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Full text of "The law of military operations : liber amicorum professor Jack Grunawalt"

Professor Richard J. Grunawalt 



INTERNATIONAL LAW STUDIES 



Volume 72 



Library of Congress Cataloging-in'Publication Data 

The law of military operations : liber amicorum Jack Grunawalt / 
edited by Michael N. Schmitt. 

p. cm. — (International law studies ; v. 72) 
Includes index. 

ISBN 1-884733-10-7 (hardcover) 

1. International police. 2. United Nations — Armed Forces. 
3. War, Maritime (International law) 4. Naval law — United States. 
5. Grunawalt, Jack. I. Grunawalt, Jack. II. Schmitt, Michael N. 
III. Series 

JX1295.U4 vol. 72 
[KZ6374] 

341.6— dc21 98-16990 

CIP 

Printed in the United States of America 



INTERNATIONAL LAW STUDIES 



Volume 72 



The Law of Military Operations 
Liber Amicorum Professor Jack Grunawalt 



Michael N. Schmitt 
Editor 




Naval War College Press 

Newport, Rhode Island 

1998 



Contents 

Foreword ix 

Preface xi 

Sailor-Scholar — An Introduction xv 

I. Secrets in Plain View: Covert Action the U.S. Way 

M.E. Bowman 1 

II. International Law and Naval Operations 

James H. Doyle, Jr 17 

III. The Law of War in Historical Perspective 

Leslie C. Green 39 

IV. Shooting Down Drug Traffickers 

Phillip A. Johnson 79 

V. War Crimes 

Howard S. Levie 95 

VI. The U.S. Freedom of Navigation Program: Policy, 

Procedure and Future 
Dennis Mandsager 113 

VII. The Framework in the Founding Act for NATO -Russia 

Joint Peacekeeping Operations 
Myron H. Nordquist 129 

VIII. Guarding the Coast: Alien Migrant Interdiction 

Operations at Sea 
Gary W. Palmer 157 

IX. The Maritime Claims Reference Manual and the Law 

of Baselines 
J. Ashley Roach 181 

X. The Principle of the Military Objective in the Law of 

Armed Conflict 
Horace B. Robertson, Jr 197 

XI. Crafting the Rules of Engagement for Haiti 

Stephen A. Rose 225 

XII. Clipped Wings: Effective and Legal No-fly Zone Rules of 

Engagement 
Michael N. Schmitt 239 

XIII. The Emerging Role of NATO in UN Peace Enforcement 

Operations 
James P. Terry 297 



XIV. Nuclear Weapons and the World Court: The ICJ's Advisory 

Opinion and Its Significance for U.S. Strategic Doctrine 
Robert F. Turner 309 

XV. Anticipatory Collective Self-Defense in the Charter Era: 

What the Treaties Have Said 
George K. Walker 365 

XVI. Permanent Concerns, Legal Norms, and the Changing 

International Order 
Robert S.Wood 427 

Contributors 439 

Index 445 



Vlll 



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 seventy-second volume of that series, is 
a collection of articles prepared by friends of Professor Richard J. "Jack" Grunawalt to 
mark the occasion of his retirement as the Director, Oceans Law and Policy 
Department of the Center for Naval Warfare Studies, Naval War College. 

Jack Grunawalt came to the Naval War College in 1986 as the Charles H. 
Stockton Professor of International Law, and held that Chair until becoming the 
Director, Oceans Law and Policy Department in 1989. Under his leadership of its 
international law program, the Naval War College has regained its historic stature 
as the world's preeminent military institution for the study and articulation of the 
rules of law governing the world's oceans, both in time of peace and in time of war. 

It is the renaissance of the "Blue Books" during Professor Grunawalt's tenure 
that has contributed significantly to the restoration of the Naval War College's 
stature in the study of international law. Indeed, this is the ninth volume in the 
series that has been published since 1990. Thus, it is most appropriate that Jack 
Grunawalt's contributions to the Naval War College be recognized through the 
publication of a "Blue Book" in his honor. It is also a testament to the high regard in 
which he is held that so many notable contributors, both military and civilian, 
would prepare articles for this special edition, which is unique in the long history of 
the "Blue Book" series. 

While the opinions expressed in this volume are those of the individual authors 
and not necessarily those of the United States Navy or the Naval War College, they 
make a valuable contribution to the study of the varied areas of international law 
that are addressed. On behalf of the Secretary of the Navy, the Chief of Naval 
Operations and the Commandant of the Marine Corps, I extend to the contributing 
authors and the editor our gratitude and thanks. I would also like to thank Jack 
Grunawalt on behalf of the faculty and students of the Naval War College who have 
been privileged to be associated with him and to have learned from him. 



JAMES R. STARK 
Rear Admiral, U.S. Navy 
President, Naval War College 



Preface 

Every so often someone comes along who makes a real difference — the kind 
of difference that, in the great scheme of things, matters. Professor Jack 
Grunawalt is one such individual, for it is no exaggeration to label him the 
father of operational law in the United States military. Indeed, before I came to 
the Naval War College, an Air Force colleague pulled me aside to "warn" me 
about Jack Grunawalt, the man who saw himself as the "keeper of the ROE" 
(rules of engagement) . After three years of working for him, I am convinced he 
is not only the "keeper," but that this is a good thing for our nation. Today, 
there are simply no military operations conducted by U.S. forces, or even those 
of other countries, that do not evidence the hand of Jack Grunawalt. Whether 
directly through application of the Standing Rules of Engagement he helped to 
craft or indirectly through the thousands of Grunawalt- trained judge advocates 
and operators around the world, his influence is omnipresent. This "keeper" 
has guarded and nurtured his charge well. 

Moreover, he also authored what is clearly the lead law of military 
operations manual in the world, The Commanders Handbook on the Law of 
Naval Operations, NWP-9 (now 1-14M). Copies of that masterpiece can be 
found from the bridges of Latin American warships and the ICRC Legal 
Adviser's Office to the Yale Law School Library and the Combined Air 
Operations Center for Operation NORTHERN WATCH. I know of no other 
work in recent times that can pretend to make a comparable claim. 

His greatest legacy, however, lies not in these accomplishments or those 
described in the introduction to this book. Rather, it lies in his influence on the 
individuals who will continue to shape operational law in the years to come. He 
is very much the Myres McDougal of this corpus of law, for the mark of Jack 
Grunawalt, like McDougal, is indelibly imprinted on all those who have had 
the good fortune to have worked with him or benefited from his selfless 
mentorship. Of course, the Grunawalt experience is not always pleasant; a 
crusty opinionated sea captain he remains — even in the ivory halls of 
academia. But it is always an experience from which one emerges bettered. 

So as Jack Grunawalt prepares to head off to the adventure-filled retirement 
he justly deserves, those of us who have had the honor of working closely with 
him over the years deemed it appropriate to honor him with this Liber 
Amicorum, this book of friends. The topic was self-evident — the law of military 
operations — Jack's law. Who the contributors should be was also obvious. Jack 
Grunawalt often talks of the Oceans Law and Policy (OLP) "family." It includes 
present and former faculty members of the Naval War College, members of the 



OLP advisory board, holders of the Stockton Chair of International Law at the 
College, and "special friends." It is to the OLP family that we turned to produce 
this work. 

Hopefully, the end product is a book that represents what Jack Grunawalt is 
all about. Consider the contributors, who range from vice admirals to 
lieutenant colonels; Army, Air Force, Navy, Marine, and Coast Guard officers; 
service academy and law school professors; a war college dean; CINC legal 
advisers; and a Joint Chiefs legal adviser. Indeed, the age gap between the 
youngest and oldest contributor is a half-century. It is a high tribute to Jack that 
his influence is felt across such a diverse group. 

Then there are the topics. Contributors were given only the guidance 
(bearing in mind the book was a tribute to Jack Grunawalt) that they should 
write about operational law. Look carefully at the result. The subjects range 
from the law of war to the law of the sea; rules of engagement for "occupying" a 
Caribbean island to enforcing no-fly zones over Iraq; collective self-defense to 
covert action; the use of nuclear weapons to peace operations. Yet, the very 
diversity of topics reflects the diversity of operational law itself. It also 
represents the range of issues to which the Grunawalt influence has been 
brought to bear. Jack Grunawalt is no more or less at ease talking about 
maritime intercept operations than nuclear warfare ... or theoretical 
international relations ... or exploitation of resources in the exclusive 
economic zone. He is a man of extraordinary scope, and the only defining 
parameter of this book was that contributions somehow involve military 
operations. 

Many have been involved in the creation of this expression of admiration for 
Professor Jack Grunawalt. The Naval War College Foundation provided a 
generous grant to support its publication. Captains Dan Brennock and Ralph 
Thomas of the Center for Naval Warfare Studies creatively ensured additional 
funding whenever needed. Captain Thomas also agreed to proof drafts during 
my absence on an extended hardship research trip to London, Bonn, and 
Geneva. Lieutenant Commander Sarah Supnick, USNR, selflessly volunteered 
her own time, and friendship, as associate editor for over two months during a 
critical period of production. Ms. Gina Vieira at the War College's Publications 
Division generated draft after draft, always with an unfailing sense of humor. 
Lieutenant Colonel James Duncan of the Oceans Law and Policy Department 
took the book from proofs to publication with typical Marine determination. 
Special thanks is due to the Naval War College Press, particularly this volume's 
editor, Ms. Pat Goodrich. Few can imagine Pat's professionalism in managing a 
gaggle of type- A lawyers, oblivious to any rules of style or grammar, seemingly 



XII 



concerned only with the travails of endnotes. Finally, a personal thanks to 
Lorraine and Danielle who, as always, suffered silently through my 
preoccupation with the task at hand. 

On behalf of all Jack's friends, we wish him fair winds and following seas. 



MICHAEL N. SCHMITT, Lieutenant Colonel, U.S. Air Force 

Professor of Law 

United States Air Force Academy 



xni 



SailoivScholar 



Ralph Thomas 



I MUST BEGIN WITH A MODIFICATION of the standard disclaimer that 
each of us in government service is required to include with any 
publication: "The views expressed herein are my own and not necessarily those 
of Jack Grunawalt's friends, whose reflections on Jack I've been asked to 
represent." Though the memories of Jack that I relate are my own, they also 
attempt to synthesize all that he means to each of us. The only debate would 
be in the selection of adjectives that most aptly describe him. Should it be the 
"highest" or "greatest" respect? Should it be "enormous" or "extraordinary" 
accomplishments ? 

To capture the essence of the legend (a word used to describe him only when 
he is out of earshot) that is Jack Grunawalt seemed an impossibly presumptuous 
task for me. There are others who have known him longer, those he counts as his 
closest friends, and those to whom he turns for the wise counsel that has guided 
and assisted him in his careers as an active duty Navy judge advocate and then as 
a professor on the faculty of the Naval War College. I have had, however, the 
unique opportunity (and the greatest personal and professional privilege) of not 
only knowing Jack for many years but of having been closely associated with him 
for seven years here at the Naval War College. For five of those years I have 
served as the Deputy Director, Oceans Law and Policy Department, but 
whenever I am asked what my position is, I normally answer, "Jack Grunawalt's 
deputy." The former (and formal) title often generates quizzical expressions, 
while the latter prompts immediate recognition. 

I have deliberately not included specific references to those who have 
worked with Jack over the years and whose friendship and advice he values so 
highly. Among them are individuals who have measureably contributed to the 



development of operational law as it is practiced today in the armed services , as 
well as many who have assisted Jack in his efforts to restore the tradition of 
excellence in the study of law at the Naval War College. Were I to do so, I 
would almost certainly omit many deserving of mention — something I would 
not want to do. Each of you knows who you are. I would also like to apologize in 
advance to Jack, who, while he can never be described as retiring, has always 
been uncomfortable with introductions that describe his many 
accomplishments. His typical response is often a deflecting "I wish my mother 
had heard that." Well, Mrs. Grunawalt you should hear what your son has 
accomplished. 

Today, many people know Jack primarily for his accomplishments as the 
Stockton Professor of International Law and the Director, Oceans Law and 
Policy Department at the Naval War College. In fact, he has been at the War 
College long enough for me to have learned to refer to him as "Professor" 
Grunawalt — after all those years when he was "Captain" Grunawalt, Judge 
Advocate General's Corps, United States Navy. Indeed, it was as Commander 
and then as Captain Grunawalt that he began to exert the influence that 
eventually rendered him the honorary title of "the father of operational law" as 
we know it today. While he was not the first Navy judge advocate we would 
refer to as an "operational lawyer," he is acknowledged as the officer who firmly 
established judge advocates as key advisers to operational commanders on all 
aspects of their mission. It is he who led the effort to integrate lawyers onto the 
battle staff and into the command center and to acquire the security clearances 
necessary for their participation in the decision-making process. Navy judge 
advocates now accept those as "givens" — not so long ago they were not. That 
today they are, we owe largely to Captain Grunawalt. 

In the process of becoming what I consider to be the finest operational 
lawyer the Navy JAG Corps ever raised, Jack Grunawalt served under a 
generation of Navy leaders that are themselves legends — Admiral Thomas 
Hayward, Admiral James Holloway, Admiral James Watkins, Admiral William 
Crowe, and Admiral Robert Long. His assignments, which included Special 
Counsel to the Chief of Naval Operations and Staff Judge Advocate to the 
Commander in Chief, United States Pacific Command, reflect the high regard 
in which he is held. 

Following service in Vietnam as the Deputy Director, U.S. Naval Law 
Center, Da Nang, then-Commander Grunawalt was presented with his first 
opportunity to be heavily involved in the practice of operational law when he 
was assigned as the Staff Judge Advocate to the Commander, Seventh Fleet, 
the command responsible for directing the Navy's efforts during the Vietnam 



xvi 



War. There Jack had the opportunity to see the results of flawed rules of 
engagement. I've never heard him say so, but I suspect his career4ong (both 
careers) drive to ensure that rules of engagement never again produced such 
results began with that assignment. 

But had that not been the motivation, clearly his service as the Counsel for 
the Long Commission that investigated the tragic bombing on 16 October 
1983 of the Marine Battalion Landing Team (BLT) Headquarters in Beirut, 
Lebanon, focused his attention on the critical role of rules of engagement. 
Specifically selected to be the Counsel by Admiral Long, who headed the 
Commission, Jack learned of the now infamous Blue Card/White Card Rules of 
Engagement (ROE) that the Marines used in carrying out their security 
responsibilities. The robust Blue Card ROE set forth the rules for guarding the 
relocated U.S. Embassy following its destruction by a car bomb in April 1983. 
Much more restrained were the "peacekeeping" White Card ROE in effect at 
Beirut International Airport where the Marines were headquartered. It was the 
latter that substantially reduced the ability of the Marines on perimeter 
security to stop the explosive-laden truck that destroyed the BLT 
Headquarters. In one moment, 241 American military personnel, mostly 
Marines, died. I believe Jack's experience on the Long Commission resulted in 
a personal crusade (a word I've never heard him use) to do whatever he could 
to ensure that no more American military personnel would never die because 
of a failure of rules of engagement. 

Captain Grunawalt capped his active duty service by authoring The 
Commander s Handbook on the Law of Naval Operations , or as it is better known, 
NWP 9. Regarded as the finest military manual of its kind in the world, it 
provides legal guidance to operational commanders on the many complex 
situations they confront, both in peacetime and during conflict. 

NWP 9 evidences one of the consistent themes that have characterized Jack 
Grunawalt's service — an appreciation of the difficult role of the line officer, 
who sails the Navy's ships and flies her aircraft. (Many times I've heard him say 
during a rules of engagement presentation to a group of commanding officers, 
"Rules of engagement can be hard, just like everything else you do.") With that 
in mind, Jack wrote NWP 9 not for lawyers, but for operators, recognizing that 
they make the decisions on how to operate and fight their ships and aircraft. 
Therefore, and as Jack often notes, there are no footnotes, case citations, nor 
Latin phrases in The Commanders Handbook (now in its third iteration, it is 
today known as NWP 1-14M). 

Given his practical approach to the law, it should come as little surprise that 
when asked to define the phrase "operational law," a new phrase coined to 



xvn 



describe the practice within the Department of Defense of what had previously 
been referred to as international law, Professor Grunawalt stated quite simply 
that it "is whatever it is that assists the commander in accomplishing the 
mission. Perhaps it's providing advice on a difficult law of the sea or law of 
armed conflict question, or assisting with the development of rules of 
engagement for a sensitive operation, or perhaps it's assisting in the convening 
of a court-martial, or drafting a will or power of attorney." These few words 
capture the essence of Jack Grunawalt — it's the lawyer's role to do whatever it 
takes to help the operational commander — but Jack always adds an important 
caveat. While the lawyer's role is to be proactive and creative in assisting the 
commander to accomplish a desired result, it is the lawyer's responsibility to 
ensure that the result and the manner in which it is accomplished are 
consistent with the rule of law. As Jack has observed so frequently, the values of 
the United States as a nation and the personal values of American military 
professionals are reflected in the law, and no action must ever be taken which 
compromises those values. It was to this principle — the conduct of military 
operations within the rule of law — to which he dedicated himself most fully 
upon his move to the Naval War College following retirement from the Navy. 

The study and teaching of law had been an integral part of the Naval War 
College program for decades. Indeed, it is reflected in Admiral Stephen B. 
Luce's first Order, dated 2 September 1885, to the first Naval War College 
class: "Lectures will begin on September 7. The working days will be Monday, 
Tuesday, Wednesday, Thursday, and Friday. The lectures on International 
Law will be delivered daily at 10 am. ..." The first civilian professor joined the 
War College faculty over 110 years ago, when James R. Soley was appointed to 
teach international law. That professorship, which became the Stockton Chair 
in 1967, has been held by some of the most eminent international legal scholars 
in the world. They include John Bassett Moore, later a judge of the Permanent 
Court of International Justice; Professor Manley O. Hudson, who went on to 
become a judge on the International Court of Justice; Berkeley Professor Hans 
Kelsen; and Newport's own, Professor Howard Levie. 

In 1986, now retired Captain Jack Grunawalt was appointed to the Chair. The 
first chairholder in the history of the Stockton Chair to move directly from a 
military career into the College's oldest and most prestigious chair, he held it for an 
unprecedented three years. Then in 1989, he proposed the creation of an Oceans 
Law and Policy Department within the Center for Naval Warfare Studies. 

As Dr. Bob Wood, then and now the Dean of the Center for Naval Warfare, 
observed, "When [Jack] first came into my office to propose an Oceans Law 
and Policy Department, it was evident he spoke with considerable authority. 



xvin 



His vision entailed it as no less than a center of excellence which would 
become the authority on operational law — a repository of current practice, a 
place of original scholarship, and the teacher not only of U.S. Armed Forces, 
but of the forces of friendly States as well. He envisioned that the Oceans Law 
and Policy Department would draw the parameters of operational law into the 
21 st century." Dr. Wood continued, "An ancient proverb proclaimed that 
young men would dream dreams and old men would have visions. I concluded 
either that Jack was subject to psychedelic hallucinations or that he was a 
dreamer and visionary of tremendous power. Happily for the nation, — and for 
me — he was certainly the latter." 

Jack was appointed the first director of the newly formed department, a 
position he occupied until his retirement in the summer of 1998. In the years 
preceding Jack's arrival, the War College had witnessed a decline in the 
emphasis placed on international law. But the dedicated visionary that spoke to 
Dr. Wood of his dream of a center of excellence oversaw the restoration of the 
College's reputation as the world's pre-eminent institution for the study and 
teaching of the law of naval operations, both in peacetime and during conflict. 

In his contribution to this volume, Admiral James H. Doyle describes the 
truly remarkable "Grunawalt era" at the Naval War College, and speaks of 
Professor Grunawalt's many accomplishments. I will defer to Admiral Doyle 
and refrain from repeating them here; rest assured, however, that they can be 
described as enormous, indeed, extraordinary. Among them was his 
revitalization of a program that had in great part established the College's 
position on the international legal scene — the publication of the 
"International Law Studies" series, recognized throughout the world for its 
contribution to the understanding of international law. Through Jack's 
diligence and dedication, the series is now as productive and useful as it has 
ever been in its nearly 100-year history. Therefore, on the occasion of his 
retirement from the Naval War College, Jack's closest friends, colleagues, and 
mentors have collaborated to honor him with this "Blue Book" — Jack's "Blue 
Book" if you will. We could think of no more fitting tribute to this 
sailor-scholar. On behalf of all those whose lives have been touched, either 
professionally or personally, by the legend that is Jack Grunawalt, we humbly 
ask that he accept this token of our respect and admiration. 

So, Mrs. Grunawalt, if you are proud of all your son has accomplished . . . you 
should be. He has served his Navy and his country with unparalleled devotion 
during times of both peace and war. Along the way, he selflessly shared his 
knowledge and vision with us. It is our honor to have had that great 
opportunity. 



xix 



I 



Secrets in Plain View: 
Covert Action the U.S. Way 

M.E. Bowman 




E AMERICANS HAVE A UNIQUE CULTURE. We champion openness 
in government but implement many policies in secret. Historically, we 
have been quick to fight for national honor but equally quick to publicly and 
mercilessly criticize ourselves; a future historian might even conclude that we 
defined our culture by airing dirty laundry. From the very beginning, we publicly 
debated our national morality — from slavery to the Indian campaigns; from 
Mexico to the Maine; from Vietnam to Panama. We even exposed "secret" 
executive actions by televising the introspective and painful investigations of such 
notable events as Iran-Contra and the Church Committee hearings. Probably 
more than any other nation in the world, we can expect that sooner or later 
virtually any executive activity of the United States will be publicly scrutinized. 

Executive Action 

Lacking precise definition, executive action has become a term of art that 
describes activities designed to influence behavior. Executive action often is 
"secret," but not always. If secret, it often is coercive. When practiced by the 
United States, it is always a tool of foreign, never domestic, policy. 



Covert Action the US, Way 



Executive action may be applied directly — by military or paramilitary force, 
economic leverage, or political activities — or it may consist of mere persuasion. 
Executive action may also be applied indirectly, for example by using 
surrogates, propaganda, or even covert military, economic, and political 
activities. Each of these techniques will be a focus, from time to time, for covert 
action. 1 

Covert action practiced by the United States shares its cultural heritage 
with intelligence. A scant few decades ago, nations would tacitly concede, but 
rarely admit, the common practice of international intelligence gathering — of 
spying on other nations. The United States was no exception. 

Prior to World War II, the United States was, perhaps, the least experienced 
spy master of the developed nations. 2 U.S. intelligence activities had been a 
desultory lot, sometimes favored, sometimes vilified, rarely admitted and 
always in jeopardy of extinction. Yet, at the end of World War II, we not only 
planned to continue into peacetime the intelligence institutions conceived in 
war, we also codified and published the intent. More recently, we undertook a 
similar catharsis with covert action. 

American Candor 

The National Security Act of 1947 was a mold for much of contemporary 
U.S. Government intelligence practice. A legislative behemoth originally 
devoted to overhauling the military establishment, the draft Act was seized 
upon as a handy tool by which to create the National Security Council, a 
Director of Central Intelligence, and the Central Intelligence Agency. Each is 
an institution important enough, and certainly visible enough, to obscure what 
may be the most significant aspect of the Act. By this peacetime legislation, the 
United States officially and publicly recognized intelligence gathering as a 
legitimate foreign policy process. 3 

The Act was eloquent testimony to the belated acceptance by the United 
States of international intelligence gathering that included even reading other 
people's mail. 4 Perhaps even more significant, however, was the world 
reaction — or lack thereof. Global ennui eloquently testified to international 
acceptance of intelligence activities. 5 

The 1947 Act did more, however. Just as the Act acknowledged a purpose 
to gather intelligence internationally, it also acknowledged — albeit 
obliquely — an acceptance of the necessity to engage in covert action. In 
understatement worthy of our British heritage, the Act required that the 



M.E. Bowman 



Central Intelligence Agency perform such other functions as the National 
Security Council might direct. 6 

The meaning of that language in the 1947 Act might have been less than 
obvious at its creation, but four decades later it was clarified. By that point in 
history, it was probably unnecessary to clarify the fact that the U.S. engages in 
international covert action, but the clarification was, nevertheless, instructive. 
In 1991, in an era when the sovereignty of developing nations was at its 
emotional apex, the Congress of the United States once again did something 
that only a secure democracy could dare. Not unlike its 1947 legislative 
admission, Congress publicly confirmed its policy of peacetime covert action by 
amending the U.S. Code to more explicitly acknowledge covert action as U.S. 
policy. 7 

Congress statutorily confirmed an acceptance of covert influence on the 
affairs of other nations. This easily was our most profound statement on U.S. 
willingness to mold other nations to our liking. It was also unusual candor in an 
era when proliferation of new nation-States elevated sovereign emotions to 
new heights. 8 Nevertheless, as with the 1947 legislation, not a ripple disturbed 
the surface of the nation-state system. 

U.S. Covert Action 

Because covert action amounts to interference with sovereign rights, 
nations always seek to distance themselves from the activity. 9 The reason is 
axiomatic — covert actions inherently, and universally, are fractious political 
issues that flaunt a universal need for rules of international behavior. 
Nevertheless, from time to time, all nations find it necessary to cloak official 
processes from public view; certainly, that was never more true than during the 
era of the Cold War. 10 Adversaries and ideology aside, the Cold War interest in 
avoiding nuclear conflict promoted a relatively high tolerance for covert action 
as well as understood "rules" for the genre. "Plausible deniability" was a key 
goal; indeed, in that bipolar world it became rule number one. 11 

Our limited experience with modern covert action originates primarily in 
World War II. 12 Ours is a culture that easily tolerates covert actions as a 
daring-do adjunct to armed combat, but to surreptitiously influence (or 
change) other governments in peacetime is far more difficult for us to 
countenance. Not unlike our history of intelligence gathering, covert action 
has no luster in the United States — we simply don't like secrecy. We like to 
consider ourselves as ingenuous, open, and honest. We prefer to regard 
deviousness and secrecy as the product of evil empires. More importantly, we 



Covert Action the US, Way 



believe strongly in a government of shared political power. Covert action, 
which definitionally restricts participatory activity, seems somehow 
antithetical to these ideals. 

Despite this cultural inhibition, covert action was "writ large" in the political 
environment of the post' War period. The fall of Nazism and the rise of 
communism ushered in an era of political tension, paranoia, economic 
distress — and nuclear terror. Covert actions seemed to be ideally suited to 
accomplish foreign policy goals without unacceptable risk of rekindling military 
conflict. Prodded by Cold War fears, the number of covert actions multiplied. 

Communist insurgencies and communist-inspired political subversion had 
become ubiquitous reality during the tedious process of rebuilding, or building 
anew, from a war-ravaged world. Polarized political views, coupled with a 
tenuous peace, made traditional foreign policy slow and cumbersome in a 
fast-developing world. By contrast, covert action beckoned policy makers with 
a promise of swift, high-impact alternatives ideally suited for post-war 
containment policy. The result, observed Henry Kissinger, is that all Presidents 
since World War II "have felt a need for covert operations in the gray area 
between formal diplomacy and military intervention." 13 

Shielding the United States as well as the President from public scrutiny, 14 
even marginal success served to breed new covert actions. Knowledge of covert 
operations became so commonplace that the United States was accused of 
being responsible for nearly all internal difficulties worldwide. 15 Not 
surprisingly, the American political consensus of the war years that had 
insulated intelligence and covert action from close scrutiny did not survive the 
advent of peace. 

Close scrutiny did not occur overnight, but when it started, it became an 
irresistible force. Covert actions begun under the OSS continued through the 
both formative and mature years of the CIA. Then, more plebeian domestic 
concerns related to U.S. intelligence activities focused legislative attention on 
covert activities as well. Our proclivity for participatory democracy prevailed; 
all "secret" foreign policy came up for debate, and covert action was no 
exception. Under the sharp scrutiny of Senator Frank Church, the intelligence 
community suffered the slings and arrows of what many might justifiably 
consider to have been righteous hindsight. 

Post-war domestic abuses of intelligence resources are a matter of history. 
Even so, most observers today will concede that many of the "abuses" are more 
clearly perceived as such when seen through the eyes of the citizen of the 1970s 
than through the eyes of citizens of the 1930s, 40s, or 50s, when the relevant 
activities were initiated. The interim years had elevated personal privacy rights 



M.E. Bowman 



to pedestal heights and sharpened the analysis of Constitutional guarantees 
against government intrusion. As each passing day made it less likely that 
communism would absorb the United States, apocalyptic post-war fears 
receded to focus on more personal concerns. Tolerance for "Big Brother" 
decreased, and government increasingly was put on a tighter leash. 

In this climate, the Church Committee began its well-known probe of 
United States' intelligence activity. It inquired, inter alia, into the scope of U.S. 
covert action, its value, its techniques, and its necessity. 16 It questioned 
whether covert action had become a substitute for decision-making, whether a 
covert capability should be maintained, and, if so, whether it should remain in 
the CIA. 

The Committee pointedly concluded its analysis with the observation that 
covert action was not included in the CIA charter (the National Security Act of 
1947), but conceded that the Act had a savings clause to provide for 
contingencies. Specifically, the Act empowered the CIA to "perform such 
other functions and duties related to intelligence affecting the national security 
as the National Security Council may from time to time direct." 17 Relying on 
this clause, the National Security Council did issue a series of directives 
specifying the CIA's covert mission. 18 Then came the invasion of South Korea. 

As with Germany, World War II's end left Korea divided into spheres of 
influence. The Soviets controlled the North and the United States the South. 
Unlike the European experience, however, both powers withdrew, leaving the 
Koreans to settle their own quarrels. The result was a conflagration that 
threatened bipolar stalemate. In this situation, covert operations seemed 
especially desirable. 

With modest beginnings in Korea, covert operations quickly supplied their 
own justification. By 1953, moderate successes in Korea had prompted the 
authorization of covert operations in forty-eight countries. 19 As covert 
capability matured and expanded, it became necessary to create within the 
CIA the Directorate for Plans (DDP) to absorb and make more efficient the 
covert action capability. 20 This was not merely a matter of efficiency. 
Organizing the DDP reflected concern for the expansive interest shown by the 
Soviet Union in the Third World and a felt need to combat that interest. 

Covert actions of this era were extensive, varied, and expensive — and 
wholly Executive in origin. All were undertaken pursuant to the inherent, 
albeit nebulous, Constitutional authority of the President. There is room, of 
course, for traditional legislative/executive debate over the Constitutional 
authority to authorize covert action, but, at least in that period of our history, it 

5 



Covert Action the US. Way 



is quite likely that Congress wanted no part of the covert operations tar baby. 
Senator Leverett Saltonstall explained Congressional inactivity this way: 

It is not a question of reluctance on the part of CIA officials to speak to us . . . 
it is a question of our reluctance ... to seek information ... on subjects which I 
personally, as a member of Congress and as a citizen, would rather not have. . 



21 



Legislative Initiatives 

Not until 1974 did Congress seriously begin to consider a role for itself in 
covert operations. Up to that time, the only outlet for Congressional concerns 
over covert action had been the traditional briefing process, but the expansive 
growth of covert actions soon proved this to be inadequate. According to one 
of the modern architects of covert action, Clark Clifford, the use of covert 
action had become a primary official activity which simply had "gotten out of 
hand." 22 Congressional remediation, equally traditional, was legislation. 

Frustrated generally by lack of knowledge, 23 and specifically by massive 
covert operations (and expenditures) in Peru, Congress amended the Foreign 
Assistance Act to deny expenditures for covert operations unless, a 
Presidential finding of importance to the national security preceded the 
operation. 24 The Hughes-Ryan Amendment also mandated a reporting 
requirement and increased the number of committees to be informed of covert 
actions. It was, to be sure, watershed legislation, but for many it was simply too 
little too late. In the final analysis, the Amendment was ineffective because it 
lacked teeth; nevertheless, Congress had thrown down a marker. 

Soon thereafter, a long-smoldering conflict between Nicaragua and 
Honduras erupted. Politically, the United States looked with disfavor on the 
Nicaraguan regime and adopted a policy of supporting Honduras, or, more 
accurately, of opposing Nicaragua. U.S. actions in support of Contra guerrillas 
were both overt and covert, each prompting substantial criticism and venting 
emotions not unlike those of the Vietnam era. One result was an amendment 
to the 1983 Defense Appropriations Bill designed to end all aid to the 
Contras. 25 Originally a classified addition to the 1983 Intelligence 
Authorization Act, the Boland Amendment restricted the use of appropriated 
funds to overthrow the Sandinista government and limited CIA covert 
operations to the interdiction of Nicaraguan arms supplies. 

Of course, the Boland Amendment accomplished neither goal. Of little 
more substantive effect than the Hughes-Ryan amendment, yet another spark 



M.E. Bowman 



was required to rekindle Congressional scrutiny and to prompt an oversight 
role. Two were quickly forthcoming. 

The first catalyst was a second legislative "fix," dubbed Boland II. This 
legislation prohibited military or paramilitary support for the Contras by the 
CIA, DoD, "or any other agency or entity involved in intelligence activities." 26 
The net result, according to Bud McFarlane, National Security Advisor, was to 
transfer the responsibility to the National Security Council staff, because "The 
President had made it clear that he wanted a job done." 27 The "job," 
unfortunately, would include an ineptly conceived plan to interrupt commerce 
by mining Nicaraguan harbors. It was a covert action that quickly lost its 
covertness in implementation. 

This "covert" action prompted an international outcry, 28 as well as adverse 
international legal opinion. 29 Worse, however, was the domestic controversy. 
The Nicaraguan mining affair resulted in truly vitriolic debates over covert 
action, with the predictable result of diminishing public acceptance for the 
tactic. 

Kindling even greater consternation, however, was the second spark — the 
Iran^Contra affair. Executive Order 12,333 vested in the CIA exclusive 
jurisdiction over "special activities," a euphemism for covert action, "unless the 
President determines that another agency is more likely to achieve a particular 
objective." 30 At the time of drafting, it was generally assumed that the "other 
agency" would be the Department of Defense, but the vagueness of the 
language permitted the White House itself, through the NSC staff, to engage 
directly in a covert action, with disastrous results. 31 

After this disgrace, covert action acquired something of a pariah status. In 
the wake of "Iran-Contra" and Nicaraguan mining, covert action translated as 
"dirty tricks," somehow antithetical to the "American way." American 
reluctance to countenance either government secrecy or official failure was 
reinforced and the undesirable nature of covert action seemingly confirmed. 32 

The result of national anguish over these "failures," not necessarily wise, not 
necessarily unwise, was new legislation that defined covert action. 33 It was not 
definition that Congress sought, however, but rather a threefold means of 
gaining limited procedural control and limited oversight of covert action. First, 
it sought to gain more timely information from the President concerning 
Executive intent to implement covert actions. Second, Congress intended to 
limit the ability of the President to avoid accountability to Congress with 
"plausible deniability." 34 Finally, Congress decided to opt for a very a limited 
measure of fiscal control over the broad Executive authority to authorize a 
covert action. 



7 



Covert Action the US. Way 



The implementation of these procedures includes oversight authority vested 
in the intelligence committees. Importantly, the legislation prohibits 
authorization of a covert action, or expenditure of appropriated funds for one, 
unless the President first makes a written finding, specifying the action arm of 
government, that the activity is necessary to support identifiable foreign policy 
objectives, and that it is important to the national security. 35 It further requires 
that the intelligence committees be kept fully and currently informed. 36 

Covert Action: The Congressional View 

A commonly accepted, though noninclusive, list of covert actions and, 
presumably, of "special activities" is propaganda, 37 political action, 38 
paramilitary operations, 39 coup d'etat, and intelligence support. 40 Whatever it 
might include, the legislation clearly rejects the definition of "special activities" 
found in Executive Order 12333. 41 The reason for the rejection, however, is 
marginally helpful. 

The drafters intended to exclude the over-broad concept of foreign policy 
interests from their definition of "covert action." The vast reach of foreign 
policy simply makes it necessary to negate that frame of reference. The clear 
intent was to create an imprecise but manageable definition that would limit 
reporting only to a class of activities that the drafters believed should be 
brought to their attention. 

Neither the statute nor the statutory history cogently defines the activities 
included in the concept of events designed to influence political, economic, or 
military conditions abroad. That, however, is inherently rational. An 
excessively rigid statute easily could eliminate altogether any capability for 
covert action by levying conditions that would make secrecy implausible or by 
demanding too much prior definition of operations that require flexibility and 
decision-making in the field. 

Recognizing the "easier said than done" nature of their effort, Congress set 
about to define by exclusion the scope of their interest in covert action. The 
statute, and most of the legislative history, focus on what covert action is not* 2 
To oversimplify, excluded from Congressional oversight are the traditional 
activities of the military, the intelligence community, diplomats and law 
enforcement officers. Remaining to be included, therefore, are covert 
paramilitary operations, propaganda, and covert political activities — and 
whatever the "nontraditional" counterparts to the exempted activities might 
be. 

8 



M.E. Bowman 



The statutory history makes clear that "covert action" is intended to include 
even nonattribu table efforts in support of a noncovert activity. The sine qua 
non of a covert action, however, is not secrecy, whether in whole or in part, but 
rather plausible deniability. If plausible deniability is not viable, or if it is not to 
be claimed, the activity undertaken simply is not a covert action. Therefore, 
even "activities undertaken in secret but where the role of the United States 
will be disclosed or acknowledged once such activities take place are not covert 
actions." 43 

Covert Action in Practice 

The practical problem, however, is more subtle than mere secrecy and 
deniability. Chicken and egg issues are a natural concomitant of covert action. 
Frequently it is impossible logically to differentiate between covert actions and 
exempted activities. Payments for intelligence acquisition may strengthen the 
coffers of dissident groups sufficiently to mount a successful revolution. Is the 
purpose to gain intelligence or to influence events? The two have very different 
legislative consequences. Support given to local intelligence or police 
organizations might have the effect of neutralizing hostile intelligence services, 
but also of gaining valuable intelligence information. Which is the collateral 
effect? Does the potential for an unintended consequence trigger reporting? 44 

Similarly quixotic is the distinction between forceful and non-forceful 
intervention. No longer defined merely by territorial integrity, international 
stability now rests on myriad complex and intangible features. In turn, this 
means that covert action, with its undercurrent of manipulation, easily can tip 
the fine balance of national and international perceptions and fears. A covert 
operation to support paramilitary forces may have the effect of influencing 
political programs; but just as likely, support for political programs may 
promote esteem for dissident paramilitary organizations. The natural effect of 
foreign policy, whether covert or overt, and regardless of the use of force, may 
be lowering the threshold for what will be perceived as unacceptable 
intervention. 

Despite the risks, the United States' experience in this century seems to 
confirm a national self-interest in maintaining a covert action capability. It is as 
true today as ever in history that a covert action adjunct of foreign policy 
remains necessary. It is also true, however, that covert operations come with an 
ever-increasing cost. Inaptly applied, covert action can be a damaging 
instrument. Unfortunately, covert action and plausible deniability can be 
seductive. 



Covert Action the US. Way 



Secrecy gives the covert enterprise a poignant emphasis. Absent the glare of 
sunlight and the public impact of overt force, covert action easily can become a 
beguiling adventure. History indicates that policy makers sometimes find it an 
irresistible temptation to opt for covert action in lieu, rather than in support, of 
foreign policy. 4 Used as a knee-jerk substitute for policy, it is rarely effective; 
more importantly, the failure of a covert option puts the option at risk for the 
future. Used properly, covert actions may serve national and even 
international needs. 

The Balance 

Therein lies the legislative purpose. Although the precise authority for 
covert action is debatable, it is clear that both the Congress and the Executive 
believe it a necessary option. Both presume that legal authority exists to engage 
in covert action and each presumes to have a Constitutionally authorized, if 
not precisely defined, role. 

The legal authorities for covert action were discussed in the Church 
Committee's Final Report, without closure, and continue to be debated today. 
In asserting its current role, Congress legislatively created procedural 
requirements precedent to the Executive authorizing covert action. The 
laudable intent was to ensure coherent policy, but it is a goal that requires 
surgical skill. The reasons for this are threefold. 

1) Secrecy: Although covert action is generally acknowledged to be a 
valuable tool of statecraft, it is a limited tool, wholly dependent on an 
acceptable measure of secrecy. A failure of secrecy risks the foreign policy to 
which the covert action is dedicated, exposes national warts, and, in the 
extreme, may leave only the distressing options of withdrawal or overt military 
intervention. Painful experience demonstrates that secrecy is as perishable as it 
is necessary. The concomitant of secrecy likewise is threefold. 

a) Need to know: To maintain secrecy, it follows that operational 
knowledge must be narrowly restricted. Removing knowledge from the 
effective controls of the Executive, and committing it to the less constrained 
legislature, puts the enterprise and those involved at additional risk. That does 
not mean the risk is unreasonable, merely that it exists. 4 

b) Reasonable scope: Perhaps more important is the barnyard bromide 
that one shouldn't bite off more than one can chew. Covert actions must be of a 
sufficiently limited scope and duration that they can be accomplished within 
the parameters o( secrecy. History demonstrates that overly ambitious 
undertakings are likely to lose their mantle of secrecy. 

10 



M.E. Bowman 



c) Practical benefit: There is a practical side to secrecy as well. Normally, 
secrecy will be required to ensure the safety of persons involved. Not 
infrequently, secrecy is required to preserve the covert option for a repetitive, 
future use. Sometimes it is even useful to take advantage of an opportunity to 
cast another in the role of unscrupulous actor. 47 

2) Plausible deniability: Unlike clandestine operations, which are intended not 
to be known at all, covert operations generally are known, but the national actors 
remain invisible. The reason for this essential feature harkens to concepts of both 
sovereignty and diplomacy. The nation-state system that grew out of the Peace 
of Westphalia (1648) hinges on sovereign inviolability, for lack of which 
international instability historically has been the result. However, nations do 
interfere with the internal affairs of other nations; therefore, a means of 
preserving stability despite interference with sovereign rights is required. 

To lessen the risk of war or political polarization of states, the ability of the 
actor to disclaim responsibility, and of the affected nation to disclaim knowledge, 
is a necessary charade. Without plausible deniability, nations would be forced 
into humiliating political retreat and to curtail, or even sever, diplomatic ties in 
the face of a sovereign affront. At the extremes, even war can result. 

3) Political Judgment: Finally, the most subjective and least manageable 
problem associated with shared Constitutional powers is the exercise of shared 
political judgment. 48 The real question is not whether both the executive and 
the legislative branches of government have a role in foreign policy; rather, it is 
how each may fulfill its perceived role without bringing to fruition the very real 
problem of interfering with the other. 

Legislation is inherently inflexible and slow to be displaced, even when 
national needs change. Executive decision-making capability can be prompted, 
for good or bad, by the exigencies of the moment. Cutting Solomon's baby in 
half, we should expect that legislation affecting covert action, properly 
considered, would (1) slow impulse, but not impede decision-making, with 
procedural rather than substantive requirements; (2) promote executive 
decision-making that takes into account popular will, and, (3) permit the 
Executive to remain sufficiently flexible to meet changing or novel 
circumstances. Objectively, the Congressional attempt to control covert 
action seems to meet these goals. 

A Potent Option 

By any standard, covert action is less offensive than overt intervention, but 
it remains politically risky. 49 Such are the sensitivities of nations that today 

11 



Covert Action the US. Way 



even economic or political coercion may be viewed with the same jaundiced 
eye as the world once viewed physical intervention. 50 This will certainly be the 
case as the tensions of the Cold War continue to dissipate. With the world less 
concerned about global conflict, intrusive behavior that once might have been 
tolerated as anemic warfare, or justified as a measure of extra-legal justice, will 
become less acceptable. Nevertheless, just as overt but coercive diplomatic and 
economic activities will be tolerated, even if condemned, so will covert actions. 
There are limits, however, beyond which the American public will not 
countenance covert action and both the executive and legislative branches of 
government must know and respect those limits. The bottom line is that the 
President cannot, without repercussion, engage in a covert action that the 
people would not approve were they to know of the facts and circumstances. The 
Congress, without covert action capabilities itself, has chosen to serve as the 
people's overseer. 

With what is hopefully the wisdom of Solomon, both the executive and 
legislative branches publicly acknowledge a willingness to engage in covert 
action. The world knows, if it cares to know, that the U.S. is willing to interfere 
in the internal affairs of other sovereigns. It knows also that Congressional 
involvement negates the probability, if not the possibility, of a rogue executive. 
Finally, the world also must presume that the American citizenry would, if it 
could be fully informed, approve the covert actions undertaken. 

What makes the United States unique is that we dislike the fundamentals of 
our own policy. We take national pride in promoting self-determination, public 
disclosure, and public diplomacy. We dislike secrecy. We dislike covert action. 

Still, despite our moralistic foundation, we sidestep Westphalian 
sovereignty and acknowledge a commitment to secret foreign policy. Even we 
find it anomalous that we will interfere with the internal affairs of other 
nations. But ours is, after all, a unique culture. 



Notes 



1 . During the 1950's, when covert action was a growing business, it included "political and 
economic actions, propaganda, and paramilitary activities, . . . planned and executed ... to 
conceal the identity of the sponsor or else to permit the sponsor's plausible denial of the action." 
See, e.g. , U.S. SENATE, I FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENT 

Operations With Respect to Intelligence Activities, 94th Cong., 2d Sess. (1976), at 

540 (hereinafter FINAL REPORT). The meaning is largely unchanged today. 

2. The United States is not without a history of intelligence activities. Indeed, it has a rich 
history, but a checkered one, not favored with continuity until recently. See STEPHEN KNOTT, 

Secret and Sanctioned (1996); G.J.A. OToole, Honorable Treachery (1991); 

12 



M.E. Bowman 



Edward Sayle, The Historical Underpinnings of the U.S. Intelligence Community, INT'L J. 

Intelligence and Counterintelligence, Spring 1986, at l. 

3. 50 U.S.C. §401 et seq.; See also M. LOWENTHAL, THE CENTRAL INTELLIGENCE 
AGENCY: ORGANIZATIONAL HISTORY 2 (Congressional Research Service Rep. No. 78-1 68F, 
1978). 

4. See, e.g., Exec. Order No. 12,333, 46 Fed. Reg. 59941 ("United States Intelligence 
Activities," (1981), § 1.11 (b)). That Order, as did its predecessors, publicly assigns to the 
National Security Agency (NSA) responsibility to establish and operate a unified signals 
intelligence operation to control, collect, process, and disseminate signals intelligence for 
national foreign intelligence and counterintelligence; in essence, to read the communications of 
other nations. 

5. See generally M.E. Bowman, Intelligence and International Law, INT'L J. INTELLIGENCE 
AND COUNTERINTELLIGENCE, Fall 1995, at 321. 

6. See infra note 18. 

7. See, e.g., 50 U.S.C. § 413b (1996), which expressly limits covert actions to activities 
which the President finds are necessary to support U.S. foreign policy. 

8. By the 1990s, the numbers of nation-States had again dramatically increased, numbering 
in excess of 180. 

9. The Church Committee also defined covert action as "clandestine activity designed to 
influence foreign governments, events, organizations, or persons in support of U.S. foreign policy 
conducted in such a way that the involvement of the U.S. Government is not apparent." FINAL 
REPORT, supra note 1, at 131. Today "clandestine" refers more precisely to actions not intended 
to be known at all or ones ascribed to other actors. 

10. See generally JOHN PRADOS, PRESIDENT'S SECRET WARS (1986). 

11. Plausible deniability became a household phrase with Iran-Contra, but it did not 
originate then. The term was evolutionary. The Church Committee noted that the term had 
been used to shield the President from knowledge — placing the onus for covert action on 
subordinates. Current legislative history clearly shows that Congress intends that the President 
be unable to use it to avoid accountability to Congress. 

12. But cf. KNOTT, supra note 2. Knott's excellent treatise on covert operations documents 
early use by presidents, but, as with intelligence, no expertise ever really developed until World 
War II, and no singular responsibility for covert operations was assigned until even later. 

13. HENRY KISSINGER, WHITE HOUSE YEARS 658-659 (1979). 

14. President Harry Truman discovered the essential dilemma early. Covert actions required 
oversight, but he knew that he could not plausibly deny activities too openly discussed at official 
councils. His solution, in an era of "containment" foreign policy, was to have covert action 
worked out of a special panel in which he did not participate. See PRADOS, supra note 10, at 79. 
President Dwight Eisenhower, who criticized the Truman foreign policy of containment, quickly 
learned that the problems of control versus security and plausible deniability were colossal. He, 
too, came to rely on a special group to run covert operations. By then, however, covert 
operations had grown so rapidly that secret oversight was more a wish than a reality. See id. at 
144-148. 

15. 1975 testimony of former Secretary of Defense Clark Clifford, cited in FINAL REPORT, 
supra note 1, at 141. 

16. Possibly to capture attention, this scrutiny focused initially on assassination before 
moving to a concentrated focus on the intelligence community and the FBI. See generally AN 

Interim Report of the Select Committee to Study Governmental Operations 
with Respect to Intelligence Activities, Rep. No. 94-465 (1975). The Committee 



13 



Covert Action the US* Way 



denounced ill-advised assassination plots, but not assassination itself. Not until President Jimmy 
Carter banned the technique by Executive Order did it cease to be a potential arrow in the 
national security quiver. 

17. See FINAL REPORT, supra note 1, at 153. The language has been slightly modified by 
subsequent legislation. It now requires that the Director of the Central Intelligence Agency 
"perform such other functions and duties related to intelligence affecting the national security as 
the President or the National Security Council may direct." 50 U.S.C. §403-3 (d) (5). 

18. E.g., NSC-4-A authorized covert psychological operations and NSC 10/2 authorized 
covert political and paramilitary operations. Both were directed primarily at the Soviet Union, 
but, of course, containment policy meant they were geographically unfocused. 

19. Final Report, supra note l, at 145. 

20. For a brief description of this process, see John B. Chomeau, Covert Actions Proper Role in 
U.S. Policy, INT'L J. INTELLIGENCE AND COUNTERINTELLIGENCE, Fall 1988, at 407, 410-411. 
See also PRADOS, supra note 10, at 110-111. 

21. CONG. REC. S. 5292 (daily ed. Apr. 9, 1956) cited in FINAL REPORT, supra note 1, at 149. 

22. See FINAL REPORT, supra note 1, at 153. 

23. The Church Committee noted that covert activities mounted into the hundreds in each 
of the administrations of Presidents Dwight Eisenhower, John Kennedy, and Lyndon Johnson. 

Final Report, supra note l, at 56. 

24. 22 Pub. L. 93-559, 50 U.S.C. §2422 (1974). President Gerald Ford personally opposed 
the personal certification requirement in his recommendations on the legislation. See FINAL 
REPORT, supra note 1 at 58, n. 26. 

25. Pub. L. No. 97-377, §793, 46 Stat. 1865 (1982). 

26. Pub. L. No. 98-473, §8066, 98 Stat. 1935 (1984). See also Pub. L. No. 99-591 
(Department of Defense Appropriations Act, 1987) §9037, 100 Stat. 3341-108; §9045, 100 
Stat. 3341-109 (1986). 

27. REPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRAN-CONTRA 
AFFAIR WITH THE MINORITY VIEW 48-52 (Brinkley and Engelberg eds., 1988). The National 
Security Council was, and is, a policy-advising body, not an "agency or entity involved in 
intelligence activities." 

28. Compare Christopher C. Joyner & Michael A. Grimaldi, The United States and Nicaragua: 
Reflections on the Lawfulness of Contemporary Intervention, 25 VA. J. INT'L L. 62 1 ( 1985) , with John 
N. Moore, The Secret War in Central American and the Future of World Order, 80 AM. J. INT'L L. 
43 (1986). 

29. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4. 

30. Exec. Order No. 12,333, supra note 4, § 1.8(e). 

31. see house select comm. to investigate covert arms transactions with 
Iran and Senate Select Comm. on Secret Military Assistance to Iran and the 
nlcaraguan opposition, report of the congressional committees investigating 

THE IRAN-CONTRA AFFAIR, S. REP. NO. 216, H.R. REP. NO. 433, at 3-1 1 (1987). 

32. E.g., a covert operation in support of Afghanistan guerilla resistance to the 1979 Soviet 
invasion remains a source of criticism. In 1997 the United States was still trying to recover 
Stinger anti-aircraft missiles originally destined to oppose Soviet aircraft but today potentially in 
the hands of terrorists. 

33. 50 U.S.C. § 413b(3); see note 43 infra. 

34. See, e.g., MARK RlEBLING, WEDGE: THE SECRET WAR BETWEEN THE FBI AND CIA 151 
(1994). 

35. 50 U.S.C. §413b(a). 



14 



M.E. Bowman 



36. Id., §413b(b). 

37. The dissemination of nonattributable information or communications designed to affect 
the conditions under which governments act. The substance may be either true or false, or some 
combination of each. 

38. This might consist of advice, money, or physical assistance, with a purpose to encourage 
desired activities or dissuade those considered hostile. 

39. Secret military assistance, usually in the form of training. 

40. E.g., security assistance and intelligence training for the leadership of the "right" faction. 

41. Two respected authorities argue that the statute was intended to supersede the 
definition found in Exec. Order No. 12,333. See W. MICHAEL REISMAN and JAMES BAKER, 
REGULATING COVERT ACTION 123 (1992). The author respectfully disagrees with the breadth 
of that statement. Legislative history indicates that the intent was to regulate by procedure only a 
limited portion of the Order's concept of activities, not to displace legislatively its broad foreign 
policy scope. Reisman and Baker criticize the legislative definition as under-inclusive and write 
more approvingly of the definition in the Hughes-Ryan Amendment. Virtually any definition 
will be subject to criticism as being either under or over-inclusive, but under-inclusion is 
consistent with the limited scope of oversight that Congress then thought appropriate. 

42. Covert action means an activity or activities of the United States Government to 
influence political, economic, or military conditions abroad, where it is intended that the role of 
the United States Government will not be apparent or acknowledged publicly, but does not 
include: 

(1) activities the primary purpose of which is to acquire intelligence, traditional 
counterintelligence activities, traditional activities to improve or maintain the operational 
security of United States Government programs, or administrative activities; 

(2) traditional diplomatic or military activities or routine support to such activities; 

(3) traditional law enforcement activities conducted by United States Government law 
enforcement agencies or routine support to such activities; or 

(4) activities to provide routine support to the overt activities (other than activities 
described in paragraphs (1), (2) or (3) of other United States Government agencies abroad. 
50U.S.C§413b(3). 

43. S. REP. NO. 85, at 42 (1991), reprinted in 1991 U.S.C.C.A.N. 193, 236. Some view this 
language to indicate that Congress meant to treat all Executive actions intended to remain 
secret as covert action. This writer believes that view is grossly over-inclusive. Like the issue of 
unintended consequences, this is a subject deserving of a stand-alone analysis. 

44. An even more difficult question is whether any Executive action that is intended to 
remain secret invokes the statute. Despite the statutory language and its legislative history, this is 
an issue over which reasonable minds can differ and is, more properly, an issue for separate 
analysis. 

45. PRADOS, supra note 10, is a thoughtful study of paramilitary covert actions that, in large 
measure, reflects this concern. 

46. The Hughes-Ryan Amendment, for example, required the CIA to report all covert 
actions to eight congressional committees, four in each house. While it is difficult to argue 
against the propriety of Congress being in the "know," in practical terms this meant sixty 
members, plus staff, all newly exposed to facts, the mere intimation of which can cause a failure 
in foreign policy and, perhaps, the death of the actors. 

47. One historian, writing of General Washington's military espionage apparatus, 
concluded: "It was deemed good propaganda to impute clandestine methods only to the enemy, 



15 



Covert Action the U.S. Way 



thus implying that Britain was unscrupulous and had to use underhanded tactics to succeed." 

Rhodri Jeffreys-Jones, American Espionage: From Secret Service to CIA 9 (1977). 

48. In Little v. Barreme, 2 Cranch 170 (1805), the Supreme Court limited the foreign policy 
powers of the President because the Congress had chosen to speak. During a period of hostilities 
with France, and acting on Presidential orders, the U.S. Navy seized a ship departing a French 
port. Congress, however, had enacted legislation to halt the intercourse with France which 
authorized seizure of ships sailing to a French port. Speaking for the Court, Chief Justice 
Marshall opined that the President's orders would undoubtedly have been lawful had not 
Congress legislated differently. 

49. To illustrate, two covert actions usually cited as successes were Operations "Ajax" in 
Iran (placing the Shah in power) and "Success" in Guatemala (displacement of President 
Arbenz). Both were short-term gains, and neither materially affected the balance of power in the 
Cold War; yet a failure in either might well have forced those nations into the Soviet camp. The 
truth is that national interest suffers if a covert action fails, particularly so if it is the more visible 
paramilitary action. While it is impossible to know the real history of all covert actions, covert 
paramilitary actions do not have a gleaming record of success. 

50. See e.g., Mitrovic, Non-Intervention in the Internal Affairs of States, in PRINCIPLES OF 
INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION 219 (Milan 
Sahoviced., 1972). 



16 



International Law and Naval Operations 



James H. Doyle, Jr. 



IN THE OVER TWO HUNDRED YEARS from American commerce raiding 
in the Revolutionary War through two World Wars, the Korean and 
Vietnam wars, and a host of crises along the way, to the Persian Gulf conflict, 
peacekeeping, and peace enforcement, there has been a continuous evolution 
in the international law that governs naval operations. Equally changed has 
been the role of naval officers in applying oceans law and the rules of naval 
warfare in carrying out the mission of the command. This paper explores that 
evolution and the challenges that commanders and their operational lawyers 
will face in the 21st century. 

The Early Years and Global Wars 

Naval operations have been governed by international law since the early 
days of the Republic. Soon after the Continental Congress authorized fitting 
out armed vessels to disrupt British trade and reinforcement, the Colonies 
established Admiralty and Maritime courts to adjudicate prizes. 1 American 
captains of warships and privateers were admonished to "respect the rights of 
neutrality" and "not to commit any such Violation of the Laws of Nations." 2 
The first Navy Regulations enjoined a commanding officer to protect and 
defend his convoy in peace and war. 3 In the War of 1812, frigate captains 



International Law and Naval Operations 



employed the traditional ruse de guerre in boarding merchant ships to suppress 
trade licensed by the enemy. 4 President Lincoln's blockade of Confederate 
ports satisfied the criterion of effectiveness (ingress or egress dangerous) under 
international law. 5 The 1870 Navy Regulations directed commanders in chief 
to strictly observe the laws of neutrality, whether belligerent or neutral, and to 
comply with the laws of blockade. 6 

For most of the 19th century, sailor-diplomats, in distant waters and with no 
means to consult with Washington, were practicing and shaping international 
law. Commanders combined naval force with diplomacy in dealing with the 
Barbary Powers, negotiating treaties with Algiers and Turkey, and facilitating 
early trade with China. In one of the great historical events of that era, 
Commodore Matthew Perry, acting alone, concluded a treaty in 1854 which 
opened Japan to U.S. trade. This was followed by Commodore Robert W. 
Shufeldt's 1882 treaty opening Korea. But with the advent of the telephone 
cable and worldwide communications, a naval officer's wide latitude to 
determine foreign policy declined, 8 but not necessarily his ability to affect war 
and peace in crisis situations at sea. 

Ashore at the Naval War College, then Captain Charles H. Stockton wrote 
the Naval War Code of 1 900 pursuant to tasking by the Secretary of the Navy. 9 
After a thorough critique by international lawyers, the code, like the Civil War 
Lieber Code regulating land warfare, strongly influenced the codification of the 
law of armed conflict in the Hague Conventions of 1907. Professor John 
Bassett Moore instituted the International Law Studies ("Blue Book") series in 
1901, 10 while Professor George Grafton Wilson from Brown University 
lectured at the War College from 1900 to 1937 and edited over seven thousand 
pages of "Blue Books," "every one of which was intended to provide the naval 
officer at home and alone in foreign ports with precise answers to problems he 
might face." 11 Thus, with the Hague Conventions, Geneva Protocol of 1925, 
London Protocol of 1936, and the various naval treaties and conferences in the 
1930s, the 20th century marked a new partnership of statesmen, naval officers, 
and international lawyers working together to develop rules of conduct that 
govern naval operations. This partnership has continued to this day in the 
variety of conferences and conventions that followed World War II. These 
included the Geneva Conventions of 1949 12 and their Protocols Additional; 13 
the Territorial Sea and Contiguous Zone, High Seas, Fisheries, and 
Continental Shelf Conventions of 1958; 14 the 1972 US/USSR Incidents at Sea 
Agreement; 15 and the 1982 United Nations Convention on the Law of the 
Sea. 16 Naval officers have been active participants in all stages of the 
deliberations and negotiations. 

18 



James H. Doyle, Jr. 



In the actual practice of international law at sea, the global nature of two 
world wars with powerful belligerents as adversaries stressed the customary and 
Hague laws of neutrality, particularly contraband, enemy character and 
blockade, and the rules protecting merchant ships. 17 However, the 
fundamental principles of a balance between necessity, proportionality and 
humanity were reaffirmed at Nuremberg, 18 even as it was obvious that the 
civilian population, and the wounded, sick, shipwrecked, and prisoners of war 
needed additional formal protection. 

The Cold War and Era of Detente 

The post- World War II era began with the ratification of the United 
Nations Charter, whose Articles 51 and 52 recognize the inherent right of 
self-defense and the right to establish regional organizations to deal with the 
maintenance of international peace and security. In peacetime operations at 
sea, the U.S. Navy was guided by both the customary three-mile limit of the 
territorial sea with the right of innocent passage, and the traditional high seas 
freedoms that included routine navigation, fleet exercises, naval patrols, flight 
operations, surveillance, intelligence gathering, and weapon firing, all with due 
regard for the rights and safety of others. But peace was elusive and the Cold 
War period from 1945 to 1990 saw at least ten armed conflicts at sea, albeit 
localized, that involved an application of the laws of naval warfare regarding 
blockade, quarantine, maritime exclusion zone, mining, visit and search, 
convoy protection, and targeting merchant ships and neutrals. 19 

The Navy recognized a need for formal guidance and issued The Law of 
Naval Warfare (NWIP 10-2) in 1955, based exclusively on the Hague and 
Geneva Conventions and the customary law of war. 20 The Navy also 
recognized the need for a cadre of international law specialists within the 
community of naval lawyers, which in 1968 became the Judge Advocate 
General (JAG) Corps. International law, while continually evolving, was 
becoming increasingly complex. No longer could the operational commander 
cope with the myriad of issues involving overseas base agreements, foreign 
claims, and treaty provisions, as well as the peacetime law of the sea and the 
rules of naval warfare, without specialized legal advice. During the 1950s and 
60s, lawyers from the International Law Division of Navy JAG worked closely 
with the Politico-Military Branch of the Office of the Chief of Naval 
Operations to resolve legal issues. Navy lawyers were key players on the 
delegation to the 1958 Geneva Conventions, and the principal adviser on 

19 



International Law and Naval Operations 



national security interests was a vice admiral who was a former Judge Advocate 
General of the Navy. 

Following the failure of the 1960 Conference on the Law of the Sea to reach 
agreement on the breadth of the territorial sea and the contiguous fishing zone, 
technology and the rising demand for ocean resources dramatically intensified 
the race to use the world's oceans. 21 Navy lawyers were soon immersed in 
preparations for another law of the sea conference with an ever-expanding 
community of nations. Emerging and unsettled issues in coastal state 
jurisdiction, fisheries management, economic zone control, high seas rights, 
seabed exploitation, environmental protection, scientific research, and dispute 
settlement had to be reconciled with U.S. security and economic interests. For 
naval operations the critical challenges were to limit the breadth of the 
territorial sea to no greater than twelve miles, ensure passage through 
international straits and archipelagic waters, and maintain traditional high seas 
freedoms, especially in a new exclusive economic zone. The mobility and 
presence of naval forces deployed worldwide were, and still are, a cornerstone 
of U.S. foreign policy — critical to reassuring allies and deterring potential 
enemies, responding in crisis situations, and carrying out treaty obligations. 22 
Navy lawyers participated in all phases of the lengthy negotiations and can 
rightly claim success in satisfying national security imperatives. Even now, they 
are in the forefront of efforts to ratify the 1982 Convention, since the deep 
seabed provisions have been reformed and the U.S. has expressed an intention 
to become a party. 23 

Along with the law of the sea negotiations in this era of detente were 
deliberations on the Protocols Additional to the 1949 Geneva Conventions, 
SALT I, chemical warfare, nuclear testing, and incidents at sea with the Soviet 
Union, all of which raised issues that affected naval operations and required legal 
advice. For example, in the Incidents at Sea negotiations with the Soviet Union, 
a critical issue was whether the U.S. should accede to the Soviet demand that a 
fixed distance limit the approach of ships and aircraft. The Joint Staff convinced 
the Office of the Secretary of Defense (OSD) and the State Department that 
fixed distances would undermine the U.S. position on the freedom and mobility 
of its naval forces on the high seas, be inconsistent with the U.S. position against 
limiting warship access to the Indian Ocean under a "Zone of Peace" proposal, 
interfere with essential intelligence gathering, and generate endless arguments 
over violations of some arbitrary and meaningless fixed distance. 24 Similarly, 
following the 1988 Black Sea "bumping" incident, it was important that the U.S. 
and the Soviet Union hammer out an understanding affirming the customary 
and conventional right of innocent passage. 25 

20 



James H. Doyle, Jr. 



In the aftermath of the Vietnam War, the Department of Defense issued 
instructions requiring not only training in the law of war, but also legal review 
of operational plans, contingency plans, and rules of engagement to ensure 
consistency with applicable domestic and international law, including the law 
of armed conflict. 26 Additionally, new weapon systems and munitions in 
development were to be examined for compliance with law of war obligations. 
In 1979, the Joint Chiefs of Staff consolidated a set of worldwide peacetime 
rules of engagement (ROE) for maritime forces. Operational planners and 
military lawyers in all services convened to discuss law of war issues, and 
courses in operational law were established at the Army and Air Force JAG 
schools, and the Naval Justice School. These seminars and classes were 
invaluable in clarifying misperceptions as to legal versus policy restrictions. 
Navy and Marine Corps lawyers were beginning to be trained in oceans law and 
the law of war. Those assigned to fleet, carrier group, and amphibious 
commands, and fleet marine force elements, who had been primarily 
concerned with the administration of military justice, were now expected to 
render advice in operational law. The culture and requirements were changing 
rapidly. In this regard, operational law for the Navy and Marine Corps 
encompasses both the U.S. domestic legislation and public international law 
that affects naval operations, with special emphasis on oceans law and the rules 
of naval warfare. 27 

The New World Order 

Nineteen hundred eighty-six marked the beginning of a new dimension of 
international law at the Naval War College that future historians may well 
refer to as the "Grunawalt era." Captain Richard J. Qack) Grunawalt, JAGC, U. 
S. Navy (Retired), assumed the prestigious Charles H. Stockton Chair of 
International Law. Grunawalt, a Navy lawyer for twenty-six years, had vast 
experience in international law, serving as Fleet Judge Advocate, U.S. Seventh 
Fleet and the senior adviser to both the joint theater commander in the Pacific 
and the Chief of Naval Operations. With this background and a vision for the 
future, he instituted a number of initiatives that reinvigorated the 
international law program at the War College and put the institution in the 
forefront of the development, debate, and exposition of operational law. 

