue  with  their  activities. 

Here  the  international  community  in  its  most  developed  and  organized  form — the 
United  Nations  and  its  related  organs,  as  well  as  the  major  human  rights  and  interna- 
tional humanitarian  law  bodies — political,  social,  as  well  as  legal — must  re-evaluate 
the  way  in  which  they  address  the  problem.  Rather  than  systematically  criticize  those 
that  fight  terror  through  allowing  a  parliamentary  majority  to  dictate  resolutions  that 
are  viewed  as  encouraging  terrorism,  this  community  must  tackle  that  aspect  of  the 
problem  and  not  allow  itself  to  be  abused  and  utilized  for  furthering  terror. 

Both  from  the  case  studies  and  situations  examined  in  this  article,  it  is  clear  that 
the  international  community  is  presently  experiencing  a  period  of  acute  change 
and  evolution  in  what  has  up  to  now  been  accepted  morality  and  behavior  in 
armed  conflict  and  warfare.  The  enemy  is  different — in  nature,  definition,  geogra- 
phy, modus  operandi,  and  in  terms  of  morality  and  responsibility. 

In  order  to  be  capable  of  dealing  with  international  terror,  and  overcoming  it, 
the  civilized  world  is  going  to  have  to  adapt  legal  concepts  and  modes  of  behavior 
to  the  exigencies  and  challenges  that  modern-day  terrorism  poses. 

Tragically, — so  far — this  is  being  achieved  by  a  system  of  default  and  trial  and 
error.  Sometimes  it  works  and  lives  are  spared.  Sometimes  it  does  not.  Practically, 
the  trial  and  error  is  taking  on  the  character  of  a  new  mode  of  international  practice 
that  is  obliging  the  international  community  to  adjust  itself  accordingly  and  to 
consider  reviewing  the  old  rules  with  a  view  to  their  possible  rejuvenation  in  light 
of  today's  terrorism.  The  question  remains  if  the  international  community  is  capa- 
ble and  prepared  to  take  up  the  challenge. 

Time — and  terror — will  tell. 

Notes 

1 .  Ambassador  Alan  Baker  is  Legal  Adviser  to  the  Israel  Ministry  of  Foreign  Affairs.  The  views 
expressed  in  this  article  are  solely  those  of  the  author. 

2.  See  the  statement  by  President  George  W.  Bush  to  the  United  Nations  General  Assembly,  Nov. 
10,  2001,  available  at  http://www.whitehouse.gOv/news/releases/2001/l  l/print/2001 1 1 10-3.html. 

3.  Convention  (IV)  Respecting  the  Laws  and  Customs  of  War  on  Land  and  Annexed 
Regulations,  The  Hague,  Oct.  18,  1907,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  69 
(Adam  Roberts  &  Richard  Guelff  eds.,  3d  ed.  2000). 

4.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed  Forces 
in  the  Field,  Geneva,  Aug.  12  1949,  75  U.N.T.S.  31,  reprinted  in  id.  at  197;  Convention  for  the 
Amelioration  of  the  Condition  of  Wounded,  Sick  and  Shipwrecked  Members  of  Armed  Forces  at 
Sea,  Geneva,  Aug.  12,  1949,  75  U.N.T.S.  85,  reprinted  in  id.  at  222;  Convention  Relative  to  the 


283 


Legal  and  Tactical  Dilemmas  Inherent  in  Fighting  Terror 

Treatment  of  Prisoners  of  War,  Geneva,  Aug.  12,  1949,  75  U.N.T.S.  135,  reprinted  in  id.  at  244; 
Convention  Relative  to  the  Protection  of  Civilians  Persons  in  Time  of  War,  Geneva,  Aug.  12, 
1949,  75  U.N.T.S.  287,  reprinted  in  id.  at  301. 

5.  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  (hereinafter  Additional  Protocol  I), 
Geneva,  June  8,  1977,  1125  U.N.T.S.  3,  reprinted  in  id.  at  422;  Protocol  Additional  (II)  to  the 
Geneva  Conventions  of  12  August  1949,  and  Relating  to  the  Protection  of  Victims  of  Non- 
International  Armed  Conflicts  (hereinafter  Additional  Protocol  II),  Geneva,  June  8,  1977,  1 125 
U.N.T.S.  609,  reprinted  in  id.  at  483. 

6.  Convention  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict,  The 
Hague,  May  14,  1954,  249  U.N.T.S.  240,  reprinted  in  id.  at  373;  Second  Protocol  to  the  Hague 
Convention  of  1954  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict,  The 
Hague,  Mar.  26,  1999,  reprinted  in  id.  at  700. 

7.  Convention  on  Prohibitions  or  Restrictions  on  the  Use  of  Certain  Conventional  Weapons 
Which  May  be  Deemed  to  be  Excessively  Injurious  or  to  Have  Indiscriminate  Effects,  and 
Protocols  I— III  thereto,  Geneva,  Oct.  10,  1980,  reprinted  in  id.  at  520  and  Protocol  IV,  Oct.  13, 
1995,  reprinted  in  id.  at  535. 

8.  Convention  on  the  Prohibition  of  Development,  Production  and  Stockpiling  of 
Bacteriological  (Biological)  and  Toxin  Weapons  and  on  Their  Destruction,  London,  Moscow  & 
Washington,  Apr.  10,  1972,  1015  U.N.T.S.  164. 

9.  See  United  Nations  General  Assembly  Resolution  302(IV),  Dec.  8, 1949,  on  Assistance  to  the 
Palestinian  Refugees,  and  subsequent  annual  resolutions  adopted  by  the  United  Nations  General 
Assembly  renewing  and  extending  the  functions  and  mandate  of  UNRWA. 

10.  United  Nations  Doc.  A/52/871,  Apr.  1998.  See  also  United  Nations  Security  Council 
Resolutions  1208  (1988)  and  1296  (2000)  emphasizing  the  importance  of  safeguarding  the  civil 
and  humanitarian  nature  of  refugee  camps,  prohibiting  the  arming  of  refugee  centers  in 
"situations  where  refugees  and  internally  displaced  persons  are  . . .  vulnerable  to  infiltration  by 
armed  elements  and  where  such  situations  may  constitute  a  threat  to  international  peace  and 
security." 

11.  1995  Israeli-Palestinian  Interim  Agreement  and  related  documentation. 

12.  See  for  instance  BBC  report  by  correspondent  Barbara  Plett,  August  7,  2002:  "In  vivid  reds, 
blues  and  yellows,  in  murals  and  sweeping  Arabic  script,  the  graffiti  celebrates  suicide  bombers 
as  heroes,  along  with  other  Palestinian  fighters.  Their  attacks  are  called  martyrdom  operations." 
Available  at  http://news.bbc.co.Uk/2/hi/middle-east/2 1 79609. stm. 

13.  See  Mohammed  Dajani,  Palestinian  Coverage  ofjenin,  PALESTINE  ISRAEL  JOURNAL,  Vol.  10, 
No.  2,  June  2003. 

14.  Article  52(2)  of  Additional  Protocol  I,  supra  note  5,  to  the  1949  Geneva  Conventions, 
requiring  the  distinction  between  civil  and  military  objectives,  and  limiting  attacks  to  military 
objectives,  described  as  "those  objects  which  by  their  nature,  location,  purpose  or  use  make  an 
effective  contribution  to  military  action  and  whose  total  or  partial  destruction,  capture  or 
neutralization,  in  the  circumstances  ruling  at  the  time,  offers  a  definite  military  advantage." 
Neither  Israel  nor  the  United  States  are  party  to  this  Protocol,  but  several  of  its  central  articles  are 
widely  viewed  as  representing  customary  international  law. 

15.  Id. 

16.  See  AL  SHARK  AL  AWSAT  (London),  Apr.  9,  2002. 

17.  See  AL-HAYAT  (London),  Apr.  9,  2002. 

18.  See  AL-AHRAM  (Cairo),  Apr.  19-24, 2002,  statements  by  the  main  bomb-maker  in  the  town 
of  Jenin.  See  also  additional  statements  by  Palestinian  terrorists,  quoted  in  Anatomy  of  Anti- 


284 


Alan  Baker 


Israel  Incitement:  Jenin,  World  Opinion  and  the  Massacre  that  Wasn't,  Anti-Defamation  League, 
June,  2002. 

19.  UNRWA  press  release,  Jerusalem/08/2002;  available  at  http://cnn.wo rldnews.printthis 
xlickability.com;  BBC,  http://news.bbc.co.uk./2/hi.middle-east/1937387.stm.  See  also  UNISPAL 
press  release  of  April  12,  2002  regarding  the  statement  by  the  Special  Rapporteur  on  Extrajudicial, 
Summary  or  Arbitrary  Executions,  Ms.  Asma  Jahangir,  as  well  as  the  report  of  United  Nations 
Commissioner  on  Human  Rights,  Mary  Robinson  to  the  58th  Session  of  the  Commission  on 
Human  Rights,  Apr.  15,  2002. 

20.  Physicians  for  Human  Rights  press  release  Apr.  30,  2002;  Amnesty  International,  Israel  and 
the  Occupied  Territories  Shielded  from  Scrutiny:  IDF  Violations  in  Jenin  and  Nablus,  available 
at  http://web.amnesty.org/library/Index/engMDE151432002;  Human  Rights  Watch:  Jenin:  IDF 
Military  Operations,  available  at  http://hrw.org/reports/2002/israel3. 

21.  United  Nations  Security  Council  Resolution  1405  (2002),  dated  Apr.  19,  2002. 

22.  See  A/ES-10/186  dated  July  30,  2002  at  paragraph  56.  This  report  includes  a  detailed 
description  of  the  extent  of  Palestinian  fortifications  in  the  refugee  camp  (paragraphs  45-47) 
and  a  description  of  the  battle  within  the  built-up  area  of  the  camp  (paragraphs  50-52). 

23.  For  a  detailed  description  of  the  history  and  structure  of  the  Church  of  the  Nativity,  see 
Qustandi  Shomali,  Church  of  the  Nativity,  available  at  www.unesco.org/archi2000/pdf/ 
shomali.pdf. 

24.  See  ABC,  CBC,  and  BBC  reporting,  May  1-10,  2002. 

25.  On  April  8, 2002,  Vatican  spokesman  Joaquin  Navarro-Valls  issued  a  stern  warning  to  Israel 
to  respect  religious  sites  and  stated  that  the  Holy  See  was  following  the  events  with  "extreme 
apprehension." 

26.  Supra  note  6. 

27.  Supra  note  5. 


285 


XVI 


International  Humanitarian  Law: 
Should  It  Be  Reaffirmed, 
Clarified  or  Developed? 

Jean-Philippe  Lavoyer1 

Introduction 

The  aim  of  this  paper  is  to  give  an  overview  of  some  concrete  problems  of  ap- 
plication of  international  humanitarian  law  (IHL)  and  then  to  look  towards 
possible  future  remedies.  This  will  be  done  from  the  practice  oriented,  operational 
perspective  of  the  International  Committee  of  the  Red  Cross  (ICRC). 

The  ICRC  is  mandated  by  States,  in  particular  through  the  1949  Geneva  Con- 
ventions and  their  1977  Additional  Protocols,  as  well  as  the  Statutes  of  the  Interna- 
tional Red  Cross  and  Red  Crescent  Movement,  to  act  as  promoter  and  "guardian" 
of  IHL.  This  role  has  many  facets.  It  ranges  from  the  promotion  of  IHL  treaties,  the 
monitoring  of  respect  of  IHL  by  the  parties  to  armed  conflicts,  the  dissemination  of 
IHL,  to  preparing  developments  of  IHL.2 

For  the  ICRC,  an  institution  present  in  almost  all  the  "hot  spots"  of  the  world,  the 
main  challenge  is  ^vithout  any  doubt  the  proper  application  of  IHL  in  today's  armed 
conflicts.  Extensive  research  into  recent  armed  conflicts  has  led  the  ICRC  to  conclude 
that,  on  the  whole,  the  existing  rules  are  adequate  enough  to  deal  with  today's  armed 
conflicts.  While  the  main  problem  is  therefore  not  a  lack  of  rules,  this  does  not  mean 
that  the  law  is  perfect.  Like  any  law,  IHL  is  the  result  of  careful  and  difficult  compro- 
mises, in  this  case  between  considerations  of  humanity,  military  necessity  and  the  need 


International  Humanitarian  Law 


to  protect  the  security  of  the  State.  It  must  be  stressed  that  the  ICRC's  conclusion  on 
the  adequacy  of  IHL  does  not  mean  that  it  would  in  any  way  ignore  the  many  chal- 
lenges with  regards  to  the  application  of  the  law,  including  those  relating  to  the  fight 
against  terrorism,  nor  the  need  for  IHL  to  evolve  together  with  the  realities  of  war. 

Especially  following  the  attacks  of  September  1 1,  2001,  questions  have  been 
raised  about  whether  IHL  was  still  adequate  to  respond  to  today's  challenges.  The 
debate  has  taken  various  forms.  At  the  beginning  of  2003,  the  Swiss  Government 
and  the  Harvard  Program  on  Humanitarian  Policy  and  Conflict  Research  orga- 
nized an  informal  expert  meeting  on  contemporary  challenges  of  IHL  for  a  group 
of  States  and  independent  experts,  as  well  as  the  United  Nations  and  the  ICRC. 
The  experts  identified  a  number  of  topics  deserving  further  examination  and 
clarification.  But  at  the  same  time  they  also  strongly  reaffirmed  the  validity  of 
current  humanitarian  law  and  the  necessity  to  apply  it.3  A  second  meeting  was 
held  in  June  2004.4 

The  ICRC  for  its  part  has  taken  a  number  of  initiatives  that  will  be  mentioned 
later  in  this  paper,  with  a  view  to  reaffirm,  clarify  or  develop  IHL. 

The  first  part  of  this  paper  will  highlight  some  of  the  current  challenges.  It  will 
address  two  aspects:  first,  some  important  general  obligations  under  IHL  will  be  re- 
called, and  second,  some  special  challenges  linked  to  the  "war  on  terror"  will  be 
briefly  discussed. 

Challenges  Of  A  General  Nature 

The  more  general  challenges  facing  IHL  can  be  subdivided  very  roughly  according 
to  the  following  timeline:  obligations  in  peacetime,  obligations  during  armed  con- 
flict and  obligations  after  the  armed  conflict.  Even  if  these  different  phases  will  of- 
ten overlap,  these  distinctions  provide  a  useful  analytical  framework. 

Before  addressing  some  concrete  obligations,  a  word  should  be  said  about  the 
importance  for  States  to  widely  ratify  IHL  treaties.  Indeed,  broad  ratification  of 
IHL  treaties  confirms  the  validity  of  the  rule  and,  therefore,  contributes  to  improv- 
ing compliance.  A  look  at  the  list  of  the  State  parties  to  the  main  IHL  treaties  shows 
that  there  is  still  a  great  effort  to  be  undertaken  to  promote  these  treaties  in  order  to 
obtain — ideally — universal  adherence.5 

Obligations  in  Peacetime 

Many  States  have  still  not  fully  incorporated  IHL  treaties  into  their  domestic  law.  It 
is  not  sufficient  to  ratify  a  treaty;  it  must  also  be  implemented,  i.e.,  integrated,  at  the 
national  level.  One  particularly  important  area  is  the  adoption  of  domestic  law  that 
makes  it  possible  to  prosecute  grave  breaches  and  other  serious  violations  of  IHL, 

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based  on  the  principle  of  universal  jurisdiction.  There  is  also  a  need  to  adequately 
protect,  inter  alia,  the  red  cross  and  red  crescent  emblems. 

The  ICRC's  Advisory  Service  on  International  Humanitarian  Law,  created  pur- 
suant to  a  proposal  by  the  26th  International  Conference  of  the  Red  Cross  and  Red 
Crescent  in  1995,  promotes  national  implementation  and  gives  technical  advice  to 
States  through  its  legal  advisers  based  in  Geneva  and  in  several  field  delegations. 

Practice  in  the  last  few  years  has  shown  that  "National  Committees  on  IHL"  are 
a  very  successful  tool  for  the  promotion  of  IHL  generally,  and  for  national  imple- 
mentation measures  in  particular.  There  are  at  present  more  than  70  such  inter- 
ministerial  committees. 

In  order  to  assist  States,  the  ICRC  has  put  many  examples  of  national  legislation 
on  its  website.6  In  addition,  it  has  recently  set  up  an  electronic  forum  open  to  na- 
tional committees  on  IHL.  Its  aim  is  to  facilitate  contacts  between  national  com- 
mittees and  between  them  and  the  ICRC.  This  forum  will  also  allow  these 
committees  to  engage  in  an  interactive  debate. 

Another  important  obligation  even  in  peacetime  is  the  dissemination  and  teach- 
ing of  IHL,  especially  to  the  armed  forces.  It  should  be  acknowledged  that  in  recent 
years,  States  have  undertaken  increasing  efforts  in  this  respect.  At  the  same  time,  it  is 
also  obvious  that  much  more  needs  to  be  done.  It  is  indeed  crucial  that  the  principles 
and  rules  of  IHL  are  fully  incorporated  into  military  courses  and  training. 

Obligations  during  Armed  Conflict 

If  we  look  at  the  different  phases — obligations  in  peacetime,  during  armed  conflict 
and  after  the  conflict  is  over — it  is  clearly  respect  of  IHL  during  armed  conflicts 
that  is  the  most  important  challenge.  It  is  on  this  phase  that  States  should  concen- 
trate their  efforts,  whether  or  not  they  are  involved  in  an  armed  conflict. 

In  this  regard,  special  attention  should  be  drawn  to  the  obligation  not  only  to  re- 
spect, but  also  to  "ensure  respect"  for  IHL,  as  stated  in  Article  1  common  to  the 
1949  Geneva  Conventions  and  Article  1  of  1977  Additional  Protocol  I.7  A  further 
reference  should  be  made  to  Article  89  of  Additional  Protocol  I.8 

However,  the  notion  of  "ensuring  respect"  is  vague  and  its  substantive  content 
difficult  to  grasp.  This  notion  definitely  needs  to  be  clarified.  This  issue  will  be  ad- 
dressed in  more  detail  in  the  second  part  of  this  paper. 

How  to  apply  the  law  in  internal  armed  conflicts  is  likely  to  remain  a  major  chal- 
lenge in  the  future,  especially  in  situations  where  the  conflict  is  exacerbated  by  reli- 
gious and  ethnic  components.  Furthermore,  particular  challenges  for  respect  of 
IHL  are  situations  where  State  structures  have  disintegrated,  where  chains  of  com- 
mand are  disrupted,  where  there  is  a  general  breakdown  of  law  and  order  and 
where  law  in  general  has  ceased  to  be  a  relevant  reference. 

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In  the  recent  past,  a  new  challenge  has  emerged,  a  challenge  referred  to  as 
"asymmetric  warfare,"  i.e.,  situations  where  due  to  the  availability  of  high  technol- 
ogy weapons  in  the  hands  of  one  of  the  parties  to  an  armed  conflict,  there  is  a  clear 
imbalance  between  the  belligerents.  This  situation  tends  to  force  the  adversary  that 
is  overwhelmed  by  the  other  party  to  the  conflict  to  use  means  and  methods  of  war- 
fare that  are  prohibited  under  IHL.  The  implications  of  this  challenge  must  still  be 
fully  examined,  but  it  is  likely  that  in  future  military  operations,  this  imbalance  of 
power  will  tend  to  increase. 

Finally,  it  has  to  be  recognized  that  all  too  often,  violations  of  IHL  are  not  due  to 
a  lack  of  knowledge  of  IHL,  but  rather  to  lack  of  political  will  to  apply  that  law.  The 
difficult  challenge  ahead  of  us  will  be  how  to  generate  political  will  among  the  par- 
ties to  armed  conflicts. 

Obligations  after  the  Armed  Conflict 

The  prosecution  of  those  suspected  to  have  committed  grave  breaches  of  IHL  is  es- 
sential. It  is  regrettable  that  States  have  only  rarely  applied  the  principle  of  univer- 
sal jurisdiction,  although  it  was  established  through  the  Geneva  Conventions  in 
1949.9  In  the  last  ten  years,  important  developments  have  taken  place  at  the  inter- 
national level,  with  the  creation  of  the  ad  hoc  tribunals  for  the  former  Yugoslavia 
and  Rwanda,  of  the  mixed  tribunals  for  Sierra  Leone  and  Cambodia,  as  well  as  of 
the  International  Criminal  Court. 

As  already  indicated,  the  prosecution  of  war  crimes  at  the  national  level  is  linked 
to  the  existence  of  appropriate  domestic  legislation. 

States  have  additional  obligations  once  the  hostilities  are  over:  prisoners  of  war 
must  be  released  and  repatriated  without  delay  after  the  cessation  of  active  hostili- 
ties.10 Likewise,  civilian  internees  must  be  released  after  the  close  of  hostilities  and 
States  shall  endeavor  to  facilitate  their  repatriation.11 

A  Special  Challenge:  The  "War  on  Terror" 

The  use  of  force  by  groups  operating  transnationally  is  certainly  another  key  chal- 
lenge. What  legal  qualification  must  be  given  to  terrorist  acts  committed  by  trans- 
national groups  on  the  one  hand — and  to  counter-terrorist  activities  on  the  other 
hand?  Regrettably,  this  debate  has  led  to  some  confusion  and  uncertainty  about 
IHL.  This  body  of  law  has  been  criticized  for  not  being  adequate  to  deal  with  the 
"war  on  terror."  It  has  to  be  acknowledged  that  violent  activities  by  transnational 
groups  raise  many  difficult  challenges — including  in  the  legal  field. 

It  has  been  asserted  that  terrorist  attacks — including  the  attacks  of  September 
11,  2001 — as  well  as  counter-terrorist  activities  were  part  of  a  global  "armed 

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conflict"  in  the  legal  sense,  an  armed  conflict  that  started  years  ago  and  that  will 
continue  until  the  end  of  terrorist  activities.  Such  a  conclusion  would  have  consid- 
erable consequences  in  practice,  especially  if  it  is  used  to  justify  that  States  could 
theoretically  strike  the  transnational  group  at  any  time  and  everywhere — without 
having  to  obtain  any  kind  of  approval,  e.g.,  from  those  States  on  whose  territories 
the  military  interventions  take  place. 

This  debate  has  shown  that  there  is  all  too  often  confusion  between  jus  in  hello 
and  jws  ad  helium.  This  confusion  is  extremely  regrettable,  asjt/s  in  hello  (interna- 
tional humanitarian  law)  has  to  be  separated  from  the  question  of  the  jus  ad  helium 
(use  of  force).  The  latter  is  not  regulated  by  IHL,  but  by  the  United  Nations  Char- 
ter. It  therefore  becomes  problematic  if  the  notion  of  armed  conflict — a  typical 
IHL  notion — is  employed  to  justify  the  use  of  force.  This  justification,  as  well  as 
brushing  aside  the  traditional  law  enforcement  paradigm,  is  a  risky  undertaking 
that  could  adversely  affect  international  relations. 

The  ICRC  has  done  considerable  legal  research  into  the  question  of  whether  the 
"war  against  terror"  should  be  considered  in  toto  as  an  armed  conflict  in  the  sense 
of  IHL.  For  the  time  being,  and  based  on  its  long  practice  of  IHL  throughout  the 
world,  it  feels  uncomfortable  with  the  notion  that  the  different  attacks  and  reac- 
tions thereto  are  part  of  a  worldwide  armed  conflict.  The  "war  on  terror"  does  not 
fit  well  into  the  existing  categories  of  armed  conflict. 

First,  in  the  ICRC's  view,  terrorist  and  counter-terrorist  activities  cannot  be 
viewed  as  an  international  armed  conflict.  Such  a  conflict  can  occur  only  between 
States.12  Second,  could  the  "war  on  terror"  be  a  non-international  armed  conflict?13 
This  would  raise  a  number  of  questions — when  and  where  does  the  conflict  take 
place?  Who  are  the  parties  to  the  conflict?  What  is  the  beginning  and  what  is  the 
end  of  such  conflict?  In  the  view  of  the  ICRC,  no  satisfactory  answers  have  so  far 
been  given  to  these  and  other  questions. 

One  fundamental  requirement  of  IHL  should  be  recalled  here:  during  an  armed 
conflict,  all  the  parties  to  the  conflict  have  the  same  rights  and  obligations.  To  qual- 
ify the  "war  on  terror"  as  an  armed  conflict  would  give  legitimacy  to  the  transna- 
tional groups  as  a  party  to  the  armed  conflict,  with  rights  and  obligations,  an  effect 
that  is  probably  not  intended  by  States.  So  far  in  the  debate  on  the  "war  on  terror," 
those  advocating  that  it  represents  an  armed  conflict  have  indeed  given  the  impres- 
sion that  this  balance  no  longer  exists. 

The  "war  on  terror"  can  very  well  take  the  form  of  an  armed  conflict  in  the  tradi- 
tional IHL  sense.  The  military  operations  that  started  in  Afghanistan  on  October  7, 
2001  were  clearly  an  international  armed  conflict,  and  generally  understood  to  be 
causally  related  to  terrorism.  Likewise,  no  one  questioned  the  qualification  of  the  more 
recent  military  campaign  in  Iraq  as  an  international  armed  conflict,  although  its 

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relationship  to  terrorism  and  counter-terrorism  has  been  controversial.  In  the  mean- 
time, the  armed  conflicts  both  in  Afghanistan  and  Iraq  became  non-international  in 
character  after  the  establishment  of  national  authorities. 

Terrorism  is  a  complex  issue  that  must  be  faced  with  a  variety  of  tools,  depending 
on  the  results  to  be  achieved.  Experience  has  shown  that  armed  conflict — and  IHL — 
are  usually  not  the  best  tool  to  fight  terrorism,  since  force  as  such  will  often  not  lead 
to  the  most  adequate  solution  to  the  problem.  Among  the  more  effective  tools  are  in- 
ternational cooperation  between  States,  e.g.,  sharing  of  intelligence,  police  and  judi- 
cial cooperation,  domestic  law  enforcement,  financial  investigations  and  freezing  of 
assets  belonging  to  terrorist  groups,  and  improved  control  of  arms  trade  and  of  the 
proliferation  of  weapons  of  mass  destruction.  Finally,  it  has  to  be  said  that  terrorism 
is  unlikely  to  disappear  if  its  root  causes  are  not  properly  addressed. 

Terrorist  acts  are  foremost  crimes  that  a  series  of  international  conventions 
have  criminalized.  The  further  development  of  international  law  in  this  field  could 
be  an  important  contribution  to  the  fight  against  terrorism. 

This  question  of  legal  qualification  has,  of  course,  implications  on  the  legal  sta- 
tus of  those  captured  during  the  fight  against  terrorism.  This  issue  will  be  dealt  with 
only  very  briefly  here. 

First,  there  is  a  presumption  of  prisoners  of  war  (POW)  status  for  combatants 
captured  on  the  battlefield  in  an  international  armed  conflict.14  If  there  is  a  doubt 
about  that  status,  competent  tribunals  as  foreseen  in  the  Third  Geneva  Convention 
should  come  into  action.15  To  make  a  blanket  determination  and  to  disqualify 
from  the  start  all  captured  combatants  from  POW  status  raises  serious  concerns. 
Rather,  a  case-by-case  examination  must  take  place  if  there  is  a  doubt  whether  a 
person  is  a  POW  or  not.  Therefore,  it  would  be  logical  to  have  given  POW  status  to 
all  combatants  captured  by  coalition  forces  in  the  war  in  Afghanistan,16  unless  de- 
cided otherwise  by  competent  tribunals. 

Such  tribunals  may  have  had  good  reason  to  recognize  POW  status  for  members 
of  the  Taliban  armed  forces,  but  the  situation  may  be  different  for  members  of  al 
Qaeda,  even  though  one  would  have  to  take  into  account  the  factual  situation — 
what  was  the  exact  relationship  between  al  Qaeda  and  the  Taliban?  Could  acts  of 
members  of  al  Qaeda  be  attributed  to  the  Taliban  armed  forces?17 

The  extent  of  legal  protection  to  which  "unlawful  combatants"  are  entitled  has 
become  an  important  issue.  For  the  ICRC,  IHL  provides  a  comprehensive  pro- 
tection— a  person  is  protected  either  by  the  Third  Geneva  Convention  or  by  the 
Fourth  Geneva  Convention.  And  in  addition  to  IHL,  international  human  rights 
law  and  domestic  law  also  provide  protection  to  all  those  detained.  There  is  no  le- 
gal vacuum. 


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If  an  "unlawful  combatant" — or  better,  "unprivileged  belligerent" — is  not  cov- 
ered by  the  Fourth  Geneva  Convention  (e.g.,  because  of  his  or  her  nationality18), 
there  exist  additional  safeguards,  which  are  common  Article  3  to  the  Geneva  Con- 
ventions and  Article  75  of  Additional  Protocol  I,19  which  is  regarded  as  reflecting 
customary  law,  including  by  the  United  States. 

One  further  challenge  of  the  "war  on  terror"  is  the  question  of  how  long  "un- 
lawful combatants"  may  be  detained.  As  already  indicated  above,  both  the  Third 
and  the  Fourth  Geneva  Conventions  contain  specific  rules  about  release  and  re- 
patriation. To  detain  persons  that  are  protected  under  IHL  not  just  until  the  end 
of  hostilities  with  Afghanistan  or  with  other  countries,  but  until  the  end  of  the 
"war  on  terror"  (that  could  easily  be  many  years  ahead  of  us)  would  certainly 
raise  serious  difficulties. 

To  come  back  to  the  more  general  question  of  how  to  qualify  the  "war  on  ter- 
ror," it  is  suggested  that  IHL  applies  to  terrorism  and  counter- terrorism  when  the 
level  of  force  used  amounts  to  an  armed  conflict.  This  approach  limits  the  scope  of 
IHL  to  those  situations  it  has  been  intended  to  regulate.  Acts  of  terrorism  and  the 
responses  thereto  must  therefore  be  qualified  on  a  case-by-case  basis. 

IHL  is  well  equipped  vis-a-vis  terrorist  activities  committed  in  the  context  of  an 
armed  conflict.  It  prohibits  all  acts  commonly  considered  as  "terrorist."  As  an  ex- 
ample, both  Additional  Protocols  of  1977  prohibit  "acts  or  threats  of  violence  the 
primary  purpose  of  which  is  to  spread  terror  among  the  civilian  population."20  IHL 
also  prohibits  attacks  against  the  civilian  population,  be  they  direct  or  indiscrimi- 
nate.21 It  protects  goods  that  are  indispensable  to  the  survival  of  the  civilian  popu- 
lation (like  food,  agricultural  areas,  livestock,  drinking  water  installations, 
irrigation  works),  cultural  objects  and  places  of  worship,  works  and  installations 
containing  dangerous  forces,  as  well  as  the  natural  environment.22  The  taking  of 
hostages  is  prohibited.23  Furthermore,  persons  that  find  themselves  in  the  hands  of 
the  enemy  enjoy  special  protection.24 

If  an  attack  is  carried  out  by  a  civilian — who  thus  becomes  an  "unlawful  com- 
batant"— that  person  loses  his/her  protected  status  as  a  civilian  during  the  time  of 
the  "direct  participation"  in  the  hostilities  and  becomes  a  legitimate  military  target. 
Also,  civilians  having  participated  directly  in  the  hostilities  can  be  punished  for 
having  done  so.  IHL  is  by  no  means  an  obstacle  to  justice,  as  some  commentators 
have  asserted.  In  fact,  quite  the  opposite  is  the  case. 

These  are  difficult  questions,  and  there  is  no  doubt  that  more  work  has  to  be 
done  on  the  different  facets  of  the  "war  on  terror."  The  dialogue  must  continue.  In 
the  meantime,  it  is  extremely  important  that  persons  suspected  of  having  commit- 
ted terrorist  acts  are  not  denied  individual  basic  rights  and  due  process  of  law. 


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Any  development  of  IHL  at  present  or  in  the  future  should  build  on  existing 
standards  and  should  not  undermine  a  solid  body  of  law  that  has  taken  more  than  a 
century  to  develop. 

Having  said  this,  it  would  seem  that  the  solution  to  the  legal  questions  around 
the  "war  on  terror"  has  to  be  looked  for  not  so  much  within  IHL,  but  rather  in  the 
jus  ad  helium,  as  it  appears  that  the  fundamental  problem  is  about  the  recourse  to 
force.  To  change  the  rules  in  that  field  would,  however,  necessitate  an  amendment 
of  the  UN  Charter. 

The  Future  of  International  Humanitarian  Law 

The  second  part  of  this  paper  deals  with  challenges  in  three  very  specific  ways: 
which  parts  of  IHL  need  to  be  either  reaffirmed,  clarified  or  developed?  This  is  not 
supposed  to  be  an  exhaustive  enumeration,  but  rather,  a  suggestion  of  examples 
that  could  provide  a  useful  basis  for  discussion. 

The  Need  for  Reaffirmation  of  IHL 

Generally  speaking,  existing  IHL  needs  to  be  vigorously  reaffirmed.  As  already  in- 
dicated, IHL  is  not  perfect,  but  its  rules  represent  a  careful  balance  between  mili- 
tary imperatives  and  considerations  of  humanity.  It  is  of  utmost  importance  to 
reaffirm  in  particular  the  obligations  referred  to  earlier.  However,  reaffirmation  is 
also  urgent  in  some  more  specific  fields  that  will  be  enumerated  below. 

In  the  ICRC's  opinion,  it  is  for  example  important  to  strongly  reaffirm  the 
prohibition  of  use  of  poisons  or  infectious  disease  in  armed  conflict.  This  con- 
cern is  based  on  the  fact  that  important  and  rapid  advances  are  taking  place  in  life 
sciences  and  in  particular  in  the  field  of  biotechnology.  These  advances  will  bene- 
fit humanity  in  several  ways,  like  the  production  of  new  vaccines,  of  new  cures  for 
diseases  or  for  increasing  food  production.  But  at  the  same  time,  there  is  a  grow- 
ing risk  that  the  same  advances  could  be  used  for  hostile  purposes,  to  poison  or 
deliberately  spread  disease.  These  concerns  have  increased  following  the  attacks 
of  September  1 1 ,  200 1  and  also  by  the  failure  of  States  to  strengthen  the  1972  Bio- 
logical Weapons  Convention  through  the  adoption  of  a  compliance  monitoring 
mechanism.  The  implication  of  the  misuse  of  biotechnology  could  be  devastating 
for  humanity. 

In  response  to  its  grave  concerns  about  the  capacity  of  misuse  of  new  advances 
in  biotechnology  and  the  lack  of  effective  controls  at  an  international  level,  the 
ICRC  launched  an  Appeal  called  "Biotechnology,  Weapons  and  Humanity."  The 
launch  took  place  in  Montreux,  Switzerland  on  September  23,  2002,  coinciding 
with  an  informal  meeting  of  government  and  independent  experts.25  The  Appeal  is 

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addressed  to  the  political  and  military  authorities,  to  the  scientific  and  medical 
communities,  and  to  the  biotechnology  and  pharmaceutical  industries. 

