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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 Wedgwood 1 



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 Land 8 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. Franck 1 



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 Rostow 1 

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 others 42 
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 Kingdom 48 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 



Inter national 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 Dinstein 1 



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 forces 41 (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. 



51 



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 Sassoli 1 

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 
Conventions 5 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 status 18 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 
requirements 31 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 Parks 1 



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 377 th Theater Support Com- 
mand (TSC), the 122 nd Rear Operations Center, and the 352 nd 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 96 th 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, 96 th 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 War 15 (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: 



75 



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 I 23 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 20 th - 
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 19 th 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 

77 



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 



79 



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 
Conference 45 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 conflict 50 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." 



81 



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 Forces 1 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. . . 7 2 

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 Quirin 87 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 PRACTICE 95 



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. 


Germany 97 


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. 


Japan 98 


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 States 101 


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


1968 


South Vietnam 


Awarded Medal of 
Honor. 


United States 102 


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 


7 1 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: 5 th 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, l bt 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 



108 



___ 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 



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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, 100 lh Congress, 1 st 
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. Walker 1 

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 circles 2 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 

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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 

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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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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 Watch 7 
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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Jeffrey K. Walker 



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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Jeffrey K. Walker 



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 III 11 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 Roberts 1 



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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Adam Roberts 



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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Adam Roberts 



"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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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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Air Power, Accuracy y and the Law of Targeting: Why No Brave New World? 

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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Adam Roberts 



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 

144 



Adam Roberts 



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 

147 



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, 

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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. 



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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. Schmitt 1 



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 l st -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 

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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 — 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 

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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 Convention 33 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 21 st -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 21 st -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 



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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. 



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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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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 7 th 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 

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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 



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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, 

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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 



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Michael N. Schmitt 



William Ropers who assert its insufficiency in meeting the challenges of 21 st -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 21 st -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 



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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). 



185 



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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Targeting and Humanitarian Law: Current Issues 

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, m Vit 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. 



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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 



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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 

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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 1949 2 ). 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 I 3 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 

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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 penalty 6 or immigration removal where there is a sub- 
stantial risk of torture 7 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 Bankovic 8 that while Article 1 of the Eu- 
ropean Convention on Human Rights 9 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 

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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. 



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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 1 

Preliminary Remarks 

With the adoption of the UN Law of the Sea Convention in 1982 2 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 ports 5 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 force 6 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 borders 12 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 operations 13 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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Current Legal Issues in Martime Operations 



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 targeting 17 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 San 20 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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Wolff Heintchel von Heinegg 



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; 



211 



Current Legal Issues in Martime Operations 



(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 



212 



Wolff Heintchel von Heinegg 



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 case 29 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 Wars 31 
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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Current Legal Issues in Martime Operations 



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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Current Legal Issues in Martime Operations 



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 zones 43 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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Wolff Heintchel von Heinegg 



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 manuals 53 all stress that 



217 



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 Manual 54 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 operations 60 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 States 64 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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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 



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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 

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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 

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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 law 76 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 1923 80 — 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. 



227 



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 Stephens 1 



The 1982 Law of the Sea Convention 2 (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 absentee 6 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 programs 8 
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 
reservations 19 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 Wheaton 24 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 century 27 and writers 
in the current period 28 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 baselines 36 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 50nm 37 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 Convention 38 and supporting customary international law. 39 Simi- 
larly, a United Nations publication from 1994 40 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 Korea 45 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 2002 51 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 freedom 60 and such coalescence of interests are naturally similar 
with other maritime State goals. Such freedom critically underpins 61 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 law 81 there would need to 
be demonstrated an extremely widespread and uniform 82 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" theory 95 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 enough 96 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 Treaties 97 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 Convention 102 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 Aceves 103 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" doctrine 105 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 Convention 116 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 hopes 125 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 Kim 1 



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 States 9 expressed strong opposition to military 
activities 10 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 L T ruguay ( 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. Riggs 1 



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 Sea 9 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 Manual 10 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 

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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 navigation 14 or communication 15 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 I 17 (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. 



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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 timeframe 5 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 conventional 7 

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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 commission 21 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 



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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 

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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 



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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- 



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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. 



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XVI 



International Humanitarian Law: 
Should It Be Reaffirmed, 
Clarified or Developed? 

Jean-Philippe Lavoyer 1 

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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Jean-Philippe Lavoyer 



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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International Humanitarian Law 



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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Jean-Philippe Lavoyer 



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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International Humanitarian Law 



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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Jean-Philippe Lavoyer 



If an "unlawful combatant" — or better, "unprivileged belligerent" — is not cov- 
ered by the Fourth Geneva Convention (e.g., because of his or her nationality 18 ), 
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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International Humanitarian Law 



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 facto 7 . 

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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Jean-Philippe Lavoyer 



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. 



307 



International Humanitarian Law 



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. Murphy 1 



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 legislation 7 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. 



317 



XVIII 



Protection of Cultural Property: 
The Legal Aspects 

Jan Hladfk 1 



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 



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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 

321 



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. 2 12 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 inserts 14 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 protection 15 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. Graham 1 



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 
Conventions 3 — 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 
Convention 9 — 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. Garraway 1 



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 

339 



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 1907 5 ). 

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 Conventions 6 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 

340 



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 



341 



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 



343 



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 response 25 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 

349 



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 Turkey 44 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 case 47 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 



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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 

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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 C