Oi great significance, Professor Grunawalt wrote The Commander's 
Handbook on the Law of Naval Operations (NWP 9), which was promulgated by 
the Department of the Navy in 1987. 28 The Handbook replaced NWIP 10-2, 
which, although amended several times, was obsolete. The author wisely chose 

21 



International Law and Naval Operations 



to combine in one manual, "The Law of Peacetime Naval Operations," Part I, 
and "The Law of Naval Warfare," Part II. As has been experienced during the 
Cold War and is faced even more frequently today, there is no bright line 
between peace and war. With ethnic conflicts, deep-seated religious 
animosities, humanitarian tragedies, nations in disarray, and regional 
aggressors, a crisis anywhere in the world can turn "peace" into war overnight. 29 
A commander must be prepared to move easily from Part I to Part II of the 
manual with the advice and counsel of his military lawyer. In addition, there 
are areas in the law of naval warfare, like neutrality, that cannot be applied 
without a thorough understanding of the legal divisions of the oceans and 
airspace in Part I. Part I also covers the international status and navigation of 
warships and military aircraft, the protection of persons and property at sea, 
and the safeguarding of U. S. national interests at sea. While the ocean areas 
and navigational rights are based primarily on the 1982 UN Law of the Sea 
Convention, Part I also relies on domestic legislation, general international 
law, and the UN Charter to provide guidance on matters such as asylum, drug 
interdiction with the Coast Guard, and the right of self-defense. Part II, "The 
Law of Naval Warfare," explains the principles and sources of the rules, 
adherence to and enforcement of the law of armed conflict, neutrality, naval 
targeting, conventional weapons, weapons of mass destruction (nuclear, 
chemical, biological), noncombatants, and deception during war. 

Significantly, both Parts I and II provide guidance on the rules of 
engagement, with Article 51 the legal foundation for peacetime application 
and the law of armed conflict the framework for wartime use. In 1981, in 
airspace over international waters in the south central Mediterranean, two 
F-14s from the Nimitz battle group exercised their right of unit self-defense 
when they responded to an attack on them by two Libyan SU-22 fighters. 30 The 
rules of engagement are flexible in the sense that they can be tailored for a 
specific situation. For example, during the Iran-Iraq Tanker War of 1980-1988, 
after the USS Stark was hit by Exocet missiles fired from an Iraqi Mirage F-l, 
the belligerents were warned by Notices to Mariners and Airmen that U.S. 
warships would fire if their aircraft approached U.S. ships in a manner 
indicating hostile intent, unless they provided adequate notification of their 
intentions. 31 But as the later USS Vincennes-lranian Airbus incident 
demonstrated, the most carefully crafted ROE still require the judgment of the 
operational commander on the scene. 32 Rules of engagement may be issued as 
general guidance covering a range of contingencies, or they may be tailored for 
a specific operation. 

22 



James H. Doyle, Jr. 



Part II, "The Law of Naval Warfare," is based on various treaties, 
conventions, and customary law, and includes the Additional Protocols to the 
1949 Geneva Conventions where consistent with U.S. policy. Neutrality under 
the UN Charter is discussed, as is the London Protocol of 1936 on the 
protection of merchant ships. 33 Guidance on the latter considers the practice of 
belligerents during and following World War II. For the benefit of Navy and 
Marine Corps legal officers responsible for advising commanders, there is an 
encyclopedic Annotated Supplement to The Commander s Handbook on the Law 
of Naval Operations, prepared by the Naval War College with the assistance of 
operational law experts from various commands and organizations. It contains 
a section-by-section analysis of the Handbook with a full discussion of the 
concepts and sources of the rules. Volume 64 of the "Blue Book" series 
contains essays by distinguished and respected authorities in international law 
commenting on the manual and addressing the more controversial and 
significant areas of operational law. 34 

Professor Grunawalt explained that the Handbook was to be used by 
operational commanders and staff at all levels of command; that it constituted 
general legal guidance; and that it would enable the commander and staff to 
better understand the legal foundations for orders and their responsibilities 
under domestic and international law in the execution of the mission. The 
Handbook serves as an authoritative demonstration of how the U.S. interprets 
and applies oceans law and the rules of naval warfare, and, hopefully, will 
influence the behavior of other nations. Military manuals and handbooks are 
important both in disseminating operational rules and developing 
international law. 35 The Handbook has been distributed widely to foreign 
governments and their naval leadership. In the short time since publication, it 
has guided the development of naval manuals in a number of allied nations and 
coalition partners. Additionally, international lawyers and naval experts, who 
from 1988 to 1994 prepared the San Remo Manual on International Law 
Applicable to Armed Conflicts at Sea, found the Handbook to be a major source in 
formulating a progressive statement of the law of naval warfare. 36 

For the future, the Joint Law of War Manual is in preparation by a task group 
of Army, Navy, Air Force, Marine Corps, Joint Staff, and Department of 
Defense operational law experts. 37 The sections on the war on land and the war 
in the air and space will replace out-of-date Army and Air Force manuals. The 
section on war at sea will be an overview with the Handbook remaining intact to 
provide more detailed guidance. Joint Chiefs of Staff Publication 3-0, Doctrine 
for Joint Operations, states that "As with all actions of the joint force, targeting 
and attack functions are accomplished in accordance with international law, 

23 



International Law and Naval Operations 



the law of war, and international agreements and conventions, as well as rules 
of engagement approved by the National Command Authorities for the 
particular operation. Military commanders, planners, and legal experts must 
consider the desired end state and political aims when making targeting 
decisions." 38 As the military services train, plan, and conduct joint and 
multinational operations in accordance with the Chairman, Joint Chiefs of 
Staff, Joint Vision 2010, it is entirely necessary and appropriate that there be a 
joint legal manual to guide joint and multinational commanders. 

Reorganization of the Naval War College in 1972 had terminated the 
long-standing International Law Week in which international law scholars met 
with students to discuss subjects in the field related to naval operations. 
Although international law was integrated on a piecemeal basis into various 
naval warfare courses, the study of international law was left without a place in 
the core curricula of the resident courses. This fragmentation and de-emphasis 
of international law also reduced the effectiveness of the Stockton Chair, with 
the result that there was no international law support within the Center for 
Naval Warfare Studies, which provides the College's strategic research and 
war-gaming focus. In early 1988, at a meeting with the President and the Dean 
of the Center for Naval Warfare Studies, Professor Grunawalt proposed that an 
oceans law and policy research activity be established in the Center to support 
the War College, the Judge Advocate General, and the entire Navy in the 
study, instruction, war gaming, and research in international and operational 
law. 39 Following up immediately in a letter to the Chief of Naval Operations, 
endorsing the initiative, the President noted that "the range of international 
law issues currently at play in the Persian Gulf encompasses such diverse yet 
critically important areas of the law of the sea and the law of armed conflict as 
the high seas freedoms of navigation and overflight, innocent passage of the 
territorial sea, transit passage of straits, neutral and belligerent rights, naval 
targeting, mine and counter-mine warfare, the inherent right of self-defense, 
and flag nation authority and responsibility over merchant shipping. Each of 
these oceans law and policy concepts impact upon and are reflected in the rules 
of engagement provided to the operating forces by the National Command 
Authorities. While the situation in the Persian Gulf provides sharp and 
immediate focus to the application of international law in crisis management, 
the role of oceans law and policy in routine peacetime operations, in strategic 
and contingency planning, and in the execution of the Freedom of Navigation 
Program, is no less important." 40 Thus, the Oceans Law and Policy Department 
was born, and Jack Grunawalt accepted the appointment as the first Director 
in July 1989. 

24 



James H. Doyle, Jr. 



With eventual staffing of Navy, Marine Corps, Army, Air Force, and Coast 
Guard officers experienced in operational law, the Oceans Law and Policy 
Department in ten short years has revolutionized the role of the Naval War 
College in operational law. At the tenth annual meeting of the Operational 
Law Workshop and Advisory Board, the many activities of the Department 
were reviewed. The instruction programs on the national level include courses 
in oceans law, the law of armed conflict, and rules of engagement. They are 
taught at the War College, Surface Warfare Officers School, Naval Justice 
School, Submarine School, Naval Strike and Air Warfare Center, Joint 
Targeting School, Coast Guard Prospective Commanding Officers and 
Executive Officers School, Naval and Air Force Academies, Submarine Group 
10, and the Military Sealift Command. Both line officers and lawyers receive 
instruction. Internationally, the courses are taught in a number of countries by 
Grunawalt and his staff — Argentina, Chile, Colombia, Ecuador, Germany, 
Japan, Mexico, Panama, Peru, South Korea, Uruguay, and Venezuela. 
Operational law instruction on a seminar basis is also- provided to operational 
commanders and staffs at the fleet level in the Navy, Marine Corps, and Coast 
Guard. The sessions with the operational commanders and planners are critical 
in fostering understanding, respect, and a spirit of teamwork between the 
commanders and their military lawyers in dealing with the complex and 
evolving challenges in operational law. 

A typical three -day course in operational law covers general principles of 
international law, the U.S. national security organization, law of the sea, 
freedom of navigation operations, protection of persons and property at sea, 
maritime law enforcement, law of armed conflict, weapons and targeting, 
neutrality, blockade, maritime interception operations, and rules of 
engagement. The ROE portion includes lessons learned from operations in 
Libya, Beirut, Grenada, Panama, Somalia, Haiti, Bosnia, the USS Stark and 
Vincennes incidents, Desert Shield and Desert Storm, and the "friendly fire" 
shootdown of the Army Black Hawk helicopter in northern Iraq. In addition, 
UN military operations other than war and noncombatant evacuations are 
analyzed. 

In conjunction with these activities, the Department updates the 
Commander s Handbook and the Annotated Supplement, publishes the "Blue 
Book" series, coordinates the activities of the Stockton Chair, periodically 
holds conferences in operational law, and conducts research into such diverse 
areas as the legal regime for the Straits of Hormuz, Greek-Turkish 
confidence-building, intervention, and Bosnian Implementation Force (IFOR) 
operations. 



25 



International Law and Naval Operations 



With these new initiatives and programs, the Naval War College has 
become the focal point and corporate memory for matters of oceans law and 
policy affecting operations at sea by U.S. and allied navies. With operational 
law firmly established, the War College has the capability to conduct 
long-range planning in the law of the sea and naval warfare, detached from the 
day-to-day legal issues that consume the time and resources of the various 
agencies in Washington and the fleet staffs. The consolidation of the Navy's 
Doctrine Command, Maritime Battle Center, and Concepts Development 
Group and Strategic Studies Group with the Naval War College will greatly 
facilitate the integration of oceans law and policy with command and 
operational doctrine. Integrating doctrine with long-range thinking, teaching, 
war gaming, research, and naval studies will be invaluable in sorting out Navy 
requirements, priorities, and programs, as well as strategy and tactics. 
Operational law should be a part of that process. With staffing and support 
from all the services, constant interaction with the military lawyers in the battle 
groups and expeditionary units, the fleet and theater commands, the Joint 
Staff, and OSD, and the attendance at ocean law conferences convened by 
operational commanders, the War College is a key player in the joint arena. In 
this regard, the College's Operational Law Workshop and Advisory Board 
(another Jack Grunawalt initiative) is important in the oversight of the Oceans 
Law and Policy Department and provides a unique forum for an exchange oi 
fresh ideas. 

In reflecting on the history of international law at the Naval War College, it 
can be said without exaggeration that Professor Jack Grunawalt's legacy as 
Director, Oceans Law and Policy Department, Center for Naval Warfare 
Studies, will equal or surpass the mark made by Professors Charles H. Stockton 
and George Grafton Wilson in the early days of the institution. 

In the actual practice of operational law during the Persian Gulf War, the 
Department of Defense observed that training in the law of war was reflected in 
U.S. operations. Furthermore, adherence to the law of war impeded neither 
coalition planning nor execution. The willingness of commanders to seek legal 
advice at every stage of operational planning ensured respect for the law of war 
throughout Desert Shield and Desert Storm. There were difficult issues that 
had to be dealt with at every echelon of command, e.g., targeting to avoid 
collateral damage and injury to civilians, the use of civilians and hostages as 
human shields, environmental terrorism, ruses and perfidy, treatment and 
repatriation of prisoners of war, war crimes, the conduct of neutral nations, the 
role of the International Committee of the Red Cross and human rights groups, 

26 



James H. Doyle, Jr. 



and responding to disinformation. In a politically charged atmosphere, 
commanders and their lawyers were under constant media scrutiny as they 
planned and carried out joint operations. 41 

Between April 1992 and November 1995, U.S. armed forces participated in 
a wide range of air and naval operations in support of United Nations Security 
Council Resolutions aimed at terminating the ethnic-based conflicts raging 
within the former Yugoslavia. 42 By the time the fighting ended in late 1995, the 
U.S. and its allies had flown more than 109,000 sorties, just slightly less than 
the number flown by Coalition forces during the Persian Gulf War. Navy and 
Marine Corps aircraft were involved in the following operations: 

Provide Promise (2/93-1/96) — providing air cover for air delivery of relief 
supplies; 

Deny Flight (4/93-12/95) — enforcing the ban on military flights over Bosnia 
and Herzegovina; 

Sharp Guard (6/93-6/95) — enforcing the complete embargo on deliveries of 
weapons and military equipment to Yugoslavia; 

Deliberate Force (8/95-9/95) — conducting air strikes against the 
Bosnian-Serb Army and providing air defense suppression, close air support, 
combat air patrol, and search and rescue, supplemented by Tomahawk missiles 
launched from a U.S. Navy Aegis cruiser. 

These military operations in the other-than-war category (MOOTW) 
illuminated complicated issues of law and policy that had to be dealt with by 
commanders and their military lawyers in a political environment in which UN 
and NATO participants held differing views regarding the future of Bosnia and 
its neighbor States. Procedures for coordination and liaison at each level of the 
command chain were required since both the UN and NATO had to consent 
before military force could be applied. Detailed rules of engagement and other 
operational constraints had to be formulated in order to avoid both casualties 
within NATO and UN forces and unnecessary loss of life or damage to property 
within Bosnia itself. U.S. commanders and staff had to take the lead in devising 
the complex and sensitive terms of reference, mission statements, command 
arrangements, rules of engagement, and target selection that are mandatory in 
MOOTW coalition operations that involve a wide variety of aircraft types 
from various nations. The Bosnian air operations were successful in that there 
was an overall lack of significant collateral damage to life and property. 
However, there were instances of an inability to deliver ordnance on specific 
ground targets because of an immediate and serious threat to NATO forces, 
UN peacekeeping forces, or to Bosnian civilians. Furthermore, NATO's ability 
to suppress helicopter flights in the no-fly zone was only partially effective due 

27 



International Law and Naval Operations 



to the political costs of mistakenly shooting down a helicopter with civilians 
aboard or a UN helicopter. The tragic shoot-down of the Black Hawk 
helicopter during this same time period illustrates the importance of effective 
coordination, communications, identification, and deconfliction procedures, 
in addition to detailed ROE. 

In a counterpart to the air operations over Bosnia and pursuant to UN 
Security Council Resolutions, NATO and Western European Union (WEU) 
warships began maritime interception operations (MIO) in the Adriatic Sea to 
monitor compliance with the embargo on goods in and out of Yugoslavia. 43 
After several months of interrogations which determined that violations were 
indeed occurring, the Security Council authorized action by boardings, 
inspections, and diversions under chapters VII and VIII of the UN Charter. 
Enforcement was extended to prohibit all commercial maritime traffic from 
entering the territorial sea of Yugoslavia when it was discovered that 
"contraband" ships were making an end run through the territorial sea to avoid 
enforcement. NATO and WEU forces were then consolidated into one 
operation called Sharp Guard. From 1992 to 1996, Sharp Guard surface ships 
challenged nearly 75,000 merchant ships, boarded and inspected 5,951 at sea, 
and diverted and inspected 1,480 in port. Maritime patrol aircraft flew 7,151 
sorties in support. As a result of these efforts, no ships were reported to have 
broken the embargo or sanctions during the almost four years that the 
operations were in effect. 44 

The critical issues to be sorted out in maritime interception operations are 
command and control, rules of engagement, and communications. The 
Adriatic MIO began in a parallel command structure with NATO and the WEU 
each controlling their respective warships. This structure was similar to the 
Persian Gulf MIO in that the U.S. and the UK each exercised control over their 
own forces, with the added feature that Arab/Islamic nations utilized a lead 
nation concept for controlling their ships. This trifurcated command 
arrangement was developed on an ad hoc basis and required extensive 
coordination. The Coalition Coordination, Communications, and Integration 
Center (C3IC) was used to exchange intelligence and operational information, 
and coordinate enforcement action. In the Adriatic, once Sharp Guard was in 
effect, operational command of NATO and WEU ships was centralized under 
the Commander in Chief, Allied Forces Southern Europe. This was a highly 
effective and ideal structure with NATO ships well trained in NATO 
procedures. However, future MIOs with coalition forces will probably have to 
formulate their own ad hoc command and control structure. 



28 



James H. Doyle, Jr. 



In rules of engagement, the Sharp Guard unified command used NATO 
ROE, which greatly simplified the problem. However, there was a confusion 
factor since French, U.S., and UK ships were in the Adriatic operating under 
their respective national ROE and then would rotate into the MIO and change 
to NATO ROE. But even under the ideal, single NATO ROE, commanders and 
staff still had to sort out issues of interpretation such as what constitutes a 
hostile act or hostile intent, and what kind of disabling fire is authorized. 
Communications connectivity and interoperability have been continuing 
challenges in multinational operations. In Sharp Guard, communications were 
facilitated by common training, language, publications, similar equipment, and 
NATO procedures. For future MIOs, a great deal of prior planning will be 
necessary to resolve technical problems and insure that compatible 
communication equipment is available. 

Maritime interception operations have become an important method of 
enforcing economic sanctions. Legally, they are in a category of their own, but 
have features of blockade (probably pacific blockade), visit and search, 
contraband, and quarantine. Whether the particular MIO is pursuant to a 
Security Council resolution or justified by individual or collective self-defense, 
notification of the terms, conditions, limitations, area affected, and 
enforcement action is required. It is interesting to note that the enforcement 
action often included diversion for inspection in port or just diversion, as well 
as boarding and inspection at sea, rather than detention, capture, or 
confiscation. The San Remo Manual provides for diversion as an alternative to 
visit and search. 45 

The Challenges Ahead 

For the foreseeable future, U.S. naval forces will be deployed worldwide in 
support of national interests. This was emphasized when the Nimitz Carrier 
Battle Group was ordered into the Persian Gulf ahead of schedule in 1997 as a 
warning to Iran and Iraq to stop incursions into the U.S. -enforced "no-fly" zone 
in southern Iraq. 46 As the Chief of Naval Operations has stated, "Our global 
presence insures freedom of navigation in international trade routes and 
supports U.S. efforts to bring excessive maritime claims into compliance with 
the law of the sea." 47 Volume 66 of the "Blue Book" series documents excessive 
claims that affect the territorial sea, international straits, overflight, 
archipelagic sea-lanes passage, and navigation in the exclusive economic 
zone. 48 Many of the actions taken under the U.S. Freedom of Navigation 
Program, including diplomatic efforts and peaceful assertions of the rights and 

29 



International Law and Naval Operations 



freedoms of navigation and overflight recognized in international law, are 
described. The volume also details how international agreements, as well as 
U.S. domestic legislation on the protection of the marine environment and 
marine resources, have the potential, in their application and enforcement, to 
infringe on the exercise of traditional high seas freedoms of navigation and 
overflight. Excessive maritime claims can also hamper military operations in 
international waters and airspace to stem the flow of illegal drugs into the 
United States. In addition to countering excessive maritime claims, the 
challenges ahead affecting naval operations in "peacetime" include protecting 
the sea routes of international trade, particularly straits, insuring access to 
critical oil and gas resources, maintaining access to the high seas for 
telecommunications, upholding the sovereign immunity of warships and other 
public vessels and aircraft, continuing to participate in efforts to protect the 
marine environment and enhance the management of fisheries, and modifying 
naval operational practices to limit sources of pollution from warships. 
Protection of the marine environment is a major issue of concern and cannot 
be compartmentalized. For example, technical solutions and new equipment 
are required to process waste from ships. Continued U.S. leadership in the 
International Maritime Organization is essential. 

In the area of naval warfare, there are factors that must be considered before 
the commander and his lawyer can deal with the individual rules. Much of 
modern international law has been a movement to limit state sovereignty. 
There have been remarkable advances in human rights and the protection of 
the environment as a result of the initiatives and efforts of non-governmental 
organizations (NGOs), thus presaging an increasing role for NGOs in 
international law. 49 Joint Vision 2010 points out that "future leaders at all levels 
of command must understand the interrelationships among military power, 
diplomacy, and economic pressure, as well as the role of the various 
government agencies and branches, and non-governmental actors, in 
achieving our security objectives." 50 In actions under chapter VII of the UN 
Charter, effective participation will most likely be limited to the great powers, 
i.e., States with a resource base and an internal political organization that 
enable the leadership to clarify global interests and, if necessary, mobilize 
sufficient domestic support to enable them to deploy an adequate military 
force. 51 For the U.S., this will mean working through Presidential Decision 
Directive 25 (PDD-25) to ascertain whether the two-tier criteria are met in 
order to permit U.S. involvement in UN peacekeeping operations. 52 Also, 
there are Congressional concerns about involving U.S. forces in UN operations, 
expressed, e.g., in proposed legislation prohibiting U.S. forces from serving 

30 



James H. Doyle, Jr. 



under foreign operational control and restricting the sharing of intelligence 
information. 53 

In what has been termed the third great revolution in history, developments 
in computers and telecommunications have dramatically reduced the effects of 
time and distance. The ability of television to broadcast instantaneous images 
of international crises has created new challenges for diplomats, government 
officials, and military commanders and their lawyers, and a demand for an 
immediate policy and legal response. Enormous pressure is put on the military 
commanders not only because their tactics and casualties are scrutinized 
instantaneously, but also because media reports impact the morale of soldiers, 
sailors, and airmen. 54 

Military Operations Other than War are focused on deterring war and 
promoting peace but, as recent experience indicates, often involve the use or 
threat of force. In such cases, Joint Pub 3-0, Doctrine for Joint Operations, 
directs that military force be applied prudently. "The actions of military 
personnel and units are framed by the disciplined application of force, 
including specific ROE. In operations other than war, ROE will often be more 
restrictive, detailed, and sensitive to political concerns than in war. Moreover, 
these rules may change frequently during operations. Restraints on weaponry, 
tactics, and levels of violence characterize the environment." 55 In future 
MOOTW, achieving a balance between the level of violence necessary to 
accomplish the mission and the force essential to protect our own and friendly 
forces will be a challenge. This balance was reached in Deny Flight and 
Deliberate Force by limiting strikes to air defense sites and only expanding the 
target base on a graduated basis when Serbian forces violated UN conditions. 
To minimize collateral damage, precision-guided munitions comprised more 
than 90 percent of the air-to-ground ordnance delivered by naval aircraft, in 
contrast with less than 2 percent used during the Persian Gulf War. Restraints 
on target selection will sometimes be decided at the political level with UN and 
coalition participation. In Operation Earnest Will (reflagging and protecting 
Kuwati tankers during the Iran-Iraq Tanker War), after the USS Samuel B. 
Roberts hit an Iranian laid mine, the National Command Authority decided 
that the appropriate and proportionate response was to attack Iranian oil 
platforms, attacking Iranian ships only if they fired on U.S. ships. 56 More 
recently, in the Bosnian operation under the Dayton Accords, the former 
Implementation Force (IFOR) commander and his military lawyer had to take a 
strong stand in the political negotiations to get rules of engagement with the 
flexibility to use force commensurate with accomplishing the mission. 57 In the 
area of individual and unit self-defense, a difficult issue will be to define in the 

31 



International Law and Naval Operations 



ROE what constitutes a hostile act or intent in the light of new technology, 
weapons, means of delivery, countermeasures, and tactics so that defensive action 
can be taken in anticipation of an imminent attack in accordance with the 
Commanders Handbook. 58 

In future wars, the "goal is to win as quickly as possible and with as few 
casualties as possible, achieving national objectives and concluding hostilities 
on terms favorable to the United States and its multinational partners." 59 
However, there will still be challenging issues to resolve involving targeting, 
collateral damage, over- the -horizon weapons, protection of merchant ships, 
medical transport, civilian aircraft, noncombatants, 60 the environment, and 
self-defense, especially if the armed conflict is limited in scope and area. The 
mingling of civilians with combatants will present problems in targeting to 
avoid civilian casualties, particularly with the increasing use of "stand-off' 
weapons to minimize exposure to casualties. 61 In the Iraqi Mirage attack on 
USS Stark, the pilot followed standard Iraqi policy on target discrimination by 
firing on the largest radar return believed to be in the Iranian war zone. Iraq 
accepted responsibility for an erroneous attack. 62 In the regime of self-defense 
during the Persian Gulf War, the former Commander of the Naval Forces had 
to resolve convoy escort responsibilities among multinational ships, 
particularly as to whether a convoy commander operating under national rules 
of engagement could respond in self-defense to an attack on a foreign flag ship 
in his convoy. 63 In this regard, it is important to remember that the rules of 
engagement have to be clear and concise for implementation by commanders 
and subordinates who may not have an operational lawyer or access to legal advice. 
In the environmental arena, international outrage at the depredations visited 
upon Kuwait and upon the waters of the Persian Gulf during the Gulf War 
drew renewed attention to the ongoing debate among environmentalists, 
scientists, lawyers, policy makers, and military officials as to whether 
international law was adequate to protect our natural heritage. Volume 69 of 
the "Blue Book" series documents the proceedings of the Symposium on the 
Protection of the Environment during Armed Conflict held in 1995 at the 
Naval War College and attended by national and international government 
officials, legal scholars, scientists, and operational commanders. 64 It is obvious 
that in future armed conflicts, the protection of the environment will be a 
major issue. The Persian Gulf War, Bosnian peacekeeping, maritime 
interception operations, and other events since emergence of the New World 
Order demonstrate that there continue to be more than enough legal issues of 
substance to focus the attention of the commander and his operational lawyer. 
The Commander of U.S. Naval Forces Europe reported that in a twelve- 

32 



James H. Doyle, Jr. 



month period during 1996' 1997, his naval forces participated in thirteen joint 
and combined operations involving peacekeeping, peace enforcement, 
noncombatant evacuations, and humanitarian missions. 65 

The Commander and Operational Lawyer 

The practice of operational law in the Navy and Marine Corps has matured 
significantly since the days of line officers acting alone and a few international 
law specialists at the Washington level grappling with issues of oceans law and 
the rules of naval warfare. Now, there are trained and experienced operational 
lawyers working in the Office of the Secretary of Defense, the Joint Chiefs of 
Staff, the Offices of the Chief of Naval Operations, Commandant of the 
Marine Corps, Judge Advocate General, the Naval War College, and most 
importantly, on the staffs of joint, theater, fleet, battle groups, expeditionary 
units, and other major operational commands. With satellite communications 
and secure radios, these experts can rapidly communicate, share opinions, 
receive guidance, make recommendations, get additional material, and do all 
that is necessary to develop the best legal advice for the commander. Then, 
using the Commanders Handbook, the Joint Chiefs of Staff peacetime rules of 
engagement, the National Command Authorities wartime rules of 
engagement, and policy directives, detailed guidance can be formulated and 
promulgated to subordinate commanders and those tasked to perform the 
mission. In this process, it is important that operational lawyers have the 
latitude to exchange ideas, opinions, and tentative recommendations with 
their counterparts up and down the chain of command, keeping their leaders 
fully apprised of these contacts and sensitive to concerns about premature 
disclosure of options that have not yet been approved either as 
recommendations or directives. In searching for reasoned legal advice, "turf 
considerations" and "not invented here" attitudes are unhelpful, to say the 
least. The best operational lawyers are activists — speaking out, offering advice 
in the planning process, and seeking ways to support the commander in 
carrying out the mission under the law, but mindful that the commander is 
ultimately accountable and must weigh political and policy considerations, 
along with legal, in reaching a decision. In addition, a thorough understanding 
of what the individual ship, aircraft, expeditionary unit, soldier, sailor, marine 
and airman are trained to do is essential in this era of joint and combined 
operations. 

For their part, commanders and operational planners at all levels must have 
an understanding of the fundamental principles of oceans law and the rules of 

33 



International Law and Naval Operations 



naval warfare. They must be able to evaluate the advice of operational lawyers, 
know what questions to ask, and when to listen or not listen. In the worst case, 
a commander who defers entirely to his lawyer may jeopardize the mission. 
Mutual trust and respect between the commander and his lawyer are essential 
in getting the best legal advice. The tone the commander sets with the staff can 
be critical as to the stature of the lawyer. The operational lawyer who is 
expected to routinely and actively participate in the planning and decision 
process can be counted on to render effective legal advice. 

Coping with the complex and changing issues of oceans law and the rules of 
naval warfare in the 21st century requires a team effort by the commander and 
the operational lawyer. The former Commander, Implementation Force and 
Allied Forces, Southern Europe, states that his military lawyer was a key player 
and part of his daily planning and war council team, sitting right next to him, 
actively participating in evaluating options, and offering advice in reaching 
decisions. 66 In a similar vein, the former Commander Naval Forces, Central 
Command, during the Persian Gulf war, observed that he had great rapport 
with his lawyer, who was an active participant on the staff and was invaluable 
in dealing with the legal and policy issues during the war. 67 At the National 
Security Council level, the former Chairman, Joint Chiefs of Staff, observed 
that his Navy lawyer was indispensable in sorting out the legal and policy issues 
involved in the use of force and rules of engagement, and ensuring that the 
Chairman's views on these issues were represented in interagency debates and 
the decision-making process. 68 

With that kind of teamwork, and mutual trust and respect, there is no doubt 
that commanders and operational lawyers, in the Jack Grunawalt tradition, will 
meet the challenges of the 21st century. 



Notes 



1. See Carl Ubbelohde, The Vice- Admiralty Courts and the American 
Revolution (1960). 

2. Letter from American Commissioners in France to Commanders of Armed American 
Vessels (Nov. 21, 1777) in 10 DOCUMENTS OF THE AMERICAN REVOLUTION, 1777, at 1012-13 
(Michael J. Crawford ed., 1996). See letter from American Commissioners in France to French 
and Spanish Courts (Nov. 23, 1777), in id. at 1020-21, justifying the capture of a French ship, 
allegedly carrying Spanish goods from London to Cadiz by an American privateer and explaining 
the role of American prize courts in adjudicating prizes. 

3. Naval Regulations issued by Command of the President, Jan. 25, 1802 (facsimile, U. S. 
Naval Institute, 1970). Previously, on Nov. 28, 1775, the Continental Congress adopted a code 
of naval regulations patterned after the 1749 British regulations governing His Majesty's ships, 
vessels, and forces by sea. See L. H. Bolander, A History of Regulations in the U.S. Navy, 75 NAVAL 
INST. PROC. 1354(1947). 

34 



James H. Doyle, Jr. 



4. See Michael J. Crawford, The Navy's Campaign against the Licensed Trade in the War of 
1812, 46 AM. NEPTUNE 165 (1986). 

5. See James m. Mcpherson, Battle Cry of Freedom: The Civil War Era 385 
(1988). 

6. U.S. NAVY REGULATIONS, 1870, art. 94. See also current U. S. NAVY REGULATIONS, 
1990, art. 0705 ("At all times, commanders shall observe and require their commands to 
observe, the principles of international law. Where necessary to fulfill this responsibility, a 
departure from other provisions of Navy Regulations is authorized.") 

7. See Charles O. Paullin, Diplomatic Negotiations of American Naval 
Officers 1778-1883 (1912). 

8. see david f. long, gold braid and foreign relations, diplomatic 
Activities of u. S. naval Officers, 1798-1883 (1988). 

9. The United States Naval War Code of 1900, reprinted and critiqued in INTERNATIONAL 
LAW DISCUSSIONS, 1903 (Naval War College, 1903). Captain Stockton collaborated with 
Captain Asa Walker in the preparation of the Naval War Code of 1900. 

10. See JOHN B. HATTENDORF ET AL., SAILORS AND SCHOLARS: THE CENTENNIAL 
HISTORY OF THE U.S. NAVAL WAR COLLEGE (1984). 

11. Id. at 56. 

12. 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. 3114; 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; Geneva Convention (III) relative to the Treatment of 
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316; Geneva Convention (IV) relative to the 
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516. 

13. Protocol Additional (I) to the Geneva Conventions of Aug. 12, 1949, and relating to the 
Protection of Victims of International Armed Conflicts, June 8, 1977, and Protocol Additional 
(II) to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims of 
Non-International Armed Conflicts, June 8, 1977, reprinted in DOCUMENTS ON THE LAWS OF 
WAR 389, 449 (Adam Roberts and Richard Guelff eds., 1982). 

14. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606; 
Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312; Convention on Fisheries and 
Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138; 
Convention on the Continental Shelf, Apr. 29, 1958, 17 U.S.T. 471. 

15. Agreement on the Prevention of Incidents On and Over the Sea, May 25, 1972, 
U.S.-U.S.S.R., 26 U.S.T. 1168. 

16. Convention of the Law of the Sea opened for signature Dec. 10, 1982, art. 308, U. N. Doc. 
A/Conf. 62/122, reprinted in 21 I.L.M. 1261-1354. 

17. See W. T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN 
GENERAL AND LIMITED WAR (58 International Law Studies, 1966) ; ROBERT W. TUCKER, THE 
LAW OF WAR AND NEUTRALITY AT SEA (50 International Law Studies, 1955). 

18. The Hostage Case (United States v. List et al.), 11 T.W.C. 1253-54 (1950); See MYRES 
S. MCDOUGAL AND FLORENTINO P. FELICIANO, LAW AND MINIMUM PUBLIC ORDER 525 
(1962). 

19. See George K. Walker, State Practice Following World War 11, 1 945-1 990, in THE LAW OF 
NAVAL WARFARE: TARGETING ENEMY MERCHANT SHIPPING 121 (65 International Law 
Studies, Richard J. Grunawalt ed., 1993). 

20. THE LAW OF NAVAL WARFARE, NWIP 10-2, reprinted in TUCKER, supra note 17, at 
357-422. 



35 



International Law and Naval Operations 



21. See ANN L. HOLLICK, U. S. FOREIGN POLICY AND THE LAW OF THE SEA (1981). 

22 . See DEPT OF DEFENSE, NATIONAL SECURITY AND THE CONVENTION ON THE LAW OF 
THE SEA (2d ed. 1996). 

23. Message from U.S. President transmitting UN Convention on the Law of the Sea and 
Agreement Relating to the Implementation of Part XI, S. TREATY DOC. NO. 103-39, 103d 
Cong., 2d Sess. (1994). 

24. See U.S.-U.S.S.R. Agreement, supra note 15. See also David F. Winkler, When Russia 
Invaded Disneyland, NAVAL INST. PROC, May, 1997, at 77 (overview of Incidents at Sea 
negotiations, Nov. 1970-May 1972). 

25. Joint Statement by the United States and the Soviet Union, with Uniform Interpretation 
of the Rules of International Law Governing Innocent Passage, Sep. 23, 1989, 28 I.L.M. 1444-47 
(1989). 

26. See W. Hays Parks, The Gulf War: A Practitioner's View, 10 DICK. J. INT'L. L. 393 (1992) ; 
J. Ashley Roach, Rules of Engagement, NAVAL WAR C. REV, Jan.-Feb. 1983, at 46. 

27. See Parks, supra note 26, on the roots and evolution of operational law following the 
watershed My Lai massacre during the Vietnam War. 

28. Revised in 1989 as NWP 9A, and further revised and promulgated in 1995 as NWP 
M4M/FMFM M0/COMDTPUB P5800.7. The 1995 edition expands on the treatment of 
neutrality, targeting, and weapons; addresses land mines for the first time; and provides a new 
section on maritime law enforcement and land warfare. 

29. General John M. Shalikashvili, Chairman, Joint Chiefs of Staff, Success Can Breed 
Forgetfulness, WASH. POST, Sep. 28, 1997, at C-4. 

30. See Roach, supra note 26, for a discussion of the peacetime and wartime rules of 
engagement and the exercise of the right of self-defense in the incident. See also Guy R. Phillips, 
Rules of Engagement: A Primer, THE ARMY LAWYER, July 1993, at 4. 

31. See Walker, supra note 19, at 162. 

32. The Chairman, Joint Chiefs of Staff, after thorough investigation, found that the 
commanding officer obeyed the rules of engagement in exercising the right of self-defense. In 
personally briefing Middle East Force major commanders during Earnest Will (reflagging and 
protecting Kuwaiti tankers), Admiral Crowe said, "If the rules of engagement are going to tilt in 
any direction, I want them to tilt toward saving American lives." ADMIRAL WILLIAM J. CROWE, 
JR., THE LINE OF FIRE 208 (1993). 

33. The London Naval Treaty IV, 46 Stat. 2858, 2881-2 (1931), contains the identical rules 
as in the Protocol of 1936. 

34. THE LAW OF NAVAL OPERATIONS (64 International Law Studies, Horace B. 
Robertson, Jr. ed., 1991). 

35. See W. Michael Reisman & William K. Leitzau, Moving International Law from Theory to 
Practice: the Role of Military Manuals in Effectuating the Law of Armed Conflict, in id. at 1. 

36. San Remo Manual on International Law Applicable to Armed Conflicts 

AT SEA (Louise Doswald-Beck ed., 1995) contains sections on general principles, regions of 
operations, basic rules and target discrimination, methods and means of warfare at sea, measures 
short of attack, interception, visit, search, diversion, and capture, and protected persons, 
medical transports, and medical aircraft. Innovations in the Manual include the effect of UN 
Security Council Resolutions, clarifying the concept of military objective, discussing the rules 
applicable to zones, elaborating on military operations in various sea areas, and introducing new 
rules regarding aircraft operations in armed conflict and in the "gray" area between peace and 
war. The second part of the Manual contains an explanation of each paragraph (rule). These 
explanations were authored by Professor Salah El-Din Amer, Louise Doswald-Beck, Vice 



36 



James H. Doyle, Jr. 



Admiral James H. Doyle, Jr., Commander William Fenrick, Christopher Greenwood, Professor 
Wolff Heintschel von Heinegg, Professor (Rear Admiral) Horace B. Robertson, Jr., and Gert-Jan 
F. Van Hegelsom. 

37. Memorandum from Hays Parks, Special Assistant for Law of War Matters, Department 
of the Army, for the Tenth Annual Operational Law Symposium and Advisory Board, Naval 
War College (Feb. 27, 1997) (on file with author). 

38. Doctrine for Joint Operations, Joint Pub 3-0, III— 25 (1995). 

39. Memorandum from Richard J. Grunawalt, Charles H. Stockton Professor of 
International Law, for the Record of the International Law Meeting of 10 Feb. 1988 (Feb. 25, 
1988) (on file with author). 

40. Letter from Rear Admiral Ronald J. Kurth, USN, President, Naval War College, to the 
Chief of Naval Operations (Feb. 11, 1988) (on file with author) . 

41. See U.S. Department of Defense Report to Congress on the Conduct of the Persian Gulf 
War— Appendix on the Role of the Law of War, Apr. 10, 1992, 31 1.L.M. 612 (1992). See also 
Steven Keeva, Lawyers in the War Room, A.B.A. J., Dec. 1991, at 52, and Parks, supra note 26. 

42. See Dean Simmons et al., Air Operations over Bosnia, NAVAL INST. PROC, May 1997, at 
58, for an assessment of the operational lessons learned. 

43. See Richard Zeigler, Ubi Sumus? Quo Vadimus? Charting the Course of Maritime 
Interception Operations, 43 NAVAL L. REV. 1 (1996), for a comprehensive analysis of the 
background, legal justification, conduct of operations, and recommendations for the future 
regarding the maritime interception operations in the Persian Gulf and Red Sea, in the Adriatic 
Sea, and in the Caribbean Sea off Haiti. See also LOIS E. FIELDING, MARITIME INTERCEPTION 
AND U. N. SANCTIONS: RESOLVING ISSUES IN THE PERSIAN GULF WAR, THE CONFLICT IN 
THE FORMER YUGOSLAVIA, AND THE HAITI CRISIS (1997). 

44. Interview with Admiral Thomas J. Lopez, USN, Commander in Chief, Allied Forces, 
Southern Europe, and Commander in Chief, U. S. Naval Forces Europe, in 13 SURFACE SlTREP 
1-5 (Surface Navy Assoc, Aug.-Sep., 1997). 

45. SAN REMO MANUAL, supra note 36 at 196. 

46. U. S. Dispatches Carrier Group to Persian Gulf, WASH. POST, Oct. 4, 1997, at A8. 

47. Admiral Jay L. Johnson, USN, Chief of Naval Operations, Operational Primacy, 22 

Surface Warfare 3, 5 (May-June 1997). 

48. J. Ashley Roach & Robert w. Smith, Excessive maritime Claims (66 

International Law Studies, 1994). 

49. See W. Michael Reisman, Redesigning the United Nations, 1 SINGAPORE J. INT'L. &COMP. 
L. 1 (1997). 

50. Chairman of the Joint Chiefs of Staff, Joint Vision 2010, at l, 28 (1996) . 

51. See Reisman, supra note 49. 

52. See Col. James P. Terry, The Criteria for Intervention: An Evaluation of U. S. Military Policy 
in U. N. Operations, 31 TEX. INT'L. L.J. 101 (1996). 

53. See George K. Walker, United States National Security Law and United Nations 
Peacekeeping or Peacemaking Operations, 29 WAKE FOREST L. REV. 435 (1994); Myron H. 
Nordquist, What Color Helmet?: Reforming Security Council Peacekeeping Mandates, Newport 
Papers No. 12 (Center for Naval Warfare Studies, Aug. 1997). 

54. See Diplomacy and Conflict Resolution in the Information Age, 3 PEACE WATCH Q une 
1997). 

55. Doctrine for Joint Operations, supra note 38, at V-3. 

56. See Crowe, supra note 32, at 187-211. 



37 



International Law and Naval Operations 



57. Conversation with Admiral Leighton Smith, USN (Ret.), former Commander 
International Force (IFOR) and Allied Forces, Southern Europe (Oct. 8, 1997). 

58. NWP 1-14M, supra note 28, at 4.3.2.1 

59. Doctrine for Joint Operations, supra note 38, at 1-2. 

60. See Louise Doswald-Beck, Vessels, Aircraft and Persons Entitled to Protection During 
Armed Conflict at Sea, 1994 BRIT. Y.B. INT'L L. 211, in which a Senior Legal Adviser, 
International Committee of the Red Cross, analyzes the state of the law and makes 
recommendations for improvement. 

61. See W. Michael Reisman, The Lessons ofQana, 22 YALE J. INT'L L. 381 (1997) (analysis 
of Israeli artillery fire on a UN compound containing civilians and the right of self-defense). See 
also Horace B. Robertson, Jr., Modem Technology and the Law of Armed Conflict at Sea, in THE 
LAW OF NAVAL OPERATIONS, supra note 34, at 362-83, for a selective review of some of the 
new technology weapon systems, e.g., Tomahawk and Harpoon cruise missiles, Captor mines, 
directed energy devices, and depleted uranium ammunition, that are not unlawful per se, but can 
be employed in such a way as to make their use unlawful. 

62. See 26 I.L.M. 1427-28 (1987). 

63. Conversation with Admiral Stanley Arthur, USN (Ret.), former Commander, U.S. 
Central Command, Commander Seventh Fleet, and Vice Chief of Naval Operations (Oct. 9, 
1997). 

64. See PROTECTION OF THE ENVIRONMENT DURING ARMED CONFLICT (69 International 
Law Studies, Richard Grunawalt et al. eds., 1996). 

65. Lopez, supra note 44. 

66. Smith, supra note 57. 

67. Arthur, supra note 63. 

68. Conversation with Admiral William J. Crowe, USN (Ret.), former Chairman, Joint 
Chiefs of Staff, Commander in Chief Pacific Forces, and Commander Allied Forces, Southern 
Europe (Oct. 18, 1997). 



38 



The Law of War 

in 

Historical Perspective 



Leslie C. Green 



I FIRST GOT TO KNOW JACK GRUNAWALT when I participated in some 
of the symposia he organized at the Naval War College. I soon realised that 
he was a great organizer, full of enthusiasm, and possessed of a warm 
personality. In my two years as Stockton Professor of International Law at the 
College, I have come to value him as a colleague and friend — and almost as the 
father of a small family of fellow workers. 

As a former British Army officer with a somewhat restricted knowledge of 
maritime law, I had some fears associated with being in an Oceans Law and 
Policy Department. But Jack made me welcome and integrated me into his 
team. It did not take me long to realise that here was a man with catholic 
interests willing to listen to another's views, even though they might be radical 
and perhaps even "revolutionary." Discussing one's views with him would 
often result in a modification of one's radicalism, and certainly a clarification of 
doubt. It soon became clear that Jack's views and interests were wide in the 
extreme, and he was obviously prepared to share them. 

Having heard Jack lecture and seen his rapport with a class of officers from a 
variety of commands and countries, I soon recognised that he is a born teacher. 



The Law of War 



Jack is also very modest. Soon after I joined the College, he told me that he did 
not consider himself a true professor since he had never held an academic 
appointment. I reminded him that he held a professorial appointment at a 
recognized and highly respected institute of specialized and higher learning and 
that having watched him in action, I know that he is more than adequately 
entitled to be addressed as Professor. 

It is with great delight that I find myself among those of his amid 
contributing to this Liber Amicorum in honour of Jack Grunawalt. 

It has often been claimed that modern international law is Eurocentric in 
character. This somewhat chauvinistic attitude is frequently based on 
comments in the works of the "fathers" of international law, many of whom 
were Christian monks. 1 It is a view strengthened by pointing out that " [t] he era 
of the independent territorial State began in earnest with the Treaty of 
Westphalia in 1648, which ended the Thirty Years' War and the political 
hegemony asserted by the Roman Catholic Church." 2 Such an attitude, 
however, tends to minimize the significance of the system that prevailed in 
ancient and medieval times. From earliest times it had been recognized that 
some restraints were necessary during armed conflict. Thus, we find numerous 
references in the Old Testament wherein God imposes limitations on the 
warlike activities of the Israelites. It is true that the Israelites were frequently 
enjoined to slaughter all the inhabitants of the cities they captured, 3 but this 
was only when the war was waged at the direct instruction of God and normally 
against heathens who rejected Him; to show mercy to the enemy would 
constitute a sin against the Lord. 4 The Prophets tell us that in other wars the 
victorious Israelites made the inhabitants of conquered territories slaves unless 
they paid tribute. 5 If peace was not accepted upon defeat, the males were to be 
slain, while women and children were to be spared, but made slaves. The rabbis 
modified this so that their status became that of servants rather than slaves. 

Prisoners of war were to be treated humanely and not slain, as Elisha 
informed his king when asked if he might kill them. 6 In the days of the kingdom, 
this was the common practice, for "if thine enemy be hungry, give him bread to 
eat; and if he be thirsty, give him water to drink." 7 Not only were the innocent 
to be protected, but precautions were also to be taken not to harm the local 
fauna and flora, subject to the needs of military necessity. Thus, soldiers were 
told not to destroy trees or fruit, other than that which was required for food or 
the building of defenses. 8 Josephus 9 interpreted this to mean that the land was 
not to be set on fire nor beasts of burden slaughtered. 10 In fact, commenting on 

40 



Leslie C. Green 



Jewish behavior during conflict in biblical times, one commentator has 
remarked: 

The rabbis 11 softened the impact of much of the old law through 
reinterpretation or imaginative explanation. Due to this it seems that the 
Israelites were indeed a "merciful" people when compared with their neighbours, 
such as the Assyrians. Although, as in any case, exceptions and violations to 
regulations occurred, on the whole, the Israelite warriors conducted themselves 
in a disciplined, restricted manner in accordance with rules and regulations 
derived from divine inspiration. 12 

It must be borne in mind, however, that, for the main part, the penalty for 
disregarding the imprecations concerning conduct in combat were punishable 
only by religious, that is to say divine, sanction. 

The Israelites were not the only ancient people to consider it necessary to 
impose some measure of control on their warlike activities. Sun Tzu 
maintained that in war one should only attack the enemy armies, for "the worst 
policy is to attack cities. Attack cities only when there is no alternative." 13 As 
early as the seventeenth century B.C., the Chinese, when resorting to war, 
limited their activities by a conscious application of principles of chivalry. 14 
This may be seen in the refusal of the Duke of Sung's minister of war to attack 
an unready enemy, while it was "deemed unchivalrous among Chinese chariot 
aristocrats [to take] advantage of a fleeing enemy who was having trouble with 
his chariot (he might even be assisted), [to] injure a ruler, [or to] attack an 
enemy state when it was mourning a ruler or was divided by internal troubles." 

The sacred writings of ancient India equally sought to introduce some 
measure of humanitarianism. The Mahabharata} 5 states that "a king should 
never do such an injury to his foe as would rankle the latter's heart, no sleeping 
enemy should be attacked, and with death our enmity is terminated." 16 The 
Laws of Manu, promulgated at approximately the same period, postulate that: 

when the king fights his foes in battle, let him not strike with weapons concealed, 
nor with barbed, poisoned, or the points of which are blazed with fire. . . . These 
are the weapons of the wicked. 17 

Moreover, it was generally recognized that proportionality between the 
combatants was a requirement, so that elephants should be used only against 
elephants, in the same way as foot soldiers would fight against foot soldiers. 18 
Similarly, the Ramayana 19 condemned weapons which could "destroy the entire 
race of the enemy, including those which could not bear arms . . . because such 

41 



The Law of War 



destruction en masse was forbidden by the ancient laws of war, even though 
[the enemy] was fighting an unjust war with an unrighteous objective." 20 The 
Mahabharata, too, forbade the use of "hyperdestructive" weapons, since these 
were "not even moral, let alone in conformity with religion or the recognized 
rules of warfare." 21 

In ancient Greece, among the city States: 

[T]emples and priests and embassies were considered inviolable. . . . Mercy . . . 
was shown to helpless captives. Prisoners were ransomed and exchanged. 
Safe-conducts were granted and respected. Truces and armistices were 
established and, for the most part, faithfully observed. . . . Burial of the dead was 
permitted; and graves were unmolested. It was considered wrong and impious to 
cut off the enemy's water supply, or to make use of poisoned weapons. 22 
Treacherous stratagems of every description were condemned as being contrary 
to civilized warfare. 23 

In so far as Rome was concerned, practices: 

[V] aried according as their wars were commenced to exact vengeance for gross 
violations of international law, or for deliberate acts o{ treachery. Their warlike 
usages varied also according as their adversaries were regular enemies ... or 
uncivilized barbarians and bands of pirates and marauders. . . . [T]he belligerent 
operations of Rome, from the point of view of introducing various mitigations in 
the field, and adopting a milder policy after victory, are distinctly of a progressive 
character. They were more regular and disciplined than those of any other 
ancient nation. . . . The ius belli imposed restrictions on barbarism, and 
condemned all acts of treachery. . . . [Livy tells us] there were laws of war as well 
as peace, and the Romans had learnt to put them into practice not less justly than 
bravely. . . . The Romans [says Cicero 24 ] refuse to countenance a criminal 
attempt made on the life of even a foreign aggressor. 25 

The rules of war in both Greece and Rome were, indeed: 

[Applicable only to civilized sovereign States, properly organized, and enjoying 
a regular constitution; and not to conglomerations of individuals living together 
in an irregular and precarious association. Rome did not regard as being within 
the comity of nations such fortuitous gatherings of people, but only those who 
were organized on a civilized basis, and governed with a view to the general good, 
by a properly constructed system of law. . . . Hence barbarians, savage tribes, 
bands of robbers and pirates, and the like were debarred from the benefits and 
relaxations established by international law and custom. . . . [A]s to the general 
practice of war in Hellas, we find remarkable oscillations of warlike policy. Brutal 

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Leslie C. Green 



treatment and noble generous conduct are manifested at the same epoch, in the 
same war, and apparently under similar circumstances. At times we hear of 
proceedings which testify to the intellectual and artistic temperament of the 
Greeks; at other times, we read narratives which emphasize the fundamental 
cruelty and disregard of human claims prevalent among the ancient races when 
at war with each other. In Homer . . . hostilities for the most part assumed the 
form of indiscriminate brigandage, and were but rarely conducted with a view to 
achieving regular conquests, and extending the territory of the victorious 
community. Extermination rather than subjection of the enemy was the usual 
practice. . . . Sometimes prisoners were sacrificed to the gods, corpses mutilated, 
and mercy refused to children, and to the old and sickly. On the other hand, acts 
of mercy and nobility were frequent. . . . The adoption of certain, cowardly, 
inhuman practices . . . was condemned. ... In reference to the conduct of war in 
Greece, it is important to remember that it was between small States, whose 
subjects were to an extraordinary degree animated by patriotism and devotion to 
their mother-country, that each individual was much more affected by hostilities 
than are the cities of the large modern States, that every individual was a 
soldier-politician who saw his home, his life, his family, his gods at stake, and, 
finally, that he regarded each and every subject of the opposing State as his 
personal adversary. 26 

It has been pointed out that the situation in ancient Greece appears to have 
changed somewhat after Homer's time and that by the fifth century B.C., both 
Euripides 27 and Thucydides 28 were able to write of the "common customs 
(koina nomima) of the Hellenes," which, in regard to the law of war, may be 
summarized as follows: 

1 . The state of war should be officially declared before commencing 
hostilities against an appropriate foe; sworn treaties and alliances should be 
regarded as binding. 

2. Hostilities are sometimes inappropriate; sacred truces, especially 
those declared for the celebration of the Olympic games, should be observed. 

3. Hostilities against certain persons and in certain places are 
inappropriate; the inviolability of sacred places and persons under protection of 
the gods, especially heralds and suppliants, should be respected. 

4. Erecting a battlefield trophy indicates victory; such trophies 
should be respected. 

5. After a battle it is right to return enemy dead when asked; to 
request the return of one's dead is tantamount to admitting defeat. 

6. A battle is properly prefaced by a ritual challenge and acceptance 
of the challenge. 

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The Law of War 



7. Prisoners of war should be offered for ransom rather than being 
summarily executed or mutilated. 

8. Punishment of surrendered opponents should be restrained. 

9. War is an affair of warriors, thus noncombatants should not be 
primary targets of attack. 

10. Battles should be fought during the usual (summer) campaigning 
season. 

11. Use of nonhoplite 29 arms should be limited. 

12. Pursuit of defeated and retreating opponents should be limited in 
duration. 30 

By the time of the wars with Persia, the Peloponnesian War, and the changes in 
the nature of Greek life, these rules were no longer of general validity. 31 

As to the situation in Rome, and as a commentary upon the effects of its 
practices, it has been suggested that 

[T]he conduct of war [in Rome] was essentially unrestrained. Prisoners could be 
enslaved or massacred; plunder was general; and no distinction was recognized 
between combatants and noncombatants. Classical Latin, indeed, lacked even 
a word for a civilian. The merciless savagery of Roman war in this sense carried 
on into the invasion period of the fifth and sixth centuries. ... In practice 
[, however,] Roman war was not always so savage. But such was the 
understanding of Roman war with which medieval theorists of war worked, and 
they erected helium Romanum in this sense into a category of warfare which 
permitted the indiscriminate slaughter or enslavement of entire populations 
without distinction between combatant and noncombatant status. This was a 
style of warfare appropriate only against a non-Roman enemy, and in the 
Middle Ages this came to mean that Christians ought only employ it against 
pagans. . . ." 32 

In line with the practices described in the Old Testament, similar principles 
applied in the Islamic world. The Caliph Abu Bakr commanded his forces "let 
there be no perfidy, no falsehood in your treaties with the enemy, be faithful to 
all things, proving yourselves upright and noble and maintaining your word and 
promises truly." 33 Similarly, the leading Islamic statement on the law of nations 
written in the ninth century forbids the killing of women, children and the old 
or blind, the crippled and the helplessly insane. 34 Moreover, during combat, 
"Muslims were under legal obligations to respect the rights of non-Muslims, 
both combatants and civilians. . . . [T]he prisoner of war should not be killed, 
but he may be ransomed or set free by grace." 35 However, if it was considered 
that his death would be advantageous to the Muslims, he might be killed, 
unless he converted to Islam. Unlike the Old Testament ban on destruction of 

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Leslie C. Green 



the land and its products, Islam permitted the inundation or burning of a city, 
even though protected persons, including Muslims, might thus be killed. 36 

During the Middle Ages, rules of chivalry applied as between the orders of 
knighthood, although these did not operate to protect the foot soldiers or the 
yeomenry. By the middle of the fifteenth century, a sufficient number of works 
were being written on the rules of chivalry as to make it possible to say that: 

[B]y the 14 th century, medieval Christendom had developed a law of arms, the jus 
militare, well understood and applied by the military and feudal jurisdictions of 
Western Europe. The theoretical bases of that law followed the medieval legal 
and theological theories of the hierarchy of legal systems, namely, the Law of 
God, the eternal law; the law of nature; the jus gentium, its more practical 
counterpart; and human positive law. . . . The jus militare which governed the 
conduct of the members of the honourable profession of arms was considered a 
part of the jus gentium, being part of the customs of those who were professional 
men-at-arms and members of the Orders of chivalry where the standards of 
Christian and military behaviour were meant to meet. . . . The jus militare being 
seen as a part of the jus gentium, the practical legal consequences followed that it 
was a body of rules understood and applied throughout the length and breadth of 
Christendom, then subject to the divided regimes of sacerdotium and imperium, of 
papacy and emperor. The heralds and older knights were considered periti in the 
law of arms, while writers such as . . . Christine de Pisan, a woman writer whose 
work Livre des Fays d'Armes et de Chivalerie (1407) . . . [were] regarded as 
authorities and cited in the jurisdictions where the law of arms was applied. 37 In 
the Councils of Princes, in military and feudal courts, learned canonists argued 
with erudition and skill the complex matters arising out of warfare before the 
experienced knights who composed the military jurisdictions. In cases of 
difficulty, the heralds were consulted as the repositories of learning on the law of 
arms. 

These cases were often concerned with claims to ransom, to booty and spoils, 
rather than with the enforcement of honourable conduct in warfare. ... So far as 
trials of soldiers in enemy allegiance were concerned, we see a universality of 
jurisdiction which is not easy to explain. Doubtless the close nexus of the law of 
arms with the jus gentium went part of the way to explain this. . . . The military 
calling is seen as a jealous and exclusive one, intimately associated with the 
concept of honour. . . . The bearing of arms is so much a matter of honour that 
those who do not bear arms are without honour; it is a matter of honour to be 

allowed to bear arms [W]hat we would today call criminal conduct in warfare 

was seen as a violation of that honour upon which the right to bear arms was 
based. A medieval war crime is a breach of the law of arms, 38 it is more specifically 
an act contra fidem etjus gentium. . . . Honour is the root of the law of arms. Those 
who commit acts of dishonour act contrary to the faith and honour of a knight. 

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The Law of War 



The law of arms controls and regulates acts of warfare by the professional and 
chivalric military classes. We can also discern a universality of jurisdiction to 
entertain such allegations of dishonourable acts in warfare. The law of arms 
being the measure of such honour binds all those who follow the profession of 
arms in Christendom and at all places where Christians perform feats of arms. 
The jus gentium of which the law of arms formed part has given us the legacy of 
universal jurisdiction over war criminality. 39 

As with ancient India, the orders of knighthood condemned the use of 
certain weapons, especially those which were not employed in hand-to-hand 
encounters between the knights themselves, but which enabled a man not of 
noble birth to strike a knight from a distance. In condemnation of such 
weapons, the knights found support from the Church. The second Lateran 
Council in 1139 condemned 40 the use of the arc and crossbow 41 as hateful to 
God, a view coinciding with the concepts of chivalry, 42 which regarded 
weapons that could be fired from a distance by a person not a member of the 
profession of arms and out of the potential reach of the intended victim as a 
disgraceful and improper act. The third Lateran Council reiterated its 
anathemization of these weapons, and in 1500 the Corpus Juris Canonic? 3 
forbade the use of arrows, darts, or catapults, leading Belli to comment that this 
was done "in order to reduce as far as possible the number of engines of 
destruction and death." However, "regard is so far lacking for this rule that 
firearms of a thousand kinds are the most common and popular implements of 
war; as if too few avenues of death had been discovered in the course of 
centuries, had not the generation of our fathers, rivaling God with his 
lightning, invented this means whereby, even at a single discharge, men are 
sent to perdition by the hundreds." 

Both Belli's comment and the ideas underlying the approach of the 
canonists, as well as the concepts of the Peace and Truce of God, have much in 
common with the condemnation by Erasmus of the manner in which the 
medieval knight decked himself for war: 

Do you think Nature would recognize the work of her own hand — the image of 
God? And if any one were to assure her that it were so, would she not break out in 
execrations at the flagitious actions of her favourite creature? Would she not say 
when she saw man thus armed against man, "What new sight do I behold? Hell 

itself must have produced this portentous spectacle I would bid this wretched 

creature behold himself in a mirror, if his eyes were capable o( seeing himself 
when his mind is no more. Nevertheless, thou depraved animal, look at thyself, if 
thou canst; reflect on thyself, thou frantic warrior, if by any means thou mayest 
recover thy lost reason, and be restored to thy pristine nature. Take the looking 

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Leslie C. Green 



glass, and inspect it. How come that threatening crest of plumes upon thy head? 
Did I give thee feathers! Whence that shining helmet? Whence those sharp 
points, which appear like horns of steel? Whence are thy hands and feet 
furnished with sharp prickles? Whence those scales, like the scales offish, upon 
thy body? Whence those brazen teeth? Whence those plates of brass all over 
thee? Whence those deadly weapons of offence? Whence that voice, uttering 
sounds of rage more horrible than the inarticulate noise of the wild beasts? 
Whence the whole form of thy countenance and person distorted by furious 
passions, more than brutal? Whence that thunder and lightning which I perceive 
around thee, at once more frightful than the thunder of heaven, and more 
destructive to man? I formed thee an animal a little lower than the angels, a 
partaker of divinity; how earnest thou to think of transforming thyself into a beast 
so savage, that no beast hereafter can be deemed a beast, if it be compared with 
man, originally the image of God, the Lord of Creation?" 45 

As to the role of the canonists in the development of the law of armed 
conflict, reference should be made to the Peace of God and Truce of God 
movements. It was apparently the violence of the milites raised by feudal lords 
which: 

[F]irst experienced the impetus to restrain violence in the Middle Ages. That 
impetus was the Peace of God movement, whose initial target was precisely the 
bullying milites and those bands of armed men who lived on the edges of 
civilization, preying on settled areas. The Peace of God idea originally appeared 
late in the tenth century; about a generation later came the first appearance of a 
concept generally attached to it in historical interpretation, the Truce of God, 
and a century after that, in 1139, following the ban on crossbows, bows and 
arrows and siege weapons issued by the Second Lateran Council. This last was 
directed principally at mercenaries, who often were organized into fighting units 
around one or the other of these highly specialized and destructive weapons. . . . 
The beginnings of the Peace of God can be identified at the time of the Council 
o( Le Puy in 975 . . . imposing on the milites an oath 'to respect the Church's 
possessions and those of the peasants' — provisions that were ultimately to 
become the core of the idea of noncombatant immunity in late-medieval just war 
tradition. . . . The subsequent idea of the Peace of God . . . gradually diminished 
the protection extended to peasants and their property while making more 
explicit the immunity of ecclesiastical persons and property. ... In the next 
landmark statement of canon law on this subject, that in the thirteenth century 
De Treuga et Pace, peasants, their goods, and their lands had returned to the 
category of those who did not participate in war and thus should not have war 
made against them. Gradually, other non-Churchly categories of persons were 
added to the list of noncombatants, until by the time of Honore Bonet's L'Arbre 
des Batailles in the fourteenth century the listing had come to include all sorts of 

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The Law of War 



secular persons who were noncombatants by virtue of not being knights ... or 
not being physically able to bear arms. . . . Peasants and clergy alike were defined 
in the former way, while such noncombatant groups as women, children, the 
aged, and the infirm belonged to the latter category. ... In the shorter run, the 
effect of the Peace of God was not so much to protect peaceful noncombatants . . ., 
but to mark off who might legitimately resort to arms and for what end. ... [I]n 
the long run, the idea of noncombatant immunity contained within the Peace of 
God developed into a much more universal concept with far-reaching 
implications. This is one of the . . . core ideas around which the jus in bello of just 
war tradition developed, and modern humanitarian law of war and moral 
argument centering on the concept of discrimination are legacies of this slender 

tenth-century beginning While the Peace of God aimed at protecting certain 

kinds of person and their property . . . the Truce of God [beginning with the 
Council of Toulouges in 1027] aimed instead to eradicate the use of arms entirely 
during certain periods [ — namely the Sabbath, and such holy days as Christmas 
and Lent — ]. . . . Still, the Truce of God applied only among Christians, and this 
meant that violence could still be employed by Christians against non-Christians 
during truce periods. In practice this meant that violence could be directed 
against two main groups: infidels, as in the Crusades; and heretics, as in religious 
persecution. . . . How did the ban on crossbows, bows and arrows, and siege 
weapons contribute to [limiting violence] ? ... By the twelfth century the typical 
mercenary belonged to a well-organized band whose leader sold or bartered their 
services as a group and then paid his followers. 46 This was the condottori pattern, 
which reached its zenith in the fifteenth and sixteenth centuries. ... In the 
Middle Ages, what held these bands together . . . was expertise in one or another 
weapon that could be especially telling in the prevailing kind o( warfare. 
Specifically mercenary companies were formed around the possession and skilled 
use of bows and arrows and crossbows, neither of which were employed by 
knights but which could be devastating when used against knights, and siege 
machines, these being so expensive and difficult to transport and requiring so 
much skill to use properly that wealthy nobles preferred not to own their own but 
hire mercenary companies specializing in their use. From this it follows easily that 
the new-style mercenaries could be controlled by constraints placed on the use of 
their weapons. The knightly class in particular had good reason to favor such 
restraints, since there was no glory in falling in battle to an arrow shot by a 
commoner and since siege weapons represented the only significant threat to a 
nobleman seeking security from attack in his castle. . . ." 47 

The feudal knights were fully aware of the existence o{ what they knew as 
the "law of chivalry" or of arms, 48 which regulated their affairs and which was 
enforced by a variety of Courts of Chivalry 49 or specially appointed tribunals. 
Thus, in 1474, representatives of the Hanseatic cities tried Peter of Hagenbach 
at Breisach 50 for administering occupied territories in a fashion "contrary to the 



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Leslie C. Green 



laws of God and of man." His plea that he was only carrying out the orders of his 
prince was rejected and he was executed. 

Since foot soldiers were not regarded as members of the honorable 
profession of arms, the rules of chivalry did not apply to them. However, even 
they were not free to pursue their own fashion of fighting, for this was regulated 
by national codes of arms which could be enforced by commanders exercising 
"rights of justice." Among the earliest of such codes was the "Articles of War" 
promulgated by Richard II in 1385. This forbade, on pain of death, any robbery 
or pillage of a church or an attack on a churchman, as well as "forcing" any 
woman. It also recognized the right of a captor to take his prisoner's parole, 
although: 

[I]f any one shall take a prisoner, as soon as he comes to the army, he shall 
bring him to his captain or master on pain of losing his part [of the captive's 
property] . . .; and that his said captain or master shall bring him to our lord the 
King, constable or marschall, as soon as he well can, ... in order that they may 
examine him concerning news and intelligence of the enemy. . . ." 51 

This indicates that war was no longer construed as a conflict between 
individual and individual, but between organized forces with prisoners no 
longer in a master- and-servant relationship with their captors, but instead, 
considered as the "property" of the ruler under whose auspices the captor was 
fighting. 

Perhaps more significant from our point of view, and foretelling much of the 
present law, were the "Articles and Military Lawes to be Observed in the 
Warres" promulgated by Gustavus Adolphus of Sweden in 1621. 