The  Appeal  focuses  on  the  risks,  rules  and  responsibilities  in  relation  to  ad- 
vances in  biotechnology  being  used  for  poisoning  or  deliberate  spread  of  disease.  It 
describes  the  risks  by  giving  concrete  examples,  calls  for  the  reaffirmation,  imple- 
mentation and  reinforcement  of  the  1925  Geneva  Protocol  and  the  1972  Biological 
Weapons  Convention,  and  calls  on  governments,  the  military,  the  scientific  and 
medical  communities  as  well  as  the  pharmaceutical  and  biotechnological  indus- 
tries to  ensure  that  advances  in  biotechnology  are  not  diverted  for  use  as  weapons 
or  for  other  hostile  purposes. 

In  addition,  the  Appeal  calls  for  a  high-level  political  declaration,  to  be  adopted 
at  a  ministerial  level.  In  January  2004  the  ICRC  hosted  a  meeting  with  States  about 
beginning  a  process  to  explore  how  the  international  community  could  adopt  such 
a  declaration.  At  the  same  time  the  ICRC  has  started  to  reach  out  to  the  key  target 
groups,  i.e.,  medical  researchers,  academic  scientists,  scientists  working  in  indus- 
tries, defense  scientists,  etc. 

Another  issue  that  in  the  view  of  the  ICRC  needs  to  be  reaffirmed  is  the  protec- 
tion of  cultural  property  in  situations  of  armed  conflict.  It  is  important  that  States 
become  party  to  the  relevant  instruments,  in  particular  the  1954  Convention  and 
its  1999  Protocol,  which  further  develops  the  Convention.  Recent  conflicts  have 
shown  that  the  protection  of  cultural  property  is  crucial  in  the  sense  that  through 
attacking  cultural  property,  the  attacker  destroys  the  very  heart  of  a  civilization. 

Concerning  the  need  to  reaffirm  the  validity  of  IHL,  the  28th  International  Red 
Cross  and  Red  Crescent  Conference  that  took  place  in  Geneva  from  December  2-6, 
2003  was  an  important  opportunity.  The  International  Conference  is  a  unique  fo- 
rum to  discuss  humanitarian  issues.  It  meets  every  four  years.  The  participants  are 
the  States  party  to  the  Geneva  Conventions,  the  National  Red  Cross  or  Red  Cres- 
cent Societies,  their  International  Federation  and  the  ICRC.26  This  mixture  be- 
tween States  and  non-State  entities  is  certainly  one  of  the  noteworthy  features  of 
the  International  Conference. 

The  International  Conference  adopts  resolutions  that  are  as  such  not  legally 
binding.  They  are  nevertheless  important  documents  that  are  often  cited.  A  good 
example  are  the  Statutes  of  the  International  Red  Cross  and  Red  Crescent  Move- 
ment that  describe  the  tasks  of  the  components  of  the  Movement.  They  were 
adopted  by  consensus  and  have  therefore  become  a  very  authoritative  statement. 
IHL  is  always  high  on  the  agenda  of  the  International  Conference. 

The  overall  theme  of  the  last  International  Conference  was  "Protecting  Human 
Dignity."  It  was  attended  by  more  than  1,700  delegates  from  153  States  and  176 
National  Red  Cross  or  Red  Crescent  Societies,  by  the  International  Federation  and 

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the  ICRC.  There  were  also  64  observers.  Never  before  had  their  participation  been 
so  important. 

The  Conference  opened  with  a  welcoming  ceremony,  followed  by  plenary  meet- 
ings and  meetings  in  commissions.  In  parallel,  the  Drafting  Committee  met.  At  the 
end  of  every  day,  workshops  took  place  that  were  not  part  of  the  official  program, 
but  that  allowed  informal  discussions.  The  participants  also  had  the  possibility  to 
make  individual  or  collective  pledges.  More  than  360  such  pledges  were  made,  thus 
reinforcing  the  impact  of  the  International  Conference. 

The  27th  International  Conference  in  1999  had  adopted  a  Plan  of  Action  for  the 
Years  2000  to  2003.  This  time,  the  Conference  adopted  two  important  documents: 
a  Declaration  highlighting  the  continued  relevance  of  IHL  and  an  Agenda  for  Hu- 
manitarian Action.27 

The  Declaration  with  the  title  "Protecting  Human  Dignity"  is  a  short  text  of  two 
and  a  half  pages.  It  reaffirms  forcefully  what  "protecting  human  dignity"  actually 
means.  This  makes  this  document  so  important.  The  Declaration  contains  a  clear 
reaffirmation  of  States'  obligation  to  respect  and  ensure  respect  for  humanitarian 
law.  It  calls  upon  the  parties  to  an  armed  conflict  to  make  all  efforts  to  reduce  inci- 
dental, and  prevent  deliberate  injury,  death  and  suffering  of  civilian  populations. 
The  need  to  protect  women  and  children  is  highlighted. 

The  Declaration  recalls  that  IHL  is  applicable  to  all  situations  of  armed  conflict 
and  foreign  occupation.  It  vigorously  condemns  all  acts  or  threats  of  violence 
aimed  at  spreading  terror  among  the  civilian  population.  Furthermore,  it  stresses 
that  all  detainees  must  be  treated  with  humanity  and  that  all  persons  alleged  to 
have  committed  crimes  must  be  granted  due  process  of  law  and  fair  trial.  The  Dec- 
laration also  firmly  states  that  humanitarian  workers  must  be  respected  and  pro- 
tected in  all  circumstances.  Their  independence  from  political  and  military  actors 
must  be  reaffirmed. 

Finally,  the  Declaration  commits  the  participants  to  reduce  the  risks  and  effects 
of  disasters  on  vulnerable  populations,  as  well  as  to  reduce  their  vulnerability  to 
disease  due  to  stigma  and  discrimination,  particularly  that  faced  by  people  living 
with  and  affected  by  HIV/AIDS. 

Whereas  the  Declaration  is  held  in  a  rather  general  way,  the  Agenda  for  Human- 
itarian Action  is  very  focused  and  deals  with  concrete  issues.  It  comprises  an  intro- 
duction, 4  General  Objectives,  15  Final  Goals  and  64  Proposed  Actions.  In  this 
paper,  only  highlights  of  some  aspects  of  IHL  will  be  provided. 

The  first  two  General  Objectives  deal  with  humanitarian  law:  the  first  is  about  miss- 
ing persons,  whereas  the  second  deals  with  weapons. 

The  title  of  the  first  General  Objective  is  "Respect  and  restore  the  dignity  of  per- 
sons as  a  result  of  armed  conflicts  or  other  situations  of  armed  violence  and  of  their 


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families."  This  objective  is  based  on  the  observations  and  recommendations  of  an 
international  conference  that  the  ICRC  had  organized  in  Geneva  in  February  2003. 
The  Agenda  for  Humanitarian  Action  covers  a  broad  range  of  activities  linked  to 
missing  persons,  starting  with  the  prevention  of  persons  becoming  missing.  The 
Agenda  then  recalls  that  Article  32  of  Additional  Protocol  I  of  1977  refers  to  the 
right  of  families  to  know  the  fate  of  their  relatives. 

In  addition,  the  following  topics  are  covered  by  the  Agenda:  the  management  of 
information  and  process  files  on  missing  persons;  the  management  of  human  re- 
mains and  information  about  the  dead;  the  support  of  families  of  missing  persons; 
and  an  encouragement  of  organized  armed  groups  to  resolve  the  problem  of  miss- 
ing persons,  assist  their  families  and  prevent  persons  from  becoming  missing. 

The  title  of  the  second  General  Objective  is  "Strengthen  the  protection  of  civil- 
ians in  all  situations  from  the  indiscriminate  use  and  effects  of  weapons  and  the 
protection  of  combatants  from  unnecessary  suffering  and  prohibited  weapons 
through  controls  on  weapons  development,  proliferation  and  use."  The  following 
issues  are  dealt  with  in  this  General  Objective: 

•  End  the  suffering  caused  by  antipersonnel  mines.  States,  in  partnership  with 
the  components  of  the  Movement,  will  provide  assistance  for  the  care, 
rehabilitation,  social  and  economic  reintegration  of  war  wounded,  including 
mine  victims,  as  well  as  for  mine -awareness  and  clearance  programs.  States  will 
also  pursue  the  ultimate  goal  of  the  eventual  global  elimination  of  antipersonnel 
mines.  They  are  encouraged  to  consider  adhering  to  the  Ottawa  Convention. 
States  party  to  the  Convention  should  develop  in  time  for  the  First  Review 
Conference  that  will  take  place  in  Nairobi,  national  programs  for  clearance, 
stockpile  destruction,  mine  awareness  and  victim  assistance  consistent  with  the 
Convention's  deadlines.  The  Agenda  also  reaffirms  the  ICRC's  lead  role  in  the 
implementation  of  the  Movement  Strategy  on  Landmines.  National  societies,  in 
partnership  with  the  ICRC  and  States,  will  maintain  mine  action  among  their 
priorities  and  develop  their  capacity  in  this  regard. 

•  Minimize  suffering  from  weapons  that  may  he  extremely  injurious  or  have 
indiscriminate  effects.  The  Agenda  warmly  welcomes  the  adoption  of  a  new 
Protocol  on  "Explosive  Remnants  of  War"  to  the  1980  Convention  on  Certain 
Conventional  Weapons,  and  encourages  States  to  consider  its  ratification  as  soon 
as  possible.  States  are  encouraged  to  adhere  to  the  1980  Convention  and  to  the 
extension  of  the  Convention's  scope  of  application  to  non-international  armed 
conflict  that  occurred  in  2001.  States  are  also  encouraged  to  consider  measures  to 
minimize  the  risk  of  explosive  ordnance  becoming  explosive  remnants  of  war  and 
to  reduce  the  human  costs  of  mines  other  than  anti-personnel  mines.  In  addition, 


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States  will  rigorously  apply  the  rules  on  distinction,  proportionality  and 
precautions  in  attack,  in  order  to  minimize  civilian  deaths  and  injuries  resulting 
from  certain  munitions,  including  sub-munitions. 

•  Reduce  the  human  suffering  resulting  from  the  uncontrolled  availability  and 
misuse  of  weapons.  States  should  take  concrete  steps  to  strengthen  controls  on 
arms  and  ammunition.  In  particular,  States  should  urgently  enhance  efforts  to 
prevent  the  uncontrolled  availability  and  misuse  of  small  arms  and  light  weapons. 
They  should  make  respect  for  humanitarian  law  one  of  the  fundamental  criteria 
on  which  arms  transfer  decisions  are  assessed.  States,  with  the  support  of  the  ICRC 
and  national  societies,  should  ensure  that  armed,  police  and  security  forces  receive 
systematic  training  in  international  humanitarian  law  and  human  rights  law,  in 
particular  concerning  the  responsible  use  of  weapons. 

•  Protect  humanity  from  poisoning  and  the  deliberate  spread  of  disease.  States 
party  to  the  1972  Biological  Weapons  Convention  are  encouraged  to  continue 
their  efforts  to  reduce  the  threat  posed  by  biological  weapons.  They  are  invited  to 
work  with  the  ICRC  to  develop  a  ministerial-level  declaration  that  would  support 
efforts  within  the  framework  of  the  1972  Biological  Weapons  Convention,  on 
preventing  the  hostile  use  of  biological  agents  as  called  for  in  the  ICRC  Appeal  on 
Biotechnology,  Weapons  and  Humanity.  States  are  encouraged  to  consider 
becoming  party  to  the  1925  Gas  Protocol,  the  1972  Biological  Weapons 
Convention  and  the  1993  Chemical  Weapons  Convention.  They  are  called  upon 
to  monitor  closely  advances  in  the  field  of  the  life  sciences,  taking  practical  action 
to  effectively  control  biological  agents  that  could  be  put  to  hostile  use,  and  to 
improve  international  cooperation. 

•  Ensure  the  legality  of  new  weapons  under  international  law.  States  are  urged  to 
establish  review  procedures  to  determine  the  legality  of  new  weapons,  means  and 
methods  of  warfare  in  accordance  with  Article  36  of  Additional  Protocol  I  of  1977. 
Reviews  should  involve  a  multidisciplinary  approach,  including  military,  legal, 
environmental  and  health-related  considerations.  States  are  encouraged  to  review 
with  particular  scrutiny  all  new  weapons,  means  and  methods  of  warfare  that 
cause  health  effects  with  which  medical  personnel  are  unfamiliar. 

The  titles  of  the  third  and  fourth  General  Objectives  are  "Minimize  the  impact 
of  disasters  through  implementation  of  disaster  risk  reduction  measures  and  im- 
proving preparedness  and  response  mechanisms"  and  "Reduce  the  increased  vul- 
nerability to  diseases  arising  from  stigma  and  discrimination  and  from  the  lack  of 
access  to  comprehensive  prevention,  care  and  treatment." 

This  Agenda  for  Humanitarian  Action  is  the  continuation  of  the  Plan  of  Action 
that  was  adopted  by  the  27th  International  Conference  in  1999. 

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The  ICRC  submitted  to  the  28th  International  Conference  a  report  "Interna- 
tional Humanitarian  Law  and  the  Challenges  of  Contemporary  Armed  Conflicts" 
containing  its  analysis  of  some  major  challenges  in  the  field  of  international  hu- 
manitarian law.28  This  report  provides  the  ICRC's  analysis  on  the  following  topics: 
IHL  applicable  in  international  armed  conflicts,  IHL  applicable  in  non-interna- 
tional armed  conflicts,  IHL  and  the  fight  against  terrorism,  and  how  to  improve 
compliance  with  IHL.  Many  of  the  comments  made  in  this  paper  also  appear  in 
that  report. 

The  Need  for  Clarification  of  IHL 

There  are  a  number  of  domains  where  there  exist  rules  of  great  significance,  but 
that  are  formulated  only  in  a  very  general  way.  This  can  make  it  difficult  to  apply 
the  rule.  There  may  be  cases  where  the  law  should  be  further  developed  in  response 
to  such  situations.  However,  this  may  often  not  be  the  most  appropriate  reaction 
(risk  of  difficult  and  lengthy  negotiations,  uncertainty  about  the  outcome,  possi- 
bility that  the  result  undermines  existing  standards,  etc.). 

To  try  to  clarify  a  provision  can  be  more  promising,  but  also  raises  questions,  in 
particular  concerning  the  concrete  form  a  clarification  should  take.  In  some  cases, 
clarification  could  also  lead  at  a  later  stage  to  a  normative  development.  Some  ex- 
amples will  be  given  here,  where  attempts  for  clarification  are  being  made. 

The  basic  concepts  underlying  the  rules  concerning  the  conduct  of  hostilities — 
in  particular  the  rules  on  targeting — are  phrased  in  a  rather  general  way  and  tend 
to  be  therefore  difficult  to  apply.  The  ICRC  does  not  see  a  need  to  change  the  rules, 
which  have  kept  their  relevance  since  they  were  incorporated  into  the  1977  Addi- 
tional Protocols.  However,  to  clarify  the  provisions  about  the  definition  of  a  "mili- 
tary objective,"  the  principle  of  "proportionality"  and  the  "precautions"  to  be 
taken  in  an  attack  would  render  these  rules  more  operational.29  Such  clarification 
would  assist  the  belligerents  in  their  concrete  implementation.  It  would  therefore 
be  very  useful  if  a  consensus  on  the  interpretation  of  these  notions  could  be  found. 
Particular  attention  could  be  given  to  "high-tech"  warfare,  as  well  as  asymmetric 
warfare.  The  ICRC  plans  to  conduct  consultations  in  order  to  clarify  if  it  would  be 
useful  to  work  on  these  concepts. 

Another  example  is  the  notion  of  "direct  participation  in  hostilities"30  that  was 
discussed  at  the  beginning  of  June  2003  in  The  Hague,  during  a  meeting  jointly  or- 
ganized by  the  ICRC  and  the  Asser  Institute  with  the  participation  of  renowned 
IHL  experts.  This  seminar  showed  the  need  for  clarification  of  this  important  con- 
cept—especially having  in  mind  the  debate  about  "unlawful  combatants."  In  2004 
and  2005  the  ICRC  organized  two  other  expert  meetings  in  The  Hague  and  in 


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Geneva  with  a  view  to  find  a  shared  understanding  of  "direct  participation  in  hos- 
tilities." A  further  meeting  is  planned  in  Geneva  later  in  2006. 

In  addition,  at  the  beginning  of  2004,  the  Harvard  Program  on  Humanitarian 
Policy  and  Conflict  Research  launched  an  important  initiative  on  "Air  and  Missile 
Warfare."  Its  aim  is  to  clarify  and  to  restate  the  applicable  law  and  to  draft  a  manual 
similar  to  the  San  Remo  Manual  on  International  Law  Applicable  to  Armed  Con- 
flicts at  Sea,  which  was  adopted  in  June  1994.  A  series  of  expert  meetings  were  sub- 
sequently held  in  Lucerne,  Heidelberg,  Oslo,  and  Brussels  between  2004  and  2006. 

The  ICRC  is  also  promoting  and  clarifying  mechanisms  of  IHL  implementa- 
tion. In  2003,  it  organized  five  regional  expert  meetings  on  how  to  improve  com- 
pliance with  IHL,  with  the  active  participation  of  government  representatives, 
academics,  National  Red  Cross  and  Red  Crescent  Societies  and  other  organiza- 
tions. These  meetings  took  place  in  Cairo,  Pretoria,  Kuala  Lumpur,  Mexico  City 
and  Bruges  between  April  and  September  2003. 31 

In  particular,  the  ICRC  wanted  to  make  common  Article  1  to  the  Geneva  Con- 
ventions more  operational.  What  does  "ensure  respect"  mean  concretely?  What 
can  be  expected  from  States?  The  regional  expert  meetings  have  generated  many 
ideas  about  how  to  improve  compliance  with  IHL.  During  these  meetings  compli- 
ance by  organized  armed  groups  was  also  high  on  the  agenda. 

The  participants  in  the  regional  meetings  regretted  that  existing  IHL  mecha- 
nisms suffer  from  a  lack  of  use.  The  International  Fact-Finding  Commission  was 
considered  to  have  a  very  promising  potential.32  The  participants  were,  however, 
divided  on  the  question  of  whether  new  mechanisms  should  be  created,  although 
some  interesting  proposals  were  made  (e.g.,  periodic  reporting,  individual  com- 
plaints mechanism,  IHL  Commission).  Participants  in  all  the  regional  seminars 
commended  the  ICRC  for  its  work,  including  its  multi-faceted  role  as  promoter 
and  "guardian"  of  IHL.  It  was  even  proposed  that  the  role  of  the  ICRC  should  be 
strengthened,  more  particularly  in  non-international  armed  conflicts. 

Concerning  common  Article  1,  the  participants  in  these  regional  meetings  first 
acknowledged  that  there  was  an  obligation  not  to  encourage  a  party  to  a  conflict  to 
violate  IHL  nor  to  assist  in  such  violations.  It  was  also  recognized  that  States  not  in- 
volved in  an  armed  conflict  had  a  positive  obligation  to  take  action — unilaterally  or 
collectively —  against  parties  to  an  armed  conflict  that  were  committing  violations. 
This  would  not  entail  an  obligation  to  obtain  specific  results,  but  rather  an  obligation 
to  take  all  appropriate  measures  with  a  view  to  ending  violations.  Concrete  examples 
of  possible  measures  were  discussed,  such  as  diplomatic  pressure,  public  denuncia- 
tion, renouncing  exports  of  weapons  that  are  or  could  be  used  to  commit  violations 
of  IHL,  sanctions,  and  coercive  measures,  including  lawful  reprisals  or  acts  of 
retorsion.33  The  ICRC  has  continued  to  work  on  compliance  mechanisms,  with  an 

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emphasis  on  improving  respect  for  IHL  in  non-international  armed  conflicts.  It 
should  also  be  noted  that  at  the  end  of  2005,  the  European  Union  adopted  "Guide- 
lines on  promoting  compliance  with  international  humanitarian  law,"  thus  translat- 
ing the  obligation  contained  in  common  Article  1  into  practice. 

Furthermore,  the  ICRC  organized  in  September  2003 — together  with  the  Inter- 
national Institute  of  Humanitarian  Law — that  year's  San  Remo  Round  Table  on 
the  theme:  "International  Humanitarian  Law  and  Other  Legal  Regimes:  Interplay 
in  Situations  of  Violence."  This  event  has  helped  to  clarify  which  legal  regime  ap- 
plies in  a  given  situation,  in  particular  IHL  and  human  rights  law.  This  question  is 
particularly  relevant  with  regards  to  terrorist  and  counter-terrorist  activities.34 

In  December  2003,  the  ICRC  convened  an  expert  meeting  to  discuss  issues 
linked  to  multinational  forces.  When  does  IHL  apply  to  them?  Is  it  the  law  of  inter- 
national armed  conflict  or  internal  armed  conflicts?  Does  the  law  of  occupation  ap- 
ply to  them?  De  jure  or  de  facto7. 

More  generally,  the  ICRC  plans  to  look  into  some  aspects  of  the  question  of  oc- 
cupation, having  in  mind,  in  particular,  the  recent  armed  conflicts  in  Afghanistan 
and  Iraq.  Besides  situations  of  occupation  in  the  traditional  sense,  there  may  be  a 
need  to  develop  a  more  functional  approach  in  order  to  ensure  the  comprehensive 
protection  of  persons.  The  existing  rules  on  occupation  are  based  on  effective  con- 
trol of  a  territory  and  on  the  premise  that  the  occupying  power  will  administer  the 
territory.  However,  practice  has  shown  that  there  can  be  situations  where  a  bellig- 
erent exercises  control  only  to  a  limited  extent  or  where  persons  are  captured  in 
territory  that  is  not  occupied  in  the  traditional  sense. 

Future  work  on  clarification  of  IHL  will  benefit  from  the  ICRC  study  on  cus- 
tomary IHL.  The  ICRC  was  asked  to  conduct  this  study  by  the  26th  Interna- 
tional Red  Cross  and  Red  Crescent  Conference  in  1995.  Work  was  carried  out 
by  the  ICRC's  Legal  Division  and  almost  50  national  research  teams,  supervised 
by  a  Steering  Group.  In  addition,  government  and  academic  experts  of  great 
reputation  have  contributed  to  the  study.  The  study,  which  has  revealed  the 
great  amount  of  practice  in  the  area  of  IHL,  will  be  useful  inter  alia  for  the 
teaching  of  IHL,  the  drafting  of  military  manuals,  as  well  as  for  international 
and  domestic  courts. 

The  study — published  in  March  2005 — will  be  particularly  useful  for  non-in- 
ternational armed  conflicts.  Maybe  the  most  important  result  of  the  study  is  the 
fact  that  many  rules  of  the  1977  Additional  Protocol  I  relating  to  the  conduct  of 
hostilities  also  apply  to  internal  armed  conflicts  on  a  customary  law  basis.  Further- 
more States  not  party  to  certain  IHL  treaties  will  be  bound  by  their  customary 
rules.  The  ICRC  intends  to  update  the  study  as  needed.  It  is  hoped  that  the  study, 


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through  the  clarification  and  extension  of  the  applicability  of  IHL  rules,  will  ul- 
timately improve  the  protection  of  war  victims  in  the  field. 

Another  issue  where  some  clarification  is  needed  in  the  ICRC's  view  is  related  to 
chemical  weapons.  Both  the  1925  Gas  Protocol  and  the  1993  Chemical  Weapons 
Convention  prohibit  the  use  of  toxic  chemicals,  including  incapacitating  agents. 
However,  the  Chemical  Weapons  Convention  permits  the  use  of  chemical  agents 
for  law  enforcement.  This  could  lead  to  the  proliferation  of  incapacitating  agents 
for  law  enforcement  and  could  eventually  undermine  the  existing  prohibition  of 
the  use  of  such  agents  in  warfare.  It  is  therefore  important  that  States  clarify  the 
meaning  of  the  Convention's  law  enforcement  exemption. 

The  important  role  of  national  and  international  tribunals  in  the  interpretation 
and  clarification  of  IHL  should  also  be  mentioned  here. 

The  Need  for  Development  of  IHL 

Finally,  should  IHL  be  further  developed?  Should  a  complete  revision  of  the 
Geneva  Conventions  or  their  Additional  Protocols  take  place,  or  should  rules  be 
developed  only  in  certain  domains?  For  its  part,  the  ICRC  believes  that  a  complete 
overhaul  of  the  basic  IHL  treaties  is  neither  necessary  nor  realistic.  To  open  up  the 
Geneva  Conventions  could  easily  mean  opening  a  Pandora's  box,  with  very  uncer- 
tain results  at  the  end  of  the  day.  There  would  even  be  a  real  risk  that  the  existing 
standards  could  be  undermined.  In  any  event,  it  would  seem  that  the  current  inter- 
national climate  does  not  allow  major  normative  developments. 

However,  the  ICRC  is  of  the  opinion  that  there  is  space  for  developments  in  cer- 
tain specific  areas  of  IHL.  In  that  respect,  it  is  useful  to  review  briefly  some  develop- 
ments in  the  last  ten  years  or  so.  The  record  is  quite  impressive  when  one  looks  at 
the  list  of  adopted  treaties,  which  are  testimony  of  a  very  dynamic  development: 

1993  Chemical  Weapons  Convention 

1995  Prohibition  of  Blinding  Laser  Weapons  (Protocol  4  to  the  1980  Convention 
on  Certain  Conventional  Weapons  (CCW)) 

1996  Amendment  to  Protocol  II  to  the  CCW 

1997  Ottawa  Convention  prohibiting  antipersonnel  mines 

1998  Rome  Statute  on  the  International  Criminal  Court 

1999  Protocol  on  the  protection  of  cultural  property 

2000  Optional  Protocol  strengthening  the  protection  of  children  in  armed  conflict 

2001  Extension  of  scope  of  the  CCW  to  non-international  armed  conflicts 

2003  New  protocol  to  the  1980  Convention  on  "Explosive  Remnants  of  War" 

(Protocol  5). 
2005  Protocol  on  the  adoption  of  an  Additional  Distinctive  Emblem. 


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One  very  good  example  of  successful  work  in  the  field  of  development  of  IHL  is 
the  question  of  "explosive  remnants  of  war,"  which  are  a  serious  consequence  of 
modern  armed  conflict.  Explosive  remnants  of  war  are  the  unexploded  and  aban- 
doned ordnance  that  remain  after  the  end  of  active  hostilities.  In  September  2000, 
the  ICRC  launched  an  initiative  to  reduce  the  human  suffering  caused  by  these 
weapons  at  an  expert  meeting  held  in  Nyon,  Switzerland.35  Following  discussions 
at  the  2001  Review  Conference,  States  party  to  the  Certain  Conventional  Weapons 
Convention  agreed  to  establish  a  Group  of  Governmental  Experts  to  negotiate  a 
new  instrument  on  explosive  remnants  of  war. 

The  negotiations  came  to  a  fruitful  conclusion  when  the  State  parties  on  No- 
vember 28,  2003  adopted — by  consensus — a  "Protocol  on  Explosive  Remnants 
of  War."36  This  protocol — Protocol  5  to  the  CCW — is  an  important  develop- 
ment of  IHL.  It  is  the  first  multilateral  agreement  to  address  the  generic  problems 
of  unexploded  or  abandoned  ordnance.  While  the  existing  treaties  have  focused 
on  specific  weapons,  Protocol  5  applies  to  all  explosive  ordnance  not  covered  by 
earlier  instruments. 

The  new  Protocol  requires  each  party  to  an  armed  conflict  to: 

•  Clear  the  explosive  remnants  of  war  in  territory  it  controls  after  the  end  of 
active  hostilities. 

•  Provide  technical,  material  and  financial  assistance  to  facilitate  the  removal 
of  unexploded  or  abandoned  ordnance  in  areas  it  does  not  control  resulting  from 
its  operations.  This  assistance  can  be  provided  directly  to  the  party  in  control  of 
the  territory  or  through  a  third  party  such  as  the  United  Nations, 
nongovernmental  organizations  or  other  institutions. 

•  Record  information  on  the  explosive  ordnance  employed  by  its  armed 
forces  and  to  share  that  information  with  organizations  engaged  in  the  clearance 
of  explosive  remnants  of  war  or  conducting  programs  to  warn  civilians  of  the 
dangers  of  these  devices. 

•  Provide  warnings  to  civilians  of  the  dangers  in  specific  areas. 

•  The  protocol  also  creates  future  meetings  of  State  parties  in  which  States 
with  explosive  remnants  of  war  predating  the  entry  into  force  of  the  protocol  can 
seek  and  receive  assistance  to  help  them  address  the  problem. 

The  obligations  to  provide  technical  and  material  assistance  to  facilitate  the 
clearance  of  explosive  remnants  of  war  in  territory  a  party  does  not  control  and  to 
record  and  share  information  on  the  explosive  ordnance  used  during  an  armed 
conflict  are  of  particular  importance.  Implemented  correctly,  these  obligations  can 
make  an  important  contribution  to  the  rapid  removal  of  explosive  remnants  of 


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war,  the  establishment  of  risk  education  programs  and  the  provision  of  warnings 
to  civilians.  The  adoption  of  these  rules  reflects  recognition  by  the  international 
community  that  the  parties  to  an  armed  conflict  cannot  ignore  the  post-conflict  ef- 
fects of  the  weapons  they  use  and  that  they  must  take  measures  before,  during  and 
after  a  conflict  to  reduce  the  impact  on  the  civilian  population. 

The  new  protocol  has,  of  course,  several  limitations.  Qualifications  like 
"where  feasible"  were  necessary  if  an  agreement  was  to  be  concluded  by  consen- 
sus. These  qualifications  are  in  part  compensated  by  the  protocol's  vast  scope  of 
application. 

In  addition  to  concluding  the  new  protocol,  State  parties  agreed  that  the  Group  of 
Governmental  Experts  would  continue  its  work  on  anti-vehicle  mines  and  cluster 
sub-munitions  in  2004.  Work  on  these  issues  was  indeed  conducted  in  the  following 
years,  so  far  without  tangible  results. 

Concerning  cluster  bombs  and  other  sub-munitions  areas  of  work  included 
technical  features  to  prevent  these  weapons  from  becoming  explosive  remnants  of 
war,  as  well  as  proposals  to  strengthen  the  regulations  on  their  use  in  armed  con- 
flict, such  as  the  ICRC  proposal  for  a  prohibition  on  the  use  of  sub-munitions 
against  any  military  objective  located  in  a  civilian  area.  Such  a  rule  would 
strengthen  the  restrictions  on  targeting  contained  in  1977  Additional  Protocol  I.37 

The  Group  of  Governmental  Experts  met  regularly  in  Geneva  during  2004, 
2005,  and  2006.  The  Review  Conference  of  the  CCW  will  take  place  at  the  end  of 
2006  and  will  be  an  important  point  in  time  to  assess  the  whole  CCW  process  and 
lay  the  ground  for  future  work. 

One  area  that  would  certainly  need  further  analysis  with  a  view  to  possible  de- 
velopment are  the  rules  that  apply  in  non-international  armed  conflicts.  Those 
rules  are  quite  rudimentary,  at  least  in  treaty  form.  To  put  it  in  a  provocative  way: 
has  the  time  come  to  have  a  fresh  look  at  the  feasibility  of  a  normative  develop- 
ment? Such  a  development  would  at  last  narrow  down  the  differences  between 
the  law  of  international  and  of  non-international  armed  conflict.  What  was  im- 
possible in  1977,  would  it  be  possible  today?  Can  the  study  on  customary  IHL 
give  some  momentum  to  such  an  idea?  The  ICRC  for  its  part  has  not  planned  any 
initiative  going  into  that  direction.  However,  if  the  general  mood  were  favorable 
to  a  normative  development,  the  ICRC  would  be  pleased  to  carry  the  idea  for- 
ward, together  with  governmental  and  other  experts.  In  the  past,  the  ICRC  has 
actively  contributed  to  the  development  of  IHL  by  organizing  expert  meetings 
and  submitting  draft  proposals. 

The  extension  of  the  scope  of  application  of  the  CCW  to  non-international 
armed  conflicts  in  2001  was  relatively  easy.  A  few  years  before  that,  the  Rome  Stat- 
ute of  the  International  Criminal  Court  also  contributed  to  narrowing  the 

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difference  in  treatment  between  international  and  internal  armed  conflicts.  These 
examples  seem  to  indicate  that  today's  atmosphere  is  quite  different  from  the  one 
that  prevailed  during  the  diplomatic  conference  from  1974  to  1977  that  adopted 
the  1977  Additional  Protocols. 

One  particular  issue  that  the  ICRC  has  been  discussing  during  its  regional  expert 
meetings  is  whether  organized  armed  groups  could  be  given  incentives  to  respect 
IHL.38  Could  this  aspect  be  included  in  the  discussion  of  a  possible  new  instrument? 

Speaking  about  non-international  armed  conflicts,  the  issue  of  missing  persons 
should  be  briefly  mentioned.  If  a  new  instrument  was  to  be  developed  on  internal 
conflicts,  it  would  be  important  to  include  rules  related  to  missing  persons — or 
rather  rules  that  could  help  prevent  persons  from  becoming  missing.39  Indeed, 
many  of  the  existing  rules  apply  formally  only  in  international  armed  conflicts. 

Finally,  how  not  to  mention  the  adoption,  in  December  2005,  of  a  new  Third 
Protocol  additional  to  the  Geneva  Conventions  creating  a  new  distinctive  emblem, 
the  "Red  Crystal?"  This  emblem  will  be  at  the  disposal  of  those  States  and  national 
societies  that  have  difficulties  with  the  present  red  cross  or  red  crescent  emblems. 

The  adoption  of  the  additional  emblem  was  the  culmination  of  a  long  process 
that  started  more  than  ten  years  ago.  In  2000  a  draft  protocol  was  elaborated,  but 
due  to  the  deterioration  of  the  situation  in  the  Middle  East,  its  adoption  had  to  be 
postponed.  The  28th  International  Conference  of  the  Red  Cross  and  Red  Crescent 
in  December  2003  adopted  an  important  resolution  on  this  question,  following  the 
commitment  of  the  International  Red  Cross  and  Red  Crescent  Movement  to 
achieve,  with  the  support  of  States,  a  comprehensive  and  lasting  solution  to  the 
question  of  the  emblem.  The  resolution  also  requested  the  Standing  Commission 
to  continue  to  give  high  priority  to  securing,  as  soon  as  circumstances  permit,  a 
comprehensive  and  lasting  solution.  The  Standing  Commission  set  up  a  Working 
Group  to  continue  work  on  the  emblem  issue. 

Early  in  2005  Switzerland,  as  depository  of  the  Geneva  Conventions  and  of  their 
Additional  Protocols,  initiated  new  consultations.  Since  they  turned  out  to  be  posi- 
tive, Switzerland  convened  an  informal  meeting  in  Geneva  on  September  12  and 
13, 2005  and  later  on  sent  out  invitations  for  a  Diplomatic  Conference,  which  took 
place  in  Geneva  from  December  5  to  8, 2005.  The  Diplomatic  Conference  adopted 
the  text  of  the  Third  Additional  Protocol  that  had  been  drafted  in  2000. 

The  adoption  of  the  additional  emblem  was  facilitated  by  the  conclusion,  on 
November  28,  2005,  of  a  Memorandum  of  Understanding  signed  between  the 
Magen  David  Adorn  in  Israel  and  the  Palestine  Red  Crescent  Society.  This  Memo- 
randum was  signed  "in  en  effort  to  facilitate  the  adoption  of  a  Third  Protocol  Addi- 
tional to  the  Geneva  Conventions  of  1949  and  to  pave  the  way  for  the  membership 
of  both  societies  in  the  Red  Cross  and  Red  Crescent  Movement." 


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On  the  same  day,  the  two  societies  also  concluded  an  operational  agreement. 
This  second  agreement  aims  at  enhancing  their  cooperation  when  carrying  out 
their  humanitarian  mandate.  It  should  be  noted  that  these  two  agreements  were 
also  signed  by  the  Swiss  Minister  of  Foreign  Affairs,  as  well  as  by  the  ICRC,  the  In- 
ternational Federation  of  Red  Cross  and  Red  Crescent  Societies,  and  the  Standing 
Commission. 

It  should  be  made  clear  that  the  additional  emblem  does  not  in  any  way  replace 
the  existing  emblems.  Most  importantly  it  does  not  have  any  religious,  political, 
ethnic,  cultural,  or  other  connotations.  It  is  also  recognizable  at  a  distance,  as  was 
shown  during  visibility  tests  conducted  by  Switzerland.  The  new  Protocol  stipu- 
lates that  all  distinctive  emblems  shall  enjoy  the  same  legal  status. 

The  new  emblem  does  so  far  not  have  an  official  name,  but  the  name  "Red  Crys- 
tal" has  been  proposed  and  has  received  considerable  support.  This  name  should 
be  made  official  in  the  course  of  this  year.  There  is  no  doubt  that  the  additional  em- 
blem will  promote  unity  and  universality  within  the  International  Red  Cross  and 
Red  Crescent  Movement. 

Conclusion 

Existing  IHL  on  the  whole  adequately  responds  to  the  challenges  of  protection  gen- 
erated by  today's  armed  conflicts.  It  represents  a  careful  balance  between  military 
imperatives  and  the  protection  of  human  dignity.  It  is  therefore  important  to  vig- 
orously reaffirm  the  existing  principles  and  rules  of  IHL,  in  peacetime,  during 
armed  conflict  and  after  the  armed  conflict  is  over. 

However,  it  is  at  the  same  time  necessary  to  work  on  the  clarification  of  certain 
concepts  and  provisions  in  order  to  make  them  workable  in  practice.  There  are  also 
specific  domains  where  it  is  desirable  that  the  law  be  developed,  as  has  already  oc- 
curred in  several  respects  in  the  past  few  years.  When  developing  the  law,  great  care 
should  be  taken  not  to  weaken  existing  standards  of  protection. 

The  "war  on  terror"  represents  a  particularly  difficult  challenge.  Terrorism  is  a 
complex  issue  where  IHL  can  only  play  a  limited  role.  Other  tools  like  domestic  law 
enforcement  and  cooperation  between  States  are  usually  much  better  suited  to 
reach  the  desired  results.  It  must  be  determined  which  law  applies  in  a  given  situa- 
tion. IHL  applies  when  the  fight  against  terrorism  amounts  to  an  armed  conflict. 

IHL  itself  clearly  prohibits  acts  of  terrorism  when  committed  during  an  armed 
conflict.  Those  committing  violations  of  IHL  must  be  punished.  "Unlawful  com- 
batants" enjoy  the  protection  of  IHL,  even  though  they  can  be  punished  for  the 
mere  participation  in  the  hostilities.  Persons  in  the  hands  of  the  adversary  must  be 


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treated  humanely,  which  includes  due  process  of  law,  and  benefit  from  the  univer- 
sally recognized  judicial  guarantees. 

Finally,  a  clear  distinction  must  be  made  between  jus  ad  helium  and  jus  in  hello. 
To  develop  the  former — through  an  amendment  of  the  UN  Charter — could  repre- 
sent an  important  contribution  to  the  fight  against  terrorism.  This  would  help 
avoid  invoking  IHL  to  justify  the  use  of  force. 

Notes 

1 .  Head  of  the  Legal  Division,  International  Committee  of  the  Red  Cross,  Geneva.  This  paper  has  been 
revised  since  its  presentation  at  the  conference  to  incorporate  developments  since  June  2003.  This  is  a 
slightly  revised  version  of  the  paper  published  in  34  Israel  Yearbook  on  Human  Rights  in  2004. 

2.  For  a  detailed  description  of  the  role  of  the  ICRC,  see  Article  5  of  the  Statutes  of  the  International 
Red  Cross  and  Red  Crescent  Movement,  that  were  adopted  in  1986  (and  amended  in  1995)  by  the 
States  party  to  the  Geneva  Conventions  and  by  the  ICRC,  National  Red  Cross  and  Red  Crescent 
Societies  and  their  International  Federation. 

3.  The  meeting  took  place  in  Ashland,  Massachusetts  from  January  27-29,  2003.  Background 
papers  and  a  summary  report  of  the  meeting  can  be  found  at  www.ihlresearch.org. 

4.  The  meeting  took  place  in  Cambridge,  Massachusetts  from  June  25-27,  2004.  A  summary 
report  of  this  meeting  is  available  at  id. 

5.  Number  of  State  parties  to  the  major  IHL  treaties  (as  of  March  20,  2006):  1949  Geneva 
Conventions,  192  States;  1977  Additional  Protocol  I,  164  States;  1977  Additional  Protocol  II,  159 
States;  1980  Convention  on  Certain  Conventional  Weapons,  100  States;  1954  Convention  for  the 
protection  of  cultural  property  in  the  event  of  armed  conflict,  1 14  States;  1972  Biological  Weapons 
Convention,  152  States;  1993  Chemical  Weapons  Convention,  178  States;  1997  Ottawa 
Convention,  150  States;  1998  Rome  Statute  of  the  International  Criminal  Court,  100  States. 

6.  Available  at  http://www.icrc.org/ihl-nat. 

7.  Common  Article  1:  "The  High  Contracting  Parties  undertake  to  respect  and  to  ensure  respect 
for  the  present  Convention  in  all  circumstances."  The  same  language,  substituting  "this  Protocol" 
for  "the  present  Convention,"  appears  in  paragraph  1  of  Article  1  of  Additional  Protocol  I. 

8.  "In  situations  of  serious  violations  of  the  Conventions  or  of  this  Protocol,  the  High  Contracting 
Parties  undertake  to  act,  jointly  or  individually,  in  co-operation  with  the  United  Nations  and  in 
conformity  with  the  United  Nations  Charter."  Protocol  Additional  (I)  to  the  Geneva  Conventions 
of  12  August  1949,  and  Relating  to  the  Protection  of  Victims  of  International  Armed  Conflicts, 
June  8, 1977,  art.  89, 1 125  U.N.T.S.  3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  422  (Adam 
Roberts  and  Richard  Guelff  eds.,  3d  ed.  2000)  [hereinafter  Additional  Protocol  I]. 

9.  Geneva  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed 
Forces  in  the  Field,  Aug.  12, 1949,  art.  49, 6  U.S.T.  31 14,  75  U.N.T.S.  31,  reprinted  in  DOCUMENTS 
ON  THE  LAWS  OF  WAR,  supra  note  8,  at  197  [hereinafter  First  Geneva  Convention];  Geneva 
Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded,  Sick  and  Shipwrecked 
Members  of  the  Armed  Forces  at  Sea,  Aug.  12,  1949,  art.  50,  6  U.S.T.  3217,  75  U.N.T.S.  85, 
reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  8,  at  222  [hereinafter  Second  Geneva 
Convention];  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12,  1949, 
art.  129,  6  U.S.T.  3316,  75  U.N.T.S.  135,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra 
note  8,  at  244  [hereinafter  Third  Geneva  Convention];  and  Geneva  Convention  Relative  to  the 
Protection  of  Civilian  Persons  in  Time  of  War,  Aug.  12,  1949,  art.  146,  6  U.S.T.  3516,  75  U.N.T.S. 


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287,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  8,  at  301  [hereinafter  Fourth 
Geneva  Convention]. 

10.  Third  Geneva  Convention,  supra  note  9,  art.  118. 

11.  Fourth  Geneva  Convention,  supra  note  9,  arts.  133  and  134. 

12.  Article  2  common  to  the  four  1 949  Geneva  Conventions  provides  that  each  convention  "shall 
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"  as  well  as  to  "all  cases  of  partial  or  total  occupation  of  the 
territory  of  a  High  Contracting  Party,  even  if  the  said  occupation  meets  with  no  armed  resistance." 

13.  Article  3  common  to  the  four  1949  Geneva  Conventions:  "In  the  case  of  armed  conflict  not 
of  an  international  character  occurring  in  the  territory  of  one  of  the  High  Contracting  Parties, 
each  Party  to  the  conflict  shall  be  bound  to  apply,  as  a  minimum,  the  following  provisions: " 

14.  See  Article  45.1  of  1977  Additional  Protocol  I:  "A  person  who  takes  part  in  hostilities  and 
falls  into  the  power  of  an  adverse  Party  shall  be  presumed  to  be  a  prisoner  of  war,  and  therefore 
shall  be  protected  by  the  Third  Geneva  Convention,  if  he  claims  the  status  of  prisoner  of  war,  or 
if  he  appears  to  be  entitled  to  such  status,  or  if  the  Party  on  which  he  depends  claims  such  status 
on  his  behalf  by  notification  to  the  detaining  Power  or  to  the  Protecting  Power." 

15.  Third  Geneva  Convention,  supra  note  9,  art.  5. 

16.  When  Article  4.A(1)  is  read  in  conjunction  with  Article  4.A(3),  both  of  the  Third 
Geneva  Convention. 

17.  According  to  Article  4  of  the  Third  Geneva  Convention,  persons  entitled  to  prisoner  of  war 
status  are  "members  of  the  armed  forces  of  a  Party  to  the  conflict  as  well  as  members  of  militias 
or  volunteer  corps  forming  part  of  such  armed  forces"  (paragraph  A(l)),  as  well  as  "members  of 
other  militias  and  members  of  other  volunteer  corps  . .  .  belonging  to  a  Party  to  the  conflict . . . 
provided  that  such  militias  or  volunteer  corps  .  .  .  fulfill  the  following  conditions:  (a)  that  of 
being  commanded  by  a  person  responsible  for  his  subordinates;  (b)  that  of  having  a  fixed 
distinctive  sign  recognizable  at  a  distance;  (c)  that  of  carrying  arms  openly;  (d)  that  of 
conducting  their  operations  in  accordance  with  the  laws  and  customs  of  war"  (paragraph  A(2)). 
(Emphasis  added.) 

18.  Fourth  Geneva  Convention,  supra  note  9,  art.  4,  para.  2. 

19.  Article  75  of  1977  Additional  Protocol  I  contains  a  detailed  list  of  judicial  guarantees. 

20.  Additional  Protocol  I,  supra  note  8,  arts.  51.2  and  Protocol  Additional  (II)  to  the  Geneva 
Conventions  of  12  August  1949,  and  Relating  to  the  Protection  of  Victims  of  Non-International 
Armed  Conflicts,  June  8,  1977,  art.  13.2,  1125  U.N.T.S.  609,  reprinted  in  DOCUMENTS  ON  THE 
LAWS  OF  WAR,  supra  note  8,  at  483  [hereinafter  Additional  Protocol  II]. 

21.  Additional  Protocol  I,  supra  note  8,  arts.  48,  51  and  52. 

22.  Id.,  arts.  35.3  and  53-56. 

23.  See  Article  3(1  )(b)  common  to  the  four  Geneva  Conventions.  See  also  Fourth  Geneva 
Convention,  supra  note  9,  art.  34;  Additional  Protocol  II,  supra  note  20,  art.  4.2(c). 

24.  Prisoners  of  war  are  protected  by  the  Third  Geneva  Convention;  civilians,  including  civilian 
internees,  by  the  Fourth  Geneva  Convention.  In  non-international  armed  conflicts,  persons 
captured  for  reasons  related  to  the  armed  conflict  also  enjoy  special  protection. 

25.  See  ICRC  Summary  Report  of  the  informal  meeting  of  government  and  independent 
experts  held  at  Montreux,  Switzerland  on  September  23-24,  2002,  available  at  http://www.icrc 
.org/Web/eng/siteeng0.nsf/htmlall/5TFGZZ/$File/Montreux_report.pdf. 

26.  At  the  time  of  writing,  there  were  192  State  parties  to  the  1949  Geneva  Conventions  and  183 
recognized  National  Red  Cross  or  Red  Crescent  Societies. 

27.  These  documents  can  be  found  at  http://www.icrc.org/web/eng/siteeng0.nsf/html/conf28 
[Open. 


308 


Jean-Philippe  Lavoyer 


28.  Available  in  English,  French  and  Spanish  on  the  ICRC's  website.  The  English  version  is  available 
at  ht1p://www.icrc.orgAVeb/eng/siteeng0.nsf/htrdaU/5XRDCC/$FUe/IHLcontemp_armedconflicts 
_FINAL_ANG.pdf. 

29.  Additional  Protocol  I,  supra  note  8,  arts.  52.2,  51.5  and  57. 

30.  Id.,  art.  51.3;  Additional  Protocol  II,  supra  note  20,  art.  13.3. 

31.  An  analysis  of  these  five  regional  meetings  can  be  found  in  Annex  3  to  the  report 
submitted  by  the  ICRC  to  the  28th  International  Red  Cross  and  Red  Crescent  Conference, 
available  at  http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5XRDCC/$File/IHLcontemp 
_armedconflicts_FINAL_ANG.pdf. 

32.  Additional  Protocol  I,  supra  note  8,  art.  90.  The  Commission  shall  be  competent  to  enquire 
into  grave  breaches  or  other  serious  violations  of  the  Geneva  Conventions  or  Additional 
Protocol  I  and  to  facilitate,  through  its  good  offices,  the  restoration  of  an  attitude  of  respect  for 
those  treaties. 

33.  For  a  detailed  description  of  the  regional  meetings,  see  note  31  supra. 

34.  See  ICRC  report  of  the  Round  Table,  at  http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/ 
5UBCVX/$File/Interplay_other_regimes_Nov_2003.pdf. 

35.  See  ICRC  Report  of  the  Expert  Meeting  on  Explosive  Remnants  of  War  (Sept.  18-19, 2000)  and 
the  ICRC  report  Cluster  Bombs  and  Landmines  in  Kosovo:  Explosive  Remnants  of  War  f2001). 

36.  The  text  of  the  protocol  is  available  on  the  ICRC  website  at  http://www.icrc.org/ihl.nsf/ 
385ec082b509e76c41256739003e636d/cll0d2926d08a892cl256e280056b275?OpenDocument. 

37.  Additional  Protocol  I,  supra  note  8,  art.  48  et  seq. 

38.  Under  IHL  armed  groups  have  the  same  rights  and  obligations  as  the  State.  However,  under 
domestic  law  members  of  organized  armed  groups  can  be  punished  for  the  mere  fact  of  having 
participated  in  the  hostilities,  even  if  they  have  fully  respected  their  IHL  obligations.  Incentives 
could  include  amnesties  for  the  participation  in  hostilities  (but  not  for  violations  of  IHL), 
mitigation  of  punishment,  or  combatant  immunity  by  analogy  with  international  armed  conflicts. 

39.  For  concrete  proposals,  see  International  Conference  of  Governmental  and  Non- 
Governmental  Experts,  Conference  Acts  (Feb  19-21,  2003),  available  at  http://www.icrc.org/web/ 
eng/siteeng0.nsf/htmlall/5M9LDV/$FILE/TheMissing_Conf_03.2003_EN_90.pdf?OpenElement. 
This  international  conference  was  organized  by  the  ICRC. 


309 


XVII 


Enforcing  the  Law 


John  F.  Murphy1 


The  focus  of  this  panel,  as  well  as  that  of  most  panels  in  this  conference,  is  on 
the  jus  in  bello,  the  law  regulating  the  way  armed  force  is  applied.  It  is  per- 
haps worth  noting  parenthetically,  however,  that  participants  at  the  Dumbarton 
Oaks  and  San  Francisco  conferences  determined  that,  unlike  the  Covenant  of  the 
League  of  Nations,  the  United  Nations  Charter  should  outlaw  war.2  As  the  major 
hostilities  phase  of  the  conflict  in  Iraq  dramatically  demonstrates,  we  are  a  long 
way  from  achieving  the  goal  of  the  founders  of  the  United  Nations.  Indeed,  it  is 
highly  unlikely  that  we  shall  ever  reach  the  goal  of  outlawing  armed  conflict.  None- 
theless, as  recent  events  also  demonstrate,  there  is  an  overriding  need  for  people  of 
good  will  to  recommit  themselves  to  the  pursuit  of  this  goal. 

During  this  conference  most  of  the  discussion  and  debate  has  revolved  around 
four  international  armed  conflicts  of  the  1990s  and  the  early  2000s:  the  Gulf  War, 
Kosovo,  Afghanistan,  and  Iraq.  But  it  is  important  to  remember  that  international 
armed  conflict  is  not  the  primary  kind  of  armed  conflict  today,  but  rather  it  is  in- 
ternal or  civil  wars.  In  the  main,  these  wars  are  being  fought  with  no  concern  for  the 
jus  in  bello  and  are  largely  ignored  by  the  great  powers.  This  is  especially  the  case  in 
Africa.  A  major  reason  for  the  failure  to  deal  effectively  with  these  wars  is  lack  of 
political  will.  But  it  appears  clear  as  well  that  the  jus  in  bello  applicable  to  internal 
wars — Common  Article  3  of  the  Geneva  Conventions  of  1949  and  Protocol  II — is 
inadequate;  yet  efforts  to  improve  this  law  are  strongly  resisted. 


Enforcing  the  Law 


Jean-Philippe  Lavoyer  suggests  in  his  paper  that  the  jus  in  hello  we  currently 
have  is  not  the  major  problem  but  the  failure  to  implement  it  in  good  faith.  This 
seems  clear,  but  as  the  debates  at  this  conference  have  clearly  shown,  there  are  at 
the  least  major  differences  as  to  interpretation  of  the  existing  rules,  even  among  the 
leading  experts  of  Western  developed  States,  much  less  on  a  worldwide  basis. 
Ideally  these  ambiguities  would  be  resolved  by  international  negotiations  to  revise 
the  existing  law.  However,  as  Dr.  Lavoyer  also  notes  in  his  paper,  the  risk  of  this 
route  is  that  it  might  open  Pandora's  box  and  result  in  a  much  less  rather  than  a 
more  satisfactory  jus  in  hello.  This  is  also  a  problem  with  the  jws  ad  helium,  the  law 
of  resort  to  the  use  of  force,  and  efforts  to  revise  the  UN  Charter.  There  are  now  191 
member  States  of  the  United  Nations,  and  more  and  more  of  them,  especially  those 
from  the  so-called  "third-world,"  are  demanding  to  be  heard.3 

Under  a  rule  of  law  paradigm,4  courts  would  play  a  major  role  in  resolving  am- 
biguities in  the  law  of  armed  conflict  and  in  prosecuting  and  punishing  the  perpe- 
trators of  war  crimes.5  Courts  have  usually  not  played  such  a  role,  but  this  may  be 
changing.  As  Ambassador  Alan  Baker  reported  in  his  presentation,  Israel's  applica- 
tion and  enforcement  of  the  law  of  armed  conflict  is  supervised  by  its  supreme 
court.  In  his  presentation,  Colonel  Charles  Garraway  noted  that,  especially  in  Eu- 
rope, there  is  an  overlap  between  international  human  rights  law  and  the  law  of 
armed  conflict.  This  overlap  was  dramatically  demonstrated  by  the  claim  brought 
before  the  European  Court  of  Human  Rights  by  several  Yugoslav  nationals  that 
various  North  Atlantic  Treaty  Organization  countries  had  violated  the  European 
Convention  on  Human  Rights  and  Fundamental  Freedoms  (European  Conven- 
tion) by  their  1999  intervention  in  Kosovo.  The  European  Court  never  reached  the 
merits  of  the  challenge  because  it  decided  that  the  applicants  did  not  come  within 
the  jurisdiction  of  the  respondent  States  for  purposes  of  Article  1  of  the  European 
Convention,  which  provides:  "The  High  Contracting  Parties  shall  secure  to  ev- 
eryone within  their  jurisdiction  the  rights  and  freedoms  defined  in  Section  1  of 
this  Convention."6  Nonetheless,  the  stage  had  been  set  for  possible  future  chal- 
lenges to  the  use  of  armed  force  based  on  international  human  rights  law.  As  sug- 
gested by  Colonel  Garraway,  at  the  least,  there  would  seem  to  be  considerable 
need  to  ensure  that  international  human  rights  law  and  the  law  of  armed  conflict 
are  compatible. 

At  this  writing  there  are  in  existence  three  international  criminal  tribunals:  the 
International  Criminal  Tribunal  for  the  Former  Yugoslavia  (ICTY),  the  Interna- 
tional Criminal  Tribunal  for  Rwanda  (ICTR),  and  the  International  Criminal 
Court  (ICC).  Although  both  the  ICTY  and  the  ICTR  have  had  their  share  of  criti- 
cism, it  is  generally  agreed  that  the  two  tribunals,  especially  the  ICTY,  have  played  a 
significant  role  in  interpreting  and  applying  the  law  of  armed  conflict.  Moreover, 

312 


John  F.  Murphy 


while  the  International  Criminal  Court  has  not  yet  started  any  proceedings,  it  may 
well  do  likewise,  especially  with  respect  to  the  jus  in  hello  of  internal  wars.  Accord- 
ing to  media  reports,  the  ICC's  first  cases  are  likely  to  arise  from  situations  in  the 
Congo  and  other  conflicts  in  Africa. 

Also,  as  Professor  Adam  Roberts  suggested  during  this  conference,  the  ICC  may 
stimulate  national  law  enforcement  authorities  and  courts  to  do  a  better  job  of  en- 
forcing the  law  of  armed  conflict.  The  failure  to  prosecute  such  crimes  as  genocide, 
war  crimes  and  crimes  against  humanity  at  the  national  level  has  often  been  cited  as 
a  primary  reason  for  establishing  the  International  Criminal  Court. 

Belgium  has  recently  learned  how  difficult  it  can  be  for  a  national  legal  system  to 
prosecute  these  crimes.  Belgium  had  legislation7  so  wide-ranging  in  scope  that  it 
resulted  in  Belgian  courts  being  flooded  with  cases  based  on  universal  jurisdiction 
and  the  Belgian  government  being  involved  in  heated  international  controversies. 
One  of  these  controversies,  over  a  Belgian  arrest  warrant  issued  for  the  foreign 
minister  of  the  Congo,  resulted  in  a  ruling  by  the  International  Court  of  Justice  that 
Belgium  had  violated  international  law  because  the  foreign  minister  enjoyed  im- 
munity from  judicial  process.8  As  a  result  of  this  ruling,  Belgium  had  to  drop  prose- 
cutions of  officials  such  as  Israel's  Prime  Minister  Ariel  Sharon,  who  had  been  the 
object  of  a  criminal  complaint  for  war  crimes  filed  by  survivors  of  the  1982  massa- 
cres at  the  Sabra  and  Shatila  refugee  camps  in  Beirut,  Lebanon.  In  the  Sharon  case, 
however,  Belgium's  highest  court  ruled  that  Sharon  could  be  tried  for  war  crimes 
after  he  leaves  office  and  that  his  co-defendant,  Amos  Yaron,  the  former  Israeli 
Army  chief  of  staff,  could  be  tried  before  Belgian  courts.9  Later,  as  the  US  war  in 
Iraq  was  getting  under  way,  representatives  of  seven  Iraqi  families  who  claimed 
they  had  lost  loved  ones  in  the  1991  Gulf  War,  filed  a  criminal  complaint  naming 
former  US  President  George  H. W.  Bush,  as  well  as  Secretary  of  State  Colin  Powell 
(Chairman  of  the  Joint  Chiefs  of  Staff  in  1991),  Vice-President  Dick  Cheney  (Sec- 
retary of  Defense  in  1991)  and  Norman  Schwarzkopf,  the  general  in  charge  of  US 
forces  during  Operation  Desert  Storm.10  This  apparently  was  the  last  straw,  and  re- 
sulted in  such  strong  protest  from  the  United  States  that  Belgium  modified  its  leg- 
islation to  allow  cases  to  be  brought  only  if  the  victim  or  suspect  is  a  Belgian  citizen 
or  long-term  resident  at  the  time  of  the  alleged  crime.  The  revised  law  also  guaran- 
tees diplomatic  immunity  for  world  leaders  and  other  government  officials  visiting 
Belgium.11 

Recently,  an  important  alternative  to  prosecution  before  an  international  crimi- 
nal tribunal  or  a  national  court  has  begun  to  emerge,  the  so-called  "hybrid  court." 
In  Kosovo,  East  Timor,  and  Sierra  Leone,  the  United  Nations  has  established  hy- 
brid courts,  consisting  of  international  and  national  elements,  to  prosecute  atroci- 
ties committed  in  these  regions.  Also,  on  May  13,  2003,  after  long  and  tortuous 

313 


Enforcing  the  Law 


negotiations,  the  UN  General  Assembly  approved  an  agreement  with  the  govern- 
ment of  Cambodia  to  establish  a  hybrid  court  to  prosecute  some  of  the  perpetra- 
tors of  the  crimes  committed  by  the  Khmer  Rouge  during  the  mid-to-late  1970s.12 

Although  these  hybrid  courts  have  taken  a  variety  of  forms,  perhaps  the  archetype 
is  the  hybrid  court  for  Sierra  Leone.13  Under  the  court's  statute,  there  is  a  three  judge 
trial  chamber  and  a  five  judge  appellate  chamber.  The  government  of  Sierra  Leone 
appoints  one  judge  to  the  trial  chamber  and  the  UN  secretary-general  appoints  two. 
The  appellate  chamber  has  two  judges  picked  by  the  government  of  Sierra  Leone  and 
three  selected  by  the  secretary-general.  Further,  after  consultation  with  the  govern- 
ment of  Sierra  Leone,  the  secretary-general  appoints  the  prosecutor  and  registrar. 
The  court  has  jurisdiction  over  serious  violations  of  the  law  of  armed  conflict  as  well 
as  certain  crimes  committed  since  November  30,  1996  under  the  national  law  of  Si- 
erra Leone.  The  judges  of  the  court  as  well  as  its  prosecutor  (an  American  national) 
and  its  registrar  (a  British  national)  have  been  selected,  and  accused  persons  have 
been  brought  before  the  court.  The  court  has  also  indicted  Charles  Taylor,  at  the  time 
the  president  of  Liberia  but  now  enjoying  asylum  in  Nigeria. 

The  arrangements  for  the  hybrid  court  for  Cambodia  contrast  sharply  with 
those  for  Sierra  Leone  and  reflect  five  years  of  difficult  negotiations  between  the 
United  Nations  and  the  Cambodian  government.  Under  the  agreement  approved 
by  the  General  Assembly  in  May  2003,  Extraordinary  Chambers  will  be  established 
in  Cambodian  courts  under  Cambodian  law  but  will  have  subject  matter  jurisdic- 
tion over  several  offenses  defined  under  international  law  as  well  as  certain  offenses 
proscribed  by  Cambodian  law  when  committed  between  April  16,  1975  and  Janu- 
ary 6, 1 979.  In  the  two-tier  system  of  the  Extraordinary  Chambers,  a  majority  of  the 
judges  must  be  Cambodian  while  the  remaining  judges  are  to  be  appointed  by  the 
Cambodian  government  based  upon  nominations  by  the  Secretary-General.  The 
vote  of  at  least  one  UN-nominated  judge  is  required  for  a  judgment  of  guilt.14  It  re- 
mains to  be  seen  whether  these  arrangements  will  be  both  effective  and  just. 

The  hybrid  courts  in  Kosovo  and  East  Timor  present  still  another  model  of  ad- 
judication. Under  a  UN  Security  Council  resolution  adopted  at  the  conclusion  of 
the  1999  conflict  between  the  North  Atlantic  Treaty  Organization  and  Yugosla- 
via,15 Kosovo  has  been  governed  by  the  United  Nations  Mission  in  Kosovo 
(UNMIK),  and  this  arrangement  will  continue  until  Kosovo's  final  status  is  deter- 
mined. As  the  interim  authority,  UNMIK  has  established  local  courts  that  prose- 
cute both  ordinary  offenses  and  certain  violations  of  the  law  of  armed  conflict. 
Foreign  lawyers  have  been  appointed  as  prosecutors,  and  a  majority  of  the  judges 
are  foreign  nationals. 

Shortly  after  the  people  of  East  Timor  voted  for  independence  from  Indone- 
sia in  August  1999,  the  United  Nations  Transitional  Administration  in  East 


314 


John  F.  Murphy 


Timor  (UNTAET)  began  its  administration  of  East  Timor,  which  lasted  until 
the  territory  became  an  independent  State  on  May  20,  2002. 16  During  this  time 
UNTAET  established  a  hybrid  court  system  in  East  Timor.  An  UNTAET  regula- 
tion adopted  in  March  2000  created  special  panels  of  the  District  Court  of  Dili 
(the  capital  of  East  Timor)  and  granted  them  exclusive  jurisdiction  over  three 
international  crimes — genocide,  war  crimes  and  crimes  against  humanity — as 
well  as  crimes  of  torture,  murder,  and  crimes  of  sexual  violence  when  commit- 
ted between  January  1, 1999  and  October  25, 1999.  In  2001  ten  defendants  were 
convicted  of  crimes  against  humanity. 

After  its  independence,  the  United  Nations  established  a  Mission  of  Support  in 
East  Timor  (UNMISET)  to  assist  the  new  nation  for  two  years.  As  UNTAET  had 
previously,  UNMISET  administered  the  Serious  Crimes  Unit  of  the  East  Timorese 
judicial  system. 

In  the  aftermath  of  the  US-led  forces'  attack  on  Iraq,  there  has  been  substantial 
debate  about  how  to  bring  to  justice,  to  the  extent  possible,  the  55  most-wanted, 
as  well  as  other  high  ranking  officials,  of  the  Saddam  Hussein  regime.  The  US 
government  has  expressed  its  preference  for  prosecutions  in  reconstituted  Iraqi 
courts,  operating  with  foreign  assistance.17  Many  commentators,  including  lead- 
ing human  rights  organizations,  have  called  for  the  establishment  of  either  an  in- 
ternational or  hybrid  court  established  under  UN  auspices,  arguing  that,  after 
decades  of  subservience  to  Ba'ath  Party  rule,  Iraqi  courts  are  not  capable  of  dis- 
pensing impartial  justice.18  Other  commentators,  including  this  writer,  have  sup- 
ported the  US  position  on  the  ground,  among  others,  that  the  creation  of  an 
impartial  and  professionally  competent  judiciary  in  Iraq  is  not  a  mission  impos- 
sible and  that,  in  any  event,  the  ultimate  decision  on  the  kind  of  tribunal  or  tribu- 
nals to  try  the  leaders  of  the  Hussein  regime  should  be  made  by  the  new 
government  of  Iraq.19  As  of  this  writing  no  final  decision  has  been  made  on  this 
issue.  The  US  government  has  indicated  that  it  plans  to  prosecute  Iraqis  in  US 
military  tribunals  for  war  crimes  committed  against  US  forces  during  the  2003 
Iraq  war,  and  perhaps  also  for  war  crimes  against  Americans  committed  during 
the  1991  Persian  Gulf  War. 

A  primary  issue  arising  out  of  the  "war  on  terrorism"  is  the  appropriate  legal  re- 
gime to  apply  to  efforts  to  control  terrorism  after  the  horrific  events  of  September 
11, 2001.  Prior  to  September  1 1  international  terrorism  had  been  treated  primarily 
as  a  criminal  law  matter.  Under  this  regime  the  perpetrators  of  terrorist  crimes 
were  prosecuted  as  common  criminals  in  the  civilian  courts.  After  September  1 1 
the  situation  is  much  less  clear,  as  the  debate  over  the  proposed  use  of  military 
commissions  for  prosecuting  Taliban  and  Al  Qaeda  members  detained  at 
Guantanamo  Bay,  Cuba  demonstrates.  The  case  against  Zacarias  Moussaoui,  a 

315 


Enforcing  the  Law 


confessed  member  of  al  Qaeda  and  the  only  person  so  far  charged  in  a  US  court 
with  conspiring  in  the  terrorist  attacks  of  September  11,  is  especially  salient.  Be- 
cause the  US  government  refused  to  allow  Moussaoui  to  interview  captured  mem- 
bers of  al  Qaeda  who  might  provide  useful  information  for  his  defense  on  the 
ground  that  it  would  endanger  national  security,  a  federal  district  court  judge  has 
ruled  that  the  government  cannot  seek  the  death  penalty  against  him  and  that 
prosecutors  would  be  barred  at  trial  from  trying  to  link  him  in  any  way  to  the  Sep- 
tember 1 1  attacks.  Although  the  government  has  appealed  this  ruling,  there  is  spec- 
ulation at  this  writing  that,  if  it  loses  the  appeal,  the  government  may  transfer 
Moussaoui  to  a  military  commission,  possibly  at  the  US  military  base  in 
Guantanamo  Bay.20 

Should  such  a  transfer  occur,  it  would  likely  be  met  with  a  firestorm  of  protest, 
"given  the  obvious  implication  that  civilian  courts — because  of  the  procedural 
rights  they  provide  to  criminal  defendants — are  no  longer  capable  of  dealing  with 
defendants  accused  of  terrorism."21 

Notes 

1.  John  Murphy  is  a  Professor  of  Law  at  Villanova  University  School  of  Law. 

2.  See  Oscar  Schachter,  The  Right  of  States  to  Use  Armed  Force,  82  MICHIGAN  LAW  REVIEW 
1620(1984). 

3.  An  example  of  the  kind  of  problems  that  the  increasing  assertiveness  of  developing  countries  can 
cause  is  the  collapse  of  the  "Doha  round"  trade  negotiations  at  Cancun,  Mexico,  due  in  no  small  part 
to  the  resistance  of  the  developing  countries  to  demands  by  the  United  States  and  the  European 
Union  that  the  negotiations  add  foreign  investment,  competition,  and  transparency  to  their  agenda. 

4.  For  an  excellent  discussion  of  the  rule  of  law  in  the  US  constitutional  order,  see  Richard  H. 
Fallon,  The  "Rule  of  Law"  as  a  Concept  in  Constitutional  Discourse,  97  COLUMBIA  LAW  REVIEW  1 
(1997).  For  a  skeptical  view,  see  Morton  J.  Horwitz,  The  Rule  of  Law:  An  Unqualified  Human 
Good?,  86  Yale  Law  Journal  561  (1977). 

5.  The  United  States  and  other  countries  have  traditionally  employed  military  commissions 
during  times  of  war  to  try  violations  of  the  law  of  armed  conflict.  However,  President  George  W. 
Bush's  Military  Order  of  November  13,  2001  -Detention,  Treatment,  and  Trial  of  Certain 
Noncitizens  in  the  War  Against  Terrorism,  66  Fed.  Reg.  57,833  (Nov.  13,  2001),  asserting  the 
authority  to  use  military  commissions  to  try  members  of  al  Qaeda  and  other  persons  involved  in 
acts  of  international  terrorism  against  the  United  States,  unleashed  a  storm  of  protest.  Many  of 
the  protests  contended  that  such  trials  should  take  place  in  US  courts  rather  than  in  military 
commissions,  especially  in  light  of  the  severely  limited  due  process  rights  contained  in  the 
President's  order.  See  e.g.,  Harold  Hongju  Koh,  The  Case  Against  Military  Commissions,  26 
AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  337  (2002).  For  a  general  discussion  and  debate 
on  this  issue,  see  Daryl  A.  Mundis,  Agora:  Military  Commissions,  96  AMERICAN  JOURNAL  OF 
INTERNATIONAL  LAW  320  (2002).  Although  the  US  Department  of  Defense  subsequently  issued 
regulations  substantially  augmenting  due  process  rights  of  an  accused,  Military  Commission 
Order  No.  1  (Department  of  Defense  Mar.  21,  2002),  at  http://defenselink.Mil/news/mar2002/ 
d20002032 1  ord.Pdf.,  many  critics  still  found  the  protections  to  be  inadequate.  See  e.g.,  Laura  A. 