Art. 85. He that forceth any woman to abuse her, and the matter bee proved, he 
shall die for it. 

Art. 88. No souldier shall set fire upon any Towne or Village in the enemies' 
Land, without he be commanded by his Captain: neither shall any Captain give 
any such command unless he hath first received it from us or our General: who so 
doth the contrary, he shall answer it in the Generals Councell of Warre. . . . 

Art. 92. They that pillage or steal either in our Land or in the enemies, . . . 
without leave, shall be punish'd as for other theft. 

Art. 94. If any man give himselfe to fall upon the pillage before leave be given him 
so to doe, then may any of his Officers kill him. . . . 

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The Law of War 



Art. 96. No man shall presume to pillage any Church or Hospitall, although the 
Strength be taken by assault; except he be first commanded, or that the Souldiers 
and Burgers be fled thereinto and doe harm, from thence; who dares the 
contrary, shall be punished. . . . 

Art. 97. No man shall set fire upon any Hospitall, Church, Schoole, or Mill, or 
spoyle them in any way, except he be commanded; neither shall any tyrannize 
any Churchman, or aged people, men or women, maides or children, unless they 
first take up arms against them, under paine of punishment. . . . 

Art. 98. No souldier shall abuse any Churches, Colledges, Schooles or 
Hospitalls; ... no souldier shall give any disturbance to any person exercising his 
sacred function or Ministery, upon paine of death. 

Art. 113. Our Commanders shall defend the countrey-people and Ploughmen 
that follow their husbandry, and shall suffer none to hinder them in it. 

Art. 116. Whatsoever is not contained in these Articles, and is repugnant to 
Military Discipline, or whereby the miserable and innocent countrey may against 
all right and reason be burdened withall, whatsoever offence finally shall be 
committed against these orders, that shall the severall Commanders make good, 
or see severally punished unlesse themselves will stand bound to give further 
satisfaction. 52 

In 1639 England had a full system of Laws and Ordinances of Warre 53 
regulating the behavior of forces in the field, forbidding, among other things, 
marauding of the countryside, individual acts against the enemy unauthorized 
by a superior, private taking or keeping of booty, or private detention of an 
enemy prisoner. Similar codes existed in Germany and Switzerland. 54 To some 
extent, these codes reflected the principles to be found in various writings on 
military matters and the law of war, including, for example, those of Ayala, De 
Jure et Officiis et Disciplina Militari, 1582; Belli, De Re Militari et Belb Tractatus, 
1663; Gentili, Dejure Belli, 1612; Legnano, De Bello, De Represaliis et De Duello, 
1447; and even Grotius, whose seminal work, De Jure ac Pacis, 1625, is 
frequently treated as if it were the fountainhead of all knowledge on the 
then-existing international law. In the latter work, Grotius emphasizes that war 
was the normal order of the day. All these to some extent reflected earlier 
works devoted to the hoi des Batailles, and nearly all claimed to be declaring the 
law that armies were obliged to follow. In many cases, they were mere 
abstractions based on existing practice, and it is noticeable how much 
agreement there is across the whole spectrum. These principles drawn from 

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Leslie C. Green 



practice and doctrine are expressive of the customs of war and, to a great 
extent, constitute what are now known as the customary law of armed conflict. 
Of the codes it has been said that, combined with the customary rules, they 
form "le meilleur frein pratique pour imposer aux armees le respect d'un modus 
legitimus de mener les guerres." 55 

As has been mentioned, the principles of chivalry were of universal 
application and they frequently confirmed the immunity from attack or 
capture of hospital staff, chaplains, doctors, surgeons or apothecaries. 
However, while Belli, basing himself on the writings of Bartolus in the 
fourteenth century, asserted that during war the "persons of doctors may not be 
seized, and they may not be haled to court or otherwise harassed, [and] 
attendants may not search them for the carrying of arms," 56 there was no 
general recognition of this. To a large extent it depended on the discretion of a 
commander whether medical personnel accompanied his forces and often the 
only one would be his personal physician. However, Gustavus Adolphus had 
four surgeons attached to his regiments and the Armada too carried medical 
personnel, but these only looked after their own. By a decree of Louis XIV of 
1708, a permanent medical service was established "a la suite des armees et 
dans les places de guerre." 57 Even before this, during the siege of Metz in 
1552-3, Francois de Guise had summoned the French surgeon Para "to succour 
the abandoned wounded soldiers of the enemy and to make arrangements for 
their transport back to their army." 58 

By the end of the seventeenth century, occasional agreements were being 
drawn up between rival commanders for mutual respect towards the wounded 
and hospitals. A fairly sophisticated agreement of this kind was entered into 
between the French and English at L'Ecluse in 1759, whereby: 

[H]ospital staff, chaplains, doctors, surgeons and apothecaries were not ... to be 
taken prisoners; and, if they should happen to be apprehended within the lines of 
the enemy, they were to be sent back immediately. The wounded of the enemy 
who should fall into the hands of the opponents were to be cared for. . . . They 
were not to be made prisoner and might stay in hospital safely under guard. 
Surgeons and servants might be sent to them under the general's passport " 59 

Some twenty years later, in 1780, Peyrilhe proposed international 
recognition of the principle that the wounded should not be made prisoners of 
war nor enter into the balance of exchanges. 60 However, it was not until after 
the experiences of Florence Nightingale in the Crimea and the publication of 
Henri Dunant's Souvenir de Solferino in 1862, reporting on the horrors he had 
witnessed at that battle, that Peyrilhe's proposal came to fruition, with the 

51 



The Law of War 



establishment of the International Committee of the Red Cross in 1863 61 and 
the adoption in 1864 of the first Geneva Convention for the Amelioration of 
the Condition of the Wounded of Armies in the Field. 62 

Apart from arrangements and developments of this kind, other customs 
were evolving. During the Hundred Years War, guerre mortale, war to the 
death, was distinguished from bellum hostile, a war between Christian princes 
when prisoners could still ransom themselves, guerre guerriable, fought in 
accordance with the feudal rules of chivalry, and the truce, which included a 
temporary cessation of hostilities during which the wounded and dead might be 
collected, with the resumption of hostilities following a truce considered a 
continuation of an ongoing conflict, rather than the opening of a new one. 
Each had its own rules, but they were rules of honor. 

In medieval and later European wars, the capture of cities was of major 
importance and could be effected by surrender or siege and assault. If by 
agreement, the inhabitants were treated in accordance with its terms, but if by 
assault, there were no legal restrictions, although churchmen, women and 
children were frequently spared. Siege required peculiar weapons, both 
offensive and defensive, 63 but as sieges became less frequent and these weapons 
of less value, they tended to fall into desuetude and came to be considered 
illegal, 64 only to be replaced by weapons more suited to the newer methods of 
warfare. 

These developments were in line with others which had ensued by the time 
of the 1648 Treaty of Westphalia terminating the Thirty Years War. Members 
of fighting units were now mustered in national armies and war was no longer a 
matter of personal relations between princely commanders, with the individual 
soldier entering into a personal contract with his commander — although there 
are still vestiges within national armies of troops being raised by a particular 
nobleman 65 — and the individual captor no longer had any rights over his 
captive. War was now a matter between sovereigns, and for a legally recognized 
armed conflict to exist there had to be a hostile contention between States by 
means of organized armed forces under a proper disciplinary system. 66 At the 
same time, the old distinction between just and unjust wars 67 had disappeared, 
and it had become accepted that any war conducted by a Christian prince was 
clearly just, 68 although both Suarez and Vitoria had reservations concerning 
Spanish claims to the colonization of the new world. 69 

It was not until the American Civil War that there was the first attempt to 
produce a modern code for the conduct of armed forces in the field. Professor 
Francis Lieber of Columbia College drew up what became, by order of 
President Lincoln, Instructions for the Government of Armies of the US in the 

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Leslie C. Green 



Field. 70 These were so consistent with what were generally accepted practices 
that they formed the basis for similar codes in Prussia, 1870; The Netherlands, 
1871; France, 1877; Russia, 1877 and 1904; Serbia, 1878; Argentina, 1881; 
Great Britain, 1883 and 1904; and Spain, 1893. 71 By the Instructions: 

[M]ilitary necessity does not admit of cruelty — that is, the infliction of suffering 
for the sake of suffering or revenge . . . the unarmed citizen is to be spared in 
person, property, and honor as much as the exigencies of war will admit . . . 

protection of the inoffensive citizen of the hostile state is the rule The United 

States acknowledge and protect, in hostile countries occupied by them, religion 
and morality; strictly private property; the persons of the inhabitants, especially 
those of women; and the sacredness of domestic relations. Offenses to the 

contrary shall be rigorously punished All wanton violence committed against 

persons in the invaded country ... all robbery ... or sacking, even after taking a 
place by main force, all rape, wounding, maiming or killing of such inhabitants 
are prohibited under the penalty of death. . . . Crimes punishable by all penal 
codes, such as arson, murder, maiming, assaults, highway robbery, theft, 
burglary, fraud, forgery, and rape, if committed by an American soldier in a 
hostile country against its inhabitants, are not only punishable as at home, but in 
all cases in which death is not inflicted, the severer punishment shall be 
preferred." 72 

Despite the number of countries adopting similar codes, no agreed 
international document acknowledging this existed, although it was generally 
accepted that these postulates constituted principles amounting to 
international customary law and, to the extent that they were not expressly 
rejected by any State, especially a major military power, nor overruled by any 
treaty, they are as obligatory as any other rules of international law. 

The first international agreement to be generally accepted came at the end 
of the Crimean War with the adoption of the Declaration of Paris, 1856. 73 This 
was confined to maritime warfare, forbidding the issue of letters of marque, 
stating that a blockade was only legal if effective, and granting immunity from 
capture to enemy goods on neutral ships and neutral goods on enemy ships, 
unless they constituted contraband. Of more general significance was the 1864 
Geneva Convention on wounded in the field, already mentioned, which 
recognized the distinctiveness and immunity of the Red Cross and of personnel 
wearing this insignia. This Convention was amended and revised in a series of 
Geneva Conferences extending from 1886 to 1977, with the Conventions of 
1949, as added to by the 1977 Protocols, constituting the current body of 
humanitarian law governing the treatment and protection of those hors de 

53 



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combat, civilians and other noncombatants. This body of law is known as the 
Geneva Law. 74 

In addition to the work done on behalf of those hors de combat, efforts were 
taking place to control the means of conducting warfare. The Russians had 
invented a bullet which exploded on contact, and in 1867 called a conference 
resulting in the Declaration of St. Petersburg. This forbade the use of 
projectiles weighing less than 400 grammes that were explosive or charged with 
fulminating or inflammable substances. The Declaration was of general 
application, applying equally to land and sea warfare. However, its impact was 
limited since it contained an all-participation clause, rendering it inapplicable 
in any war in which any belligerent was not a party. 

Perhaps more significant than the Declaration, was the accompanying 
Preamble, which is important to the present day: 

[T]he progress of civilization should have the effect of alleviating as much as 
possible the calamities of war; the only legitimate objective which states should 
endeavour to accomplish during war is to weaken the military forces o{ the 
enemy; for this purpose it is sufficient to disable the greatest possible number of 
men; this object would be exceeded by the employment of arms which uselessly 
aggravate the sufferings of disabled men, or render their death inevitable; the 
employment of such arms would, therefore, be contrary to the laws of 
humanity. 75 

This document may be considered the precursor of what is now known as the 
Hague Law, concerned with the means and methods of conducting operations 
during armed conflict, which had its origin in a conference called by the Czar in 
1874. The Brussels Protocol aimed at revising "the general usages o{ war, 
whether with the object of defining them with greater precision, or with the 
view of laying down, by a common agreement, certain limits which will 
restrain, as far as possible, the severities of war." To this end a Project of an 
International Declaration concerning the Laws and Customs of War was 
drafted in the hope that "war being thus regulated would involve less suffering, 
would be less liable to those aggravations produced by uncertainty, unforeseen 
events, and the passions created by the struggle; it would tend more surely to 
that which should be its final object, viz., the re-establishment of good 
relations, and a more solid and lasting peace between the belligerent States.'" 

The Project failed for lack of ratifications, but it formed the basis on which 
L'Institut de Droit International drew up its Oxford Manual of the Laws of War 
on Land. According to the Preface: 

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Leslie C. Green 



[I]ndependently of the international laws existing on this subject, there are 
certain principles of justice which guide the public conscience, which are 
manifested even by general customs, but which it would be well to fix and make 
obligatory . . . [but since it] might be premature or at least very difficult [to obtain 
a treaty, the Manual could serve as the basis for national legislation, as being] in 
accord with both the progress of juridical science and the needs of civilized 
armies. Rash and extreme rules will not be found therein. 77 The Institut has not 
sought innovations in drawing up the Manual; it has contented itself with stating 
clearly and codifying the accepted ideas of our age so far as this has appeared 
allowable and practicable." 78 

Appreciating the pressures imposed upon the fighting man and the civilian 
when there is an actual combat, the Institute called upon States to disseminate 
the rules among its entire population. 

The Brussels Project and the Oxford Manual, served to inspire the Czar to 
call a Peace Conference at The Hague in 1899. This conference adopted a 
number of Declarations together with a Convention (which was amended in 
1907) that still constitute the basic law in hello. Recognizing the arrival of a 
potentially new means of attack, the Conference adopted a Declaration against 
the launching of projectiles and explosives from balloons or other similar 
methods. This was replaced in 1907 and remains the only existing 
international agreement on aerial warfare. Further Declarations ban 
projectiles, the only use of which is the diffusion of asphyxiating or deleterious 
gases, as well as the use of bullets which expand or flatten easily in the human 
body. 79 

Most important of the instruments adopted at The Hague is Convention II 
of 1899, now IV of 1907, to which is attached a set of Regulations still 
constituting the basic statement of the law of warfare on land — although its 
principles are now regarded as so fundamental as to amount to customary law 
relevant in all theaters. It is, of course, impossible to cover all eventualities or 
provide for unforeseen developments. For this reason, the parties adopted the 
Martens Clause: 

Until a more complete code of the laws of war has been issued [- and it never 
has-], the High Contracting Parties deem it expedient to declare that, in cases 
not included in the [annexed] Regulations, the inhabitants and the belligerents 
remain under the protection and the rule of the principles of the law of nations, 
as they result from the usages established among civilized peoples, from the laws 
of humanity, and the dictates of the public conscience. 80 

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The Law of War 



This, in somewhat slightly amended form, appears in virtually every subsequent 
agreement concerning humanitarian law in armed conflict. 

At the 1907 Conference, further Conventions, covering the opening of 
hostilities, naval warfare, and the rights and duties of neutrals, were adopted. 81 
Since each of these contains an all-participation clause, the Martens Clause, 
with its clear references to chivalry, humanitarianism and accepted usages, 
assumes increased importance. In addition, to the extent that any of the 
provisions in the Regulations, Conventions or Declarations are now 
considered to be declaratory of, 82 or having developed into, customary law, 
they will be applicable universally and the wording of the Convention will be 
treated as expressing that law. 83 

Hague Convention IV makes no provision for personal liability in the event 
of its breach, but Article 3 provides that "a belligerent party which violates the 
provisions of the Regulations shall, if the case demands, be liable to pay 
compensation. It shall be responsible for all acts committed by persons forming 
part of its armed forces." While this is the first "black letter" acknowledgment 
of the enforceability of any of the laws of war, it is merely an affirmation of the 
general principle relating to the liability of a State for breach of treaty or for its 
tortious wrongs or acts of its subordinates. Prior to the establishment of the 
Nuremberg International Military Tribunal in 1945, 84 the only way of 
proceeding against individual offenders was by national tribunals 85 applying 
customary law, 86 the Regulations, 87 or, in the case of their own personnel, the 
national military or criminal code. 88 Since Nuremberg, nearly all trials 89 for 
offenses against the laws of war have made reference to the principles 
stemming from the judgment of the Nuremberg Tribunal. 90 

Probably, the most important provision of the 1907 Regulations is Article 1 
defining the scope of application of the Regulations — armies, militia units, and 
volunteer forces, provided they are commanded by a person responsible for his 
subordinates, have a fixed distinctive emblem recognizable at a distance, carry 
their arms openly, and conduct their operations in accordance with the laws 
and customs of war. This purview of relevant personnel has been widened 
somewhat by Protocol I of 1977. However, from the point of view of the serving 
soldier, Articles 22 and 23, limiting the means of waging war and the use o{ 
forbidden weapons (although it may well be difficult for him to know whether a 
particular weapon issued to him is in fact forbidden) , as well as forbidding the 
imposition of unnecessary suffering, are those most likely to result in personal 
liability. Even since the adoption of the Protocols, this is still largely the case. 

While no Conference has been called since 1907 to revise or update the 
general laws and customs of war, there have been conventions directed to 

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specific issues, the protection of cultural property in armed conflict, 91 the 
prohibition of military or other hostile use of environmental modification 
techniques, 92 the use of conventional weapons, 93 the production, stockpiling 
and use of chemical weapons, 94 and, most importantly, the conference that led 
to the adoption of Protocols I and II in 1977. 

In so far as maritime warfare is concerned, in addition to the Hague 
Conventions already mentioned, one of which, Convention XII, sought 
unsuccessfully to set up an International Prize Court, the Declaration of 
London of 1909, 95 is important. The Declaration stated that it contained 
"agreed rules" on blockade, contraband, unneutral service, enemy character, 
convoy, and resistance to search. Though unratified, its substance was in 
accord with generally recognized principles and, by and large, was observed 
during World War I; 96 as recently as 1960, an Egyptian Prize Court, citing the 
Declaration, condemned cargo from Israel on a Greek ship seeking to traverse 
the Suez Canal. 97 

Other agreements relating to sea warfare, specifically submarines and 
noxious gases, 98 were adopted in London in 1922, but never came into force, 
although the provisions on submarine warfare were confirmed by the London 
Protocol of 1936. Pursuant to the Protocol, in their operations against 
merchant ships, submarines are required to conform to the same rules as 
surface vessels. 

In particular, except in the case of persistent refusal to stop on being duly 
summoned, or of active resistance to visit or search, a warship, whether surface 
vessel or submarine, may not sink or render incapable of navigation a merchant 
vessel without having first placed passengers, crew and ship's papers in a place of 
safety. For this purpose the ship's boats are not regarded as a place of safety unless 
the safety of the passengers and crew is assured, in the existing sea and weather 
conditions, by the proximity of land, or the presence of another vessel which is in 
a position to take them on board. 99 

World War II practice shows that this rule was more observed in the breach 
than observance. 

Although the parties at The Hague dealt with projectiles from balloons, they 
did not appreciate the potential importance of air warfare. Experience in 
World War I indicated that this was an area which should not be ignored, and 
in 1923 a Conference of Experts drew up agreed Rules of Air Warfare. 100 These 
Rules, however, have never come into force, although they are generally 
regarded as having had sufficient influence for it to be said that "to a great 
extent, they correspond to the customary rules and general principles 

57 



The Law of War 



underlying the conventions on the law of war on land and at sea." 101 This view 
was accepted by the Tokyo District Court when considering the legality of the 
dropping of the atomic bombs on Hiroshima and Nagasaki. 

The Draft Rules of Air Warfare cannot directly be called positive law, since they 
have not become effective as authoritative with regard to air warfare. However, 
international jurists regard the Draft Rules as authoritative with regard to air 
warfare. Some countries regard the substance of the Rules as a standard of action 
by armed forces, and the fundamental provisions of the Draft Rules are 
consistently in conformity with international law regulations, and customs at 
that time [1945]. 102 

While the United States Department of the Air Force does not recognize 
the Code as customary law, it does in fact often draw attention to the 
compatibility of its own rules with those adopted in 1923. 103 Moreover, to the 
extent that these Rules may be declaratory of general customary law, they apply 
to air warfare, and by Protocol I the rules concerning the general protection of 
the civilian population "apply to any land, air or sea warfare which may affect 
the civilian population, individual civilians or civilian objects on land. They 
further apply to all attacks from the sea or from the air against objectives on 
land but do not otherwise affect the rules of international law applicable in 
armed conflict at sea or in the air." 104 

Although the use of poison has been condemned since classical times, 
poison gas was used during World War I. In 1925 the Geneva Protocol for the 
Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and 
of Bacteriological Methods of Warfare was adopted. 105 Many countries 
contend that this does not extend to non-fatal lachrymose or nerve gases, while 
others reserve the right to use it, for example, to suppress riots in 
prisoner-of-war camps. Others state they will only apply it as between 
themselves and belligerents who have also ratified the Protocol, and yet others 
claim the right to use gas against a belligerent who has employed it against their 
forces or those of their allies. While there are reports that gas and other 
chemical weapons were used by Italy against Ethiopia, by Iraq against Kurdish 
rebels, and, perhaps during the Gulf War, it is likely that the Protocol would 
now be regarded as declaratory of customary law, at least so far as first use is 
concerned. Moreover, as recently as 1993, a further Convention sought to 
extend the Protocol so as to ban the manufacture, stockpiling, or use of any 
chemical weapons. 106 

Experience in World War II made it clear that the law as it existed in 1939 
was no longer adequate, even though, as pointed out by the Nuremberg 

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Tribunal, the rules embodied in Hague Convention IV and the annexed 
Regulations "were recognized by all civilized nations and were regarded as 
being declaratory of the laws and customs of war," and as such applicable to all 
belligerents, whether party to that instrument or not. The same view was taken 
of the Geneva Convention of 1929 relating to Prisoners of War, 107 a finding 
that was particularly important since neither the Soviet Union 108 nor Japan was 
a party thereto, although Japan stated it would abide by its provisions; 109 
Germany contended that it did not apply to protect Soviet prisoners. 

Perhaps the most significant development in the law of war to result from 
World War II was the promulgation of the London Charter establishing the 
International Military Tribunal at Nuremberg, 110 with jurisdiction over crimes 
against peace, war crimes and crimes against humanity. To the extent that it 
was merely exercising its jurisdiction in accordance with the Charter, the 
Tribunal was not itself creating any law. While not directly concerned with 
regulating the conduct of hostilities, perhaps the major innovation was the 
holding by the Tribunal that a war of aggression or in breach of treaty was a 
crime, though criticism may be directed at the manner in which the Tribunal 
concluded that the Pact of Paris, 111 whereby the parties renounced war as an 
instrument of national policy, had made resort to "aggressive" war an 
international crime; for the Tribunal, it was "not only an international crime: it 
is the supreme international crime differing only from other war crimes in that 
it contains within itself the accumulated evil of the whole." 112 Surprisingly, 
however, none of the accused found guilty of this "supreme" crime, but not 
additional "lesser" war crimes, was sentenced to death. 

As to war crimes in the traditional sense of that term, the Tribunal added 
little except to hold that status of the accused, even as head of state or 
commander in chief, would not provide immunity from prosecution, and 
confirm that superior orders was not a defense to a war crimes charge, but could 
be pleaded in mitigation. The other innovation was the concept of crimes 
against humanity. This offense related to breaches of the law against civilians, 
even those of the same nationality as the perpetrator. While there has been a 
tendency to assume that this was a major development of a general character, it 
should not be forgotten that, as defined in both the Charter and the Judgment, 
crimes against humanity were committed only if they were part and parcel of 
the war of aggression or of war crimes. Moreover, strictly speaking, once the 
Tribunal was functus officio, this concept should have become of less 
significance. 113 However, with the development of the law concerning human 
rights and humanitarian law, and in an attempt to create a system for 
prosecuting crimes committed in a noninternational conflict, the application 



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The Law of War 



of the concept was widened. Perhaps the most significant statement to this 
effect is to be found in the Interim Report of the Commission established to 
investigate crimes committed during the civil war in Rwanda: 

If the normative content of "crimes against humanity" had remained frozen in its 
Nuremberg form, then it could not possibly apply to the situation in Rwanda . . . 
because there was not a "war" in the classic sense of an inter-State or 
international armed conflict. 

However, the normative content o( "crimes against humanity" — originally 
employed by the Nuremberg tribunal for its own specific purposes in connection 
with the Second World War — has undergone a substantial evolution. . . . 

"[C] rimes against humanity" finds its very origins in "principles of humanity" 
first invoked in the early 1800s by a State to denounce another State's human 
rights violations of its own citizens. Thus, "crimes against humanity" as a 
juridical concept was conceived early on to apply to individuals regardless as to 
whether or not the criminal act was perpetrated during a state of armed conflict 
or not and regardless of the nationality of the perpetrator or victim. The content 
and legal status of the norm since Nuremberg has been broadened and expanded 
through certain international human rights instruments adopted by the United 
Nations since 1945. . . . 

The Commission of Experts on Rwanda considers 114 that "crimes against 
humanity" are gross violations of fundamental rules of humanitarian and human 
rights law committed by persons demonstrably linked to a party to the conflict as 
part of an official policy based on discrimination against an identifiable group of 
persons, irrespective of war and the nationality of the victims. 115 

It should be pointed out here that many commentators would today question 
whether such crimes need to be the consequence of a determined policy based 
on discrimination. 

Just as it would now be considered as part of the law that crimes against 
humanity are not confined to an international armed conflict, so we find that 
the 1948 Genocide Convention, which deals with acts directed at the 
destruction of a defined group qua group, expressly states in Article 1 that 
"genocide, whether committed in time of peace or in time of war, is a crime 
under international law." 116 There should, therefore, be no difficulty in 
applying this Convention in any conflict, whether international or 
noninternational, when the acts condemned are directed at a defined group 
with the intention of destroying its group characteristics. Since most crimes 
against humanity, as defined in the London Charter or international 

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agreements on human rights, do not normally amount to offenses as grave as 
genocide, it should be possible in the future to charge those responsible for 
genocide with crimes against humanity, without having to prove "intent" for 
genocide is clearly the gravest of all crimes against humanity. 

The General Assembly adopted a resolution Affirming the Principles of 
International Law recognized by the Charter of the Nuremberg Tribunal. 117 As 
a General Assembly resolution, it lacks any strict legal force, although it 
embodies great political and moral authority. This authority has been 
enhanced by the International Law Commission's enunciation of Principles of 
International Law recognized by the Charter and Judgment. 118 Principle I 
affirmed the personal liability of anyone committing a crime under 
international law; Principle II provides that the failure of national law to 
condemn a particular act does not remove personal liability for that act under 
international law; Principle III prohibits a head of state from claiming 
immunity from international criminal liability; Principle IV holds that superior 
orders cannot be pleaded when a moral choice was open to an accused; 
Principle V entitles war criminals to a fair trial; Principle VI confirms the 
criminality of the acts condemned in the London Charter; and Principle VII 
reaffirms the Tribunal's finding that complicity in any of these acts is itself a 
crime. These Principles have been reaffirmed by the Commission in its Draft 
Code of Crimes Against the Peace and Security of Mankind. 119 

From the point of view of the law in hello, the most important development 
after 1945 was the adoption of the four Geneva Conventions in 1949. 
Conventions I, II, and III, 120 — addressing the wounded and sick on land and at 
sea, as well as prisoners of war — are little more than reaffirmations and 
extensions of the 1929 Conventions, with amendments directed at filling 
lacunae, which became apparent during World War II. More innovative was 
Convention IV concerning the protection of civilians in time of war, 
particularly in occupied territory, 121 an issue which had become of supreme 
concern in the light of German practice in occupied Europe. 

Further, since 1945 it had become obvious that many or most of the conflicts 
that had occurred or were likely in the foreseeable future were not 
international conflicts in the normal interstate sense, but rebellions, 
revolutions, or struggles for national independence. It is for this reason that the 
Conventions replace the term "war," with its inter-State connotation, by 
"armed conflict" and "enemy" by "adverse party" — although the mind boggles 
at the idea of an infantry sergeant saying, "Hold your fire until you see the white 
of the adverse party's eyes!" In such conflicts, ideological differences frequently 
result in atrocities far more outrageous than any of those normally inherent in 

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an international conflict. In view of this, each of the Conventions has, as its 
Article 3, what may be regarded as a minimal code of humanitarian law to be 
followed "in the case of armed conflict not of an international character 
occurring in the territory of one of the High Contracting Parties." In addition, 
each contains a definition of those breaches of the Convention which are 
considered "grave," and which are declared to be criminally punishable, 122 
Parties agree to amend their legal systems to ensure the punishment of such 
offenses. However, the relevant article never refers to the provisions of Article 
3 common to the Conventions. But, if this Article is to have any meaning, it 
follows that disregard of the provisions therein embodied must be enforceable; 
thus, offenders must be punishable. Moreover, the offenses listed in the 
Conventions, regardless of the specific Article concerned, are, for the most 
part, offenses which would amount to crimes against humanity and be 
punishable as such. The listing of particular offenses as "grave breaches" does 
not remove the criminal character from other acts which would amount to war 
crimes. 

Adoption of the Civilians Convention in 1949 was still not regarded as 
sufficient to satisfy the purpose for which it was promulgated. Therefore, in 
1968, the International Conference on Human Rights in Tehran adopted a 
Resolution calling for Respect for Human Rights in Armed Conflicts, 123 
although none of its Resolutions carries legal force. However, they introduced 
a new idea to the effect that those engaged in "struggles" against "minority 
racist or colonial regimes" should not be treated as traitors but as prisoners o{ 
war or political prisoners. This added to the impact of the General Assembly's 
resolution 124 confirming the assertion of the 1965 Conference of the Red Cross 
on the Protection of Civilian Populations against the Dangers of Indiscriminate 
Warfare: 

(i) the right of parties to a conflict to adopt means of injuring the enemy is not 
unlimited; 

(ii) it is prohibited to launch attacks against the civilian population, as such; 

(iii) distinction must be made at all times between persons taking part in the 
hostilities and members of the civilian population to the effect that the latter be 
spared as much as possible. 125 

Carrying the proposals further, the Institute of International Law, at its 
Edinburgh Conference of 1969, adopted a Resolution on the distinction 
between military and nonmilitary objects, particularly the problems associated 

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with weapons of mass destruction. 126 In view of the status of the Institute, its 
views cannot be ignored, even though the United States "does not accept them 
as an accurate statement of international law relating to armed conflict . . . 
[but] regard [s] as declaratory of existing customary law . . . [the] general 
principles recognized [and] unanimously adopted by the United Nations 
General Assembly." 127 However, bearing in mind the importance of opinio juris, 
some reference to the Institute's views must be made. 

First, the Institute made reference to the "consequences which the 
indiscriminate conduct of hostilities and particularly the use of nuclear, 
chemical and bacteriological weapons, may involve for civilians and for 
mankind as a whole . . . [and went on to enunciate] the principles to be 
observed in armed conflicts by any de jure or de facto government, or by any 
other authority responsible for the conduct of hostilities." 128 It emphasized that 
the distinction between military and nonmilitary objectives, as well as between 
combatants and civilians, must be constantly preserved; that neither the 
civilian population nor specially agreed protected establishments may ever be 
regarded as military objectives, nor "under any circumstances" may the means 
indispensable for the survival of the civilian population or those which serve 
primarily humanitarian purposes; that all existing protective principles of 
international armed conflict law must be preserved and observed; and that 

[E]xisting international law prohibits, irrespective of the type of weapon used, 
any action whatsoever designed to terrorize the civilian population. . . . [and] 
prohibits the use of all weapons which, by their nature, affect indiscriminately 
both military objectives and non-military objects, or both armed forces and 
civilian populations. In particular, it prohibits the use of weapons the destructive 
effect of which is so great that it cannot be limited to specific military objectives 
or is otherwise uncontrollable (self-generating weapons), as well as "blind" 
weapons. [It also] prohibits all attacks for whatsoever motives or by whatsoever 
means for the annihilation of any group, region or urban centre with no possible 
distinction between armed forces and civilian populations or between military 
and non-military objectives. 129 

The General Assembly subsequently adopted a Resolution which broadly 
accepted the principles laid down by the Institute. However, it went somewhat 
further, in that, while affirming the principles for the protection of civilians, it 
asserted that "fundamental human rights, as accepted in international law and 
laid down in international agreements, continue to apply fully in situations of 
armed conflict." 130 This appears to be a new departure from previous 
understanding, for it would normally be thought that as lex specialis the Hague 

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The Law of War 



and Geneva Law overrode the lex generalis of human rights instruments which 
might be considered applicable in peacetime, especially as these latter 
instruments usually recognize that most, but not all, of their provisions are 
derogable in time of emergency, including armed conflict. 131 

Since this Resolution was adopted without any opposition, it might be 
assumed that the members of the international community thought that the 
principles therein enunciated amounted to an expression of customary law, 
which would render the United States reservations concerning the Institute's 
proposals of less significance than they appear at first glance. 

There followed the adoption of a Convention on the Prohibition of the 
Development, Production and Stockpiling of Bacteriological (Biological) and 
Toxin Weapons and their Destruction in 1972, 132 but this was silent as to use. 
Difficulties arose in relation to chemical weapons and a further, as yet 
unratified, Convention was adopted in 1993 directed against the 
Development, Production, Stockpiling and Use of Chemical Weapons and 
their Destruction. 133 

All these proposals with regard to the means and methods of warfare led the 
International Committee of the Red Cross to propose amendments to the 1949 
Conventions in an effort to meet some of the concerns now apparent. The 
Conference that ensued met from 1974 to 1977 and produced two Protocols 
supplementing, but not in any way replacing, the 1949 Conventions — I on 
international and II on noninternational armed conflicts. 134 

Apart from bringing the law up to date, Protocol I makes fundamental 
changes in the existing law regulating international armed conflicts and, while 
formally concerned with humanitarian law as propounded in the Geneva law, 
does in fact add to some of the Hague law concerning means and methods. 
Most importantly, recognizing the principles of political correctness and 
concerns regarding self-determination, it provides that struggles conducted by 
national liberation movements in the name of self-determination are to be 
considered international conflicts and thus subject to the international law of 
armed conflict. 135 It also changes the definition of combatants on behalf of the 
members of such movements, even though they are not wearing recognized 
uniforms nor carrying their arms openly save when actually engaged and visible 
to the adversary while preparing to engage. 136 The Protocol extends the 
protection given to civilian and nonmilitary objects and forbids actions likely to 
have a deleterious effect upon civilians. Thus, it forbids attacks upon narrowly 
defined "dangerous installations" — dams, dykes and nuclear electrical 
generating stations. Changing long-recognized law, it defines mercenaries and 
denies them prisoner of war status. It widens the concept of grave breaches as 



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defined in the Conventions, and recognizes civil defense as a matter requiring 
separate acknowledgment. In an effort to make the law clearly understood, it 
requires legal advisers to be attached to military units, without specifying the 
level of attachment, and expressly confirms the principle of command 
responsibility, including the obligation of a commander to ensure compliance 
with the law by his subordinates by imposing a duty to suppress, repress and 
punish offenders. 

The Protocol reflects many of the principles adopted by the Institute at its 
Edinburgh meeting, but ignores completely any reference to weapons of mass 
destruction other than by implication when forbidding long- term damage to 
the environment or insisting on the preservation of material essential to the 
sustenance of the civilian population. The reason put forward for ignoring the 
problems of the nuclear weapon was that this was essentially an issue of 
disarmament rather than humanitarian law. Nevertheless, when the General 
Assembly subsequently asked the World Court for an advisory opinion on the 
Legality of the Threat or Use of Nuclear Weapons, 137 the Court found itself unable 
to give a direct answer, though it had some difficulty in leaving the issue 
completely open. 

The Court not having found a conventional rule of general scope, nor a 
customary rule specifically proscribing the threat or use of nuclear weapons per 
se, it will now deal with the question whether recourse to nuclear weapons must 
be considered as illegal in the light of the principles and rules of international 
humanitarian law applicable in armed conflict. . . . 

[The] two branches of law applicable in armed conflict [ — the Hague and 
Geneva law — ] have become so closely interrelated that they are considered to 
have gradually formed one complex system, known today as international 
humanitarian law. . . . 

Since the turn of the century, the appearance of new means of combat 
has — without calling into question the long-standing principles and rules of 
international law — rendered necessary some specific prohibitions of the use of 
certain weapons. . . . 

The cardinal principles constituting the fabric of humanitarian law are [as 
follows]. The first is aimed at the protection of the civilian population and 
civilian objects and establishes the distinction between combatants and 
non-combatants. States must never make civilians the object of attack and must 
consequently never use weapons that are incapable of distinguishing between 
civilian and military targets. According to the second principle, it is prohibited to 

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cause unnecessary suffering to combatants: it is accordingly prohibited to use 
weapons causing them such harm or uselessly aggravating their suffering. 
[Accordingly,] States do not have unlimited freedom of choice of means in the 
weapons they use. 

The Court would refer, in relation to these principles, to the Martens Clause . . . 
which has proved to be an effective means of addressing the rapid evolution of 
military technology. A modern version ... is to be found in Additional Protocol I 
ofl977. 138 

In conformity with the aforementioned principles, humanitarian law, at a very 
early stage, prohibited certain types of weapons either because of their 
indiscriminate effect on combatants and civilians or because of unnecessary 
suffering caused to combatants, that is to say, a harm greater than that 
unavoidable to achieve legitimate military objectives. If an envisaged use of 
weapons would not meet the requirements of humanitarian law, a threat to 
engage in such use would also be contrary to that law. . . . [T]hese fundamental 
rules are to be observed by all States whether or not they have ratified the 
conventions that contain them, because they constitute intransgressible 
principles of international customary law [ — ? jus cogens — ] .... 

Turning now to the applicability of the principles and rules of humanitarian law 
to a possible threat or use of nuclear weapons. . . . 

The Court shares th[e] view [that] there can be no doubt as to the applicability 
of humanitarian law to nuclear weapons. . . . Indeed, nuclear weapons were 
invented after most of the principles and rules of humanitarian law applicable in 
armed conflicts had already come into existence; the Conferences of 1949 and 
1974-1977 [which drew up the Conventions and Protocols] left these weapons 
aside, and there is a qualitative as well as a quantitative difference between 
nuclear weapons and all conventional arms. However, it cannot be concluded 
from this that the established principles and rules of humanitarian law applicable 
in armed conflict did not apply to nuclear weapons. Such a conclusion would be 
incompatible with the intrinsically humanitarian character of the legal principles 
in question which permeates the entire law of armed conflict and applies to all 
forms of warfare and to all kinds of weapons, those of the past, those of the 
present and those of the future. . . . 

Finally, the Court points to the Martens Clause, whose continuing existence and 
applicability is not to be doubted, as an affirmation that the principles and rules 
of humanitarian law apply to nuclear weapons. . . . 

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Although the applicability of the principles and rules of humanitarian law ... to 
nuclear weapons is hardly disputed, the conclusions to be drawn from this 
applicability are . . . controversial. . . . 

[N]one of the States advocating the legality of the use of nuclear weapons under 
certain circumstances, including the "clean" use of nuclear, low yield, tactical 
nuclear weapons [ — which, in view of their radio-activity, would still be likely to 
cause "unnecessary" suffering to combatant victims — ] has indicated what, 
supposing such limited use were feasible, would be the precise circumstances 
justifying such use; nor whether such limited use would not tend to escalate into 
the all-out use of high yield nuclear weapons [ — is this comment of legal 
significance? — ]. This being so, the Court does not consider that it has a 
sufficient basis for a determination on the validity of this view. 

Nor can the Court make a determination upon the validity of the view that the 
recourse to nuclear weapons would be illegal in any circumstance owing to their 
inherent and total incompatibility with the law applicable in armed conflict. 
Certainly, . . . the principles and rules of law applicable in armed conflict — at the 
heart of which is the overriding consideration of humanity — make the conduct 
of armed hostilities subject to a number of strict requirements. Thus, methods 
and means of warfare, which would preclude any distinction between civilian 
and military targets, or which would result in unnecessary suffering to 
combatants, are prohibited. In view of the unique characteristics of nuclear 
weapons . . . the use of such weapons in fact seems scarcely reconcilable with 
respect for such requirements. Nevertheless, the Court considers that it does not 
have sufficient elements to enable it to conclude with certainty that the use of 
nuclear weapons would necessarily be at variance with the principles and rules of 
law applicable in armed conflict in any circumstances. 

Furthermore, the Court cannot lose sight of the fundamental right of every 
State to survival, and thus its right to resort to self-defence, in accordance with 
Article 51 of the Charter, when its survival is at stake. 139 Nor can it ignore the 
practice referred to as the "policy of deterrence" [ — a legal issue for a 
Court? — ] , to which an appreciable section of the international community 
adhered for many years. . . . 

Accordingly, in view of the present state of international law viewed as a whole . . . 
and of the elements of fact at its disposal, the Court is led to observe that it cannot 
reach a definitive conclusion as to the legality or illegality of the use of nuclear 
weapons by a State in an extreme circumstance of self-defence, in which its very 
survival would be at stake. . . . I40 

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The Law of War 



As if aware of the somewhat unsatisfactory nature of its answers, the Court 
referred to the varying views that exist at present on this matter and called for 
an early conference to settle the entire issue of legality, reminding the members 
o{ the international community of their obligation to negotiate in good faith. 

Having thus seen the Court's comments on the legality of the nuclear 
weapon and its reference to the absence of mention in the Conventions or 
Protocol I, it is perhaps in order to consider the significance of this instrument. 
Although both Protocols constitute an annex to the Conventions, they do not 
automatically become part thereof and, as such, binding upon Convention 
parties. Ratification or accession remains necessary, and there is much debate 
as to the extent to which the provisions in Protocol I are declaratory of 
customary law relevant to international conflicts and therefore binding 
regardless of accession. Perhaps it is sufficient in this connection to refer to the 
Report submitted by General Colin Powell to the Defense Department of the 
United States in regard to the Gulf War of 1991 in which the Coalition forces 
were under his overall command. Many of the combatants in this conflict, 
including both Iraq and the United States, had failed to ratify or accede. 
Nevertheless, Powell pointed out that to the greatest extent feasible, the 
limitations imposed by Protocol I were observed and that "decisions were 
impacted by legal considerations at every level. . . . [T]he law of war proved 
invaluable in the decision-making process" in regard to action taken. 141 By way 
of contrast, Protocol II, as the first international effort to regulate such a 
domestic matter as a noninternational conflict, is clearly innovative. 

Even though there has, as yet, been no instrument regulating the legality of 
the use of nuclear weapons, there has been some progress with regard to 
conventional weapons, that is to say those not of massive destruction potential, 
although they may in fact be indiscriminatory. Thus, in 1980, a Convention 
was adopted on the Prohibition or Restriction on the Use of Certain 
Conventional Weapons which may be Deemed to be Excessively Injurious or 
Have Indiscriminatory Effects. 142 This comprised three Protocols. The first 
prohibits weapons "the primary purpose of which is to injure by fragments 
which in the human body escape detection by X-rays," although it is not 
believed any such exist or are likely to be invented in the foreseeable future. 
Protocol II is concerned with land mines, booby traps and other similar devices, 
its main aim being to protect civilians from such weapons, while at the same 
time preventing their use against troops in a perfidious manner, as would be the 
case if they were used in connection with protective emblems or, for example, 
corpses. Finally, Protocol III prohibits or restricts the use of incendiary weapons 
if fire is the primary rather than incidental or consequential outcome. While 

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incendiaries have become of less significance with the increased resort to 
mechanized warfare, particularly when long-distance (as compared with 
trench or house-to-house combat), incendiaries remain significant when used 
against armored vehicles or aircraft. Consequently, the Protocol excludes from 
its purview. 

(i) Munitions which may have incidental incendiary effects, such as luminants, 
tracers, smoke or signaling systems; 

(ii) Munitions designed to combine penetration, blast or fragmentation effects 
with an additional incendiary effect, such as armour-piercing projectiles, 
fragmentation shells, explosive bombs and similar combined-effects munitions in 
which the incendiary effect is not specifically designed to cause burn injury to 
persons, but to be used against military objectives, such as armoured vehicles, 
aircraft and installations or facilities. 143 

This last sub-paragraph leaves one with the impression that the draftsmen were 
of opinion that "armoured vehicles, aircraft and installations or facilities" exist 
in themselves, without any human being required to make them militarily 
effective. 

In 1995, a fourth Protocol was added to these three to control the use of 
Blinding Laser Weapons. As with incendiaries, the ban is only directed at the 
employment of: 

[LJaser weapons specifically designed, as their sole combat function or as one of 
their combat functions, to cause permanent blindness to unenhanced vision, 
that is to the naked eye or to the eye with corrective eyesight devices. . . . 
Blinding as an incidental or collateral effect of the legitimate military 
employment of laser systems, including laser systems used against optical 
equipment, is not covered by the prohibition of this Protocol. 144 

Interestingly, this would seem to remove one of the considerations normally 
applicable when construing whether an offense has been committed against 
the law of war amounting to a war crime. In most cases, it is now accepted that 
if an illegal consequence amounting to a breach was "foreseeable or considered 
likely," liability would follow. In this case, however, even though it is very likely 
that in using laser weapons against optical equipment blindness may well 
ensue, such use is not considered to amount to illegality, even though it is 
known that this is likely to be the case. 

It was pointed out earlier that most of the provisions of the law of war are 
only applicable in the event of an international armed conflict, including such 

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The Law of War 



conflicts as may be considered to be on behalf of self-determination, and that 
Article 3 common to the four Geneva Conventions does not really carry this 
much further, unless one is able to argue that breach of the various provisions 
in that Article amounts to crimes against humanity. The 1977 Additional 
Protocol II to the 1949 Conventions sought to provide some measure of 
humanitarian principles into noninternational conflicts. However, the 
threshold for this Protocol to come into effect is so high that it would exclude 
almost every noninternational conflict other than one which amounts to a civil 
war with the antigovernment forces in effective control of some part of the 
national territory, a requirement which is not imposed in the case of a war for 
national liberation: 

Art. 1 (1) This Protocol . . . shall apply to all armed conflicts which are not 
[elevated by Protocol I into international conflicts] which take place in the 
territory of a High Contracting Party between its armed forces and dissident 
armed forces or other organized armed groups which, under responsible 
command, exercise such control over a part of its territory as to enable them to 
carry out sustained and concerted military operations and to implement this 
Protocol. 145 

As if to emphasize this high threshold and to make it clear that there is no 
undue interference with national sovereignty and the power of a government 
to deal with opposition and affirm its right to maintain order, the Article 
expressly declares that the "Protocol shall not apply to situations of internal 
disturbances and tensions, such as riots, isolated and sporadic acts of violence 
and other acts of a similar nature, as not being armed conflicts," 146 and, as we 
have just seen, nor would it apply, even if the armed incidents were far more 
extensive and serious, if those opposing the government were not in control 
over part of the national territory. Further limiting the possible impact of the 
Protocol on the conflict, Article 2 makes clear that the Protocol cannot: 

[B]e invoked for the purpose of affecting the sovereignty of a State or the 
responsibility of the government, by all legitimate means, to maintain or 
re-establish law and order in the State or to defend the national unity and 
territorial integrity of the State . . . [nor] as a justification for intervening, directly 
or indirectly, for any reason whatever, in the armed conflict or in the internal or 
external affairs of the High Contracting Party in the territory of which that 
conflict occurs. 147 

While the Protocol makes no attempt to suggest that the decision as to 
"legitimate" means of restoring order belongs to any authority other than the 

70 



Leslie C. Green 



government concerned, it cannot, despite the ban on intervention, inhibit the 
Security Council from deciding, as it has in the case of the former Yugoslavia 
and of Rwanda, that the situation is so grievous that it amounts to a threat to 
international peace warranting action under Chapter VII of the Charter, and 
authorizing action despite the traditional reservations concerning 
nonintervention in domestic affairs. 

The cheapest and most easily accessible weapon available to those involved 
in a noninternational conflict, especially those confronting the governmental 
forces, are mines and booby traps, but the 1980 Protocol relevant thereto only 
applies in an international armed conflict. However, since mines and booby 
traps are so easily made, are relatively inexpensive, and cause extensive injury 
to civilians even after the conflict has terminated, when the Convention on 
Conventional Weapons was amended in 1993, Protocol II on mines was also 
amended. 148 By virtue of this amendment, the Protocol was extended to 
situations mentioned in Article 3 common to the four Conventions, that is to 
say to noninternational conflicts — although the reservation with regard to 
riots and the like was preserved, leaving it open to both combatants in such a 
situation to behave as indiscriminately in this regard as might please them. 
While the ban is applicable to all parties, the reservations with regard to 
sovereignty are also preserved. In an effort to reduce the dangers to civilians, 
particularly after the end of hostilities, the amended Protocol contains 
carefully spelled-out regulations concerning the marking and identification of 
mined areas as well as provision for their ultimate removal. The Protocol does 
not ban the use of all mines, but only those which are strictly anti-personnel 
and which lack self-destructive, self-neutralizing, or self- deactivating 
mechanisms or are fitted with an anti-handling device. While it seeks to limit 
the use of these mines, the Protocol does not make the obtaining of such 
weaponry illegal, nor forbid their manufacture or supply to those seeking them. 
In fact, those countries which are capable of the mass production of mines 
tend, at present, to be opposed to any international agreement which will limit 
their right to manufacture or use, especially in circumstances of self-defense, 
even though they express willingness not to supply them to those countries 
seeking them on the international market. 

This historical introduction to the law of armed conflict has paid most 
attention to warfare upon land since this is the region for which most 
agreements have been designed, while the earliest beginnings of regulation 
were directed to land warfare. Where it has been considered essential, specific 
reference has been made to both aerial and naval warfare, especially since the 
principles underlying the laws and customs of warfare on land are general in 

71 



The Law of War 



character and equally applicable, to the extent that is practicable, to operations 
at sea and in the air as well. Equally, nothing has been said about neutrality. 
This is partly due to the fact that in modern war there are few neutrals, 
particularly when the States which are neutral are weaker than the belligerents 
and therefore have difficulty in asserting their rights against those of the latter. 
Moreover, since virtually all States are members of the United Nations and 
thus bound to carry out any decisions of the Security Council, 149 and, since no 
military action is legal without Security Council consent or approval, it may be 
argued that no State can any longer claim to be entitled to the rights 
traditionally pertaining to neutrality. This is particularly so when operations 
are undertaken to give effect to a Security Council decision, a matter that 
became of some importance during the Gulf War of 1991. 15 ° 

In addition to any international agreements that may be relevant, as pointed 
out by the World Court in its opinion on The Threat or Use of Nuclear Weapons , 
the law of armed conflict is still governed by those "principles of international 
law derived from established custom [ — going back to feudal times and 
before — ] , from the principles of humanity and from the dictates of public 
conscience," 151 together with such considerations of proper behavior as 
amount to general principles of law recognized by civilized nations 152 and, as 
such, rules of international law in accordance with Article 38 of the Statute of 
the International Court of Justice. Further, there is nothing to prevent any 
State from laying down any rules regulating the conduct of its own forces, 
provided they do not run counter to any established rules and customs of the 
law of armed conflict, and, as we have seen, breaches of these rules may now be 
considered as amounting to crimes against humanity, and punishable as such, 
whether the conflict is one that is international or noninternational in 
character. Equally, since it is generally accepted that the law concerning armed 
conflict is of universal interest, there is nothing to stop any individual State, as 
many have in fact done, from passing legislation granting its courts jurisdiction 
over breaches of this law regardless of the nationality of the offender or of the 
victim. Nor is the geographic location of the offense of any significance. Finally, 
as may be seen with the establishment of the ad hoc tribunals for the former 
Yugoslavia and Rwanda, it is open to the Security Council, having decided that 
a particular conflict, whether international or noninternational, amounts to a 
potential threat to international peace, to proceed to establish special courts 
with power to enforce the law and punish offenders. 

In fine, perhaps it might be suggested that the time is now ripe for a further 
effort to be made, perhaps under the auspices of the International Committee 
of the Red Cross or the International Law Commission, to draw up a revised 

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Leslie C. Green 



and up-to-date statement of what the laws, as distinct from the customs of war, 
are. 153 If this should be considered impossible or impracticable, perhaps those 
States which are of like mind, as for example is the case with the members of 
the North Atlantic Treaty Organization or those of the European Community 
with the addition of the United States, would work together to draw up an 
agreed upon code which will be applicable to their forces and which might 
serve as an example to be adopted by others. 



Notes 



1. See, e.g., comments on Vitoria, in S. JAMES ANAYA, INDIGENOUS PEOPLES IN 
INTERNATIONAL LAW 12 (1996). 

2. Id. at 13, citing Leo Gross, The Peace of Westphalia, 1648-1948, in INTERNATIONAL 
LAW IN THE TWENTIETH CENTURY 25, 33-46 ( Leo Gross ed., 1969). 

3. Deuteronomy 20:10-18. 

4. See, e.g., 1 Samuel 15, wherein the prophet himself kills Agag. 

5. Judges 1:28-32. 

6. "Thou shalt not smite them: wouldst thou smite those whom thou hast taken captive 
with thy sword and with thy bow? Set bread and water before them, that they may eat and drink 
and go to their master. And he [the king] prepared great provision for them: and when they had 
eaten and drunk, he sent them away and they went to their master." 2 Kings 6:22-23. 

7. Proverbs 25:21. 

8. Deuteronomy 20:19-20; see also Exodus 23:29. 

9. FLAVIUS JOSEPHUS, CONTRA APION 29 (c. A.D. 93) (William Whiston trans., 1912). 

10. Guy B. Roberts, Judaic Sources of and Views on the Laws of War, 37 NAVAL L. REV. 221, 
231 (1988). 

11. See, e.g., JULIUS STONE, HUMAN LAW AND HUMAN JUSTICE 26-29 (1965). 

12. Roberts, supra note 10, at 233. 

13. SUN TZU, THE ART OF WAR 78 (c. fourth century B.C.) (Samuel B. Griffiths trans., 
1971). 

14. John Keegan, A History of Warfare 173 (1994), citing Herrlee G. Creel, the 
Origin of Statecraft in China 257, 265 (1970). 

15. Epic Sanskrit poem, based on Hindu ideals, probably composed between A.D. 200 and 
300. 

16. Cited in W.S. Armour, Customs of Warfare in Ancient India, 7 GROTIUS TRANSACTIONS 
71,77,81,(1921). 

17. Tit. VII (Georg Buhler trans., 1886) (1976 reprint). 

18. Armour, supra note 16, at 74. 

19. Sanskrit epic of the third century B.C. 

20. Cited by Judge Weeramantry in his dissent in the World Court's advisory opinion on 
the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996, General List No. 95, at 34, 35 
I.L.M. 809, 897(1996). 

21. Cited in Nagendra Singh, The Distinguishable Characteristics of the Concept of Law as it 
Developed in Ancient India, in LIBER AMICORUM FOR THE RT. HON. LORD WlLBERFORCE 93 
(Maarten Bos & Ian Brownlie eds., 1987). 

22. See HOMER, THE ODYSSEY, bk. I, lines 260-3 (Richmond Lattimore trans., 1965). 

73 



The Law of War 



23. 2 coleman phillipson, the international law and custom of ancient 
Greece and Rome 221-3 (1911). 

24. DE OFFICIIS, III, xxii. 

25. PHILLIPSON, supra note 23, at 227, 228-9. 

26. PHILLIPSON, supra note 23, at 195, 207-9, 210; see also 212 (re the Peloponnesian war) . 

27. heraclides 1010. 

28. History of the pelepponesian War, 1.1, 1.23, 1-3. 

29. "[A]n adult free male could be a hoplite if he could afford the capital investment in the 
appropriate arms and armor, and could afford to spend a good part of the summer marching 
about the countryside and fighting when called upon to do so. The typical hoplite was an 
independent subsistence farmer " Josiah Ober, Classical Greek Times, in THE LAWS OF WAR: 

Constraints in Warfare in the Western World 12, 14 (Michael Howard et al. eds., 
1994). 

30. Id. at 13. 

31. Id. at 18. 

32. Robert C. Stacey, The Age of Chivalry, in Howard, supra note 29, at 27, 27-8. 

33. Alib Hasan al Muttaqui, 4 Book of Kanzuuuman 472 (c. a.d. 634) (1979 

trans, and ed.) see also SHAYBANI SlYAR, THE ISLAMIC LAW OF NATIONS, s. 1 7 1 1 (c. early ninth 
century A.D.) (M aj id Khadduri trans., 1966). 

34. SlYAR, supra note 33, sees. 29-31, 47, 81, 110-11. 

35. Id., sees. 1, 15, 18, 44. 

36. Id., sees. 55, 95-109. 

37. Concerning the activities of the Courts of Chivalry and other military courts, see 
MAURICE H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 27, 34 (1965); see also 
PHILIPPE CONTAMINE, WAR IN THE MIDDLE AGES 270-7, (Michael Jones trans., 1984), and, 
generally, 2 ROBERT P. WARD, AN ENQUIRY IN TO THE FOUNDATIONS AND HISTORY OF THE 
LAW OF NATIONS IN EUROPE, ch. XIV (Of the Influence of Chivalry) (1795). 

38. See, e.g., the conduct of Henry V at Agincourt in 1415, as commented upon by 
Shakespeare, Henry V, Act 4, Scene 5, lines 5-10, based upon Holinshed's CHRONICLES, and 
compare with account given by EMERICH VATTEL, LE DROIT DES GENS, liv. Ill, ch.VIII, s. 151 
(1758) (Charles G. Fenwick trans., 1916). 

39. G.I.A.D. Draper, The Modem Pattern of War Criminality, in WAR CRIMES IN 
INTERNATIONAL LAW 141, 142-4 (Yoram Dinstein &Mala Tabory eds., 1996). 

40. G.I.A.D. Draper, The Interaction of Christianity and Chivalry in the Historical Development 
of the Law of War, 5 INT'L REV. RED CROSS 3, 19 (1965). 

41. See E.R.A. SEWTER, THE ALEXIAD OF ANNA COMMENA 316-7 (1969) ("The 
crossbow is a weapon of the barbarians ... a truly diabolical machine."). 

42. See, e.g., WARD, supra note 37, ch. XIV. 

43. Decretal V, cited in PlERINO BELLI, DE RE MILITARI ET BELLO TRACTATUS, pt. VII, 
chap. Ill, 29 (1563) (Herbert C. Nutting trans., 1936). 

44. Id. 

45. DESIDERIUS ERASMUS, BELLUM 17 (1545) (Imprint Soc. ed., 1972). 

46. For a discussion on "The Status of Mercenaries in International Law," see LESLIE C. 

Green, Essays on the Modern Law of War, ch. IX (1985). 

47. James T. Johnson, The Quest for Peace 78-91 (1987). 

48. See, e.g., SHAKESPEARE, HENRY V, act 4, scene 7, lines 5-10 (commenting on the 
reason for Henry's order at Agincourt to slaughter all the French prisoners, as a reprisal for the 



74 



Leslie C. Green 



killing of camp followers); see also, generally, THEODOR MERON, HENRY'S WARS AND 
SHAKESPEARE'S LAWS, 1993. 

49. See, e.g.., KEEN, supra note 37, at 27; see also, CONT AMINE, supra note 37, at 270-7. 

50. See GEORG SCHWARZENBERGER, 2 INTERNATIONAL LAW (THE LAW OF ARMED 
CONFLICT), ch. 39 (1968). 

51. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, app. II, 1412 (1896), citing 

Francis Grose, l Antiquities of England and Wales 34 (1773). Similar codes were 

issued by Henry V and Henry VIII. 

52. Id. at app. Ill, 1416, citing ANIMADVERSIONS OF WARRE (Ward trans., 1639). 

53. Charles m. Clode, l Military Forces of the Crown, app. VI (1869). 

54. See Andre Gardot, he Droit de la Guerre dans I'Oeuvre des Capitaines Franqais du XVle 
Siecle, 72 HAGUE RECUEIL 397, 467-8 (1948). 

55. Baron de Taube, cited in id. at 467. 

56. Belli, supra note 43, pt. VII, ch. Ill, 34. 

57. Geoffrey Butler & Simon MacCoby, The Development of International 
LAW 134 (1928). 

58. Id. at 187, n.28. 

59. Id. at 149-50. 

60. Id. at 150-1. 

61. THE LAWS OF ARMED CONFLICTS 275 (Dietrich Schindler & Jiri Toman eds., 3d rev. 
ed. 1988). 

62. Reprinted in id. at 279. 

63. See, e.g., CQNTAMINE, supra note 37, at 102-6, 193-207, 211-2. 

64. See, e.g., THE GERMAN WAR BOOK 66 Q.H. Morgan ed., 1915). Both the British 
MANUAL OF MILITARY LAW, pt. Ill (The Law of Land Warfare), para. 1 10 (1985), and the U.S. 
LAW OF LAND WARFARE (FM-27), para. 34 (1956), refer to lances with barbed heads, which 
were extremely useful against mounted knights in armor, as unlawful. 

65. See, e.g., the Lovet Scouts attached to the British Army. 

66. See, e.g., BORDWELL, THE LAW OF WARFARE BETWEEN BELLIGERENTS, ch. IV 
(1908) . Bordwell takes the Dutch Wars of Louis XIV, 1672-8, as the dies a quo. See also Leslie C. 
Green, Armed Conflict, War and Self Defence, 6 ARCHIV DES VOLKERRECHTS 387, 394-408 
(1957). 

67. See, e.g., P.P. SHAFIROV, A DISCOURSE CONCERNING THE JUST CAUSES OF THE WAR 
BETWEEN SWEDEN AND RUSSIA (1717) (William E. Butler trans., 1973). 

68. According to NlCCOLO MACHIAVELLI, 2 THOUGHTS OF A STATESMAN (A. Gilbert 
trans., 1989), "that war is just that is necessary." 

69. See, e.g., J AMES B. SCOTT, THE CATHOLIC CONCEPTION OF INTERNATIONAL LAW 
(1934); see also LESLIE C. GREEN & OLIVE P. DlCKASON, THE LAW OF NATIONS AND THE 
NEW WORLD 39-47, 50-4, 192-8 (1989), and ANAYA, supra note 1, ch.l. 

70. General Orders No. 100, Apr. 24, 1863, reprinted in Schindler & Toman, supra note 61, 
at 3; see also Richard R. Baxter, The First Modem Codification of the Laws of Armed Conflict, 29 

int'l Rev. Red Cross 171 (1963). 

71. Thomas E. Holland, the Laws of war on Land 72 (1908). 

72. Arts. 16, 37, 44 & 47. 

73. Reprinted in Schindler & Toman, supra note 61, at 787. 

74. Convention I (wounded and sick in the field); II (wounded, sick and shipwrecked); III 
(prisoners of war); IV (civilians); Additional Protocol I (international armed conflict); 



75 



The Law of War 



Additional Protocol II (noninternational armed conflict), reprinted in Schindler & Toman, supra 
note 61, at 373, 401, 423, 495, 621 & 689 respectively. 

75. Reprinted in id. at 101. 

76. Reprinted in id. at 25. 

77. This reflects a problem facing every effort to enact rules to modify the rigor of war — the 
need to compromise between the ideals of the humanitarian and the needs of the military. 

78. Reprinted in Schindler & Toman, supra note 61, at 101, 105 & 109 respectively. 

79. (1880). Reprinted in id. at 35. 

80. Reprinted in id. at 63. 

81. Hague Conventions III, VI-XII, V and XIII. Reprinted in id. at 57, 791-940, 941 & 951 
respectively. 

82. E.g., art. 7, affirming that a detaining government is obliged to maintain prisoners; art. 
12, providing that prisoners breaking parole may be punished; art. 22, stating that the means of 
injuring the enemy is not unlimited; art. 23, banning the use of poison and of denying quarter; 
art. 32, protecting one carrying a flag of truce; etc. 

83. See, e.g., the Nuremberg Judgment: "Several of the belligerents in the recent war were not 
parties to this Convention [IV] . . . . [B]y 1939 these rules laid down in the Convention were 
recognized by all civilized nations, and were regarded as being declaratory of the laws and 
customs of war." H.M.S.O., Cmd. 6964 (1946), at 65; 41 AM. J. INTL L. 172, 248-9 (1947). 

84. London Charter, reprinted in Schindler & Toman, supra note 61, at 911. 

85. See, e.g., U.N.W.C.C, LAW REPORTS OF TRIALS OF WAR CRIMINALS (1947-9). 

86. E.g., The Llandovery Castle (1921) in which officers of a U-boat were sentenced by a 
German tribunal for, "contrary to international law," firing upon and killing survivors of an 
unlawfully torpedoed hospital ship. CAMERON, THE PELEUS TRIAL, app. IX, (1945). 

87. E.g., Drierwalde Case (1946), 1 U.N.W.C.C, supra note 85, at 81 [killing captured 
RAF personnel contrary to art. 23 (c) ] . 

88. See Mue/Zer and Neumann (1921) for cases tried by a German tribunal involving ill 
treatment of prisoners of war contrary to the German Penal and Military Penal Codes. 
H.M.S.O., Cmd. 1422, at 26, 36. 

89. See, e.g., Buhler Trial, Polish Supreme National Tribunal, 14 U.N.W.C.C, supra note 
85, at 23 (1948). 

90. See UNGA Res. 95(1), Dec. 11, 1946, and Principles of International Law Recognized 
in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 1950 Int'l Law 
Comm., reprinted in Schindler & Toman, supra note 61, at 921, 923. 

91. Schindler & Toman, supra note 61, at 745. 

92. (1976). Reprinted in id. at 163. 

93. (1980). Reprinted in id. at 179, 35 I.L.M. 1209, 1217 (1996). 

94. (1993). 31 I.L.M. 800 (1993). 

95. Reprinted in Schindler & Toman, supra note 61, at 843. See Frits Kalshoven, 
Commentary on the Declaration of London, in NATALINO RONZITTI, THE LAW OF NAVAL 
WARFARE 257 (1988). 

96. See C JOHN COLOMBOS, THE LAW OF PRIZE 25-8 (1949); see also Kalshoven, supra 
note 95, at 271. 

97. The Astypalia, 31 I.L.R. 519 (1966). 

98. Reprinted in Schindler & Toman, supra note 61, at 113. 

99. Reprinted in id. at 883. 
100. Reprinted in id. at 207. 



76 



Leslie C, Green 



101. Id. See also JAMES M. SPAIGHT, AIR POWER AND WAR RIGHTS 42-3 (1947); 
HOWARD LEVIE, 1 THE CODE OF INTERNATIONAL ARMED CONFLICT 207-26 (1985). 

102. Shimoda v.Japan, 8 JAP. ANN. INT'LL. 212, 237-8 (1963); 32 1.L.R. 626, 631 (1966). 

103. UNITED STATES AIR FORCE, INTERNATIONAL LAW— THE CONDUCT OF ARMED 

Conflict and Air Operations (AFP 110-31), para. 5-3(c), (1976). 

104. Art. 49(3). 

105. Reprinted in Schindler & Toman, supra note 61, at 115. 

106. See n. 94 supra. 

107. Reprinted in Schindler & Toman, supra note 61, at 339. 

108. For Germany's attitude to Soviet prisoners, see Nuremberg Judgment, supra note 83, at 
46-8, 91-2; 41 AM. J. INT'L L. 226-9, 282-3 (1947). 

109. See HOWARD LEVIE, DOCUMENTS ON PRISONERS OF WAR doc. 191 (1979). For an 
account of Japan's treatment of prisoners of war, see, e.g., TOSHIYUKI TANAKA, HIDDEN 
HORRORS (1996). 

110 Reprinted in Schindler & Toman, supra note 61, at 91 1. 
111. Kellogg-Briand Pact, 1928, 94 L.N.T.S. 57. 

112 Nurembergjudgment, supra note 83, at (H.M.S.O.) 13, 39-41; 41 AM. J. INT'LL. 218-20, 
486-8 (1947). 

113 See, e.g., Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B. INT'L L. 178 (1945). 

114. Here the Commission is reproducing words adopted by Commission of Experts on the 
Former Yugoslavia, U.N. Doc. S/1994/674 (1994) at paras. 84-6. 