316 


John  F.  Murphy 


Dickinson,  Using  Legal  Process  to  Fight  Terrorism:  Detentions,  Military  Commissions, 
International  Tribunals,  and  the  Rule  of  Law,  75  SOUTHERN  CALIFORNIA  LAW  REVIEW  1407 
(2002).  Foreign  governments  reportedly  were  unwilling  to  extradite  terror  suspects  to  the 
United  States  unless  they  received  assurances  that  they  would  be  tried  before  civilian  courts.  See 
Sam  Dillon  and  Donald  G.  McNeil,  Jr.,  Spain  Sets  Hurdle  for  Extraditions,  NEW  YORK  TIMES, 
Nov.  24,  2001,  at  A 1,  col.  1. 

6.  See Bankovic  et  al.  V.  Belgium  et  al.,  No  52207/99  (Eur.  Ct  H.R  12,  Dec.  2001 )  (Grand  Chamber). 

7.  Belgian  Act  Concerning  the  Punishment  of  Grave  Breaches  of  International  Humanitarian 
Law  (Act  of  June  16,  1993),  reproduced  in  38  INTERNATIONAL  LEGAL  MATERIALS  918  (1999). 

8.  See  Arrest  Warrant  of  11  April  2000  (Congo  v.  Belg.)  (  I.C.J.  Feb.  14,  2002),  reprinted  in  41 
International  Legal  Materials  536  (2002). 

9.  See  Marlise  Simons,  Sharon  Faces  Belgian  Trial  After  Term  Ends,  NEW  YORK  TIMES,  Feb.  13, 
2003,  at  A12,  col.  1. 

10.  See  Dan  Bilefsky,  Bushes  on  Trial  in  Belgium?  It  is  Unlikely,  hut  Brussels  Still  Worries,  WALL 
Street  Journal,  Mar.  28, 2003,  at  Al  l,  col.  3. 

11.  See  Belgium  Scales  Back  Its  War  Crimes  Law  Under  US  Pressure,  NEW  YORK  TIMES,  Aug.  2, 
2003,  at  A6,  col.  1. 

12.  Press  Release,  General  Assembly  Approves  Draft  Agreement  Between  UN,  Cambodia  on 
Khmer  Rouge  Trials,  UN  Doc.  GA/10135  (May  13,  2003). 

13.  For  discussion  and  analysis  of  the  Sierra  Leone  tribunal,  see  e.g.,  Celina  Schocken,  The 
Special  Court  for  Sierra  Leone,  20  BERKELEY  JOURNAL  OF  INTERNATIONAL  LAW  436  (2002). 

14.  Details  of  the  arrangement  are  set  forth  in  Report  of  the  Secretary-General  on  Khmer  Rouge 
Trials,  UN  Doc.  A/57/769  (Mar.  31,  2003). 

15.  S.C.  Res.  1244,  UN  Doc.S/RES/1244  (1999). 

16.  This  account  of  the  establishment  of  the  hybrid  court  system  in  East  Timor  is  based  largely 
on  LOUIS  HENKLN  ET  AL.,  HUMAN  RIGHTS:  2003  SUPPLEMENT  91. 

17.  See  No  Nuremberg:  America  says  Iraq  should  try  its  own  thugs,  THE  ECONOMIST,  Apr.  12, 
2003,  at  28. 

18.  See  e.g.,  Human  Rights  Watch,  Letter  to  US  Regarding  the  Creation  of  a  Criminal  Tribunal  for 
Iraq  (Apr.  15,  2003),  available  af  http://www.hnv.org/press/2003/04iraqitribunal04 1503ltr.htm. 

19.  For  my  views,  see  John  F.  Murphy,  Administering  Justice  in  Iraq:  Considerations,  THE 
LEGAL  INTELLIGENCER,  May  12,  2003,  at  7.  Compare  Jose'  E.  Alvarez,  Crimes  of  States/ Crimes 
of  Hate:  Lessons  from  Rwanda,  24  YALE  JOURNAL  OF  INTERNATIONAL  LAW  365,  460  (1999) 
( arguing  that  "local  criminal  processes  may  make  valuable  contributions  to  the  preservation  of 
collective  memory,  victim  mollification,  and  the  national  and  international  rule  of  law"  and 
that  "absent  local  prosecutions,  mass  violence  may  reemerge"  in  a  country  recently  scourged 
by  mass  atrocity). 

20.  See  Philip  Sheldon,  Government  Lawyers  Fear  9/11  Ruling  Threatens  Al  Qaeda  Cases,  NEW 
YORK  TIMES,  Oct.  4,  2003,  at  Al  1,  col.  3. 

21.  Id. 


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XVIII 


Protection  of  Cultural  Property: 
The  Legal  Aspects 

Jan  Hladfk1 


Dr.  Jean-Philippe  Lavoyer's  paper,  Should  International  Humanitarian  Law 
be  Reaffirmed,  Clarified  or  Developed?,2  provides  an  excellent  overview  of 
international  humanitarian  law  and  touches  briefly  on  the  need  for  the  protection 
of  cultural  property  during  armed  conflict. 

The  principal  law  of  war  treaty  provisions  protecting  cultural  property  are 
found  in  the  1954  Hague  Convention  for  the  Protection  of  Cultural  Property  in  the 
Event  of  Armed  Conflict  (Hague  Convention)3;  its  First  Protocol,4  also  adopted  in 
1954;  and  its  Second  Protocol  of  1999.5  The  following  substantive  areas  of  the 
Hague  Convention  and  the  Second  Protocol  are,  in  my  view,  those  that  have  the 
primary  impact  on  the  conduct  of  military  operations: 

•  Safeguarding  of  cultural  property  (Article  3  of  the  Hague  Convention  and 
Article  5  of  the  Second  Protocol); 

•  Respect  for  cultural  property  (Article  4  of  the  Hague  Convention  and 
Articles  6,  7  and  8  of  the  Second  Protocol); 

•  Military  measures  (Articles  7  and  25  of  the  Hague  Convention); 

•  Protection  of  cultural  property  in  occupied  territory  (Article  5  of  the  Hague 
Convention  and  Article  9  of  the  Second  Protocol); 


Protection  of  Cultural  Property:  The  Legal  Aspects 

•  Special  protection  under  the  Hague  Convention  and  enhanced  protection 
under  the  Second  Protocol  (essentially  Chapter  II  of  the  Hague  Convention  and 
Chapter  3  of  the  Second  Protocol);  and 

•  Sanctions  (Article  28  of  the  Hague  Convention  and  Chapter  4  of  the 
Second  Protocol). 

Safeguarding  of  Cultural  Property 

Under  Article  3,  States  party  to  the  Hague  Convention  are  to  undertake  the  safe- 
guarding of  cultural  property  through  the  taking  of  appropriate  measures  in  peace- 
time against  the  foreseeable  effect  of  armed  conflict.  Such  measures  only  address 
property  situated  in  the  territory  of  the  State  concerned.  The  Convention  does  not 
define  the  nature  or  scope  of  the  measures;  it  leaves  those  questions  to  the  discre- 
tion of  the  State  in  question.  This  omission  is  remedied  by  Article  5  of  the  Second 
Protocol,  which  provides  for  the  following  preparatory  peacetime  measures:  the 
preparation  of  inventories,  the  planning  of  emergency  measures  for  protection 
against  fire  or  structural  collapse,  the  preparation  for  the  removal  of  movable  cul- 
tural property  or  the  provision  for  adequate  in  situ  protection  of  such  property, 
and  the  designation  of  competent  authorities  responsible  for  the  safeguarding  of 
cultural  property.  It  should  be  stressed  that  the  safeguarding  measures  may  prove 
helpful  not  only  in  case  of  armed  conflict  but  also  in  the  event  of  natural  disaster  or 
as  a  highly  effective  weapon  against  theft. 

Respect  for  Cultural  Property 

Article  4  of  the  Convention  provides  for  respect  for  cultural  property.  Such  respect 
consists  in  two  mutually  corresponding  obligations  of  State  parties:  ( 1 )  to  refrain 
from  the  use  of  cultural  property  and  its  immediate  surroundings  or  of  the  appli- 
ances for  its  protection,  situated  both  within  their  own  territories  as  well  as  within 
the  territory  of  other  State  parties,  for  purposes  likely  to  expose  it  to  destruction  or 
damage  in  the  event  of  armed  conflict;  and  (2)  to  refrain  from  any  act  of  hostility 
directed  against  such  property.6 

The  next  paragraph  of  Article  4  introduces  a  very  important  exception  to  this 
rule  — the  waiver  of  these  obligations  when  required  by  military  necessity.7  This 
waiver  is  referred  to  in  Article  4.2,  which  is  applicable  to  generally  protected  cul- 
tural property  as  defined  in  Article  1  of  the  Convention.  It  permits  a  waiver  only 
where  required  by  "imperative  military  necessity."  Withdrawal  of  immunity  is  ad- 
dressed in  Article  1 1.2  for  cultural  property  under  special  protection  (a  subject  to 


320 


Jan  Hladik 

which  I  will  return).  Such  withdrawal  is  permitted  only  in  "exceptional  cases  of  un- 
avoidable military  necessity." 

Article  4.2  of  the  Convention  permits  the  State  parties  to  use  cultural  property 
and  its  immediate  surroundings  or  of  the  appliances  in  use  for  its  protection,  situ- 
ated within  their  own  territory  as  well  as  within  the  territory  of  other  States  parties, 
for  military  purposes  and  to  conduct  hostilities  against  such  property  "where  mili- 
tary necessity  imperatively  requires  such  a  waiver."  The  concept  of  "unavoidable 
military  necessity"  in  Article  11.2  has  stricter  conditions  for  its  application  to  cul- 
tural property  under  special  protection.  In  particular,  the  immunity  may  be  with- 
drawn "only  for  such  time  as  that  necessity  continues."  Article  11.2  further 
provides  that  "Such  necessity  can  be  established  only  by  the  officer  commanding  a 
force  the  equivalent  of  a  division  in  size  or  larger."  Finally,  whenever  circumstances 
permit,  an  advance  warning  is  to  be  provided  to  the  opposing  party  a  reasonable 
time  in  advance  of  the  withdrawal  of  immunity. 

Regrettably,  the  lack  of  a  universally  accepted  definition  of  military  necessity 
leaves  room  for  a  loose  interpretation  of  these  provisions  or  even  their  abuse.  Three 
interesting  definitions  illustrate  this  issue.  The  first  is  from  the  Instructions  for  the 
Government  of  Armies  of  the  United  States  in  the  Field,  prepared  by  Francis 
Lieber.  Known  as  the  Lieber  Code,  they  were  promulgated  as  General  Orders  No. 
100  by  President  Lincoln  on  April  24,  1863.  They  provide,  in  part,  as  follows: 

Article  14.  Military  necessity,  as  understood  by  modern  civilized  nations,  consists  in 
the  necessity  of  those  measures  which  are  indispensable  for  securing  the  ends  of  the 
war,  and  which  are  lawful  according  to  the  modern  law  and  usages  of  war. 

Article  15.  Military  necessity  admits  of  all  direct  destruction  of  life  or  limb  of  armed 
enemies,  and  of  other  persons  whose  destruction  is  incidentally  unavoidable  in  the 
armed  contests  of  the  war;  it  allows  of  the  capturing  of  every  armed  enemy,  and  every 
enemy  of  importance  to  the  hostile  government,  or  of  peculiar  danger  to  the  captor;  it 
allows  of  all  destruction  of  property,  and  obstruction  of  the  ways  and  channels  of 
traffic,  travel,  or  communication,  and  of  all  withholding  of  sustenance  or  means  of  life 
from  the  enemy;  of  the  appropriation  of  whatever  an  enemy's  country  affords 
necessary  for  the  subsistence  and  safety  of  the  army,  and  of  such  deception  as  does  not 
involve  the  breaking  of  good  faith  either  positively  pledged,  regarding  agreements 
entered  into  during  the  war,  or  supposed  by  the  modern  law  of  war  to  exist.  Men  who 
take  up  arms  against  one  another  in  public  war  do  not  cease  on  this  account  to  be 
moral  beings,  responsible  to  one  another  and  to  God. 

Article  16.  Military  necessity  does  not  admit  of  cruelty  -  that  is,  the  infliction  of 
suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of  maiming  or  wounding  except 
in  fight,  nor  of  torture  to  extort  confessions.  It  does  not  admit  of  the  use  of  poison  in 
any  way,  nor  of  the  wanton  devastation  of  a  district.  It  admits  of  deception,  but 

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Protection  of  Cultural  Property:  The  Legal  Aspects 

disclaims  acts  of  perfidy;  and,  in  general,  military  necessity  does  not  include  any  act  of 
hostility  which  makes  the  return  to  peace  unnecessary  difficult."8 

The  second  definition  comes  from  Morris  Greenspan  who  defined  military  ne- 
cessity as  "the  right  to  apply  that  amount  and  kind  of  force  which  is  necessary  to 
compel  the  submission  of  the  enemy  with  the  least  possible  expenditure  of  time, 
life  and  money."9  Finally,  Black's  Law  Dictionary  states  that  military  necessity  is 
'[a]  principle  of  warfare  that  permits  enough  coercive  force  to  achieve  a  desired 
end,  as  long  as  the  force  used  is  not  more  than  is  called  for  by  the  situation."10 
Black's  provides  a  background  reference  to  the  1907  Hague  Convention  on  Laws 
and  Customs  of  War. 

It  is  important  to  point  out  that  military  commanders  were  aware  of  this  ambi- 
guity and  in  this  connection  General  Eisenhower's  order  of  December  24,  1943 
stated:  "Nothing  can  stand  against  the  argument  of  military  necessity.  This  is  an  ac- 
cepted principle.  The  phrase  'military  necessity'  is  sometimes  used  where  it  would 
be  more  truthful  to  speak  of  military  convenience  or  even  of  personal  convenience. 
I  do  not  want  it  to  cloak  slackness  or  indifference."11  For  this  reason,  the  Second 
Protocol  amplifies  the  provisions  regarding  military  necessity  as  it  relates  to  both 
cultural  property  under  general  protection  and  that  under  enhanced  protection. 

What  are  the  main  substantive  issues  contained  in  the  new  definition  of  military 
necessity  in  the  Second  Protocol?  In  my  opinion,  Article  6  includes  two  new  ele- 
ments: first,  a  waiver  of  the  respect  obligation  on  the  basis  of  imperative  military 
necessity  when  cultural  property  has  now  been  transformed,  because  of  the  man- 
ner in  which  it  is  being  used,  into  a  military  objective  (Article  6(a) (i));  and  second, 
tightening  the  circumstances  under  which  the  obligation  not  to  use  cultural  prop- 
erty for  purposes  likely  to  expose  it  to  destruction  or  damage  (Article  6(b))  may  be 
waived.  The  first  provision  concerns  the  attacker,  while  the  second  applies  to  the 
defender.  In  addition,  Article  6(a)(i),  which  is  based  on  Article  52. 212  of  the  1977 
Additional  Protocol  I  on  the  Protection  of  Victims  of  International  Armed 
Conflicts  to  the  four  1949  Geneva  Conventions,  thus  makes  a  nexus  between  the 
Second  Protocol  and  the  definition  of  military  objective  under  Protocol  I.  Article 
13,  which  de  facto  develops  the  definition  of  "unavoidable  military  necessity"  un- 
der Article  1 1.2  of  the  Convention,  brings  in  two  new  elements:  the  decision  to  at- 
tack must  be  ordered  at  the  highest  operational  level  of  command  and  the 
obligation  to  provide  advance  warning.  It  is  necessary  to  point  out  that  to  effec- 
tively implement  these  abstract  definitions  they  must  be  further  clarified  in  mili- 
tary manuals  and  rules  of  engagement  and  must  be  interpreted  in  good  faith. 

To  conclude  on  the  issue  of  military  necessity,  let  me  quote  Burrus  M. 
Carnahan,  an  acknowledged  expert  in  the  law  of  armed  conflict: 


322 


Jan  Hladik 

Today,  military  necessity  is  widely  regarded  as  something  that  must  be  overcome  or 
ignored  if  international  humanitarian  law  is  to  develop,  and  its  original  role  as  a  limit 
on  military  action  has  been  forgotten.  As  a  result,  the  principle  has  not  been  applied  in 
new  situations  where  it  could  serve  as  a  significant  legal  restraint  until  more  specific 
treaty  rules  or  customs  are  established.13 

Article  4.3  of  the  Convention  introduces  the  obligations  to  prohibit,  prevent  and 
put  a  stop  to  theft,  pillage,  misappropriation  of,  and  acts  of  vandalism  against  cul- 
tural property.  State  parties  are  also  required  to  refrain  from  requisitioning  cultural 
property  located  in  the  territory  of  another  party  (Article  4.3)  and  from  making  cul- 
tural property  the  object  of  reprisals  (Article  4.4).  The  prohibition  of  reprisals  against 
historic  monuments,  works  of  art  or  places  of  worship  constituting  the  cultural  or 
spiritual  heritage  of  peoples  is  reiterated  in  Article  53(c)  of  Additional  Protocol  I.  The 
waiver  of  military  necessity  is  not  applicable  to  those  obligations. 

Articles  7  and  8  of  the  Second  Protocol  provide  for  precautions  in  attack  and 
precautions  against  the  effects  of  hostilities,  respectively.  Article  7  imposes  a  num- 
ber of  obligations  on  a  military  commander,  such  as  verifying  that  objectives  to  be 
attacked  are  not  cultural  property,  selecting  means  and  methods  of  attack  that 
avoid  or  minimize  incidental  damage,  abstaining  from  attacks  that  cause  excessive 
incidental  damage,  and  cancelling  or  suspending  attacks  if  the  objective  is  cultural 
property  or  the  attack  may  cause  excessive  incidental  damage  to  cultural  property. 
The  first  two  obligations  require  the  military  commander  to  do  everything  that  is 
feasible,  in  other  words  what  is  in  his/her  power,  to  fulfill  those  requirements.  As  to 
the  Article  8  precautions  against  the  effects  of  hostilities,  State  parties  must,  to  the 
maximum  extent  feasible,  remove  movable  cultural  property  from  the  vicinity  of 
military  objectives  or  provide  for  adequate  in  situ  protection,  and  avoid  locating 
military  objectives  near  cultural  property.  Attention  should  be  again  drawn  to  the 
word  "feasible."  The  implementation  of  this  obligation  will  depend  on  a  number  of 
factors  such  as  the  density  of  the  population,  the  location  of  armament  industries 
or  economic  potential  of  the  State  concerned.  Finally,  it  should  be  stressed  that  Ar- 
ticles 7  and  8  mirror  Article  57  (Precautions  in  attack)  and  Article  58  (Precautions 
against  the  effects  of  attack)  of  Additional  Protocol  I,  thus  ensuring  cohesion  in  the 
implementation  of  both  the  Second  Protocol  and  the  Additional  Protocol. 

Military  Measures 

Military  measures  are  mainly  embodied  in  Articles  7  and  25  of  the  Convention. 
These,  to  a  certain  extent,  complement  each  other.  Article  7  provides  for  two  prin- 
cipal categories  of  State  party  obligations:  (1)  introduction  in  peacetime  into  their 


323 


Protection  of  Cultural  Property:  The  Legal  Aspects 

military  regulations  or  instructions  of  provisions  ensuring  observance  of  the  Con- 
vention and  fostering  in  their  military  personnel  respect  for  the  culture  and  cul- 
tural property  of  all  peoples;  and  (2)  the  establishment,  again  in  peacetime,  of 
services  or  specialist  personnel  whose  purpose  is  to  secure  respect  for  cultural 
property  and  to  cooperate  with  the  civilian  authorities  who  are  responsible  for  its 
safeguarding.  In  addition,  Article  30.3(a)  of  the  Second  Protocol  expressly  obli- 
gates States  to  incorporate  guidelines  and  instructions  on  the  protection  of  cultural 
property  into  their  military  regulations. 

To  facilitate  the  dissemination  of  the  Second  Protocol  within  the  armed  forces, 
the  UNESCO  Secretariat  has  prepared  a  series  of  inserts14  for  training  military  per- 
sonnel on  the  Protocol's  obligations.  The  main  insert  contains  a  detailed  discussion 
of  the  Protocol's  provisions.  Other  inserts  provide  a  list  of  possible  instructor  ques- 
tions for  those  providing  training  to  officers  and  soldiers'  rules  for  the  training  of  en- 
listed members  of  armed  forces.  It  is  up  to  each  State's  armed  forces  to  adapt  the 
inserts  to  its  military  traditions,  military  doctrine  and  training  methods. 

Protection  of  Cultural  Property  in  Occupied  Territory 

The  1954  Convention  requires  the  occupying  State  to  take  the  "most  necessary  mea- 
sures" to  preserve  cultural  property  damaged  by  military  operations  that  is  situated 
in  the  occupied  territory  if  the  competent  national  authorities  of  the  occupied  State 
are  unable  to  do  so  (Article  5.2).  This  Article's  obligations  are  complemented  by  Ar- 
ticle 9  of  the  Second  Protocol  requiring  the  occupying  Party  to  prohibit  and  prevent: 

( 1 )  any  illicit  export  or  other  removal  or  transfer  of  ownership  of  cultural  property; 

(2)  any  archaeological  excavation,  except  when  strictly  required  to  safeguard,  record 
or  preserve  cultural  property;  and  (3)  any  alteration  to,  or  change  of  use  of,  cultural 
property  which  is  intended  to  conceal  or  destroy  cultural,  historical  or  scientific  evi- 
dence. Furthermore,  no  archaeological  excavation  of,  alteration  to,  or  change  of  use 
of  cultural  property  in  occupied  territory  may  be  carried  out  without  close  coopera- 
tion with  the  competent  national  authorities  of  the  occupied  territory,  unless  cir- 
cumstances do  not  permit  such  cooperation. 

Finally,  it  should  be  stressed  that  the  1954  Protocol,  a  complementary  instru- 
ment to  the  original  Hague  Convention,  prohibits  the  export  of  cultural  property 
from  occupied  territory.  If  export  does  occur,  it  requires  each  State  party  to  return 
such  property  that  is  located  within  its  territory  to  the  competent  authorities  of  the 
territory  from  which  it  was  illicitly  exported.  This  is  to  occur  when  hostilities  have 
ended.  The  1954  Protocol  also  expressly  forbids  the  appropriation  of  cultural 
property  as  war  reparations.  This  provision  is  of  fundamental  importance  because 


324 


., Jan  Hladik 

of  its  clear  recognition  that  the  unique  nature  of  cultural  objects  makes  them  inap- 
propriate subjects  of  war  reparations. 

Special  Protection  under  the  Hague  Convention 
and  Enhanced  Protection  under  the  Second  Protocol 

It  should  be  noted  that  in  addition  to  general  protection15  under  Chapter  I  of 
the  Hague  Convention,  Article  8.1  provides  that  special  protection  may  be 
granted  to  three  categories  of  property:  (a)  refuges  intended  to  shelter  movable 
cultural  property  in  the  event  of  armed  conflict;  (b)  centers  containing  monu- 
ments; and  (c)  other  immovable  cultural  property  of  very  great  importance. 
Unlike  the  general  protection  which  is  attributed  to  all  categories  of  cultural 
property,  the  granting  of  special  protection  is  not  automatic.  The  Convention 
subjects  the  granting  of  such  protection  essentially  to  two  conditions:  (1)  the 
cultural  property  in  question  must  be  situated  at  an  adequate  distance  from  a  de 
facto  military  objective;  and  (2)  such  property  must  not  be  used  for  military 
purposes. 

What  is  "an  adequate  distance?"  The  phrase  is  not  defined  by  the  Conven- 
tion and  is,  therefore,  left  to  the  discretion  of  each  State  party  to  the  Conven- 
tion. Its  definition  will  obviously  depend  on  a  number  of  factors,  such  as  the 
presence  of  military  units  or  armament  industry  or  requirements  of  national 
self-defense.  The  only  exception  to  the  requirement  of  the  adequate  distance  is 
found  in  Article  8.5.  Under  that  provision,  if  the  cultural  property  is  situated  in 
the  proximity  of  an  important  military  objective,  the  special  protection  maybe 
nevertheless  granted  if  the  State  concerned  undertakes  not  to  use  this  military 
objective  in  the  event  of  armed  conflict.  Finally,  special  protection  is  granted 
upon  request  by  the  State  where  the  cultural  property  concerned  is  situated. 

Cultural  property  under  special  protection  is  listed  in  the  "International 
Register  of  Cultural  Property  under  Special  Protection,"  a  registry  maintained 
by  the  Director-General  of  UNESCO.  At  present,  cultural  property  in  three 
States  (Germany,  the  Holy  See,  and  the  Netherlands)  is  entered  in  the  Register. 
The  total  property  protected  is  four  refuges  for  movable  cultural  property  and 
the  whole  of  the  Vatican  City  State.  Two  States  (Austria  and  the  Netherlands) 
submitted  registration  requests  but  later  withdrew  them.  Since  only  three 
States  have  placed  five  sites  under  special  protection  and  the  last  entry  in  the 
Register  took  place  in  1978,  clearly  the  concept  of  special  protection  has  never 
fully  developed  its  potential. 

Why  have  the  vast  majority  of  States  abstained  from  placing  their  cultural  sites 
under  special  protection?  There  may  be  several  reasons.  In  particular,  the 

325 


Protection  of  Cultural  Property:  The  Legal  Aspects 

impossibility  of  complying  with  the  condition  of  adequate  distance  from  a  large  in- 
dustrial center  or  military  objective  for  densely-populated  countries;  technical  dif- 
ficulties in  submitting  nominations;  or  the  fear  of  designating  cultural  property  for 
special  protection  because  of  possible  terrorist  attacks;  or,  in  fact,  providing  an 
eventual  adversary  with  a  ready  made  "hit-list." 

Because  the  special  protection  provisions  of  the  Hague  Convention  had  failed  to 
gain  widespread  usage,  the  Second  Protocol  in  Chapter  3  establishes  a  new  concept 
of  "enhanced  protection"  that  combines  aspects  of  special  protection  from  the 
Hague  Convention  and  the  criteria  for  listing  of  cultural  property  in  the  World 
Heritage  List  under  the  1972  UNESCO  Convention  concerning  the  Protection  of 
the  World  Cultural  and  Natural  Heritage.16  Under  the  new  concept  of  enhanced 
protection,  three  conditions  are  to  be  met:  the  cultural  property  in  question  must 
be  of  the  greatest  importance  for  humanity;  it  must  be  protected  by  adequate  do- 
mestic legal  and  administrative  measures  that  recognize  its  exceptional  cultural 
and  historic  value;  and  it  may  not  be  used  for  military  purposes  or  to  shield  military 
sites.  A  declaration  to  this  latter  end  must  be  provided.  Enhanced  protection  is 
granted  by  entering  the  property  in  the  List  of  Cultural  Property  under  Enhanced 
Protection  provided  for  by  Article  27.1(b). 

The  granting  of  enhanced  protection  is  accorded  by  a  twelve-member  inter- 
governmental Committee  for  the  Protection  of  Cultural  Property  in  the  Event  of 
Armed  Conflict.  As  in  the  case  of  special  protection,  objections  to  the  granting  of 
enhanced  protection  are  permitted  but  they  must  be  based  only  on  the  failure  to 
meet  one  or  more  of  the  three  criteria  described  above.  This  prevents  States  who 
are  party  to  the  Second  Protocol  from  making  objections  based  purely  on  politi- 
cal animosity  or  mutual  non-recognition,  thus  avoiding  cases  such  as  that  of 
Cambodia,  which  in  1972  requested  the  entry  of  several  sites  in  the  Register.  Be- 
cause of  the  objections  filed  by  four  States  who  did  not  recognize  the  Govern- 
ment of  Cambodia  at  that  time,  the  entry  was  not  made.  Finally,  unlike  the 
granting  of  special  protection  which  requires  no  objection  from  any  other  state 
party  to  the  Hague  Convention,  enhanced  protection  may  be  granted  by  a  major- 
ity of  four-fifths  of  the  above  Committee.17 

Sanctions 

Article  28  of  the  1954  Convention  imposes  an  obligation  on  States  to  prosecute  and 
punish  those  persons  (regardless  of  their  nationality)  who  commit  breaches  or  or- 
der the  commission  of  breaches  of  the  Convention.  The  deficiency  of  this  provision 
is  its  general  character — Article  28  does  not  contain  a  list  of  crimes  or  offenses  to  be 
sanctioned  nor  does  it  sets  forth  the  procedural  aspects  of  sanctions. 

326 


. Jan  Hladik 

This  deficiency  is  addressed  in  Chapter  4  of  the  Second  Protocol.  Article  15  es- 
tablishes a  category  of  serious  violations  (which  can  be  of  either  the  1954  Conven- 
tion or  the  Second  Protocol  itself).  Five  offenses  fall  within  this  category: 

•  Making  cultural  property  under  enhanced  protection  the  object  of  attack; 

•  Using  cultural  property  under  enhanced  protection  or  its  immediate 
surroundings  in  support  of  military  action; 

•  Extensive  destruction  or  appropriation  of  cultural  property  protected  under 
the  Hague  Convention  and  the  Second  Protocol; 

•  Making  cultural  property  protected  under  the  Hague  Convention  and  the 
Second  Protocol  the  object  of  attack;  and, 

•  Theft,  pillage  or  misappropriation  of,  or  acts  of  vandalism  directed  against, 
cultural  property  protected  under  the  Convention. 

Article  16.1  establishes  universal  jurisdiction  with  regard  to  the  first  three  types 
of  offenses. 

Chapter  IV  also  addresses  other  aspects  of  criminal  responsibility — jurisdic- 
tional issues,  extradition,  mutual  legal  assistance,  and  the  adoption  of  legislative, 
administrative,  or  disciplinary  measures  to  address  other  violations  of  the  Conven- 
tion or  Protocol.  Again,  each  State  party  to  the  Second  Protocol  must  adopt  those 
articles  within  its  national  penal  legislation,  either  civilian  or  military  or  both. 

To  facilitate  the  domestic  implementation  of  the  provisions  of  Chapter  IV,  the 
UNESCO  Secretariat  commissioned  and  widely  distributed  a  consultant's  study  on 
this  issue.  This  study  is  composed  of  three  parts:  the  first  part  introduces  the  rele- 
vant provisions  of  Chapter  4  and  compares  them  with  other  international  humani- 
tarian law  penal  provisions  by  referring  to  the  four  1949  Geneva  Conventions,  the 
1977  Additional  Protocol  I,  and  the  1998  Rome  Statute  of  the  International  Crimi- 
nal Court;  the  second  provides  twelve  case  studies  related  to  six  countries  with  a 
common  law  tradition  (Australia,  Canada,  India,  Nigeria,  the  United  Kingdom, 
and  the  United  States)  and  six  countries  with  a  civil  law  tradition  (Argentina, 
France,  Japan,  the  Netherlands,  the  Russian  Federation  and  Switzerland);  the  third 
part  contains  a  summary  of  recommendations.18 

Conclusion 

It  is  important  that  there  be  close  cooperation  between  UNESCO  and  national  mil- 
itary forces  in  implementing  and  enforcing  the  body  of  cultural  protection  law  that 
is  set  forth  in  the  1954  Hague  Convention  and  its  First  and  Second  Protocol  be- 
cause it  is  those  forces  that  must  ensure  its  application  during  the  execution  of 


327 


Protection  of  Cultural  Property:  The  Legal  Aspects 

combat  operations.  Unless  military  forces  are  properly  trained  and  informed  of  the 
location  of  cultural  property  in  the  adversary's  territory  and  unless  rules  of  engage- 
ment address  the  protection  of  cultural  property,  then  cultural  property  will  not  be 
accorded  the  necessary  protection. 

Notes 

1.  Jan  Hladik,  Program  Specialist,  International  Standards  Section,  Division  of  Cultural  Heritage, 
United  Nations  Educational,  Scientific,  and  Cultural  Organization  (UNESCO).  This  paper  is 
partly  based  on  two  previous  presentations,  the  first  made  at  the  conference  "Heritage  under  Fire: 
The  Protection  of  Cultural  Property  in  Wartime"  organized  by  the  British  Red  Cross  in  London  in 
June  2001,  and  the  second  delivered  at  the  conference  "Conservation  Law  Heritage  2002" 
organized  by  the  University  of  Georgia  in  Athens  in  April  2002.  The  author  is  responsible  for  the 
choice  and  the  presentation  of  the  facts  contained  in  this  paper  and  for  the  opinions  expressed 
therein,  which  are  not  necessarily  those  of  UNESCO  and  do  not  commit  the  Organization. 

2.  See  Dr.  Lavoyer's  paper,  which  is  Chapter  XVI  in  this  volume,  at  287. 

3.  Hague  Convention  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict, 
May  14,  1954,  249  U.N.T.S.  240,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  373  (Adam 
Roberts  and  Richard  Guelff  eds.,  3d  ed.  2000)  [hereinafter  Hague  Convention]. 

4.  First  Hague  Protocol  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict, 
May  14,  1954,  249  U.N.T.S.  358,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  3, 
at  397  [hereinafter  First  Protocol]. 

5.  Second  Protocol  to  the  Hague  Convention  for  the  Protection  of  Cultural  Property  in  the 
Event  of  Armed  Conflict,  Mar.  26, 1999,  38  INTERNATIONAL  LEGAL  MATERIALS  769,  reprinted  in 
DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  3,  at  700  [hereinafter  Second  Protocol]. 

As  of  March  31,  2006,  114  States  are  party  to  the  Hague  Convention,  92  of  which  are  also 
parties  to  the  First  Protocol.  As  of  March  31,  2006,  38  States  are  party  to  the  Second  Protocol. 
The  text  of  the  Hague  Convention  and  its  1954  and  1999  Protocols  together  with  the  list  of  States 
party  thereto,  as  well  as  other  relevant  information  on  UNESCO's  standard-setting  activities  for 
the  protection  of  cultural  property,  is  available  on  the  UNESCO  website  at  http:// 
www.unesco.org/culture/chlp  (last  visited  Mar.  31,  2006). 

The  United  States  participated  actively  in  the  1954  Hague  Intergovernmental  Conference 
which  negotiated  and  adopted  the  Convention  and  its  1954  Protocol,  and  signed  the  Final  Act  of 
the  Conference  and  the  Convention.  In  January  1999,  the  then  President  William  Clinton 
transmitted  the  Hague  Convention  and  the  1954  First  Protocol  to  the  US  Senate  for  its  advice 
and  consent,  a  necessary  prerequisite  to  the  United  States  becoming  a  party  to  both.  To  date,  the 
United  States  has  not  become  party  to  either. 

6.  Hague  Convention,  supra  note  3,  art.  4.1. 

7.  For  the  notion  of  military  necessity  with  regard  to  the  Hague  Convention,  see  my  article  The 
1954  Hague  Convention  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict  and 
the  notion  of  military  necessity,  81  (No.  835)  INTERNATIONAL  REVIEW  OF  THE  RED  CROSS  621 
(Sept.  1999). 

8.  War  Department,  Adjutant  General's  Office,  Instructions  for  the  Government  of  Armies  of 
the  United  States  in  the  Field,  General  Orders  No.  1 00,  (Apr.  24, 1863),  reprinted  in  THE  LAWS  OF 
ARMED  CONFLICTS  3  (Dietrich  Schindler  and  Jiri  Toman  eds.,  4th  ed.  2004). 

9.  Morris  Greenspan,  The  Modern  Law  of  Land  Warfare  313-314  (1959). 


328 


Jan  Hladik 

10.  Black's  Law  Dictionary  806  (7th  ed.  abr.  2000). 

11.  Annotated  Supplement  to  The  Commander's  Handbook  on  the  Law  of  Naval 
OPERATIONS  293  (A.  R.  Thomas  and  James  C.  Duncan  eds.,  1999)  (Vol.  73,  US  Naval  War 
College  International  Law  Studies). 

12.  Article  52.2: 

Attacks  shall  be  limited  strictly  to  military  objectives.  In  so  far  as  objects  are  concerned, 
military  objectives  are  limited  to  those  objects  which  by  their  nature,  location,  purpose 
or  use  make  an  effective  contribution  to  military  action  and  whose  total  or  partial 
destruction,  capture  or  neutralization,  in  the  circumstances  ruling  at  the  time,  offers  a 
definite  military  advantage. 

Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  June  8, 1977, 1125  U.N.T.S.  3,  reprinted 
in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  3,  at  422,  450. 

13.  Burrus  M.  Carnahan,  Lincoln,  Lieber  and  the  Laws  of  War:  The  Origins  and  Limits  of  the 
Principle  of  Military  Necessity,  92  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW  213  (1998). 

14.  Available  at  http://www.unesco.org/culture/chlp  (last  visited  Mar.  31,  2006). 

15.  General  protection  is  granted  to  "movable  or  immovable  cultural  property  of  great 
importance  to  the  cultural  heritage  of  every  people,"  including  works  of  art;  manuscripts;  books; 
other  objects  of  artistic,  historical  or  archaeological  interest;  scientific  or  important  collections 
of  artifacts;  monuments;  and  archaeological  sites.  All  such  property  is  generally  protected  under 
the  Convention,  regardless  of  its  origin  or  ownership.  States  need  not  take  specific  measures, 
such  as  registration,  for  property  entitled  to  general  protection. 

16.  Convention  concerning  the  Protection  of  the  World  Cultural  and  Natural  Heritage,  Nov. 
23,  1972,  27  U.S.T.  37,  1037  U.N.T.S.  151. 

17.  The  establishment  of  the  Committee  is  one  of  the  major  achievements  of  the  1999  Protocol 
because  it  provides  a  supervisory  body  to  monitor  its  implementation.  Such  a  body  does  not 
exist  under  the  original  Hague  Convention.  In  addition  to  the  supervision  of  the 
implementation  of  the  Second  Protocol,  the  Committee  will  be  essentially  responsible  for  the 
granting,  suspension  or  cancellation  of  enhanced  protection,  assistance  in  the  identification  of 
cultural  property  under  enhanced  protection,  consideration  and  distribution  of  international 
assistance,  and  the  use  of  the  resources  of  the  Fund  for  the  Protection  of  Cultural  Property  in  the 
Event  of  Armed  Conflict  created  by  Article  29. 

The  Committee  for  the  Protection  of  Cultural  Property  in  the  Event  of  Armed  Conflict  was 
elected  for  the  first  time  by  the  first  meeting  of  States  party  to  the  Second  Protocol  that  was  held 
in  Paris  at  UNESCO  Headquarters  on  October  26, 2005.  The  elected  committee  members  having 
a  four-year  term  (until  2009)  are  Austria,  El  Salvador,  Libyan  Arab  Jamahiriya,  Peru,  Serbia  and 
Montenegro,  and  Switzerland.  The  elected  committee  members  having  a  two-year  term  (until 
2007)  are  Argentina,  Cyprus,  Finland,  Greece,  the  Islamic  Republic  of  Iran,  and  Lithuania. 

18.  The  study  is  available  upon  request  from  the  UNESCO  Secretariat. 


329 


XIX 


The  Law  of  Armed  Conflict 
and  the  War  on  Terrorism 


David  E.  Graham1 


In  commenting  on  Mr.  Lavoyer's  presentation,  as  well  as  his  paper,2  allow  me  to 
begin  with  his  concluding  remarks  and  then  move  from  there  to  speak  to  his 
observations  regarding  whether  there  is  a  need  to  revise,  amend,  or  supplement  the 
existing  law  of  armed  conflict  in  light  of  the  events  of  September  1 1 ,  2001 — and  the 
ensuing  declaration  by  the  United  States  that  it  is  now  engaged  in  a  "war  on  terror- 
ism." I  would  note  that,  contrary  to  Mr.  Lavoyer,  I  ^will  use  the  term  "law  of  armed 
conflict"  (LOAC),  as  opposed  to  "international  humanitarian  law"  (IHL).  Once 
again,  as  I  have  stated  on  a  number  of  previous  occasions,  both  at  conferences  here 
in  Newport  and  elsewhere,  I  have  yet  to  hear  a  definitive  explanation  as  to  the  need 
for — or  the  body  of  law  encompassed  by — this  latter  term.  If  it  is  but  a  kinder,  gen- 
tler synonym  for  the  law  of  armed  conflict,  it  is  duplicative  in  nature — and  unnec- 
essary. If,  on  the  other  hand,  it  purports  to  embrace  some  undefined  aspects  of 
human  rights  law,  I  reject  it  as  unclear,  confusing,  and  fraught  with  peril  for  com- 
manders in  the  field. 

In  the  draft  of  his  paper,  Mr.  Lavoyer  notes  that,  "The  best  guarantee  for  respect 
[of  the  law  of  armed  conflict]  is  to  keep  the  law  realistic."  With  this  statement,  I  am 
in  complete  agreement.  Aspirational  LOAC  standards  are  inherently  subjective  in 
nature  and  bear  little  reality  to  the  practice  of  warfare  and  modern  weapon  sys- 
tems. Moreover,  they  harm  the  credibility  of  the  LOAC  as  a  whole.  As  has  been 


The  Law  of  Armed  Conflict  and  the  War  on  Terrorism 

previously  stated  in  many  fora,  this  is  a  principal  reason  why  the  United  States  has 
rejected  a  number  of  the  provisions  of  Protocol  I  Additional  to  the  1949  Geneva 
Conventions3 — and  why  it  has  chosen  not  to  become  a  party  to  this  Protocol. 

Mr.  Lavoyer  notes  that,  "[T]he  main  challenge  today  is  without  any  doubt  the 
proper  application  of  IHL  in  today's  armed  conflicts.  Extensive  research  into  re- 
cent armed  conflicts  has  led  the  ICRC  to  conclude  that,  on  the  whole,  the  existing 
rules  are  adequate  enough  to  deal  with  today's  armed  conflicts."4  Once  again, 
I  agree  completely  with  this  statement.  I  do  not  number  myself  among  those  who 
now  criticize  the  law  of  armed  conflict  "for  not  being  adequate  to  deal  with  the  'war 
on  terror.'"5  More  on  this  particular  point,  later. 

Now,  lest  you  feel  that  I  am  being  overly  kind  to  Mr.  Lavoyer,  let  me  turn  to  a 
number  of  areas  of  disagreement.  In  his  paper,  he  makes  reference  to  a  study  con- 
ducted by  the  International  Committee  of  the  Red  Cross  (ICRC)  regarding  the  cus- 
tomary LOAC.  (He  refers  to  it  as  "customary  IHL.")  In  doing  so,  he  states  that, 

The  study — published  in  2005 — will  be  particularly  useful  for  non-international 
armed  conflicts.  Maybe  the  most  important  result  of  the  study  is  the  fact  that  many 
rules  of  the  1977  Additional  Protocol  I  relating  to  the  conduct  of  hostilities  also  apply 
to  internal  armed  conflicts  on  a  customary  law  basis.  Furthermore,  States  not  party  to 
certain  IHL  treaties  will  be  bound  by  their  customary  rules.6 

This,  of  course,  is  a  significant  overstatement  of  the  effect  of  this  study.  The  inter- 
national community,  at  large,  has  not  been  privy  to  the  results  of  the  ICRC's  work. 
However,  I  think  that  it  is  safe  to  say  that,  given  the  somewhat  controversial  nature 
of  the  study's  process — to  include  even  the  supposed  mandate  of  the  ICRC  to  en- 
gage in  this  endeavor,  not  all  States  will  find  themselves  in  full  agreement  with  the 
conclusions  which  are  drawn  therein.  It  is  always  useful  to  remember  that  the  es- 
sence of  customary  international  law  in  general,  and  the  customary  LOAC  in  par- 
ticular, is  State  practice,  and — for  better  or  worse — the  principal  practitioner  of 
the  LOAC  is  the  United  States. 

Mr.  Lavoyer  refers  to  the  ICRC  as  the  "promoter  and  'guardian'  of  IHL."7  Well 
enough.  However,  in  his  draft  paper  he  then  goes  on  to  declare  that,  "Based  on  its 
assessment  of  the  needs  of  the  victims  of  armed  conflicts,  it  is  well  placed  to  prepare 
clarifications  or  developments  of  humanitarian  law."  With  this  assertion,  I  dis- 
agree. Clarifying  and  formulating  the  LOAC  is  the  domain  of  the  international 
community — not  that  of  the  ICRC.  The  former  does  not  respond  to  the  demands 
of  the  latter.  Such  an  arrangement  would  far  exceed  the  ICRC's  charter  and  mis- 
sion. While  the  ICRC  can  play  a  vital  role  in  facilitating  the  efforts  of  the  interna- 
tional community  in  addressing  LOAC  matters,  it  cannot  unilaterally  dictate  the 


332 


David  E.  Graham 


agenda.  A  prime  example  of  the  ICRC's  attempt  to  aspire  to  the  latter  is  the  state- 
ment in  Mr.  Lavoyer's  draft  paper  that,  the  "[development  of  humanitarian  law 
has  to  continue  in  specific  domains.  The  restriction  or  prohibition  of  weapons  is  a 
good  example."  I  would  submit,  to  you,  that  such  decisions  regarding  weapon  sys- 
tems lies  with  the  community  of  States — not  the  ICRC. 

Let  me  now  turn  my  attention  to  the  primary  point  of  discussion — Did  9/11  and 
the  US  Administration's  subsequent  pronouncement  of  a  "war  on  terrorism" 
manifest  the  need  for  a  fundamental  revision  of  the  LOAC  in  the  belief  that  the  cur- 
rent body  of  law  is  simply  incapable  of  effectively  dealing  with  this  "new  form  of 
conflict"?  Mr.  Lavoyer  says,  "No" — I  agree.  He  notes  that 

It  has  been  asserted  that  terrorist  attacks — including  the  attacks  of  September  1 1, 2001 — 
as  well  as  counter-terrorist  activities  were  part  of  a  global  "armed  conflict"  in  the  legal 
sense,  an  armed  conflict  that  started  years  ago  and  that  will  continue  until  the  end  of 
terrorist  activities.  Such  a  conclusion  would  have  considerable  consequences  in  practice, 
especially  if  it  is  used  to  justify  that  States  could  theoretically  strike  the  transnational 
group  at  any  time  and  everywhere — without  having  to  obtain  any  kind  of  approval,  e.g., 
from  those  States  on  whose  territories  the  military  interventions  take  place.8 

I  agree  that  if  the  war  on  terror  were  considered  as  a  "global  armed  conflict"  there 
would  be  considerable  consequences.  But  those  consequences  are  not  reached,  be- 
cause, for  good  reasons,  it's  not  a  "global  armed  conflict." 

From  a  legal  perspective,  the  "global  war  on  terrorism"  is  simply  hyperbolic  fic- 
tion— a  good  political  sound  bite,  but  nothing  more.  Is  this  "declaration  of  war"  by 
the  Executive  branch,  vice  Congress,  truly  intended  to  advise  the  international 
community  that  the  President,  acting  unilaterally,  will  now  deploy  US  armed 
forces  across  any  international  boundary  or  boundaries,  with  or  without  the  con- 
sent of  the  State  or  States  concerned,  to  engage  in  combatant  activity  against  any 
terrorist  organization — regardless  of  the  cause  purported  by  such  an  organiza- 
tion? Pause  for  a  moment  to  consider  not  only  the  LOAC  concerns  that  such  a  pro- 
nouncement would  invoke,  but  the  broad  range  of  jus  ad  bellum  issues,  as  well. 
Indeed,  the  US  congressional  and  United  Nations  Security  Council  resolutions  au- 
thorizing the  use  offeree  against  the  Taliban  government  of  Afghanistan  pointedly 
tied  such  a  use  offeree  against  only  those  who  engaged  in  the  9/11  attacks  on  the 
World  Trade  Center  and  the  Pentagon — and  those  who  assisted  these  individu- 
als in  their  efforts.  In  no  way  can  these  resolutions  be  cited  as  authority  for  the  cur- 
rent Administration  to  unilaterally  declare  that  it  is  engaged  in  a  "global  armed 
conflict"  against  "terrorism,"  which  itself  is  an  undefined  phenomenon. 

For  this  reason,  we  must  continue  to  draw  a  sharp  distinction  between  acts  of 
"terrorism"  to  which  numerous  international  conventions  are  applicable,  and 

333 


The  Law  of  Armed  Conflict  and  the  War  on  Terrorism 

what  can  legitimately  be  perceived  as  an  unlawful  "armed  attack"  against  the 
United  States  committed  by  "unlawful  combatants"  or  "unprivileged  belligerents," 
i.e.,  al  Qaeda  personnel,  aided  and  abetted  by  the  Taliban  government.  Well  de- 
fined international  conventions  and  State  domestic  laws  apply  to  terrorist  acts, 
while  the  LOAC  applies  to  the  use  of  force  undertaken  in  self-defense  in  response 
to  an  armed  attack.  The  United  States  must  choose:  Does  it  view  al  Qaeda  members 
as  "terrorists"  to  whom  the  law  relevant  to  terrorism  applies,  or  does  it  view  these 
individuals  as  "unlawful  combatants"  engaged  in  an  unlawful  belligerency  (armed 
attack)  against  the  United  States  and  its  citizens  to  whom  the  LOAC  is  applica- 
ble? It  cannot  have  it  both  ways.  When  viewed  in  this  context,  one  must  come  to 
the  conclusion,  arrived  at  by  Mr.  Lavoyer,  that,  if  the  United  States  does  view  its 
ongoing  use  of  force  against  al  Qaeda  as  a  response  to  an  armed  attack,  the  LOAC 
requires  no  significant  revision;  it  need  only  be  applied. 

While  the  current  Administration  might  assert  the  validity  of  its  use  of  military 
force  against  al  Qaeda  personnel — and  those  who  support  them — wherever  they 
might  be  found,  even  this  claim  must  realistically  be  tempered  by  the  rights  of  sov- 
ereign States  under  existing  international  law.  How,  for  example,  does  the  United 
States  realistically  apply  the  LOAC  to  a  global  war  against  al  Qaeda?  When  the 
United  States  targeted  suspected  al  Qaeda  members  in  Yemen,  did  it  comply  with 
the  applicable  LOAC?  With  international  law  in  general?  Did  the  United  States  gain 
the  consent  of  the  Yemeni  government  prior  to  its  use  of  force  within  the  latter's  bor- 
ders? Absent  the  consent  of  any  State  in  which  al  Qaeda  personnel  might  be  discov- 
ered, does  the  relevant  Security  Council  resolution  sanction  the  use  of  armed  force 
by  the  United  States  within  such  a  State?  Does  all  of  the  LOAC  apply  to  such  opera- 
tions? If  not,  what  provisions  of  the  LOAC  do  apply?  These  are  but  a  few  of  the  ques- 
tions associated  with  this  subject  that  merit  serious  consideration — and  resolution. 

The  last  issue  I  shall  address  among  those  discussed  by  Mr.  Lavoyer  is  the  legal 
status  of  those  individuals  captured  by  coalition  forces  in  Afghanistan,  and,  in  par- 
ticular, those  currently  being  detained  at  Guantanamo  Bay.  I  agree  with  his  assess- 
ment that  the  coalition  military  action  taken  against  the  Taliban  government  and  al 
Qaeda  operatives  within  Afghanistan  clearly  constituted  an  international  conflict 
to  which  the  LOAC,  in  its  entirety,  applied — a  fact  belatedly  and  reluctantly  agreed 
to  by  the  current  US  Administration.  Given  this  fact,  he  questions  why  none  of  the 
captured  personnel  have  been  afforded  prisoner  of  war  (POW)  status — why  all,  in 
fact,  have  been  declared  to  be  "unlawful  combatants."  Again,  he  asserts  that  this  is 
not  a  matter  that  gives  rise  to  a  necessity  for  revising  or  amending  the  LOAC;  the 
existing  LOAC — the  long  established  provisions  of  the  Third  Geneva 
Convention9 — need  only  be  applied.  Once  again  I  agree  with  Mr.  Lavoyer.  I  even 
find  myself  in  agreement  with  his  contention  that  while  he  might  understand  how 

334 


David  E.  Graham 


the  relevant  provisions  of  Article  4  of  the  Third  Convention  could  be  interpreted  in 
such  a  way  that  POW  status  could  be  denied  to  all  al  Qaeda  personnel,  how  can  the 
same  be  said  to  be  true  of  members  of  the  Taliban  army  as  a  whole?  The  question  of 
the  status  of  Taliban  fighters  deserves  far  more  careful  consideration  than  that  ap- 
parently given  it  by  the  responsible  US  decision  makers.  While  a  case  can  be  made 
for  the  decision  not  to  accord  POW  status  to  the  Taliban  captives,  some  have  ar- 
gued that  sound  legal,  as  well  as  policy,  considerations  should  have  dictated  a  dif- 
ferent course  of  action. 

Where  I  do  disagree  with  Mr.  Lavoyer,  however,  is  with  his  contention  that,  the 
US  decision  "To  make  a  blanket  determination  and  to  disqualify  from  the  start  all 
captured  combatants  from  POW  status  raises  serious  concerns."10  He  specifically 
contends  that  "If  there  is  doubt  about  that  status,  competent  tribunals  as  foreseen 
in  the  Third  Geneva  Convention  should  come  into  action."11  While  this  statement 
refers  to  Article  5  tribunals,  he  does  not  cite  the  text  of  this  article,  which  reads,  in 
part:  "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,  such  persons  shall  enjoy  the  protection  of  the  present  Con- 
vention until  such  time  as  their  status  has  been  determined  by  a  competent  tribunal." 

Mr.  Lavoyer  clearly  implies  that  the  United  States  had  a  LOAC  obligation  under 
Article  5  to  employ  tribunals  to  determine  the  status  of  both  al  Qaeda  and  Taliban 
captives.  Yet  this  is  clearly  not  the  case.  An  examination  of  Pictet's  Commentary  re- 
veals that  this  provision  was  intended  to  apply  only  to  deserters,  and  to  those  per- 
sons who  accompany  the  Armed  Forces  and  who  have  lost  their  identity  cards.12 
Even  more  telling  is  the  clear  language  of  Article  5,  itself:  "Should  any  doubt  arise  as 
to  whether  persons. ..belong  to  any  of  the  categories  enumerated  in  Article  4. . . ." 
(Emphasis  added.)  While  one  might  argue  with  the  Administration's  legal  ratio- 
nale for  determining  that  all  al  Qaeda  and  Taliban  captives  were  to  be  viewed  as 
"unlawful  combatants,"  one  cannot  posit  the  argument  that  there  existed  any  de- 
gree of  doubt  on  the  part  of  the  Administration  as  to  the  status  of  the  individuals  in 
question.  I  would  submit  to  Mr.  Lavoyer — and  to  others  who  have  raised  this  is- 
sue— that  the  "doubt"  referred  to  in  Article  5  must  arise  in  the  "mind"  of  the  "Cap- 
turing Party,"  not  that  of  third  States,  the  ICRC,  or  the  collective  psyche  of  the 
international  community.  When  the  President  of  the  United  States  makes  a  deter- 
mination as  to  the  status  of  personnel  captured  by  US  armed  forces  on  the  battle- 
field, there  would  appear  to  be  no  doubt  on  the  part  of  the  Capturing  Party  as  to  the 
status  of  the  individuals  concerned,  and,  in  the  absence  of  such  "doubt,"  there 
clearly  exists  no  LOAC  obligation  to  conduct  Article  5  tribunals. 

It  is  important,  I  think,  that  in  the  final  analysis  we  are  in  agreement  on  Mr. 
Lavoyer's  essential  premise:  The  events  of  9/11   do  not  call  for  revising  or 

335 


The  Law  of  Armed  Conflict  and  the  War  on  Terrorism 

supplementing  the  LOAC.  What  is  called  for  is  a  candid  recognition  of  the  true  na- 
ture of  the  "conflict"  in  which  the  United  States  is  engaged — and  a  good  faith  ad- 
herence to  both  the  law  of  armed  conflict  and  the  other  controlling  principles 
of  international  law. 

Notes 

1.  Colonel  David  E.  Graham,  J  A,  USA  (Ret.)  is  the  Special  Assistant  to  the  Judge  Advocate 
General  of  the  United  States  Army. 

2.  In  advance  of  the  conference,  Mr.  Lavoyer  provided  a  draft  paper  for  my  review.  Certain  of 
my  comments  address  the  contents  of  that  paper;  others  address  the  contents  of  his  final  paper  as 
it  appears  in  this  volume.  In  this  paper,  I  indicate  to  which  I  am  referring. 

3.  Protocol  Additional  (I)  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts,  June  8,  1977, 1 125  U.N.T.S.  3,  reprinted 
in  DOCUMENTS  ON  THE  LAWS  OF  WAR  422  (A.  Roberts  and  R.  Guelff  eds.,  3d  ed.  2000). 

4.  Mr.  Lavoyer's  paper,  Should  International  Humanitarian  Law  Be  Reaffirmed,  Clarified  or 
Developed?,  which  is  Chapter  XVI  in  this  volume,  at  287. 

5.  Id.  at  290. 

6.  Mat  301. 

7.  Id.  at  300. 

8.  Id.  at  290,  291. 

9.  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War,  Aug.  12,  1949,  6  U.S.T. 
3316,  75  U.N.T.S.  135,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  3,  at  244. 

10.  Lavoyer,  supra  note  4,  at  292. 

11.  Id.  at  292. 

12.  Commentary,  III  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of 
WAR  77  (Jean  S.  Pictet  ed.,  1960). 


336 


Interoperability  and  the  Atlantic  Divide: 
A  Bridge  over  Troubled  Waters 


Charles  H.  B.  Garraway1 


9/11  has  now  passed  into  folklore.  As  everybody,  in  another  generation,  can  re- 
call where  they  were  when  they  heard  of  the  assassination  of  President  Ken- 
nedy, so  for  this,  the  first  information  of  the  terrible  events  that  unfolded  that  bright 
September  day  are  indelibly  engraved  on  the  memory.  I  am  a  member  of  both  gener- 
ations and  just  as  I  can  recall  standing  in  my  school  dormitory  in  England,  frozen 
with  horror,  at  the  news  from  Dallas,  so  I  recall  the  cold  shiver  down  my  spine  as  I 
stood  on  the  second  tee  of  the  famous  Berkshire  Golf  Club,  hearing  on  a  radio,  going 
full  volume  on  a  local  building  site,  the  chilling  account  of  what  was  happening  in 
New  York.  By  the  time  I  returned  to  the  Club  House,  the  news  from  Washington  and 
Pennsylvania  was  also  in.  The  world  would  never  be  the  same  again. 

The  purpose  of  this  article  is  to  look  at  the  effect  of  9/1 1  on  the  field  of  international 
and  operational  law,  in  particular  on  interoperability  between  the  United  States  and 
Europe.  For  most  of  the  last  century,  the  United  States  and  Europe  (the  United  King- 
dom in  particular),  have  worked  together  in  the  military  field,  to  the  great  benefit  of 
world  peace.  It  has  been  like  a  marriage.  We  have  been  comfortable  together  and 
learned  to  work  together,  recognizing  each  others  foibles.  Difficulties  have  been  over- 
come with  good  will  and  a  willingness  to  appreciate  one  another's  point  of  view.  How- 
ever, I  will  be  suggesting  in  this  analysis  that  there  seems  now  to  be  less  understanding 
and  more  talking  across  each  other.  I,  like  a  good  marriage  guidance  counselor,  will 


Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

seek  to  go  behind  the  rhetoric  and  try  to  look  at  what  I  see  as  the  underlying  causes  of 
this  malaise.  In  medical  terms,  I  will  try  to  look  at  the  root  of  the  illness  rather  than  the 
symptoms.  That  may  involve  analyzing  some  difficult,  and  indeed  sensitive,  areas. 

I  spent  most  of  my  career  in  the  UK  Army  working  in  the  field  of  international, 
and  what  we  now  call  operational,  law.  To  me,  the  former  is  the  academic  side  and 
the  latter,  in  relation  to  the  law  of  armed  conflict,  the  practical  application.  Both  go 
hand  in  glove.  One  of  the  advantages  of  being  a  military  lawyer  is  that  one  can  mix 
the  academic  and  the  practical,  checking  out  the  theory  on  the  sounding  board  of 
fact.  The  battlefield  is  a  very  practical  place.  There  is  no  room  for  ivory  towers  or  fine 
theories.  Delays  can  cost  lives.  Decisions  have  to  be  instant.  The  law  of  good  faith  is 
often  the  lodestone.  Over  the  years,  I  have  learned  that  the  law  of  armed  conflict  is  a 
vital  tool  in  the  commander's  tool  box.  However,  just  as  with  the  myriad  of  other 
tools  that  can  be  found  in  that  box,  it  must  prove  its  usefulness  if  it  is  not  to  be  dis- 
carded. Law  that  is  impracticable  will  be  disregarded  on  the  battlefield.  That  is  a  fact 
and  those  of  us  involved  in  the  negotiation  of  international  treaties  and  the  develop- 
ment of  international  law  forget  that  at  our  peril.  The  law  of  armed  conflict  is  in  some 
ways  a  Faustian  pact  between  the  interests  of  humanity  and  military  reality.  If  the 
balance  tilts  too  far  in  either  direction  the  result  is  a  breakdown  in  the  whole  system. 

Much  of  my  professional  life  has  also  been  spent  working  with  US  forces.  From 
my  early  days  as  a  young  officer  at  the  US  Army  JAG  School  at  Charlottesville,  Vir- 
ginia, through  a  tour  at  Supreme  Headquarters  Allied  Powers  Europe  in  Belgium,  to 
Operation  Desert  Shield/Storm,  I  have  worked  alongside  my  US  colleagues  in  friend- 
ship and  harmony.  We  have  shared  ideas  and,  on  the  surprisingly  few  occasions 
when  we  have  disagreed,  we  have  worked  together  to  find  practical  solutions  to  the 
practical  problems  that  we  have  encountered.  As  a  result,  I  have  rarely  found  any  se- 
rious interoperability  problems  on  the  ground  between  UK  and  US  forces. 

But  things  are  beginning  to  change.  Since  9/11,  there  seems  to  have  been  an  in- 
creasing disconnect  between  the  United  States  and  Europe.  That  appeared  to  reach 
its  climax  in  the  unseemly  rows  over  the  questions  raised  by  Operation  Iraqi  Free- 
dom.2 The  divide  between  the  United  States  and  what  Secretary  Rumsfeld  de- 
scribed as  "Old  Europe"3  opened  into  a  chasm.  The  distrust,  and  in  some  cases, 
open  dislike,  that  has  developed  will  take  a  long  time  to  overcome.  The  old  "en- 
tente cordiale"  appears  to  have  broken  down  and  even  within  the  "special  rela- 
tionship," there  seem  to  be  strains  appearing.  The  United  States  and  the  United 
Kingdom  appear  at  times  to  be  moving  along  diverging  tracks.  Tony  Blair,  in  at- 
tempting to  form  a  bridge  between  the  United  States  and  Europe  has  found  him- 
self like  a  rider  trying  to  sit  astride  two  horses  at  the  same  time.  At  times  those 
horses  have  moved  further  apart  than  has  been  good  for  the  health  of  the  rider. 


338 


Charles  H.  B.  Garraway 


This  divergence  of  political  views  has  reached  into  other  areas  as  well.  Within  the 
law  of  armed  conflict,  stresses  have  appeared  that  are  beginning  to  impact  on 
interoperability  and  hence  operational  efficiency.  The  United  States  is  seen  increas- 
ingly as  looking  upon  European  forces  as  a  liability  rather  than  an  asset  in  opera- 
tional terms.  Traditional  alliances  are  overlooked  and  there  is  growing  emphasis  on 
"coalitions  of  the  willing."4  This  began  in  Kosovo  where  the  United  States  gave  the 
impression  of  feeling  constrained  by  its  European  allies,  continued  in  Afghanistan 
where  offers  of  assistance  from  European  States  (other  than  the  United  Kingdom) 
appeared  to  be  declined,  and  culminated  in  Operation  Iraqi  Freedom.  Whilst  that 
purported  to  be  a  coalition,  it  was  one  run  very  much  on  US  terms.  I  have  myself 
been  involved  on  the  ground  in  Operation  Iraqi  Freedom  working  as  part  of  the  Co- 
alition Provisional  Authority  and  I  have  to  admit  that,  in  terms  of  interoperability,  it 
has  been  the  hardest  of  all  the  operations  in  which  I  have  participated. 

Why  is  that?  Where  does  this  divergence  spring  from?  I  want  to  look  at  three  areas 
where  problems  have  arisen  and  examine  them  in  detail.  What  is  the  nature  of  the 
problems?  How  have  they  arisen  and  can  they  be  overcome?  Finally,  I  will  try  to  look 
to  the  future.  Are  the  traditional  alliances  doomed  to  wither  on  the  vine  amidst  mu- 
tual recriminations  and  increasing  US  isolationism?  Or  can  these  issues  be  resolved 
in  such  a  way  that  the  United  States,  acknowledged  as  the  world's  only  remaining  su- 
perpower, will  lead  a  willing,  rather  than  recalcitrant,  world  in  the  pursuit  of  peace? 

I  will  start  by  jumping  in  the  deep  end  of  the  pool.  Probably  the  most  public  dis- 
agreement between  the  Atlantic  allies  has  been  over  the  question  of  "unlawful 
combatants."  The  issue  of  Guantanamo  and  its  inmates  has  become  a  running 
sore.  Yet,  in  my  view,  it  need  not  be  so.  It  has  turned  into  a  disagreement  of  sub- 
stance but  in  its  early  days,  I  would  suggest  that  it  was  more  a  matter  of  linguistics. 
As  much  as  anything,  it  is  the  term  "unlawful  combatant"  that  has  caused  the  prob- 
lem. It  has  confused  the  matter  of  combatant  status  and  has  led  to  some  ex  post 
facto  lawyering  that  always,  in  my  experience,  leads  to  trouble. 

In  order  to  understand  the  problem,  it  is  necessary  to  go  back  into  the  history  of 
combatant  status.  By  tradition,  States  had  a  monopoly  on  violence.  Only  States 
could  conduct  wars  and  it  was  therefore  for  States  to  decide  who  could  take  part  in 
them.  With  the  limited  range  of  weaponry  up  until  the  last  century,  it  was  not  diffi- 
cult to  have  a  clear  division  between  those  who  were  authorised  by  the  State  to  take 
part  in  warfare  and  those  who  were  not  so  entitled.  If  these  latter  chose  to  involve 
themselves  in  the  hostilities,  they  were  common  criminals  and  could  be  prosecuted 
for  the  acts  that  they  carried  out.  Those  who  had  official  authorization  had  an  im- 
munity which  enabled  them  to  carry  out  acts  that  would  otherwise  be  unlawful 
without  sanction.  This  immunity  led  to  the  development  of  "combatant  status"  to 
represent  those  entitled  to  take  part  in  hostilities.  Those  who  were  not  so  entitled 

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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

were  "non-combatants"  (though  this  distinction  is  somewhat  confused  by  Article 
3  of  the  Regulations  attached  to  Hague  Convention  IV  of  19075). 

It  is  important  to  note  that  this  concept,  that  combatant  status  arises  out  of  the 
entitlement  of  a  State  to  authorize  persons  to  take  part  in  hostilities,  is,  of  necessity, 
limited  to  international  armed  conflict.  There  can  be  no  "combatant  immunity"  in 
non-international  armed  conflict  where  one  side — or  in  some  situations  such  as  So- 
malia, all  sides — lack  that  essential  authority.  This  previously  accepted  tenet  has 
come  under  stress  in  recent  years  with  attempts  to  bring  together  the  law  relating  to 
international  and  non-international  armed  conflict.  There  has  been  an  increasing 
tendency  to  use  the  term  "combatant"  in  relation  to  participants  in  non-interna- 
tional armed  conflict.  However,  this  loose  use  of  language  is,  in  my  view,  dangerous 
as  the  word  is  used  in  a  separate  sense  from  international  armed  conflict.  Participants 
in  non-international  armed  conflicts  remain  subject  to  domestic  law  and  dissident 
forces  have  no  immunity  from  that,  even  in  respect  of  acts  which  would  be  legitimate 
under  international  law,  such  as  attacks  on  military  personnel  or  military  objectives. 
There  have,  indeed,  been  some  non-international  armed  conflicts  where  the  level  of 
intensity  has  been  such  that  a  form  of  belligerent  status  has  been  accorded  to  rebel 
fighters,  but  these  are  the  exception  rather  than  the  rule  and  such  concessions  have 
usually  been  more  for  pragmatic  than  for  legal  reasons.  The  word  "combatant"  has 
always  indicated  a  particular  status  and  attempts  to  extend  its  use  should  be  resisted. 

In  the  arguments  that  have  arisen  out  of  Afghanistan  and  the  Guantanamo  situa- 
tion, similar  loose  use  of  language  occurs  and  this  can  have  an  effect  on  some  funda- 
mental tenets  of  international  law  as  defined  over  the  years.  In  the  first  instance,  the 
"war  on  terror"  raises  the  whole  question  of  what  is  an  international  armed  conflict. 
By  custom,  this  has  been  limited  to  conflicts  between  States.  Under  treaty  law,  it  is 
defined  in  Common  Article  2  of  the  Geneva  Conventions6  as  "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." 