115. U.N. Doc. S/1994/125 (1994) at paras. 113-8. 

116. Reprinted in Schindler & Toman, supra note 61, at 231. 

117. Res. 95(1), (U.N. GAOR, 5th Sess., Supp. No. 12, Doc A/1316 (1950), reprinted in id. at 
921. 

118. Reprinted in id. at 923. 

119. (1991). 30 I.L.M. 1584(1991). 

120. Supra note 74. 

121. Id. 

122. I - Arts. 49, 50; II -Arts. 50, 51; III - Arts. 129, 130; IV - Arts. 146, 147. 

123. Reprinted in Schindler & Toman, supra note 61, at 261. 

124. Reprinted in id. at 263. 

125. Reprinted in id. at 251. 

126. The Distinction Between Military Objectives and Non-Military Objectives, Resolution 
adopted by the Institute of International Law, Edinburgh, Sept. 9, 1969, 2 ANNUAIRE 
L'INSTITUT DE DROIT INTERNATIONAL 375 (1969), reprinted in Schindler and Toman, supra 
note 61, at 265. 

127. Letter from General Counsel, Dep't of Defense, to Sen. Edward Kennedy, Chairman, 
Subcommittee on Refugees, Committee of Judiciary, Sept. 22, 1972, 67 AM. J. INT'L L. 122 
(1973). 

128. Supra note 126. 

129. Id. 

130. G.A. Res. 2675 (XXV), reprinted in Schindler & Toman, supra note 61 ,at 267. 

131. See, e.g., Leslie C. Green, Derogation of Human Rights in Emergency Situations, 16 CAN. 
Y.B. INT'LL. 92(1978). 

132. Reprinted in Schindler & Toman, supra note 61, at 137. 

133. 32 I.L.M. 800(1993). 

134- Reprinted in Schindler & Toman, supra note 61, at 621 & 689. 



77 



The Law of War 



135. Art. 1(4). 

136. Art. 44(3). 

137. General List No. 95, July 8, 1996, 35 I.L.M. 809 (1996). 

138. "In cases not covered by this Protocol or other international agreements, civilians and 
combatants remain under the protection and authority of the principles of humanity and from 
the dictates of public conscience." Art. 1, para. 2. 

139. "Nothing in the present Charter shall impair the inherent right of individual or 
collective self-defence if an armed attack occurs against a Member of the United Nations, until 
the Security Council has taken the measures necessary to maintain international peace and 
security. . . ." 

140. At paras. 74, 75, 76, 78, 79, 85-7, 90, 94 & 95-7. 

141. U.S. Dept of Defense, Conduct of the Persian Gulf War App. o (the role of 

THE LAW OF WAR), 31 I.L.M. 615 (1992). 

142 Reprinted in Schindler & Toman, supra note 61, at 179 (Protocol I at 185; II at 185; III at 
190). See William Fenrick, New Developments in the Law Concerning the Use of Conventional 
Weapons in Armed Conflict, 19 CAN. Y.B. INT'L L. 229 (1981). 

143. Art. 1(b). 

144. 35 I.L.M. 1217 (1996). 

145. Additional Protocol II, supra note 74, art. 1(1). 

146. Id. 

147. Id., Art. 2. 

148. 35 I.L.M. 1209(1996). 

149. U.N. CHARTER Art. 25. 

150. See, e.g., Leslie C. Green, The Gulf "War," the UN and the Law of Armed Conflict, 28 
ARCHIV DES VOLKERRECHTS 369 (1991). 

151. Protocol I, supra note 74, Art. 1(2) (paraphrasing the Martens Clause). 

152. See, e.g., charges in the Einsatzgruppen Case (US v. Ohlendorf, 1947). Charge 10 of the 
Indictment alleged "acts and conduct . . . which constitute violations of the general principles of 
criminal law as derived from the criminal law of all civilized nations." 4 U.N.W.C.C., supra note 
85, at 21. 

153. See, e.g. ICRC statements: The Soldiers' Rules, INT'L REV. RED CROSS 27 Uan.-Feb. 
1978); Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts, in 
Schindler &. Toman, supra note 61, at 734; Non-International Conflicts, INT'L REV. RED CROSS 
278 (Sept.- Oct. 1989). All three are reproduced in LESLIE C. GREEN, THE CONTEMPORARY 
LAW OF ARMED CONFLICT 335-7 (1993). 



78 



IV 



Shooting Down Drug Traffickers 



Phillip A. Johnson 



HIS IS THE STORY of how a United States statute, enacted to combat 
sabotage of commercial airliners by terrorists, produced the completely 
unintended result of shutting down a major element of coalition counterdrug 
operations in South America for seven months. It is also the story of how the 
United States Government solved that problem, but left unresolved significant 
international law issues concerning the use of force against civil aircraft 
suspected of drug trafficking. 

Coalition Counterdrug Operations 

There is no doubt that international drug trafficking causes significant harm 
to the United States. Illicit drug use by more than a million U.S. citizens creates 
crime and other serious social and public health problems, and the huge illegal 
profits generated by illicit drug trafficking present a threat to the integrity of 
financial institutions and public officials. As bad as the drug problem may be for 
the U.S., it is infinitely worse for the nations where illicit drugs are produced, 
processed, and transported. The wealth and extreme violence of drug gangs 
have corrupted and intimidated public officials, distorted national economies, 
denied the governments of these nations effective control over their borders 



Shooting Down Drug Traffickers 



and large areas of their territory, and in some cases provided direct support for 
armed rebellions. 

A number of nations in the Caribbean and in Central and South America, 
which together supply much of the illicit drugs entering the U.S., have agreed 
to cooperate with the United States in coalition counterdrug operations. With 
U.S. support, they have carried out some very significant drug suppression 
operations, including crop eradication, destruction of processing facilities, 
interference with the supply of precursor chemicals, interruption of 
transportation networks, seizure of drugs, confiscation of funds, and arrest, 
prosecution, and punishment of offenders. The United States has provided 
funds, equipment, training, technical advice, transportation, and intelligence 
to the effort. Host nations rely on such support to carry out operations 
involving direct confrontation with suspected traffickers, such as arrest, 
search, and seizure. Our personnel are limited to a support role out of respect, 
in part, for host nation sovereignty, which traditionally carries with it a 
monopoly on the exercise of police and military power within its borders. The 
restrictions are also a product of a broader policy against involving U.S. military 
units in arrests and seizures, whether in foreign nations, on the high seas, or 
within U.S. territory. 1 

For example, in a number of nations, U.S. military forces have provided and 
operated ground-based and aerial radar and communications interception 
facilities, the information from which has been supplied to the host nations. 
This information has been used to spot suspected drug trafficking flights and 
determine their routes and schedules, locate airfields, identify aircraft 
(sometimes leading to identification of their crew members and owners), force 
aircraft to land or to leave the nation's airspace, or execute an "end-game" in 
which host nation police or military forces have carried out raids on airfields 
and other facilities. In a statement to Congress on 10 March 1994, the 
Department of Defense "drug czar" said that a shift in counterdrug policy 
toward operations in the "source nations" would result in increasing this type of 
U.S. support to Colombia, Bolivia, and Peru, which were three source nations 
who had demonstrated the political will to combat narcotics trafficking. 2 

By early 1994, both Colombia and Peru had announced that they intended 
to shoot down suspected drug trafficking aircraft whose pilots ignored 
directions to land. On 1 May 1994, the United States stopped providing 
intelligence to Colombia and Peru concerning suspected drug trafficking 
flights. There were reports that the Departments of Defense and State 
vehemently disagreed on the wisdom of this action, but there appears to be no 



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Phillip A. Johnson 



dispute that the reason for this change in policy was centered on issues of 
domestic and international law. 3 

The Domestic Criminal Law Issue 

The U.S. domestic law problem had its origin in the Montreal Convention, 
which was concluded 23 September 1971 as a measure to combat terrorism 
against civilian airliners. Each contracting State is obligated to either prosecute 
or extradite persons found in its territory who are accused of placing bombs on 
civil aircraft or of damaging or destroying such aircraft. Under the Montreal 
Convention, a State has jurisdiction to prosecute an offender (1) when the 
offense was committed in its territory, (2) when the offense was committed 
against or on board an aircraft registered in that State, (3) when the aircraft on 
board which the offense was committed lands in its territory with the alleged 
offender still on board, or (4) when the aircraft was leased to a lessee which has 
its permanent place of business in that State. The Convention requires each 
Contracting State to make certain offenses punishable under its domestic 
criminal law "by severe penalties." 4 

In satisfaction of this obligation, and acting partly in reaction to the August 
1983 Soviet shoot-down of Korean Air Lines Flight 007 (KAL 007), Congress 
enacted the Aircraft Sabotage Act of 1984, which, inter alia, makes it a crime to 
damage or destroy a civil aircraft registered in a country other than the United 
States. 5 Since 1956 it has been a violation of 18 U.S.C. § 32 to commit similar 
acts against aircraft registered or operated in the United States. The material 
provisions of the Aircraft Sabotage Act were codified at 18 U.S.C. § 32(b) (2) . 

After Peru and Colombia announced their shoot'down policies, officials in 
several agencies became concerned that 18 U.S.C. § 32(b)(2) might make 
military members and other government officials and employees subject to U.S. 
criminal prosecution if they supplied intelligence information or other 
assistance to a foreign government knowing that the government concerned 
intended to use it to shoot down civil aircraft. Ultimately, the Deputy Attorney 
General wrote to the Deputy National Security Adviser that it was 
"imperative" to cut off the supply of the radar information. 6 The analysis 
underlying this position is stated in a 14 July 1994 memorandum from the 
Department of Justice's Office of Legal Counsel, the conclusions of which can 
be briefly summarized as follows: 

(1) 18 U.S.C. § 32(b)(2) was intended by Congress to apply 
extraterritorially. This is clear from its language, from the prior existence of a 
separate statute that prohibited similar acts within the territory of the United 

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Shooting Down Drug Traffickers 



States, and from the statute's purpose, which was to satisfy U.S. obligations 
under the Montreal Convention. 

(2) The statute applies to government actors, including law enforcement 
officers and military personnel of foreign countries such as Colombia and Peru. 

(3) U.S. Government personnel who supply intelligence to another 
government with reason to believe it will be used to commit violations of 18 
U.S.C. § 32(b) (2) may be subject to prosecution as an aider or abettor under 18 
U.S.C. § 2(a) or as a conspirator under 18 U.S.C. § 371. 

(4) If a death results, the death penalty or life imprisonment may be 
authorized under 18 U.S.C. § 34. 

(5) No exemption was provided in the statute for military members or other 
U.S. Government officers or employees, or for law enforcement, intelligence, 
or national security activities. 7 

This concern for the possible criminal liability of U.S. officials, including 
military members, seems to have been the primary motivation for the cutoff of 
radar generated information on 1 May 1994. The Governments of Peru and 
Colombia objected strongly, 8 and the reaction of members of Congress was no 
less heated. The chairmen of the House Foreign Affairs Subcommittee on the 
Western Hemisphere and of the Subcommittee on International 
Security — both members of the President's party — denounced the 
Administration's position as "absurd." 9 The Administration's effort to obtain 
passage of remedial legislation was greatly hampered by the strongly held 
opinion among many Congressmen that 18 U.S.C. § 32(b)(2) was never 
intended to apply to coalition counterdrug operations, and that Congress had 
more important things to do than to pass a remedial statute to satisfy the 
Administration's overcautious approach to the problem. In any event, 
however, Congress enacted Section 1012 of the National Defense 
Authorization Act for Fiscal Year 1995, 10 which provided for a drug 
interdiction exemption once the President makes certain determinations. This 
provision is codified at 22 U.S.C. § 2291 — 4, which reads in part: 

Official Immunity for authorized employees and agents of the United States 
and foreign countries engaged in interdiction of aircraft used in illicit drug 
trafficking 

(a) Employees and agents of foreign countries 

Notwithstanding any other provision of law, it shall not be unlawful for 
authorized employees or agents of a foreign country (including members of the 

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Phillip A. Johnson 



armed forces of that country) to interdict or attempt to interdict an aircraft in 
that country's territory or airspace if — 

(1) that aircraft is reasonably suspected to be primarily engaged in 
illicit drug trafficking; and 

(2) the President of the United States, before the interdiction occurs, 
has determined with respect to that country that — 

(A) interdiction is necessary because of the extraordinary threat 
posed by illicit drug trafficking to the national security of that 
country; and 

(B) the country has appropriate procedures in place to protect 
against innocent loss of life in the air and on the ground in 
connection with interdiction, which shall at a minimum include 
effective means to identify and warn an aircraft before the use of 
force directed against the aircraft. 

(b) Employees and agents of the United States 

Notwithstanding any other provision of law, it shall not be unlawful for 
authorized employees or agents of the United States (including members of the 
Armed Forces of the United States) to provide assistance for the interdiction 
actions of foreign countries authorized under subsection (a) of this section. The 
provision of such assistance shall not give rise to any civil action seeking money 
damages or any other form of relief against the United States or its employees or 
agents (including members of the Armed Forces of the United States) . 

On 1 December 1994, the President signed Determination of President No. 
95-7, "Resumption of U.S. Drug Interdiction Assistance to the Government of 
Colombia," 11 in which he made the necessary determinations under the 
statute. On 8 December 1994, a similar determination was signed for Peru. 12 
The United States promptly resumed providing radar information to Colombia 
and Peru, and it is reported that in 1995 Peru and Colombia seized or destroyed 
thirty-nine aircraft carrying drugs, driving drug traffickers to rely almost 
exclusively on land and water means of transport in those countries. 13 

This seems to be a happy ending, but fans of this legislative fix should take 
careful note of its two major limitations, both of which were clearly quite 
intentional. First, it does not apply to nations for which the necessary 
Presidential determinations have not been made. For example, in May 1995 
the Mexican government announced that its military aircraft would be used to 

83 



Shooting Down Drug Traffickers 



"intercept" aircraft suspected of transporting cocaine through Mexican 
airspace. 14 Both Mexican policy in this area and U.S. military support for 
Mexican counterdrug operations are in their formative phases, and only time 
will tell whether Presidential determinations will be sought for Mexico or other 
nations. The second major limitation is that the statutory exception applies 
only when the aircraft intercepted "is reasonably suspected to be primarily 
engaged in illicit drug trafficking." If a host nation uses U.S. intelligence or 
other assistance to shoot down civil aircraft for any other purpose, such as 
enforcement of other criminal laws, no exception to the application of 18 
U.S.C. § 32(b) (2) would appear to be available. 

This entire episode demonstrates once again the Iron Law of Unintended 
Consequences, as a statute enacted for an indisputably worthy purpose turns 
out to have unfortunate and wholly unintended consequences when its plain 
language is applied in unforeseen circumstances. 15 

International Law Issues 

The principal international law issue is the question of when — if 
ever — force can be used against civil aircraft. The Chicago Convention of 
1944, which established the legal framework for international civil aviation, 
contains only one reference to the relationship between State aircraft and civil 
aircraft — Article 3 (d) provides that the contracting States must operate their 
state aircraft with "due regard" for the safety of civil aircraft. 16 There is strong 
support for the view that this provision is merely declarative of customary 
international law, but as with most invocations of customary international law, 
there have been sharp differences of opinion as to its practical application. 

The positions taken by various nations in response to a number of 
post- World War II incidents in which scheduled airliners were fired upon 
indicate a majority view that there is an international legal obligation not to 
use force against civilian airliners in international service, but that this 
obligation is subject to the inherent right of self-defense recognized in Article 
5 1 of the UN Charter. The right of self-defense, however, is strictly limited by 
the principles of necessity and proportionality, and every reasonable 
precaution must be exhausted in order to avoid the loss of life. These 
precautions include communicating with the aircrew to divert it away from 
sensitive areas, escorting it out of national airspace, requiring it to land, 
or — as a last resort — firing warning shots. When Bulgaria shot down an El Al 
airliner in 1955, Israel shot down a Libyan airliner over the Sinai in 1973, the 
Soviet Union crippled a Korean airliner in 1978, and the Soviet Union 

84 



Phillip A. Johnson 



destroyed KAL 007 in 1983, their actions were all roundly condemned. In each 
case, there appeared to be an international consensus that the actions taken 
were not justified as self-defense. 17 

The International Civil Aviation Organization (ICAO) was created by the 
Chicago Convention to serve as a policy forum for its member nations and as a 
mechanism to promote technical cooperation for the conduct of international 
civil aviation. After military aircraft of the Soviet Union shot down KAL 007 
on 13 August 1983, killing its 269 passengers and crew, the resulting 
international outrage led to the unanimous adoption by the 152-member 
International Civil Aviation Organization of a new Article 3 bis to the Chicago 
Convention, intended to more specifically address the existence of an 
international legal obligation to refrain from using force against civil aircraft: 

(a) The contracting States recognize that every State must refrain from resorting 
to the use of weapons against civil aircraft in flight and that, in case of 
interception, the lives of persons on board and the safety of aircraft must not be 
endangered. This provision shall not be interpreted as modifying in any way the 
rights and obligations of States set forth in the Charter of the United Nations. 

(b) The contracting States recognize that every State, in the exercise of its 
sovereignty, is entitled to require the landing at some designated airport of a civil 
aircraft flying above its territory without authority or if there are reasonable grounds 
to conclude that it is being used for any purpose inconsistent with the aims of this 
Convention; it may also give such aircraft any other instructions to put an end to 
such violations. For this purpose, the contracting States may resort to any means 
consistent with relevant rules of international law, including the relevant provisions 
of this Convention, specifically paragraph (a) of this Article. Each contracting State 
agrees to publish its regulations in force regarding the interception of civil aircraft. 

(c) Every civil aircraft shall comply with an order given in conformity with 
paragraph (b) of this Article. To this end each contracting State shall establish 
all necessary provisions in its national laws or regulations to make such 
compliance mandatory for any civil aircraft registered in that State or operated 
by an operator who has his principal place of business or permanent residence in 
that State. Each contracting State shall make any violation of such applicable 
laws or regulations punishable by severe penalties and shall submit the case to its 
competent authorities in accordance with its laws or regulations. 

(d) Each contracting State shall take appropriate measures to prohibit the deliberate 
use of any civil aircraft registered in that State or operated by an operator who has his 
principal place of business or permanent residence in that State for any purpose 

85 



Shooting Down Drug Traffickers 



inconsistent with the aims of this Convention. This provision shall not affect 
paragraph (a) or derogate from paragraphs (b) and (c) of this Article. 18 

The United States has not yet ratified Article 3 bis, and the number of 
ratifications is still well short of the 102 needed to bring it into effect. 
Nevertheless, there is strong support for the view that it is merely declarative of 
existing customary international law. 19 

There are two distinctly different views concerning whether or not the 
obligation stated in Article 3 bis to refrain from using weapons against civil 
aircraft in flight remains subject to a right of self-defense. One view — that the 
obligation not to use force is subject to no exception for self-defense — is 
expressed in various ICAO publications. ICAO regularly issues a number of 
publications that, while not legally binding in themselves, are some evidence of 
the member States' understanding of applicable international law. For 
example, there is an ICAO publication entitled International Standards — Rules 
of the Air (Annex 2 to the Convention on International Civil Aviation). This 
publication contains provisions adopted by the ICAO Council from time to 
time, acting in a "quasi-legislative function," which creates an expectation that 
contracting States will comply within their territories with the standards 
approved by the Council unless they file a "difference" concerning particular 
rules. 20 

Appendix 1 to the Rules of the Air provides standard visual signals for use 
when civil aircraft are intercepted by State aircraft. Appendix 2 contains the 
following provision, which was added as Amendment 27 to the Rules of the Air 
by vote of the ICAO Council on 10 March 1986: 

1 . Principles to be observed by States 

1.1 To achieve the uniformity in regulations which is necessary for the safety 
of navigation of civil aircraft due regard shall be had by Contracting States to the 
following principles when developing regulations and administrative directives: 

a) interception of civil aircraft will be undertaken only as a last resort; 

b) if undertaken, an interception will be limited to determining the 
identity of the aircraft, unless it is necessary to return the aircraft to its 
planned track, direct it beyond the boundaries of national airspace, guide it 
away from a prohibited, restricted or danger area or instruct it to effect a 
landing at a designated airdrome; 

c) practice interception of civil aircraft will not be undertaken; 

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Phillip A. Johnson 



d) navigational guidance and related information will be given to an 
intercepted aircraft by radiotelephony, whenever radio contact can be 
established, and 

e) in the case where an intercepted civil aircraft is required to land in 
the territory overflown, the aerodrome designated for the landing is to be 
suitable for the safe landing of the aircraft type concerned. 21 

This provision has been controversial. The United States and a number of 
other members have stated that they consider this action by the ICAO Council 
to be ultra vires, in that Article 3(a) of the Chicago Convention states clearly 
that the Convention applies only to civil aircraft, and not to state aircraft. 
When the Council adopted the language, the U.S. informed the ICAO 
Secretary General that it disapproved of Amendment 27 on this basis. The 
majority view in the ICAO Council, however, was that the provision in Article 
3 (d) , requiring member States to operate their state aircraft with "due regard" 
for the safety of civil aircraft, provided authority for the adoption of 
Amendment 27. n 

Other ICAO publications are prepared by the Secretariat and are only 
advisory in nature. Among these are a Manual Concerning Safety Measures 
Relating to Military Activities Potentially Hazardous to Civil Aircraft 
Operations, 23 and a Manual Concerning Interception of Civil Aircraft. 24 The 
latter publication describes in considerable detail the circumstances in which 
interception may occur (including a suspicion that an aircraft is transporting 
illicit goods) as well as detailed discussions of radio signals, flight plans, 
publication of information about restricted areas, position reporting systems, 
radar identification, enhancement of visual markings, procedures to be 
followed when radio communications fail, procedures for interception, and 
related topics. A reminder is included that intercepted aircraft may not 
comply with the instructions given by ground controllers or by intercepting 
aircraft because of confusion, inability to interpret visual signals correctly, 
linguistic misunderstanding of radio messages, hypoxia, or because of inability to 
comply due to malfunction, hijacking, or inadequate fuel. Finally, advice is given as 
to the action to be taken by the intercepting pilot in the event of noncompliance : 

4.1.2.16 In the event that an intercepted aircraft fails to respond to repeated 
attempts to convey instructions by visual signals or radiotelephony, the 
intercepting aircraft should continue to observe the intercepted aircraft until it 
lands or leaves the restricted or prohibited airspace. A full report on the incident 
should then be submitted to the appropriate authority to the State of registry for 
action (see 2.10, Article 3 bis). 15 

87 



Shooting Down Drug Traffickers 



Any mention of the possibility of firing a weapon at a nonresponsive aircraft 
is conspicuously absent from this publication. This is fully consistent with the 
published views of the former Director of the ICAO Legal Bureau, Dr. Michael 
Milde, who has written that an intercepting aircraft may use reasonable force 
to enforce compliance by an intercepted aircraft, but not if it involves the use of 
weapons against it. 26 One presumes this means that a display of force, including 
the firing of warning shots, forms the outer permissible limit of "reasonable 
force," and that weapons fire directed at a noncomplying aircraft will always be 
deemed to exceed "reasonable force." 

A resolution adopted by the ICAO Council in response to the destruction 
by Cuba of two U.S. -registered civil aircraft on 24 February 1996 provides 
further support for the view that there is an absolute prohibition against firing 
weapons at civil aircraft. The relevant paragraphs are as follows: 

THE COUNCIL 



2. REAFFIRMS the principle that States must refrain from the use of weapons 
against civil aircraft in flight and that, when intercepting civil aircraft, the lives of 
persons on board and the safety of the aircraft must not be endangered; 



4. REAFFIRMS its condemnation of the use of weapons against civil aircraft in 
flight as being incompatible with elementary considerations of humanity, the 
rules of customary international law as codified in Article 3 bis of the Convention 
on International Civil Aviation, and the Standards and Recommended Practices 
set out in the Annexes to the Convention; 27 



When they adopted this resolution, the members of the ICAO Council may 
have intended to reaffirm the view that the prohibition against using weapons 
against civil aircraft is not subject to any exception such as self-defense. On the 
other hand, they may have decided the issue of self-defense was not fairly raised 
by the facts of the incident, and therefore it need not be discussed. Cuba 
maintained that it had acted "in defense of its sovereignty," 28 but it was clear 
that the previous acts of the Brothers to the Rescue in Cuban territory, the 
most egregious of which apparently consisted of dropping subversive leaflets, 
were not much of a threat to Cuban national security. Furthermore, there was 

88 



Phillip A. Johnson 



no evidence that the planes that were attacked by Cuba had, during that 
particular flight, engaged in such conduct, and they appear to have been 
outside of Cuban territorial airspace at the time of the attack. 

The view that the obligation to refrain from using force against civil aircraft 
is subject to at least one exception — the inherent right of self-defense — is 
supported by the broad language of Article 51 of the United Nations Charter 29 
and by the second sentence of paragraph (a) of Article 3 his: "This provision 
shall not be interpreted as modifying in any way the rights and obligations of 
States set forth in the Charter of the United Nations." The sentence appears to 
have been added to the text expressly to make it clear that Article 5 1 applies. It 
is also interesting to read the various commentaries on the Soviet shootdown of 
KAL 007; none of them take the absolute position that there could never be a 
right to fire weapons in self-defense against a civil aircraft. Rather, they go to 
some lengths to demonstrate that there was no factual basis for any argument 
that the shoot-down was necessary, and that obvious alternatives that would 
have avoided innocent loss of life were not exhausted. 30 

The U.S. statute authorizing assistance to countries who have adopted a 
shoot'down policy can be read as relying on the rationale of self-defense. This 
view is supported by the requirement that the President find, inter alia, that 
there is an "extraordinary threat posed by illicit drug trafficking to the national 
security of that country." The international law doctrine of self-defense, 
however, does not provide a particularly good fit for the drug shoot-down 
problem, for the following reasons: 

• First, there has been a long-standing controversy about whether the right 
to use force in self-defense can exist in the absence of an armed attack. This 
argument usually arises in connection with anticipatory or preemptive 
self-defense, but it clearly has considerable force when the issue is whether 
force can be used against aircraft that in most cases have not displayed or used 
armed force, and are not expected to do so. 

• Second, while the drug problem as a whole may pose an extraordinary threat 
to the national security of a country, it will probably be hard to argue that any 
individual aircraft flight presents the sort of urgent danger that has traditionally 
been considered necessary to trigger the right to use force in self-defense. 31 

• Third, the offenders typically are not members of the armed forces of 
another nation, or even armed agents as envisaged in the term 
"state-sponsored terrorism." 32 While drug traffickers have cozy relationships 
with the governments of a number of nations, they are not generally operating 
as proxies for those governments in the execution of national policy. They are 
criminals, not actors, on the international political scene. 

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Shooting Down Drug Traffickers 



In fact, the law of international civil aviation, including Article 3 bis, will not 
apply at all to many shoot-down incidents when the traffickers are nationals of 
the nation shooting them down, when their aircraft are not registered in another 
nation, and when their flights do not cross national borders. International law 
regulates the conduct of nations in their dealings with one another and with each 
other's nationals, property, and corporations. With the limited exception of 
human rights law, international law does not attempt to regulate a nation's 
dealings with its own citizens. The negotiating history of Article 3 bis makes it 
quite clear that it is intended to apply only to "foreign aircraft" and not to aircraft 
of a state's own registration engaged in purely domestic traffic. 33 For such flights, 
the primary law to be applied is the nation's domestic law, including its law 
governing the permissible use of force against a fleeing suspected felon. 34 Where 
an aircraft does not display any registration number or flag and does not 
otherwise communicate any claim to be registered in another nation or to be 
engaged in an international flight, it would be hard to quarrel with a presumption 
by the local authorities that it is a domestic flight. 

It is also clear that foreign civil aircraft are generally subject to the criminal 
law of any nation in whose territory they operate. The primary international 
law question is -how domestic criminal law can be practically enforced against 
foreign aircraft. 35 The ultimate issue becomes whether Article 3 bis and 
customary international law prevent law enforcement authorities of a nation 
from using weapons against foreign aircraft in its territory even though such use 
of force is authorized under its domestic law. 

A nation's interests in a law enforcement situation differ markedly from those 
involved in a border intrusion. When a nation is primarily concerned with ending 
an isolated unauthorized intrusion into its territorial airspace, that interest is 
served if the intruder departs. In a drug trafficking situation, the nation's interest in 
suppressing persistent drug trafficking is not served by simply escorting individual 
aircraft out of its territory, especially if that was the aircraft's intended destination. 
Reliance on enforcement actions by the aircraft's state of registry will in most cases 
be fruitless. The result may be that the nation concerned may have no practical 
enforcement option except to shoot down the suspected drug trafficker. It appears 
to this author that an attempt to apply Article 3 bis and customary international 
law in a manner that deprives nations of any practical remedy adequately serving 
their vital interests is doomed to failure. 

The international community should also recognize that the use of force 
against civil aircraft involved in drug trafficking does not necessarily threaten 
the safety of legitimate civil aviation. Drug traffickers generally operate 
unregistered aircraft, or obscure any identifying markings. They typically file no 

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Phillip A. Johnson 



flight plans, refuse to communicate with ground controllers or intercepting 
aircraft, and disregard instructions to land at designated airfields. So long as the 
pilot of an innocent aircraft complies with ICAO standards in these areas, it will 
be perfectly safe from attack by a nation that follows procedures of the sort 
whose existence the President must certify under the U.S. statute. The greatest 
contribution of the statute may turn out to be that it requires both the U.S. and 
the nations it assists to focus on these precautions. 

Accordingly, the most promising approach to understanding the 
international law issues raised by the use of weapons against drug trafficking 
aircraft appears to be a law enforcement perspective, rather than a self-defense 
analysis. If a nation's domestic law permits using force against a suspected drug 
trafficking aircraft that refuses to comply with instructions from an 
intercepting aircraft, and if it observes rigorous precautions against mistakenly 
attacking innocent aircraft, the use of force in these circumstances should be 
regarded as legitimate. 

In support of this conclusion, one could argue further that the language of 
Article 3 bis to the effect that the phrase "This provision shall not be interpreted as 
modifying in any way the rights and obligations of States set forth in the Charter of 
the United Nations," not only preserves the right of nations to use force in 
self-defense, but that it also preserves their immunity from outside interference in 
"matters which are essentially within the domestic jurisdiction of any State" as 
guaranteed in Article 2 (7) of the Charter. The administration of criminal law 
within a nation's borders has traditionally been considered such a matter. 

Additionally, there is very little likelihood that a nation adopting a policy of 
shooting down drug trafficking aircraft will be subject to serious criticism or 
sanctions from the international community. Drug traffickers have no vocal 
champions among the family of nations, and the interests of legitimate civil 
aviation will not be threatened as long as appropriate precautions are in place. 
In fact, there appears to be no record to date that any nation has protested the 
shoot-down policies adopted by Peru and Colombia, or the assistance provided 
to them by the United States. The only event likely to precipitate such a protest 
would be a ghastly mistake in which a planeload of innocents is blown out of 
the sky. 



Whatever one may think of the urgency of solving the domestic law 
issues raised by the U.S. policy of assisting other nations which 
shoot down drug trafficking aircraft, they appear to have been solved by the 

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Shooting Down Drug Traffickers 



1994 statute codified at 22 U.S.C. § 2291-4. The international law issues raised 
by a drug shoot-down policy are still unsettled, but such a policy should be 
accepted as a legitimate law-enforcement measure so long as rigorous 
precautions are in place to prevent the loss of innocent life. 



Notes 



1. See generally, Chapter 18 of Title 10 U.S.C; Thomas S. M. Tudor & Mark E. Garrard, 
The Military and the War on Drugs, 37 AIR FORCE L. REV. 267 (1994). 

2. DEFENSE ISSUES, vol. 9, no. 21 (1994) [Prepared statement of Brian E. Sheridan, Deputy 
Assistant Secretary of Defense for Drug Enforcement Policy and Support, to the House 
Appropriations Defense Subcommittee] . 

3. Feud Hurts Bid to Stop Drug Flow, WASH. POST, May 29, 1994, at 1; U.S. Halts Flights in 
Andes Drug War Despite Protests, N. Y. TIMES, June 4, 1994, at 1. 

4. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil 
Aviation (Sabotage), September 23, 1971, 24 U.S.T. 564. 

5. 18 U.S.C.A § 32(b) (West Supp. 1996). 

6. A.M. Rosenthal, Saving the President, N. Y. TIMES, June 17, 1994, at 31. 

7. There was also discussion of possible civil liability for U.S. government agents, either in 
U.S. courts or in those of other nations. The remedial statute ultimately passed by Congress 
included immunity from civil suit. In addition, there was some concern expressed about whether 
the United States wanted to associate itself with law enforcement measures taken by other 
governments which would violate the U.S. Constitution when engaged in by U.S. law 
enforcement officials within the United States. For example, in Tennessee v. Garner, 471 U.S. 1 
(1985), the Supreme Court ruled that the use of deadly force to prevent a criminal suspect's 
escape was a violation of the Fourth Amendment unless the law enforcement officer has 
probable cause to believe that the suspect poses a threat of serious physical harm, either to the 
officer or to others. The U.S. Constitution clearly does not apply to the actions of another 
nation's officials within its own territory, but it raises a policy issue for U.S. officials which to this 
point has gotten relatively little attention. 

8. Lawrence J. Speer, "Incoherent" U.S. Drug Policy Angers S. America, WASH. TIMES, June 
23, 1994, at 15. 

9. Thomas W. Lippman, U.S. Refusal to Share Intelligence in Drug Fight is Called "Absurd," 
WASH. POST, August 4, 1994, at 12. 

10. Pub. L. No. 103-337. 

11. 59 Fed. Reg. 64,835(1994). 

12. Determination of President No. 95-9, Resumption of U.S. Drug Interdiction Assistance to 
the Government of Peru, 59 Fed. Reg. 65,231 (1994). 

13. Chris Black, South American Drug Route Targeted, BOSTON GLOBE, June 26, 1996, at 11. 

14. Tim Golden, Mexico Plans Bigger Role for Military against Drugs, N. Y. TIMES, May 23, 
1995, at 3. 

15. As another current example, several U.S. statutes threaten to create problems in the 
burgeoning field of information warfare. The U.S. criminal statutes prohibiting interception of 
or interference with communications, whose drafters carefully provided exemptions for 
criminal investigators and counterintelligence operatives to perform certain acts after 
authorization by a court or by specified intelligence officials, contain no exception for other 
national security activities. [See, e.g., 47 U.S.C.A. § 333 (West 1991) (Interference with 

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Phillip A. Johnson 



licensed radio communications); 50 U.S.C. § 1809 (West 1991) (Electronic surveillance of 
communications); Electronic Communications Privacy Act 18 U.S.C. A. § 2510-2522 (West 
1970 & Supp. 1996).] Another example is 18 U.S.C. § 1367, which makes it a crime to interfere 
with the operation of a weather or communications satellite. Once again, an exemption is 
provided for "lawfully authorized investigative, protective, or intelligence activity of a law 
enforcement agency or of an intelligence agency of the United States," but a broader national 
security exception will be needed if U.S. policy makers ever decide to implement meaningful 
space control programs. Most readers could probably supply examples of their own. 

16. Convention on International Civil Aviation, December 7, 1944, 59 Stat. 1693 
[hereinafter Chicago Convention] . 

17. For an excellent discussion of post-WW II incidents in which civilian airliners were shot 
down by various nations, and the applicable legal principles, see Bernard E. Donahue, Attacks on 
Foreign Civil Aircraft Trespassing in National Airspace, 30 AIR FORCE L. REV. 49 (1989). 

18. Protocol relating to an Amendment to the Convention on International Civil Aviation, 
10 May 1984, ICAO Doc. 9436. 

19. Ghislaine Richard, KAL 007: The Legal Fallout, IX ANN. OF AIR & SPACE L. 147 (1984) ; 
Michael Milde, Interception of Civil Aircraft vs. Misuse of Civil Aviation, XI ANN. OF AIR & SPACE 
L. 105, 113 (1986). 

20. Id. at 105-106. Under Article 12 of the Chicago Convention, the standards approved by 
the Council are absolutely binding over the high seas. 

21. Annex 2 to the Convention on International Civil Aviation, 9th ed., July 1990. 

22. Milde, supra note 19, at 114-122. 

23. ICAO Document 9554-AN/932, lsted., 1990. 

24. ICAO Document 9433-AN/926, 2nd ed., 1990. 

25. Id. at 4-5. 

26. Milde, supra note 19, at 127. 

27. ICAO LIBRARY BULLETIN, July 8, 1996. 

28. John M. Goshko, Cuban Aide Defends Air Attack, WASH POST, February 29, 1996, at 16. 

29. "Nothing in the present Charter shall impair the inherent right of individual or collective 
self-defence if an armed attack occurs against a Member of the United Nations, until the 
Security Council has taken measures necessary to maintain international peace and security " 

30. See Donahue, supra, note 17; Masukane Mukai, The Use of Force against Civil Aircraft: 
The Legal Aspects of Joint International Actions, XIX-II ANN. OF AIR & SPACE L. 567, 569 
(1994). 

3 1 . For an excellent discussion of the international law of self-defense, see, Timothy Guiden, 
Defending America s Cambodian Incursion, 11 ARIZ. J. INT. &COMP. L. 215 (1994). 

32. For an excellent discussion of right to use force in response to state-sponsored terrorism, 

see, Richard J. Erickson, Legitimate use of Military Force Against 
State-Sponsored International Terrorism (1989). 

33. Milde, supra note 19. 

34. It is beyond the scope of this article to pursue the question of what limitations on the use 
of force against fleeing felons — if any — are imposed by international human rights law. 

35. Milde, supra note 19, at 123-124. 



93 



V 



War Crimes 



Howard S. Levie 



HE BIBLE IS REPLETE WITH EXAMPLES of what today we would 
consider to be war crimes against humanity, but which in Biblical days 

were common and accepted acts of war. Many statements similar to the 

following will be found in the Bible: 

Thus we put to death all the men, women, and dependents in every city, as we 
did to Sihon King of Heshbon. All the cattle and spoil from the cities we took as 
booty for ourselves. 1 

You shall put all its males to the sword, but you may take the women, the 
dependents, and the cattle for yourselves, and plunder everything else in the 
city. 2 

That such actions were typical of the time demonstrates the distance that 
constraints on war have traveled over the past two millenia. 

Probably one of the earliest war crimes trials of which we have knowledge is 
the so-called "Breisach Trial," the trial of Peter von Hagenbach by a 
multinational tribunal in 1474. An area of the Upper Rhine, including the 
town of Breisach, was pledged to the Duke of Burgundy by the Archduke of 
Austria to guarantee a debt. As the Military Governor appointed by the Duke 



War Crimes 



of Burgundy, von Hagenbach instituted a brutal policy that included "murder, 
rape, illegal taxation and wanton confiscation of private property" against the 
citizens of Breisach and of the surrounding area. Eventually, von Hagenbach 
was seized by revolting German mercenaries and the citizens of Breisach and 
tried by a tribunal consisting of twenty-eight judges, eight from Breisach and 
two from each of the other Alsatian, German, and Swiss towns affected. His 
defense was "superior orders" — that he was merely complying with the orders 
of his master, the Duke of Burgundy. He was found guilty, deprived of his 
knighthood, and executed. Although his acts had been committed before the 
actual outbreak of war, the occupation of Breisach resembled a wartime 
occupation, and his offenses would now be considered to have been war 
crimes. 3 

There were, undoubtedly, war crimes trials conducted in the succeeding 
centuries, 4 but we find little documentation in that regard. However, in Dejure 
Belli Ac Pads Libri Tres, published in 1625, Hugo Grotius said: 

The fact must be recognized that kings, and those who possess rights equal to 
those kings, have the right of demanding punishment not only on account of 
injuries committed against themselves or their subjects, but also on account of 
injuries which do not directly affect them but excessively violate the law of 
nature or of nations in regard to any persons whatsoever. 5 

In effect, Grotius was saying that any sovereign had the right to try violators of 
the law of war even though neither he nor his subjects were the victims of the 
illegal act — the doctrine of universal jurisdiction over war crimes. 6 

During the American Civil War (1861-1865), the so-called Lieber Code, 
issued by the Union Army in 1863 as General Orders No. 100, contained the 
following provision: 

59. A prisoner of war remains answerable for his crimes committed against the 
captor's army or people, committed before he was captured, and for which he has 
not been punished by his own authorities. 7 

After the war's end, the Federal authorities tried a number of former 
Confederates for war crimes committed during the hostilities. 8 

Several decades later, during the Philippines "pacification" program that 
followed the Spanish- American War (1898), war crimes were committed by 
both sides. The United States Army tried not only guerrillas who had violated 
the law of war, 9 but also members of its own Army who had done likewise. 10 

96 



Howard S. Levie 



In and after the Boer War (1899-1902), the British army tried several war 
crimes cases, cases involving both its own personnel and personnel of the 
enemy. The 1902 Treaty of Vereeniging, which ended that conflict, provided: 

IV. No proceedings, civil or criminal, will be taken against any of the burghers so 
surrendering or so returning for any acts in connection with the prosecution of 
the war. The benefits of this clause will not extend to certain acts contrary to the usage 
of war which have been notified by the Commander-in-Chief to the Boer generals and 
which shall be tried by court-martial immediately after the close of hostilities. 11 

While hostilities were ongoing, the British tried three Australian officers of its 
army for war crimes; after the war, a Boer who had misused a white flag was 
tried. 

During World War I (1914-1918), violations of the law of war, war crimes, 
were committed and trials were conducted by both sides. One case which 
caused a furor in Great Britain was the trial, conviction, and execution by 
Germany of Charles Fryatt, captain of the British merchant vessel S.S. Brussels. 
At the outbreak of the war the British Admiralty had instructed all merchant 
captains that if approached by a German submarine on the surface, they were 
to try to ram it. This happened to Captain Fryatt, who saved his ship by 
attempting to ram the submarine which was then forced to depart. A year later 
the Brussels was captured by German surface vessels. Captain Fryatt was tried 
as having been an illegal combatant. His defense was that he had obeyed the 
order of his government. He was convicted and executed. At the time, the 
British termed this "judicial murder." As we shall see, the decision of the 
German court is now accepted international law. 

One article of the Treaty of Versailles, which ended World War I, provided 
for the trial of the ex-Kaiser of Germany by an international court "for a 
supreme offense against international morality and the sanctity of treaties." 12 
Today, we would probably designate that offense as falling within the term 
"Crimes against Peace." He was never tried because he had sought and 
obtained asylum in The Netherlands, which refused to extradite him despite 
demands by both France and the United Kingdom. The Treaty also provided 
for the surrender, to the former Allies for trial, of individuals alleged to have 
committed war crimes during the course of the hostilities. For political reasons, 
the Allies eventually agreed that such trials should be conducted by the 
Supreme Court of Leipzig. 13 After a dozen cases had been tried at the behest of 
Belgium, France, and the United Kingdom, most of which resulted in either 
unwarranted acquittals or grossly inadequate sentences, the Allies ceased 
sending cases to the German court. This experience demonstrated that the 

97 



War Crimes 



trial by enemy courts of war crimes allegedly committed by members of the 
enemy armed forces or civilian population against members of the armed 
forces, civilian population, or property of the victors was not a viable solution 
to the problem, and that more just results could be obtained in the courts of the 
victors. 14 

There were, however, two cases tried by the Supreme Court of Leipzig which 
are worthy of mention. Believing that the British were using their hospital 
ships, normally exempt from attack, for military purposes, the German 
Admiralty announced that such vessels must follow certain prescribed routes; 
if they were found in a barred route, they would be subject to attack. Finding 
the British hospital ship Dover Castle outside the prescribed routes, a German 
submarine sank it without warning. When the submarine commander was tried 
by the Supreme Court of Leipzig, his defense was that he had complied with the 
orders of his Government and his superiors. Despite the decision in the Fryatt 
Case, which had held that compliance with an order of one's government was 
no defense, he was acquitted. 15 

The second case of interest also involved a British hospital ship, the 
Llandovery Castle. While sailing across the Atlantic from Canada to Great 
Britain, it was sighted by a German submarine. For some unknown reason, the 
German submarine commander decided that it was carrying American aviators 
and torpedoed it. When survivors in life boats were interrogated, it became 
clear that the only persons who had been aboard were Canadian medical 
personnel and the crew. In order to cover up his crime, the German captain 
and two of his officers proceeded to machine-gun the lifeboats. One lifeboat 
escaped destruction and so the incident became known. At the end of the war, 
the captain disappeared, but his two officers were brought to trial. Their 
defense was "superior orders." In this case, the Court held that while 
compliance with the orders of a superior was normally a good defense, that was 
not so where, as here, "the order is universally known to everybody, including 
the accused, to be without any doubt whatever against the law." The accused 
were found to be guilty of a war crime. 16 

In 1928, the "Pact of Paris," also known as the "Kellogg-Briand Pact" after 
its progenitors, and technically known as the International Treaty for the 
Renunciation of War as an Instrument of National Policy, was drafted. It was 
accepted by forty-four States, including all of the then-major Powers except the 
Soviet Union. This Pact provided: 

Article 1. The High Contracting Parties solemnly declare in the names of their 
respective peoples that they condemn recourse to war for the solution of 

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Howard S. hevie 



international controversies, and renounce it as an instrument of national policy 
in their relations with one another. 

Article 2. The High Contracting Parties agree that the settlement or solution of 
all disputes or conflicts of whatever nature or of whatever origin they may be, 
which may arise between them, shall never be sought except by pacific means. 17 

During the course of World War II numerous statements were made by the 
members of the Allied Powers to the effect that upon the conclusion of 
hostilities there would be trials of those who had violated the law of war, 
including those who were responsible for the initiation of the war. Then, on 13 
January 1942, nine of the countries at war with Germany signed the 
Declaration of St. James. 18 The relevant provisions of that Declaration stated 
the signatories: 

Recalling that international law, and in particular the Convention signed at 
The Hague in 1907 regarding the laws and customs of land warfare, does not 
permit belligerents in occupied countries to commit acts of violence against 
civilians, to disregard the laws in force, or to overthrow national institutions, 

(1) affirm that acts of violence thus inflicted on the civilian populations have 
nothing in common with the conception of an act of war or a political crime as 
understood by civilised nations, 



(3) place among their principal war aims the punishment, through the 
channel of organised justice, of those guilty of or responsible for these crimes, 
whether they have ordered them, perpetrated them or participated in them. 19 

In addition, numerous official pronouncements to the same general effect were 
made by individual countries and by the Heads of State. 20 On 20 October 1943, 
a conference at the British Foreign Office resulted in the establishment of the 
United Nations Commission for the Investigation of War Crimes (this title was 
later changed to the United Nations War Crimes Commission); with the 
exception of the Soviet Union, all of the European Allies, and China were 
represented. 21 

Germany surrendered in May 1945, but even before then discussions had 
been entered into concerning the manner in which the punishment of the 
European war criminals was to be accomplished. From the beginning, the 
United States favored trials for all alleged war criminals, including the leaders. 

99 



War Crimes 



The Soviet Union also favored a judicial solution to the problem. The United 
Kingdom originally favored a political solution for the leaders, citing the 
difficulties of a trial by an international court, but ultimately agreed to a trial. 
At the Yalta Conference in February 1945, the decision was made that there 
would be a trial. The following May, at the organizing meeting for the United 
Nations in San Francisco, the United States circulated a draft proposal for such 
a trial to the representatives of the Provisional Government of France, the 
Soviet Union, and the United Kingdom. Supreme Court Associate Justice 
Robert Jackson was named as Chief Counsel for the United States by President 
Truman and immediately began conferring with all concerned. On 25 June 
1945 a conference of the four major Powers opened in London. They signed an 
Agreement to which was attached a Charter of the International Military 
Tribunal (IMT) on 8 August 1945. 22 Justice Jackson had offered Nuremberg, in 
the American Zone of Occupation, as a suitable place for the trial and this offer 
was accepted. 23 

The Charter of the International Military Tribunal listed the offenses within 
its jurisdiction, some of which were later alleged to be ex post facto. The offenses 
listed were: (1) crimes against peace; (2) war crimes; (3) crimes against 
humanity; (4) conspiracy to commit any of the foregoing; and (5) membership 
by the accused in an organization determined to be criminal. There was no 
provision for appeal, the decision of the Tribunal being final. 

Two other provisions of the Charter of the IMT are worthy of mention. First, 
contrary to prior general custom, but in accordance with the provision o{ the 
Treaty of Versailles for the trial of the ex-Kaiser, the Charter provided: 

Article 7. The official position of defendants, whether as Heads of State or 
responsible officials in Government Departments, shall not be considered as 
freeing them from responsibility or mitigating punishment. 

Second, following the decision of the German court in the case of Captain 
Charles Fryatt, the Charter provided: 

Article 8. The fact that the Defendant acted pursuant to order of his government 
or of a superior shall not free him from responsibility, but may be considered in 
mitigation of punishment if the Tribunal determines that justice so requires. 24 

The International Military Tribunal consisted of one judge and one 
alternate from each of the four countries. With each State participant having a 
Chief Counsel of equal rank, the prosecution could only act by agreement. 
After some difficulties, twenty-four individuals were indicted 25 and, on 18 

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Howard S. Levie 



October 1945, arraigned in Berlin. The trial itself took place at Nuremberg 
from 30 November 1945 to 31 August 1946, with judgment delivered on 1 
November 1946. Twelve accused received death sentences; three received 
sentences to imprisonment for life; four received sentences to 
imprisonment for specified terms; and three were acquitted. 26 The decision 
of the Tribunal was unanimous except that the Soviet judge dissented from 
the acquittals, the failure to adjudge the death sentence against Rudolph 
Hess, and the findings that several organizations were not criminal in 
nature. 27 

It was argued that "crimes against peace" had not been an international 
offense and that, therefore, it was improper to charge the accused with this 
offense. The Tribunal found that, in view of the Kellogg-Briand Pact, the 
making of aggressive war was a war crime which had existed before the 
outbreak of World War II and that the accused could, therefore, be guilty of 
the offense of having committed a crime against peace. 28 

When the Tribunal found that several of the Nazi organizations, such as the 
SS, the SD, and the Gestapo, were criminal in nature, that meant that every 
member of that organization was guilty of a war crime unless he could prove 
that he had not known of its criminal nature when he joined it and that he 
personally had never participated in its criminal activities. Inasmuch as the 
membership in these organizations numbered in the tens of thousands, the task 
of trying them was obviously beyond the resources of the Allied Powers. 
Accordingly, this chore was turned over to the German courts, which tried 
many thousands of these cases. 29 

The trial by the International Military Tribunal was only the tip of the 
iceberg. The Allied Control Council, the central authority for the four zones of 
occupation, enacted a law intended to bring some uniformity into the war 
crimes prosecution programs of the four zones of occupation of Germany. The 
Military Governor of the United States Zone of Occupation promulgated an 
implementing law. Under this law, the United States tried twelve cases, known 
colloquially as the "Subsequent Proceedings," involving 185 high-ranking 
government, military, and industrial personnel (of whom 35 were acquitted 
and 24 received death sentences); 30 and, under general international law, 
United States military commissions sitting in Dachau (a former Nazi 
concentration camp) tried 1,062 accused (of whom 256 were acquitted and 
426 received death sentences). 31 The last two World War II war crimes trials 
conducted in Europe were both tried in French courts. In 1987, Klaus Barbie, 
who had been the head of the Gestapo in Lyons during the war and who was 
responsible for many deportations of Jews and executions, was deported from 

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War Crimes 



Bolivia where he had taken refuge and where a previous government had 
denied extradition. He was convicted of crimes against humanity and 
sentenced to imprisonment for life. (He died in prison in 1991.) Then, in 1994, 
Paul Touvier, a Frenchman who had headed a branch of the Milice, the French 
police organization which supported (and sometimes outdid!) the Nazi 
Gestapo, and who had remained hidden in France for all those years, was tried 
for the execution of seven Jews in retaliation for the assassination of Philippe 
Henriot, a rabid pro-Nazi Frenchman. (It was not alleged that the Jewish 
victims had any connection with the assassination.) Touvier was found guilty 
of a crime against humanity and sentenced to life imprisonment. 

Meanwhile, somewhat similar war crimes trials programs were being 
conducted in the Far East. An International Military Tribunal for the Far East 
had been established by a proclamation issued by General Douglas MacArthur, 
the Supreme Commander for the Allied Powers. Its Charter was very much 
similar to that of the International Military Tribunal except that it consisted of 
eleven judges (one from each of the countries which had signed the Japanese 
surrender agreement and one each from India and the Philippines), and 
General MacArthur retained a right of review. Moreover, there was only one 
chief prosecutor (an American) and an assistant prosector from each of the 
other participating countries. The main question was whether the Emperor 
would be named as an accused. It was finally decided that he would not be 
among the accused, primarily because such action would have made the 
occupation so much more difficult because of the regard in which he was held 
by the Japanese people. There were originally twenty-eight accused, but two 
died during the trial and one was found to be incompetent to stand trial. The 
accused were arraigned in Tokyo on 3-4 May 1946, and the trial proper ran 
from 3 June 1946 until 16 April 1948. The reading of the judgment did not 
begin until 4 November 1948 and ended on 12 November. In addition to the 
judgment of the Tribunal, there was one separate opinion, one concurring 
opinion, and three dissenting opinions. There were seven death sentences, 32 
sixteen sentences to imprisonment for life, one to imprisonment for twenty 
years, and one to imprisonment for seven years. 33 

Here, too, there was a multitude of trials by military commissions. The 
United States tried cases in Manila, Yokohama, Kwajalein, Guam, and China. 
Additionally, the United Kingdom, France, China, Australia, the Netherlands 
East India, and the Soviet Union all tried war crimes cases in the Far East. 34 

As would be expected, in addition to the claim of ex post facto, there were a 
number of legal problems presented in the prosecution of all of these war 
crimes. Probably the provision which caused the most dispute was that relating 

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Howard S. Levie 



to the receipt of evidence. Article 19 of the Charter of the International 
Military Tribunal stated: 

The Tribunal shall not be bound by technical rules of evidence. It shall adopt and 
apply to the greatest possible extent expeditious and nontechnical procedure 
and shall admit any evidence which it deems to have probative value. 

The charters for the other Tribunals and military commissions all had identical 
or similar provisions. American lawyers, accustomed to the stringent technical 
rules of evidence applicable in the common law system, often argued that this 
was unfair to the accused. They overlooked the facts that civil law countries, 
which do not have these technical rules of evidence, were equally involved and 
that the circumstances of war crimes trials are such that victims and witnesses 
may be thousands of miles away in their home countries by the time of trial. 
Accordingly, the full application of the common law rules of evidence would 
have made many trials impossible. In order to ensure fairness, the Tribunal 
adopted the rule that affidavits would be admissible, but that the opposing 
party could challenge the affidavit and demand the production of the affiant as 
a live witness. Strange to relate, in the only statistics available on the subject, in 
the first seven trials of the "Subsequent Proceedings," the prosecution offered 
291 affidavits while the defense offered 3,098. The prosecution challenged 40 
of the defense affidavits while the defense challenged 84 of the prosecution 
affidavits (64 of the latter challenges were in one case!). 35 

When the Secretary-General of the United Nations drafted a proposed 
Statute for an International Tribunal for the Prosecution of Persons for Serious 
Violations of the International Humanitarian Law Committed in the Territory 
of the Former Yugoslavia since 1991, a Statute that was approved without 
change by the Security Council, Article 15 thereof provided that the Judges of 
the Tribunal could adopt rules for the admission of evidence. 36 The Judges of 
the International Tribunal adopted Rule 89(C), which provides that "A 
Chamber may admit any relevant evidence which it deems to have probative 
value;" and Rule 89(D) which provides that "A Chamber may exclude 
evidence if its probative value is substantially outweighed by the need to ensure 
a fair trial." 37 

The fact that the action charged as a war crime had been performed 
pursuant to the order of a superior was advanced in almost every case. 
Frequently the evidence established the validity of the claim. Under Article 8 
of the Charter, quoted above, and its equivalent in other war crimes laws and 
regulations, this was not a defense. However, in such cases where the accused 

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was found to be guilty, his sentence would frequently be considerably 
mitigated. 

When the International Law Commission formulated the principles of the 
Charter and judgment of the IMT, its Principles 3 and 4 paralleled Articles 7 
and 8 of the Charter. Nevertheless, in every case where the denial of the 
defense of "superior orders" has been proposed for inclusion in law of war 
conventions drafted since World War II, the proposal has been rejected. 38 
However, the Secretary-General did include such a provision denying the 
"defense" in the Statutes he prepared for the International Tribunals for the 
Former Yugoslavia and for Rwanda, and the Security Council retained them. 39 
Similarly, the Code of Conduct on Politico- Military Aspects of Security, 
adopted by the Conference on Security and Cooperation in Europe, includes 
the following provisions: 

30. Each participating State will instruct its armed forces personnel in 
international humanitarian law, rules, conventions and commitments governing 
armed conflict and will ensure that such personnel are aware that they are 
individually accountable under national and international law for their actions. 

31. The participating States will ensure that armed forces personnel vested 
with command authority exercise it in accordance with relevant national as well 
as international law and are made aware that they can be held individually 
accountable under those laws for the unlawful exercise of such authority and 
that orders contrary to national and international law must not be given. The 
responsibility of superiors does not exempt subordinates from any of their individual 
responsibilities* 

The responsibility of the commander for the issuance of illegal orders and for 
violations of the law of war by his subordinates has also been a major problem. 
This question arose early in the war crimes program after World War II when 
Japanese General Tomoyuki Yamashita was tried in Manila in October 1945, 
charged with the responsibility for innumerable violations of the law of war 
committed by his troops during the battles for the recovery of the Philippine 
Islands by the United States. His defense was that he took no action to 
terminate these war crimes and punish the offenders, because he was unaware 
of the fact that they were being committed. What the military commission 
which tried him, and the boards and courts which reviewed the case on appeal, 
held was, in effect, that when a commander knew, or should have known, that 
troops under his command were committing war crimes, he had a duty to end 
such actions and to punish the perpetrators. 41 

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Howard S. Levie 



The responsibilities of the commander for violations of the 1949 Geneva 
Convention 42 and of the 1977 Additional Protocol I 43 are now set forth in 
Articles 86(2) and 87 of the latter. They provide: 

Article 86. Failure to act 

2. The fact that a breach of the Conventions or of this Protocol was 
committed by a subordinate does not absolve his superiors from penal or 
disciplinary responsibility, as the case may be, if they knew, or had information 
which should have enabled them to conclude in the circumstances at the time, 
that he was committing or was going to commit such a breach and if they did not 
take all feasible measures within their power to prevent or repress the breach. 

Article 87. Duty of Commanders 

1 . The High Contracting Parties and the Parties to the conflict shall require 
military commanders, with respect to members of the armed forces under their 
command and other persons under their control, to prevent and, where 
necessary, to suppress and to report to competent authorities breaches of the 
Conventions and of this Protocol. 

2. In order to prevent and suppress breaches, High Contracting Parties and 
Parties to the conflict shall require that, commensurate with their level of 
responsibility, commanders ensure that members of the armed forces under their 
command are aware of their obligations under the Conventions and this 
Protocol. 

3. The High Contracting Parties and the Parties to the conflict shall require 
any commander who is aware that subordinates or other persons under his 
control are going to commit or have committed a breach of the Conventions or 
of this Protocol, to initiate such steps as are necessary to prevent such violations 
of the Conventions or this Protocol, and, where appropriate, to initiate 
disciplinary or penal action against violators thereof. 

The International Tribunal for the Former Yugoslavia, mentioned above, 
was the first tribunal for the trial of war crimes not established by the victor or 
victors. Its judges are elected by the United Nations. Composed of two Trial 
Chambers of three judges each and an Appeals Chamber of five judges, it is the 
first war crimes court in which there is a right of appeal. In the Tadic Case, the 
accused challenged the jurisdiction of the Tribunal, but the Appeals Chamber 
determined that it was properly established and did have jurisdiction to try 
cases involving violations of the law of war which had occurred in the former 

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Yugoslavia. At the time of this writing, although the International Tribunal for 
the Former Yugoslavia has now been in existence for four years, it has tried only 
two cases. In the Erdemovic Case there was a guilty plea. (The defendant has 
filed an appeal based on the ground that his ten-year sentence is too severe!) In 
1997, the Appeals Chamber decided the Tadic Case on the merits, convicting 
the accused. 

In 1994 the United Nations Security Council adopted Resolution 955 
establishing a similar Tribunal to try genocide and other war crimes committed 
in Rwanda or in neighboring States by Rwandan citizens. The Statute for this 
Tribunal is identical, mutatis mutandis, to that of the Tribunal for the Former 
Yugoslavia. The Appeals Chamber already established will function for both 
Tribunals. 

For many years the International Law Commission has been charged with 
the task of drafting a Statute for an International Criminal Court. In a Draft 
Statute prepared in 1993, the jurisdiction of the Court included, among others, 
the crimes of genocide and grave breaches of the four 1949 Geneva 
Conventions and 1977 Additional Protocol I. 44 It would also have jurisdiction 
over crimes of aggression where the Security Council of the United Nations 
"has first determined that the State concerned has committed the act of 
aggression which is the subject of the charge." 45 The Draft Statute is still in an 
embryonic stage. It was the subject of the work of a preparatory committee and, 
unless there are developments to the contrary, a diplomatic conference will be 
convened in 1998 to draft a convention establishing an international criminal 
court. 46 

The most recent action of the United States in this area occurred on 21 
August 1996 when the President approved the "War Crimes Act of 1996." 47 It 
provides: 

§2401. War crimes 

(a) OFFENSE. Whoever, whether inside or outside the United States, 
commits a grave breach of the Geneva Conventions, in any of the circumstances 
described in subsection (b), shall be fined under this title or imprisoned for life or 
any term of years, or both, and if death results to the victim, shall also be subject 
to the penalty of death. 

(b) CIRCUMSTANCES. The circumstances referred to in subsection (a) are 
that the person committing such breach or the victim of such breach is a member 
of the Armed Forces of the United States or a national of the United States (as 
denned in section 101 of the Immigration and Nationality Act). 

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Howard S. Levie 



(c) DEFINITIONS. As used in this section, the term "grave breach of the 
Geneva Conventions" means conduct defined as a grave breach in any of the 
international conventions relating to the laws of warfare signed at Geneva 12 
August 1949 or any protocol to any such convention, to which the United States 
is a party. 

Heretofore, when a nation tried one of its own personnel for a violation of 
the law of war such as a grave breach of one of the 1949 Geneva Conventions, 
as in the Calley Case, it has not been considered to be a war crimes case, 
although, in fact, that was what it was. Insofar as the United States is 
concerned, such a trial will, in the future, unquestionably be a war crimes case. 
Apparently, Congress did not consider it necessary to include the commission 
of such offenses by non-nationals of the United States, whether committed 
against American or foreign personnel. There can be no doubt that they are 
already war crimes within the jurisdiction of the United States. 

On 19 October 1996, the President approved an Act which includes the 
following provision: 

§ 2. Sense of The Congress. 

It is the sense of the Congress that United States Government agencies in 
possession of records about individuals who are alleged to have committed Nazi 
war crimes should make these records public. 48 

This Act was considered necessary because of the overly strict construction 
that many government agencies are following in application of the Freedom of 
Information Act. 

The laws against war crimes, like all penal laws, have two purposes: 1) to 
discourage their commission; and 2) to punish offenders. During the past 
half-century the international community has failed in both of these areas. The 
rare possibility of trial after the termination of hostilities does not greatly 
discourage the commission of further offenses during the course of hostilities; 
the complete failure to punish individuals for the commission of war crimes 
even after the termination of hostilities certainly does not discourage their 
commission in the next conflict that occurs. 49 It remains to be seen whether the 
action of the Security Council of the United Nations in the Former Yugoslavia 
and in Rwanda, and the possible creation of an International Criminal Court, 
will have any lasting effect. 50 

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War Crimes 



Notes 



1. Deuteronomy 4:6-7. 

2. Id. at 20:14. See also Numbers 31:7-12; 1 Samuel 15:3; etc. For similar as well as contrary 
rules in other civilizations, see the Introduction to 1 THE LAW OF WAR: A DOCUMENTARY 
HISTORY 3 (Leon Friedman ed., 1972). 

3. 2 Georg Schwarzenberger, International Law (Armed Conflict) 462-466 
(1968). 

4. The same author lists several events which might be considered to be war crimes trials in 
earlier years in Georg Schwarzenberger, The Judgment of Nuremberg, 21 TUL. L. REV. 329 (1947). 

5. Vol. II (Classics of International Law, Francis W. Kelsey trans., 1984), at 504. 

6. The Treaty of Westphalia, 1 Consol. T.S. 319, 1 MAJOR PEACE TREATIES OF MODERN 
HISTORY, 1648-1967, at 7 (Fred L. Israel ed., 1967), which ended the Thirty Years' War in 1648, 
included the following provision: 

II 

That there shall be on the one side and the other a perpetual Oblivion, Amnesty, or 
Pardon of all that has been committed since the beginning of these Troubles, in what 
place, or what manner soever the Hostilitys have been practis'd, in such a manner, that 
nobody, under any pretext whatsoever, shall practice any Acts of Hostility, entertain any 
Enmity, or cause any trouble to each other; . . . That they shall not act, or permit to be 
acted, any wrong or injury to any whatsoever; but that all that has pass'd on the one side, 
and the other, as well before as during the War, in Words, Writings, and Outrageous 
Actions, in Violences, Hostilitys, Damages and Expences, without any respect to Persons 
or Things, shall be entirely abolished in such a manner that all that might be demanded of, 
or pretended to, by each other on that behalf, shall be bury'd in eternal Oblivion. 

This certainly appears to be a recognition and waiver by both sides of the violations of the law of 
war committed by the other. 

7. THE LAWS OF ARMED CONFLICT 3, 12 (Dietrich Schindler & Jiri Toman eds., 3d ed. 
1988) 

8. United States v. Henry Wirz, 8 Amer. St. Trials 657 (1918) (Wirz was charged with 
maltreatment of Union prisoners of war in the Andersonville, Georgia, prisoner-of-war camp. He 
was convicted and executed); U.S. v. James W. Duncan, MILITARY LAW AND PRECEDENTS 
791-792 (William Winthrop ed., 1886; 2d ed. 1920) (Duncan was one of Wirz's civilian 
assistants. He was convicted and sentenced to imprisonment for fifteen years); U.S. v. Major 
John H. Gee, id. at 792 n. 28 (He was tried for the maltreatment of Union prisoners of war at 
another Confederate prisoner-of-war camp. He was acquitted) ; United States v. T.E. Hogg et al., 
8 RECORDS OF THE REBELLION, Series II, 674 (Several members of the Confederate armed 
forces boarded an American merchant vessel in civilian clothes with the intention of taking it 
over and using it as a Confederate commerce raider. They were convicted and sentenced to 
death, but their sentences were commuted to imprisonment); etc. 

9. U.S. v. Braganza et al., cited in Willard Cowles, Universality of Jurisdiction over War Crimes, 
33 CAL. L. REV. 177, 211 (1945); U.S. v. Versosa et al., id. at 210; etc. 

108 



Howard S. Levie 



10. U.S. v. Brig. Gen. Jacob A. Smith, reprinted in Friedman, supra note 2, at 799; U.S. v. 
Major Edwin F. Glenn, reprinted in id. at 814; United States v. Lt. Preston Brown, reprinted in id. 
at 820; etc. 

11. 2 Israel, supra note 6, at 1145, 1146 (emphasis added). 

12. 2T.I.A.S.,at43, 136 (Charles Bevans ed., 1969); 13 AM.J.lNT'LL. (Supp.) 151 (1919). 

13. The Allies had originally submitted a list of about 890 names of individuals wanted for 
trial, including the Crown Prince, General von Hindenburg, Admiral von Tirpitz, and many 
other former leaders of Germany. The list submitted to the Supreme Court of Leipzig contained 
only 45 names. 

14- One of the most vehement opponents of this conclusion was himself tried and acquitted in 
the so-called I.G. Farben Case (U.S. v. Carl Krauch). See VON KNIERIEM, THE NUREMBERG 
TRIALS (1959) . The fairness of the trial was rarely an issue raised by the accused. The one case in 
which this might be said to have become a major issue was In re Yamashita, 327 U.S. 1 (1946), 
discussed below. 

15.16 AM. J. INT'L L. 704 (1922) , 2 ANN. DIG. 429 (1922) . This decision was probably based 
upon a finding that, under the circumstances, the order of the German Admiralty was a legal 
order. 

1.6. 16 AM. J. INT'L L. 708 (1922); 2 ANN. DIG. 436 (1922). 

17. 46 Stat. 2343, 94 L.N.T.S. 57, 22 AM.J.lNT'LL. (Supp.) 171 (1928), 128B.F.S.P.447. 

18. The group which initiated this action was then known as the Inter- Allied Conference on 
the Punishment of War Crimes. The name was later changed to the Inter- Allied Commission on 
the Punishment of War Crimes. 

19. It is reproduced in THE HISTORY OF THE UNITED NATIONS WAR CRIMES 
COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 90 (1948) . 

20. The most important of these Declarations was probably that made at Moscow by Prime 
Minister Churchill, President Roosevelt, and Marshal Stalin in November 1943. Id. at 107. 

21. The Soviet Union was not represented because it had demanded that seven of its 
constituent Republics, which were actively engaged in the war, each be represented, a demand 
which had not been met. Id. at 112. The United Nations War Crimes Commission functioned 
until 1948, receiving trial records from its member nations, many of which were published with a 
discussion of the applicable law in a 15-volume set of books, UNITED NATIONS WAR CRIMES 

Commission, Law Reports of Trials of War Criminals (1947-49). 

22. Nineteen other nations subsequently adhered to the London Agreement. 

23. The history of the negotiations that culminated in the 1945 London Agreement and the 
Charter of the International Military Tribunal is recorded in REPORT OF ROBERT H. JACKSON, 

United States Representative to The International Conference on Military 

TRIALS, Department of State Publication 3080 (1949). 

24. 59 Stat. 1544, 82 U.N.T.S. 279, 3 Bevans 1240. The comparable provisions of the 
Charter of the International Military Tribunal for the Far East state: 

Article 7. Neither the official position, at any time, of an accused, nor the fact that an 
accused acted pursuant to order of his government or of a superior shall, of itself, be 
sufficient to free such accused from responsibility for any crime for which he is charged, 
but such circumstances may be considered in mitigation of punishment if the Tribunal 
determines that justice so requires. 



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War Crimes 



T.I.A.S. 1589, 4 Bevans 27. It will be noted that here, unlike the London Charter, the fact that 
the accused complied with an order of his Government may be considered in mitigation of 
punishment. 

25. One accused was found to be incompetent, another committed suicide, and a third, 
Martin Bormann, was tried in absentia, so there were actually twenty-one accused present in 
Court. (Although Bormann was not present in Court, he was represented by defense counsel.) 

26. The three who were acquitted soon found themselves facing German courts, where all 
three were convicted of having violated German law! 

27. One accused, Hermann Goering, committed suicide before he could be hung. He and 
those who were executed were all cremated and their ashes spread to the winds. With the 
exception of Hess, the others, including those with life sentences, either died or were released 
prior to the expiration of their sentences. The Soviet Union refused to agree to Hess' release. 
When he died (or committed suicide) in 1987, he was the only major war criminal still 
imprisoned in Spandau Prison in Berlin. 

28. After years of debate in the League of Nations and in the United Nations, in 1974 the 
General Assembly of the United Nations adopted a resolution in which one paragraph 
specifically provides that "A war of aggression is a crime against international law." G.A. Res. 
3314 (XXIX), Dec. 14, 1974, 13 I.L.M. 710, 714 (1974). 

29. The Allied authorities considered that by assigning the task to the German courts, they 
would determine the extent of their de-Nazification. Since these cases were, for the most part, 
trials of Germans for offenses committed against other Germans, they were not then considered 
to be war crimes trials. 

30. Each of these twelve trials was conducted by three American judges, usually borrowed 
from state courts. The I.G. Farben Case, referred to supra, in note 14 was Case No. 6 of these 
cases. 

31. The great majority of these cases fell into three categories: lynching of downed Allied 
airmen, concentration camp personnel, and acts of euthanasia. During this period, the British 
tried 1,085 accused in their zone, of whom 348 were acquitted and 240 received the death 
sentence; France tried 2,107 accused, of whom 404 were acquitted and 104 received death 
sentences; and the Soviet Union tried 14,240 accused of whom 142 were acquitted and 138 
received death sentences. (The statistics provided by the Soviet Union are not generally 
accepted. There were 66 death sentences in just 9 cases recorded by the United Nations War 
Crimes Commission. United Nations Archives, UNWCC, Reel 36.) 

32. Unlike the procedure followed in Germany, the ashes of the individuals who were 
sentenced to death were preserved and are now buried in what is considered to be a shrine! 

33. The individual who received the seven year sentence was Maroru Shigemitsu. Like the 
others, he received an early release from confinement and four years later he was the Foreign 
Minister of Japan! 

34. Strange to relate, although the Soviet Union was in the war for less than a week, it tried 
several thousand war crimes cases and still held Japanese as war crimes prisoners in 1955, long 
after all the other countries had caused the release of their prisoners. 

35. HOWARDLEVIE,TERRORISMINWAR:THELAWOFWARCRIMES260n.l31 (1994). 

36. U.N.Doc. S/25704, May 1, 1993, 32 I.L.M. 1192, 1196 (1993). 

37. U.N. Doc. IT/32, March 14, 1994, 33 I.L.M. 484, 533 (1994). 

38. See Howard Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of 
Superior Orders, 30 REVUE DE DROIT MlLITAIRE ET DE DROIT DE LA GUERRE 184 (1991), 
reprinted in LEVIE ON THE LAW OF WAR (Michael N. Schmitt & Leslie C. Green eds., 1998) 
[forthcoming] . Many nations have provisions in their civil penal law that make compliance with 



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Howard S. Levie 



the orders of a superior a defense. This is probably a major reason for their objection to denying it 
to the military. Moreover, the national representatives at Diplomatic Conferences probably fear, 
with reason, that military discipline would be adversely affected, as it might cause a subordinate 
to refuse to obey an order that is legitimate but which the subordinate believes to be illegal. 

39. The provisions of the Statute for the International Tribunal for the Former Yugoslavia 
frequently follow the London Charter. Thus, its Article 7 states: 

Article 7: Individual Criminal Responsibilities 

1. A person who planned, instigated, ordered, committed or otherwise aided and 
abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of 
the present Statute, shall be individually responsible for the crime. 

2. The official position of any accused person, whether as Head of State or 
Government or as a responsible Government official, shall not relieve such person of 
criminal responsibility nor mitigate punishment. 

3. The fact that anyone of the acts referred to in articles 2 to 5 of the present statute 
were committed by a subordinate does not relieve his superior of criminal responsibility if 
he knew or had reason to know that the subordinate was about to commit such acts or had 
done so and the superior failed to take the necessary and reasonable measures to prevent 
such acts or to punish the perpetrators thereof. 

4. The fact that an accused person acted pursuant to an order of a Government or of a 
superior shall not relieve him of criminal responsibility, but may be considered in 
mitigation of punishment, if the International Tribunal determines that justice so 
requires. 

40. 12 TERRORISM: DOCUMENTS OF INTERNATIONAL AND LOCAL CONTROL 7, 11 
(Howard Levie ed., 1997). 

41. This case ultimately reached the United States Supreme Court which, in In re 
Yamashita, 327 U.S. 1 (1946), sustained the conviction by a vote of six to two. 

42. 1949 Geneva Conventions relative to the Protection of Victims of War, 6 U.S.T. 
3114/3217/3316/3516, T.I.A.S. Nos. 3362/3363/3364/3365, 75 U.N.T.S. 31/85/135/287, 157 
B.F.S.P. 234/262/284/355. 

43. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), 72 AM. J. INT'L L. 457 
(1978); 16 I.L.M. 1391 (1977). To date the United States has not ratified this Protocol. 

44. U.N. GAOR, 48th Sess., Supp. No. 10 (A48/10), at 255 (1993), 33 I.L.M. 253 (1994) 
(art. 22, at 264; art. 23, at 268; and art. 26 at 268). The Commission has also long engaged in the 
task of preparing a Draft Code of Crimes Against the Peace and Security of Mankind. Article 20 
of the 1996 draft, entitled "War Crimes," is quite complete in its coverage of both customary and 
conventional war crimes. U.N. GAOR, 51st Sess., Supp No. 19, U.N.Doc. A/51/10 (1996); 91 
AM. J. INT'L L. 365, 369(1997). 

45. Art. 27, 33 I.L.M. 270 (1994). The overall provisions proposed for jurisdiction are far 
from satisfactory. 

Ill 



War Crimes 



46. G.A. Res. 51/207, Dec. 17, 1996, 36 I.L.M. 510 (1997). Much as he favors the 
establishment of such a Court, the present writer is not optimistic that States, particularly the 
United States, will ratify such a Convention. 

47. Pub. L. No. 104-192, 110 Stat. 2104, 18 U.S.C. 2401. 

48. Pub. L. No. 104-309, 110 Stat. 3815. 

49. The United Nations Command was prepared to try about 200 individuals for war crimes 
committed during the Korean War (1950-1953). No trials took place because of the provisions 
of the Armistice Agreement requiring the repatriation of any prisoner of war who so desired. 
During the conflict in Vietnam, the United States tried a number of its own personnel [see 
United States v. Calley, 46 CMR 1131 (1973), affd 48 CMR 19 (1973), habeas corpus granted, 
382 F. Supp. 650 (1974), rev'd 519 F. 2d 184 (1975), cert. den. 425 U.S. 911 (1976)]. See also 

Gary I. Sous, Son Thang.- an American War Crime (1997). It tried none of the enemy 

despite criminal acts such as the shooting of two innocent American prisoners of war as a reprisal 
for the trial and execution by the South Vietnamese of a terrorist bomber caught in the act. 

50. In Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995), cert, denied, 116 S. Ct. 2542 (1996) 34 
I.L.M. 1595 (1995), the United States Circuit Court, Second Circuit, held that under the Alien 
Tort Act of 1789 and the Torture Victim Protection Act of 1991 [106 Stat. 73 (1992), 28 U.S.C. 
1350 note (Supp. V, 1993)], civil suit could be brought in United States Courts against the 
perpetrators of genocide, war crimes, and crimes against humanity in foreign countries by the 
victims or their representatives where service of process was accomplished in the United States. 



112 




The U.S. Freedom of Navigation Program: 
Policy, Procedure, and Future 



Dennis Mandsager 



HE U.S. FREEDOM OF NAVIGATION (FON) PROGRAM has, for 
nearly two decades, repeatedly demonstrated its utility in furthering U.S. 
national interest in maintaining freedom of navigation and overflight on, over, 
and under the oceans. Indeed, other maritime nations should consider adoption 
of such a program, either unilaterally or cooperatively with the United States, in 
order to ensure the stable and predictable law of the sea regime that facilitates 
effective naval operations. This article analyzes the FON Program, with a focus 
on the operational assertions of navigation and overflight rights by U.S. military 
ships and aircraft. 1 

The FON Program seeks to encourage coastal States to conform their ocean 
claims to international law through peaceful exercise of navigation and 
overflight rights in ocean areas where such States have made excessive or 
illegal maritime claims. The program, which began in 1979, is a joint effort 
of the Department of Defense (DoD) and the Department of State 
(DoS). 2 It operates on three levels: operational assertions, or FON 
operations, by military units; diplomatic protests of excessive claims or other 
diplomatic representations by the DoS; and DoS/DoD consultations with 
representatives of other States in an effort to promote stability and consistency 



The US. Freedom of Navigation Program 



in the law of the sea. 3 Since 1979, over 100 diplomatic protests have been filed 
and over 300 operational assertions have been conducted. 4 

Legal Divisions of the Sea 

To grasp the relationship between excessive claims and FON assertions, it 
is first necessary to understand the legal divisions of the sea and of navigation 
and overflight rights in its various zones. 5 All maritime zones are measured 
from "baselines." Baselines normally follow the low-water mark along the 
coast. In very limited geographic situations, such as deeply indented 
coastlines, a series of straight baselines may be employed by connecting 
appropriate points. 

All waters inside baselines are internal waters, where the coastal State 
exercises near absolute sovereignty. Except in limited distress situations, 
foreign ships and aircraft must have permission to enter internal waters. 
Immediately beyond the baselines lies the territorial sea, which may extend 
seaward to a maximum of 12 nautical miles. Coastal State sovereignty in this 
area is subject to the right of innocent passage, i.e., continuous and 
expeditious surface transit through it. Aircraft overflight and submerged 
passage in territorial waters are not permitted, without coastal State 
permission. When transiting in or over territorial seas that are part of an 
international strait, ships and aircraft may engage in continuous and 
expeditious transit passage in their "normal mode." For example, formation 
steaming, flight operations, and submerged transits are permitted when in 
transit passage. 

A special regime exists for archipelagoes. Archipelagic, or island, nations 
may draw baselines which connect their islands, subject to certain limitations, 
and create sovereign archipelagic waters. These waters are subject to the right 
of archipelagic sea-lanes passage (essentially the same as transit passage) in all 
routes normally used for international navigation or overflight and in sea-lanes 
designated by the archipelagic State. Innocent passage applies in archipelagic 
waters outside these and normal routes. 

All waters seaward of the territorial sea are international waters where the 
ships and aircraft of all States enjoy the high seas freedoms of navigation and 
overflight. 6 International waters include the contiguous zone, exclusive 
economic zone (EEZ), and high seas. A State may enforce customs, fiscal, 
immigration, and sanitary laws in a contiguous zone, which may extend as far as 
24 miles from the baseline. It may also exercise sovereignty over resources on 
its continental shelf and in its EEZ. The EEZ may extend to 200 miles from the 

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Dennis Mandsager 



baseline, whereas the continental shelf extends to between 200 and 350 miles, 
depending in its topography. Subject to the resource-related rights of the 
coastal State, the freedoms of navigation and overflight in the EEZ, or above 
the continental shelf where it extends beyond 200 miles are the same as on the 
high seas. Other than the aforementioned rights, coastal States do not exercise 
sovereignty over international waters. 

Excessive Claims and International Law 

As a maritime nation, the national security of the United States depends in 
great part on the ability to exercise the freedoms of navigation and overflight in 
and over the world's oceans. Coastal States often assert maritime claims of 
sovereignty, jurisdiction, or other rights that are inconsistent with 
international law. These excessive claims attempt to restrict the United States' 
ability, to exercise its rights at sea, including the conducting of military exercises 
and operations. Examples of excessive claims include: 

• Territorial sea claims in excess of 12 nautical miles 

• Exclusive economic zone claims that purport to restrict military exercises 

• Improperly drawn straight baselines that purport to convert territorial sea 
areas or international waters (EEZ or high seas) into internal waters, or 
international waters into territorial waters 

• Claims requiring advance notification or permission for innocent passage 
of warships through the territorial sea 

• Archipelagic claims that do not permit archipelagic sea-lane passage in 
all normal routes of navigation or overflight 

• Territorial sea claims in international straits that do not permit transit 
passage, including overflight of military aircraft or submerged or surface 
transits, without prior notice 

• Security zones in international waters that exclude or restrict entry by 
warships and military aircraft. 7 

The FON Program's response to excessive claims is based on fundamental 
international law principles. If maritime nations acquiesce in an excessive 
claim by failing to exercise their rights, then the claims may eventually be 
considered to have been accepted as binding law. Examples of change in the 
law of the sea through acquiescence include the extension of the territorial sea 
from three nautical miles to twelve, and general acceptance of the EEZ. Given 
the normative import of acquiescence, both diplomatic protests and the 
exercise of rights are necessary to preserve operating freedoms. 8 

115 



The US. Freedom of Navigation Program 



Military Strategy and U.S. Interests 

In the post-Cold War era, the U.S. strategic focus has shifted from a global 
threat to new challenges. Nevertheless, key elements of our traditional military 
strategy — forward presence and a crisis response capability — continue to 
apply. In National Military Strategy, 9 the principal threats to America's security 
are described as regional dangers (potential conflicts among States), 
asymmetric challenges (unconventional challenges using means the U.S. 
cannot match in kind, such as terrorism), transnational threats (emergencies, 
extremism, ethnic disputes, crime, illegal trade, and other challenges), and 
wild cards (future developments). It further describes four strategic concepts 
that govern the use of U.S. forces to meet the demands of the environment: 
strategic agility, the timely employment and sustainment of military power; 
overseas presence, the visible posture of U.S. forces in or near key regions; 
power projection, the ability to rapidly deploy and sustain forces; and decisive 
force, the commitment of sufficient military power to achieve the right 
resolution. Each depends on the traditional freedoms of navigation and 
overflight in and over international waters, international straits, and 
archipelagic sea-lanes, as well as innocent passage through territorial seas and 
archipelagic waters. Without freedom of navigation, the ability of the United 
States to project military power, provide logistics support, maintain forward 
presence, and accomplish missions such as disaster relief, humanitarian 
assistance, and noncombatant evacuations, will be severely hampered. U.S. 
strategy requires the ability to move forces quickly and without the advance 
permission of coastal States through the Straits of Singapore, Malacca, Bab el 
Mandeb, Hormuz, and Gibraltar, the Philippine and Indonesian sea-lanes, and 
other key areas. Transit must include surface navigation o{ warships, 
submerged submarine transit, and air transit by military aircraft. 

Generally, it is in the best interests of both coastal and maritime States that 
the coastal State not be faced with a decision as to whether or not to permit 
transits. For example, after certain NATO allies denied permission to cross 
their land territory in April 1986, U.S. military aircraft overflew the Strait o( 
Gibraltar to conduct air strikes against targets in Libya in response to a 
Libyan-sponsored terrorist attack on U.S. military personnel. The coastal 
States — Spain and Morocco, in particular — were not required to "vote" on the 
propriety of the self-defense mission by consenting (or not consenting) to 
transit passage through their territorial seas within the Strait of Gibraltar. 
Similarly, during Operations Desert Shield and Desert Storm, the right of 

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Dennis Mandsager 



transit passage enabled U.S. and Coalition forces to transit the straits of Bab el 
Mandeb and Hormuz without formal coastal State authorization. 

An example from National Security and the Convention on the Law of the Sea 10 
demonstrates the importance of mobility in the movement of a conventionally 
powered, six-ship carrier battle group from Yokosuka, Japan, to the Persian 
Gulf. If transit through the Strait of Malacca, the Indonesian archipelago, and 
the Torres Strait were denied, rerouting around Australia would be necessary. 
This would delay the arrival of the battle group by sixteen days and result in 
$2.9 million additional fuel costs. 11 Albeit unlikely, the scenario offers a clear 
and specific picture of the potential monetary and opportunity costs of mobility 
restrictions. 

In addition to transit rights, traditional high seas freedoms underlie the 
ability to conduct robust naval operations. For instance, they permit military 
forces to engage in flight operations, exercises, surveillance and intelligence 
activities, and weapons testing. Other lawful uses of the oceans important to 
U.S. military interests, albeit not directly related to navigation, include laying 
submarine cables, hydrographic surveys, telecommunications activities, and 
the collection of marine weather and oceanographic data. 

In sum, an effective forward defense requires that U.S. forces be available 
when and where needed to respond to commitments and to preserve the 
integrity of an alliance or coalition. This position is reflected in U.S. Navy and 
Marines Corps service doctrine. In . . . From the Sea, the Chief of Naval 
Operations and the Commandant of the Marines Corps have stated: 

Naval expeditionary Forces are: . . . [u]nrestricted by the need for transit or 
overflight approval from foreign governments in order to enter the scene of 
action. The international respect for freedom of the seas guarantees legal access 
up to the territorial waters of all coastal countries of the world. This affords Naval 
Forces the unique capability to provide peaceful presence in ambiguous 
situations before a crisis erupts. 12 

In addition to military uses, the United States has myriad other diverse and 
vital interests in the oceans. Guaranteed access to resources within the high 
seas, in the exclusive economic zone, and on the continental shelf foster 
economic well-being. Resource management and environmental protection 
are key elements in preserving these resources. The scientific community 
depends on its freedom to conduct marine scientific research. Of course, the 
U.S. relies heavily on commercial sea-lanes as the trade routes. Disruptions in 
the flow of commerce have the potential for devastating effects on the global 
economy. 

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The US* Freedom of Navigation Program 



U.S. Oceans Policy and the Law of the Sea Convention 

The 1982 United Nations Convention on the Law of the Sea (LOS 
Convention) is central to U.S. oceans policy and the FON Program, for it 
provides a detailed framework for use of the oceans. 13 In particular, the 
Convention specifies the maximum breadth of each maritime zone and the 
rights and duties therein, defines the standards for establishing baselines, 
guarantees freedom of navigation and overflight on, under, and over 
international waters, and codifies the rights of innocent passage, transit 
passage, and archipelagic sea-lanes passage for both commercial and military 
users. 

In 1982, President Ronald Reagan announced that the United States would 
not sign the LOS Convention due to objections to various deep seabed mining 
provisions in Part XL 14 The next year, the President issued an ocean policy 
statement in which he declared that the U.S. would comply with the 
non-seabed mining provisions of the Convention because they "generally 
confirm existing maritime law and practice and fairly balance the interests of all 
states." 15 He also announced that the U.S. would "exercise and assert its 
navigation and overflight rights and freedoms on a worldwide basis . . . 
consistent with . . . the Convention . . . [but] 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 related high 
seas uses." 16 This statement reaffirmed the Freedom of Navigation Program, 
which had existed since 1979. 

In 1994, Secretary of Defense Les Aspin repeated the central oceans policy 
theme when he stated that "[t]he armed forces continue to be the instrument 
for the United States to exercise and assert its navigation and overflight rights 
and freedoms consistent with the 1982 Law of the Sea Convention." Secretary 
Aspin further stated that "it is necessary for maritime nations ... to protest 
excessive claims through diplomatic channels and to exercise their navigation 
and overflight rights in the disputed regions. The United States has accepted 
this responsibility as an important tenet of national policy. Therefore, the 
Department of Defense maintains an active Freedom of Navigation 
Program." 17 

Secretary of Defense William Perry reiterated this view in 1994: "[t]he 
nation's security has depended upon our ability to conduct military operations 
over, under, and on the oceans. We support the [1982 LOS] Convention 
because it confirms traditional high seas freedoms of navigation and overflight; 

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Dennis Mandsager 



it details passage rights through international straits; and it reduces prospects 
for disagreements with coastal states during operations." 18 

The LOS Convention came into force for its parties on November 16, 1994. 
Fortunately, earlier in 1994, UN-sponsored negotiations had resulted in an 
agreement that reforms the deep seabed mining provisions of the LOS 
Convention to address longstanding objections of the U.S. and other 
industrialized nations. 19 Removal of those objections has opened the way for 
U.S. acceptance of the LOS Convention. In October 1994, the President 
transmitted the Convention and the U.N. -sponsored agreement to the Senate 
for its advice and consent. 20 

In 1997, Secretary of Defense William Cohen reiterated the theme of 
previous administrations and Secretaries: "The LOS Convention . . . establishes 
rules . . . regarding freedoms of navigation and overflight essential for 

maintaining the global mobility, presence, and readiness of U.S. armed forces 

The United States . . . has much to gain by becoming a party." 21 He further stated 
that "despite positive developments in the law of the sea, it remains necessary for 
maritime nations, like the United States, to protest excessive claims . . . through 
diplomatic channels and to exercise . . . rights in disputed areas. The . . . Freedom 
of Navigation Program has challenged excessive claims to counter any argument 
that such claims are valid due to acquiescence over time." 22 

On balance, U.S. oceans policy has been effective. United States forces 
generally have operated consistent with the LOS Convention without 
significant repercussion. Most criticism of U.S. operations is based on a 
misunderstanding of the nature of the operations. For example, military 
surveys in an EEZ — a high seas freedom — sometimes are mistaken for marine 
scientific research, which is subject to coastal State consent. Another common 
misunderstanding results when a coastal State observes a military aircraft or 
warship apparently violating its territorial seas when it is actually transiting an 
international strait in a transit passage mode. When queried as to its purpose, 
the aircraft or ship responds with a simple explanation, such as: "This is a U.S. 
Navy aircraft in transit passage." The response generally satisfies all concerned. 

The success of the existing policy, however, does not mean that U.S. 
military strategy is best served by the U.S. remaining a non-party to a 
comprehensive, widely accepted convention governing the world's oceans. On 
the contrary, the 1982 LOS Convention reflects not only existing custom, but 
fairly balances the competing interests of coastal and maritime States. The 
Convention provides a solid framework for environmental protection, and 
enhances the ability to study and to protect the marine environment. By 
becoming a party, the U.S. will be in a better position to influence law of the sea 

119 



The US* Freedom of Navigation Program 



developments in related fora, such as the International Maritime Organization 
(IMO) and regional fishing organizations. Moreover, universal adherence 
promises stability and predictability for the movement of commercial cargo, 
while guaranteeing, through its EEZ provisions, coastal state control of 
economic activity off its shores. 

As to the FON Program, a widely accepted Convention should, over time, 
reduce its stressors, for States will be far less likely to make or enforce ocean 
claims beyond those permitted by its provisions. After all, treaties are more 
stable than customary international law, which is often vague, difficult to 
enforce, and malleable. The rules are easier to identify than with customary 
law's constant evolution through claim and counterclaim. (Indeed, the U.S. 
position that the LOS Convention represents customary law has been 
questioned by some nations.) In addition, the Convention provides more detail 
and clarity than customary law. The listing of activities permitted and not 
permitted during innocent passage is one of many examples. 

Ultimately, the Convention regime provides the best avenue to order and 
stability in the law of the sea. Its navigation and overflight provisions provide a 
solid oceans framework for the execution of military strategy and a clear legal 
framework for the execution of the FON Program, while its dispute resolution 
mechanism is generally less politically and practically costly than confrontation 
or acquiescence. 

Freedom of Navigation Operations in Practice 

FON assertions are directed in operation orders that specify procedures and 
approval authority for the commander. The orders generally delineate when 
the participating ship or aircraft will enter and exit the area o( the excessive 
claim and when the unit will enter and exit the U.S. -recognized territorial sea 
or other ocean zone involved in the assertion. FON assertion tracks are then 
plotted on charts and reviewed for accuracy by navigation specialists. 
Operation orders may also provide detailed guidance on how to respond to 
coastal State queries concerning the ship's or aircraft's presence. 

Rules of engagement (ROE) provide guidance on the use of force in 
self-defense in the unlikely event a coastal State responds by force to the assertion. 
Intelligence estimates of threats, to which the ROE are tailored, are included in 
the order. The DoD Maritime Claims Reference Manual provides commanders a 
detailed listing of the maritime claims of all coastal nations. 23 The Manual also 
lists many instances in which the United States has protested excessive claims 
or conducted operational assertions against them. Particularly useful is The 

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Dennis Mandsager 



Commander s Handbook on the Law of Naval Operations, 24 which provides 
commanders and staffs a ready reference concerning the legal divisions of 
oceans and airspace and the corresponding rights and duties of the coastal and 
other States therein. 

Effective operations require comprehensive training and a multidisciplinary 
approach. Fleet units must conduct routine training and exercises that include 
law of the sea and rules of engagement concepts to ensure compliance with 
international law and U.S. oceans policy. Thereafter, operators, planners, 
intelligence specialists, and legal advisors must work together to ensure that 
operations are conducted in an efficient, effective, and safe manner, consistent 
with international law. 

To document the operation, each unit provides an after-action report to 
superiors in the chain of command. Subsequently, the Secretary of Defense 
publishes an unclassified annual report of assertions conducted during the previous 
fiscal year. 25 It is this listing which places the international community on notice of 
U.S. actions demonstrating non-U.S. acquiescence in excessive claims. 

With diplomatic protests of excessive claims, one might query why 
operational assertions are needed at all. After all, in strict legal terms, timely 
diplomatic protests might suffice to protect against technical legal 
acquiescence in an illegal claim. Nevertheless, there are compelling policy 
reasons for conducting operational assertions. 

First and foremost, protests without operations give the coastal State exactly 
what it wants — restrictions on our mobility and a change in our behavior 
consistent with the illegal claim. For example, North Korea purports to exclude 
foreign military forces from its 50-nautical-mile security zone. The U.S. has 
protested the claim, but failure to operate within the zone would play into 
North Korea's hands by effectively respecting the claim. Similarly, the 
Government of the Philippines claims that all waters within its archipelagic 
baselines are internal waters not subject to archipelagic sea-lanes passage. 
Again, protest alone is not enough. An illegal claim cannot be permitted to 
deny U.S. forces the ability to transit critical sea-lanes that have been used by 
mariners for centuries. Of course, operational assertions send an even stronger 
signal than diplomatic protests, for protests alone seldom provide a sufficient 
incentive to impel relinquishment of the claim. Moreover, if assertions or 
routine exercises of rights are not conducted in normal times, the political cost 
of an assertion during a crisis is likely to be far higher. For instance, failure to 
regularly transit the Taiwan Strait would complicate the ability to operate 
there in times of crisis. 



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The US. Freedom of Navigation Program 



Frustrations, Challenges, and Successes 

While policy guidance is published in the Pentagon and at senior military 
commander headquarters in traditional top-to-bottom fashion, the FON 
Program is implemented using a reverse, bottom-up procedure. Periodically, 
higher authority will issue a letter or message that encourages the operating 
forces to conduct assertions. Rarely, if ever, is a specific assertion directed. 26 On 
the contrary, most assertions by Navy ships or aircraft begin with a proposal 
developed by a numbered fleet commander or a subordinate command. Many 
are later canceled by higher authority for reasons impossible for the subordinate 
command to have foreseen, often after the operating forces command has 
expended great energy in planning the assertion. Understandably, frustration 
results. To help alleviate this problem, Pentagon policy makers should direct 
assertions from time to time, particularly in the case of long, unchallenged 
claims; those who direct cancellation of an assertion must also provide the 
earliest possible notice and share their rationale with those in the field. 

More significantly, one or more of the players in a FON assertion will 
misunderstand the program and oppose it as provocative. The nay-sayers at 
times include U.S. embassy officials, military commanders, staff officers, and 
DoS and DoD officials — many of whom have had no previous experience with 
the program. The only answer is education and training. The program merits 
and requires continuous explanation. 27 

At times, assertion opportunities are missed due to erroneous perceptions 
that the coastal State will use force to prevent it or take other retaliatory 
action. In fact, rarely is there any type of response. FON action officers must 
study the historical record of assertions to ascertain the likely response. 
Intelligence officers and country specialists can serve as important sources of 
information concerning coastal State sensitivities. 

The high tempo of current operations and the shrinking numbers of 
available ships and aircraft are practical impediments to some assertions. The 
challenge for the action officer is to know all of the excessive claims in the area 
of responsibility, and to take advantage of any units that might be operating in 
the vicinity of such a claim. Generally, given the worldwide operation of U.S. 
ships and aircraft, at some point in time, a ship or aircraft will be close enough 
to conduct the assertion with little or no additional costs in time or money. 

In the end the frustrations and challenges are outweighed by the success 
stories. As a result of the routine and frequent exercise o{ navigation and 
overflight rights around the world, law of the sea concepts such as innocent 
passage of warships, transit passage, and archipelagic sea-lanes passage are well 

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Dennis Mandsager 



established in customary international law, a number of coastal States have 
withdrawn excessive claims, 28 and the right to conduct military operations with 
due regard for resource related activities in the EEZ of coastal states is widely 
understood and respected. The returns benefit not only the U.S., but all 
nations interested in promoting maritime mobility. 

Even the instances of friction may prove beneficial. Recall the Black Sea 
"bumping " incident of February 1988, when two U.S. ships entered the Soviet 
territorial sea in the Black Sea during a FON operation. The subsequent 
"shouldering" by two Soviet warships led to a U.S. diplomatic protest. 
Ultimately, the two governments reached a consensus 29 that the law of 
innocent passage is expressed in the LOS Convention, that all ships, including 
warships, enjoy the right of innocent passage, that neither prior notice nor 
authorization is required prior to innocent passage, and that internal coastal 
State laws should conform to this uniform interpretation of the applicable legal 
regime. Optimally, future assertions will produce similar results. 

The FON Program has provided one clear benefit to the operating forces 
and operational commanders and their staffs. Planning and conducting the 
assertions have caused a greater understanding of law of the sea principles and 
their effect on military operations. When conducting or approving the 
assertions, operators and their legal advisors must know with specificity in 
which ocean zone the ship or aircraft will be operating, and understand its 
corresponding rights and duties. Real world operations demand a much more 
intense focus than that needed in training or academic environments; mistakes 
can be politically embarrassing for the United States. 

Future 

There was no question as to the need for a FON Program in an international 
environment that lacked a widely accepted law of the sea treaty. But as the 
LOS Convention becomes widely accepted, will a FON Program still be 
needed? The answer is "yes." 

First, excessive jurisdictional oceans claims will likely always exist. Even 
parties to the Convention may enact domestic legislation or regulations 
inconsistent with its provisions. Such threats to the Convention regime should 
remain a focus of the FON Program. 

Second, the U.S. is not yet a party to the Convention. Some States persist in 
their position that certain navigation and overflight rights articulated in the 
Convention are available only to parties. An active FON Program is necessary 
to preserve those rights for the U.S. in the face of that position. 

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The US* Freedom of Navigation Program 



Third, while the Convention is the result of remarkable efforts, it is, 
nevertheless, a product of committees and compromises. There are ambiguities 
and gaps — some unintentional, some intentional, some creative, and some the 
product of a lack of agreement. Such ambiguities and gaps, coupled with 
pressures for restrictive changes, particularly in the environmental arena, 
mandate a continuation of the program in some form. In that regard, consider 
the following: 

• Marine scientific research (MSR) is subject to coastal state jurisdiction in 
the EEZ, but the LOS Convention fails to define the term, a particular problem 
because hydrographic surveys and the collection of marine environmental 
information for military purposes are considered by the U.S. to be high seas 
freedoms that are not subject to coastal state jurisdiction, even when 
conducted in the EEZ. 30 

• The Convention does not address flight information regions (FIRs) or air 
defense identification zones (ADIZs) . Coastal States sometimes demand prior 
notice or prior permission for U.S. military aircraft transiting these 
zones — even if an aircraft is flying under due regard vice ICAO procedures, will 
not enter territorial airspace, or is in transit passage or archipelagic sea-lanes 
passage. 31 To provide advance notice under these circumstances would create 
an adverse precedent for restrictions on mobility and flexibility. 

• There are several U.S. interpretive positions applicable to the transit 
passage regime that are not specifically addressed in the Convention. For 
example, it is the U.S. position that transit passage extends not only to the 
waters of the straits, but also to the normally used approaches; that transit 
passage applies to a corridor that extends from shore to shore; and that the 
regime applies to all straits capable of being used for international navigation. 32 
While these interpretations are reasonable and tend to promote navigational 
safety and efficiency, they are not necessarily accepted by all coastal States. 

• If an archipelagic State designates sea-lanes or air routes, the Convention 
requires that "all normal passage routes" be included. Coastal and maritime 
States tend to disagree on designations. Routine use of these routes and 
operational assertions against excessive claims will preserve flexibility. 

• The transit passage and archipelagic sea-lanes passage regimes permit 
ships and aircraft to operate in their normal mode. While not specifically 
spelled out in the Convention, the U.S. position is that submarines may 
transit submerged. Further, all ships and aircraft may transit in a manner 
consistent with sound navigational practices and the security of the force, to 
include formation steaming and the operation of radars and other sensors, as 
examples. Again, the Convention does not specifically articulate these rights. 



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Dennis Mandsager 



• Consistent with the LOS Convention (Articles 42, 95, 96, 110, and 236) , 
U.S. military ships and aircraft enjoy sovereign immunity. 33 Nevertheless, they 
are often subjected to demands or requests to submit to searches or inspections. 
The FON Program can demonstrate a clear sovereign immunity policy needed 
to ensure these demands are resisted to avoid erosion of this principle. 

A widely ratified Convention represents the best available path to oceans 
stability. All nations should carefully balance any objections to the reformed 
Convention against the significant gains that would be achieved through 
acceptance. The FON Program has served and will continue to serve U.S. 
interests well. In the future, an effective FON Program will have U.S. forces 
exercise their rights to ensure that practice under the LOS Convention is 
consistent with customary international law and operational requirements. 
Other maritime States which have benefited from the U.S. program, should 
consider the adoption of such a program — modified to meet their specific 
needs — to ensure their law of the sea rights are preserved. States with similar 
maritime interests could clearly benefit from a coordinated FON program. 



Notes 



1. J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims (66 

INTERNATIONAL LAW STUDIES, 1994) [hereinafter ROACH & SMITH) is an excellent reference 
that provides a detailed description of "diplomatic and military efforts undertaken by the United 
States Government to preserve and enhance navigation and overflight freedoms worldwide." 
The second edition of the book was published as UNITED STATES RESPONSES TO EXCESSIVE 

Maritime Claims (1996). 

2. see u.s. deft of state, gist, u.s. freedom of navigation program, dec. 

1988. 

3. Though other U.S. government agencies do participate in some of these consultations; 
the Department of State is generally in the lead, with the Department of Defense being the major 
supporting player. 

4. See WILLIAM S. COHEN, SECRETARY OF DEFENSE, ANNUAL REPORT TO THE 

President and the Congress (1997), at 1-1. 

5. Detailed descriptions of the legal divisions of oceans and airspace and the rights of 
navigation and overflight can be found in THE COMMANDER'S HANDBOOK ON THE LAW OF 
NAVAL OPERATIONS. The Handbook was published jointly by the Navy, Marine Corps, and 
Coast Guard in 1995 as Naval Warfare Publication (NWP) 1-14M/MCWP 
5-2.1/COMDTPUB P5800.1 [hereinafter NWP 1-14M]. It sets out fundamental principles of 
international and domestic law that govern naval operations at sea during peacetime and during 
periods of armed conflict. It was previously published as NWP 9 (Rev. A)/FMFM 1-10 in 1989 
and as NWP 9 in 1987. The ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK 
ON THE LAW OF NAVAL OPERATIONS was published on November 15, 1997. Prepared by the 
Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College; it is 
a footnoted version of NWP 1-14M with numerous references to sources of legal authority. 

6. See NWP 1-14M, supra note 5, para. 1.5. 

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The US. Freedom of Navigation Program 



7. ROACH AND SMITH, supra note 1, provides a detailed discussion of many excessive 
claims. 

8. See NWP 1-14M, supra note 5, para. 2.6; and ROACH AND SMITH, supra note 1, at 5. 

9. NATIONAL MILITARY STRATEGY was published in 1997 by the Chairman of the Joint 
Chiefs of Staff (CJCS) to articulate the strategic direction U.S. Armed Forces should take. In 
formulating the document, CJCS derived guidance from A NATIONAL SECURITY STRATEGY 
FOR A NEW CENTURY, which was published by The White House earlier in 1997. 

10. National Security and the Convention on The law of the Sea is a U.S. 

Department of Defense position paper that analyzes DoD interests in having the United States 
become a party to the 1982 United Nations Convention on the Law of the Sea. The Second 
Edition was published in January 1996. 

11. Id. at 10. 

12. . . .FROM THE SEA is a Navy and Marine Corps White Paper that outlines a new strategic 
direction for naval forces in the 21st century. It was published in 1992, and updated by 

Forward . . . From the Sea in 1994. 

13. The LOS Convention, U.N. Doc. A/CONF.62/122 (1982). 

14. 18 WEEKLY COMP. PRES. DOC. 877 (Jul. 9, 1982). 

15. 19 WEEKLY COMP. PRES. DOC. 383-385 (Mar. 10, 1983). 

16. Id. 

17. See LES ASPIN, SECRETARY OF DEFENSE, ANNUAL REPORT TO THE PRESIDENT AND 

the Congress (1994), at G-l. 

18. Statement on the Signing of an Agreement on the U.N. Convention on the Law of the 
Sea, Office of the Assistant Secretary of Defense News Release, July 29, 1994. 

19. The agreement was adopted by the U.N. General Assembly on July 28, 1994. It is to be 
applied with the LOS Convention as a single agreement. See U.N. DOC. A/RES/48/263, Aug. 17, 
1994 and accompanying "Agreement Relating to the Implementation of Part XI of the United 
Nations Convention on the Law of the Sea of December 10, 1982." 

20. See Letter of Transmittal, S. TREATY DOC. 103-39, (1994). 

21. See Cohen, supra note 4, at H-l. 

22. Id. atl-l. 

23. The manual is prepared by the Department of Defense Representative for Oceans Policy 
Affairs and is published as DoD Directive 2005. 1-M, January 6, 1997. Earlier versions were 
published in 1987 and 1990. 

24. NWP 1-14M, supra note 5. 

25. This report is included in SECRETARY OF DEFENSE, ANNUAL REPORT TO THE 
PRESIDENT AND THE CONGRESS. As reflected in the April 1997 report (Appendix I), from 1 
October 1995 to 30 September 1996, FON assertions were conducted against the following 
countries with excessive maritime claims: Bangladesh (excessive straight baselines, claimed 
security zone, and claimed territorial airspace beyond 12 NM); Burma (excessive straight 
baselines, claimed security zone, and claimed territorial airspace beyond 12 NM); Cambodia 
(excessive straight baselines, claimed security zone, and claimed territorial airspace beyond 12 
NM) ; China (prior permission for warships to enter the territorial sea) ; Egypt (excessive straight 
baselines and prior permission to enter the territorial sea) ; India (prior permission for warship to 
enter the territorial sea) ; Iran (excessive straight baselines and prior permission for warship to 
enter the territorial sea) ; Maldives (excessive straight baselines and prior permission to enter the 
territorial sea) ; Oman (excessive straight baselines and prior permission to enter the territorial 
sea) ; Pakistan (prior permission for warships to enter the territorial sea) ; Philippines (excessive 
straight baselines and claims archipelagic waters as internal waters); Sudan (prior permission for 



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Dennis Mandsager 



warship to enter the territorial sea) ; Vietnam (excessive straight baselines and claimed security 
zone) ; and Yemen (prior permission for warship to enter the territorial sea) . See Cohen, supra 
note 4, at I— 1. 

26. In multiple tours as a FON action officer, I do not recall a single instance of a directive to 
conduct a particular FON assertion emanating from Washington, D.C. 

27. THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS is a useful tool 
for teaching law of the sea principles and for sharing U.S. views on oceans policy. I personally 
have provided copies to military commanders and staff officers, U.S. embassy officials, and 
foreign counterparts. The publication has always been well received. 

28. See ROACH & SMITH, supra note 1, at 255-56. 

29. On September 23, 1989 at Jackson Hole, Wyoming, U.S. Secretary of State James Baker 
and Soviet Foreign Minister Eduard Shevardnadze signed the Uniform Interpretation of Rules of 
International Law Governing Innocent Passage, 28 I.L.M. 1444-7 (1989). 

30. NWP 1-14M, supra note 5, para. 2.4.2.1-2. 

31. For a discussion of due regard, ICAO procedures, and air navigation, see NWP 1-14M, 
supra note 5, para. 2.5. 

32. See generally NWP 1-14M, supra note 5, para. 2.3.3.1. 

33. For a brief discussion of sovereign immunity principles, see NWP 1-14M, supra note 5, 
para. 2.1.2 and ROACH & SMITH, supra note 1, at 263-264. 



127 



VII 



The Framework in the Founding Act for 

NATORussia 
Joint Peacekeeping Operations 

Myron H. Nordquist 



A 



T THE MINISTERIAL MEETING of the North Atlantic Council held at 
NATO Headquarters in Brussels on 10 December 1996, Secretary 
General Javier Solana was tasked with developing an agreement on a new 
NATO-Russia relationship. The foundation for the consultations was based on 
previous "16 plus 1" discussions; that is, the sixteen members of NATO plus the 
Russian Federation. The participation of the Russian Federation in the 
Partnership for Peace programs and in contributing troops to the 
Implementation Force (IFOR) in Bosnia and Herzegovina were cited as favorable 
factors for this initiative. The NATO ministers envisioned a fundamentally new 
European security era in which NATO and Russia's relationships would deepen 
and widen. Agreement was to be explored on a "framework of its future 
development" expressed in a "document or . . . Charter." 

Founding Act 

The Founding Act on Mutual Relations, Cooperation and Security between 
NATO and the Russian Federation was signed in Paris on 27 May 1997. On one 



The Framework in the Founding Act 



side, the signatories were the Secretary General of the Atlantic Alliance, Javier 
Solana, and NATO Heads of State such as President William Clinton, and on 
the other side, the President of the Russian Federation, Boris Yeltsin. The 
signatories stressed the historic significance of the Act that was heralded as 
beginning a "new chapter of Euro-Atlantic security." 1 At the Act's signing 
ceremony, repeated references were made to the end of the Cold War and to 
the notion that the Act was laying the foundation for NATO-Russia collective 
security cooperation in the twenty-first century. President Clinton spoke 
enthusiastically both about a new Russia and about building a new NATO. 
President Yeltsin, not to be outdone, expressed at least equal enthusiasm for 
the Act. Indeed, the euphoria of the Russian President was such that he 
unexpectedly announced at the end of the ceremony: "I, today, after having 
signed the document am going to make the following decision. Everything that 
is aimed at countries present here, all of those weapons are going to have their 
warheads removed. (Applause.)" 2 A few hours later, spokesmen for President 
Clinton were still seeking "clarification" about the meaning of the Russian 
President's "impromptu remark." 3 

The matter of detargeting or deactivation of Russian missiles is only one of 
many significant international security issues that requires clarification as a 
result of the signing of the Act. The long-term ramifications in the Act for 
either classic peacekeeping or new enforcement action operations involving 
forces from both NATO and Russia is another important area that merits study. 
In this latter case in particular, professional military experts must look for 
guidance about joint operations conducted by the combined military forces of 
NATO and Russia. 

The Founding Act is an umbrella document that, at best, lays out a general 
framework for concrete action. Practical as well as conceptual problems are 
immediately presented. And, with such far-reaching consequences, it is 
predictable that differing interpretations of the Act's numerous provisions will 
surface, probably sooner rather than later. When this happens, the view 
advanced in this essay is that the language in the document itself must be the 
starting basis for analysis. In fact, this point already arose on the day the Act 
was signed. A reporter asked President Clinton's Press Secretary, Mike 
McCurry, whether he was "convinced now that Boris Yeltsin understands the 
Russian role [in the Act] in the same way that the United States understands 
the Russian role and the rest of NATO does?" McCurry responded: "I don't 
think he [Yeltsin] ever had any understanding but what was in the document 
that he signed a short while ago." 4 

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Interpreting the Founding Act 

Significant implications flow from adopting McCurry's position. Common 
sense as well as traditional legal practice supports the proposition that the 
language actually embodied in the text of the Act is the best evidence of the 
intentions of the signatories. The actual words agreed to by the signatories are 
certainly entitled to more weight than are the speculations of third party 
observers or the perception spin given by interested parties to the media. 

An initial step in selecting rules to interpret the text of a multilateral 
document is to determine its status under international law. In the case of the 
Founding Act, this is not as straight forward as one might expect. Recall that 
the Ministerial guidance provided to NATO's Secretary General was vague 
about the form in which the agreement might be expressed. The signatories 
obviously chose to call the final document an "act." This deliberate decision by 
the nations concerned merits a brief examination. 

The term "act" is usually "reserved for a multilateral convention concluding 
a session of States on important questions that lays down the law between them 
for the future." 5 An example is the "Concluding Act of the Negotiation on 
Personnel Strength of Conventional Armed Forces in Europe" signed in 
Helsinki on 10 July 1992. 6 In Section VIII of this instrument, it is explicitly 
provided that the "measures adopted in this Act are politically binding." This 
Act dealing with Conventional Forces was an outgrowth of the Conference on 
Security and Cooperation in Europe: Final Act concluded in Helsinki on 1 
August 1975, that was also a legally non-binding document. 7 The question of 
whether a Final Act is a "treaty or merely a machinery arrangement to be 
utilized by the parties depends upon its interpretation." 8 The problem with this 
observation is that it begs the question of what rules of interpretation are to be 
selected to interpret? 

The Founding Act is an international agreement embodying a number of 
specific commitments that is signed by sixteen Heads of State or Government. 
These officials are sophisticated people who are well advised by legal experts. 
Such officials must be presumed, for example, not to have chosen to call the 
document a "joint declaration" or to select a similar label that clearly connotes 
noncontractual obligations. In international law practice, a joint declaration is 
typically a public announcement by several States that expresses a common 
policy outlook without taking on the character of a contractual or legal 
obligation. Towards the other end of the international obligation spectrum is 
the formal treaty that embodies the solemn consent by a sovereign State to 
accept binding legal commitments. The Founding Act was also not called a 

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"treaty," and that too must be presumed to be a deliberate choice of the leading 
political leaders of the signatory States. Considered only from a process point of 
view, that is unfortunate, for if the Act were a treaty, this examination would 
be unnecessary. The rules to interpret the meaning of the Act's text under 
international law would, without doubt, be found in the Vienna Convention 
on the Law of Treaties. 9 It is noteworthy, however, that, even in this "treaty on 
treaties," the fact that the signatories consciously chose to call the document 
an "Act" does not mean that it is not a treaty for the purposes of using the rules 
in the Vienna Convention. Moreover, the "Act" label does not necessarily 
mean that the document fails to meet the requirements for a treaty under the 
domestic law of the United States. 

The Vienna Convention provides that the definition of "treaty" in the 
international law sense may be different from the domestic law sense. Use of 
terms in the Vienna Convention sense is "without prejudice to the use of those 
terms or to the meanings which may be given to them in the internal laws of 
any State." 10 This safeguard takes into account the different internal 
ratification processes of -States. The comment by the International Law 
Commission about this point in the Vienna Convention reads: 

In many countries, the constitution requires that international agreements in a 
form considered under the internal law or usage of the State to be a "treaty" must 
be endorsed by the legislature or have their ratification authorized by it. . . . 
Accordingly, it is essential that the definition given to the term "treaty" in the 
present articles should do nothing to disturb or affect in any way the existing 
domestic rules or usage's which govern the classification o( international 
agreements under national law. 11 

The Vienna Convention is not in force for the United States, and the treaty 
interpretation rules therein are, strictly viewed, not governing for a non-party. 
But the rules of interpretation in the Vienna Convention do represent 
"generally accepted principles and the United States has also appeared willing 
to accept them despite differences of nuance and emphasis." 12 While courts in 
the United States are generally more willing than those of other States to look 
outside the instrument, at the travaux preparatories, in most cases, both the U.S. 
and Vienna Convention approaches lead to the same result. 13 A closer look at 
the Vienna Convention is needed to satisfy our quest for what rules are 
appropriate to interpret the meaning of the Founding Act. 

A treaty is defined in article 2 of the Vienna Convention as follows: 

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. . . "treaty" means an international agreement concluded between States in 
written form and governed by international law, whether embodied in a single 
instrument or in two or more related instruments and whatever its particular 
designation . . . (emphasis supplied). 

On its face, the Founding Act is an international agreement in written form 
concluded between States as evidenced by being signed by a number of Heads 
of State or Government. The fact that one signatory was the head of an 
international organization, i.e., NATO, consisting of virtually all the States 
involved, only adds weight to the impression that important commitments of 
some significance were being made for Russia, as well as for NATO and its 
member States. In its own right, NATO is generally accepted in the modern 
practice of international law as a proper subject to be governed by international 
law. Along the same line, one may safely assume that the Secretary General 
possesses full powers to represent the organization in concluding treaties or 
other international instruments involving binding commitments of various 
kinds. The government signatories, also prima facie, have full powers to act as 
representatives for the purpose of expressing the consent of their respective 
States to be bound by the instrument. 14 Thus, from a formality standpoint, the 
Act as executed could have qualified as a treaty under the definition in the 
Vienna Convention. 

The fact remains, however, that the drafters consciously chose not to treat 
the Act as a treaty. Indeed, the circumstances surrounding the negotiation and 
execution of the document suggest that high-level political rather than legal 
commitments were contemplated. Political obligations differ in important 
respects from legal obligations. While political obligations are not enforceable 
strictly speaking, they may be more significant in practical impact. Political 
commitments are usually more comprehensive in scope and carry greater 
long-term implications than do legal obligations. This would appear to be a fit 
characterization of the Founding Act. The Act was signed at an unusually high 
level with great public fanfare. Moreover, there was no provision for domestic 
ratification included in the document. Without ratification, most States, 
including the United States, do not contemplate undertaking binding treaty 
obligations. 

Those analyzing the Act and the meaning of its text are accordingly still left 
with the practical task of interpreting an international instrument containing 
important commitments for which there are no universally accepted rules. To 
deal with the problem, this writer decided to adopt the following approach: the 
Founding Act will be treated as a treaty for the limited purpose of applying the 
widely accepted rules of interpretation in the Vienna Convention to analyze 

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the meaning of the text. This decision is justified because, looking at the entire 
context, the Vienna Convention rules are the best choice for legal guidance 
given their global acceptance. Indeed, the writer cannot think of better rules to 
facilitate a disciplined evaluation of this document. Considering the Act as a 
treaty for the limited purposes of interpretation obviously does not mean that 
the Act is equivalent to a treaty embodying binding legal commitments. It does 
mean that selection of such a disciplined approach is more likely to lead to 
conclusions consistent with the elevated status of the signatories whose direct 
participation indicates that the exact wording of the Act was intended to be 
taken very seriously. 

In the case of the United States, there is no evidence that President Clinton 
intended the Act to be a formal treaty in the sense contemplated by the U.S. 
Constitution. Had that been his intent, he would have planned to seek the 
advice and consent of the Senate. There is great wisdom in consulting the 
Senate early and often on important foreign policy matters, but nothing 
indicates that the President wanted to present the difficult issues raised by the 
Act to public debate in the Congress. Given that the Senate is controlled by 
the opposition party, the President was probably content at this stage to rely 
upon his inherent powers as Head o{ State and Commander in Chief of the 
Armed Forces as the sources of his authority to act. Of course, the fact that a 
treaty is not perfected in the municipal law sense does not relieve the State of 
its obligations under international law. Confusion sometimes arises on this 
point because while the domestic and international law spheres are related, 
they are often quite distinct. This duality of legal regimes can be quite handy. In 
this case for instance, President Clinton probably achieved exactly what he 
wanted for both his domestic and international law purposes. That is, the 
United States intends to honor the political commitments to other nations 
made by the President in the Act under international law but is not bound by 
legal obligations in the Act under domestic law. 

In light of the foregoing, the legal status of the Act under either domestic or 
international law is unaffected merely by using the treaty interpretation 
principles and rules in the Vienna Convention to help ascertain the meaning of 
its language. In all events, interpreters use either implicit or explicit rules to 
reach conclusions about the meaning of text. In this study, the Vienna 
Convention rules are expected to provide some guidance. 

Proceeding on that basis, Article 31(1) of the Vienna Convention first 
provides the general rule that a treaty must be interpreted in good faith by 
according ordinary meaning to its terms "in their context and in light of its 
object and purpose." 16 The context expressly includes agreements relating to 

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the treaty. In the case of the Founding Act, this category covers many treaties 
and other forms of international agreements that are cited with favor or 
directly incorporated by reference. Examples include the UN Charter and the 
Helsinki Final Act. 

Paragraph 3 of Article 31 of the Vienna Convention deals with the 
subsequent practice of States that is to be taken into account with the context. 
Sub-paragraph 3(a) identifies subsequent agreements between the parties 
interpreting the treaty or applying its provisions as part of this subsequent 
practice. Sub-paragraph 3(b) references "any subsequent practice in the 
application of the treaty which establishes the agreement of the parties 
regarding its interpretation." Thus, subsequent practice includes both words 
and deeds. 

The primacy of the written text itself over external context is demonstrated 
by the Vienna Convention's interpretative rules with respect to supplementary 
sources. Supplementary means of interpretation may be sought in the 
preparatory work leading up to the document text and the circumstances of the 
treaty's conclusion. But recourse to supplementary means of interpretation is 
allowed for two limited purposes. Supplementary sources may be consulted 
either to confirm the meaning of the text itself or to determine the meaning 
when the text is ambiguous or obscure or leads to a result "manifestly absurd or 
unreasonable." 17 

The North Atlantic Treaty 

Before examining the text of the Founding Act in light of the rules of 
interpretation in the Vienna Convention, it is necessary to understand the 
North Atlantic Treaty that created NATO. Certainly there is no argument 
about applying the Vienna Convention's rules of interpretation to this treaty in 
an effort to ascertain the legal parameters governing NATO. 

Entering into force in 1949 at the outset of the Cold War, the North 
Atlantic Treaty established NATO as an organization to provide for the 
collective defense of its members; that is, an armed attack on one is an attack 
on all. The operative language is contained in one long sentence in Article 5 of 
the Treaty: 

The Parties agree that an armed attack against one or more of them in Europe 
or North America shall be considered an attack against them all; and 
consequently they agree that, if such an armed attack occurs, each of them, in 
exercise of the right of individual or collective self-defense recognized by Article 

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51 of the Charter of the United Nations, will assist the Party or Parties so 
attacked by taking forthwith, individually and in concert with other Parties, such 
action as it deems necessary, including the use of armed force, to restore and 
maintain the security of the North Atlantic area. 18 

The text of Article 5 is unmistakable about where the armed attack must 
occur against a Party: the attack must be in Europe or North America. Article 6 
is even more geographically specific by expressly citing the "territory of any of 
the Parties in Europe or North America, ... on the occupation forces of any 
Party in Europe, on the islands under the jurisdiction of any Party in the North 
Atlantic area north of the Tropic of Cancer or on the vessels or aircraft in this 
area of any of the Parties." 19 

The question that immediately arises for an essay concentrating on 
peacekeeping is where is the authority in the North Atlantic Treaty for NATO 
to initiate peacekeeping operations in Bosnia and Herzegovina? Where was the 
armed attack against a Party as required by Article 5 ? And even if the Article 
51 concept of self-defense was construed to deem that an armed attack 
occurred, did it take place on the territory of any of the NATO members as 
concretely defined in Article 6 of the North Atlantic Treaty? 

The express mention of Article 51 in Article 5 leaves no room for argument 
about the point that NATO was conceived as an Article 51 self-defense 
organization under Chapter VII of the UN Charter. The North Atlantic Treaty 
was also formally ratified by its Parties (including the Senate of the United 
States) as a Chapter VII entity. The reason was plain fifty years ago and is plain 
now. Had NATO been established as a regional collective security arrangement 
to undertake enforcement actions under Chapter VIII, it would be subject to a 
Soviet veto in the Security Council. Article 53 of the Charter explicitly 
provides that "no enforcement action shall be taken under regional 
arrangements or by regional agencies without the authorization of the Security 
Council. . . ." To give the Soviets a veto over NATO actions would defeat the 
purpose of an organization established to defend against an armed attack by the 
Soviet Union or its allies in the North Atlantic territories of the Parties. 

An argument can be made that while the ordinary meaning of the terms and 
conditions in Article 5 do not allow NATO to initiate affirmative military 
action outside the territory of the Parties, the member States agreed to proceed 
according to NATO procedures. The reasoning is that this is subsequent 
practice manifesting agreement by the Parties and this makes non-self defense, 
out-of-area operations legal. On the international law plane, this argument has 
some validity. Recall that the Vienna Convention recognizes subsequent 
practice as part of the context to interpret a treaty or to apply its provisions. 

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The North Atlantic Council did authorize NATO's out-of-area peacekeeping 
operations and all sixteen member States have manifested their consent to the 
peacekeeping operations in Bosnia and Herzegovina at the highest levels in 
many ways. 

But there is a problem with this line of reasoning from a Rule of Law 
perspective. As explained above, the Vienna Convention accords primacy to 
the ordinary meaning of words in the text. What is the value of a treaty text at 
all if context in the form of subsequent practice can conflict directly with the 
ordinary meaning of the words? Strained interpretations of context, as a matter 
of principle, may not be a subterfuge for amending plain treaty language. The 
text, and the rules embodied in it, must be honored for the interpretation 
process has good faith limits. Black cannot be white no matter how strong the 
political will to declare it so. If the text of a treaty is bad, then the remedy is to 
amend the language as provided by its terms. The Rule of Law does not lend 
itself to "picking and choosing" to meet the needs of political expediency. The 
language is so plain in the North Atlantic Treaty that there is no ambiguity 
about the point that NATO is an Article 5 1 self-defense organization under 
Chapter VII and not a regional enforcement organization under Chapter VIII of 
the Charter. Agreed subsequent practice, admittedly based on the consent of 
all the parties, cannot be ascribed the same legal stature as an amendment to 
the clear terms of a treaty. An argument on the subsequent practice context 
has to be fashioned in a mode that is at least compatible with the plain meaning 
of the terms in the treaty. Moreover, in the case of the North Atlantic Treaty, 
there is an agreed process for making amendments which requires using the 
same ratification procedures that were used for formalizing the original text. 
However much one sees the practical and political value of using NATO for 
activities beyond its constitutional limits, adherence to the Rule of Law is a 
higher imperative. The short-term gains in ignoring the law cannot outweigh 
the long-term benefits of following it. This seems elementary but it must be said 
in this case. 

Confusion about the Articles 5 and 6 problem may stem from international 
law being based on the consent of sovereign States. Essentially, States may do 
between themselves whatever they agree to do. Third parties seldom have legal 
standing to complain. Thus, in the sphere of international law, there is no 
effective legal remedy for an ultra vires charge with respect to NATO's 
out-of-area peacekeeping operations in the absence of the treaty-mandated 
armed attack. Who has standing to call the sovereign States to task? There is 
no obligation on a Member State to look behind the ostensible authority of 
senior representatives in the North Atlantic Council who approve the actions. 



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Lack of remedy or effective enforcement, however, does not mean lack of law 
and the obligation to obey the law. There is a duty to obey law on the 
international plane even in the face of imperfect enforcement. And this 
philosophical issue is by no means limited to interpretation of the North 
Atlantic Treaty. 

Of course, the enforcement issue is quite different under U.S. domestic law 
where the Constitution is the supreme law of the land. Both the President and 
Congress can be held accountable to obey the Law of the Land. Courts do 
enforce the Constitution and this is at the heart of why the United States 
promotes the Rule of Law in the former Warsaw Pact nations. Under the 
domestic law of the United States, the treaty ratification processes of the 
Constitution must be satisfied if and when a case is presented. If the text of the 
North Atlantic Treaty is somehow found to admit of the interpretation that 
the current NATO peacekeeping operations in Bosnia and Herzegovina were 
contemplated within the four corners of the treaty, the Court may consider 
supplementary sources such as are found in the debates at the time the Senate 
gave its advice and consent in 1949. However, this avenue of possible support 
is unlikely to provide much aid or comfort for the proponents of the current 
action. 20 This is not to suggest that the Senate is unaware today that NATO is 
conducting out-of-area peacekeeping operations that go beyond Article 51 
self-defense. Clear evidence of notice to the Senate is provided when Congress 
appropriates funds to support NATO's peacekeeping operations in Bosnia and 
Herzegovina. This formal act suggests political approval by the U.S. Congress, 
including the Senate. However, use of these implied methods of approval is not 
the same as adhering to the advice and consent procedures expressly required 
by the Constitution. When NATO is funded by Congress to conduct 
peacekeeping operations out-of-area, NATO ought to have unquestionable 
legal authority to carry out those activities. This is true if for no other reason 
than lives are being put at risk. The proper way for American officials to 
proceed is to amend the North Atlantic Treaty as provided in that instrument 
and as required by the U.S. Constitution. Compliance with the Rule of Law in 
this case may engender a politically distasteful public debate about the proper 
role for NATO in the post-Cold War era. Such are the costs of Democracy and 
respect for the Rule of Law. Since the admission of new members to NATO 
must be considered in formal advice and consent processes anyway, the Senate 
has an appropriate opportunity, if it so chooses, to revisit the authority of 
NATO to act under Articles 5 and 6 of the North Atlantic Treaty. 

How might out-of-area peacekeeping activities of NATO be characterized 
under another treaty, e.g., the UN Charter? The oft-cited reference 

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to UN peacekeeping as falling under "Chapter VI and a half " 21 conveys the 
notion of activities that go beyond peaceful resolution of disputes but stop short 
of armed self-defense responses. Under treaty interpretation rules, Chapter VI 
and one half activities are seen as subsequent practice. Unlike the NATO case, 
the legitimacy of UN peacekeeping operations is derived from a context of 
subsequent practice that does not violate any express language in the Charter. 
To take the comparison one step further, the recent NATO actions in Bosnia 
and Herzegovina could be characterized as "Chapter VII and a half missions. 
The idea is that NATO's peacekeeping efforts there clearly go beyond the 
"self-defense" of member's territories in the Chapter VII sense of the UN 
Charter but stop short of being international enforcement actions in the 
Chapter VIII sense. 

By its express terms, the North Atlantic Treaty also must be interpreted as 
not affecting "in any way the rights and obligations under the Charter. . . ," 22 
Modern international law prohibits States from using military force unless the 
actions are in conformity with the UN Charter. Under the UN Charter, the use 
of military force is accepted as legitimate for peacekeeping under Chapter VI 
and a half, for self-defense under Chapter VII, and for enforcement under 
Chapter VIII. As just noted above, the international community may now be 
on the verge of accepting Chapter VII and a half as State practice in 
circumstances such as Bosnia and Herzegovina. By the terms of the Charter, 
UN peacekeeping and enforcement by regional collective security organization 
actions require approval by the Security Council (setting aside the 
controversial Uniting for Peace Resolution debate) 23 where the Russian 
Federation has a veto. As is discussed below, Russia would also have a veto in 
any joint NATO-Russia military operations undertaken pursuant to the 
Founding Act. 

Preamble to Founding Act 

With the framework governing the use of force in the UN Charter and the 
North Atlantic Treaty in mind, we turn to the first important point stressed in 
the preamble to the Founding Act that pertains to future NATO-Russia 
peacekeeping operations. This is that the political commitments in the Act are 
undertaken at the highest political levels to signify the start of a fundamentally 
new relationship between NATO and Russia. The Act is said to define "the 
goals and mechanisms of consultation, cooperation, joint decision-making and 
joint action that will constitute the core of the mutual relations between 
NATO and Russia." 24 

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Reference is made to the 1991 NATO Summit Conference in Rome where 
the Alliance revised its strategic doctrine to take account of the collapse of the 
Soviet Union. The Act then explicitly states the goal of taking on "new 
missions of peacekeeping and crisis management in support of the United 
•Nations (UN) and the Organization for Security and Cooperation in Europe 
(OSCE), such as in Bosnia and Herzegovina. . . ." As explained below, what is 
noteworthy about this political commitment is that Russia has a veto about 
undertaking peacekeeping operations under either UN or OSCE sponsorship. 