The  inclusion  of  the  words  "High  Contracting  Parties"  makes  it  plain  that  this 
provision  also  involves  States.  Non-State  entities  fall  outside  its  terms.  Thus  pirates, 
however  well  organised  and  however  international  their  activities,  cannot,  by  attack- 
ing State  forces,  create  a  state  of  international  armed  conflict  so  as  to  gain  for  them- 
selves combatant  status.  They  remain  pirates  and  subject  to  the  law  relating  to 
piracy — not  the  law  relating  to  armed  conflict.  Similarly,  criminal  organizations 
such  as  the  Mafia  and  drug  cartels,  despite  having  tentacles  that  reach  across  interna- 
tional boundaries  and  often  using  levels  of  force  that  would  in  other  circumstances 
fall  within  the  definition  of  "armed  conflict,"  cannot  benefit  by  bringing  themselves 
out  of  the  ambit  of  criminal  law  into  the  law  of  armed  conflict.  "Terrorists"  are  in  a 
similar  position,  though  in  their  case,  the  situation  is  complicated  further  by  two 

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Charles  H.  B.  Garraway 


additional  factors,  the  lack  of  an  agreed  definition  of  the  term  and  the  existence  of 
State  sponsored  terrorism.  However,  in  this  latter  case,  it  is  not  the  acts  of  terrorism 
that  may  create  an  international  armed  conflict  but  the  involvement  of  the  State  be- 
hind those  acts.  In  cases  where  terrorists  have  no  State  sponsor,  their  acts  remain 
criminal  but  cannot,  in  themselves,  amount  to  international  armed  conflict. 

The  campaign  in  Afghanistan  muddied  the  waters.  It  is  beyond  dispute  that 
there  was  indeed  an  international  armed  conflict  between  the  Coalition  and  Af- 
ghanistan. That  meant  that  combatant  status  was  an  issue  for  those  people  involved 
in  that  conflict.  But  just  because  there  was  a  specific  armed  conflict  taking  place 
does  not  mean  that  the  status  of  "international  armed  conflict"  extended  to  all  ac- 
tivities in  the  "war  against  terror."  Even  within  the  United  States,  some  alleged 
"terrorists"  were  arrested  and  dealt  with  by  the  ordinary  criminal  justice  system.  It 
follows  that  the  first  decision  in  relation  to  any  attempt  to  obtain  combatant  status 
is  to  identify  the  international  armed  conflict  to  which  the  claim  relates. 

However,  the  mere  identification  of  an  international  armed  conflict  is  not  suffi- 
cient. It  is  then  necessary  to  examine  the  individual  concerned  to  see  if  that  person 
satisfies  the  definition  of  "combatant."  Not  everybody  to  be  found  on  the  battle- 
field is  necessarily  a  combatant. 

Most  examinations  into  the  definition  of  combatant  begin  with  Article  1  of  the 
Hague  Regulations  of  1907.7  This  reads: 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but  also  to  militia  and 
volunteer  corps  fulfilling  the  following  conditions: 

1.  To  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  distance; 

3.  To  carry  arms  openly;  and 

4.  To  conduct  their  operations  in  accordance  with  the  laws  and  customs  of  war. 

In  countries  where  militia  or  volunteer  groups  constitute  the  army  or  form  part  of  it, 
they  are  included  under  the  denomination  "army." 

The  Hague  Regulations  were  accepted  as  reflecting  customary  international  law  at 
Nuremberg  and  their  terms  have  been  relatively  unchallenged.  However,  within  this 
Article  lie  the  seeds  of  a  controversy  that  has  surfaced  in  the  first  part  of  the  21st  cen- 
tury, one  hundred  years  later.  It  will  be  noted  that  the  four  conditions  only  appear  to 
apply  to  militia  and  volunteer  corps  who  do  not  "constitute  the  army  or  form  part  of 
it."  Does  this  mean  that  the  "army"  itself  is  exempt  from  these  conditions?  The  answer 


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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

is  not  as  easy  as  it  might  seem.  At  the  time,  in  1907,  the  difficulties  in  distinguishing  be- 
tween combatants  and  non-combatants  were  not  so  severe.  Battlefields  were  for  the 
most  part  linear  and  armies,  almost  by  definition,  wore  distinguishing  features  by  way 
of  uniform.  It  was  therefore  not  necessary  to  require  armies  to  comply  with  such  con- 
ditions because  it  was  assumed  that  they  would.  This  view  is  supported  by  case  law 
both  within  the  United  States  and  the  United  Kingdom  which  made  it  clear  that  mem- 
bers of  armed  forces  could  not  excuse  themselves  from  compliance.8 

The  definition  contained  in  the  Hague  Regulations  would  stand  until  1977,  de- 
spite huge  changes  in  the  nature  of  warfare.  It  was  reinforced  by  the  Third  Geneva 
Convention  of  1949  which  dealt  with  prisoner  of  war  status.  This  granted  prisoner 
of  war  status,  inter  alia,  to: 

(1)  Members  of  the  armed  forces  of  a  Party  to  the  conflict  as  well  as  members  of 
militias  or  volunteer  corps  forming  part  of  such  armed  forces. 

(2)  Members  of  other  militias  and  members  of  other  volunteer  corps,  including  those 
of  organized  resistance  movements,  belonging  to  a  Party  to  the  conflict  and  operating  in 
or  outside  their  own  territory,  even  if  this  territory  is  occupied,  provided  that  such 
militias  or  volunteer  corps,  including  such  organized  resistance  movements,  fulfil  the 
following  conditions: 

(a)  that  of  being  commanded  by  a  person  responsible  for  his  subordinates; 

(b)  that  of  having  a  fixed  distinctive  sign  recognizable  at  a  distance; 

(c)  that  of  carrying  arms  openly; 

(d)  that  of  conducting  their  operations  in  accordance  with  the  laws  and  customs 
or  war.  y 

Apart  from  the  wording  specifically  referring  to  organized  resistance  movements 
which  I  have  highlighted,  this  is  taken  directly  from  the  Hague  Regulations.  However, 
the  same  assumption  is  made  in  the  distinction  between  armed  forces  and  "other  mili- 
tias and  members  of  other  volunteer  corps"  which  do  not  form  part  of  the  armed 
forces.  Anybody  who  had  suggested  in  1949  that  armed  forces  were  exempt  from  com- 
pliance with  the  four  conditions  would  have  been  looked  at  with  considerable  puzzle- 
ment. Did  the  conditions  not  provide  a  definition  of  what  armed  forces  were? 

This  is  made  plain  by  the  Commentary  to  the  Third  Geneva  Convention,  pub- 
lished by  the  International  Committee  of  the  Red  Cross  (ICRC),  which  states  in  re- 
lation to  Article  4: 

The  drafters  of  the  1949  Convention,  like  those  of  the  Hague  Convention,  considered  that 
it  was  unnecessary  to  specify  the  sign  which  members  of  the  armed  forces  should  have  for 
the  purposes  of  recognition.  It  is  the  duty  of  each  State  to  take  steps  so  that  members  of  its 


342 


Charles  H.  B.  Garraway 


armed  forces  can  be  immediately  recognized  as  such  and  to  see  to  it  that  they  are  easily 
distinguishable  from  members  of  the  enemy  armed  forces  or  from  civilians.10 

In  1977,  in  Additional  Protocol  I  to  the  Geneva  Conventions,11  an  attempt  was 
made  to  bring  together  the  separate  strands  of  "Hague"  and  "Geneva"  law.  Arti- 
cles 43  to  47  deal  with  "Combatant  and  Prisoner-of-War  Status."  Some  of  these 
provisions  are  controversial  and  undoubtedly  do  not  represent  customary  law. 
However,  others  are  uncontroversial  and,  whilst  perhaps  a  restatement  of  law,  re- 
flect an  international  consensus.  Amongst  those  provisions  is  Article  43 12  which, 
in  part,  reads: 

1.  The  armed  forces  of  a  Party  to  a  conflict  consist  of  all  organized  armed  forces, 
groups  and  units  which  are  under  a  command  responsible  to  that  Party  for  the 
conduct  of  its  subordinates,  even  if  that  Party  is  represented  by  a  government  or  an 
authority  not  recognized  by  an  adverse  Party.  Such  armed  forces  shall  be  subject  to 
an  internal  disciplinary  system  which,  inter  alia,  shall  enforce  compliance  with  the 
rules  of  international  law  applicable  in  armed  conflict. 

2.  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. 

While  this  may  seem  to  be  a  withdrawal  from  the  Hague  standards,  Article  44(2) 13 
makes  it  clear  that: "...  all  combatants  are  obliged  to  comply  with  the  rules  of  inter- 
national law  applicable  in  armed  conflict. . . ."  Article  44(3) 14  lays  down  a  general 
rule  that:  "...  combatants  are  obliged  to  distinguish  themselves  from  the  civilian 
population  while  they  are  engaged  in  an  attack  or  in  a  military  operation  prepara- 
tory to  an  attack.  ..."  Article  44(7) 15  states  that:  "This  Article  is  not  intended  to 
change  the  generally  accepted  practice  of  States  with  respect  to  the  wearing  of  the 
uniform  by  combatants  assigned  to  the  regular,  uniformed  armed  units  of  a  Party 
to  the  conflict."  These  provisions  provide  a  general  format  little  removed  from  that 
contained  in  the  Hague  Regulations.  As  the  ICRC  Commentary  puts  it:  "The  pro- 
visions of  Article  4  of  the  Third  Convention  are  fully  preserved."16 

Articles  44  to  47  of  Additional  Protocol  I  also  deal  with  a  number  of  unusual  sit- 
uations, including  that  of  spies  and  mercenaries.  It  is  here  that  controversy  arises, 
particularly  in  Article  44(3)  which  deals  with  exceptional  circumstances  where  the 
duty  to  distinguish  can  be  relaxed.  These  provisions  lay  down  that,  in  certain  cases 
of  non-compliance,  the  combatant  may  forfeit  his  right  to  prisoner-of  war  status, 
while  in  others  he  forfeits  his  right  even  to  combatant  status. 

Additional  Protocol  I  is  also  significant  because,  for  the  first  time,  it  attempts  to 
define  the  term  "civilian."  Essentially,  a  civilian  is  anyone  who  is  not  a  combatant, 
other  than  those  who  have  lost  their  combatant  status  under  Articles  44  to  47. 17 


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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

The  principle  is  clear.  There  is  no  gap;  a  person  is  either  a  combatant  or  a  civilian. 
However,  just  as  it  is  possible  to  lose  combatant  status,  and  the  immunity  that  goes 
with  it,  by  failure  to  comply  with  the  rules,  so  the  protection  given  to  civilians  can 
also  be  lost  if  "and  for  such  time  as  they  take  a  direct  part  in  hostilities." 

While  the  drafting  of  Protocol  I  is  hardly  a  model  of  clarity  with  different  terms 
being  used  almost  interchangeably  at  times,  one  thing  does  appear  to  stand  out.  A 
combatant  who  loses  the  right  to  combatant  status  does  not  become  a  civilian.  In 
the  same  way,  a  civilian  who  loses  his  right  to  protection  as  a  civilian  does  not  be- 
come a  combatant.  Each  remains  within  their  respective  designation  but  loses  the 
rights  and  privileges  attached  to  that  designation. 

How  does  this  affect  the  situation  in  Guantanamo?  It  would  appear  that  the 
term  "unlawful  combatant"  is  being  used  in  a  generic  sense  to  cover  a  multitude  of 
different  categories  of  people.  First  there  are  those  who  might  be  described  as  the 
armed  forces  of  Afghanistan.  Such  people  may  well  fall  within  the  definition  of 
"combatant"  within  the  law  of  armed  conflict.  Some  may  have  committed 
breaches  of  the  law  of  armed  conflict.  That  will  not  necessarily  deprive  them  of  the 
right  to  combatant  status  or  to  combatant  immunity,  and  consequently  to  pris- 
oner-of-war status.18  However,  that  immunity  only  extends  to  legitimate  acts  of 
warfare  and  so  they  will  be  liable  to  trial  and  punishment  for  unlawful  acts.  These 
people  can  perhaps  be  described  as  "combatants  acting  unlawfully." 

Others  may  also  fall  within  the  definition  of  "combatant"  but  by  their  actions 
have  forfeited  the  right  to  that  status  or  to  combatant  immunity.19  These  people 
can  be  tried  not  only  for  war  crimes  but,  since  they  have  forfeited  their  combatant 
immunity,  for  acts  that  would  otherwise  be  legitimate  acts  of  war.  It  is  this  category 
of  person  for  whom  the  title  "unlawful  combatant"  is  perhaps  the  closest  fit  but 
even  then,  it  does  not  really  adequately  describe  their  position. 

There  are  also  those  who  do  not  begin  to  fit  within  the  definition  of  combatant 
but  who  choose  to  take  part  in  the  hostilities.  These  people  can  never  be  described 
as  "combatant"  and  therefore  begin  with  the  status  of  "civilian."  However,  by 
their  acts,  they  have  forfeited  the  rights  and  privileges  that  go  with  the  status  of 
"civilian."20  They  do  not  become  "combatants"  but  can  be  tried  for  the  part  that 
they  have  taken  in  the  hostilities  since  they  have  no  entitlement  to  take  such  a 
part.  It  is  misleading  to  describe  such  people  as  "unlawful  combatants"  as  they 
never  were  combatants,  whether  lawful  or  unlawful.  My  preferred  description, 
even  if  it  seems  somewhat  dated  to  the  modern  ear,  is  that  used  by  Richard 
Baxter,  "unprivileged  belligerents." 

It  will  be  noticed  that  I  have  avoided  such  terms  as  "Taliban"  or  "al  Qaeda."  I  do 
not  find  such  terms  helpful  in  this  analysis.  The  law  of  armed  conflict  deals  with 
factual  situations  rather  than  titles.  Thus,  there  will  be  Taliban  members  who  could 

344 


Charles  H.  B.  Garraway 


not  be  described  as  "combatants"  under  any  circumstances  and,  possibly,  some  Al 
Qaeda  who  could.  That  does  not  mean  to  say  that  such  personnel  necessarily  are 
entitled  to  be  treated  as  combatants  but  only  that  they  fall  on  that  side  of  the  divid- 
ing line  at  the  first  assessment.  Their  subsequent  conduct  as  combatants  may  well 
disqualify  them  from  being  entitled  to  be  treated  as  combatants,  or  to  hold  pris- 
oner-of-war status. 

I  said  at  the  start  that  this  issue  began  as  a  matter  of  linguistics  but  is  now  turning 
into  an  issue  of  substance.  If  the  use  of  the  term  "unlawful  combatant"  was  origi- 
nally loose  language,  it  has  now  begun  to  take  on  a  meaning  of  its  own  with  argu- 
ments being  advanced  that  there  is  indeed  such  a  category  of  person.  This  is 
summed  up  by  the  words  of  Professor  Dinstein:  "One  cannot  fight  the  enemy  and 
remain  a  civilian."21 

The  core  of  the  argument  here  is  that  a  civilian  who  takes  a  direct  part  in  hostili- 
ties not  only  loses  his  civilian  protection,  but  also  his  status  as  a  civilian.  Indeed,  he 
becomes  a  combatant.  However,  because  he  does  not  come  within  the  definition  of 
a  combatant  as  laid  down  in  the  law  of  armed  conflict,  he  gains  none  of  the  rights 
and  privileges  of  a  combatant  but  becomes,  in  effect,  an  "outlaw."  It  is  this  category 
to  whom  the  term  "unlawful  combatant"  is  most  appropriately  applied. 

As  will  be  apparent,  I  can  find  no  basis  in  law  for  this  new  category — nor  do  I 
think  it  is  necessary.  Dinstein  states:  "Under  the  ius  in  hello,  combatants  are  per- 
sons who  are  either  members  of  the  armed  forces  (except  medical  and  religious 
personnel)  or — irrespective  of  such  membership — take  an  active  part  in  hostilities  in 
an  international  armed  conflict."22  [My  emphasis].  Cited  as  authority  for  this  state- 
ment is  the  Model  Manual  on  the  Law  of  Armed  Conflict,  published  by  the  ICRC,  and 
entitied  "Fight  it  Right."23  The  same  authority  is  cited  in  the  Israeli  response  to  the 
Mitchell  Report  where  a  similar  proposition  is  put  forward.24 

I  regret  to  say  that  I  have  been  unable  to  find  anything  in  that  ICRC  Manual  which 
would  support  this  proposition.  Certainly,  the  paragraphs  of  the  Manual  cited  in  the 
Israeli  response25  fall  some  way  short  of  that  and  it  would  indeed  be  surprising  if  the 
ICRC,  of  all  people,  were  to  put  forward  such  a  view  which  would  seem  to  widen 
considerably  the  definition  of  "combatant,"  whether  lawful  or  unlawful. 

Paragraph  601  of  the  Manual  states: 

a.  Only  combatants  may: 

( 1 )  take  a  direct  part  in  hostilities,  and 

(2)  be  attacked. 

b.  Combatants  are  members  of  the  armed  forces  of  a  party  to  the  conflict  except 
medical  and  religious  personnel. 


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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

Paragraph  601  goes  on  to  describe  activities  prohibited  to  civilians  but  nowhere 
does  it  state  that  civilians,  by  taking  a  direct  part  in  hostilities,  become  combatants. 

Similarly  paragraph  1 106c  merely  states:  "Civilians  are  protected  unless  and  for 
such  time  as  they  take  a  direct  part  in  hostilities."  Despite  the  grammatical  incon- 
sistency, this  again  does  not  in  any  way  imply  that  civilians  become  combatants, 
merely  that  they  lose  their  protection. 

Dinstein  goes  on  to  say:  "A  civilian  may  convert  himself  into  a  combatant In 

the  same  vein,  a  combatant  may  retire  and  become  a  civilian."26  The  analogies 
drawn  here  are  incomplete.  Indeed,  a  civilian  can  convert  himself  into  a  combatant — 
by  bringing  himself  within  the  definition  of  "combatant"  by,  for  example,  joining  the 
armed  forces.  The  combatant,  by  retiring,  has  ceased  to  come  within  that  definition 
and  therefore  has  become  a  civilian.  The  combatant  does  not,  however,  become  a  civil- 
ian if  he  goes  off  to  occupy  himself  in  civilian  pursuits.  A  soldier  undergoing  a 
university  course  at  a  civilian  institution  remains  a  combatant  even  though  he  may  be 
indistinguishable  from  the  civilian  students  surrounding  him. 

Dinstein  further  states:  "Combatants  can  withdraw  from  the  hostilities  not  only 
by  retiring  and  becoming  civilians,  but  also  by  becoming  hors  de  combat."27 1  agree. 
But  even  hors  de  combat,  the  combatant  retains  his  combatant  status.  He  merely 
gains  extra  protection  in  return  for  not  taking  part  in  the  hostilities.  He  does  not 
change  his  status  and  become  a  civilian. 

There  is  a  justifiable  concern  about  what  is  sometimes  described  as  the  "revolv- 
ing door  syndrome" — the  farmer  by  day  and  the  fighter  by  night.  This  is  indeed  a 
problem  which  needs  addressing.  However,  I  would  suggest  that  it  can  be  resolved 
better  by  looking  again  at  the  interpretation  of  Article  51(3)  of  Additional  Protocol  I.28 
That  provision  reads:  "Civilians  shall  enjoy  the  protection  afforded  by  this  Section, 
unless  and  for  such  time  as  they  take  a  direct  part  in  hostilities"  [My  emphasis.]  It  is 
here  that  the  difficulty  is  to  be  found  that  leads  to  the  "revolving  door  syndrome"  and 
it  maybe  necessary  to  take  a  wider  view  of  the  period  during  which  protection  is  lost. 
It  is  clearly  impracticable  to  argue  that  the  civilian  who  takes  part  in  a  hostile  act  re- 
gains his  immunity  as  soon  as  that  act  is  completed.  However,  the  temporal  duration 
of  the  loss  of  protection  needs  to  be  limited  in  some  way.  International  law  does  not 
allow  for  a  permanent  loss  of  protection  so  that,  years  after  the  act,  the  person  re- 
mains vulnerable,  even  if  he  has  taken  no  part  in  the  hostilities  since. 

On  the  other  hand,  the  term  "combatant"  has  always  been  narrowly  defined — 
and  limited  to  international  armed  conflict.  The  current  attempts  to  extend  the 
definition,  and  to  widen  the  definition  of  "war"  or  "armed  conflict,"  amount  to  a 
slippery  slope.  It  is  difficult  to  come  up  with  clear  boundaries  and  gives  far  too 
much  freedom  to  interpretation.  While  the  events  of  9/1 1  pose  a  real  challenge  to 
the  forces  of  law  and  order  all  over  the  world,  the  solution  arrived  at  by  the  creation 

346 


Charles  H.  B.  Garraway 


of  this  new  category  of  "unlawful  combatant,"  although  understandable,  is,  in  my 
view,  unsound  and,  in  less  scrupulous  hands,  could  be  manipulated  in  such  a  way 
as  to  remove  to  a  large  extent  the  protections  built  into  the  law  for  both  combatants 
and  civilians. 

The  second  area  that  I  wish  to  look  at  is  the  question  of  war  crimes  and,  in  particu- 
lar, methods  of  trial.  I  want  to  move  between  the  Scylla  of  international  jurisdiction 
as  exemplified  by  international  tribunals,  and  in  particular  the  International  Crimi- 
nal Court,  and  the  Charybdis  of  universal  jurisdiction,  particularly  when  used  to 
bring  charges  against  individuals  in  States  with  no  links  to  the  crime  itself,  the  vic- 
tims or  the  alleged  participants.  These  are  both  interesting  subjects  in  their  own 
right  but  I  will  concentrate  primarily  on  the  controversy  caused  by  the  US  propos- 
als to  hold  military  commissions  to  deal  with  alleged  war  crimes.29 1  will  limit  my- 
self further  to  the  nature  of  the  commissions  themselves,  rather  than  the  separate 
issue  of  their  jurisdiction  which  is  primarily  a  question  of  US  domestic  law. 

I  believe  that  the  United  States  has  been  somewhat  surprised  by  the  strength  of 
the  reaction  by  their  European  allies  against  the  concept  of  military  commissions.30 
While  some  of  this  antipathy  is  undoubtedly  caused  by  specific  detail  such  as  issues 
arising  from  the  death  penalty  and  the  apparent  limitations  on  the  rights  of  the  de- 
fense,31 there  is  a  more  fundamental  objection  which  is  rather  a  cultural  divide 
than  a  legal  one.  Again,  only  by  appreciating  this,  can  the  two  sides  reach  any  form 
of  modus  vivendi. 

There  is  no  doubt  that  there  is  a  duty  upon  States  to  deal  with  violations  of  the 
laws  of  armed  conflict.  The  ideal  method  of  so  dealing  is  by  national  jurisdiction 
but  that  may  not  always  be  possible.  The  Afghan  courts,  for  example,  are  not  yet  in 
a  fit  state  to  deal  with  such  cases  even  if  the  United  States  were  prepared  to  release 
people  to  be  so  tried.  Furthermore,  not  all  States  have  given  themselves  jurisdiction 
to  deal  with  the  full  array  of  international  crimes  arising  out  of  armed  conflict  and 
quasi  conflict  situations.  There  is,  therefore,  no  reason  why  the  Coalition  should 
not  be  entitled  to  take  action  themselves.  Indeed,  it  is  not  so  much  the  fact  that 
cases  will  be  brought  but  rather  the  forum  that  has  caused  the  disquiet. 

Military  tribunals  have  a  long  and  distinguished  record.  After  World  War  II,  the 
majority  of  war  crimes  trials  were  dealt  with  by  way  of  national  military  tribunals.32 
They  had  the  advantage  that  they  could  sit  anywhere  in  the  world  and  not  be  lim- 
ited by  territorial  considerations.  In  the  Geneva  Conventions,  the  use  of  military 
courts  to  try  certain  categories  of  offense  was  not  only  approved  but  mandated. 
Prisoners  of  war  are  made  "subject  to  the  laws,  regulations  and  orders  in  force  in 
the  armed  forces  of  the  Detaining  Power."  Article  84  of  the  Third  Convention,  in 
particular,  provides  that: 


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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

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.33 

Similarly,  in  relation  to  occupied  territories,  Article  66  of  the  Fourth  Convention 
provides  that,  in  respect  of  breaches  of  penal  provisions  of  occupation  law:  ". . .  the 
Occupying  Power  may  hand  over  the  accused  to  its  properly  constituted,  non-politi- 
cal military  courts,  on  condition  that  the  said  courts  sit  in  the  occupied  country."34 
In  the  light  of  this,  why  is  there  this  visceral  reaction  by  many  Europeans  to  the  use 
by  the  United  States  of  military  commissions? 

The  answer  lies  in  two  separate  areas,  though  there  is  a  link  between  them.  One 
is  historical  and  the  other  legal.  In  historical  terms,  since  the  end  of  World  War  II, 
military  justice  in  general  has  earned  a  bad  reputation.  While  in  the  United 
States — and  the  United  Kingdom — we  remain  proud  of  our  military  and  see  them 
as  a  bastion  of  our  national  freedom,  this  is  not  so  in  many  other  parts  of  the  world. 
The  history  of  South  America  and  the  independent  African  States  has  been  full  of 
military  dictatorships  and  even  in  Europe,  the  military,  in  the  old  communist 
States,  was  seen  as  a  symbol  of  repression  rather  than  a  flag  carrier  for  freedom.  The 
jurisdiction  of  military  courts  was  extended  so  that  they  became  part  of  the  State 
system  of  control  over  the  civilian  population.  "Security  courts,"  often  manned  by 
military  personnel,  enabled  these  dictatorships  to  survive.  "Military  justice"  be- 
came a  contradiction  in  terms. 

Linked  to  this  is  the  rise  of  human  rights,  particularly  in  Europe.  The  European 
Court  of  Human  Rights,  under  the  auspices  of  the  Council  of  Europe,  has  become 
probably  the  most  influential  human  rights  body  in  the  world.35  Its  judgements  are 
binding  on  members  of  the  Council  of  Europe  and  the  Court  has  adopted  a  pro- 
gressive attitude  to  human  rights  in  general.  It  sees  the  European  Convention  on 
Human  Rights  (ECHR)  as  a  living  document  which  may  need  to  be  reinterpreted 
as  circumstances  change.  One  of  the  key  rights  embodied  in  the  Convention  is  the 
right  to  a  fair  and  impartial  trial.36 

In  recent  years,  particularly  since  the  fall  of  the  Berlin  Wall  and  the  influx  of 
Eastern  European  judges  on  to  the  bench,  the  Court  has  been  called  upon  increas- 
ingly to  rule  on  matters  relating  to  the  military.  Many  of  these  rulings  are  called  for 
as  a  result  of  cases  brought  in  relation  to  military  justice.  The  suspicions  of  military 
justice  which  have  inevitably  arisen  out  of  the  misuse  of  such  systems  by  dictator- 
ships of  different  types  have  been  apparent  in  rulings  by  the  Court.  Whereas  in 
1949,  when  the  Geneva  Conventions  were  drafted,  military  justice  was  accepted  as 
fair  and  impartial,  now  it  is  not  necessarily  so  accepted  and  increasing  restrictions 


348 


Charles  H.  B.  Garraway 


have  been  imposed  upon  its  use.  For  example,  over  the  last  ten  years  both  the  sum- 
mary justice  system  and  the  court  martial  system  used  by  the  UK  armed  forces  have 
had  to  be  utterly  overhauled  as  a  result  of  rulings  by  the  European  Court  of  Human 
Rights.37  The  assumption  that  military  officers  will  conduct  their  duties  "without 
partiality,  favour  or  affection"  has  been  replaced  almost  by  an  assumption  the 
other  way.  Any  trace  of  possible  bias  or  command  influence  has  to  be  removed  so 
that  justice  is  not  only  seen  to  be  done  but  manifestly  seen  to  be  done. 

In  some  countries,  such  as  Belgium,  there  have  been  moves  towards  abolishing 
the  military  justice  system  altogether  and  in  many  other  continental  countries, 
military  personnel  already  are  dealt  with  by  civil  tribunals.  The  trend  is  undoubt- 
edly away  from  military  justice  and  in  particular  to  any  exercise  of  military  justice 
over  civilians.  It  follows  that  what  was  acceptable  in  occupied  Germany  in  1945,  or 
even  in  1949,  is  not  acknowledged  as  necessarily  acceptable  now.  The  United  King- 
dom, for  example,  has  legislation  in  the  form  of  a  Royal  Warrant  dating  from 
1945,38  permitting  the  establishment  of  military  courts  to  try  war  crimes.  However, 
the  legislation  is  now  effectively  obsolete  as  it  has  not  been  updated  for  over  fifty 
years  and  any  attempt  to  do  so  would  probably  fail  politically.  The  Royal  Warrant 
therefore  has  been  left  to  wither  on  the  vine. 

The  question  of  how  to  deal  with  war  crimes  is  a  very  real  one  and  needs  to  be 
addressed.  It  arises  again  in  relation  to  Iraq,  though  in  that  case,  it  is  likely  that  most 
cases  will  be  tried  before  Iraqi  courts.  The  correct  disposal  of  such  cases  is  a  matter 
of  international  concern  and  it  is  therefore  important  that  some  degree  of  consen- 
sus is  reached  on  a  way  forward.  If  war  crimes  trials,  whether  carried  out  by  domes- 
tic civil  courts  or  by  military  tribunals,  are  not  seen  as  fair  and  impartial  by 
international  standards,  then  they  will  cause  another  running  sore  in  that  "mar- 
tyrs" will  be  created  and  allegations  of  "victors'  justice"  will  again  circulate. 

Like  most  in  the  US  or  UK  military,  I  am  convinced  that  my  national  system  of 
military  justice  is  as  fair  as  it  could  be,  and  in  many  cases  fairer  than  the  civil  system 
which  some  would  like  to  replace  it  by.  However,  that  is  in  itself  insufficient.  There 
is  an  inbuilt  suspicion  of  military  justice  brought  about  by  years  of  misuse  by  some. 
Failure  to  appreciate  that  suspicion — and  the  reasons  behind  it — will  simply  work 
to  increase  the  divide  between  the  United  States  and  Europe.  On  the  other  hand,  an 
appreciation  may  lead  to  dialogue  which  can  only  serve  to  bridge  the  gap  before  it 
becomes  too  great. 

The  third  area  with  which  I  wish  to  deal  is  linked  to  this.  It  is  the  growing  impact 
of  human  rights  law  in  general  on  operations.  For  decades,  human  rights  law  and  the 
law  of  armed  conflict  developed  separately,  partly  because  the  United  Nations  was 
reluctant  to  involve  itself  in  the  law  of  armed  conflict,  seeing  an  inherent  inconsis- 
tency in  its  role  to  abolish  war  as  a  means  of  dispute  resolution.  However,  gradually  a 

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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

more  pragmatic  approach  was  adopted  and  the  updating  of  the  law  carried  out  in  the 
1977  Additional  Protocols  to  the  Geneva  Conventions  grew  out  of  initiatives  started 
in  the  human  rights  community.39  Indeed,  there  are  clear  resonances  of  human 
rights  law  in  some  of  the  drafting,  particularly  in  Additional  Protocol  II.40 

However,  there  has  never  been  an  attempt  to  define  the  relationship  between 
the  two  legal  systems,  and  as  human  rights  law  has  increased  both  in  scope  and  in 
applicability,  it  was  inevitable  that  the  two  would  eventually  run  up  against  each 
other.  By  tradition,  human  rights  law  has  been  seen  as  applicable  in  peacetime  and 
the  law  of  armed  conflict  in  time  of  war,  but  in  law  that  has  never  been  so.  Most  hu- 
man rights  treaties  do  indeed  have  provisions  allowing  some  form  of  derogation  in 
time  of  war,  but  such  derogation  is  usually  limited  and  closely  defined.  For  exam- 
ple, Article  15  of  the  European  Convention  on  Human  Rights  provides: 

1.  In  time  of  war  or  other  public  emergency  threatening  the  life  of  the  nation  any  High 
Contracting  Party  may  take  measures  derogating  from  its  obligations  under  this 
Convention  to  the  extent  strictly  required  by  the  exigencies  of  the  situation,  provided  that 
such  measures  are  not  inconsistent  with  its  other  obligations  under  international  law. 

2.  No  derogation  from  Article  2  [Right  to  Life],  except  in  respect  of  deaths  resulting 
from  lawful  acts  of  war,  or  from  Articles  3  [Prohibition  of  Torture],  4(paragraph  1) 
[Prohibition  of  slavery]  and  7  [No  Punishment  without  Law]  shall  be  made  under 
this  provision. 

3.  Any  High  Contracting  Party  availing  itself  of  this  right  of  derogation  shall  keep  the 
Secretary  General  of  the  Council  of  Europe  fully  informed  of  the  measures  which  it 
has  taken  and  the  reasons  therefore.  It  shall  also  inform  the  Secretary  General  of  the 
Council  of  Europe  when  such  measures  have  ceased  to  operate  and  the  provisions  of 
the  Convention  are  again  being  fully  executed.4'  [My  emphasis.] 

It  follows  from  this  that  the  Convention  is  indeed  applicable  in  time  of  war  subject  to 
any  derogation.  Such  derogations  cannot  include  certain  articles  and  furthermore,  the 
European  Court  of  Human  Rights  has  taken  to  itself  the  right  to  decide  on  whether  any 
particular  derogation  is  indeed  "strictly  required  by  the  exigencies  of  the  situation." 42 

Despite  this,  it  has  only  been  in  recent  years  that  the  Court  has  begun  to  become 
involved  in  operational  matters.  There  have  been  a  number  of  cases  involving  Brit- 
ish military  operations  in  Northern  Ireland,  including  the  McCann  case  dealing 
with  the  shootings  of  IRA  terrorists  in  Gibraltar.43  There  have  also  been  a  series  of 
cases  arising  from  the  Kurdish  insurgency  in  Eastern  Turkey44  and  some  from  the 
occupation  of  Northern  Cyprus.45  For  the  most  part,  in  such  cases  the  Court  was 
looking  at  domestic  law  issues  and  comparing  them  with  the  terms  of  the  Conven- 
tion. For  example,  in  the  McCann  case,  the  British  Government  did  not  seek  to  put 
forward  an  absolute  right  to  shoot  the  three  terrorists  but  sought  to  justify  the  kill- 
ings by  the  fact  that  the  soldiers  believed  that  the  terrorists  might  be  about  to 

350 


Charles  if.  B.  Garraway 


explode  a  remote-controlled  device.  Indeed,  the  actions  of  the  soldiers  in  that  case 
were  specifically  upheld  by  the  Court  though  the  United  Kingdom  was  held  liable 
(by  a  majority  of  one)  on  other  grounds.  The  Court  has  not  yet  had  to  examine  in 
any  depth  the  interplay  between  the  Convention  and  the  law  of  armed  conflict. 
However,  this  can  only  be  a  matter  of  time. 

In  the  Bankovic  case,46  the  Court  was  asked  to  rule  on  the  legality  of  the  attack  on 
the  TV  station  in  Belgrade  carried  out  by  NATO  forces  during  the  Kosovo  campaign. 
An  action  was  brought  by  some  of  the  survivors  of  that  attack  and  relatives  of  the 
dead  against  all  the  European  NATO  States  alleging  a  breach  of  Article  2,  the  right  to 
life.  The  case  was  dismissed  on  the  technical  grounds  that  the  applicants  were  not 
"within  the  jurisdiction"  of  any  of  the  States  concerned.  However,  had  the  case  pro- 
ceeded to  arguments  on  the  merits,  some  interesting  points  would  have  arisen.  The 
first  and  most  important  would  have  involved  the  applicability  of  the  Convention. 
The  United  Kingdom,  for  example,  had  not  sought  to  derogate  from  the  Convention 
in  relation  to  the  Kosovo  campaign.  Would  that  have  meant  that  they  could  not  have 
taken  advantage  of  the  exemption  for  "lawful  acts  of  war"  under  Article  15?  If  not, 
what  would  be  the  position  if  the  action,  even  if  legitimate  under  the  law  of  armed 
conflict,  failed  to  meet  the  exacting  standards  of  Article  2  of  the  Convention? 