A vague reference is also made in the Preamble to addressing "new security 
challenges" with other countries and international organizations. The meaning 
of this sentence is sufficiently ambiguous that it is a candidate for contextual 
interpretation or even interpretation by supplementary sources. For the 
purposes of this essay, it can be noted that the reference appears to be broad 
enough to encompass out-of-area peacekeeping operations. 

Specific mention is made of NATO's efforts to develop the "European 
Security and Defense Identity (ESDI). . . ." In this connection, the North 
Atlantic Cooperation Council (NACC) is not cited in the Preamble, while the 
Partnership for Peace (PFP) program is. Unlike the NAAC, the PFP program is 
concerned with peacekeeping and fifteen PFP countries are participating in 
Stabilization Force (SFOR) operations in Bosnia and Herzegovina. 25 The PFP, 
started at the January 1994 NATO Summit Meeting, joins 27 mostly Central 
and Eastern European States (including Russia) with sixteen NATO members 
A specific PFP goal is to "create an ability to operate with NATO forces in such 
fields as peacekeeping. . . ," 26 Within the PFP framework, peacekeeping field 
exercises are undertaken with joint planning facilitated by liaison officers 
stationed at NATO Headquarters and a "Partnership Coordination Cell" at 
Supreme Headquarters Allied Power Europe in Mons, Belgium. 27 

Next, the initiative to establish a Euro-Atlantic Partnership Council 
(EAPC) is noted in the Preamble to the Act. The EAPC was inaugurated in 
1997 and replaces the NACC. All former NACC members and all countries 
participating in PFP can automatically join the EAPC. Other OSCE members 
that are willing and able to accept EAPC principles may join by joining the PFP. 
Lastly, a commitment is made that NATO member States will examine 
NATO's Strategic Concept "to ensure that it is fully consistent with Europe's 
new security situation and challenges." 

By comparison with the lofty new goals espoused for NATO, the deadpan 
characterization of Russia in the last paragraph of the Preamble is much more 
down to earth. The Russian Federation is portrayed as "continuing the building 
of a democratic society and the realization of its political and economic 



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transformation." Its military cutbacks are cited favorably, as are its 
commitments "to further reducing its conventional and nuclear forces." 
Russia's active participation in peacekeeping operations under UN or OSCE 
auspices and its contributions to "multinational forces in Bosnia and 
Herzegovina" are, however, referred to in a positive vein. 28 

The outline for the body of the Founding Act was provided expressly at the 
Brussels meeting of the North Atlantic Council Ministers in December 1996. 
The content for a new NATO-Russia agreement was identified in Paragraph 10 
of their Final Communique as follows: 

• the shared principles that will form the basis of our relationship; 

• a broad set of areas of practical cooperation in particular in the political, 
military, economic, environmental, scientific, peacekeeping, armaments, 
nonproliferation, arms control and civil emergency planning fields; 

• mechanisms for regular and ad hoc consultations; and 

• mechanisms for military liaison and cooperation. 

Principles 

The opening principle in Section I of the Founding Act is that the NATO 
nations and Russia share an interest in the security of the Euro- Atlantic area. 
Russia, of course, borders on Middle Eastern and Asian countries as well. 
Despite occasional calls to make NATO a worldwide peacekeeping 
organization, the principles in the Founding Act make it clear that 
NATO-Russian peacekeeping operations do not extend beyond NATO's 
traditional geographical sphere of concern in North America and Europe. 

The primary role of the OSCE as the only pan-European security 
organization for regional security cooperation is stressed as a principle. NATO 
and Russia undertake to enhance the operational capabilities of the OSCE for 
regional security. Indeed, the parties commit to seeking the "widest possible 
cooperation among participating States of the OSCE" to create a common area 
of stability and security in Europe. The strengthening of the OSCE's 
operational capabilities in peacekeeping is seen as consistent with the 
development of its Common and Comprehensive Security Model for Europe 
for the Twenty-First Century. 

The representatives of NATO and Russia recognize that there are new 
threats, e.g., aggressive nationalism, terrorism, and territorial disputes. These 
new threats are different in kind, and not just in degree, from the threat of 
armed attack against the parties' territories described in Articles V and VI of 
the North Atlantic Treaty. The response to these new risks and challenges will 

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likewise have to be entirely different. And while not mentioned in the 
Founding Act, it is predictable that a pubic debate is inevitable about the 
awkward question of whether NATO is properly constituted to deal with these 
new threats. The Founding Act is premised, of course, on the principle that 
NATO is the organization to meet the new threats. 

The signatories reaffirm the principle that the UN Security Council retains 
the primary responsibility to maintain international peace and security. The 
unmistakable role envisioned for the OSCE is "as the inclusive and 
comprehensive organization for consultation, decision-making and 
cooperation in this area and as a regional arrangement under Chapter VIII of 
the United Nations Charter." 

A tangled web of relationships exists with respect to the prospective roles in 
regional peacekeeping for European entities such as the Western European 
Union ("WEU") vis-a-vis NATO. And the Founding Act stops short of 
slamming the door on the WEU being authorized in the future to function as a 
Chapter VIII collective security entity with NATO or Russian participation. 
What the Founding Act is crystal clear on is that NATO-Russia peacekeeping 
operations will either be directly mandated by the Security Council or 
authorized by the OSCE as a Chapter VIII regional organization. This policy 
decision had to be a key inducement for obtaining a Russian sign-off on the 
Founding Act. One very good reason is that Russia has control over military 
operations with its veto in both the Security Council and in the OSCE (which, 
by the way, operates by consensus). The result is that NATO is politically 
bound by the express terms of the Founding Act not to engage in offensive use 
of force operations without Russian consent. In fairness, the Russian 
Federation is likewise bound. The veto point was emphasized differently by 
Presidents Clinton and Yeltsin, as each attempted to put the most favorable 
press spin for their respective audiences. 

In the United States, domestic critics of the Administration strongly object 
to the concept of a Russian veto over NATO military operations. The 
fundamental distinction between self-defense and enforcement actions gets 
lost in the clamor. The Administration's emphasis is on the non-binding nature 
of the Founding Act and the continued NATO self-defense role where 
unilateral action by NATO is legally justified. This aspect of the debate is true 
as far as it goes, but critics can still probably complain that the American public 
was given one impression on the veto issue and the Russian public quite 
another. 29 It would be difficult to deny, however, that the Russian veto over 
offensive measures by NATO was a major selling point within the walls of the 
Kremlin as a justification for signing the Founding Act. From a NATO 



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standpoint, this principle is nothing new. In December 1992, the NATO 
Council decided that the Alliance had a mandate to support peacekeeping 
activities of the United Nations and of the OSCE. As stressed above, the legal 
justification for out-of-area enforcement actions by NATO itself under the 
North Atlantic Treaty remains open to question. One practical possibility was 
to remove the authority of the WEU to engage in peacekeeping. However, the 
January 1994 NATO Summit endorsed the notion that Europe should develop 
a peacekeeping capacity. In addition, the principle was endorsed that the 
collective assets of the Atlantic Alliance would be made available for WEU 
operations. As of early 1998, the WEU continues in the early stages of 
developing its military operational capabilities and has taken credible actions 
in the Adriatic, on the Danube, and most recently in Albania. Interestingly, 
while the WEU could have based these actions on Articles 52 and 53 of 
Chapter VIII, Article 48 in Chapter VII was cited as a basis for its action. Russia 
is not, of course, a member of the WEU and thus the WEU was not a realistic 
option for selection as a Chapter VIII regional security organization in the 
Founding Act. 

Another principle stated is that in implementing the Founding Act, NATO 
and Russia will observe in good faith their international legal obligations. In 
addition to the UN Charter, specific mention is made of the "Helsinki Final 
Act and subsequent OSCE documents, including the Charter of Paris and the 
documents adopted at the Lisbon OSCE Summit." The Charter of Paris was 
signed in November 1990 by the OSCE Heads of State or Government 
(including those for NATO and Russia) . Among many other important matters 
in the Paris Charter was a vision for more structured co-operation among all 
participating States on security matters. Perhaps this is part of the reason why a 
specific reference was made to the Paris Charter in the Principles of the 
Founding Act. At the December 1996 OSCE Summit on European Security 
issues in Lisbon, a Declaration on a Common and Comprehensive Security 
Model for Europe for the Twenty-First Century was adopted. The mention in 
the Principles of the Lisbon Summit serves to remind the signatories that the 
NATO-Russia Founding Act is simply a part of a much larger scheme to create 
a more secure Europe. 

A number of general principles, not all of which are directly pertinent to the 
focus of this essay on peacekeeping, were cited to achieve the aims of the 
Founding Act. One is the notion of an equal partnership between Russia and 
NATO. This is probably a very important status issue for the Russians, who are 
sensitive to the extreme about their diminished military might and are 
understandably concerned about the strength of their economy. This principle 



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recognizes that that the Russian Federation is an equal on the political level 
with NATO. Acceptance of the principle by NATO was wise in that the only 
country outside NATO that could challenge NATO militarily is, in fact, Russia. 
This is something that American political figures tend to neglect in the debate 
about NATO expansion. 

Another principle noted is the relationship between economic well-being 
and stability, as well as the role that democracy plays in fostering a secure 
environment. In this context, it is well worth recalling that democracies do not 
wage war on one another. Specific acknowledgment is made to the principle of 
refraining from the use of force contrary to the UN Charter and the Principles 
in the Helsinki Act. A related principle refers to respect for the territorial 
integrity of all States and the peoples' right of self-determination. Several 
principles then deal with the idea of mutual transparency, especially for defense 
policy and military doctrines. With a Russian physical presence at NATO 
Headquarters, one can envision considerable transparency on the part of 
NATO. It is less easy to see how NATO plans equal access to the formulation of 
Russian defense policy and military doctrines. 

The last principle cited that is directly related to this study reads: 

. . . support, on a case-by-case basis, of peacekeeping operations carried out 
under the authority of the UN Security Council or the responsibility of the 
OSCE. 

The shared commitment of NATO and Russia to support peacekeeping 
operations (all of which are case by case) is not new. The NATO-led 
multinational force (IFOR) established to implement the military aspects of the 
Bosnia Peace Accord completed its work in December 1996 and was replaced 
by a smaller Stabilization Force (SFOR). The Russian contingent in IFOR 
numbered some 2,000 troops at its height and its participation in SFOR in late 
1997 was around the 1,400 level. 30 Of the thirty-six nations with forces in 
Bosnia, the U.S. forces make up about 25 percent or 8,000 of the total allied 
ground force of 35,000. 31 

The Bosnia peacekeeping venture demonstrates that NATO and Russian 
military forces can be successfully integrated in the field in joint operations at 
least in a marginally hostile environment. Presidents Yeltsin and Clinton are 
also apparently able to resolve successfully reasonably difficult political 
problems. The Founding Act is a striking example of the willingness of these 
two world leaders to compromise towards one another's positions. But too 
much can be read into the ability of NATO and Russian forces to integrate 
militarily, based on the Bosnia experience. The modest successes to date do not 

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warrant jumping to the conclusion that joint NATO Russia operations at the 
division levels can work successfully in a truly hostile environment. 
Peacekeeping operations based on host State consent with a token five percent 
Russian troop involvement is quite different from enforcement operations in 
actual combat situations where there might be a substantially large percentage 
of Russian troops. Many thorny interoperability problems are unresolved 
pertaining to command and control, intelligence sharing and the like. The 
professional military must guard against the pressure from political figures to 
make more of the Bosnia experiment than is there. 

The NATORussia Permanent Joint Council 

Section II of the Founding Act establishes yet another organization to deal 
with European security issues. The NATO-Russia Permanent Joint Council is 
to carry out the mandates in the Act and "to develop common approaches to 
European security and to political problems." Considerable latitude is certainly 
implied by this latter phrase. The loose language of this mandate further 
demonstrates the bureaucratic evolution of NATO from a strictly self-defense 
military organization to a broader political organization of some kind. One is 
handicapped to comment in detail about the nature and even direction of this 
evolving entity at this stage, as there is no constituting treaty framework or a 
clearly articulated strategy of the end result being pursued. This is not 
necessarily unfavorable criticism because the current process has the virtue of 
being flexible and pragmatic. It may also be largely unavoidable when there is 
no agreed vision to follow. 

In any event, the central objective of the new Council is to provide concrete 
means to enhance consultation and cooperation between the two sides. In 
appropriate instances, joint decisions and joint action may be taken on security 
issues. Again, the meaning of this language is vague. What is clear is that all of 
this is to be done without extending to the "internal matters of either NATO, 
NATO member States or Russia." As expected, no definition is given of what is 
an internal matter and what is not. Presumably the decision to label a matter as 
internal or non-internal is an internal matter. 

Former Secretary of State Warren Christopher and former Secretary of 
Defense William J. Perry recently acknowledged the value of the Act's political 
provisions, but went on to opine that the "military provisions are less 
problematic and more important." 32 They see the object of the Act to create 
"permanent, institutionalized military relationships modeled on those forged in 

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Bosnia. ..." And practical cooperation with the Russian military is seen as 
"more important than meetings and councils." 33 

Paragraph 3 of the section in the Act setting up the Council mechanism is 
consistent with the former Secretaries' "action versus talk" emphasis. NATO 
and Russia are not only to identify but also to "pursue" as many opportunities 
for "joint action" as possible. The talk part is not neglected, however. The 
Permanent Joint Council is "the principal" venue of consultation in times of 
crisis or "for any other situation affecting peace and security." Such a singular 
power of appointment must be taken seriously, for there can only be one entity 
that is "the principal" location for such weighty matters as discussion of an 
inter-party crisis or "any other" security situation. In particular, in addition to 
regular meetings, extraordinary meetings of the Council are to be promptly 
convened if a member perceives a "threat to its territorial integrity, political 
independence or security." 

The next paragraph is apparently directed toward less frenetic activities as 
reference is made to "the principles of reciprocity and transparency." The 
notion is that through the on-going contacts in the Council, NATO and Russia 
will keep one another informed of their respective security threats and what 
each has in mind to do about them. 

Sentence one in paragraph six of this mechanism section seems almost out 
of place. An objective observer might think the sentence is a statement of the 
obvious, except for the fact that the impression given by the Clinton 
administration to the public is that the statement represents an important 
accomplishment. The sentence reads: 

Provisions of this Act do not provide NATO or Russia, in any way, with a 
right of veto over the actions of the other nor do they infringe upon or restrict the 
rights of NATO or Russia to independent decision-making and action. 

The foregoing sentence is technically accurate: the Act is not a legally 
binding treaty and even if it were, there is no right oi veto for Russia in the 
Founding Act as such. Russia would have a veto on actions if it were a Party to 
the North Atlantic Treaty; all NATO members have veto power since NATO 
operates by consensus. Likewise, all fifty-three members of the OSCE 
(including Russia) have a veto because that regional organization also operates 
by consensus. Perhaps the statement means that the above commitment, 
making the Permanent Joint Council "the principal" venue of consultation, 
does not "infringe" upon independent decision-making or action. One cannot 
help but wonder what the purpose of consultation is if it is not to "infringe" 
upon one's actions? The plain language in the sentence is that neither Russia 

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nor NATO is given a veto in the Act. True enough, but as explained above, this 
is somewhat misleading with respect to peacekeeping operations. The reason is 
that Russia and three members of NATO are permanent members of the UN 
Security Council. All are also members of the OSCE. And as elaborated fully 
above, peacekeeping operations will be carried out only under the authority of 
the Security Council or the OSCE. The veto on peacekeeping operations is 
there for Russia; it was simply not provided by the Founding Act. 

It would be equally accurate, but apparently not as politic, to stress that the 
inherent right of self- defense upon which NATO is founded and which is 
enjoyed by Russia and the United States alike, truly does not allow a veto by 
any other State or organization. That point is not in the Act but may belong 
there as much as the sentence quoted above. At the same time, there may be a 
host of non-use of force actions that could have been made subject to a veto 
and were not. If forbearance to do so is the reason to emphasize the lack of veto, 
then one cannot quibble. But the impression should not be left that there is no 
Russian veto on the non-self-defense use of force by NATO. Control over the 
use of force is what the Security Council is all about and is the hard core 
foundation for both the creation, as well as the continued relevance of the 
United Nations. 

The schedule of regular meetings for the Permanent Joint Council (PJC) 
mirrors those of NATO: Foreign Ministers, Defense Ministers and Chiefs of 
Staff each meet twice annually, while ambassadors/NAC representatives and 
military representatives meet monthly. The possibility of Heads of State and 
Government meeting is not excluded but not expressly scheduled. The 
Council is authorized (like NATO) to establish either permanent or ad hoc 
committees or working groups and meetings of military experts may be 
convened, as appropriate. Given the priority on peacekeeping operations, it is 
predictable that a committee or working group will soon be established for that 
topic. 

The Permanent Joint Council has, in principle, three joint chairs. One is the 
Secretary General of NATO and another is a representative of Russia. The 
third is a representative of one of the NATO member States on a rotation basis. 
The first Joint Council meeting held on 18 July 1997 was immediately 
presented with a disagreement over who should chair the meetings. A 
compromise was worked whereby the Russian Ambassador and Secretary 
General Javier Solana are permanent co-chairmen and a representative of the 
ambassadors from NATO's sixteen member States will rotate the other position 
for three-month periods. 34 The disinformation campaign in the West on the 
veto issue continued with the Agence France Presse reporting: "The council 



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enables Russia to take part in discussions on NATO policy without exercising a 
right of veto in its affairs, notably in its peace-keeping role." 35 An American 
writer commented: "The NATO-Russia council is the centerpiece of the 
so-called Founding Act . . . conceived as a way to soothe Moscow's hostility 
toward NATO's eastward expansion plans and to encourage the Russians to 
play a more cooperative role in European security. 36 He added: "... the United 
States and its allies insist Russia will only have a voice in, not a veto over, 
NATO policies." 37 

A significant bureaucratic innovation is also provided in this section of the 
Act: agreement is expressed that Russia will establish a Mission to NATO (not 
unlike a Mission to the United Nations) headed by a representative at the rank 
of Ambassador. Part of his Mission will include a senior Russian military 
representative and his staff. The possibility is provided for an appropriate 
NATO presence in Moscow, but is not spelled out. 

Insofar as the candidates for NATO expansion are concerned, the Russians 
won the race to reach NATO Headquarters before they did. Once accepted, 
the status of the new members will, of course, be quite different. They will have 
the veto all NATO members enjoy and they will be full participants in all 
internal NATO meetings. Yet, if the UN Headquarters' experience is an 
example, there will be few secrets that the Russians will not hear about now 
that they are at NATO Headquarters. That, in itself, may be the best reason of 
all for the Russians to have a physical presence in the heart of its former 
enemy's military command center. 

The agenda for regular sessions of the Permanent Joint Council are being set 
jointly by NATO and Russia. At this writing some organizational arrangements 
and rules of procedure for the Council have been worked out. At the inaugural 
meeting Council ambassadors held in Brussels on 11 September 1997, the 
exact purpose intended was achieved but the results were "very disagreeable." 
Ambassador Vitaly Churkin, Russia's representative to NATO, was strongly 
critical of "the aggressive new Western approach to the Bosnia peacekeeping 
mission. . . ." He reportedly said the "intolerable" use of force directed against 
the Bosnia Serbs was incompatible with the NATO-led peacekeeping force's 
rules of engagement. 38 A senior NATO diplomat is quoted as saying this "was 
not a good omen for the future work of the NATO-Russia council." 3 ? A 
different atmosphere apparently prevailed a few weeks later when the first 
meeting of the Council's Foreign Ministers convened in New York. NATO's 
Secretary General reported a successful launch of a new NATO-Russia 
"partnership." 40 Indeed, he cited agreement on a work program which 
envisioned a range of NATO-Russia cooperation, including peacekeeping. He 

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highlighted discussion of the present situation in Bosnia and Herzegovina, as 
well as "the more general topic of peacekeeping operations." He stressed that 
the "idea was to get the work moving and translate the words of the Founding 
Act into reality." 41 He also made a cryptic reference to the "potential for 
common action ..." between Russia and NATO. 

The text of the Founding Act specifies that the Permanent Joint Council 
will engage in three distinct activities. The first is to consult on any political or 
security issue both sides agree to discuss. This is an extraordinarily broad 
mandate with virtually no qualifications on topics, and is additional evidence 
of NATO's turn towards being a political forum. The second activity is to 
develop "joint initiatives" on which NATO and Russia agree to speak or act in 
parallel. Again, there are no conditions and the wide latitude expressly given 
certainly includes planning for joint NATO-Russia peacekeeping operations. It 
is noteworthy that no distinction is made here between traditional blue helmet 
operations under the direct authority of the Secretary General and 
enforcement operations under the direct authority of the Security Council. 
Indications that the signatories had in mind joint NATO-Russia peacekeeping 
operations of all varieties are provided by the third category of activities cited. 
Once consensus (another term for veto) is reached between NATO and Russia, 
the Permanent Joint Council is authorized to make "joint decisions" and to 
take "joint actions" on a case-by-case (code in the Act for peacekeeping 
operations) basis. Pointed reference is then made to participation "in the 
planning and preparation of joint operations, including peacekeeping 
operations. . . ." Of course, the built-in reminder of the mutual veto is 
highlighted again with the statement that the peacekeeping operations must be 
"under the authority of the UN Security Council or the responsibility of the 
OSCE." And just to be sure that there is no room for misunderstanding, a 
sentence is added that any actions, i.e., use of force undertaken by NATO or 
Russia together or separately, must be pursuant to the UN Charter and the 
OSCE governing principles. 

The unmistakable impression gained from examining the "three distinct 
activities" identified in Section II of the Act is that a priority activity of the 
Council is to discuss, plan and present to higher authority, joint NATO-Russia 
peacekeeping operations. 

Areas for Consultation and Cooperation 

Planning for joint peacekeeping operations is, of course, only one of many 
areas upon which NATO and Russia are expected to focus in building a new 



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cooperative relationship. In Section III of the Founding Act, the signatories are 
to consult and strive to cooperate, not only across a wide spectrum of security 
issues in the Euro-Atlantic area, but also on concrete crises, including the 
contributions of NATO and Russia to the resolution thereof. In the realm of 
conflict prevention, the roles of the United Nations and the OSCE are once 
again expressly referenced. Significantly, no mention is made in this section of 
a role for the WEU or, for that matter, any other European organization in 
conflict prevention or crisis management. The sides are to discuss "joint 
operations, including peacekeeping operations, on a case-by-case basis under 

the authority of the UN Security Council or the responsibility of the OSCE " 

A specific reference is made to NATO-Russia "early" participation if Combined 
Joint Task Forces (CJTF) are used in peacekeeping operations. 

The CJTF concept arose out of the 1994 NATO Summit in Brussels to 
provide a mechanism for rapid deployment of peacekeepers. Under the 
political umbrella of the North Atlantic Council, the NATO members willing 
to lead and support CJTFs undertake operations such as those restoring stability 
in Albania in 1997. The Founding Act clearly provides a political and legal 
framework within which NATO and Russia could develop and plan joint 
initiatives utilizing the CJTF approach. Russia is already participating in the 
Euro- Atlantic Partnership Council and in the Partnership for Peace program. 
The Permanent Joint Council, however, is an independent springboard to 
prepare joint NATO-Russia peacekeeping operations. 

One of the first steps that NATO and Russia must take in the preliminary 
planning for possible joint peacekeeping operations is to exchange information 
on each side's existing approaches to military operations. The experience 
gained on each side from the ongoing peacekeeping operation in Bosnia, 
despite the tendency to puff too much about its success, is obviously invaluable. 
Multinational training exercises such as the week-long peacekeeping exercise 
in Kazakstan, led by the United States in mid-September 1997 with troops 
from Russia and five other nations, generated additional knowledge and 
experience indispensable for planning future NATO-Russia joint operations. 43 
This latter exercise, sponsored under the Partnership for Peace program, 
reportedly had heavy involvement by Russian military officers in the planning 
processes — a most welcome development. 44 The framework in the Founding 
Act explicitly targets exchanges between NATO and Russia on strategy, 
defense policy, and military doctrine. Exchanging information and conducting 
joint exercises are necessary, in part, because they help identify similarities as 
well as expose differences in military approaches and doctrine. NATO has had 
many decades to work on promoting commonality among its members. 



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Establishing NATO-Russian commonality will take time, money, and tolerance 
on both sides. This is anticipated in the Founding Act, in which the PJC is 
tasked to coordinate an expanded program of cooperation between their 
respective military establishments. 

Political'Military Matters 

Section IV of the Founding Act is addressed to broad political-military 
issues that are part of the context within which NATO-Russia joint 
peacekeeping operations must fit. The first important declaration in this 
section is that current NATO members state that they are not planning to 
deploy nuclear weapons or to establish nuclear weapon storage sites on the 
territories of new members. Indeed, no need is seen to change any aspect of 
NATO's nuclear policy by the addition of new members. The carefully crafted 
text stops short of a categorical statement that there are no circumstances 
under which deployment of nuclear weapons or their storage could occur in the 
territory of new members of NATO. While the Russians undoubtedly pressed 
for such categorical assurances, NATO leaders went a long way toward 
assuaging Russian fears that expansion was moving NATO's nuclear 
capabilities closer to Moscow. 

The next issue tackled was adapting the CFE Treaty to the changed political 
and military circumstances in Europe. The urgency of this issue was recognized 
by an undertaking to conclude "an adaptation agreement as expeditiously as 
possible. ..." The first step for NATO members and the other State Parties to 
the CFE Treaty is to conclude a Framework Agreement with the basic elements 
of an adapted CFE Treaty. At the Madrid Summit in July 1997, it was 
announced that NATO had advanced a comprehensive proposal for 
adaptation of the CFE Treaty on the basis of a revised Treaty structure of 
national and territorial military equipment ceilings. This was consistent with 
NATO's members previously stated intention to reduce significantly the future 
aggregate national ceilings for Treaty-Limited Equipment. These are to be 
codified as binding limits in the adapted Treaty, reviewed in 2001 and at 
five-year intervals thereafter. In this Section of the Founding Act, NATO and 
Russia encourage the Parties to the CFE Treaty to consider reductions in their 
CFE equipment entitlements to achieve lower equipment levels. The member 
States of NATO and Russia "commit" to exercising restraint with respect to 
forces and deployments to avoid diminishing the security environment. They 
are, in addition, to develop measures to prevent threatening build-up of 
conventional forces in agreed regions of Europe, to include "Central and 

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Eastern Europe." Consultations on the evolution of the conventional force 
postures are to occur "in the framework of the Permanent Joint Council." 45 

To ensure that Russia understands its intent with respect to military 
activities in the future, NATO reiterates its modern approach to military 
operations in the new European security environment. A cautionary note is in 
order after the foregoing discussion directed at confidence-building measures 
and the reduction of conventional forces. The reminder required is that NATO 
still has a military mission to perform, which may require responding to threats 
of aggression or peacekeeping assignments. Whether defending the territory of 
member States or conducting military exercises, NATO stresses that it must 
ensure "interoperability, integration, and capability for reinforcement rather 
than by additional permanent stationing of substantial combat forces." This 
strategy is based on the premise that NATO now faces a multiplicity of smaller 
threats as contrasted with the monolithic threat of the Cold War era. It is also 
consistent with the perceived need for combined joint task forces that are more 
rapidly deployable than are larger, more static forces. Lastly, the approach is 
compatible with the prevailing political sentiment among NATO members to 
spend a lower percentage of their gross national product on military defense 
and to make up the difference by multinational burden-sharing through 
combined joint forces. 46 While infrastructure compatible with this new 
approach must still be developed, the hope is that through agreed transparency 
measures, such reinforcements will be properly understood. Russia is to 
exercise "similar restraint in its conventional force deployments in Europe." 

One of the four main points cited by the Ministers at the 1996 Council 
meeting in Brussels for inclusion in the new NATO-Russia relationship, was to 
establish mechanisms for military liaison and cooperation. This was 
implemented through the Permanent Joint Council's expanding consultations 
and cooperation via an "enhanced dialogue between the senior military 
authorities of NATO and its member States and of Russia." Both sides are to 
significantly expand military activities and practical cooperation "at all levels." 
This enhanced military-to-military dialogue includes regularly scheduled 
reciprocal briefings on mutual military doctrine, strategy, and resultant force 
structure. Specific reference is also made to discussing joint exercises and 
training. Broad authority is given in the Act for NATO and Russia to establish 
military liaison missions at various levels. 

The value of practical activities and direct cooperation, which was 
highlighted by former Secretaries Christopher and Perry earlier in this essay, is 
the unmistakable focus of the last paragraph in the Founding Act. The 
deliberate placement of this point at the very end of the Act serves to 

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emphasize rather than to diminish the importance of the paragraph — it is no 
afterthought. NATO and Russia's respective military authorities are directed to 
"explore the further development of a concept for joint NATO Russia 
peacekeeping operations," building upon "the positive experience of working 
together in Bosnia and Herzegovina." The lessons from the peacekeeping 
operations there are to be "used in the establishment of Combined Joint Task 
Forces." Of course, agreement on a new command structure to enable all Allies 
to participate fully will have to emerge if the CJTF concept is to be advanced. 
The plans must be flexible enough to allow for the preparation and conduct of 
WEU-led operations as well. 

The Ministers meeting held under NAC auspices at the end of 1997 also 
stressed the importance of practical cooperation under the Permanent Joint 
Council. NATO and Russia were said to have made significant progress on 
security issues, including the situation in Bosnia and the conduct of 
peacekeeping operations. In this latter instance, encouraging progress was 
cited in the working group on peacekeeping. Again, reference was made to 
"opening a new era in European security relations" and the "potential of the 
Founding Act." 47 

The most important message in the Founding Act, that is reinforced by the 
highest authorities in the "NATO 16 plus Russia 1," is that their respective 
military forces are directed to become allies rather than to continue as 
adversaries. The implications of such a profound change for the military 
cultures of the respective sides reach well beyond NATO-Russia joint 
peacekeeping operations. But that is evidently where the Heads of State expect 
to start the process of military integration. As we have seen in this study, this is 
to occur within the framework in the Founding Act on Mutual Relations, 
Cooperation and Security between NATO and the Russian Federation. It 
remains to be seen how much is potential and how much is practical. The 
reader is reminded that a wounded bear is far more dangerous than a healthy 
one. And it is no overstatement to end this essay with the sobering observation 
that global security in the twenty-first century may hinge upon the success or 
failure of the grand experiment outlined in the Act. 



Notes 



1. Remarks by President William Clinton, French President Jacques Chirac, Russian 
President Boris Yeltsin, and NATO Secretary General Javier Solana at NATO-Russia Founding 
Act Signing Ceremony, White House Press Release, May 27, 1997, at 5. 

2. Id. at 7. 

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3. Press Briefing by Mike McCurry, White House Press Release, May 27, 1997, at 2. 
[hereinafter Press Briefing] An editorial in the December 4, 1997, Moscow Times read: 
"There he goes again. President Boris Yeltsin on Tuesday made another startling gesture on 
nuclear weapons during his trip to Sweden, only to have it immediately downplayed by his 
staff. Yeltsin made people sit up straight in their chair when he offered to cut nuclear 
warheads by a third. But only for a moment. As with his earlier offer to no longer target the 
West with nuclear weapons, which turned out to be something that had already happened, it 
turns out there's not a lot of substance behind the latest offer." 

4. Id., at 6. President Yeltsin presented the Founding Act to the Duma where it was 
adopted. This suggests that the Russians view the status of the Act as being in the nature of a 
treaty carrying binding legal obligations. For a discussion of this issue and other political aspects 
of the Act, see Karl-Heinz Kamp, The NATO-Russia Founding Act Trojan Horse or Milestone of 
Reconciliation! AUSSENPOLITIK, IV/1997, at 315-324. 

5. D.P. O'Connell, International Law 213 (1965). 

6. 3 DEPT. OF STATE, DISPATCH 29 Quly 20, 1992). Both the United States and Russia are 
Participating States in this Act which expressly refers to the "obligations" in the Treaty on 
Conventional Armed Forces in Europe (CFE Treaty) of November 19, 1990. 

7. Conference on Security and Cooperation in Europe: Final Act, Aug. 1, 1975. "This 
document which was signed by thirty-five nations participating in the Conference, has no legally 
binding effect." JOHN NORTON MOORE, ET AL, NATIONAL SECURITY LAW DOCUMENTS 529 
(1995). 

8. O'CONNELL, supra note 5, at 214. 

9. Vienna Convention on the Law of Treaties, May 23, 1969 U.N. Doc. A/CONF. 39/27 
(1969), 8 I.L.M. 679 (1969). [hereinafter Vienna Convention] 

10. Id., art. 2, para. 2. 

11. II Y.B. INTL L. COMM. 196 (1966). 

12.1 RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES 196 (1986) . 

13. Id., at 198. 

14. Vienna Convention, supra note 9, art. 7. 

15. Advisory Opinion on Treatment of Polish Nationals in Danzig, P.C.I.J., ser. A/B, No. 44 
at 22 (1932). 

16. Vienna Convention, supra note 9, art. 31 (1). 

17. Id., art. 32. 

18. North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, T.I.A.S. No. 1964 [hereinafter 
NATO Treaty] . The definition of the territories to which Article 5 applies was revised by Article 
2 of the Protocol to the North Atlantic Treaty on the accession of Greece and Turkey and by the 
Protocols signed on the accession of the Federal Republic of Germany and of Spain. 

19. Id., art. 6. The Algerian departments of France no longer exist and the fact of their 
mention in the North Atlantic Treaty is irrelevant. 

20. Senator Arthur Vandenberg consulted with the State Department about the 
constitutionality of joining the Atlantic Alliance. He drew up a Resolution which, inter alia, 
made clear the determination of the United States Government "to exercise the right of 
individual or collective self-defense under Article 51. . . ." The text of the Vandenberg 
Resolution is reproduced in "NATO Basic Documents" published by the NATO Information 
Service. 

21. Chapter 6 of the UN Charter is entitled Pacific Settlement of Disputes. Chapter 7 is 
entitled Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of 
Aggression. The Charter as written makes no references whatsoever to peacekeeping activities. 



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Accordingly, when this gap became apparent to the members of the UN, this phrase came into 
common usage to characterize peacekeeping activities as falling somewhere between Chapter 6 
and Chapter 7. 

22. NATO Treaty, supra note 18, art. 7. 

23. A stalemate occurred in the Security Counsel between the western powers and the 
Soviet Union, as the permanent members have a right to veto actions. When it became evident 
that the UN was unable to discharge its responsibilities due to this unfortunate fallout from the 
Cold War, the General Assembly exercised its prerogative to make recommendations on 
virtually any matter that is of interest to it. Accordingly, as a response to the deadlock over the 
Korean War, the General Assembly passed a Uniting for Peace Resolution that urged all 
members to take actions with respect to threats to international peace and security by enacting a 
General Assembly resolution that was a substitution for the Charter-provided Security Counsel 
resolution. 

24. Founding Act on Mutual Relations, Cooperation and Security between NATO and the 
Russian Federation, NATO-Russian Summit, Paris, May 72,1997 [hereinafter Founding Act]. 
See <http://www.nato.int/docu/comm/m970527/uk-text.htm> for text of Act. 

25. This is the successor to the Implementation Force operations enforcing the Dayton 
Peace Accords. 

26. NATO Partnership for Peace: Invitation and Framework Document, reprinted as 
Appendix C in James W. Morrison, NATO Expansion and Alternative Future Security 
Alignments 138 (McNair Paper No. 40, 1995).' 

27. Id. 

28. Founding Act, supra note 22, at 2. 

29. See Press Briefing, supra note 3, at 3, for the following exchange at the White House 
Press Briefing on the day the Founding Act was signed: 

Q. . . . when the NATO agreement was announced there seemed to be some confusion at 
least by President Yeltsin about what exactly Russia was allowed to do in terms of a veto. Do you 
feel like he's kind of backed off of that and has maybe come to accept your definition? 

Mr. McCurry. I don't know if there was confusion. I think he was presenting the Founding 
Act in a way that he thought would engender support among the Russian people. And you now 
all have [sic] Founding Act, so you know what's in it. 

30. Moscow Warns NATO on Bosnia, WASH. POST, Sept. 12, 1997, at 1, 12. [hereafter 
Moscow Warns] 

3 1 . Interview on Aug. 18, 1997 with recently retired former military commander of NATO, 
General George A. Joulwan, ARMY TIMES, Sept. 1,1997, at 6. His percentages work out better 
using another report that put the figures at "31,000 soldiers from 30 nations." 

32. N.Y. TIMES, Oct. 21, 1997, as reported in the EARLY BIRD published daily by the U.S. 
Dep't. of Defense, at 12. 

33. Id. 

34. International News Release, July 18, 1997, Agence France Press. 

35. Id., at 2. 

36. William Drozdiak, WASH. POST, July 19, 1997. 

37. Id. 

38. Moscow Warns, supra, note 27. 

39. Id. 

40. NATO's Role in Building Cooperative Security in Europe and Beyond, Remarks by the 
Secretary General of NATO, Tokyo, Japan, Oct. 15, 1997, at 4. 

41. Id. 



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The Framework in the Founding Act 



42. Id. at 5. 

43. U.S. Leads Peacekeeping Drill in Kazakstan, WASH. POST, Sept. 15, 1997, at 17. 

44. Id. 

45. The Head of Policy Planning and Speech Writing for NATO, John Barret, commented, 
inter alia, at a briefing in Moscow about the substantive differences between the NATO-Russia 
Founding Act and the NATO-Ukraine Charter. He noted: "the NATO-Russia Act has a 
permanent joint council . . . the Act foresees joint decision-making and the possibility of joint 
action of NATO and Russia." Barret also predicted that issues such as the situation in Bosnia 
would be part of the PJC consultations. Official Kremlin International News Broadcast, July 15, 
1997. 

46. The Defense Department's total costs for peacekeeping operations in and around Bosnia 
are estimated by the Government Accounting Office to be $6.4 billion through June 1998. After 
June 1998, the stabilization force mandate expires and the NATO-led operations are in the 
process of formulating a revised mission which will entail revised costs. INSIDE THE NAVY, 
February 16, 1998. 

47. Final Communique, Ministerial Meeting of the North Atlantic Council held at NATO 
Headquarters, Brussels, Dec. 16, 1997. 



156 




Guarding the Coast: 

Alien Migrant Interdiction 

Operations at Sea 

Gary W. Palmer 



HE INVOLVEMENT OF THE COAST GUARD in immigration matters 
is extensive. Its wide variety of roles and missions includes: 

• Protecting the safety of life at sea, regardless of immigration status; 

• Preventing the entry of undocumented migrants into the United States 
through at-sea interdiction; 

• Facilitating parole into the United States by the Immigration and 
Naturalization Service (INS) for prosecution, or turnover to another nation 
with criminal jurisdiction over the matter, of aliens found committing criminal 
acts at sea; 

• Seizing conveyances and arresting alien smugglers, and gathering 
evidence in alien smuggling cases to help ensure the successful criminal 
prosecution of those involved, and/or civil forfeiture of their vessel; 

• Inspecting vessels and facilities subject to Coast Guard jurisdiction in 
cooperation with the INS to ensure that any aliens being employed are engaged 
in activities consistent with their immigration status; 



Guarding the Coast 



• Detaining aliens, when encountered on vessels subject to Coast Guard 
jurisdiction, who have entered the United States illegally, until disposition 
instructions are received from the INS; and 

• Complying with appropriate procedures for handling claims to refugee 
status and requests for political asylum made during the course of Coast Guard 
operations. 

Despite these roles and missions, the Coast Guard is neither the architect of 
national immigration policy nor even the lead federal agency for immigration 
law enforcement. However, the task of enforcing U.S. immigration laws at sea 
rests almost exclusively with the Coast Guard. This paper first surveys the basic 
legal authority for Coast Guard interdiction and repatriation of illegal migrants 
encountered at sea, then looks at how that legal authority is exercised within 
the factual context of several different types of alien migrant interdiction 
operations. 

Basic Legal Authority 

On 14 August 1949, Title 14 of the United States Code was enacted into 
positive law. 1 For the Coast Guard, a key provision was 14 United States Code 
(USC) §89, which authorized the Coast Guard to 

. . . make inquiries, examinations, inspections, searches, seizures, and arrests 
upon the high seas and waters over which the U.S. has jurisdiction, for the 
prevention, detection, and suppression of violations of laws of the United States. 
For such purposes, commissioned, warrant, and petty officers may at any time go 
on board of any vessel subject to the jurisdiction, or operation o( any law, of the 
United States, address inquiries to those onboard, examine the ship's documents 
and papers, and examine, inspect, and search the vessel and use all necessary 
force to compel compliance. . . . 2 

14 USC §89 was initially enacted 3 in response to the decision of the 
Supreme Court in Maul v. United States, 4 which affirmed the jurisdiction of the 
Coast Guard over U.S. flag vessels under former §3072 of the Revised Statutes 
for violations of laws respecting the revenue. However, Justice Brandeis, in his 
concurring opinion, expressed his concern that more explicit statutory 
authority would be required to authorize seizures of vessels for violations of 
laws other than those pertaining to collection of revenues. Congress responded 
to that suggestion by adopting essentially the language that exists in 14 USC 
§89 (a) today. 

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Gary W. Palmer 



While 14 USC §89 articulates the extent of the Coast Guard's law 
enforcement authority and who may exercise it, 14 USC §2 defines the Coast 
Guard's law enforcement mission in more general terms. It states: 

The Coast Guard shall enforce or assist in the enforcement of all applicable 
federal laws on, under, and over the high seas and waters subject to the 
jurisdiction of the United States; shall engage in maritime air surveillance or 
interdiction to enforce or assist in the enforcement of the laws of the United 
States; shall administer laws and promulgate and enforce regulations for the 
promotion of safety of life and property on and under the high seas and waters 
subject to the jurisdiction of the United States covering all matters not 
specifically delegated by law to some other executive department; . . . 

By virtue of the powers conferred by this statute and 14 USC §89, the Coast 
Guard is the principal federal maritime law enforcement agency of the United 
States. It is in this role that the Coast Guard performs the mission of alien 
migrant interdiction operations at sea. 

Despite the broad statutory authority conferred on the Coast Guard by 14 
USC the Supreme Court has held that ". . . an Act of Congress ought never to 
be construed to violate the law of nations if any other possible construction 
remains." 5 And, under both Article 6 of the 1958 Convention on the High Seas 
(High Seas Convention) 6 and Article 92 of the 1982 United Nations 
Convention on the Law of the Sea (LOS Convention), 7 a vessel on the high 
seas is subject solely to the exclusive jurisdiction of the flag state. While the 
United States is a party only to the High Seas Convention, these provisions in 
both treaties confirm existing maritime law and practice and are a codification 
of existing customary international law. 8 

There are, however, several exceptions to the principle of exclusive flag 
state jurisdiction. The most commonly relied upon exception permits a warship 
to board any vessel not entitled to complete immunity if there are reasonable 
grounds to suspect it is engaged in piracy, slave trading, unauthorized 
broadcasting, or that it is a stateless vessel or of the same nationality as the 
warship. 9 This is known as the "right of visit." It is a limited exercise of 
authority solely for the purpose of verification of the aforementioned 
circumstances. Unless the vessel is determined to be the same nationality as 
the warship, a stateless vessel, or a vessel engaged in piracy (or other universal 
crimes), any further exercise of complete criminal jurisdiction requires a 
separate, independent basis. 10 In immigration matters, this normally is found in 
an affirmative waiver of exclusive jurisdiction by the flag state and express 
consent by the flag state to an exercise of jurisdiction by the United States. 11 

159 



Guarding the Coast 



This waiver and consent to jurisdiction may be sought and given on a 
case-by-case basis or take the form of a standing special arrangement pursuant 
to treaty, exchange of diplomatic notes, or executive agreement. 

In October 1994, President Clinton forwarded the 1982 United Nations 
Convention on the Law of the Sea to the Senate for advice and consent. In so 
doing, the President recognized reliance on flag state consent as a basis for 
jurisdiction in immigration matters by stating: 

. . . the United States and other members of the international community have 
developed procedures for resolving problems that have arisen in certain 
contexts, including drug smuggling, illegal immigration and fishing, when States 
are unable or unwilling to exercise responsibility over vessels flying their flag. 
These procedures, several of which are contained in international agreements, 
typically seek to ensure the flag state gives expeditious permission to other States 
for the purpose of boarding, inspection, and where appropriate, taking law 
enforcement action with respect to its vessels (emphasis added). 12 

Thus, 14 USC §89 does not authorize the Coast Guard to conduct searches 
and seizures of foreign flag vessels carrying illegal migrants on the high seas 
without the consent of the flag state. 13 However, if this consent is obtained, the 
Coast Guard may then stop the vessel on the high seas, search for illegal 
migrants, and take appropriate action consistent with United States law. 

Under 14 USC §89 (b), Coast Guard officers acting pursuant to their general 
law enforcement authority are deemed to be agents of those executive agencies 
charged with administration of a particular law. When conducting alien 
migrant interdiction operations, the Coast Guard relies on this agency theory 
to enforce compliance with the Immigration and Nationality Act on behalf of 
the INS and the Attorney General. More specifically, the Coast Guard 
enforces 8 USC §1 185(a) (1), which states, inter alia, that it is unlawful for an 
alien to ". . . enter ... or attempt to . . . enter the United States except under 
such reasonable rules, regulations, and orders, and subject to such limitations 
and exceptions as the President may subscribe." The Coast Guard also enforces 
the provisions of 8 USC §1324 which make it a crime to knowingly bring, or 
attempt to bring, an alien into the United States at other than a designated 
port of entry. 

Coast Guard interdiction policy is determined largely by national security 
goals and Presidential directives. The current strategy calls for focusing United 
States maritime interdiction operations as far at sea as possible. The manner in 
which these operations are conducted, however, is dependent upon a 
combination of many factors. The primary ones are: (1) the nature and 

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Gary W. Palmer 



magnitude of the threat, (2) the type and number of resources available, and 
(3) the applicable law. 

The remainder of this article examines the application of both the law and 
Coast Guard resources to specific migrant interdiction operations. It focuses on 
Coast Guard efforts to interdict Haitian, Cuban, Dominican, and Chinese 
migrants attempting to enter the United States illegally in overloaded and 
unseaworthy craft. The peculiar difficulties of each type of interdiction are 
illustrated with factual examples. Finally, it attempts to show how the nature 
and magnitude of migrant activity, as well as Coast Guard interdiction 
operations, is directly influenced by changes in law and policy. 

The Immigration and Nationality Act of 1952 

"It is undoubtedly within the power of the Federal Government to exclude 
aliens from the country." 14 However, prior to the passage of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, 15 aliens who 
resided in the United States or arrived at the border were accorded certain 
procedural rights under the Immigration and Nationality Act of 1952 (IN A) 16 
before being excluded or deported. Those residing illegally in the United States 
were subject to deportation only after a formal evidentiary hearing. 17 Aliens 
arriving at "ports of the United States" who did not appear to the examining 
immigration officer to be clearly entitled to land were subject to a less formal 
exclusion proceeding by which they too were eventually subject to removal. 18 
Whether an alien is "excluded" or "deported" turns upon whether they have 
"entered" the United States. 19 Aliens who have made an "entry" are entitled to 
deportation proceedings, while those who are seeking admission but who have 
not made an "entry" are afforded only an exclusion proceeding. 

Other aliens could be prevented from entry by Executive actions that did 
not trigger any procedural rights. In Haitian Refugee Center, Inc. v. Gracey, the 
District court stated: 

The Immigration and Nationality Act has established procedures for the 
exclusion of aliens, including the entitlement to a hearing. See 8 USC §1226. 
Those rights, however, are reserved for aliens arriving "by water or air at any port 

within the United States from any place outside the United States." Id Again, 

because those "exclusion or deportation" proceedings are restricted to aliens 
arriving "at any port within the United States," 8 USC §1221, it is clear that the 
interdicted Haitians are entitled to none of these statutorily-created procedural 
rights, including the right to counsel. 20 

161 



Guarding the Coast 



In either a deportation or exclusion proceeding, an alien could seek asylum 
as a political refugee. 21 Section 243(h)(1) of the INA provided: 

The Attorney General shall not deport or return any alien ... to a country if the 
Attorney General determines that such alien's life or freedom would be 
threatened in any such country on account of race, religion, nationality, 
membership in a particular social group, or political opinion. 22 

Congress thereby intended 23 to incorporate the provisions of the 1951 Convention 
on the Status of Refugees 24 as amended by the 1967 Protocol Relating to the Status 
of Refugees (the Convention), 2 Article 33 of which provides: 

Article 33 - Prohibition of expulsion or return ('refoulement') 

1. No contracting State shall expel or return ('refouler') a refugee in any manner 
whatsoever to the frontiers of territories where his life or freedom would be 
threatened on account of his race, religion, nationality, membership in a 
particular social group or political opinion. 

2. The benefit of the present provision may not, however, be claimed by a refugee 
whom there are reasonable grounds for regarding as a danger to the security of 
the country in which he is, or who, having been convicted by a final judgment of a 
particularly serious crime, constitutes a danger to the community of that country 
(emphasis added). 

The text of Article 33 does not apply by its terms to actions taken by a country 
beyond its borders. In fact, the language of Article 33.2 suggests that an alien 
entitled to the benefit of Article 33.1 must be located within the territory of a 
contracting state. As a result, the Supreme Court determined that since INA 
§243 was intended to incorporate the provisions of the Convention, and 
neither suggested any extraterritorial application, §243 applied only in the 
context of the domestic procedures by which the Attorney General determined 
whether to deport or exclude an alien. 26 

Since 1980, the Coast Guard has been involved in operations to prevent 
illegal migrants from entering the United States and, thereby, from implicating 
any statutorily-created procedural entitlements. 

Haitian Migrant Interdiction Operations 

The near total collapse of the Haitian economy in the late 1970s and early 
1980s under the repressive regime of then "President-for-Life" Jean Claude 

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Gary W. Palmer 



Duvalier resulted in a flood of economic migrants from Haiti attempting to 
reach the United States by boat. 27 

In response, President Reagan delegated express authority to the Coast 
Guard to interdict and return illegal aliens on the high seas. He did this by 
promulgating Executive Order 12,324, 28 which was signed in September of 
1981 in response to what he characterized as a "serious national problem" of 
"continuing illegal migration by sea." 29 It was promulgated pursuant to the 
authority of the President under 8 USC § 1182(f) and his inherent authority 
under the foreign affairs power of the Constitution 30 to suspend entry or impose 
restrictions on entry of aliens. The Order directed the Secretary of 
Transportation to issue instructions to the Coast Guard to enforce the 
suspension of the entry of undocumented aliens into the United States by sea. 
It also authorized the Coast Guard to interdict certain defined vessels for this 
purpose if they were suspected of being involved in the "irregular transport of 
people," 31 or other violations of United States law on the high seas (including, 
but not limited to the IN A), and to return the vessel and transport its 
passengers to the country from which they came. The defined vessels included 
"[vjessels of foreign nations with whom [the United States has] arrangements 
authorizing the United States to stop and board such vessels." 32 By its terms, 
the Executive Order authorized these actions only outside the territorial waters 
of the United States. 

The United States and Haiti had entered into a bilateral agreement on 23 
September 1981, 33 six days before Executive Order 12,324 was signed. That 
agreement applied to private Haitian vessels on the high seas when there was 
reason to believe that such vessels were involved in the irregular carriage of 
passengers outbound from Haiti. It gave the United States permission to board 
such vessels to determine their registry, condition, and destination, as well as 
the status of those on board. When the circumstances suggested that a 
violation of U.S. immigration laws had been or was being committed, the vessel 
and persons on board could be detained and returned to Haiti upon prior 
notification to the Haitian government. Haiti also gave assurances that 
interdicted Haitians would not be prosecuted for illegal departure. 

Interdiction of migrants at sea may be accomplished in departure, transit, or 
arrival zones. However, forward deployment of available Coast Guard 
resources, as opposed to waiting to interdict at or near landfall in the United 
States, is preferred for several reasons. First, the vessels used by migrants are 
usually grossly overloaded, unseaworthy, and incapable of making the 700-mile 
trip from Haiti to the United States without risking substantial loss of life. 
Second, aliens residing illegally in the United States or arriving at the border 

163 



Guarding the Coast 



were entitled under former §243 (h) of the IN A to a deportation or exclusion 
hearing. The differences between exclusion and deportation, and the varying 
procedural protections attached to each, depended upon whether the alien 
had made an "entry" into the United States. 34 Aliens making an entry were 
entitled to deportation proceedings. Those seeking admission upon arrival, but 
prior to "entry," 35 could have their status determined at an exclusion 
proceeding. Since §243 did not by its terms have extraterritorial application, 36 
migrants interdicted at sea were not afforded access to either of these 
processes. 37 

The best reason to interdict migrants at sea, however, is that it saves lives. 
Without the nearly constant presence of a Coast Guard cutter in relative 
proximity to the territorial sea of Haiti, many migrants bound for the United 
States would die. Haitian migrant vessels are typically crude, handmade, 
wooden-hulled vessels. 38 Primarily, they are lateen or sloop-rigged sailing 
vessels of 30-50 feet in length, or more substantial double-decked, 
wooden-hulled freighters, 50-80 feet in length, with high, upswept bows, and a 
large deck house aft. The latter are generally powered by unreliable engines 
prone to mechanical failure. Most do not carry charts, compass, or navigational 
instruments of any kind. Navigation is based primarily on following the 
prevailing winds, wave patterns, and changes in water color along the Bahama 
Bank until the loom of light from Miami is seen on the night horizon. Due to 
the large number of people on board (some may carry as many as six to eight 
persons for every foot of deck length) and complete lack of sanitary facilities, 
conditions on the vessels are typically appalling. Cooking, if any, may be done 
over open charcoal fires, and some vessels even carry live goats as provisions. 
The vessels usually have little freeboard due to their overloaded condition, and 
constant flooding results. 

After the migrants are removed, the vessels normally cannot be towed, due 
to either their physical condition or the presence o( large numbers oi migrants 
on the Coast Guard cutter. Rather than be left adrift as derelicts, where they 
could constitute a potentially deadly hazard to navigation, these vessels are 
usually destroyed. The vessels are at times unsinkable with gunfire or ramming, 
because the inherent natural buoyancy of their wooden construction often 
keeps them floating just below the surface despite the infliction of major 
damage. As a result, most cutters resort to burning the vessels to the waterline, 
then breaking up the remains by ramming or other means to minimize the size 
of the debris. 

Executive Order 12,324 expressly prohibited the return of any refugee 
without their consent. 39 As a result, migrants interdicted on the high seas 

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Gary W. Palmer 



pursuant to the Executive Order had to be screened for colorable claims to 
refugee status. For that purpose, Coast Guard cutters on patrol in the 
Windward Passage between Cuba and Haiti initially had INS agents and 
Creole-speaking interpreters assigned. When a cutter came upon an 
overloaded and unseaworthy Haitian vessel bound for the United States, the 
migrants were taken on board the cutter, given an abbreviated medical 
examination, issued a blanket, and fed a meal (typically of beans and rice) . Due 
to space limitations, the migrants were normally kept on the flight deck, 
forecastle, or fantail of the cutter. 40 The cutter's crew would attempt to rig 
awnings to shelter the migrants as best they could from the effects of wind, 
weather, and the hot Caribbean sun beating on the steel decks of the cutter. 
The cutters also carried or improvised portable toilets, and otherwise 
attempted to treat the migrants with as much dignity as possible. 

Under Executive Order 12,324, the migrants were individually interviewed 
by INS agents while onboard the cutter to determine if any had potentially 
valid claims to refugee status. This process often took days. While their status 
was being decided, the cutter remained at sea and out of sight of land. As time 
wore on, the migrants sometimes became impatient. With overcrowding, 
discontent, boredom, and the prospect of an imminent return to Haiti rather 
than the promise of arrival in Miami, some migrants even became belligerent. 41 
Disturbances sometimes broke out on Coast Guard cutters that in a few 
instances had to be quelled through the use of physical restraints, fire hoses, or 
chemical agents such as CURB 60 42 or pepper spray. 

After the interview process was complete, those who were determined to be 
economic migrants were "screened out" and repatriated. Repatriations usually 
took place dockside in Port au Prince, where the Haitians were turned over to 
the Red Cross. Those who made a colorable claim of status as a political refugee 
were "screened in" and transported to the United States so that they could file 
a formal application for political asylum. 

Between 1981 and 1991, approximately 25,000 Haitian migrants were 
interdicted by the Coast Guard. Then, on 30 September 1991, a military coup 
succeeded in overthrowing the Aristide government. In response to the 
subsequent killing and torture of hundreds of Haitians who opposed the 
military regime, a flood of migrants bound for the United States soon 
overwhelmed both the existing operational posture of the Coast Guard and the 
ability of the INS to screen the migrants for potential refugee status as required 
by Executive Order 12,324. 

Executive Order 12,324 was superseded by Executive Order 12,807 on May 
23, 1992. The primary difference between the two was that Executive Order 

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Guarding the Coast 



12,807 no longer contained a requirement to screen migrants interdicted at sea 
for refugee status. In addressing a challenge to the new Executive Order on this 
ground, the Supreme Court said: 

During the six months after October 1991, the Coast Guard interdicted over 
34,000 Haitians. Because so many interdicted Haitians could not be safely 
processed on Coast Guard cutters, the Department of Defense established 
temporary facilities at the United States Naval Base at Guantanamo Bay, Cuba, 
to accommodate them during the screening process. Those temporary facilities, 
however, had a capacity of only about 12,500 persons. In the first three weeks of 
May 1992, the Coast Guard intercepted 127 vessels (many of which were 
considered unseaworthy, overcrowded, and unsafe); those vessels carried 10,497 
undocumented aliens. On May 22, 1992, the United States Navy determined 
that no additional migrants could safely be accommodated at Guantanamo. 

With both the facilities at Guantanamo and available Coast Guard cutters 
saturated, and with the number of Haitian emigrants in unseaworthy craft 
increasing (many had drowned as they attempted the trip to Florida), the 
Government could no longer both protect our borders and offer the Haitians 
even a modified screening process. It had to chose between allowing Haitians 
into the United States for the screening process or repatriating them without 
giving them any opportunity to establish their qualifications as refugees. In the 
judgment of the President's advisors, the first choice would not only have 
defeated the original purpose of the program (controlling illegal immigration), 
but also would have impeded diplomatic efforts to restore democratic 
government in Haiti and would have posed a life threatening danger to 
thousands of persons embarking on long voyages in dangerous crafts. The second 
choice would have advocated those policies but deprived the fleeing Haitians of 
any screening process. . . . 

On May 23, 1992, President Bush adopted the second choice. After assuming 
office, President Clinton decided not to modify that order; it remains in effect 
today. 44 

The terms of Executive Order 12,807 provided for the repatriation of 
undocumented aliens without the benefit of any screening process. It also 
stated that the "non-refoulement" 45 obligations of the United States under 
Article 33 of the United Nations Convention Relating to the Status of 
Refugees 46 do not extend to persons located outside the United States. The 
Executive Order again directed the Secretary of Transportation to issue 
appropriate instructions to the Coast Guard to enforce the suspension of the 
entry of undocumented aliens by sea and to interdict defined vessels carrying 

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Gary W. Palmer 



such aliens. These instructions were to include directives to "return the vessel 
and its passengers to the country from which it came, or to another country . . . 
provided, however, that the Attorney General, in his unreviewable discretion, 
may decide that a person who is a refugee will not be returned without his 

4- "47 

consent. 

There have been a number of legal challenges to the Coast Guard's 
interdiction and repatriation of Haitian migrants at sea under both Executive 
Orders. In 1985, the District Court for the District of Columbia denied such a 
challenge to Executive Order 12,324, finding that §243 (h) of the INA applied 
only to those Haitians who were already in the United States. 48 The next 
challenge came in 1991, alleging that the Government had failed to establish 
and implement adequate procedures to protect Haitians who qualified for 
asylum. The Eleventh Circuit Court of Appeals held that since Executive 
Order 12,324 did not limit the discretion of INS officials, migrants interdicted 
at sea could not obtain judicial review of INS decisions. 49 That court also held 
that the INA did not apply extra-territorially. 

President Bush's promulgation of Executive Order 12,807 precipitated 
another round of legal challenges. The Supreme Court resolved those 
challenges by holding that repatriating migrants to Haiti without first 
determining whether they qualified as refugees was not prohibited by either 
§243 of the INA or Article 33 of the United Nations Convention Relating to 
the Status of Refugees. 50 The court found that since neither of those provisions 
had extra-territorial application, migrants interdicted at sea were not entitled 
to either deportation or exclusion hearings. Therefore, there is nothing in 
domestic or international law which prevents the President or the Attorney 
General from involuntarily repatriating undocumented aliens interdicted at 
sea. 51 

During fiscal year 1992 the Coast Guard interdicted 37,618 Haitian 
migrants. In response to the Haitian exodus, Operation Able Manner 
commenced on 15 June 1993 and was, at that time, the largest single peacetime 
operation in the history of the Coast Guard. It involved virtually every Coast 
Guard unit along the Atlantic and Gulf coasts. Today, Haitian migration has 
stabilized at an average of about 150 to 300 migrants a month, with occasional 
peaks in excess of those amounts. On 24 November 1997, 416 Haitians on an 
80-foot wooden-hulled freighter were intercepted approximately six nautical 
miles southeast of Miami Beach. 52 The vessel refused to stop until shouldered 
by the Coast Guard Cutter Maui, a 1 10-foot patrol boat, which prevented the 
migrants from entering the United States. This was the largest single group of 
migrants interdicted since November 1995. All were repatriated to Port au 

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Guarding the Coast 



Prince, except for a pregnant, nineteen-year-old female suffering from 
dehydration and possible pneumonia, who was brought to Miami for medical 
treatment. 

Despite the fact that there has been no formal agreement in place since 
1994, when the 1981 Agreement was terminated by President Aristide 
according to its terms, Haiti continues to permit repatriation of all Haitian 
migrants interdicted by the Coast Guard at sea. Since the original interdiction 
agreement was entered into by the totalitarian Duvalier regime and abrogated 
by the democratic government of Aristide, any new standing interdiction 
agreement appears unlikely in the near future. United Nations peacekeeping 
forces assisted in recent elections in Haiti, but the results were tainted by fraud, 
essentially leaving Haiti without an effective government since the resignation 
of Premier Rosny Smarth in June of 1997. 53 With the departure of United 
Nations peacekeeping forces on 1 December 1997, a refusal by the Haitian 
government to accept the return of migrants for any reason could precipitate 
another mass exodus and have far-reaching consequences for both the United 
States and the Coast Guard. 

Cuban Migrant Interdiction Operations 

When Fidel Castro opened the port of Camarioca in 1965, over 6,000 
Cubans fled to the United States. 54 After one of the vessels capsized, President 
Lyndon Johnson commenced eight years of "Freedom Flights," in which over a 
quarter million Cubans immigrated to the United States. 

In 1980, the Mariel Boatlift brought more than 100,000 Cubans to U.S. 
shores. These Cuban migrants enjoyed a special status that the Haitian 
migrants did not. Unlike the Haitians, the Cuban Refugee Adjustment Act 55 
permitted the Attorney General to grant permanent resident status to Cuban 
citizens present in the United States for at least one year. President Carter 
permitted the "Marielitos" to enter the United States, and Castro took full 
political advantage of this opportunity to rid Cuba of many criminals, mentally 
ill persons, and others that he considered to be undesirable elements. 

In the years after the Mariel Boatlift, migrant attempts to evade Cuban 
authorities and reach the United States persisted on a small scale, but one 
which progressively increased in magnitude. Then, on 8 August 1994, Fidel 
Castro announced that the Cuban government would no longer forcibly 
prevent Cuban citizens from emigrating by boat. This policy precipitated a 
flood of "balseros" aboard homemade rafts and boats attempting to negotiate 
ninety treacherous miles across the Gulf Stream to the United States. In two 

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Gary W. Palmer 



weeks, more than 2,700 Cubans were rescued by the units of Operation Able 
Vigil, with the rate of rescue at times reaching nearly 750 per day. 56 Many were 
lost at sea. 

In a press conference on 19 August 1994, President Clinton stated: 

In recent weeks the Castro regime has encouraged Cubans to take to the sea in 
unsafe vessels to escape their nation's internal problems. In so doing, it has risked 
the lives of thousands of Cubans, and several have already died in their efforts to 
leave. This action is a cold-blooded attempt to maintain the Castro grip on Cuba, 
and to divert attention from his failed communist policies. He has tried to export 
to the United States the political and economic crisis he has created in Cuba, in 
defiance of the democratic tide flowing throughout this region. Let me be clear: 
The Cuban government will not succeed in any attempt to dictate American 
immigration policy. The United States will do everything within its power to 
ensure that Cuban lives are saved and that the current outflow of refugees is 
stopped. 57 

In order to stem the tide of Cuban migrants and prevent further loss of life, 
the policy that provided for permanent resident status was terminated. 
President Clinton also ordered the Coast Guard to interdict Cubans at sea and 
transport them to Guantanamo Bay, where they received treatment similar to 
Haitian migrants interdicted at sea. From there, the United States engaged in a 
program of voluntary repatriations while negotiating with other countries to 
accept migrants into safe havens. By the end of fiscal year 1994, a total of 
38,560 Cuban migrants were interdicted. 58 This exceeded the total number of 
Haitians interdicted during the mass exodus of fiscal year 1992. 

Further negotiations with the Cuban government resulted in a joint 
communique between the United States and Cuba on 2 May 1995. 59 In this 
communique, the United States agreed to allow Cuban migrants to enter the 
United States only by applying for a visa or refugee status at the United States 
Interests Section in Havana. It further permits 20fi00 Cubans per year to enter 
the United States legally. This agreement has facilitated the direct repatriation 
of approximately 75 percent of all Cubans intercepted at sea, 60 with the 
remainder going to Guantanamo or to the United States at the direction of the 
INS. 61 It also reaffirmed a commitment to hvcountry processing of refugee 
claims through the United States Interests Section in Havana. This policy has 
achieved its purpose of deterring dangerous migration from Cuba by boat by 
offering a safe alternative. 62 Since the 2 May 1995 accord, illegal migration 
from Cuba has been significantly reduced and remains relatively stable at about 
thirty to fifty migrants per month. 63 

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Guarding the Coast 



A legal challenge was asserted to determine whether Cuban migrants 
temporarily given safe haven at the United States Naval Base at Guantanamo 
Bay could assert rights under the INA and Article 33 of the United Nations 
Convention Relating to the Status of Refugees. The Eleventh Circuit Court of 
Appeals 64 rejected the argument that leased military bases in foreign countries 
(such as Guantanamo Bay) are ports of entry or otherwise "within the United 
States" for purposes of the INA. It also held that granting safe haven did not 
create a protected liberty interest, the deprivation of which would require the 
government to provide due process of law. 65 

Dominican Migrant Interdiction Operations 

A relatively new development in Coast Guard alien migrant interdiction 
operations is the emergence of the Dominican Republic as a major source of 
undocumented aliens. Puerto Rico lies sixty miles beyond the east coast of the 
Dominican Republic. Migrants navigate the Mona Passage in small, open, 
wooden boats known as "yolas," powered by outboard motors. They are often 
camouflaged, covered with tarps, and drift during daylight hours to avoid 
detection. Many of these attempts to enter the United States illegally through 
Puerto Rico are organized alien smuggling ventures. Organizers can receive 
more than $40,000 for a single run. 66 

With the decline in Haitian and Cuban migrants after 1994, the Coast 
Guard was able to dedicate more resources to patrolling the Mona Passage. 
Between 1994 and 1995, the number of undocumented aliens interdicted by 
the Coast Guard in the Mona Passage increased by more than 800 percent, 
from 371 to 3,375. 67 Since that time, the Coast Guard has been patrolling the 
Mona Pass with a nearly constant presence of several cutters and aircraft. 
These efforts resulted in the interdiction of 6,273 Dominicans in fiscal year 
1996. When a yola is intercepted, the migrants are typically repatriated to the 
Dominican Republic, either by rendezvous and transfer to the Dominican 
Navy or by direct dockside repatriation in the Dominican Republic. 

A recent case illustrates the role of the Coast Guard in the Mona Passage. 
On 5 February 1997, the Coast Guard cutter Courageous was participating in 
Operation Frontier Shield 68 in the Mona Passage. They spotted an overloaded, 
50-foot yola approximately 35 miles west of Puerto Rico. The cutter 
immediately launched both of its small boats. While they were handing out 
lifejackets to the migrants in preparation for their transfer to the cutter, the 
yola capsized, and 108 persons ended up in the water. One drowned, and three 

170 



Gary W. Palmer 



were reported missing. The others were transferred to the INS in San Juan, 
Puerto Rico, three days later. 

The four Dominicans who coordinated the smuggling venture were indicted 
on 12 February 1997 for attempting to bring aliens into the United States 
illegally. The indictment charged them with violations of 8 USC 
§1324(a)(l)(A)(i), §1324(a)(l)(B)(iv), and 18 USC §2. 69 They were held 
without bail, and if convicted, the four defendants could possibly receive the 
death penalty. As of this writing, the case is pending trial in the United States 
District Court for the District of Puerto Rico. 

Chinese Migrant Interdiction Operations 

Some rime after midnight on 6 June 1993, the MA^ Golden Venture ran 
aground on a sandbar approximately 100 yards off Long Island. State and 
federal law enforcement agencies, including the Coast Guard, began arriving 
en masse soon thereafter. Some of the 286 Chinese migrants on board were 
observed r iraing on the beach, with others attempting to swim ashore in the 
53 Q F wate About 100 remained on the ship awaiting rescue. About 30 made it 
into the s ounding community. The others were detained in the custody of 
the INS. Exclusion proceedings were brought against the detainees, many of 
whom applied for political asylum. The legal issue raised by those proceedings 
was whe he : the Chinese were entitled to a deportation hearing by virtue of 
having "entered" the United States. In resolving the claims of those on board 
the MA^ Golden Venture, the Court of Appeals in Yang v. Maugans 10 held that 
despite the fact that some migrants were walking ashore though the surf when 
appreheis I d, a person does not make an "entry" into the United States for 
purposes of INA deportation hearing entitlements until they are physically 
present on "dry land." 

Another case illustrates the problems involved in repatriating Chinese 
migrants interdicted on the high seas. Based on information obtained by an 
undercover agent for the INS during a complex sting operation, the Coast 
Guard cutter Reliance intercepted the V17V Xing Da on 2 October 1996. The 
vessel was approximately 130 miles northeast of Bermuda, and, in addition to 
26 crew members, had 83 illegal Chinese migrants in the ship's cargo hold. The 
migrants had been in the cargo hold of the rusty, 220-foot freighter since it left 
China's Guang Zhou province more than three months previously on a voyage 
to a planned rendezvous in the Atlantic Ocean via Africa's Cape of Good 
Hope. A fishing vessel was then to embark the migrants and land them 
somewhere near Boston. 71 

171 



Guarding the Coast 



When the M/V Xing Da was first hailed on the radio by the Coast Guard, a 
person purporting to be the master consented to a Coast Guard boarding. The 
vessel flew no flag but had markings on the hull indicating the home port of the 
vessel was in the People's Republic of China (PRC). The "master" also claimed 
to be a PRC citizen. Documents were found on board which, while 
inconclusive, gave indications that the vessel might be validly registered in the 
PRC. Therefore, the Coast Guard requested through diplomatic channels that 
the PRC government confirm the registry of the vessel and grant permission for 
United States authorities to take any action necessary to insure the safety of 
those onboard. 

Some of the migrants were severely dehydrated and water had to be brought 
to the vessel. The decks were littered with debris and garbage. The vessel was 
also plagued with mechanical problems, had no electricity, and its bilge was 
filled with fuel that had leaked from the tanks. Soon after the Coast Guard 
boarding team came aboard, the migrants began setting fires and banging on 
the hull in an apparent attempt to sink the vessel. It was believed that the 
trouble was incited by enforcers called "snake heads," who hoped to force the 
Coast Guard to bring them ashore in the United States. 72 These migrants 
frequently pay up to $30,000 for their transportation and, in return, must 
liquidate their debt by working for the organizers at rates often below minimum 
wage for as long as 10 years. 73 

The PRC government had some information about a vessel with the same 
name, but claimed they needed additional time to confirm the vessel's 
nationality as PRC. They did, however, give their consent for the United States 
to take whatever action was deemed necessary to ensure the safety of those on 
board in the interim. The government of Bermuda reluctantly permitted the 
Coast Guard to anchor the vessel temporarily as long as the migrants were 
removed from Bermuda as soon as possible. Consistent with the consent 
granted by the PRC to ensure the safety of those on board, they were 
transported to Guantanamo Bay for processing and eventually returned to the 
PRC by way of Wake Island. 74 

It soon became apparent that the PRC government did not intend to 
unequivocally confirm the vessel's registry. The United States then informed 
them that unless they objected within a certain time, the vessel would be 
declared stateless and seized under United States law. 75 Approximately two 
weeks after the initial interdiction, the vessel was assimilated to a stateless 
vessel and became subject to the full jurisdiction of the United States. 

Because of the distances involved, interdiction o{ Chinese migrant vessels 
are often resource intensive and come at a very high cost. The M/V Jung Sheng 



172 



Gary W. Palmer 



#8 was first sighted on 27 June 1995, nearly 1,000 miles southeast of Hawaii. 
The interdiction operation involved three Coast Guard cutters, a C-130 
aircraft, an H-65 helicopter, and numerous land-based support personnel. The 
operation took forty-five days and covered 6,000 miles. The 147 migrants were 
transported to Wake Island, where a Joint Task Force had to be established to 
facilitate the return of the migrants to the PRC. It is estimated that the total 
cost of the interdiction of these 147 migrants exceeded $11 million. 76 

On 12 August 1997, the 150-foot merchant vessel, Lapas No. 3, was 
intercepted 200 miles south of San Diego with sixty-nine illegal Chinese 
migrants on board. The vessel had weathered three typhoons and was nearly 
out of food and fuel. Coast Guard units stayed on scene for more than two 
weeks providing food, water, and medical assistance. The Mexican 
government eventually agreed to tow the vessel to Mexico, where the migrants 
were then repatriated to China. 

The Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 

On 30 September 1996, President Clinton signed the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 77 The entire 
system for deportation and exclusion of aliens was substantially modified. The 
concept of "entry" was replaced by "admission," which means the lawful entry 
of an alien into the United States after inspection by an immigration officer. 
IIRIRA §304 replaced both deportation and exclusion hearings with a single 
streamlined "removal proceeding." 78 

Section 302 establishes a summary screening program which permits an INS 
officer to determine an alien inadmissible and order him or her removed from 
the United States without further hearing or judicial review. If such an alien 
indicates an intention to apply for asylum, the case must be referred to an 
asylum officer to conduct a "credible fear of persecution" screening to 
determine whether there is a significant possibility that the alien could 
establish eligibility for asylum. 

Under §302 an alien "present in the United States" is entitled to a removal 
proceeding which results in either admission, asylum, or removal. 79 But, 
determining whether an alien is "present in the United States" by using the 
"dry land" standard adopted by the court in Yang may not provide clear 
guidance to the Coast Guard in determining when an alien may be repatriated 
and when they have acquired a right to a removal proceeding. For example, 

173 



Guarding the Coast 



aliens on board a moored vessel, who disembark onto a pier, or who come 
ashore and then later return to their vessel, may not be on "dry land." 

Certain provisions of the IIRIRA have the potential for significant impact 
on Coast Guard alien migrant interdiction operations. For example, 8 USC 
§ 1 23 1 (c) and (d) make the owner or commanding officer of a vessel or aircraft 
bringing an alien into the United States personally responsible for transporting 
an alien to the foreign country to which they are ordered removed. It also 
makes the owner or commanding officer financially responsible for the costs of 
both detaining and repatriating the alien. The statute does not explicitly 
provide for an exception to this requirement for public vessels. This mandate 
could place a large potential burden on the limited financial and operational 
resources of the Coast Guard. It could also discourage good Samaritans from 
complying with their legal obligations under both 46 USC §2304 and 
customary international law to render assistance to those in peril on the sea. 
Requiring a good Samaritan to bear the financial burden of detention and 
repatriation would unfairly penalize him or her for undertaking a rescue of 
anyone whose immigration status is uncertain. A direct result of this 
disincentive could be a greater demand on Coast Guard resources for search 
and rescue operations. 

"Expedited removal" is another provision of IIRIRA, which could have the 
potential for significant impact on Coast Guard alien migrant interdiction 
operations. It was created by §302, 80 which amends 8 USC § 1 225 to provide for 
a streamlined removal procedure of "applicants for admission" who are deemed 
inadmissible by an immigration officer. This procedure took effect on 1 April 
1997. Applicants for admission include aliens brought into the United States 
after having been interdicted at sea. 81 An applicant may be deemed 
inadmissible for attempting to enter the United States through 
misrepresentation, fraud, or without valid travel and/or visa documents. Such 
applicants for admission may be removed without further hearing, appeal, or 
judicial review unless they affirmatively indicate either an intention to apply 
for asylum, or a fear of persecution if returned. 82 Once ordered removed, 
removal must take place within ninety days. 

The IIRIRA also includes mass migration provisions in §372 which provide: 

In the event the Attorney General determines that an actual or imminent influx of 
aliens arriving off the coast of the United States, or near a land border, presents 
urgent circumstances requiring an immediate federal response, the Attorney 
General may authorize any State or local law enforcement officer ... to perform or 
exercise any of the powers, privileges, or duties conferred or imposed by this chapter 
or regulations issued hereunder upon officers or employees o( the Service. 83 

174 



Gary W. Palmer 



Section 372 could help avoid backlogs in the removal process during mass 
migrations, such as those from Haiti and Cuba, by ensuring that sufficient 
resources are made available for making admissibility determinations when 
necessary. 

From the Coast Guard's perspective, expedited removal could help reduce the 
resource burden during alien interdictions by obviating the need for cutters to be 
used as holding platforms. Once saturated with migrants, a cutter ceases to 
become an effective operational unit, and must focus all its efforts internally on 
the care, feeding, and security of the migrants. Using the expedited removal 
provisions, cutters could bring or transfer aliens into the United States for further 
return to their country of origin by another agency without implicating 
comprehensive and burdensome hearing entitlements. This would enable the 
cutters to perform their primary mission in their area of responsibility for longer 
periods of time, rather than merely acting as an inadequate holding facility with 
migrants on board for extended periods awaiting disposition and transportation. 

Whether or not these new procedures are expeditious in practice remains to 
be seen. If an interview is required to determine whether an applicant for 
admission has a credible fear of persecution, the applicant may request review 
by an immigration judge. This review must occur within seven days. While the 
immigration judge's decision is intended to be final, such administrative 
decisions have generally been held to be subject to judicial review. Litigation 
may be required to resolve this issue and could delay or prevent full 
implementation of the expedited removal procedures. In addition, another 
mass migration by sea could create a backlog of applicants burdening the 
system. This might make it impossible to meet the established timelines in the 
regulations and create political pressure from adversely affected communities. 
Except where the time and distance involved in direct repatriation is 
extraordinary, transportation of migrants interdicted at sea back to the United 
States for expedited removal by forward deployed Coast Guard cutters may be 
more resource intensive, logistically burdensome, and result in no net tactical 
advantage. As a result, expedited removal appears best suited for those 
migrants who manage to elude at-sea interdiction but for some reason arrive at 
a port of entry. It does not appear likely to replace the need for continuing 
Coast Guard operations to interdict and repatriate illegal alien migrants at sea. 



Notes 



An earlier version of this article appeared at 29 Connecticut Law Review 1565 (1997). 
The author gratefully acknowledges the assistance of Lieutenant Rachel Canty, U.S. 
Coast Guard Reserve and Lieutenant Commander Anthony Gentillela, U.S. Coast 

175 



Guarding the Coast 



Guard. The views expressed herein are those of the author and do not necessarily express 
those of the United States Coast Guard. 

1. 63 Stat. 495 (1949). 

2. Despite the broad nature of the authority conferred by this statute, courts have 
consistently upheld its constitutionality. See, e.g.: United States v. Freeman, 660 F. 2d 1030 (5th 
Cir.), cert, denied 459 U.S. 823 (1981); United States v. One (1) 43 Foot Sailing Vessel "Winds 
Will," License O.N. 531317/US, 538 F. 2d 694 (5th Cir. 1976); United States v. Erwin, 602 F. 2d 
1183 (5th Cir.), rehearing denied 602 F. 2d 992, cert, denied 444 U.S. 1071, rehearing denied 445 
U.S. 972 (1979). 

3. See "An Act to Define the Jurisdiction of the Coast Guard," Pub. L. No. 74-755, 49 Stat. 
1820 (1936). 

4. 274 U.S. 501 (1927). 

5. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 2 L. Ed. 208 (1804). 

6. 13 U.S.T. 2312, T.I.A.S. 5200 (entered into force September 30, 1962). 

7. U.N. Doc. A/CONF. 62/122 (1982) [hereinafter LOS Convention]. 

8. Presidential Proclamation No. 5030 of March 10, 1983, 48 Fed. Reg. 10605 (1983). The 
United States did not sign the 1982 LOS Convention because of its view that there were major 
problems in the deep seabed mining provisions that were contrary to the interests and principles 
of industrialized nations. 

9. Geneva Convention on the High Seas, Apr. 29, 1958, art. 22; [hereinafter High Seas 
Convention]; 1982 LOS Convention supra note 7, art. 110. 

10. Other exceptions to exclusive flag state jurisdiction on the high seas include hot pursuit 
and the related concept of constructive presence (High Seas Convention, art. 23; 1982 LOS 
CONVENTION, art. 1 1 1), as well as additional exceptions during armed conflict regarding rights 
and duties of neutrals and belligerents. See also RESTATEMENT (THIRD) OF FOREIGN 
RELATIONS §522 (1987). 

1 1 . While the master of a vessel may consent to a boarding and other actions once on board 
(such as the search of various compartments) , the master does not have the authority to waive 
the exclusive jurisdiction of the flag state or to consent to the exercise of complete criminal 
jurisdiction by the United States. 

12. S. TREATY DOC. NO. 103-39 (1994). On July 29, 1994, the United States signed the 
Agreement Relating to the Implementation of Part IX of the United Nations Convention on the 
Law of the Sea. This agreement fundamentally changed the deep seabed mining provisions of the 
LOS Convention, and removed or amended the provisions to which the United States was most 
opposed. See also Marian Nash (Leich), U.S. Practice: Contemporary Practice of the United States 
Relating to International Law, 89 AM. J. INT'L L. 96, 112 (1995). 

13. See also United States v. Hensel , 699 F. 2d 18 (1st Cir.), cert, denied 464 U.S. 824 (1983) ; 
United States v. Marsh, 747 F. 2d 7, 9 (1st Cir. 1984); United States v. Crews, 605 F. Supp. 730, 
736 (S.D. Fla. 1985), affd United States v. McGill, 800 F. 2d 264 (11th Cir. 1986). 

14. Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973). 

15. Pub. L. No. 104-208, 110 Stat. 3009 (1996). 

16. 8 U.S.C. §§1101-1525 (1994). 

17. 8 U.S.C. §1252(1994). 

18. 8 U.S.C. §§1225, 1226(1994). 

19. 8 U.S.C. §1101 (a) (13) (1994). Nothing in the statutory scheme accords any procedural 
rights to aliens before reaching a port. Therefore, for purposes of the IN A the ports of the United 
States function as the border, rather than the limits of the territorial sea. 

176 



Gary W. Palmer 



20. Haitian Refugee Center v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985), affd on other 
grounds, 809 F. 2d 794 (D.C. Cir 1987). 

21. 8 U.S.C. §§1157, 1158 (1994). 

22. 8. U.S.C. § 1253(h)(1) as amended by §203(e) of the Refugee Act of 1980, Pub. L. 
96-212, 94 Stat. 107. 

23. 17 S. REP. NO. 256, 96th Cong., 1st Sess. (1979) 

24. Jul. 28, 1951, 19 U.S.T. 6259. 

25. Jan. 31, 1967, 19 U.S.T. 6223. 

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

27. This exodus only temporarily subsided with the overthrow of Duvalier in the mid-1980s, 
and the eventual popular democratic election of President Jean-Bertrand Aristide. 

28. 46 Fed. Reg. 48109 (1981). 

29. See also Presidential Proclamation No. 4865, 3 C.F.R. §50, 51 (1981-1983 Comp.). 

30. Haitian Refugee Center v. Gracey, supra, note 20. 

31. Supra, note 28. 

32. Id. 

33. 33 U.S.T. 3559, T.I.A.S. No. 10241. The 1981 Agreement with Haiti was terminated by 
President Aristide in 1994 according to its terms. 

34. "Entry" was defined as "any coming of an alien onto the United States from a foreign port 
or place or from an outlying possession, whether voluntarily or otherwise. ..." 8 U.S.C. 
§1101(a)(13) (1994). 

35. Id. 

36. 8 U.S.C. §1253(h) (1988). 

37. For a more complete discussion of the specific entitlements under both exclusion and 
deportation proceedings, see Landon v. Plasencia, 459 U.S. 21, 26-27 (1982). 

38. The following descriptions of Haitian migrant vessels and conditions on board are based 
on the author's firsthand observations while conducting extensive alien migrant interdiction 
operations off the coasts of Haiti and Cuba as Executive Officer, USCGC Vigorous (WMEC 626) 
from 1985-1987, and as Commanding Officer, USCGC Dependable (WMEC 626), from 
1990-1992. 

39. A refugee as defined in 8 U.S.C. §1 101 (a) (42) (A) includes a person unwilling or unable 
to return to a country because of a well-founded fear of persecution on account of race, religion, 
nationality, membership in a particular social group, or political opinion. 

40. The cutters interdicting these aliens ranged in size from 110 feet to 378 feet in length. 
They did not have either the facilities, training, or cargo capacity to provide food, shelter, 
security, sanitation facilities, and otherwise meet the basic human needs of hundreds of people 
for indefinite periods. 

41. On January 13-14, 1991, the author interdicted three migrant vessels with a total of 240 
Haitians. While on board USCGC Dependable (WMEC 626) awaiting repatriation, the migrants 
went on a brief hunger strike and engaged in several organized protests which included loud, 
rhythmic chanting. Fighting broke out among several factions of migrants. One migrant with a 
knife had to be disarmed by security personnel. Several migrants had to be physically restrained 
with leg irons for assaulting other migrants and security personnel. These observations were 
recorded in the author's personal journal. 

42. Similar to Mace, CURB 60 came in a small, hand-held spray applicator and had an 
effective range of about twenty feet. It is no longer used by the Coast Guard. Reports of these 
disturbances were noted in the After Action Reports of other cutters, which the author reviewed 



177 



Guarding the Coast 



as part of his official duties as Commanding Officer, USCGC Dependable (WMEC 626), from 
June 1990 through January 1992. 

43. 57 Fed. Reg. 12133 (1992). 

44. Sale, supra, note 26. In upholding the legality of the Order, the Court held that neither 
§243 (h) of the INA nor Article 33 of the United Nations Convention Relating to the Status of 
Refugees limited the President's power to order the Coast Guard to repatriate undocumented 
aliens intercepted on the high seas. 

45. The French word "refouler" is not an exact synonym for the English word "return," but 
has been interpreted to mean, among other things, "expel." See Sale, id. at 24-25. 

46. 19 U.S.T. 6259, T.I.A.S. No. 6577 (1992). 

47. Exec. Order No. 12,807, §2(c)(3) (emphasis added). 

48. Haitian Refugee Center, Inc. v. Gracey, supra, note 20. 

49. Haitian Refugee Center, Inc. v. Baker, 949 F. 2d 1109 (11th Cir. 1991), cert, denied 502 
U.S. 1122 (1992). 

50. Sale, supra note 26. 

51. See also Haitian Refugee Center, Inc. v. Christopher, 43 F. 3d 1431, 1433 (11th Cir. 
1995). 

52. http:www.dot.gov/dotinfo/uscg/cgnews.html>, November 30, 1997. 

53. Michelle Faul, U.N. Peacekeepers Ending Their Three-Year Mission in Haiti Today with 
Mixed Results, THE NEW LONDON DAY, Nov. 30, 1997. 

54. Michael Lind, Cuban Refugees at Sea: A Legal Twilight Zone 24 CAP. U. L. REV. 789, 793 
(1995). 

55. Pub. L. No. 89-732, 80 Stat. 1161 (1966). 

56. Lind, supra, note 54, at 809. 

57. Lind, supra, note 54, at n. 155. 

58. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement, 
Migrant Interdiction Division, Washington, D.C. 

59. DoS: 95426 (May 2, 1995). 

60. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement, 
Migrant Interdiction Division, Washington, D.C. 

61. INS agents generally interview the migrants on the cutter to determine whether they 
might be eligible for asylum. Those that meet the threshold requirements are taken to 
Guantanamo Bay to gather additional evidence. Some of these migrants may eventually enter 
the United States, willingly return to Cuba, or be granted safe haven in a third country. 

62. See, supra, note 51, at 1418, n. 2. 

63. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement, 
Migrant Interdiction Division, Washington, D.C. 

64. Haitian Refugee Center, Inc. v. Christopher, supra note 51, at 1425. 

65. Id. at 1432. 

66. Another indication of the magnitude of these organized alien smuggling ventures is that 
the Dominican Republic is now the largest importer of outboard engines in Latin America. See 
Changing Tactics in the Mona Pass, COMMANDANTS BULLETIN, COMDT PUB P5720.2, Issue #2 
(Feb. 1996), at 4. 

67. Id. at 5. 

68. Operation Frontier Shield is a large-scale, multiagency counternarcotics operation in the 
Greater and Lesser Antilles, which commenced on October 1, 1996. In the first 30 days of the 
operation, Coast Guard assets seized more than 4,500 pounds of cocaine and interdicted 124 
illegal migrants. The large number of assets dedicated to this operation have reduced migrant 



178 



Gary W. Palmer 



activity in the Mona Passage to its lowest level in nearly 3 years. See Frontier Shield, COAST 
GUARD, COMDT PUB P5720.2, Issue #1 Can. 1997), at 2-7. 

69. These provisions prohibit any attempt to knowingly land an alien at other than a 
designated port of entry without prior official authorization. Capital punishment is authorized for 
such an attempt which results in the death of any person. 

70. 68 F. 3d 1540 (3rd Cir. 1995). 

71. Patricia Nealon, US Says it Halted Smugglers Bringing Chinese to Mass., BOSTON GLOBE, 
Oct. 9, 1996. 

72. Jules Critten, Slave Ship, BOSTON HERALD, Oct. 9, 1996. Illegal Chinese migration is 
often linked to extremely violent criminal organizations in PRC and Taiwan. 

73. Id. 

74. The INA does not apply in Wake Island. Also, the PRC has generally been unwilling to 
agree to repatriation of PRC migrants from third party countries. 

75. Bermuda had expressed interest in sinking the vessel as an artificial reef. Seizing the 
vessel under United States law helped to facilitate the transfer of title to Bermuda and finance 
the cleanup of the vessel. 

76. Data obtained from Commandant, U. S. Coast Guard, Office of Law Enforcement, 
Migrant Interdiction Division, Washington, D.C. 

77. Pub. L. 104-208, 110 Stat. 3009 (1996). 

78. 8U.S.C. §1229a (1996). 

79. 8 U.S.C. §1225(1996). 

80. Pub. L. No. 104-208 

81. Cuban citizens arriving by aircraft at a port of entry are exempt from expedited removal. 
8 U.S.C. §1225(b)(l)(F) (1996). This exemption also technically applies to other countries in 
the Western Hemisphere with which the United States does not have normal diplomatic 
relations. 

82. This limitation on judicial review may be subject to challenge on due process grounds. 

83. 8 U.S.C. §1103(a)(8)(1996). 



179 




The Maritime Claims Reference Manual 
and the Law of Baselines 



J. Ashley Roach 



Origin of the Maritime Claims Reference Manual 




IN 4 MAY 1982, Captain Jack Grunawalt was called to the cabin of 
Admiral Bob Long, Commander in Chief, U.S. Pacific Command, 
Camp Smith, Hawaii, 1 and asked why the Soviets would be ordering USS 
Lockwood (FF-1064) to leave waters of the Soviet Union when the ship was 
operating on the high seas more than 12 miles from land and outside Peter the 
Great Bay. 2 Jack, who had been off-island when the operation was approved, 
knew that in 1957 the USSR had claimed Peter the Great Bay as historic 
internal waters of the Soviet Union, defining the bay closing line as the line 
connecting the estuary of the Tyumen-Ula River and the Povrotny 
promontory. 3 However, in examining the chart illustrating Lockwood's 
approved operating area, Jack observed that the closing line had been drawn to 
a point further inside the bay than claimed by the Soviets. He noted that the 
location of the baseline was not indicated on U.S. nautical charts of the area or 
otherwise illustrated in publications available to an assistant who had cleared 



Maritime Claims/Law of Baselines 



on the plan. Further, he observed the command had no ready authoritative 
source listing the coordinates of the claimed bay closing line against which to 
verify the location of the closing line. The United States rejected the Soviet 
protest of this incident, as it did not recognize the Soviet historic bay claim and 
the mouth of the bay far exceeded the maximum permissible length of a bay 
closing line. 4 

Thereafter, at Jack's urging, Admiral Long sent an urgent message to the Joint 
Chiefs of Staff QCS) recommending the Department of Defense (DoD) develop 
a manual containing a complete description of the maritime claims made by all 
nations, particularly a list of the coordinates of all claimed baselines and closing 
lines, that would be available to all the operating forces. The JCS and the Office 
of the Secretary of Defense agreed with that recommendation and thus began 
work on what has become the DoD Maritime Claims Reference Manual, 5 now in 
its third edition. The MCRM, as it is known world-wide, contains summaries, or 
in the case of baselines, full texts, of all the maritime claims made by the nations 
of the world. In addition, it also indicates the United States' diplomatic and 
operational reactions to those claims which are inconsistent with the law of the 
sea — hence the term "excessive maritime claims." 

Jack's other contributions to the law of the sea are too numerous to catalog 
here. But as baselines are the foundation for the measurement of all maritime 
zones, it seems appropriate that this tribute present the official views of the 
United States on the law of baselines, as based on the Commentary on the Law 
of the Sea (LOS) Convention attached to the Secretary of State's letter of 23 
September 1994, submitting the Convention and the Part XI Agreement to the 
President for transmittal to the Senate for its advice and consent. 6 Because of 
the desirability — ne necessity — of achieving a uniform interpretation of those 
rules, annotations have been added by the author to provide the rationale for 
those views. 7 

Background 

A State's maritime zones are measured from the baseline. The rules for 
drawing baselines are contained in Articles 5 through 11, 13, and 14 of the 
LOS Convention. 8 These rules distinguish between normal baselines (following 
the low-water mark along the coast) and straight baselines (which can be 
employed only in specified geographical situations). 9 The baseline rules take 
into account most of the wide variety of geographical conditions existing along 
the coastlines of the world. Baseline claims can extend maritime jurisdiction 
significantly seaward in a manner that prejudices navigation, overflight, and 

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other interests. 10 Objective application of the baseline rules contained in the 
Convention can help prevent excessive claims in the future and encourage 
governments to revise existing claims to conform to the relevant criteria. 11 

Normal Baseline 

The normal baseline used for measuring the breadth of the territorial sea is 
the low-water line along the coast as marked on the State's official large-scale 
charts. 12 "Low-water line" has been defined as "the intersection of the plane of 
low water with the shore. The line along a coast, or beach, to which the sea 
recedes at low-water." The actual water level taken as low- water for charting 
purposes is known as the level of Chart Datum. 13 

Normal baseline claims must be consistent with this rule. Excessive normal 
baseline claims include a claim that low-tide elevations, wherever situated, 
generate a territorial sea and that artificial islands generate a territorial sea 
(e.g., by Egypt and Saudi Arabia). 14 

Reefs. In the case of islands situated on atolls or of islands having fringing reefs, 
the normal baseline is the seaward low-water line of the drying reef charted as 
being above the level of chart datum. 15 While the LOS Convention does not 
address reef closing lines, any such line must not adversely affect rights of 
passage, freedom of navigation, and other rights provided for in the 
Convention. 

Straight Baselines 

Purpose* The purpose of authorizing the use of straight baselines is to allow the 
coastal State, at its discretion, to enclose those waters which, as a result of their 
close interrelationship with the land, have the character of internal waters. By 
using straight baselines, a State may also eliminate complex patterns, including 
enclaves, in its territorial sea, that would otherwise result from the use of 
normal baselines. 16 Properly drawn straight baselines do not result in extending 
the limits of the territorial sea significantly seaward from those that would 
result from the use of normal baselines. 17 

With the advent of the exclusive economic zone (EEZ), the original reason 
for straight baselines (protection of coastal fishing interests) has all but 
disappeared. Their use in a manner that prejudices international navigation, 
overflight, and communications interests runs counter to the thrust of the 
Convention's strong protection of these interests. In light of the modernization 

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of the law of the sea in the Convention, it is reasonable to conclude that, as the 
Convention states, straight baselines are not normal baselines, should be used 
sparingly, and, where used, should be drawn conservatively to reflect the one 
rationale for their use that is consistent with the Convention, namely the 
simplification and rationalization of the measurement of the territorial sea and 
other maritime zones off highly irregular coasts. 18 

Areas of Application. Consequently, international law permits States — in 
limited geographical circumstances — to measure the territorial sea and other 
national maritime zones from straight baselines drawn between defined points 
of the coast. The United States accepts that the two specific geographical 
circumstances under which States may employ straight baselines are as 
described in Article 7, paragraph 1, of the LOS Convention and Article 4, 
paragraph 1, of the 1958 Territorial Sea Convention: 

In localities where the coastline is deeply indented and cut into, or if there is a 
fringe of islands along the coast in its immediate vicinity, the method of straight 
baselines joining appropriate points may be employed in drawing the baseline 
from which the breadth of the territorial sea is measured. 

If the portion of the coast being examined does not meet either criterion, then 
no straight baseline segment may lawfully be drawn in that locality, and the other 
rules (on permissible basepoints, the vector of the putative straight baseline in 
relation to the coast, and the requisite quality of the waters that would be 
enclosed) may not be invoked. 19 Further, the coastal State must fulfill all the 
requirements of one test or the other, and may not mix the requirements. For 
example, a State may not claim that a locality is indented, though not deeply, and 
that it has some islands, though they do not constitute a fringe, and claim it may 
draw straight baselines in that locality. Either test selected must be met entirely on 
its own terms. If a coastal State cannot establish that its coastline in the locality in 
which the straight baseline is sought is deeply indented and cut into or fringed with 
islands in the immediate vicinity, it may not proceed to identify appropriate 
straight baselines, for none are authorized to be drawn there. Rather, it must use as 
a baseline in that locality its low-water mark. Failure to meet this preliminary 
geographical test in one locality does not preclude establishing it in another. ° 
Even if the basic geographic criteria exist in any particular locality, the coastal 
State is not obliged to employ the method of straight baselines, but may (like the 
United States and other countries) instead continue to use the normal baseline 
and permissible closing lines across the mouths of rivers and bays. 

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Localities Where the Coastline is Deeply Indented and Cut Into. "Deeply 
indented and cut into" refers to a very distinctive coastal configuration. The 
United States has taken the position that such a configuration must fulfill all of 
the following characteristics: 21 

1) in a locality where the coastline is deeply indented and cut into, there exist at 
least three deep indentations; 22 

2) the deep indentations are in close proximity to one another; 23 and 

3) the depth of penetration of each deep indentation from the proposed straight 
baseline enclosing the indentation at its entrance to the sea is, as a rule, greater 
than half the length of that baseline segment. 24 

The "coastline" is the mean low-water line along the coast; the term 
"localities" refers to particular segments of the coastline. 25 

Fringe of Islands Along the Coast in its Immediate Vicinity. "Fringe of islands 
along the coast in its immediate vicinity" refers to a number of islands and not 
to other features that do not meet the definition of an island contained in 
Article 121(1) of the LOS Convention. 26 The United States has taken the 
position that a such a fringe of islands must meet all of the following 
requirements: 27 

1) the most landward point of each island lies no more than 24 miles from the 
mainland coastline; 28 

2) each island to which a straight baseline is to be drawn is not more than 24 
miles apart from the island from which the straight baseline is drawn; 29 and 

3) the islands, as a whole, mask at least 50 percent of the mainland coastline in 
any given locality. 30 

Criteria for Drawing Straight Baseline Segments. The United States has taken 
the position that, to be consistent with Article 7(3) of the LOS Convention, 
straight baseline segments must: 

1) not depart to any appreciable extent from the general direction of the 
coastline, by reference to general direction lines which in each locality shall not 
exceed 60 miles in length; 31 

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2) not exceed 24 miles in length; and 

3) result in sea areas situated landward of the straight baseline segments that are 
sufficiently closely linked to the land domain to be subject to the regime of 
internal waters. 33 

Minor Deviations. Straight baselines drawn with minor deviations from the 
foregoing criteria are not necessarily inconsistent with the Convention. 34 

Economic Interests. Economic interests alone cannot justify the location of 
particular straight baselines. 35 In determining the alignment of particular 
straight baseline segments of a baseline system which satisfies the deeply 
indented or fringing islands criteria, only those economic interests may be 
taken into account which are peculiar to the region concerned, and only when 
the reality and importance of the economic interests are clearly evidenced by 
long usage. 36 

Basepoints. Except as noted in Article 7(4) of the LOS Convention, 
basepoints for all straight baselines must be located on land territory and 
situated on or landward of the low-water line. No straight baseline segment 
may be drawn to a basepoint located on the land territory of another State. 37 

Use of Low-Tide Elevations as Basepoints in a System of Straight Baselines. A 

low-tide elevation is a naturally formed land area surrounded by water and 
which remains above water at low tide but is submerged at high tide. 38 Low-tide 
elevations can be mud flats or sand bars. In accordance with Article 7(4), only 
those low-tide elevations which have had lighthouses or similar installations 
built on them may be used as basepoints for establishing straight baselines. 39 
Other low-tide elevations may not be used as basepoints unless the drawing of 
baselines to and from them has received general international recognition. 40 
The United States has taken the position that "similar installations" are those 
that are permanent, substantial, and actually used for safety of navigation and 
that "general international recognition" includes recognition by the major 
maritime users over a period of time. 41 

Effect on Other States. Article 7 (6) of the LOS Convention provides that a 
State may not apply the system of straight baselines in such a manner as to cut 
off the territorial sea of another State from the high seas or an EEZ. 42 In 
addition, Article 8(2) of the LOS Convention provides that, where the 
establishment of a straight baseline has the effect o( enclosing as internal 

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J. Ashley Roach 



waters areas which had not previously been considered as such, a right of 
innocent passage as provided in the Convention shall exist in those waters. 43 
Article 35(a) of the LOS Convention has the same effect with respect to the 
right of transit passage through straits. 

Unstable Coastlines. Where the coastline, which is deeply indented and cut 
into or fringed with islands in its immediate vicinity, is also highly unstable 
because of the presence of a delta or other natural conditions, the appropriate 
basepoints may be located along the furthest seaward extent of the low-water 
line. The straight baseline segments drawn joining these basepoints remain 
effective, notwithstanding subsequent regression of the low-water line, until 
the baseline segments are changed by the coastal State in accordance with the 
international law reflected in the LOS Convention. 44 

Other Baseline Rules 

Low'Tide Elevations. The low-water line on a low-tide elevation may be used as 
the baseline for measuring the breadth of the territorial sea only where that 
elevation is situated wholly or partly at a distance not exceeding the breadth of 
the territorial sea measured from the mainland or an island. Where a low-tide 
elevation is wholly situated at a distance exceeding the breadth of the territorial 
sea from the mainland or an island, even if it is within that distance measured 
from a straight baseline or bay closing line, it has no territorial sea of its own. 45 

Combination of Methods. A coastal State may determine each baseline 
segment using any of the methods permitted by the LOS Convention that suit 
the specific geographic condition of that segment, i.e., the methods for drawing 
normal baselines, straight baselines, or closing lines. 46 

Harbor Works. Only those permanent man-made harbor works which form an 
integral part of a harbor system, such as jetties, moles, quays, wharves, 
breakwaters, and sea walls, may be used as part of the baseline for delimiting 
the territorial sea. 47 Offshore installations and artificial islands are not 
considered permanent harbor works for baseline purposes. 48 

River Mouths. If a river flows directly into the sea without forming an estuary, 
the baseline is a straight line drawn across the mouth of the river between 
points on the low-water line of its banks. 49 If the river forms an estuary, the 
baseline is determined under the provisions relating to juridical bays. 50 

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Bays and Other Features 

Juridical Bays. A "juridical bay" is a bay meeting specific criteria. Such a bay is 
a well-marked indentation on the coast whose penetration is in such 
proportion to the width of its mouth as to contain land-locked waters and 
constitute more than a mere curvature of the coast. An indentation is not a 
juridical bay unless its area is as large as, or larger than, that of the semicircle 
whose diameter is a line drawn across the mouth of that indentation. 51 

For the purpose of measurement, the indentation is that area lying between 
the low-water mark around the shore of the indentation and a line joining the 
low-water mark of its natural entrance points. Where, because of the presence 
of islands, an indentation has more than one mouth, the semicircle shall be 
drawn on a line as long as the sum total of the lengths of the lines across the 
different mouths. Islands within an indentation shall be included as if they were 
part of the water area of the indentation for satisfaction of the semicircle test. 52 

If the distance between the low-water marks of the natural entrance points 
of a juridical bay of a single State does not exceed 24 miles, the juridical bay 
may be defined by drawing a closing line between these two low- water marks, 
and the waters enclosed thereby shall be considered as internal waters. 53 
Where the distance between the low-water marks exceeds 24 miles, a straight 
baseline of 24 miles shall be drawn within the juridical bay in such a manner as 
to enclose the maximum area of water that is possible within a line of that 
length. 54 

Historic Bays. The Territorial Sea Convention and the LOS Convention both 
exempt so-called historic bays from the rules described above. 5 To meet the 
standard of customary international law for establishing a claim to a historic 
bay, a State must demonstrate its open, effective, long-term, and continuous 
exercise of authority over the bay, coupled with acquiescence by foreign States 
in the exercise of that authority. An actual showing of acquiescence by foreign 
States in such a claim is required, as opposed to a mere absence of opposition. 

Charts and Publication. Baselines are to be shown on large-scale nautical 
charts, officially recognized by the coastal State. Alternatively, the coastal 
State must provide a list of geographic coordinates specifying the geodetic 
datum. 56 Drying reefs used for locating basepoints are to be shown by an 
internationally accepted symbol for depicting such reefs on nautical charts. 57 
The coastal State is required to give due publicity to such charts or lists of 
geographical coordinates, and deposit a copy of each such chart or list with the 

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Secretary-General of the United Nations. 58 Closure lines for bays meeting the 
semicircle test must be given due publicity, either by chart indications or by 
listed geographic coordinates. 59 

Islands, Article 121(1) of the LOS Convention defines an island as a naturally 
formed area of land, surrounded by water, which is above water at high tide. 
Baselines are established on islands, and maritime zones are measured from 
those baselines in the same way as on other land territory. In addition, as 
previously indicated, there are special rules for using islands in drawing straight 
baselines and bay closing lines, and even low tide elevations (which literally do 
not rise to the status of islands) may be used as basepoints in specified 
circumstances. These special rules are not affected by the provision in Article 
121(3) that rocks which cannot sustain human habitation or economic life of 
their own shall have no EEZ or continental shelf. 

Artificial Islands and Off-shore Installations. Artificial islands, installations, 
and structures (including such man-made objects as oil-drilling rigs, 
navigational towers, and off-shore docking and oil-pumping facilities) do not 
possess the status of islands and may not be used to establish baselines, enclose 
internal waters, or establish or measure the breadth of the territorial sea, EEZ, 
or continental shelf. 60 Safety zones of limited breadth may be established to 
protect artificial islands, installations and structures and the safety of 
navigation in their vicinity. 61 

Roadsteads* Roadsteads normally used for the loading, unloading, and 
anchoring of ships, and which would otherwise be situated wholly or partly 
beyond the outer limits of the territorial sea, are included within the territorial 
sea. 62 Roadsteads included within the territorial sea must be clearly marked on 
charts by the coastal State. Only the roadstead itself is territorial sea; 
roadsteads do not generate territorial seas around themselves; the presence of a 
roadstead does not change the legal status of the water surrounding it. 63 




lmost fifty years ago, the International Court of Justice stated that 
.delimitation of straight baselines "cannot be dependent merely upon 
the will of the coastal State as expressed in its municipal law . . . [T]he validity 
of the delimitation with regard to other States depends upon international 

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law." 64 However, what nations do in the face of baseline claims inconsistent 
with international law is crucial. As two noted British scholars have stated: 

[WJhere a baseline is clearly contrary to international law, it will not be valid, 
certainly in respect of States which have objected to it, though a State which has 
accepted the baseline (for example in a boundary treaty) might be estopped from 
later denying its validity. In border-line cases — for example, where there is doubt 
as to whether a State's straight baseline system conforms to all the criteria laid 
down in customary and conventional law — the attitude of other States in 
acquiescing in or objecting to the baseline is likely to prove crucial in 
determining its validity. 65 

The MCRM and the views of the United States have assisted, and will 
continue to materially assist, all States in achieving the harmonization of 
domestic with international law envisioned by Article 310 of the Law of the 
Sea Convention. Jack Grunawalt can be proud of the what he has done over 
the past twenty-five years in that regard. We all are in his debt and renew our 
commitment to that end. 

Jack, fair winds and following seas forever. 



Notes 



1. Captain Grunawalt served as Staff Judge Advocate to the Commander in Chief, U.S. 
Pacific Command between 1980 and 1984. 

2. The Soviet naval base of Vladivostok lay deep within Peter the Great Bay facing the Sea 
of Japan near the northern border with North Korea. 

3. Marjorie Whiteman, 4 Digest of International Law 250-51 (1965) 

[hereinafter WHITEMAN]. 

4. II Dept of State, Cumulative Digest of United States Practice in 

INTERNATIONAL LAW 1981-1988, at 1811-12 (Marian Nash Leich ed., 1994); J. ASHLEY 
ROACH & ROBERT W. SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS 
49-51 (2ded. 1996) [hereinafter ROACH & SMITH, RESPONSES]; J. ASHLEY ROACH & ROBERT 
W. SMITH, EXCESSIVE MARITIME CLAIMS 31-33 (66 International Law Studies, 1994). For 
earlier protests of this claim, see WHITEMAN, supra note 3, 251-257. 

5. DEPT OF DEFENSE, MARITIME CLAIMS REFERENCE MANUAL, DoD 2005. 1-M (1st ed. 
1987, 2d ed. 1990, 3d ed. 1996). 

6. Commentary enclosed with the Letter of Submittal of the Secretary of State, Sept. 23, 
1994, S. TREATY DOC. No. 103-39, at 8 (1994) [hereinafter U.S. Commentary], reprinted in 
DEPT OF STATE, 6 DISPATCH Supp. No. 1, Feb. 1995, at 7-10; 34 I.L.M. 1393, 1402-1404 
(1995); 7 GEO. INT'L ENVTL. L. REV. 93-97 (1994); and ROACH & SMITH, RESPONSES, supra 
note 4, at 543-551. 

7. An earlier version of this paper appears in ROACH & SMITH, RESPONSES, supra note 4, 
at 57-74. 

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8. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. 
A/CONF.62/122 (1982), reprinted in 21 1.L.M. 12614354 (1982) and in THE LAW OF THE SEA: 
OFFICIAL TEXT, U.N. Sales No. E.83.V.5, 1983 (entered into force Nov. 16, 1994) [hereinafter 
LOS Convention] . 

9. The baseline provisions of the 1982 LOS Convention are examined in OFFICE FOR 

Oceans Affairs and the Law of the Sea, United Nations, The Law of the Sea: 

BASELINES (U.N. Sales No. E.88.V.5*, 1989) [hereinafter U.N., BASELINES]. OFFICE FOR 

Oceans Affairs and the law of the Sea, United nations, Baselines: National 

LEGISLATION (1989), and ATLAS OF THE STRAIGHT BASELINES (Giampiero Francalanci et a\. 
eds., 1986) also detail the baseline claims of the coastal and island States. 

10. As noted in the Introduction to the recent UN study on baselines, " [historically viewed 
as a body of law regulating movement — of vessels, products and people — the new law of the sea 
has become increasingly a law of appropriation — the assertion of national claims to large 
portions of the earth's surface covered by the oceans." U.N., BASELINES, supra note 9, at vii. 

11. In depositing its instrument of ratification of the LOS Convention, the Netherlands 
declared "A claim that the drawing of baselines ... is in accordance with the Convention will 
only be acceptable if such lines . . . have been established in accordance with the Convention." 

Division for Ocean Affairs and the Law of the Sea, United Nations, The Law of 
the Sea: Declaration and Statements with Respect to the United Nations 
Convention on the Law of the Sea and to the Agreement Relating to the 
Implementation of Part xi of the United Nations Convention on the Law of the 

SEA OF 10 DECEMBER 1982, at 36, U.N. Sales No. E.97.V.3 (1997). In depositing its instrument 
of accession to the LOS Convention, the United Kingdom declared that "declarations and 
statements not in conformity with articles 309 and 310 include . . . those which relate to 
baselines not drawn in conformity with the Convention." U.N. Law of the Sea web site, Status of 
the Convention, Declarations (last visited Feb. 3, 1998) http://www.un.org/DeptsAos. 

12. Convention on the Territorial Sea and the Contiguous Zone, Geneva, Apr. 28, 1958, art. 
3, 15 U.S.T. 1606, T.I.A.S. No. 639, 516 U.N.T.S. 205, [hereinafter Territorial Sea 
Convention]; LOS Convention, supra note 8, art. 5. 

13. Definition 50, in Consolidated Glossary of Technical Terms used in the United Nations 
Convention on the Law of the Sea, International Hydrographic Bureau Special Pub. No. 51, A 
Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, 
Part I, reprinted in UN, BASELINES, supra note 9, at 58 [hereinafter Consolidated Glossary]. 

14. Robin R. Churchill & Alan V.Lowe, The Law of the Sea 46 (2drev.ed. 1988). 

15. LOS Convention, supra note 8, art. 6; U.N., BASELINES, supra note 9, 11 24. The 
International Hydrographic Organization Working Group on Technical Aspects of the Law of 
the Sea describes an "atoll" as "a ring-shaped reef with or without an island situated on it 
surrounded by the open sea, that encloses or nearly encloses a lagoon"; a "reef as "a mass of rock 
or coral which either reaches close to the sea surface or is exposed at low tide"; and a "fringing 
reef as "a reef attached directly to the shore or continental land mass, or located in their 
immediate vicinity." Consolidated Glossary, supra note 13, app. I, definitions 9 & 66. 

16. U.N., BASELINES, supra note 9, HI 35 & 38. 

17. Id., HI 38 & 39; CHURCHILL & LOWE, supra note 14, at 33 (while in some situations it 
would be impracticable to use the low-water line, "the effect of drawing straight baselines, even 
strictly in accordance with the rules, is often to enclose considerable bodies of sea as internal 
waters"). Professors Reisman and Westerman warn, "the chief practical effect of a straight 
baseline claim is to augment the areas of internal and territorial waters within state control. 
When individual baseline segments are very long, however, significant areas of continental shelf 



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and exclusive economic zone are also gained." W. MICHAEL REISMAN &GAYL S. WESTERMAN, 

Straight Baselines in International Maritime boundary Delimitation 105 (1992) . 

18. U.S. Commentary, supra note 6, at 8; JOHN R. PRESCOTT, THE MARITIME POLITICAL 
BOUNDARIES OF THE WORLD 50 (1985); REISMAN & WESTERMAN, supra note 17, at xv. 

19. REISMAN & WESTERMAN, supra note 17, at 77. 

20. Id. at 90-91. 

21. U.S. Commentary, supra note 6, at 9. 

22. The LOS Convention does not specify how many deep indentations must exist in any 
locality on the coastline. Nevertheless, there must be noticeably more than one deep indentation 
in the locality, otherwise the juridical bay criteria would apply. While U.N., BASELINES, supra 
note 9, H 36, suggests "several," three should be the minimum necessary to distinguish the 
situation from bays. There may also be one or more shallower cuts into the locality of the 
coastline. 

23. The LOS Convention does not define "locality." This criterion, which combines the "cut 
into" and "deep indentation" requirements, coupled with the definition of "localities" infra, 
describe a "locality" where straight baselines may lawfully be drawn. The point at which the 
prescribed geographical criteria ceases to exist constitutes the limit of that particular "locality." 

24. The LOS Convention does not define "deeply indented" except by comparison with 
Article 10 on bays. A bay is defined as a "well-marked indentation" of a specified proportion (the 
semi-circle test, see infra). Logical interpretation suggests that "deeply indented" sets a stricter 
geographical standard than that for a juridical bay. This criterion is designed to prevent shallow 
bays which do not meet the penetration criterion for juridical bays from being the basis for 
establishing a series of straight baseline segments in a particular locality (although some shallow 
indentations not being juridical bays in the locality of the deep indentations may in the process 
also be closed off as "cuts into" the coastline), while ensuring recognition that the purpose of 
straight baselines is not "to increase the territorial sea unduly." U.N., BASELINES, supra note 9, 11 
39. It should be noted that the last sentence of paragraph 36 of U.N. , BASELINES, incorrectly 
states that there is general agreement that each of the several indentations must be juridical bays. 

25. Neither term is defined in the LOS Convention or in the IHO Glossary appended to 
U.N., BASELINES. The term "coastline" as used in Article 7 is clearly referring to the normal 
baseline defined in Article 5 as the "low-water line along the coast." U.N., BASELINES, supra note 
9, 11 9, notes that "the low-water line is the intersection of the plane of low water with the shore." 
"Localities" is defined to make clear that each baseline segment is related to a particular 
geographic location. 

26. Article 7 of the LOS Convention does not define a "fringe," or how close the islands must 
be to the mainland in the vicinity, or how close together the islands must be. The fringe must be 
made up of islands; low-tide elevations, artificial islands, reefs, roadsteads, or off-shore 
installations are not islands. The definition of island found in Article 121(1) of the LOS 
Convention is "a naturally formed area of land, surrounded by water, which is above water at 
high tide." Professors Reisman and Westerman suggest that a fringe of rocks which cannot 
sustain human habitation or economic life of their own [see Article 121 (3)] should not qualify as 
a fringe of "islands," although they would permit rocks within the fringe of islands to be used as 
basepoints. REISMAN & WESTERMAN, supra note 17, at 85. 

27. U.S. Commentary, supra note 6, at 9. 

28. This first criterion addresses the maximum permissible seaward distance of the islands 
from the coastline in the vicinity. "In its immediate vicinity" clearly suggests that the distance 
will rarely exceed 24 miles since (a) open areas of high seas would lack the "close link" to the 
mainland necessary to justify a conversion to internal waters required by Article 7(3) of the LOS 



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J. Ashley Roach 



Convention; (b) Article 8(2) preserves the right of innocent passage in waters closed off by 
straight baselines which had not previously been considered as such; and (c) Article 10(5) 
authorizes the use of a 24-mile straight baseline to enclose most of a juridical bay whose mouth is 
wider than 24 miles. Accord MUHAMMAD MUNAVVAR, OCEAN STATES: ARCHIPELAGIC 
REGIMES IN THE LAW OF THE SEA 121 (1995). 

29. This second criterion addresses the maximum distances between islands to make up a 
fringe. Given the linkage to territorial waters described in the preceding endnote, it follows that, 
as a rule, no straight baseline segment should exceed 24 miles. Two 12-mile arcs drawn from 
appropriate low-water marks would be tangent at exactly 24 miles. A close spatial relationship 
between the various islands produces a barrier between the actual coast and the open sea and 
constitutes the justification for drawing a straight baseline in that locality. A scattering of islands, 
each far from the other, along a smooth and otherwise undistinguished coast does not qualify. 
Neither would a close constellation of an island cluster in a single place warrant a straight 
baseline. What is required is a distribution of islands close enough to each other to warrant that 
they fringe the coast. REISMAN & WESTERMAN, supra note 17, at 86-87. A fringe of islands 
meeting these two criteria will necessarily essentially parallel the coast. See U.N., BASELINES, 
supra note 9, 11 43, and REISMAN & WESTERMAN, supra note 17, at 86. 

30. This criterion, drawn from paragraph 45 of U.N., BASELINES, provides an objective 
criterion for determining if the islands actually mask the coastline in the vicinity. "Masking" can 
be more objectively determined if the islands mask the majority of the mainland coastline in any 
given locality. Professors Reisman and Westerman believe the quantitative test for the number 
of islands should be "very high," approximating that found in the Norwegian skjaergaard. 
REISMAN & WESTERMAN, supra note 17 at 86. 

3 1 . Limits in the Seas No. 106, Developing Standard Guidelines for Evaluating 
Straight Baselines 30-32 (1987). 

32. The 24-mile maximum segment length is implied from a close reading of the relevant 
articles of the LOS Convention. Article 7(1) speaks of the "immediate vicinity" of the coast. 
Article 7(3) states that "the sea areas lying within the line must be sufficiently closely linked to 
the land domain to be subject to the regime of internal waters." In both of these descriptions, the 
implication is strong that the waters to be internalized would otherwise be part of the territorial 
sea. It is difficult to envision a situation where international waters (beyond 12 miles from the 
appropriate low-water line) could be somehow "sufficiently closely linked" as to be subject to 
conversion to internal waters. 

This implication is reinforced by Article 8(2), which guarantees the right of innocent passage 
in areas converted to internal waters by straight baselines. Innocent passage is a regime 
applicable to the territorial sea (with a maximum breadth of 12 miles). Preservation of innocent 
passage carries over pre-existing rights in waters that were territorial in nature before the 
application of straight baselines. 

Given this theme of linkage to territorial waters, it follows that, as a rule, no straight baseline 
segment should exceed 24 miles. Two 12 -mile arcs from appropriate low-water marks would 
exactly overlap at 12 miles. Article 10(5) lends even further strength to this rule. Even in the 
case of a bay that meets the semicircle test, a closing line under Article 10 may not be drawn at 
the natural entrance points if those points are more than 24 miles apart. Article 10 permits only a 
24-mile straight baseline within such a bay. This emphasizes the overriding importance of the 
24-mile rule, even after satisfaction of the semicircle test. 

Accord Finland Decree No. 464, Aug. 18, 1956, art. 4(2), (straight baseline segments shall be 
not longer than twice the width of the territorial sea), translated in LIMITS IN THE SEAS No. 48, 



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STRAIGHT BASELINES: FINLAND (1972). Cf. the demarches by Germany, on behalf of the 
European Union (EU) and endorsed by the acceding States (Austria, Finland, and Sweden): 

(a) to Thailand concerning the announcement by the Prime Minister's Cabinet on August 
17, 1992, of its straight baselines and internal waters in area 4 {reprinted in U.N., LOS BULL. No. 
25, June 1994, at 8), in which the EU stated that "even if the United Nations Convention on the 
Law of the Sea does not set a maximum length for baseline segments, the segments determined 
by Thailand are excessively long. They are in fact 81 miles long between points 1 and 2, 98 miles 
long between points 2 and 3, and 60 miles long between points 3 and 4." U.N., LOS BULL. No. 28, 
at 31 (1995); and 

(b) to Iran to the same effect. U.N., LOS BULL. No. 30, at 60 (1996). Iran's reply may be 
found in id., No. 31, at 38 (1996). 

33. U.S. Commentary, supra note 6, at 9. The Territorial Sea Convention, Article 4(2) and 
the LOS Convention, Article 7(3), specifically provide that straight baselines must not depart 
"to any appreciable extent from the general direction of the coast," and the sea areas they enclose 
must be "sufficiently closely linked to the land domain to be subject to the regime of internal 
waters." Professors Reisman and Westerman note that the coastal State must prove this linkage, 
and propose that it may be met through proof of geographical proximity, practice through time, 
and intensity of use. REISMAN & WESTERMAN, supra note 17, at 99-100. 

34. This criterion recognizes that hard and fast rules will not always be acceptable for 
drawing straight baselines. 

35. Territorial Sea Convention, supra note 12, art. 4(5); LOS Convention, supra note 8, art. 
7(5); U.N., BASELINES, supra note 9, U 58. The economic interests test is available only if the 
preliminary geographical requirements have been met. Thus, with the exclusive economic zone 
jurisdiction now available to all coastal States, no economic rationale can alone justify a straight 
baseline claim. 

36. LOS Convention, supra note 8, art. 7(5); Territorial Sea Convention, supra note 12, art. 
4(4). Consequently, the coastal State must advance historic economic data to establish this 
exception. Clearly, Article 7(5) does not refer to potential economic interests. Professors 
Reisman and Westerman suggest a test combining geographic proximity, practice through time, 
and intensity of past use. REISMAN & WESTERMAN, supra note 17, at 100-101. 

37. U.N., BASELINES, supra note 9, 11 51. Article 7(1) of the LOS Convention provides that 
the straight baseline segments must join "appropriate basepoints." Those basepoints will be 
appropriate only if the segments drawn satisfy the delimitation rules of paragraphs 2 through 6 of 
Article 7. The Convention nowhere authorizes the use of abstract points at sea, described in 
terms of coordinates of latitude and longitude but otherwise failing the requirements of the 
Convention, as basepoints. 

38. LOS Convention, supra note 8, art. 13(1); Territorial Sea Convention, supra note 12, 
art. 10(1). 

39. The same rule appeared in the Territorial Sea Convention, supra note 12, art. 4(3). 

40. This second exception is new and not contained in Territorial Sea Convention, Article 
4(3). Professors Reisman and Westerman argue that this new authority cannot be used unless 
and until there is a substantial demonstration of the existence oi widespread international 
recognition of the particular low-tide elevation lacking a lighthouse as a basepoint. REISMAN & 
WESTERMAN supra note 17, 93-94. 

41. U.S. Commentary, supra note 6, at 10; REISMAN & WESTERMAN, supra note 17, 93-94. 
See MUNAVVAR, supra note 28, at 125. 

42. The comparable provision in the Territorial Sea Convention appears in Article 4(5). An 
example of state practice complying with this rule is the French baseline decree of October 19, 



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J. Ashley Roach 



1967, which provides for noncontinuous segments leaving Monaco with unrestricted oceans 
seaward. 7 I.L.M. 347 (1968); LIMITS IN THE SEAS No. 37, STRAIGHT BASELINES: FRANCE 
(1972). The Spanish enclaves of Cuela and Melilla and the Islas Chafarinas almost completely 
enclosed within Moroccan straight baselines are another example. FARAJ ABDULLAH AHNISH, 

the international law of maritime boundaries and the practice of states in 
the Mediterranean Sea 190-193 (1993). 

43. The same rule appeared in the Territorial Sea Convention, supra note 12, art. 5(2). An 
example of this situation is the Piombino Channel between the Italian Island of Elba (the main 
island of the Tuscany archipelago) and the Italian mainland, which connects two parts of the 
high seas, while lying entirely within Italian internal waters as defined by Italy's 1977 straight 
baseline decree. Tullio Scovazzi, Management Regimes and Responsibility for International Straits, 
with Special Reference to the Mediterranean Straits, 19 MARINE POL'Y 137, 151 (1995). 

44. LOS Convention, supra note 8, art. 7(2). Applicable deltas include those of the 
Mississippi and Nile Rivers, and the Ganges-Brahmaputra River in Bangladesh. U.N., 
BASELINES, supra note 9, 11 50; PRESCOTT, supra note 18, at 15; REISMAN & WESTERMAN, supra 
note 17, at 101-102. 

45. Territorial Sea Convention, supra note 12, art. 11; LOS Convention, supra note 8, art. 
13. , 

46. LOS Convention, supra note 8, art. 14. There is no corresponding provision in the 1958 
Territorial Sea Convention. Article 14 does not permit a coastal State to draw straight baselines 
in a locality not meeting the required geographic criteria; in those circumstances, the low-water 
line must be followed. See U.N., BASELINES, supra note 9, 1111 31-32. Closing lines are discussed 
infra. 

47. Territorial Sea Convention, supra note 12, art. 8; LOS Convention, supra note 8, art. 1 1 ; 
IHO Definition 38, in U.N., BASELINES, supra note 9, at 56; U.N., BASELINES, supra note 9, 11 76. 
Professors Reisman and Westerman would add a prohibition against the use of atolls and fringing 
reefs as basepoints for straight baseline segments along the coast or around the islands. REISMAN 

& Westerman, supra note 17, at 94. 

48. LOS Convention, supra note 8, art. 11. 

49. Territorial Sea Convention, supra note 12, art. 13; LOS Convention, supra note 8, art. 9. 
The fact that the river must flow "directly into the sea" suggests that the mouth should be well 
marked. 

50. See the 1956 I.L.C. draft of what became Article 13 of the Territorial Sea Convention 
(the predecessor of Article 9 of the LOS Convention), U.N. Doc. A/3159, II Y.B.I.L.C. 1956, at 
253, 271, and IHO Definition 54, in U.N., BASELINES, supra note 9, at 59. An estuary is the tidal 
mouth of a river, where the tide meets the current of fresh water. IHO Definition 30, in id at 54. 
The Conventions do not state exactly where, along the banks of estuaries, the closing points 
should be placed. No special baseline rules have been established for rivers entering the sea 
through deltas, such as the Mississippi, (i.e., either the normal or straight baseline principles 
above may apply) or for river entrances dotted with islands. The Territorial Sea and LOS 
Conventions place no limit on the length of river closing lines. Further, the Conventions do not 
address ice coast lines, where the ice coverage may be permanent or temporary. 

51. Territorial Sea Convention, supra note 12, art. 7(2); LOS Convention, supra note 8, art. 
10(2). 

52. Territorial Sea Convention, supra note 12, art. 7(3); LOS Convention, supra note 8, art. 
10(3). 

53. Territorial Sea Convention, supra note 12, art. 7(4); LOS Convention, supra note 8, art. 
10(4). 



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54. Territorial Sea Convention, supra note 12, art. 7(5); LOS Convention, supra note 8, art. 
10(5). The waters enclosed by a baseline of a wide-mouth bay need not meet the semicircle test, 
since the wide mouth bay as a whole must meet that test to be a juridical bay. In this case, there is 
no requirement to draw the closing line between prominent points; they can be fixed on smooth 
coasts. PRESCOTT, supra note 18, at 60. Historic bays, bays bounded by more than one State, and 
bays converted to internal waters by straight baselines under Article 7, are not covered by Article 
10. 

55. Territorial Sea Convention, supra note 12, art. 7(6); LOS Convention, supra note 8, art. 
10(6). 

56. LOS Convention, supra note 8, art. 16(2). This rule applies to both normal and straight 
baselines. Under the Territorial Sea Convention, Article 4(6), only straight baselines were 
required to be clearly shown. 

57. LOS Convention, supra note 8, art. 6. There is no corresponding provision in the 1958 
Territorial Sea Convention. 

58. Id., art. 16(2). The Territorial Sea Convention also required due publicity in Articles 
4(6) (straight baselines) and 9 (roadsteads). See U.N., BASELINES, supra note 9, 1111 2-8, 29 & 
94-102. 

59. LOS Convention, supra note 8, art. 16. 

60. Id., arts. 11, 60(8), 147(2) & 259. 

61. The criteria for establishing safety zones are set out in LOS Convention, supra note 8, 
arts. 60, 177(2) and 260. 

62. LOS Convention, supra note 8, art. 12. 

63. U.S. Commentary, supra note 6, at 13. 

64. Anglo-Norwegian Fisheries Case, (U.K. v. Nor.) 1951 I.C.J. Rep. 132. 

65. CHURCHILL & LOWE, supra note 14, at 46-47. 



196 



X 



The Principle of the Military Objective 
in the Law of Armed Conflict 



Horace B. Robertson, Jr. 



IN THEIR COMMENTARY on the two 1977 Protocols Additional to the 
Geneva Conventions of 1949, Michael Bothe, Karl Josef Partsch, and 
the late Waldemar A. Solf remark that the definition of the "military 
objective" in the sense of targets for attack had, until adoption of Article 52 
of Additional Protocol I, 1 "eluded all efforts to arrive at a generally 
acceptable solution." 2 This is surprising in that the principle of distinction, 
from which the principle of the military objective is derived, is one of the 
two "cardinal principles" of the law of armed conflict. 3 The principle of 
distinction itself, although an inherent part of both customary and 
conventional law governing the conduct of war, did not receive precise 
articulation in a treaty document until adopted in Additional Protocol I, 
which states in Article 48 that: 

In order to ensure respect for and protection of the civilian population and 
civilian objects, the Parties to the conflict shall at all times distinguish 
between the civilian population and combatants and between civilian objects 
and military objectives and accordingly shall direct their operations only 
against military objectives. 



Military Objective 



Development and Articulation of the Principle 
of the Military Objective 

Despite some embryonic intimations of the emergence of the principle in the 
period of medieval Canon law, 4 the chivalric codes of the international order of 
knighthood, and the early war codes of certain European States, 5 the modern 
articulation of the principle of distinction had its origins in the late 19th and 
early 20th centuries, probably under the influence of Rousseau's proclamation 
that wars were disputes between States and not between peoples. 
Consequently, military operations were to be conducted exclusively between 
combatants in uniform, and unarmed civilians were to be spared in their 
persons and property. 6 

The principle of distinction had its first formal recognition as such in 
Professor Francis Lieber's Instructions promulgated to the Federal Forces in 
the United States Civil War by President Lincoln. 7 Included among its 
provisions is a recognition that in remote times the universal rule was, "and 
continues to be with barbarous armies," that civilians and their property were 
subject to any privation the hostile commander chose to impose. 8 But the 
Instructions also recognize that as civilization has advanced, 

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. 9 

The Declaration of Petersburg of 1868 10 tacitly recognized the principle, 
stating in its Preamble that "the only legitimate object which States should 
endeavor to accomplish during war is to weaken the military forces of the 
enemy." This sentiment was also expressed in the Final Protocol of the Brussels 
Conference of 1 874. n 

The Oxford Manual of 1880, in its first article, states, "The state of war does 
not admit of acts of violence, save between the armed forces of belligerent 
States." 12 An explanatory statement immediately following the article notes 
that " [t]his rule implies a distinction between the individuals who compose the 
'armed force' of a State and its other ressortissants [nationals]." 13 Despite these 
advances toward adoption of the principle of distinction in a conventional 
instrument, the Hague Conventions of 1907 gave only limited and implied 
respect to the principle. Without specific reference to the principle of 
distinction or the concept of the military objective, a number of provisions 

198 



Horace B. Robertson, Jr. 



explicitly require respect for the person and property of noncombatants. 
Article 25 of the Regulations Annexed to Hague IV 14 prohibits bombardment 
of undefended places in land warfare, as does Article 1 of Hague IX for naval 
bombardments. 15 In both land and naval bombardments, the commander 
ordering the bombardment is normally required to give notice prior to the start 
of the bombardment. 16 In both cases, the commander must take all necessary 
steps to spare, "as far as possible, buildings dedicated to religion, art, science, or 
charitable purposes, historic monuments, hospitals, and places where the sick 
and wounded are collected, provided they are not being used at the time for 
military purposes." 17 Proscriptions against harming inhabitants and taking 
their property without compensation are found in a number of places in 
Hague IV. 18 

The first explicit reference to the "military objective" as a concrete rule of 
warfare is found in the Hague Rules of Air Warfare of 1923. 19 Article 24(1) of 
the Rules states: 

Aerial bombardment is legitimate only when directed at a military objective, 
that is to say, an object of which the destruction or injury would constitute a 
distinct military advantage to the belligerent. 