Sooner  or  later,  such  issues  are  going  to  arise  and  the  Court  will  have  to  rule  on 
the  relationship  between  the  two  legal  systems.  Will  it  defer  to  the  law  of  armed 
conflict  or  will  it  seek  to  impose  some  form  of  human  rights  supremacy?  The  Inter- 
national Court  of  Justice  in  the  Nuclear  Weapons  case47  referred  to  the  law  of  armed 
conflict  as  a  "lex  specialis"  and  it  would  seem  the  most  sensible  solution  for  the 
Court  to  defer  to  that  law  where  there  appears  to  be  a  conflict.  This  appeared  to  be 
the  line  taken  by  the  Inter-American  Commission  on  Human  Rights  in  the  Abella 
case.48  However,  in  the  later  Las  Palmeras  case,49  the  Commission  seemed  to  indi- 
cate that  it  could  not  take  into  account  the  law  of  armed  conflict  as  its  constitution 
only  entitled  it  to  make  decisions  based  on  the  human  rights  treaties  under  which  it 
was  established.  Such  a  line  would  appear  to  put  the  human  rights  community  on  a 
collision  course  with  the  law  of  armed  conflict. 

However,  assuming  that  common  sense  prevails  and  that  the  lex  specialis  argument 
is  upheld,  there  remains  the  question  of  the  detailed  interrelationship  between  the  two 
systems.  For  example,  Article  5  of  the  Third  Geneva  Convention  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  one  of  the  categories  enumerated 
in  Article  4  [entitlement  to  prisoner-of-war  status],  such  persons  shall  enjoy  the 
protection  of  the  present  Convention  until  such  time  as  their  status  has  been 
determined  by  a  competent  tribunal"50  [My  emphasis.] 


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Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

The  Convention  does  not  seek  to  define  further  what  a  "competent  tribunal"  is 
or  what  procedures  should  be  adopted  by  that  tribunal.  In  the  absence  of  any  dero- 
gation, is  the  nature  of  the  tribunal  and  its  procedures  governed  by  human  rights 
law  and  if  so  to  what  extent?  These  are  untested  questions  and  while  ten  years  ago, 
no  one  would  have  given  them  a  second  thought,  they  are  now  beginning  to  appear 
very  much  on  the  radar.  European  governments  increasingly  have  to  take  into  ac- 
count the  possible  effects  of  the  European  Convention  on  military  operations  both 
at  home  and  abroad. 

This  will  inevitably  affect  interoperability  between  US  and  European  forces.  The 
United  States  is  obviously  not  a  party  to  the  European  Convention  and  while  it  has 
its  own  human  rights  obligations,  it  would  rightly  not  consider  itself  bound  by  in- 
terpretations laid  down  by  the  European  Court  of  Human  Rights.  However,  such 
issues  are  not  new.  NATO  has  for  many  years  operated  with  States  being  bound  by 
different  legal  obligations.  Most  NATO  States  are  parties  to  Additional  Protocol  I; 
the  United  States  and  Turkey  are  not.  In  the  past,  this  has  caused  few  problems  as  a 
result  of  close  consultation  leading  to  agreed  procedures.  Each  side  recognized  the 
obligations  of  the  other  and  agreed  to  work  round  them. 

A  similar  problem  arises,  I  would  suggest,  with  the  European  Convention  on 
Human  Rights.  It  does  impose  certain  restrictions  on  European  partners.  Further- 
more, because  of  the  uncertainty  as  to  its  scope  at  the  present  time,  Europeans  are 
likely  to  be  cautious  in  areas  where  it  could  be  held  to  be  applicable. 

And  so  what  does  the  future  hold?  The  United  States  has  a  number  of  options.  It 
could  simply  say,  in  relation  to  coalition  operations,  "We  are  the  most  powerful 
and  we  don't  have  to  bother  with  this."  That  would  be  understandable  but  would 
lead  to  an  inevitable  isolationism.  The  number  of  operations  on  which  even  the 
United  Kingdom  would  be  able  to  assist  and  support  would  be  greatly  reduced  and 
it  would  leave  the  United  States  with  no  choice  but  unilateral  action,  with  its 
friends  and  allies  on  the  sidelines.  Such  a  choice  would  be  unfortunate. 

The  alternative  is  to  sit  down  and  try  to  work  through  these  issues.  I  do  not  con- 
sider that  any  are  insurmountable.  What  is  required  is  a  willingness  to  understand 
each  others  position  and  to  be  sensitive  to  that  position.  At  the  same  time,  it  is  nec- 
essary for  the  human  rights  and  law  of  armed  conflict  communities  to  enter  into 
dialogue  to  ensure  that  the  two  systems  remain  complimentary.  If  they  become 
contradictory,  then  I  would  suggest  that  nobody  wins  and  the  world  will  be  a  more 
dangerous  place.  If  the  lawyers  cannot  agree,  then  the  commanders  will  call  a 
plague  on  both  houses  and  both  systems  will  be  discredited.  On  the  battlefield,  dis- 
credited law  amounts  to  no  law  at  all. 

I  return  to  my  theme  of  marriage  guidance.  Do  I  consider  that  the  old  alliances 
are  subject  to  irretrievable  breakdown?  Not  at  all.  However,  what  is  needed  is 

352 


Charles  H.  B.  Garraway 


greater  communication  between  the  parties  and  a  willingness  to  talk  with  each 
other  rather  than  at  each  other.  Furthermore,  each  side  needs  to  respect  the  others 
position  and  seek  to  accommodate  it. 

But  then  has  any  marriage  guidance  counselor  ever  said  anything  different? 

Notes 

1.  Professor  Garraway  was  the  Charles  H.  Stockton  Professor  of  International  Law  at  the  US 
Naval  War  Collegefor  academic  year  2004-2005. 

2.  An  interesting  analysis  of  the  "war  of  words"  can  be  found  in  Nicole  Mowbray's  report  in  The 
Observer  of  16  February  16,  2003,  under  the  heading  "Cheese- eating  monkeys  and  Gallic 
merde,"  available  at  http://observer.guardian.co.Uk/iraq/story/0, 12239, 896588, 00.html. 

3.  See  "Secretary  Rumsfeld  Briefs  at  Foreign  Press  Center"  on  January  22,  2003,  available  at 
http://www.defenselink.mil/news/Jan2003/tO  1 232003_t0 1 22sdfpc.html. 

4.  For  an  interesting  viewpoint,  see  John  C  Hulsman,  Heritage  Lecture  No. 777,  February  10, 
2003,  available  at  http://www.heritage.org/Research/Europe/hl777.cfm. 

5.  Regulations  Annexed  to  Convention  (IV)  Respecting  the  Laws  and  Customs  of  War  on  Land, 
The  Hague,  Oct.  18, 1907,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR  73  (Adam  Roberts  & 
Richard  Guelff  eds.,  3d.  ed.  2000).  Article  3  divided  the  armed  forces  into  "combatants  and  non- 
combatants"  (logisticians,  etc.)  but  granted  to  both  categories  the  right  to  be  treated  as  prisoners 
of  war. 

6.  Convention  for  the  Amelioration  of  the  Condition  of  the  Wounded  and  Sick  in  Armed  Forces 
in  the  Field,  Geneva,  Aug.  12,  1949,  75  U.N.T.S  .31-83  [Geneva  Convention  I];  Convention  for 
the  Amelioration  of  the  Condition  of  the  Wounded,  Sick  and  Shipwrecked  Members  of  Armed 
Forces  at  Sea,  Geneva,  Aug.  12,  1949,  75  U.N.T.S.  85-133  [Geneva  Convention  II];  Convention 
Relative  to  the  Treatment  of  Prisoners  of  War,  Geneva,  Aug.  12,  1949,  75  U.N.T.S.  135-285 
[Geneva  Convention  III];  and  Convention  Relative  to  the  Protection  of  Civilian  Persons  in  Time 
of  War,  Geneva,  Aug.  12,  1949,  75  U.N.T.S.  287-417  [Geneva  Convention  IV];  all  reprinted  in 
Roberts  &  Guelff,  supra  note  5,  at  197,  222,  244  and  301,  respectively. 

7.  Supra  note  5. 

8.  See,  for  example,  Mohamed  Ali  v.  Public  Prosecutor  (1968),  1  A11.E.R.488,  a  decision  by  the 
Judicial  Committee  of  the  Privy  Council  arising  out  of  the  Malayan  insurgency,  and,  in  the 
United  States,  ex  Parte  Quirin,  317  US1  (1942). 

9.  Geneva  Convention  III,  supra  note  6,  art.  4  (emphasis  added). 

10.  The  Geneva  Conventions  of  12  August  1949:  Commentary,  III  Geneva  Convention 
Relative  to  the  Treatment  of  Prisoners  of  War  52  (Jean  S.  Pictet  et  al.,  eds.,  i960). 

11.  Protocol  Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the 
Protection  of  Victims  of  International  Armed  Conflicts  (Protocol  I),  Geneva,  June  8, 1977, 1 125 
U.N.T.S.  3,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  422. 

12.  Mat  444. 

13.  Id. 

14.  Id. 

15.  Id.  at  445. 

16.  Commentary  on  the  Additional  Protocols  of  8  June  1977  to  the  Geneva 
CONVENTIONS  OF  12  AUGUST  1949  J 1686,  at  522  (Y.  Sandoz,  C.  Swinarski  &  B.  Zimmermann 
eds.,  1987). 


353 


Interoperability  and  the  Atlantic  Divide:  A  Bridge  over  Troubled  Waters 

17.  See  Additional  Protocol  I,  supra  note  1 1,  art.  50. 

18.  Id.,  art.  44(2). 

19.  A  simple  example  of  this  is  the  position  of  mercenaries  as  defined  in  id.,  Article  47. 

20.  Id.,  art.  51(3). 

21.  Yoram  Dinstein,  Unlawful  Combatants,  32  ISRAEL  YEARBOOK  ON  HUMAN  RIGHTS  247, 
248  (2002). 

22.  Id.  at  247 

23.  Model  Manual  on  the  Law  of  Armed  Conflict  (A.  P.  V.  Rogers  &  P.  Malherbe 
eds.,  1999). 

24.  Sharm  El-Sheikh  Fact-Finding  Committee:  Second  Statement  of  the  Government  of  Israel, 
March  20,  2001,  at  para.  46,  available  at  http://www.israel.org/mfa/go. asp?MFAH0jrt>0. 

25.  55  601  and  1106(c). 

26.  Dinstein,  supra  note  21,  at  247-248. 

27.  Id.  at  248. 

28.  Additional  Protocol  I,  supra  note  11. 

29.  See  Military  Order  of  November  13, 200 1 ,  "Detention  Treatment  and  Trial  of  Certain  Non- 
Citizens  in  the  War  Against  Terrorism,"  Federal  Register:  Nov.  16,  2001,  Vol.  66,  No.  222, 
available  at  http://www.fas.org/irp/offdocs/eo/mo-l  1 1301.htm. 

30.  See  Jim  Lobe,  "Britain,  EU  Set  to  Protest  US  Military  Tribunals  at  Guantanamo,"  Global 
Policy  Forum,  available  at  http://www.globalpolicy.org/empire/un/003/0707tribunals.htm. 

31.  See  Human  Rights  Watch  Briefing  Paper  on  US  Military  Commissions,  June  25,  2003, 
available  at  http://www.hrw.org/backgrounder/usa/military-commissions.htm. 

32.  In  the  case  of  the  United  States,  these  were  established  under  Military  Government 
Ordinance  No.  7.  See  Germany,  1947-1949:  The  Story  in  Documents,  US  Govt.  Print  Office, 
Washington  DC,  1950,  at  112. 

33.  Geneva  Convention  III,  supra  note  6,  art.  84. 

34.  Geneva  Convention  IV,  supra  note  6,  art.  86. 

35.  Information  about  the  Court  can  be  obtained  from  the  ECHR  website,  available  at  http:// 
www.echr.coe.int/Eng/General.htm. 

36.  Article  6,  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms, 
Rome,  November  9,  1950  (European  Convention  on  Human  Rights),  reprinted  in  LAWS  OF  THE 

European  Convention  on  Human  Rights  163-4  (D.  J.  Harris,  M.  O'Boyle  &  C.  Warbrick 
eds.,  1995). 

37.  See,  e.g.,  Findlay  v.  United  Kingdom,  24  European  Human  Rights  Reports  221. 

38.  See  Regulations  for  the  Trial  of  War  Criminals  (Army  Order  81/194),  reprinted  in  Appendix 
XXV,  The  Law  of  War  on  Land  being  Part  III  of  the  Manual  of  Military  Law  347  (1958). 

39.  The  momentum  for  the  diplomatic  process  that  lead  to  the  adoption  of  the  Additional 
Protocols  began  with  the  1968  International  Conference  on  Human  Rights  held  at  Teheran. 

40.  See,  in  particular,  Article  75,  Protocol  I,  supra  note  11,  and  Articles  4  to  6  of  Protocol 
Additional  to  the  Geneva  Conventions  of  12  August  1949,  and  Relating  to  the  Protection  of 
Victims  of  Non-International  Armed  Conflicts  (Protocol  II),  Geneva,  June  8,  1977,  1125 
U.N.T.S.  609,  reprinted  in  DOCUMENTS  ON  THE  LAWS  OF  WAR,  supra  note  5,  at  483. 

41.  European  Convention  on  Human  Rights,  supra  note  36,  art.  15. 

42.  See  Ireland  v.  UK  (1978),  2  EHRR  25. 

43.  SeeMcCannv.  UK  (1995),  21  EHRR  97. 

44.  See,  e.g.,  Aksoy  v.  Turkey  (1996),  23  EHRR  553  and  Ergi  v.  Turkey  (Application  23818/94), 
Judgment  28  July  1998  (1998-IV,  1751). 

45.  See,  e.g.,  Loizidou  v.  Turkey,  23  EHRR  513. 


354 


Charles  H.  B.  Garraway 


46.  Bankovic  and  Others  v.  Belgium  and  16  Other  Contracting  States,  123  ILR  (2003)  94. 

47.  Advisory  Opinion  on  the  Legality  of  the  Threat  or  Use  of  Nuclear  Weapons  1996  I.C.J.  78 
(JulyS). 

48.  Juan  Carlos  Abella  v.  Argentina,  Case  11.137,  Report  No  55/97,  Inter-Am.C.H.R.,  OEA/ 
Ser.L/V/II.95  Doc.7  rev  at  271  (1997),  available  at  http://heiwww.unige.ch/humanrts/cases/ 
1 997/argentina55-97a.html. 

49.  See  Las  Palmeras  v.  Columbia,  Judgement  on  Preliminary  Objections,  Inter-Am.C.H.R. 
(Ser.C),  No. 67  (2000)  of  4  February  2000,  available  at  http://www.corteidh.or.cr/seriecing/ 
index_serie_c_ing.html. 

50.  Geneva  Convention  III,  supra  note  6,  art.  5. 


355 


APPENDIX 


CONTRIBUTORS 


Contributors 


Editor's  Note:  In  order  to  most  accurately  portray  the  events  of  the  colloquium,  the  bio- 
graphical data  in  this  appendix  reflects  the  position  in  which  the  authors  were  serving 
at  the  time  of  the  colloquium,  as  reflected  in  the  colloquium  brochures  and  materials. 

The  Honorable  Alan  Baker  is  the  Legal  Adviser  to  the  Israel  Ministry  of  Foreign 
Affairs  and  is  presently  involved  in  the  Middle  East  peace  process  negotiations  with 
the  Palestinians.  Ambassador  Baker  has  participated  in  the  negotiating  and  draft- 
ing of  peace  treaties  and  other  agreements  between  Israel  and  Egypt,  Jordan,  Leba- 
non and  the  Palestine  Liberation  Organization  for  nearly  thirty  years.  He  has  also 
participated  in  numerous  international  conferences  and  negotiations  in  various 
fields  of  international  law  including  law  of  the  sea,  aviation  law,  humanitarian  law 
and  disarmament  treaties.  Ambassador  Baker  represented  Israel  in  the  1998 
United  Nations  Diplomatic  Conference  on  the  Establishment  of  an  International 
Criminal  Court  and  the  General  Assembly's  Preparatory  Committee  on  the  Estab- 
lishment of  an  International  Criminal  Court.  He  is  the  author  of  several  books  on 
international  and  humanitarian  law. 

Professor  Yoram  Dinstein  is  currently  serving  a  second  appointment  as  the 
Charles  H.  Stockton  Professor  of  International  Law  at  the  US  Naval  War  College. 
He  is  also  a  member  of  the  prestigious  Institute  of  International  Law,  to  which  the 
132  leading  international  lawyers  in  the  world  are  elected  by  cooptation  for  life.  He 
is  a  former  Humbolt  Fellow  at  the  Max  Planck  Institute  of  Foreign,  Comparative 
and  International  Law  in  Heidelberg,  Germany  and  has  been  a  Visiting  Professor  at 
numerous  universities  including  the  University  of  Toronto,  New  York  University 
and  the  International  Human  Rights  Law  Institute,  DePaul  University  College  of 
Law.  Professor  Dinstein  has  also  served  as  Professor  of  International  Law, 
Yanowicz  Professor  of  Human  Rights,  and  President  (1991-1998),  Rector  (1980- 
1985)  and  Dean  of  the  Faculty  of  Law  (1978-1980)  at  Tel  Aviv  University.  A  native 
of  Israel,  Professor  Dinstein  has  represented  his  country  in  various  international 
fora,  including  the  UN  Human  Rights  Commission,  the  International  Red  Cross 
Conference,  and  Interpol.  He  is  a  member  of  the  Council  of  the  San  Remo 


Contributors 


International  Institute  of  Humanitarian  Law  with  which  he  helped  produce  the 
San  Remo  Manual  on  International  Law  Applicable  to  Armed  Conflicts  at  Sea.  Pro- 
fessor Dinstein  is  the  founder  and  Editor  of  the  Israel  Yearbook  on  Human  Rights 
and  has  written  extensively  on  subjects  relating  to  international  law,  human  rights 
and  laws  of  armed  conflict. 

Professor  Thomas  M.  Franck  is  the  Murry  and  Ida  Becker  Professor  of  Law 
Emeritus  at  the  New  York  University  School  of  Law.  He  has  served  as  president  of 
the  American  Society  of  International  Law,  Editor-in-Chief  of  the  American  Jour- 
nal of  International  Law  and  Director  of  the  Center  for  International  Studies  at  the 
New  York  University  School  of  Law.  Professor  Franck  is  also  a  member  of  the 
Board  of  Advisors  to  the  European  Journal  of  International  Law,  the  Austrian  Re- 
view of  International  and  European  Law  and  Transnational  Publishers,  Inc.  Profes- 
sor Franck  has  advised  or  counseled  several  governments,  including  Kenya, 
Zanzibar,  El  Salvador,  Guatemala,  Greece  and  Cyprus.  As  an  advocate  before  the 
International  Court  of  Justice  (ICJ),  he  has  successfully  represented  Chad  and  re- 
cently represented  Bosnia  in  a  suit  brought  against  Yugoslavia  under  the  Genocide 
Convention.  In  addition,  he  has  served  as  an  ad  hoc  judge  at  the  ICJ.  Professor 
Franck  has  also  been  a  visiting  professor  at  numerous  universities  including  Stan- 
ford, Princeton  and  Cambridge  and  is  a  two-time  recipient  of  the  prestigious 
Guggenheim  Fellowship.  He  is  the  author  of  numerous  books  and  articles  on  inter- 
national and  comparative  law. 

Colonel  Charles  H.  B.  Garraway,  CBE,  is  currently  serving  in  the  Ministry  of 
Defence  in  London  advising  on  issues  of  international  law.  Colonel  Garraway' s 
previous  tours  of  duty  have  included  assignments  in  Cyprus,  Germany,  Belgium 
(SHAPE)  and  Hong  Kong,  and  various  tours  in  the  United  Kingdom.  He  is  a  for- 
mer Visiting  Fellow  at  the  Research  Centre  for  International  Law,  Cambridge  Uni- 
versity (now  the  Lauterpacht  Centre)  and  a  Member  of  the  International  Institute 
of  Humanitarian  Law  at  San  Remo  where  he  has  taught  since  1994,  as  well  as  assist- 
ing on  various  Committees  of  Experts.  Colonel  Garraway  is  also  a  member  of  the 
Board  of  Directors  of  the  International  Society  for  Military  Law  and  the  Law  of 
War  and  was  one  of  the  General  Rapporteurs  for  the  2003  Congress  in  Rome  and 
served  as  Chairman  of  the  General  Affairs  Committee.  He  has  represented  the 
United  Kingdom  at  various  international  conferences,  including  the  Preparatory 
Committee  for  Amended  Protocol  II  to  the  Conventional  Weapons  Convention, 
the  Diplomatic  Conference  on  the  Second  Protocol  to  the  Hague  Cultural  Property 
Convention  and  negotiations  on  the  establishment  of  an  International  Criminal 
Court.  During  the  1990-1991  Gulf  War,  he  served  as  senior  Army  Legal  Services 
Officer  where  he  was  involved,  in  particular,  with  prisoner  of  war  handling.  In 


360 


Appendix 

December  of  2002,  Colonel  Garraway  was  appointed  a  Commander  of  the  Most 
Excellent  Order  of  the  British  Empire  by  Her  Majesty  The  Queen. 

Colonel  David  E.  Graham,  JA,  US  Army  (Ret.),  is  the  Special  Assistant  to  the 
Judge  Advocate  General  of  the  US  Army.  His  previous  duty  assignments  include 
Chief,  International  and  Operational  Law  Division,  Office  of  the  Judge  Advocate 
General;  Director,  Center  for  Law  and  Military  Operations  at  the  Judge  Advocate 
General's  School  of  the  Army  and  Chief,  Strategic  Planning,  Office  of  the  Judge 
Advocate  General.  Colonel  Graham  also  served  as  a  legal  advisor  to  the  Multina- 
tional Force  and  Observers  (MFO)  in  Sinai  (1981-1982).  Colonel  Graham  earned 
a  Bachelor  of  Arts  in  History  from  Texas  A&M  University,  and  Master  of  Arts  in 
International  Affairs  from  the  George  Washington  University  and  a  Juris  Doctor- 
ate from  the  University  of  Texas.  He  is  also  a  Distinguished  Graduate  of  the  Na- 
tional War  College. 

Captain  David  Grimord,  JAGC,  US  Navy,  is  the  Deputy  Judge  Advocate  Gen- 
eral for  International  and  Operational  Law  (Code  10)  in  the  Office  of  the  Judge  Ad- 
vocate General  of  the  United  States  Navy.  Prior  to  his  current  assignment,  Captain 
Grimord  was  the  Staff  Judge  Advocate,  Headquarters,  United  States  Pacific  Com- 
mand. Captain  Grimord  received  his  Bachelor  of  Arts  from  Albion  College  in  1974; 
Juris  Doctorate  from  Ohio  Northern  University  in  1978;  Master  of  Laws  in  Inter- 
national and  Comparative  International  Law  from  George  Washington  University 
in  1986;  and  Master  of  Arts  in  National  Security  Studies  from  the  US  Naval  War 
College.  He  was  commissioned  in  1977  and  admitted  to  the  Supreme  Court  of 
Ohio  in  1978.  Captain  Grimord's  prior  military  assignments  include  Instructor, 
Joint  Military  Operations  Department,  US  Naval  War  College;  Fleet  Judge  Advo- 
cate for  Commander,  Seventh  Fleet;  and  Deputy  Staff  Judge  Advocate,  US  Pacific 
Command.  From  1991-1992,  Captain  Grimord  served  as  an  International  Law 
Advisor,  Headquarters,  Australian  Defence  Force. 

Professor  Wolff  Heintschel  von  Heinegg  is  Professor  of  Public  International 
Law  at  the  University  of  Frankfurt- Oder  and  former  Professor  of  Law  at  the  Uni- 
versity of  Augsburg,  Germany.  He  was  the  Rapporteur  of  the  International  Law  As- 
sociation Committee  on  Maritime  Neutrality  and  is  currently  the  Vice-President 
of  the  German  Society  of  Military  Law  and  the  Law  of  War.  Professor  Heintschel 
von  Heinegg  was  among  a  group  of  international  lawyers  and  naval  experts  who 
produced  the  San  Remo  Manual  on  International  Law  Applicable  to  Armed  Conflicts 
at  Sea.  He  is  a  widely  published  author  of  articles  and  books  on  the  law  of  the  sea 
and  naval  warfare. 

Mr.  Jan  Hladik  is  a  Programme  Specialist,  International  Standards  Section,  Di- 
vision of  Cultural  Heritage  of  the  United  Nations  Educational,  Scientific  and  Cul- 
tural  Organization    (UNESCO)    in    Paris   where   he   is    responsible    for   the 

361 


Contributors 


implementation  of  the  1954  Hague  Convention  for  the  Protection  of  Cultural 
Property  in  the  Event  of  Armed  Conflict  and  its  two  Protocols  of  1954  and  1999. 
Before  joining  UNESCO,  Mr.  Hladik  worked  with  the  Czechoslovak  Federal  Min- 
istry of  Foreign  Affairs.  Mr.  Hladik  graduated  with  honors  from  the  International 
Law  Faculty  of  the  Moscow  State  Institute  of  International  Relations  (MGIMO) 
and  received  his  Juris  Doctorate  from  Charles  University  in  Prague,  Czechoslova- 
kia. He  has  published  several  articles  on  the  1954  Hague  Convention  and  other  re- 
lated issues  in  professional  journals.  He  has  also  participated  in  a  number  of 
UNESCO's  official  missions,  including  the  March  1999  Hague  Diplomatic  Confer- 
ence on  the  Second  Protocol  to  the  Hague  Convention. 

Captain  Hyun-Soo  Kim  of  the  Republic  of  Korea  Navy  is  Professor  of  Interna- 
tional Law  and  Director  of  the  Law  of  the  Sea  Research  Division  of  the  Republic  of 
Korea  Naval  War  College.  Prior  to  joining  the  Naval  War  College  faculty,  Captain 
Kim  held  numerous  positions  at  the  Republic  of  Korea  Naval  Academy,  including 
Chief,  Department  of  System  Development;  Chief,  Department  of  Admissions; 
Chief,  Department  of  Academic  Affairs;  and,  Chair,  Department  of  International 
Relations.  Captain  Kim  has  participated  in  over  40  international  conferences,  sem- 
inars, symposia  and  workshops  and  has  published  several  books  and  numerous  ar- 
ticles regarding  the  law  of  the  sea,  operational  law  and  international  law.  He  is 
currently  a  member  of  the  Korea  Association  of  International  Law,  the  Seoul  Insti- 
tute of  International  Law,  the  Korea  Institute  of  Maritime  Law  and  the  Law  of  the 
Sea  Forum.  Captain  Kim  is  also  a  legal  advisor  to  the  Ministry  of  Foreign  Affairs 
and  Trade,  the  Ministry  of  Maritime  Affairs  and  Fisheries  and  the  Ministry  of  Na- 
tional Defense. 

Mr.  Jean-Philippe  Lavoyer  has  been  the  Head  of  the  Legal  Division  of  the  Inter- 
national Committee  of  the  Red  Cross  (ICRC)  since  2001.  In  addition  to  numerous 
years  of  service  in  the  Legal  Division  dating  back  to  1988,  Mr.  Lavoyer  has  served 
the  ICRC  on  the  Arabian  Peninsula  and  in  Kuwait,  Afghanistan  and  Somalia. 
Throughout  his  career,  Mr.  Lavoyer  has  participated  in  numerous  international 
negotiations  and  conferences  including  the  Establishment  of  the  International 
Criminal  Court  (Preparatory  Committee  and  Diplomatic  Conference  in  Rome), 
conventions  on  international  terrorism  and  Guiding  Principles  on  Internal  Dis- 
placement. He  also  participated  in  the  UN  General  Assembly  and  Human  Rights 
Commission.  Mr.  Lavoyer  speaks  and  publishes  on  a  variety  of  subjects,  including 
refugees  and  internally  displaced  persons,  protected  zones/safe  areas,  the  red  cross 
and  red  crescent  emblem,  the  legal  status  of  the  ICRC,  the  Centenary  of  the  First 
International  Peace  Conference,  the  (first)  Gulf  War,  humanitarian  law  and  ter- 
rorism and  other  issues  related  to  international  humanitarian  law.  Mr.  Lavoyer  was 


362 


•'"-' Appendix 

born  in  Berne,  Switzerland  and  was  admitted  to  practice  law  in  1976  following  his 
studies  at  Berne  University. 

Captain  M.  H.  MacDougall,  Canadian  Forces,  is  the  Deputy  Judge  Advocate 
General/Operations  and  is  responsible  for  the  Directorate  of  Law/Operations,  the 
Directorate  of  Law/International  and  the  provision  of  legal  advice  by  all  the  re- 
gional legal  offices  (AJAG  offices).  Her  prior  duty  assignments  include  Director, 
Directorate  of  Law,  Human  Rights  and  Information;  Assistant  Judge  Advocate 
General,  Pacific  Region  at  Esquimalt,  British  Columbia;  and  Special  Assistant  to 
the  Judge  Advocate  General.  Captain  MacDougall  was  also  the  first  Canadian 
Forces  legal  advisor  to  the  Canadian  contingent  to  the  United  Nations  Protection 
Force  in  the  former  Yugoslavia  and  Director  of  Law/Operations  at  the  National 
Defence  Headquarters  where  she  advised  on  legal  issues  relating  to  all  Canadian 
Forces  operations,  including  the  turbot  dispute  between  Canada  and  Spain;  the 
Canadian  contribution  to  the  United  Nations  Missions  in  Rwanda,  Haiti  and  the 
former  Yugoslavia;  the  Stabilization  and  Implementation  forces  in  Bosnia,  as  well 
as  the  Canadian-led,  United  Nations-sanctioned  humanitarian  mission  to  Zaire. 
Captain  MacDougall  earned  her  Bachelor  of  Science  and  Bachelor  of  Laws  from 
Dalhousie  University  and  a  Master  of  Laws  in  Military  Law  from  the  Judge  Advo- 
cate General's  School,  US  Army,  in  Charlottesville,  Virginia. 

Professor  John  F.  Murphy  received  his  Bachelor  of  Arts  from  Cornell  Univer- 
sity and  his  Bachelor  of  Laws  with  specialization  in  international  affairs  from  Cor- 
nell Law  School.  At  Cornell,  he  was  a  member  of  the  Cornell  Law  Review.  He  was 
an  associate  at  Winthrop,  Stimson,  Putnam  &  Roberts  in  New  York  and  Kirkland, 
Ellis,  Hodson,  Chaffertz  &  Masters  in  Washington,  D.C.,  and  an  attorney  adviser  in 
the  Legal  Adviser's  Office  of  the  US  Department  of  State.  Before  joining  the  faculty 
of  Villanova  University  in  1983  as  a  Visiting  Professor,  he  was  a  Professor  and  an 
Associate  Dean  at  the  University  of  Kansas  School  of  Law,  a  Visiting  Professor  at 
Cornell  Law  School,  and  the  Charles  H.  Stockton  Professor  of  International  Law  at 
the  Naval  War  College.  Professor  Murphy's  research  and  teaching  interests  focus 
on  international  law,  international  terrorism,  international  business  transactions, 
and  European  Union  constitutional  law.  Since  2000,  Professor  Murphy  has  con- 
tinued his  affiliation  with  the  Naval  War  College  as  a  member  of  the  International 
Law  Department's  Advisory  Board. 

Mr.  W.  Hays  Parks  entered  federal  service  as  a  commissioned  officer  in  the  US 
Marine  Corps.  His  initial  service  was  as  a  reconnaissance  officer.  He  served  in  the  Re- 
public of  Viet  Nam  (1968-1969)  as  an  infantry  officer  and  senior  prosecuting 
attorney  for  the  First  Marine  Division.  In  1979,  Mr.  Parks  resigned  his  regular 
commission  to  accept  his  present  position  as  Special  Assistant  to  The  Judge  Advocate 
General  of  the  Army.  In  that  capacity  he  provides  politico -legal  advice  to  the  Army 

363 


Contributors 


Staff  on  matters  ranging  from  special  operations  to  directed  energy  warfare.  He  was  a 
legal  adviser  for  the  1986  airstrike  against  terrorist-related  targets  in  Libya  and  had 
primary  responsibility  for  the  investigation  of  Iraqi  war  crimes  during  its  1990-1991 
occupation  of  Kuwait.  He  has  served  as  a  United  States  representative  for  law  of  war 
negotiations  in  New  York,  Geneva,  The  Hague  and  Vienna.  Mr.  Parks  occupied  the 
Charles  H.  Stockton  Chair  of  International  Law  at  the  Naval  War  College  in  1984— 
1985.  Mr.  Parks  has  lectured  on  the  law  affecting  military  operations  at  the  National, 
Army,  Air  Force  and  Naval  War  Colleges;  the  service  staff  colleges;  and  other  service 
schools.  An  adjunct  professor  of  international  law  at  the  American  University  School 
of  Law,  he  has  published  articles  in  a  variety  of  military  and  legal  journals.  In  200 1 ,  he 
became  the  sixth  person  in  the  history  of  the  United  States  Special  Operations  Com- 
mand to  receive  that  command's  top  civilian  award,  the  US  Special  Operations 
Command  Outstanding  Civilian  Service  Medal. 

Major  G.  William  Riggs,  US  Marine  Corps,  is  currently  the  Head,  Operational 
Law  Branch,  Navy  International  and  Operational  Law.  He  has  previously  served  in 
numerous  Staff  Judge  Advocate  (SJA)  and  Deputy  SJA  billets  to  include  Deputy 
SJA  2d  Marine  Expeditionary  Force,  SJA  2d  Marine  Expeditionary  Brigade,  SJA  2d 
Force  Service  Support  Group,  SJA  Special  Purpose  Marine  Air-Ground  Task  Force 
Liberia  and  SJA  Operation  Eastern  Access.  A  graduate  of  Nova  Law  School,  Major 
Riggs  additionally  holds  an  LLM  from  The  Judge  Advocate  General's  School  of  the 
Army  with  a  specialty  in  operational  law. 

Professor  Sir  Adam  Roberts,  KCMG,  FBA,  has  been  the  Montague  Burton  Pro- 
fessor of  International  Relations  at  Oxford  University,  and  Fellow  of  Balliol  Col- 
lege, since  1986.  From  1968  to  1981,  Professor  Roberts  was  Lecturer  in 
International  Relations  at  the  London  School  of  Economics  and  Political  Science. 
From  1981  to  1986  he  was  Alastair  Buchan  Reader  in  International  Relations  and 
Fellow  of  St  Antony's  College,  Oxford.  Professor  Roberts  was  a  Member  of  the 
Council  of  the  Royal  Institute  of  International  Affairs  (Chatham  House),  London, 
from  1985  to  1991  and  a  Member  of  the  Council,  International  Institute  for  Strate- 
gic Studies,  London,  from  2002  to  the  present.  In  1990,  he  was  elected  Fellow  of  the 
British  Academy  (FBA).  In  1997,  he  was  elected  Honorary  Fellow,  London  School 
of  Economics  and  Political  Science.  In  2002,  Professor  Roberts  was  appointed 
Knight  Commander  of  the  Order  of  St.  Michael  and  St.  George  (KCMG).  Professor 
Sir  Roberts  has  published  several  books  on  the  theory  and  practice  of  territorial  de- 
fense and  international  relations  and  articles  in  numerous  journals  and  various 
newspapers,  including  the  American  Journal  of  International  Law,  British  Year  Book 
of  International  Law,  International  Affairs,  International  Security,  Review  of  Interna- 
tional Studies,  Survival,  The  Times  Literary  Supplement,  and  The  World  Today. 


364 


Appendix 

Dr.  Nicholas  Rostow  is  the  General  Counsel  of  the  US  Mission  to  the  United 
Nations  and  Senior  Policy  Adviser  to  the  US  Permanent  Representative  to  the 
United  Nations  (Ambassador  John  D.  Negroponte).  He  has  held  this  position  since 
October  3, 2001.  Before  coming  to  the  US  Mission,  he  held  the  Charles  H.  Stockton 
Chair  of  International  Law  at  the  US  Naval  War  College,  Newport,  Rhode  Island. 
Mr.  Rostow's  previous  Federal  government  experience  included  service  as  Staff  Di- 
rector of  the  Senate  Select  Committee  on  Intelligence,  Counsel  and  Deputy  Staff 
Director  of  the  House  Select  Committee  investigating  high  technology  transfers  to 
China  (also  known  as  the  Cox  Committee),  Special  Assistant  to  Presidents  Reagan 
and  George  H.  W.  Bush  and  Legal  Adviser  to  the  National  Security  Council  under 
National  Security  Advisers  Colin  Powell  and  Brent  Scowcroft.  In  addition,  he 
served  as  head  of  the  Massachusetts  Office  of  International  Trade  and  Investment 
under  Governors  William  F.  Weld  and  Argeo  Paul  Cellucci.  Mr.  Rostow  earned  his 
Bachelor  of  Arts,  Ph.D.  (history),  and  law  degrees  from  Yale.  He  has  taught  at  the 
Fletcher  School  of  Law  and  Diplomacy  at  Tufts  University  and  at  the  University  of 
Tulsa  College  of  Law.  His  scholarly  writing  is  in  the  fields  of  diplomatic  history  and 
international  law. 

Professor  Marco  Sassoli  is  Professor  of  International  Law  at  the  University  of 
Quebec  in  Montreal,  Canada.  Previously  he  has  been  registrar  at  the  Swiss  Supreme 
Court  and  Executive  Secretary  of  the  International  Commission  of  Jurists  in  Geneva. 
He  worked  for  13  years  for  the  International  Committee  of  the  Red  Cross  (ICRC)  at 
its  headquarters  in  Geneva,  in  the  Middle  East  and  in  the  former  Yugoslavia.  While  at 
the  ICRC  he  served  as  Deputy  Head  of  its  Legal  Division,  led  delegations  in  Jordan 
and  Syria,  and  was  Protection  Coordinator  for  the  former  Yugoslavia,  based  in 
Sarajevo.  Professor  Sassoli  has  published  a  book  on  the  sources  of  international  law 
in  German,  casebooks  on  international  humanitarian  law  in  English  and  French,  and 
many  articles  on  international  humanitarian  law,  international  human  rights  law, 
international  criminal  law  and  the  law  of  State  responsibility. 

Professor  Michael  N.  Schmitt  is  the  Director  of  the  Executive  Program  in  Inter- 
national and  Security  Affairs  and  Professor  of  International  Law  in  the  College  of 
International  and  Security  Studies,  George  C.  Marshall  European  Center  for  Secu- 
rity Studies,  Garmisch-Partenkirchen,  Germany.  Professor  Schmitt  served  in  the 
United  States  Air  Force  for  20  years  before  joining  the  Marshall  Center  faculty. 
During  his  military  career,  he  specialized  in  operational  and  international  law  and 
was  senior  legal  adviser  to  multiple  Air  Force  units,  including  units  conducting 
combat  operations  over  Northern  Iraq.  Professor  Schmitt  was  Deputy  Head  of  the 
Department  of  Law  at  the  Air  Force  Academy  and  served  as  Assistant  Director  for 
Aerial  Warfare  in  the  Naval  War  College's  Center  for  Naval  Warfare  Studies.  He 
has  been  a  Visiting  Scholar  at  Yale  Law  School  and  lectures  and  teaches  regularly  at 

365 


Contributors 


the  International  Institute  of  Humanitarian  Law  and  the  NATO  School.  Professor 
Schmitt  holds  Bachelor  and  Master  of  Arts  (Political  Science)  degrees  from  South- 
west Texas  State  University,  a  Master  of  Arts  (National  Security  Policy  and  Strategic 
Studies)  from  the  Naval  War  College,  a  Juris  Doctorate  from  the  University  of 
Texas,  and  a  Master  of  Laws  from  Yale  University.  The  author  of  many  scholarly 
articles  on  law  and  military  affairs  and  contributing  editor  for  multiple  volumes  of 
the  US  Naval  War  College's  International  Law  Studies  ("Blue  Book")  series,  his 
works  have  been  published  in  Belgium,  Chile,  Germany,  Israel,  Peru,  the  United 
Kingdom,  and  the  United  States.  Professor  Schmitt  is  a  member  of  the  American 
Society  of  International  Law  and  the  Societe  Internationale  de  Droit  Militaire  et 
Droit  de  la  Guerre.  He  is  on  the  Advisory  Board  for  the  US  Air  Force  Academy's 
Journal  of  Legal  Studies  and  the  Editorial  Board  of  the  International  Law  Studies  se- 
ries. Professor  Schmitt  also  serves  on  the  Executive  Committee  of  the  Lieber  Soci- 
ety. In  2002,  Professor  Schmitt  was  elected  a  member  of  the  International  Institute 
of  Humanitarian  Law. 

Commander  Dale  Stephens,  Royal  Australian  Navy,  is  the  Fleet  Legal  Officer  at 
Military  Headquarters.  His  prior  assignments  include  Chief  Legal  Officer,  Navy 
Training  Command;  Legal  Officer  Naval  Component  Command  INTERFET;  and 
Deputy  Director  Operations  Law-Strategic  Command  Division.  Commander 
Stephens  also  spent  six  months  as  the  Head  of  the  Civil  Policy  Division  of  the 
Northern  Territory  Attorney-Generals  Department.  He  earned  his  Bachelor  of 
Arts  degree  from  Flinders  University  and  his  law  degree,  with  Honors,  from 
Adelaide  University.  Commander  Stephens  is  currently  completing  a  Masters  de- 
gree at  Melbourne  University.  He  has  published  articles  in  a  number  of  interna- 
tional law  journals,  including  the  Yale  Human  Rights  and  Development  Law 
Journal,  Naval  Law  Review,  and  Loyola  of  Los  Angeles  International  and  Compara- 
tive Law  Journal. 

Mr.  Jeffery  K.  Walker  is  a  partner  in  and  Company  Counsel  for  BlueForce,  LLC, 
a  defense  consulting  company  that  provides  expertise  to  Department  of  Defense 
and  industry  partners  on  a  wide  variety  of  strategic,  operational  and  legal  topics. 
Prior  to  his  affiliation  with  BlueForce,  Mr.  Walker  was  a  United  States  Air  Force 
Judge  Advocate.  His  active  duty  assignments  included  Legal  Advisor  during  Oper- 
ation Enduring  Freedom  where  he  was  instrumental  in  investigating  friendly  fire 
incidents,  including  one  that  resulted  in  the  deaths  of  four  Canadian  soldiers  and 
another  in  which  three  US  Special  Operations  soldiers  and  twenty  Afghan  soldiers 
were  killed.  Mr.  Walker  also  served  as  Chief  of  International  Operations  Law, 
United  States  Sixteenth  Air  Force,  Aviano,  Italy  and  the  Staff  Judge  Advocate  for 
the  4100th  Group  during  NATO  Operation  Joint  Endeavour  in  Bosnia- 
Herzegovina.  Mr.  Walker  earned  his  Bachelor  of  Arts  degree  in  Political  Science 

366 


Appendix 

from  Tulane  University,  his  Master  of  Social  Science  in  International  Relations 
from  Syracuse  University,  a  Juris  Doctorate  from  Georgetown  University  and  a 
LL.M  from  Harvard.  He  is  currently  working  on  his  Ph.D.  in  International  Rela- 
tions at  Georgetown. 

Professor  Ruth  Wedgwood  is  a  Professor  of  Law  at  Yale  Law  School  and  is  also 
Senior  Fellow  and  Director  of  the  Project  on  International  Organizations  and  Law 
at  the  Council  on  Foreign  Relations.  Currently  on  a  leave  of  absence  from  Yale  Law 
School,  she  is  serving  as  the  Edward  B.  Burling  Professor  of  International  Law  at 
the  Johns  Hopkins  University  Nitze  School  of  Advanced  International  Studies  in 
Washington,  D.C.  Professor  Wedgwood  is  Director  of  Studies  at  The  Hague  Acad- 
emy for  International  Law,  chairman  of  Research  and  Studies  for  the  American  So- 
ciety of  International  Law,  and  a  member  of  the  Secretary  of  State's  Advisory 
Committee  on  International  Law.  Professor  Wedgwood  is  also  a  former  Charles  H. 
Stockton  Professor  of  International  Law  at  the  US  Naval  War  College.  She  has  writ- 
ten and  lectured  widely  on  war  crimes  and  the  United  Nations,  including  Security 
Council  politics  and  peacekeeping.  Professor  Wedgwood  is  a  former  law  clerk  to 
Justice  Harry  Blackmun  of  the  US  Supreme  Court  and  Executive  Editor  of  the  Yale 
Law  Journal.  She  also  served  as  amicus  curiae  in  the  case  of  Prosecutor  v.  Blaskic  at 
the  International  Criminal  Tribunal  for  the  former  Yugoslavia. 


367 


Index 


Aceves,  William  J.  247-249,  252,  256 

adbellum  15,  44,  135,  143,  160,  178,  194,  291,  294,  307,  312,  333 

ad  hoc  tribunals  290 

Additional  Protocol  I  44,  46,  58-59,  66,  76,  78,  80-81,  87,  109-111,  116,  126,  199,  202-203, 

220,  223,  231,  278,  281,  284,  289,  293,  297-298,  301,  304,  307-309,  322-323,  327,  332, 

343,  346,  352,  354 
Additional  Protocol  II  59-59,  66,  284,  307-309 
Afghanistan  5,  11,  31,  43,  58-59,  61-63,  65-66,  69-74,  82,  84,  88,  90,  99-103,  109,  111-112, 

121-124,  134,  141,  143,  149-150,  157,  165,  167-168,  189,  191,  196,  198-199,  274,  291- 

293,  301,  311,  333-334,  339-341,  344 
Akehurst,  Michael  244-245,  255 
al  Qaeda  3,  19,  29,  57-58,  60,  62,  70,  74-75,  82,  90,  100-104,  106,  122,  189-190,  198-200,  275, 

292,  315-317,  334-335,  344-345 
Alvarez,  Alejandro  238,  250,  253,  256,  317 
Angola  59 
armed  conflict  9-10,  15,  44,  51,  57-65,  69,  72,  74-78,  81,  83,  88-91,  101,  104,  107,  110-112, 

129,  146-147,  152,  160,  162,  165,  167-169,  171,  175,  179,  186-187,  190,  192,  195,  199, 

201-202,  208,  210,  213-214,  216,  218-219,  222-227,  230-231,  233,  263-264,  266-268, 

273-276,  278,  280,  282-283,  287-297,  299-309,  311-314,  316,  319-320,  322,  325,  331- 

333,  336,  338-341,  343-347,  349-352 
Army  Civil  Affairs  71-74,82,100-102 

Article  51   16,  47-49,  139,  161,  163,  165,  167,  169,  171,  176,  188-189,  202,  213,  228,  346 
assassination  161,  186,  188,  337 
attrition  152-153,  155 

B 

Baghdad  3,  5-6,  8,  11,  17-18,  122-124,  136,  141,  143,  149,  187 

Baker,  Alan  189,273,283,312 

Bangladesh  19,  239 

Bankovic  179,  183,  194,  202-203,  317,  351,  355 

Belgrade  124,  144,  156,  158,  178,  351 

belligerent  45,  48-52,  62,  77-78,  104-107,  109,  111,  115,  160,  177,  179,  192,  201,  208-209, 

215-218,  221-223,  225-226,  230-231,  264,  267,  290,  293,  299,  301,  334-335,  340,  344, 

351 
Belo,  Carlos  Bishop  13 
bin  Laden,  Osama  161 

Biological  Weapons  Convention  294-295,  298,  307 
Blix,  Hans  5,  12,  21,  36-38,  161,  191,  253,  273,  283,  312,  316 
Boer  War  83,  111-112 
Bonn  Agreement  71 
Booth,  Ken  54,  253,  256 


369 


Index 


Bosnia  6-7,  10,  13,  35,  170,  176,  191 

Boutros-Ghali,  Boutros  24,  34-35,  37 

Bush,  President  George  W.  18,  20-22,  28,  32-33,  36,  38,  47,  60,  65-67,  78,  82,  102-104,  1 1 1- 

112,  125,  141,  157,  164,  169,  191,  194,200,203,219,231-232,268-269,279,283,287, 

289,  295,  300-301,  305-309,  313,  316-317,  328,  332,  342 


C4ISR  151 

Cambodia  19,  233,  253,  290,  314,  317,  326 

Canadian  Board  of  Inquiry  195-197 

Carnahan,  Burrus  M.  55,  322,  329 

center  of  gravity  155-156,160-161 

Central  Intelligence  Agency  (CIA)  85,  113,  166,  169,  186,  190-191 

Chairman,  Joint  Chiefs  of  Staff  131 

Chemical  Weapons  Convention  298,  302,  307 

circular  error  probable  (CEP)   152,  177 

civilian  population  125,  151,  296 

CJCMOTF  71-73,  101 

coalition  forces  3,  5,  7,  11,  100,  143,  148,  152,  157,  173,  292,  334 

Coalition  Provisional  Authority  9-10,  12,  109,  339 

Cold  War  7,  33,  59,  99,  116,  129,  227,  252 

collateral  damage  123,  154,  156,  158,  171,  173,  175,  177-178,  180,  182,279 

combat  operations  23,  53,  78,  83,  86-87,  101,  109,  152,  168,  193,  195,  328 

combatant  status  44,  78,  81,  101,  162,  180,  190,  276,  339-341,  343-344,  346 

combatants  44-50,  57,  60-64,  67,  74,  76,  80,  89,  91,  105,  107,  110,  126,  139,  141,  148,  159, 

161,  165,  168,  190-191,  193,  195,  200-202,  268,  292-293,  297,  299,  306,  334-335,  339- 

340,  342-347,  353 
Commando  Order  89,  105,  117 
Common  Article  2  340 
compellance  campaign  156,182 
Congo  8,313,317 
contractors  72,  129,  179 
Corfu  Channel  238,  248,  250,  253,  256 
cultural  property  50,  274,  295,  302,  307,  319-329 

D 

Dar-es-Salaam  167 

Desert  Fox  3,  26,  192 

Desert  Shield  101,107,109,338 

Desert  Storm  23,27,38,  101,  107,  109,  123-124,  154,  160-161,  182,313 

deserters  335 

Dinstein,  Yoram  34,  43,  54-56,  65,  85,  167,  189,  228-229,  345-346,  354 

direct  participant  163 

Doswald-Beck,  Louise  48,  54,  268-269 

Dworkin,  Anthony  65,  189 

370 


Index 


East  Timor  5-6,  8,  10,  13-14.  313-315,  317 

effects-based  operations  iEBO*   152-155,  158-159,  161 

El  Salvador  59,  329 

enemy  forces  157,  185,  280 

European  Court  of  Human  Rights  •.  ECHR^   158,  179,  183,  202,  312,  348-350,  352,  354 


Falk,  R,  A.  32-33,  105,  107,  117,  135,  213,  216-217,  219,  229.  231-233.  265,  269 

FalklandsWar  135,265 

Fedayeen  90,  2~5 

Federal  Republic  of  Yugoslavia  See  Yugoslavia 

Eennck,  William  J.  54,  229-230,  233 

fiscal  accountability  72 

fixed  distinctive  emblem  43—45,  341 

force  protection  71,  73,  90-91,  101-102,  213-214,  267 

Fourth  Geneva  Convention  171,  292-293,  308 

France  19,21,25,30,35,38,83,85-86,92,96-9",  107,  112-115,  117,  183,253,327 

fratricide  102 

French  Resistance  Movement  86 


GBU-12   196 

Geneva  Convention  III  60,  62,  66-67,  129,  200-201,  353-355 

Geneva  Convention  IV  9-10,  60-61,  63,  66-6~,  353-354 

Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War   GPW  ■   74-76,  78-79,  91, 

104-108,  131,  190,  30",  336,  353 
Geneva  Conventions  of  1949  52,  55,  199,  224,  305,  311 
Germany  7,  9-10,  19,  52-53,  59,  83-85,  92-94,  97,  99,  114-115.  149.  181,  183.  189.  219,  22". 

231,261,280,325,349,354 
Global  Positioning  System  '  GPS  ■  152,  220,  269 
Global  War  on  Terrorism  ■  GWOT     91,  207-209,  211,  213-215,  22" 
Goldsmith.  Lord  20,  25.  36-37 

GPW  See  Geneva  Convention  Relative  to  the  Treatment  of  Prisoners  of  War 
Greece  59,  183,280,329 
Grunawalt,  Richard  J.  242,  252-255 

Guantanamo  57,  61-66,  147,  198,  200,  315-316,  354,  539-340,  344,  354 
Gulf  War  3-5,9,  11,  1".  22-24,  2",  50,  53,  62,  67,  107,  125,  148-149,  170,231,311,313,315 
GWOT  See  Global  War  on  Terrorism 


H 

Hacrue  Convention  IV  78,  88,  105-107,  112,  117,  340 


371 


Index 


Hague  Cultural  Property  Convention  144 

Hague  Rules  on  Air  Warfare  of  1923  223 

Hague  V  223-224 

Harvard  Program  on  Humanitarian  Policy  and  Conflict  Research  288,  300 

Hezbollah  275 

hors  de  combat  45,  138,  148,  346 

hospital  ship  46,  208,  215,  218-223,  231-232,  263-269 

hostilities  15,  17,34,43-45,47-49,51-52,59-60,62-63,77,81,  106,  110,  114,  136,  151,  155, 
157,  159,  161-165,  170,  172-175,  179-181,  186-188,  190,  192,  199,  201-202,  210,  218, 
223-226,  231,  263,  277,  290,  293,  299-301,  303,  306,  308-309,  311,  321,  323-324,  332, 
339-340,  343-346 

Human  Rights  Watch  126,  131,  137,  170,  173-174,  184,  192,279,285,317,354 

human  shields  47-48,  128,  170-174,  191-192,  279-280 

humanitarian  law  57,64,  151-153,  155-156,  158-164,  167-169,  171-175,  178-180,  182,  185, 

187,  192,  273,  275,  278,  282-283,  287-288,  291,  296,  298-299,  301,  319,  323,  327,  331-333 

Hussein,  Saddam  3-4,  8,  1 1-12,  16,  18-19,  21-23,  27-30,  32-33,  36,  38,  47-50,  52-53,  55,  61, 
138-140,  143,  149,  156,  161-163,  165,  167,  169,  171,  176-177,  186-189,  201-202,  210- 
211,  213,  223-224,  228,  254,  258-260,  278,  281,  284,  307,  315,  319-324,  329,  335,  346,  351 

hybrid  court  313-315,317 

I 

IAEA  See  International  Atomic  Energy  Agency 

ICJ  See  International  Court  of  Justice 

ICRC  See  International  Committee  of  the  Red  Cross 

Ignatieff,  Michael  128,  131,  210,  263 

inbello  15,43-47,49-50,  135,  160,  178,  194,291,307,311-313,345 

in  flagrante  delicto  88-89,  92,  1 15 

incidental  injury  154,  156,  158,  171,  178,  180,  182 

indigenous  attire  70,  82-83,  88,  90,  92-95,  97-98,  100-102,  112 

innocent  passage  207,  237,  239-240,  243-244,  246-250,  254 

interdiction  208,  227-228,  230 

international  armed  conflict  44,57-65,74,76-78,81,83,88-91,  101,  104,  107,  111-112,  162, 

168-169,  187,  192,  199,  208,  210,  213-214,  219,  222-227,  233,  263-264,  266,  291-292, 

297,  299-302,  304-305,  308-309,  311,  332,  340-341,  345-346 
International  Atomic  Energy  Agency  (IAEA)  26-27,  30,  36 
International  Committee  of  the  Red  Cross  (ICRC)  45,  54,  60,  67,  78-79,  82,  102,  108,  111, 

141,  158,  164,  184,  200,  268-269,  279,  287-289,  291-292,  294-309,  332-333,  335,  342- 

343,  345 
International  Court  of  Justice  (ICJ)  49,  55,  160,  189,  236,  242-245,  248-251,  253,  255,  259, 

313,351 
International  Criminal  Court  47,  54,  146,  162,  171,  174,  186,  290,  302,  304,  307,  312-313, 

327,  347 
International  Criminal  Tribunal  for  Rwanda  (ICTR)   192,  312 

International  Criminal  Tribunal  for  the  Former  Yugoslavia  (ICTY)  66-67,  126,  158,  194,  312 
interoperability  337 
IRA  See  Irish  Republican  Army 


372 


Index 


Iraq  3-32,  34-38, 43-45, 47,  49-53,  55,  59,  89-90,  99,  107,  109,  114,  121-125,  134-137,  143, 
145-150,  152,  155,  157,  160-161,  168,  170,  173,  181-182,  184,  186,  189,  192,  210,  213, 
217,  222-223,  229,  231,  233,  263,  274-275,  291-292,  301,  311,  313,  315,  317,  338-339,  349 

Iraq  Survey  Group  29,  37-38 

Iraqi  forces  109,  160,  170 

Irish  Republican  Army  59,  112,  350 

Israeli  Army  273,281,313 

Italy  59,  97,  105,  117,  149,  183,  189,  253,  261,  280 

J 

JDAM  152-153 

Jedburgh  teams  86,  97,  113 

joint  doctrine  156 

Joint  Publication  3-60  170,  172,  181-182,  193 

jus  ad  bellum  15,  44,  135,  143,  178,  194,  291,  294,  307,  312,  333 

jus  inbello  15,  43-47,  49-50,  135,  178,  194,  291,  307,  311-313 

K 

Kandahar  71,  104,  196,200 

Kay,  David  37-38,  102,  127 

Korea  48,  54,  59,  99,  125,  160,  186,  188,  210,  228,  239-240,  242,  254,  261-262,  280 

Kosovar  Albanians  154,183 

Kosovo  14,  19,  37,  121-122,  124,  126,  128,  134-135,  141,  144-145,  150,  154-156,  182-184, 

186,309,311-314,339,351 
Kuwait  vi,  5,  17,  21,  23-24,  27,  30,  33-34,  89,  107,  109,  134,  222 


Latin  America  59 

Lauterpacht  107,  233 

Lavrov,  Ambassador  Sergi  26,  30,  37-38 

law  and  order  168,  289,  346 

law  of  good  faith  338 

Law  of  the  Sea  207,  210,  227-228,  233,  235,  237,  239,  251-257,  259,  261-262 

Law  of  War  54-55,  100,  104-105,  107-110,  118,  186,  192,  229,  231,  233,  266,  354 

lawfare  145,  152,  161,  181 

lawful  combatancy  43-45,  54 

Lawrence,  T.  E.  (of  Arabia)  70,  83,  88,  92,  100,  102-103,  112 

levee  en  masse  107,  162 

Levitte,  Ambassador  Jean  David  26,  30,  36-38 

lexspecialis  62,  351 

Lieber,  Francis  83,  104,  107-108,  114,  161,  185-186,  233,  321,  329 

LOS  Convention  207-208,  210-211,  227-228,  235-254,  256-262 


373 


Index 


M 

maritime  operations  208 

maritime  zones  243,  247,  250 

medical  aircraft  220,  233,  268 

mens  rea  89,  193 

military  necessity  77,  81,  84,  90-91,  101-102,  175,  185,  215,  218,  231,  281-282,  287,  320-323, 

328 
military  objective  47-49,  55,  77,  114,  128,  138-140,  156-158,  160,  164,  171-180,  184-187, 

192-193,  215,  217,  231,  278-279,  284,  299,  304,  322-323,  325-326,  329,  340 
Milosevic,  Slobodan  121,  144,  150,  155-158,  185 
Model  Manual  on  the  Law  of  Armed  Conflict  345,  354 


N 

Nairobi  167,297 

NATO  7,  19,  99,  126,  131,  139,  144,  150,  154,  157-158,  165,  170,  182-184,  188,  190-191,  193, 

274,351-352 
Naval  Group  China  86,  96 
NGOs  See  non-governmental  organizations 
Nicaragua  59,  245,  248-249,  255-256 
9/1 1  65,  128,  165,  168,  191,  317,  333,  335,  337-338,  346 
non-governmental  organizations  (NGOs)  32,  69,  71-73,  90,  188 
non-international  armed  conflict  58-59,  64-65,  162,  168-169,  187,  192,  199,  291,  297,  299- 

302,  304-305,  308,  332,  340 
North  Atlantic  168,  183,  188,  312,  314 
Northern  Alliance  11,  70,  82,  88,  100-101 
Nuremberg  Tribunal  185,189,216 

O 

observe,  orient,  decide,  act  (OODA)   153,  182 

occupation  law  348 

occupying  power  8-9,  52,  63,  301 

OODA  See  observe,  orient,  decide,  act 

Operation  Allied  Force  154-155,  157,  161,  173,  178,  182,  184 

Operation  Apollo  198 

Operation  Desert  Fox  3,  26,  192 

Operation  Desert  Storm  23,  27,  123,  154,  160-161,  182,  313 

Operation  El  Dorado  Canyon  165 

Operation  Enduring  Freedom  61,  69,  101,  104,  122,  182,  189,  195,  198,  200,  202,  215,  228 

Operation  Iraqi  Freedom  3,  23,  38,  53,  69,  78,  83,  85-87,  101,  107,  109,  122-123,  134,  152,  155, 

161,  165,  168,  173,  181-182,  184,  186,  189,  193,  195,  215,  233,  263,  273,  328,  338-339 
Operational  Law  Handbook  140,  149,  183 
Oppenheim   107,  111,233 
ordinary  crime  44,  59 
Ottawa  Convention  297,  302,  307 


374 


Index 

outlaw  311,345 


parallel  warfare  152 

partisan  movement  85 

perfidy  44,  46-47,  76,  81-82,  88,  90-91,  110-111,  282,  322 

Philippines  59,  189,  262,  280 

piracy  105,  143,  210-211,  228,  340 

POW  status  105,292,335 

Powell,  Colin  37,  189-190,  313 

principle  of  distinction  45,  77-78,  82,  87-88,  90,  107-108,  110,  114,  160-161,  163,  177,  185 

prisoner  of  war  43-46,  60-64,  74-76,  80,  82,  104-107,  109,  113,  200-201,  308,  334,  342,  348 

prisoner  of  war  status  43-46,  61-64,  74-76,  80,  104-106,  109,  113,  200-201,  308,  342 

proportionality  48-49,  126-128,  130,  141,  145,  153-154,  158,  167-175,  185,  209,  214-215, 

218,231,298-299 
proportionate  attack  156,172 
protected  places  5 
protected  status  81,  161-164,  173-174,  202,  223,  263-264,  266-268,  278,  293 


Qaed  Senyan  al-Harthi  166,189 


R 


Radio  Televisija  Srbije  (RTS)  158 

Resolution  1373  4,  211-212 

Resolution  1483  9 

Resolution  6  of  the  Diplomatic  Conference  of  Geneva  268 

revolving  door  syndrome  346 

Roach,  J.  Ashley  227,  230,  232,  262 

Roberts,  Sir  Adam  14,  66,  75,  102,  131,  133,  148-150,  181,  186,  190,  203,  213,  229,  232,  268, 

283,307,313,328,336,353 
Rose,  Don  4,  14,  21,  31,  33,  66-67,  75,  102,  131,  133,  148-150,  181,  203,  232,  268,  283,  307, 

313,328,353 
Rostow,  Nicholas  4,  21,  31,  33 
Royal  Warrant  349 
RTS  See  Radio  Televisija  Srbije 
rule  of  law  19-20,  226,  312,  316-317 
Rules  of  Engagement  (ROE)  131,254 
Rumsfeld,  Donald  65,  67,  338,  353 
Russia  26,29-30,  35,  37-38,  84-87,  92-94, 108-109, 115-116,  122,  145,  188-189,  253,  280,  327 


375 


Index 


saboteurs  52,61,  106,  118 

Samuel  B.  Roberts  213 

San  Remo  Manual  228,  265,  268,  300 

Sassoli,  Marco  57,  65,  67 

Schindler,  Dietrich  54,  66,  104,  185,  233,  268,  328 

Schmitt,  Michael  N.  55,  118,  151,  181,  186,  188,194,229 

Sea  Isle  City  2 1 3 

Security  Council  3-5,9,  11,  13-14,  16-19,21-37,52,  103-104,  107,  135,  165,  168,  183,  190, 

208,  210-21 1,  215,  224,  228,  233,  237,  279,  284-285,  314,  333-334 
Security  Council  Resolution  1441  37 
Security  Council  Resolution  1483  9,  11 
Security  Council  Resolution  687  5,  13,  23,  25,  27-28,  34 
self-defense  16,  19,  23,  32-33,  165-169,  189,  191,  199,  209-210,  212,  214-215,  221,  223,  228- 

230,  266-267,  325,  334 
Serbian  121,274 
Sharon,  Ariel  313,  317 
Shatila  313 
Shawcross,  William  32,  38-39,  54-55,  57,  65-67,  88-89,  97,  104,  1 15-1 16,  1 18,  151,  155,  182, 

185-186,  188,  194,  227,  235,  251,  256,  262,  268,  313,  328 
Short,  Lt  Gen  Michael  155-156,  160,  182,  314 
simultaneous  attack  155 
Sinn  Fein  83 

Sino-Japanese  War  83,  112 
Skorzeny,  Otto  88-89,  97,  115-1 16 
Smith,  Robert  W.  113,  227,  230,  262 

Special  Forces  44-45,  69-70,  77-78,  82-85,  87-90,  99-102,  105,  109,  112-113,  116 
State  practice  58-59,  64,  69,  76-78,  82-83,  88-89,  109,  112,  116,  163,  215,  224-226,  245, 

258,  332 
stealth  151-152 
strategic  rings  concept  154 
Strategic  Studies  Institute  5 
strategy  10,  86,  123,  145,  155,  157,  164,  187,  241 
suicide  bombers  46,  277-279,  284 
surrender  47,  52,  81,  94,  160,  166 
Syrian  275 


Taft,  William  Howard  16-17,  20,  32-35,  37,  65,  67,  149,  228,  237,  239,  241,  243,  246,  252, 

255,262,269,314,329 
Taliban  58-61,  70-71,  74-75,  82,  90,  100-104,  106,  122,  168,  188,  191,  198-201,  203,  292, 

315,333-335,344 
targeting  5,70,  100,  121,  124-125,  133-134,  136-139,  141-142,  144,  146-148,  151-152,  154- 

156,  159-161,  164-166,  170,  173,  176-178,  180,  184,  187,  202,  210,  216,  273,  276,  279, 

299,  304 


376 


Index 


Tarnak  Farms  195-196 

Taylor,  Charles  314 

terrorism  180,208-213,215 

terrorists  5,  19-20,  60-61,  63,  152,  165,  168-169,  208-209,  211-215,  219,  222,  266-267,  276- 

284,334,341,350 
Third  United  Nations  Conference  on  the  Law  of  the  Sea  237 
Thucydides  15-16,20 
Tikrit  8,  163 

transit  passage  207,  239-240,  250 
treacherous  use  of  civilian  clothing  80,  82,  88 

U 

Uganda  19,98 

uniform  43-46,  50,  70-71,  73-91,  93-113,  115-118,  129,  162,  170,  243-244,  255,  342-343 

United  Kingdom  3,  9,  24-28,  35,  38,  52,  59,  66,  69,  85-86,  92-97,  99,  107,  113,  135-136,  140, 

143,  148-149,  163,  183,  189,  216-217,  219,  222,  233,  261,  327,  337-339,  342,  348-349, 

351-352,354 
United  Nations  3-5,  8-9,  11,  13-15,  19,  22,  28,  31-32,  34-39,  71,  81,  103,  107,  165,  170,  190- 

191,  213,  227-228,  233,  237,  239,  241,  247,  250-255,  257,  261,  277,  279-280,  283-285, 

288,  291,  303,  307,  311-315,  328,  333,  349 
United  States  3,  5-7,  9-10,  13,  16-22,  24-35,  37-39,  45,  51-52,  57-58,  61-67,  69,  74-75,  80, 

85-86,  96-100,  103-104,  106,  110-112,  117-118,  125,  128-129,  134-136,  138-146,  148, 

150,  152,  156-158,  163,  166-168,  173,  181-186,  188-191,  195,  197-201,  203,  208,  210, 

219,  227-228,  231-233,  235-237,  241-242,  247,  252-255,  262,  282,  284,  293,  313,  316- 

317,  321,  327-328,  331-332,  334-339,  341-342,  347-349,  352-354 
Universal  Declaration  of  Human  Rights  10,  14 
universal  jurisdiction  289-290,  313,  327,  347 
unlawful  combatants  44,  46,  50,  57,  60-61,  63-64,  67,  193,  200-201,  292-293,  299,  334-335, 

339,  344 
UN  Monitoring,  Verification  and  Inspection  Commission    5 
unnecessary  suffering  112,168,297 
unprivileged  belligerent  106,  108,  179,  293,  334,  344 
unprivileged  combatant  63 
Urquhart,  Brian  8,  13,  196 
US  Army  Field  Manual  27-10  107,  269 
US  Central  Command  71,  109,  181 
US  Constitution  163,187 
USARCENT  71 
use  offeree  5,  3,  15,  17,  19-20,  22-24,  26-27,  29,  32-33,  35-37,  127,  155,  157,  159,  165-166, 

184,  190-191,  212-213,  237,  248,  255,  261,  290-291,  307,  312,  333-334 
USNS  Comfort  263 
USS  Cole  46,  166,  214,  227,  267 

V 

Vienna  Convention  on  the  Law  of  Treaties  24,  219,  246,  265 

377 


Index 

Vietnam  6,  19,59,62,67,71,98,  101,  106-107,  111,  118-119,  136,233,239,253,274 

W 

war  crimes  63,  95,  97,  105,  126,  171,  274,  279,  290,  312-313,  315,  344,  347,  349 

Warden,  Col  John  (Jack)   122-123,  130,  154,  182 

warning  160,  216,  281,  285,  303-304,  321-322 

warning  zone  213-214,  216,  229-230,  260 

weapons  of  mass  destruction  (WMD)  5,  16,  18-19,  22,  26,  28-29,  37-38,  168,  185,  208,  292 

Webster,  Daniel  167,  189,  191 

Wedgwood,  Ruth  3,  13,  32 

Wehrmacht  62 

Westphalian  system  58 

WMD  See  weapons  of  mass  destruction 

World  Bank  7 

Y 

Yugoslavia  87,  96-97,  103,  113,  131,  154,  157-158,  170,  183-184,  274,  290,  314 


378