Although the Hague Rules were never adopted in a treaty instrument, 
Lauterpacht states that they are regarded "as an authoritative attempt to clarify 
and formulate rules of law governing the use of aircraft in war and they will 
doubtless prove a convenient starting point for any future steps in this 
direction." 20 At least insofar as the definition of "military objective" contained 
in the rules is concerned, Lauterpacht's prediction was, as we shall later see, 
prescient. 

Although the international community undertook a major effort in 1949 to 
bring up to date the international rules for the protection of the victims of 
armed conflict, the project was directed primarily to the protection of the 
victims of war and did not include an attempt to modernize the Hague Rules or 
other conventions dealing with the means and methods of warfare. 21 As a 
consequence, the International Committee of the Red Cross (ICRC), in an 
effort to fill what it believed was a gap in the humanitarian law of armed 
conflict, prepared Draft Rules for the Limitation of the Dangers Incurred by the 
Civilian Population in Time of War. The Draft Rules were submitted to the 
XlXth International Conference of the Red Cross in New Delhi in 1957, which 
approved them in principle. 22 When governments failed to follow up on the 
draft, the ICRC, at the XXth Conference in Vienna in 1965, proposed the 

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Military Objective 



reaffirmation of certain basic principles, which were adopted as Conference 
Resolution XXVIII. The resolution provided, inter alia: 

All governments and other authorities responsible for action in armed 
conflicts should conform at least to the following principles: . . . that distinction 
must be made at all times between persons taking part in the hostilities and 
members of the civilian population to the effect that the latter be spared as much 
as possible. 23 

Soon thereafter the General Assembly of the United Nations became 
interested in the efforts of the ICRC and adopted a series of resolutions along 
the lines of Resolution XXVIII, the most significant, insofar as our subject is 
concerned, being Resolution 2675 (XXV). It stated that the General Assembly 
affirmed certain basic principles of the law of armed conflict, including: 

2. In the conduct of military operations during armed conflicts, a distinction 
must be made at all times between persons actively taking part in the hostilities 
and civilian populations. 



4. Civilian populations as such should not be the object of military 
operations. 24 

These movements toward a codification of the principle of distinction and 
defining the military objective received further impetus from a resolution 
adopted by the Institute of International Law at Edinburgh in 1969. This 
Resolution reaffirmed the "fundamental principle" o( the obligation of parties 
to observe the principle of distinction and defined military objectives as only 
those objects, 

which, by their very nature or purpose or use, make an effective contribution to 
military action, or exhibit a generally recognized military significance, such that 
their total or partial destruction in the actual circumstances gives a substantial, 
specific and immediate military advantage to those who are in a position to 
destroy them. 25 

The culmination of efforts by the ICRC and others to modernize and amplify 
the 1949 Geneva Conventions was the Diplomatic Conference on the 
Reaffirmation and Development of International Humanitarian Law 
Applicable in Armed Conflicts (CDDH) , convened by the Swiss Government 

200 



Horace B. Robertson, Jr. 



in 1974. The Conference met in four annual sessions and in 1977 adopted two 
Additional Protocols to the Geneva Conventions of 12 August of 1949. The 
first is applicable to international armed conflicts and the second to 
non-international armed conflicts. Only the former is of interest to us in that it 
contains explicit provisions concerning the principle of distinction and the 
concept of the military objective. 26 

As a result of the deliberations of the CDDH, the international community 
has for the first time in a treaty document adopted a specific and explicit 
articulation of the principle of distinction and its derivative principle of the 
military objective. Additional Protocol I (as of September 1997) has now 
entered into effect for 148 States. 

Although some aspects of the two principles are reflected in a number of 
articles in Additional Protocol I, 27 they are expressly set forth in two articles, 
Article 48, set forth above, and Article 52. The latter reads as follows: 

Article 52 - General protection of civilian objects 

1. Civilian objects shall not be the object of attack or of reprisals. Civilian 
objects are all objects which are not military objectives as defined in paragraph 2. 

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. 28 

It is noteworthy in the foregoing articulation of the definition of the military 
objective that it follows closely the definition contained in Article 24 of the 
1923 Hague Rules of Air Warfare, although it is amplified in several respects, 
reflecting particularly the additional ideas expressed in the Edinburgh 
Resolution of the Institute of International Law. 29 Article 52, in essence, 
provides a two-pronged test for whether objects are military objectives. The 
first prong is that they must, by their "nature, location, purpose or use," make 
an effective contribution to military action. The second is that their total or 
partial destruction, capture or neutralization must, in the prevailing 
circumstances, offer a definite military advantage. 

It should also be noted that in Additional Protocol I, the words "whose total 
or partial destruction, capture or neutralization" have replaced "destruction 
and injury," and the words "substantial, specific and immediate" of the 
Edinburgh Resolution have been replaced by the less specific "definite." 

201 



Military Objective 



The term "attacks" is also used in a broader sense than is traditionally meant 
in military parlance, where the term was generally used to describe the use of 
military force in an offensive action, particularly the launching of weapons 
against the enemy. As defined in Article 49, " 'Attacks' means acts of violence 
against the adversary, whether in offense or in defense." 

Although the section of Additional Protocol I concerned with attacks does 
not apply to naval warfare, except insofar as attacks from the sea or air may 
affect the civilian population, individual civilians, or civilian objects on land, 30 
many modern navies have the capability and are often employed to conduct 
attacks on land targets by naval artillery or missiles or by their air arms. Thus, 
this section of the Protocol is explicitly applicable to this aspect of naval 
warfare. 

For armed conflict at sea generally, however, there has been no modern 
counterpart to the codification effort reflected in the events leading up to and 
the convening of the Diplomatic Conference which resulted in the two 
Additional Protocols of 1977. Consequently, there has been no explicit 
incorporation of the principle of the military objective into conventional law 
applicable to armed conflicts at sea. The closest approach to that process has 
been the series of Round Tables convened by the International Institute of 
Humanitarian Lav/ of San Remo, Italy, from 1988 to 1994, whose purpose was to 
provide a contemporary restatement of international law applicable in armed 
conflicts at sea. 31 The Manual that resulted from the deliberations of the Round 
Tables was not envisaged as a draft convention but was viewed by participants in 
the Round Tables as a modern equivalent of the Oxford Manual on the Laws of 
Naval War Governing the Relations between Belligerents adopted by the 
Institute of International Law at Oxford in 1913. 32 The San Remo Manual adopts 
essentially in haec verba the definitions of the principle of distinction and the 
military objective found in Additional Protocol I. The relevant provisions are 
included in a section entitled "Basic Rules" and provide that: 

39 Parties to the conflict shall at all times distinguish between civilians or 
other protected persons and combatants and between civilian or exempt 
objects and military objectives. 

40 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. 

202 



Horace B. Robertson, Jr. 



41 Attacks shall be limited strictly to military objectives. Merchant vessels 
and civil aircraft are civilian objects unless they are military objectives in 
accordance with the principles and rules set forth in this document. 

The Principle of the Military Objective 
as a Part of the Customary Law of War 

Since the United States has not ratified Additional Protocol I, and the San 
Remo Manual does not of itself have any binding effect on States, it is necessary 
to examine whether the principles of distinction and the military objective 
have become rules of customary international law and, in particular, whether 
the United States recognizes them as such. To state the proposition another 
way, are the provisions of Additional Protocol I and the San Remo Manual 
articulating the principles of distinction and the military objective declaratory 
of international law? If they are, then they are binding on States not party to 
the Protocol, not as treaty obligations but as customary norms of identical 
content. 

According to the Restatement, customary international law results from a 
concurrence of two elements: (1) a general and consistent practice of States; 
and (2) a sense of obligation on the part of States to adhere to the practice. 33 

With respect to the first element (practice) , acts which may constitute State 
practice include diplomatic instructions, public measures, and official 
statements of policy. They may also include acquiescence in acts of another 
State. 34 The practice required to establish a norm of customary law must be 
general, but not necessarily universal. It should reflect "wide acceptance 
among the states particularly involved in the relevant activity." 35 As to 
deviations from the practice, the U.S. Navy's Commander s Handbook on the 
Law of Naval Operations states: 

Occasional violations do not substantially affect the validity of a rule of law, 
provided routine compliance, observance, and enforcement continue to be the 
norm. However, repeated violations not responded to by protests, reprisals, or 
other enforcement actions may, over time, indicate that a particular rule is no 
longer regarded as valid. 36 

With respect to the second element (sense of obligation or opinio juris), 
explicit evidence of a sense of obligation is not necessary, but is certainly 
helpful. Some of the same "acts" that demonstrate a general practice also serve 
to indicate that a State is acting out of a sense of obligation and not just as a 
matter of courtesy or habit. 37 With respect to the law of armed conflict, 

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Military Objective 



inclusion of a rule in a State's military manuals is persuasive evidence that the 
State regards the rule as obligatory. 38 Statements by government officials, even 
those spoken in their private capacities, are helpful. A noted authority and 
judge of the International Court of Justice has stated: 

The firm statement by the State of what it considers to be the rule is far better 
evidence of its position than what can be pieced together from the actions of that 
country at different times and in a variety of contexts. 39 

A number of statements, both official and unofficial, by spokesmen for the 
United States Departments of State and Defense, spoken primarily in the 
context of an examination of Additional Protocol I and the U.S. decision not 
to ratify it, have suggested that the U. S. regards the principles of distinction 
and the military objective, as articulated in the Protocol, as customary 
international law. 40 

Most persuasive insofar as the United States is concerned is the opinion of 
the General Counsel of the Department of Defense, concurred in by the Army, 
Navy, and Air Force Judge Advocates General, that the United States 
recognized as "declaratory of existing customary international law" the general 
principles of the law of armed conflict stated in General Assembly Resolution 
2444. 41 Those principles include: 

(b) That it is prohibited to launch attacks against the civilian population as 
such, and 

(c) That a distinction must be made at all times between persons taking part 
in the hostilities and members of the civilian population to the effect that the 
civilians be spared as much as possible. 42 

As we have seen, incorporation in national military manuals is a strong 
indication that a normative principle has matured into customary 
international law. 43 Here, too, the strong indications from military manuals are 
that the principle of the military objective, as formulated in Articles 48 and 52 
of Additional Protocol I and paragraphs 39 and 40 of the San Remo Manual, is 
recognized as a norm of customary international law. The current German 
military manual provides: 

441. Attacks, i.e., any acts of violence against the adversary, whether in offence 
or in defence, shall be limited exclusively to military objectives. 

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Horace B. Robertson, Jr. 



442. Military objectives are armed forces — including paratroops in descent 
but not crew members parachuting from an aircraft in distress — and objects 
which by their nature, location, purpose or use make an effective 
contribution to military action and whose total or partial destruction or 
neutralization, in the circumstances ruling at the time, offer a definite 
military advantage. 44 

The Australian Operations Law Manual for air commanders contains similar 
provisions: 

An aerial attack must be directed against military objectives. . . . Military 
objectives are those objects which by their nature, location, purpose or use make 
an effective contribution to military action. To be lawful, any attack on such 
objective should result in a definite military advantage. 45 

The Canadian Draft Manual also adopts the Protocol definition of military 
objective essentially verbatim. It provides: 

Military objectives are combatants and 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. 46 

Two United States manuals are also pertinent to our inquiry, those of the 
Air Force and Navy/Marine Corps/Coast Guard. 47 Although predating the 
actual signing of Additional Protocol I by one year, the United States Air Force 
operational law manual apparently took into account the ongoing negotiations 
in the CDDH, for its provisions on the principle of distinction and the military 
objective are taken almost verbatim from the final provisions of the Protocol. It 
provides: 

In order to insure respect and protection for the civilian population and 
civilian objects the parties to the conflict must at all times distinguish between 
the civilian population and combatants and between civilian objects and military 
objectives and accordingly direct their operations only against military 
objectives. Attacks must be strictly limited to military objectives. Insofar as 
objects are concerned, military objectives are limited to those objects which by 
their own 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. 48 

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Military Objective 



The Navy /Marine Corps /Coast Guard Manual, the most recent revision of 
which is dated 1995, although pointing out that the United States is not a party 
to Additional Protocol I, 49 nevertheless has also adopted, with one variation, 
the Protocol formulation of the principle of the military objective. It states, in a 
chapter entitled "The Law of Targeting": 

Only military objectives may be attacked. 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. 50 

The emphasized part of the foregoing quotation was the object of 
considerable debate in the San Remo Round Table, which specifically rejected 
it in favor of the formulation in article 52 of Additional Protocol I. As stated by 
Louise Doswald-Beck, who acted as rapporteur for the sessions of the Round 
Table and was the editor of the "Explanation" of the San Remo Manual, 

The majority [of the Round Table] felt that the Handbook does not take into 
account developments in the law relating to target discrimination since the 
Second World War. In particular, they feared that "war-sustaining" could too 
easily be interpreted to justify unleashing the type of indiscriminate attacks that 
annihilated entire cities during that war. 51 

An annotation to a previous edition of the Commander's Handbook stated 
that, "This variation of the definition contained in Additional Protocol I, 
Article 52(2) is not intended to alter its meaning, and is accepted by the United 
States as declarative of the customary rule." 52 In the new revision of the 
Annotated Supplement, the annotation is revised to state that, "This definition is 
accepted by the United States as declarative of the customary rule." 5 The 
inference that one may draw from this change in wording is that the United 
States (at least its naval arm) has rejected the presumptively narrower 
definition contained in Article 52 of Additional Protocol I in favor of one that, 
at least arguably, encompasses a broader range of objects and products. In 
justifying this position, the Annotated Supplement cites the American Civil 
War-era decision of the United States with respect to the destruction of raw 
cotton within Confederate territory, the sale of which provided funds for 
almost all Confederate arms and ammunition, as well as the twelve "target sets" 
for the offensive air campaign of Operation Desert Storm. 54 The text of the 
Handbook itself states that, "Economic targets of the enemy that indirectly but 

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Horace B. Robertson, Jr. 



effectively support and sustain the enemy's war-fighting capability may also be 
attacked." 55 

From the foregoing, it would appear that there is a consensus, in which the 
United States concurs, that the principle of the military objective has become a 
part of customary international law for armed conflict at sea, as well as on the 
land and in the air. We shall in the next section examine what objects the term 
"military objective" embraces and attempt to discern whether the variation in 
terminology in the U.S. naval manual does in fact suggest a broadening of the 
scope of permissible targets for attack. 

The "Reach" of the Term, "Military Objective" 

In earlier centuries, when wars were generally fought with limited objectives 
and the cleavage between armed forces and the civilian population was clear, 
the distinction between military objectives and civilian objects was reasonably 
apparent. Only in the immediate vicinity of the battle was the civilian populace 
put in jeopardy by the fire of the contending armed forces. The problem of 
protecting objects which were not legitimate military objectives could be met 
by prohibitory rules exempting particular categories of objects, buildings, or 
installations such as churches, hospitals, buildings used for charitable or 
scientific purposes, etc. This was the pattern followed in the Hague Rules, for 
example. In modern warfare, however, with the tremendous increase in the 
range and sophistication of weapons and with the mobilization of the populace 
in support of modern armies, navies, and air forces, the cleavage is not nearly so 
distinct. In the two World Wars of this century, the economies of all of the 
major parties involved were completely mobilized in support of the war effort. 
Nearly all industries were converted to war production; all power-generating 
stations provided power for war industries; and the bulk of the adult population 
was engaged in some activity connected with the war effort. At the same time, 
the capabilities of the contending forces to strike targets deep in enemy 
territory, primarily through their air forces, were vastly expanded. As a result, 
both Allied and Axis powers conducted "strategic" bombing campaigns against 
the industrial bases of their enemies which, because of the limitations at that 
time on the accuracy of nighttime and high- altitude bombing, could hardly be 
said to have discriminated between valid military objectives and the civilian 
population and civilian objects in the vicinity of the military objective that was 
the target of the bombing. 57 

Nevertheless, most twentieth-century international conflicts, particularly 
those occurring since World War II, have not been of the magnitude and 

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Military Objective 



geographic scale of the two World Wars. Most were undeclared and fought 
with limited objectives. Although geographically confined to relatively small 
areas, the fighting was just as intense as in the two World Wars. The Korean, 
Vietnam, and Gulf Wars in which the United States was engaged were 
certainly intense but had little if any physical effect on populations and objects 
outside the immediate area of conflict. The Falklands/Malvinas war between 
Great Britain and Argentina was likewise limited. The differences in the 
intensity and scope of conflicts have led some commentators to suggest that 
there should be a flexible definition of the military objective, allowing it to 
expand and contract "according to the intensity, duration, subjects, and 
location of the armed conflict." 58 Both Additional Protocol I and the San Remo 
Manual reject this idea, providing that the same criteria apply in general and 
limited wars, although the San Remo Manual "Explanation' recognizes that "the 
application of these rules to the facts should result in a more restrictive 
approach to targeting in limited conflicts." 59 

Rather than follow the traditional pattern of establishing prohibitory rules 
setting forth what objects were to be protected from hostile action, however, 
the conference at which the 1977 Additional Protocols were negotiated 
adopted a formula that provides criteria by which a responsible military 
commander can determine, under the circumstances existing at the time, 
which objects are legitimate targets for attack. As we have seen earlier, this 
resulted in the two-pronged test of Article 52, namely, that, to constitute 
military objectives, objects must, by their "nature, location, purpose or use" 
make an effective contribution to military action and that their total or partial 
destruction, capture, or neutralization must, in the prevailing circumstances, 
offer a definite military advantage. Since this approach was a departure from 
the traditional practice of writing prohibitory rules specifying which objects 
were to be spared, it met considerable opposition at the outset of the 
negotiations in the CDDH. 60 This opposition was eventually overcome by 
inclusion of the first sentence of Article 52, which, in the traditional 
codification pattern, is prohibitory in nature, albeit without listing exempt 
objects specifically. The second sentence, upon which we shall focus our 
discussion, gives the commander a two-prong test for determining which 
targets are legitimate. 

The first prong of the Article 52 test, as well as the San Remo test, states four 
conditions — nature, location, purpose, use — which, if they make an effective 
contribution to military action, make an object a military objective. Some 
objects, "by their nature," are military objectives and remain so at all times, 
regardless of their location or use. Examples of such objects include enemy 

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Horace B. Robertson, Jr. 



warships, military aircraft (unless exempt under some specific exception such 
as those applicable to medical transports), stocks of ammunition, and 
combatant personnel. 61 On the other hand, the vast majority of objects become 
military objectives only during the time that their particular location, purpose, 
or use provides an effective contribution to military action. Civilian buildings, 
for example, may become military objectives if they are being used by enemy 
troops for shelter. Their "location" may make them military objectives if they 
obstruct the field of fire for attack on another valid military objective. Factories 
making civilian goods are not normally military objectives, but if they are 
converted to manufacture war goods, their purpose and use may make them 
military objectives. The ICRC Commentary suggests that "purpose is concerned 
with the intended future use of an object, while that of use is concerned with its 
present function." 62 Civilian transportation hubs may also be important 
military transportation links, and their dual use (civilian/military) does not 
exempt them from becoming military objectives, although under these 
circumstances the time of attack should be taken into account to minimize 
civilian casualties. 63 Bothe et al. state succinctly: 

The objects classified as military objectives under this definition include 
much more than strictly military objects such as military vehicles, weapons, 
munitions, stores of fuel and fortifications. Provided the objects meet the 
two-pronged test, under the circumstances ruling at the time (not at some 
hypothetical future time), military objectives include activities providing 
administrative and logistical support to military operations such as 
transportation and communications systems, railroads, airfields and port 
facilities and industries of fundamental importance for the conduct of the armed 
conflict. 64 

The second aspect of the first prong of the test which must be examined is 
whether the nature, location, purpose, or use of the object makes an effective 
contribution to "military action." As we saw above, the U.S. naval 
Commander's Handbook substitutes the phrase "enemy's war-fighting or 
war-sustaining capability" for "military action." Is there an actual substantive 
difference in meaning, or is there merely a difference in perception? 

Any difference between the two formulations would seem to come down to 
the term "war-sustaining" in the Commanders Handbook. The term 
"war-fighting" is equivalent to the Additional Protocol I term "military action." 
On the other hand, "war-sustaining" implies something not quite so directly 
connected with the actual conduct of hostilities. 

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Military Objective 



The San Remo Round Table specifically addressed the issue of whether 
to adopt the formulation used in Article 52(2) of Additional Protocol I or 
that contained in the Commander's Handbook. It concluded that the 
Handbook's phrasing was too broad and might justify indiscriminate attacks 
on entire cities. 65 The suggestion that the latter formulation might justify 
attacks on entire cities seems to be an exaggerated claim. Nowhere in the 
Commander's Handbook is there any suggestion that this phrasing would 
open the way for unrestricted attacks on cities or other population centers. 
In discussing what objects are included within its definition, the Manual 
states that in addition to targets having obvious military value, military 
objectives may include: 

enemy lines of communication used for military purposes, rail yards, bridges, 
rolling stock, barges, lighters, industrial installations producing war-fighting 
products, and power generation plants. Economic targets of the enemy that 
indirectly but effectively support and sustain the enemy's war-fighting capability 
may also be attacked. 

This explanation does not differ materially from the authoritative 
interpretation of Article 52(2) by Bothe et al., who suggest: 

Military objectives must make an "effective contribution to military action." 
This does not require a direct connection with combat operation such as is 
implied in Art. 51, para. 3, with respect to civilian persons who lose their 
immunity from direct attack only while they "take a direct part in hostilities." 
Thus a civilian object may become a military objective and thereby lose its 
immunity from deliberate attack through use which is only indirectly related to 
combat action, but which nevertheless provides an effective contribution to the 
military phase of a Party's overall war effort. 66 

The San Remo Manual, although adopting the Article 52(2) phrasing, 
nevertheless acknowledged that a civilian object may become a military 
objective and thereby lose its immunity from 

deliberate attack through use which is only indirectly related to combat action, 
but which nevertheless provides an effective contribution to the military part of a 
party's overall war-fighting capability. 67 

Probably the only point of difference between the San Remo formulation 
(which adopts the Article 52(2) phrasing) and that in the Commander's 
Handbook is with respect to attacks on exports that may be the sole or principal 

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Horace B. Robertson, Jr. 



source of financial resources for a belligerent's continuation of its war effort. In 
support of the possible legitimacy of such attacks, the Commander s Handbook 
cites the denial of claims for destruction of British-owned cotton exports from 
the Confederacy during the American Civil War by an Anglo-American 
arbitration tribunal. 68 It also raises the question whether Iraq's attacks on 
tankers carrying oil from Iran during the 1980-88 Gulf War may have been 
justified under the same theory, although it admits that the law on this subject 
"is not firmly settled." 69 

The San Re mo Round Table, however, firmly rejected the broadening of the 
military objective to include such targets, "because the connection between 
the exports and military action would be too remote." 70 

The second prong of the two-part test provided in Article 52(2) — that the 
total or partial destruction, capture, or neutralization of the object, in the 
circumstances ruling at the time, offers a definite military 
advantage — although incorporated in haec verba in the various national 
manuals and the San Remo Manual, has received little attention from 
commentators. Bothe et al. provide the seminal commentary on the subject, 
stating: 

The term military advantage involves a variety of considerations, including the 
security of the attacking force. Whether a definite military advantage would 
result from an attack must be judged in the context of the military advantage 
anticipated from the specific military operation of which the attack is a part 
considered as a whole, and not only from isolated or particular parts of that 
operation. It is not necessary that the contribution made by the object to the 
Party attacked be related to the advantage anticipated by the attacker from the 
destruction, capture or neutralization of the object. 71 

Although Article 51, paragraph (l)(b) and Article 57, paragraph 2 (a) (iii) 
use the more restrictive term "concrete and direct" military advantage, the 
documents of the CDDH do not disclose the reasons for using different 
expressions. 72 Examining the context of the expressions in the three articles, 
however, it appears that the purpose of using the arguably more restrictive 
phrase, "concrete and direct," in Articles 51 and 57 was to provide a less 
subjective test for applying the rule of proportionality where there was a danger 
of civilian casualties or damage to civilian objects in a projected attack. 73 On 
the other hand, Article 52, paragraph 2 is concerned only with defining what 
objects are military objectives. Of course, should the attack on a legitimate 
military objective involve the possibility of collateral damage to civilians or 
civilian objects, the arguably more stringent restriction would apply. 

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Military Objective 



The Application of the Principle of the Military Objective 
to Armed Conflict at Sea 

As we have seen above, the term "military objective" received no precise 
definition in a treaty document until 1977, when Additional Protocol I 
included one for armed conflict on land (and for attacks on land targets by 
naval or air forces). 74 Although this definition does not apply of its own force to 
States not party to the 1977 Protocol, we have also seen that the principle of 
the military objective, essentially as articulated in the Protocol, has been 
acknowledged to have been assimilated into customary international law. 75 
There also seems to be no question that it is also a principle of the law of armed 
conflict applicable to armed conflict at sea. 76 

Despite its relatively recent articulation in its present terminology as a 
concrete principle of the law of armed conflict at sea, 77 the concept of the 
military objective, often referred to as the "law of targeting" or a subdivision 
thereof, 78 is reflected in many of the customary rules that have developed in the 
conduct of naval warfare over the past two centuries — particularly those that 
apply to what has come to be known as economic warfare. 

Just as in land warfare, in warfare at sea, whether a person or object is a 
legitimate object of attack or is protected from attack depends, in the case of 
persons, on whether they are combatants or noncombatants (or civilians in the 
words of Additional Protocol I), and in the case of objects, on whether or not 
they make an effective contribution to the enemy's war effort (military action 
in the words of Protocol; war-fighting or war-sustaining capability in the words 
of the Commander s Handbook) . Prior to the twentieth century, the distinction 
was relatively clear. Warships and naval auxiliaries were legitimate objects of 
attack. Merchant ships and their crews, whether enemy or neutral, were not. 

On the other hand, private property at sea had never had the protection 
from seizure by the enemy that it enjoyed in land warfare. Under the doctrines 
of blockade and contraband, goods destined for (and in the case of blockade, 
being shipped from) an enemy port were subject to capture and condemnation 
by prize courts. The traditional method of enforcing these doctrines was to stop 
a suspect merchantman and exercise the right oi visit and search. Only if the 
vessel resisted visit and search, was sailing in an enemy convoy, or attempted to 
run a blockade was it subject to attack. 

The advent of the submarine and aircraft and the measures adopted by the 
adversaries to counteract these new means of naval warfare changed the 
traditional law forever and irrevocably. Neither submarines nor aircraft were 
capable o( conducting visit and search in the traditional manner. As a 

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Horace B. Robertson, Jr. 



consequence, in World War I, German submarines (and to a limited extent 
aircraft) attacked enemy and neutral merchant ships without warning. The 
Allied forces in turn armed their merchantmen, formed them into escorted 
convoys, and generally incorporated their merchant fleets into the war effort. 
During the interwar period, the former Allied States sought to outlaw the use 
of submarines as commerce raiders through a series of diplomatic moves, 
culminating in the London Protocol of 1936, 79 which purported to apply the 
same rules to submarines that were applicable to surface warships. These 
diplomatic efforts proved fruitless, however, and World War II saw a repetition 
of the practices of World War I in an even more widespread and cruel 

80 

manner. 

As a result of the practices of both the Axis and Allied powers in World 
War II, and the assessment of those practices by the Nuremberg Tribunal in 
the case of Admiral Karl Doenitz, 81 a consensus seems to have been achieved 
among publicists and national military manuals that although the 1936 
London Protocol retains its validity, the realities of modern warfare, 
particularly global warfare, make it inapplicable in most situations. This 
consensus is perhaps best expressed in the recent San Remo Manual, which 
provides that enemy merchant ships may be attacked only if they have 
become military objectives and states that the following activities may render 
them military objectives: 

(a) engaging in belligerent acts on behalf of the enemy, e.g., laying mines, 
minesweeping, cutting undersea cables and pipelines, engaging in visit and 
search of neutral merchant vessels or attacking other merchant vessels; 

(b) acting as an auxiliary to an enemy's armed forces, e.g., carrying troops or 
replenishing warships; 

(c) being incorporated into or assisting the enemy's intelligence gathering 
system, e.g., engaging in reconnaissance, early warning, surveillance, or 
command, control and communications missions; 

(d) sailing under convoy of enemy warships or military aircraft; 

(e) refusing an order to stop or actively resisting visit, search or capture; 

(f) being armed to an extent that they could inflict damage to a warship; this 
excludes light individual weapons for the defense of personnel, e.g., against 
pirates, and purely deflective systems such as 'chaff; 

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Military Objective 



(g) otherwise making an effective contribution to military action, e.g., 
carrying military materials. 82 

Other manuals state the rules somewhat differently, but in essence prescribe 
similar standards. 83 

The San Remo Manual treats neutral merchant vessels separately, excluding 
being armed from the list of activities rendering them military objectives and 
adding refusal to stop or resisting visit, search, and capture. 84 The Manual 
explicitly states that the mere fact that a neutral vessel is armed does not provide 
ground for attack. 85 The U.S. manual is the most permissive of the manuals 
examined in that it includes, as a final activity, authorizing attack on enemy 
merchant vessels: . . . "If integrated into the enemy's war- fighting/war- sustaining 
effort and compliance with the rules of the 1936 London Protocol would, under 
the circumstances of the specific encounter, subject the surface warship to 
imminent danger or would otherwise preclude mission accomplishment." 85 This 
latter provision has been subjected to severe criticism by Frits Kalshoven, who 
points out that the adoption of Additional Protocol I in 1977 vindicated the 
view, at least for land warfare, that contribution to the "war effort" is too broad a 
test for determining whether an object has become a military objective. He 
suggests that the same should be true in naval warfare. 87 

When the development of aircraft technology reached the point at which air 
transportation became a factor in international commerce, the international 
community attempted to adopt the same principles for civil aircraft that were 
applicable to merchant ships. This was first manifested in the 1923 Hague Rules 
of Air Warfare, 88 which, with respect to civil aircraft, closely mimic the rules 
applicable to merchant ships. 89 Although the Hague Rules were never adopted 
in binding form, they have influenced the development of the law in this field, 
and the military manuals generally follow the pattern established in 1923. They 
have likewise adopted the view that activities conducted by them similar to 
those that would make merchant ships military objectives would also convert 
civil aircraft into military objectives. Again, turning to the San Remo Manual as 
the typical manifestation of this pattern, it provides that aircraft engaging in 
any of the following activities will render them military objectives: 

(a) engaging in acts of war on behalf of the enemy, e.g., laying mines, 
minesweeping, laying or monitoring acoustic sensors, engaging in 
electronic warfare, intercepting or attacking other civil aircraft, or 
providing targeting information to enemy forces; 

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Horace B. Robertson, Jr. 



(b) acting as an auxiliary aircraft to an enemy's armed forces, e.g., transporting 
troops or military cargo, or refueling military aircraft; 

(c) being incorporated into or assisting tbe enemy's intelligence -gathering 
system, e.g., engaging in reconnaissance, early warning, surveillance, or 
command, control and communications missions; 

(d) flying under the protection of accompanying enemy warships or military 
aircraft; 

(e) refusing an order to identify itself, divert from its track, or proceed for visit 
and search to a belligerent airfield that is safe for the type of aircraft 
involved and reasonably accessible, or operating fire control equipment 
that could reasonably be construed to be part of an aircraft weapon system, 
or on being intercepted clearly manoeuvring to attack the intercepting 
belligerent aircraft; 

(f) being armed with air-to-air or air-to-surface weapons; or 

(g) otherwise making an effective contribution to military action. 90 

Because attacks on civil airliners are likely to cause injury or death to embarked 
civilians, they are exempted from attack while in flight, except in situations in 
which their conduct is clearly hostile. 91 




s we have seen, the principle of the military objective, though slow in 
.coming to recognition as articulated in Additional Protocol I and 
current military manuals, has been imbedded in the law of armed conflict for 
several centuries. It appeared in numerous nineteenth and twentieth century 
documents in the form of prohibitions against attacks against certain categories 
of persons and objects such as undefended towns, churches, hospitals, historic 
buildings, noncombatant personnel, and combatant personnel who were hors 
de combat. The 1977 Protocol led the way in converting the principle from a list 
of prohibited targets to a more usable concept for a military commander in 
appraising whether a particular object or person could be lawfully attacked. 
Both the old-style negative list of prohibited targets and the new-style 
permissive principle of defining the military objective have their drawbacks. 
The former allowed the literal-minded commander to assume that unless a 
prospective target was on the prohibited list, he could attack it, perhaps 

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Military Objective 



downplaying the related principles of collateral damage, avoiding causing 
unnecessary suffering, etc. The two-prong test of the latter gives the 
commander a great deal more discretion and requires the commander to 
balance the value of the target against the military advantage to be gained from 
its destruction or capture, obviously importing the relative question of 
proportionality into the equation. It must be remembered, however, that the 
old prohibitions have not been excised by the adoption of the new standard of 
the military object. They remain in effect in the various Hague Conventions of 
1907, the Geneva Conventions of 1949, and the treaties for the protection of 
artistic, scientific, and historic monuments and institutions. 92 When properly 
applied, the two-prong test adds an additional layer of protection to those 
objects and persons who should not and do not constitute legitimate military 
objectives. 

The general acceptance of the principle of the military objective into 
customary international law, essentially as articulated in Additional Protocol I, 
marks a step forward in promoting the humanitarian goals represented in the 
law of armed conflict. 



Notes 



1. Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the 
Protection of Victims of International Armed Conflict, Final Act of the Diplomatic Conference 
on the Reaffirmation and Development of International Humanitarian Law applicable in Armed 
Conflicts, published by the Swiss Federal Political Department, Sept. 26, 1977, at 115-183, 
reprinted in THE LAW OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, 
RESOLUTIONS AND OTHER DOCUMENTS (Dietrich Schindler and Jiri Toman eds., 3d ed. 1988) 
[hereinafter Additional Protocol I and Schindler and Toman, respectively] . 

2. MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS: 
COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA 
CONVENTIONS OF 1949, 321 (1982) [hereinafter BOTHEETAL]. 

3. Advisory Opinion of the International Court of Justice on the Legality of the Threat or 
Use of Nuclear Weapons, 8 July 1996, 28 [hereinafter ICJ Advisory Opinion on Nuclear 
Weapons], reprinted in 35 I.L.M. 809, 827 (1996). According to the Court, the second cardinal 
principle is that it is prohibited to use weapons causing unnecessary suffering to combatants. Id. 

4. See Theodor Meron, Shakespeare's Henry the Fifth and the Law of War, 86 AM. J. INT'L L. 1, 
23 (1992). 

5. For a brief summary of these early developments, see ESBJORN ROSENBLAD, 
INTERNATIONAL LAW OF ARMED CONFLICT— SOME ASPECTS OF THE PRINCIPLE OF 
DISTINCTION AND RELATED PROBLEMS 9, 53 (1977). For a fascinating analysis of the status of 
the law of war during the medieval and English Renaissance periods and its influence upon the 
development of the current law of armed conflict, see Meron, supra note 4. 

6. JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL 
RIGHT (18th century trans., C. Frankel ed., 1947). 

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Horace B. Robertson, Jr. 



7. Francis Lieber, Instructions for the Government of Armies of the United States in the Field, 
originally published as U.S. War Department, Adjutant General's Office, General Orders No. 100 
(Apr. 24, 1863) [Lieber Instructions], reprinted in Schindler and Toman, supra note 1, at 3. 

8. Id., art. 24. 

9. Id., art. 22. 

10. Declaration Renouncing the Use in Time of War of Explosive Projectiles under 400 
Grammes Weight, Dec. 11, 1868 [St. Petersburg Declaration], reprinted in Schindler and 
Toman, supra note 1, at 101. 

11. Brussels Conference of 1874, Final Protocol, Aug. 27, 1874, reprinted in Schindler and 
Toman, supra note 1, at 25. 

12. THE LAWS OF WAR ON LAND (OXFORD MANUAL), adopted by the Institute of 
International Law at Oxford, 1880, reprinted in English in Schindler and Toman, supra note 1, at 
35. 

13. Id. at 37. 

14. Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the 
Convention, Oct. 18, 1907, art. 25, 36 Stat. 2277, [hereinafter Hague IV] , reprinted in Schindler 
and Toman, supra note 1, at 63. 

15. Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 
1907, art. 1, 36 Stat. 2351 [hereinafter Hague IX], reprinted in Schindler and Toman, supra note 
1, at 811. 

16. Hague IV, supra note 14, art. 26; Hague IX, supra note 15, art. 6. 

17. Hague IV, supra note 14, art. 27; Hague IX, supra note 15, art. 5. 

18. Hague IV, supra note 14, arts. 23(g), 28, 46, 47, 52, 53, 55 &56. 

19. HAGUE RULES OF AIR WARFARE, drafted by a Commission of Jurists at The Hague, Dec. 
1922-Feb. 1923 [hereinafter HAGUE AIR RULES], reprinted in Schindler and Toman, supra note 
1, at 207. 

20. LASSA OPPENHEIM, 2 INTERNATIONAL LAW: A TREATISE 519 (Hersch Lauterpacht 
ed.,7thed. 1952). 

21. In essence, this continued the dichotomy between the so-called "Hague" law (means and 
methods of war) and the "Geneva" law (protection of victims of war) . This dichotomy was 
obliterated in the Additional Protocols of 1977, which included provisions dealing with means 
and methods of warfare, as well as those designed to further the protection of victims. This 
development, among others, has led the International Court of Justice to conclude that, "These 
two branches of the law applicable in armed conflict have become so closely interrelated that 
they are considered to have gradually formed one single complex system, known today as 
international humanitarian law. The provisions of the Additional Protocols of 1977 give 
expression and attest to the unity and complexity of that law." ICJ Advisory Opinion on Nuclear 
Weapons, supra note 3, at 27, 35 I.L.M. 827. 

22. international committee of the red cross, commentary on the 
Additional Protocols of 8 June 1977 to the Geneva Conventions of 1949, 587 

(1987) [hereinafter ICRC COMMENTARY]. 

23. Id. at 588. 

24. Id. 

25. The Distinction between Military Objectives and Non-Military Objectives in General 
and Particularly the Problems Associated with Weapons of Mass Destruction, Resolution 
adopted by the Institute of International Law at its session at Edinburgh, Sept 9, 1969, reprinted 
in 2 ANNUAIRE L'INSTITUT DE DROIT INTERNATIONAL 375 (1969) (English). In commenting 
on the results of the Edinburgh Resolutions, the General Counsel of the U.S. Department of 



217 



Military Objective 



Defense, in a letter concurred in by the Judge Advocates General of the Army, Navy, and Air 
Force, stated that the requirement that there be an "immediate" military advantage for 
destruction of an object for it to be classified as a military objective does not reflect "the law of 
armed conflict that has been adopted in the practice of States." Letter dated Sept. 22, 1972, from 
J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy, 
excerpts from which are quoted in A. Rovine, Contemporary Practice of the United States Relating 
to International Law, 67 AM. J. INT'L L. 118, 122 (1973). 

26. The Diplomatic Conference was preceded by two sessions of the Conference of 
Government Experts, which was convened by the ICRC and which held two sessions in 1972 
and 1973. Drafts prepared by these conferences, consolidated and harmonized by the ICRC, 
served as draft texts for the Diplomatic Conference. For background, see ICRC COMMENTARY, 
supra note 22, at xxxi. 

27. These include Article 5 1 (protection of the civilian population), Article 53 (protection of 
cultural objects and places of worship), Article 54 (protection of objects indispensable to the 
survival of the civilian population), Article 55 (protection of the natural environment); Article 
56 (protection of works and installations containing dangerous forces, such as dams, dikes, and 
nuclear electrical generating stations), Article 57 (precautions in attack, in particular, measures 
to avoid collateral damage), and Article 58 (precautions against effects of attacks by the party 
under attack, such as relocating civilians in the area, etc.) 

28. Additional Protocol I, supra note 1, arts. 48 & 52. Article 52 contains a third paragraph, 
which reads as follows: "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." It has 
been omitted from the text since it does not form a part of the definition of a military objective, 
but rather provides a rule of interpretation for the commander ordering or executing an attack. 

29. See supra note 23. 

30. Additional Protocol I, supra note 1, art. 49.3. 

31. See INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW, SAN REMO MANUAL ON 
INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SEA 5 (1995) [hereinafter SAN 

remo manual] . 

32. The Laws of Naval War Governing the Relations Between Belligerents.- 
Manual Adopted by the Institute of International Law (Oxford Manual of 

NAVAL WAR), reprinted in English in Schindler and Toman, supra note 1, at 857. 

33. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 
102(2) (1987). 

34. Id., cmt. b. 

35. Id. 

36. DEPARTMENT OF THE NAVY, OFFICE OF THE CHIEF OF NAVAL OPERATIONS, 
HEADQUARTERS, U.S. MARINE CORPS, DEPARTMENT OF TRANSPORTATION, U.S. COAST 

Guard, The Commander's Handbook on the Law of Naval Operations, NWP 

1-14M (Formerly NWP-9), MCWP5-21, COMDTPUB P5800.7, para. 6.1 (1995) [hereinafter 
COMMANDER'S HANDBOOK] . 

37. Id. 

38. W. Michael Reisman and William Leitzau, Moving International Law from Theory to 
Practice: the Role of Military Manuals in Effectuating the Law of Armed Conflict, in THE LAW OF 
NAVAL OPERATIONS 1 (64 International Law Studies, Horace Robertson ed., 1991). 

39. Richard Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. 
Y.B. INT'L L. 275, 300 (1965-6). 



218 



Horace B. Robertson, Jr. 



40. See Michael Matheson (Deputy Legal Adviser, U.S. Department of State), Remarks in 
Session One: The United States Position on the Relation of Customary International Law to the 1977 
Protocols Additional to the 1949 Geneva Conventions, in The Sixth Annual American Red 
Cross-Washington College of Law Conference on International Humanitarian Law, 2 AM. U. J. INT'L 
L. & POL'Y 419, 426 (1987) [hereinafter Sixth Annual Conference] ; Lt Col Burrus M. Carnahan, 
USAF, id. at 508-9. See also Panel Discussion, Customary Law and Additional Protocol I to the 
Geneva Conventions for Protection of War Victims: Future Directions in Light of the U.S. Decision Not 
to Ratify, 81st Annual Meeting of the American Society of International Law, 1987 PROC. 
A.S.I.L. 27, remarks of M. Matheson at 29-30; B. Carnahan at 37 indicating that Article 51, 
paragraph 2 which prohibits direct attacks on the civilian population "may well restate current 
customary law. . . . The definition of military objectives in article 52 has already been 
incorporated in some military manuals, as well as in treaties other than the protocol; it almost 
certainly represents customary international law." It should be noted, however, that spokesmen 
for the U.S. Government have explicitly expressed disagreement with the prohibition of reprisals 
against the civilian population which is found in Article 51 as well as in Article 52, para. 1. 
Matheson, supra at 426; Remarks of Abraham Sofaer, in id. at 469. 

41.GARes. 2444 (XXIII), U.N. GAORSupp. (No. 18) at 50, U.N. Doc. A/7218 (1969). 

42. Letter of Sept. 22, 1972, supra note 25. See also THEODOR MERON, HUMAN RIGHTS AND 
HUMANITARIAN NORMS AS CUSTOMARY LAW 68 ff. (1989). 

43. See note 39 supra and accompanying text. 

44. Federal Ministry of Defence of the Federal Republic of Germany, 
Humanitarian Law in Armed Conflicts— Manual (DSK W207320067), paras. 

441-442 (1992) (English translation by German Ministry of Defence; internal citations omitted) 
[hereinafter GERMAN MANUAL] . 

45. Royal Australian Air Force, Operations Law for RAAF Commanders, DI 

(AF) AAP 1003, paras. 8-4, 8-5 (1st ed., 1994) [hereinafter RAAF MANUAL]. 

46. Director of Law/Training, Office of the Judge Advocate General, Canadian National 
Defence Headquarters, CANADIAN FORCES LAW OF ARMED CONFLICT MANUAL (Second 
Draft) , para. 516 (undated) [hereinafter CANADIAN DRAFT MANUAL] . In the introduction, the 
manual states that it was prepared on the assumption that Canada would ratify the two 1977 
Protocols Additional. Id. at i. 

47. The Army manual currently in effect was adopted in 1956 and thus does not take account 
of developments in the law of armed conflict since that date. It does, however, incorporate the 
relevant provisions from the HAGUE RULES which exempt certain categories of persons and 
objects from attack and contains some general language apparently recognizing as customary 
international law the general principles of distinction and the military objective. Examples are 
found in paragraph 25 ("[I]t is a generally recognized rule that civilians must not be made the 
object of attack directed exclusively against them."); paragraph 56 ("Devastation as an end in 
itself or as a separate measure of war is not sanctioned by the law of war. There must be some 
reasonably close connection between the destruction of property and the overcoming of the 
enemy's army."). DEPARTMENT OF THE ARMY, THE LAW OF LAND WARFARE (FM 27-10), 16, 
23 (1956). 

It is the author's understanding that the Department of Defense is in the process of preparing 
a joint service instruction on the law of armed conflict. The Judge Advocate General of the 
Army is the lead agency in this project. Conversation between the author and Hays Parks, Office 
of the Judge Advocate General of the Army. 



219 



Military Objective 



48. Department of the Air Force, International Law— The Conduct of Armed 

CONFLICT AND AIR OPERATIONS, AFP 110-31, Nov. 19, 1976, para. 5-3b(l) [hereinafter Air 

Force Pamphlet]. 

49. COMMANDER'S HANDBOOK, supra note 36, para. 5.4.2. 

50. Id. at para. 8.1.1. (emphasis supplied). 

51. Louise Doswald-Beck, The San Remo Manual on International Law Applicable to Armed 
Conflicts at Sea, 89 AM. J. INT'L L. 192, 199 (1995). 

52. DEPARTMENT OF THE NAVY, ANNOTATED SUPPLEMENT TO THE COMMANDER'S 
HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 9 (Rev. A)/FMFM 140, para. 8.1.1., 
note 9 (1989) [hereinafter ANNOTATED SUPPLEMENT] . 

53. Annotated Supplement to the Commander's Handbook on the Law of 

NAVAL OPERATIONS, NWP M4M (Formerly NWP 9 (Rev. A)), MCWP 5-21, COMDTPUP 
P5800.7, para. 8.1.1, note 9 (1997). 

54. Id., note 11. These target sets were Leadership Command Facilities; Electricity 
Production Facilities; Telecommunications and Command, Control, and Communication 
Nodes (including civil television and radio installations since they could easily be used for C 3 
backup for military purposes and were used for Iraqi propaganda); Strategic Integrated 
Air-Defense System; Air Forces and Air Fields; Nuclear, Biological and Chemical Weapons 
Research, Production, and Storage Facilities; Scud Missile Launchers and Production and 
Storage Facilities; Naval Forces and Port Facilities; Oil Refining and Distribution Facilities; 
Railroads and Bridges; Iraqi Army Units; and Military Storage and Production Sites. Id. 

55. Id. para. 8.1.1. The annotation further states that, "Whether this rule permits attacks on 
war-sustaining cargo carried in neutral bottoms at sea, such as by Iraq on the tankers carrying oil 
exported by Iran during the Iran-Iraq war, is not firmly settled. Authorization to attack such 
targets is likely to be reserved to higher authority." Id. at note 11. In this respect, Ms. 
Doswald-Beck states that participants in the San Remo Round Table "indicated that the sinking 
during the Iran-Iraq War, albeit not as frequent as those during the Second World War, should 
not be seen as the most significant precedent for an assessment of contemporary law, in view of 
the extent of violations of international humanitarian law during that conflict generally and the 
protests that ensued." Doswald-Beck, supra note 51, at 200. 

56. See, e.g., Hague IV, supra note 14, art. 27; Hague IX, supra note 15, art. 5. 

57. According to a 1940 British study of the Royal Air Force Bomber Command night 
operations, "two-thirds of all aircrews were missing their targets by over 5 miles." AIR FORCE 
PAMPHLET, supra note 48, para. 5-4d. Even the so-called "precision" daylight bombing by the 
U.S. Eighth Air Force was precise only in comparison to the night bombing by the British bomber 
force. According to an Eighth Air Force study, for the September to December 1944 period, only 
22 percent of all visually dropped bombs hit within 1,000 feet of their aim point, while only two 
percent of bombs dropped using blind navigational techniques or radar bombing fell within 1,000 
feet of their target. RICHARD HALLION, STORM OVER IRAQ: AIR POWER AND THE GULF WAR 
11-12, note 26 (1992), quoting USAAF, AAF Bombing Accuracy Report #2 (Eighth Air Force 
Operational Research Section, 1945), Chart 2, "Distribution of Effort and Results." 

58. Hamilton DeSaussure, conference remarks, in Sixth Annua/ Conference, supra note 40, at 
512; see a/50 Burrus Carnahan at 516. The United States Air Force manual seems to give some 
credence to this idea, at least with respect to attacks on civil aircraft, stating, "As a practical 
matter, the degree of protection afforded to civil aviation and the potential military threat 
represented, varies directly with the intensity of the conflict." AIR FORCE PAMPHLET, supra note 
48, para. 4-3b. 



220 






Horace B. Robertson, Jr. 



59. INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW, SAN REMO MANUAL ON 
INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICT AT SEA "EXPLANATION" 116 
(Louise Doswald-Beck ed., 1995) [hereinafter SAN REMO MANUAL "EXPLANATION"]. 

60. BOTHE ET AL, supra note 2, at 322. The San Remo Round Table was also initially divided 
between those members who wished to provide a general definition of military objectives and 
those who wished to provide a list either of vessels and objects that might be attacked or of those 
which were exempt. Their eventual solution was to proceed with a general definition, but to 
supplement it with a limited list of those vessels and aircraft which were exempt from attack, 
either by virtue of their status (e.g., hospital ships) or their employment (e.g., vessels engaged in 
missions granted special protection such as cartel vessels). See SAN REMO MANUAL 

"Explanation," supra note 59, at 114-16. 

61. "Military objectives" obviously includes combatants, although there is no explicit 
statement in Additional Protocol I to that effect. As stated by BOTHE ET AL.: 

The term "military objectives" is used in different senses in the clauses declaring the 
two basic principles. In regard to the first clause [of article 48] dealing with the principle of 
distinction the term "military objectives" is used in contrast to "civilian objects," and 
"combatants" is used in contrast to "civilians." In the last clause, however, "military 
objectives" is used as the sole permitted object of the military operations. It would, of 
course, be manifestly absurd to conclude from this somewhat imprecise drafting that 
combatants are not a legitimate object of attack. In any event, the context of Arts. 37, 41, 
42, 43(2), 51(3) and 52(2) makes it clear that combatants, as well as objects having 
military value, are included within the term "military objectives" as used in Protocol I. 

BOTHE ET AL., supra note 2, at 285. 

The ICRC COMMENTARY confirms this view, stating that "the definition is limited to objects 
but it is clear that members of the armed forces are military objectives. ..." ICRC 
COMMENTARY, supra note 22, at 635. 

Two of the military manuals that have been examined have explicitly incorporated 
"combatants" into their definitions of "military objectives." See, e.g., COMMANDER'S HANDBOOK, 
supra note 36, at para. 8.1.1; CANADIAN DRAFT MANUAL, supra note 46, at para. 516. 

62. ICRC COMMENTARY, supra note 22, at 636. 

63. Id. 

64. BOTHE, ET AL., supra note 2, at 324-5 (emphasis in original text). 

65. SAN REMO MANUAL "EXPLANATION," supra note 59, para. 40.12; L. Doswald-Beck, 
supra note 51, at 199. 

66. BOTHE ET AL., supra note 2, at 324. In a footnote supporting this statement, BOTHE ET 
AL. refer, inter alia, to the U.S. denial of claims for destruction of British-owned cotton in the 
Civil War, not on the ground that raw cotton had any value as an implement of war, "but 
because 'in the circumstances ruling at the time' it was the Confederacy's chief export and thus 
the ultimate source of all Confederate weapons and military supplies." Id. at note 15. 

67. San Remo Manual "Explanation," supra note 59, para. 40.12. 

68. ANNOTATED SUPPLEMENT, supra note 52, para. 8.1.1, note 11, citing 6 Papers Relating 
to the Treaty of Washington (Report of U.S. Agent) 52-57 (1874). 

69. Id. The San Remo Round Table also states that 

The doctrine of contraband is not applicable to exports from enemy territory. With 
regard to the latter point, there was a division of views whether measures other than 

221 



Military Objective 



blockade may be used to block exports that by sale or barter sustain the enemy's war effort. 
Even though a number of participants supported the view that today the doctrine of 
contraband may be applied to exports from enemy territory, the Round Table at this stage 
felt unable to extend the traditional law to that effect. That, however, does not prejudice 
the authority of the UN Security Council under Chapter VII of the UN Charter. 

San remo Manual "Explanation," supra note 59, at 216. 

70. Id. at para. 67.27. 

71. BOTHE ET AL., supra note 2, at 324-5. The authors illustrate their point by describing the 
Allied attacks on the Pas de Calais area of France prior to the Normandy invasion of 1944. The 
military advantage was not the reduction of German military strength in that area but rather to 
deceive the Germans as to where the invasion would take place. Id. 

72. ICRC COMMENTARY, supra note 22, at 637. 

73. Id., at 683-5; BOTHE ET AL., supra note 2, at 365. 

74. See notes 1 and 2 supra and accompanying text. 

75. See Sect. II above. 

76. Id. 

77. As far as I have been able to determine, the U.S. Navy's 1955 LAW OF NAVAL WARFARE 
MANUAL (NWIP 10-2), which was the immediate predecessor to the current COMMANDER'S 
HANDBOOK (NWP 1-14M, previously designated NWP 9), does not mention the term "military 
objective" nor is the term found in the index of ROBERT W. TUCKER, THE LAW OF WAR AND 
NEUTRALITY AT SEA (50 International Law Studies, 1955), which was published 
contemporaneously and includes the 1955 manual as an appendix. 

78. See, e.g., ch. 8, "The Law of Targeting," of the COMMANDER'S HANDBOOK, supra note 
36; TARGETING ENEMY MERCHANT SHIPPING, (65 International Law Studies, Richard J. 
Grunawalt ed., 1993); Sally Mallison & William Mallison, Naval Targeting: Lawful Objects of 
Attack, in THE LAW OF NAVAL OPERATIONS, supra note 38, ch. IX. 

79. Proces-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the 
Treaty of London of 22 April 1930, 173 L.N.T.S. 353-37 (1936), reprinted in Schindler & 
Toman, supra note 1, at 881-82. 

80. For more detailed accounts of the progression of events recounted here, see Mallison & 
Mallison, supra note 78; J. Jacobson, The Law of Submarine Warfare Today, in THE LAW OF 
NAVAL OPERATIONS, supra note 78, at 205; L.F.E. Goldie, Targeting Enemy Merchant Shipping: 
An Overview of Law and Practice, in TARGETING ENEMY MERCHANT SHIPPING, supra note 78, at 
2; Sally Mallison & William Mallison, The Naval Practices of Belligerents in World War II: Legal 
Criteria and Development, in id. at 87; Horace B. Robertson, Jr., U.S. Policy on Targeting Enemy 
Merchant Shipping: Bridging the Gap Between Conventional Law and State Practice, in id. at 338. 

81. For assessments of the meaning of the Judgment of the Nuremberg Tribunal in Admiral 
Doenitz's case with respect to the status of the law governing submarine and air attacks on 
merchant ships, see D. P. O'Connell, International Law and Contemporary Naval Operations, 44 
BRIT. Y.B. INT'L L. 52 (1970) ; Sally Mallison & William Mallison, Naval Practices, supra note 80, 
at 87; and Comments on the Mallisons' essay by Mark W. Janis and William J. Fenrick, id. at 104 
and 110 respectively. 

82. SAN REMO MANUAL, supra note 31, para. 60. 

83. See William J. Fenrick, The Military Objective and the Principle of Distinction in the Law of 
Naval Warfare, in REPORT, COMMENTARIES AND PROCEEDINGS OF THE ROUND-TABLE OF 
EXPERTS ON INTERNATIONAL HUMANITARIAN LAW APPLICABLE TO ARMED CONFLICTS AT 
SEA, Ruhr-Universitat Bochum, Nov. 10-14, 1989, 31-37 (Wolff Heintschel von Heinegg ed., 

222 



Horace B. Robertson, Jr. 



1991), for a comparison of the rules contained in the Canadian, French, Australian and United 
States Manuals. The subsequently issued German manual conforms essentially to the same 
listing. GERMAN MANUAL, supra note 44, at para. 1025. 

84. SAN REMO MANUAL, supra note 31, at para. 67. 

85. Id. 

86. COMMANDER'S HANDBOOK, supra note 36, para. 8.2.2.2. See also para. 8.3.1 which 
contains regard to attacks on enemy merchant ships by submarines. 

87. Frits Kalshoven, Comments on H. B. Robertson's Paper: U.S. Policy on Targeting Enemy 
Merchant Shipping: Bridging the Gap Between Conventional Law and State Practice, in TARGETING 
ENEMY MERCHANT SHIPPING, supra note 78, at 358, 362. 

88. Hague Air Rules, supra note 19, at 207. 

89. See id., arts. 49-60. 

90. SAN REMO MANUAL, supra note 31, para. 63. 

91. See SAN REMO MANUAL, supra note 31, paras. 53 and 56. Compare COMMANDER'S 
HANDBOOK, supra note 36, para. 8.2.3; GERMAN MANUAL, supra note 44, para. 1036; 
CANADIAN DRAFT MANUAL, supra note 46, para. 628. For a more extensive discussion of the 
status of civil aircraft in armed conflict, see Horace B. Robertson, Jr., The Status of Civil Aircraft in 
Armed Conflict, _ ISR. Y.B. I'NTL L. (1998) (forthcoming). 

92. Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments 
(Roerich Pact), Apr. 15, 1935, 49 Stat. 3267, reprinted in Schindler and Toman, supra note 1, at 
737; Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 
14, 1954, 249 U.N.T.S. 216, reprinted in Schindler and Toman, supra note 1, at 745. 



223 



XI 



Crafting the Rules of Engagement 

for Haiti 



Stephen A. Rose 

There was a lot of pressure on the SJA to come up with the right 
ROE — not only working with the local staff — but in this case, working 
directly with the Department of Defense. But the real burden that falls on 
the SJA is advising the commander and providing the means for the 
commander to translate ROE for that Marine on the ground. 

— Lieutenant General Anthony Zinni 

Marine Corps Gazette 

February 1996 



D 



URING THE COURSE OF A MILITARY CAREER, most of us have at 
least one occasion to stand at a crossroad of history — to participate 
directly in shaping an event that might someday be studied in tenth grade 
history books. My turn came in 1994. The event was Haiti. 

By lucky timing, my tour as Staff Judge Advocate (SJA) for the U.S. Atlantic 
Command (USACOM) , which then included the Caribbean in its geographic 
area of responsibility, began in the spring of 1994 — about the same time when 
serious planning had begun for military intervention in Haiti. Aside from good 
timing, I was fortunate in two other ways. 



Crafting the Rules of Engagement for Haiti 



First, the USACOM Commander-in-Chief, Admiral Paul Miller, believed in 
using his legal staff in a proactive mode. As a result, the SJA became a charter 
member of the inner circle tasked with developing the campaign plan. This 
early entree was useful when it became time to craft rules of engagement (ROE) 
embodying the commander's intent. What could not be foreseen, however, was 
that the ROE for Haiti would require rapid retooling as the mission shifted from 
a nonpermissive, forcible entry to a permissive administrative walk-on 
involving cooperation with Haitian forces. This initial phase of the Haiti 
campaign proved to be a harbinger of some of the ROE conundrums that were 
encountered during the later UN withdrawal from Somalia and the problems 
currently being encountered in Bosnia. 

My second slice of good fortune was in having Professor Jack Grunawalt as 
an ROE mentor — both during my time as a student at the Naval War College, 
and, since then, on an informal basis for aid when difficult questions of 
interpretation and precedent arise. He has long been my "pragmatics" teacher, 
especially adept at blending ROE theory with practical solutions for real-world 
challenges. His thousands of hours of teaching ROE issues have influenced 
several generations of operational lawyers involved in military campaigns. 

Those who have read this far will recognize that my essay differs in tone and 
content from other materials in this liber amicorum. It is part homage to Jack 
Grunawalt, part analysis of selected ROE issues, and part reportage of what 
took place behind the scenery during the initial phase of the Haiti campaign. 
Several excellent synopses of the Haiti ROE have already been written. 1 My 
goal is to complement these studies by digging deeper along unmined veins. 
About 90 percent of the internal DoD deliberations over the final language of 
the Haiti rules — a dialogue often more spirited than commentators 
realize — arose from 10 percent of the draft text. 

Every ROE package has a handful of clauses that serve as tone-setters and 
fulcrums for an operation. In essence, ROE become the umbilical cord 
connecting the National Command Authorities (NCA) to the lowliest Private 
in harm's way. ROE also serve as a reliable barometer, especially in military 
operations other than war, for gauging whether political goals and military 
means are properly synchronized. If Clausewitz were reviewing recent 
operations in Somalia, Haiti, and Bosnia, he would likely be astonished by the 
finicky degree to which the U.S. military calibrates its ROE. 2 What follows are 
two vignettes illustrating what happened behind the planning curtain when 
lawyers, operators, and policy makers sought to conjure up optimal ROE for the 
beginning of the Haiti campaign. 

226 



Stephen Rose 

Friend, Foe, or Freelance? 

In the spring of 1994, USACOM activated Joint Task Force (JTF)180, 
spearheaded by the XVIII Airborne Corps, to develop an operational plan 
(OPLAN 2370) for forced entry into Haiti. It was unclear how much armed 
opposition could be expected from the military junta then running the country, 
but the JTF 180 plan relied on surprise and overwhelming force to reduce U.S. 
casualties 3 by minimizing the period of actual engagement. A draft of the ROE 
annex for this plan was ready by mid-June. 

One cornerstone of the proposed ROE was designation of the armed forces 
of Haiti as "hostile" — i.e., they were subject to attack on recognition without 
first having to commit a hostile act or demonstrate hostile intent against U.S. 
forces. The troublesome phrase underlying this concept turned out to be "on 
recognition." It was relatively easy to categorize Haiti's armed forces. They 
consisted of the Forces Armees D'Haiti (FADH) and its auxiliary, the 
well-armed National Police, known as the FRAPH. For ROE purposes, all other 
Haitians were deemed noncombatants. 

As the summer of 1994 wore on, however, this distinction between Haitian 
armed forces and civilians began to blur. By August, U.S. intelligence reports 
noted that many members of the FADH had begun wearing civilian clothes 
under their uniforms, and almost all of the FRAPH had discarded their police 
uniforms in favor of mufti while on duty. Reports also identified the formation 
of a civilian militia loosely organized by the FADH. This militia had no uniforms 
or distinctive badges, but was expected to be issued weapons in advance of 
perceived hostilities and to function as a kind of Haitian Volkssturm to defend 
the country. 

In reaction to this development, ROE planners at USACOM began to draft 
clarifying language to identify "hostile" Haitian forces — now running the 
gamut from regulars (FADH) to paramilitary (FRAPH) to civil militia — in terms 
of weaponry rather than apparel. This attempted refinement also proved to be 
problematic. In mid-August, the U.S. Defense Attache at Port au Prince 
estimated that Haitian civilians possessed at least 40,000 firearms. 4 Given the 
chronic violence and vigilantism that plagued the country, most Haitians who 
could afford to do so had armed themselves. The typical family arsenal 
consisted of machetes, a shotgun or rifle, several handguns, and sometimes 
automatic weapons and grenades. Another factor fueling the potential for 
violence was continuing antagonism between the Haitian upper classes, which 
supported the military junta, and the followers of exiled President 

227 



Crafting the Rules of Engagement for Haiti 



Jean-Bertrand Aristide, who thirsted to settle their grievances with the small 
clique in economic and political power. 

Thus, U.S. planners had to anticipate that the initial stages of a forcible 
entry might encounter armed elements of the Haitian populace pursuing 
different goals: some ready to engage American forces; some eager to take 
advantage of a chaotic situation to carry out acts of political revenge or looting; 
and some trying to defend families and property. All were likely to be armed, 
and most would be in civilian attire. 

In such a confused environment, choice of ROE serves to allocate risk. 
Status-based ROE, in which pre-declared enemy forces are declared hostile and 
may be shot on sight, minimize the risk to U.S. troops but may lead to 
significant civilian casualties if enemy forces are not readily distinguishable 
from the general populace. Conversely, conduct-based ROE, which typically 
authorize force only in response to hostile acts or intentions, tend to reduce 
civilian casualties while increasing the risk to U.S. forces. Given the domestic 
political controversy swirling around the proposed military intervention in 
Haiti, the United States could ill afford American casualties; but neither could 
it permit a humanitarian intervention, only reluctantly sanctioned by the 
United Nations, to result in a bloodbath for Haitians. 

In early September, the legal staffs at USACOM and in the Chairman of the 
Joint Chiefs of Staff s office continued work on ways to bridge the gap between 
status-based and conduct-based ROE for Haiti. The challenge was to develop a 
basic engagement criterion that balanced the risk of casualties and had clear 
meaning for the troops involved. The two legal staffs began at opposite ends of 
the ROE spectrum but eventually converged to a shared solution. 

USACOM continued to press for declaration of Haitian armed forces as 
hostile (i.e., status-based ROE) but recommended that identification of 
adversary forces be pegged to weapons rather than to uniforms, badges, or 
other customary indicia. The operative sentence of our recommendation was 
couched in terms of a presumption: 

You may presume that civilians in public armed with crew-served weapons, 
automatic weapons, rifles or shotguns are members of the FADH or National 
Police, and therefore may be treated as hostile. 

The Joint Staff favored conduct-based ROE even for the initial hostilities 
phase and proposed that the final phrase in the USACOM draft be modified to 
read: ". . . and therefore should be treated as potentially hostile and dealt with 
accordingly using all measures short of force if possible." 6 In essence, this was a 
self-defense regimen dressed up with some extra adjectives and adverbs to 
convey a more assertive tone. USACOM continued to press the issue. 

228 



Stephen Rose 

The Joint Staff then offered other modifications to stiffen the self-defense 
language: 

. . . and therefore should be treated as potentially hostile. 

A. Where hostile acts or intent are observed, deadly force is authorized. 

B. Where no hostile intent or acts are observed, all measures short of deadly 
force, consistent with mission accomplishment and security of the force, may be 
employed. 7 

Albeit self-defense with an attitude, on the whole this was still self-defense. 8 
USACOM continued to press. 

As a contingency measure, discussion shifted to refining USACOM's 
proposal for a weapon-based rule. Since it was known that a sizable portion of 
the Haitian populace lawfully owned and openly carried firearms, it was clearly 
overreaching to declare all armed civilians encountered in public areas as 
hostile. At the same time, it was equally clear that persons armed with 
crew-served or automatic weapons could reasonably be presumed to be 
members of the Haitian armed forces. The real debate arose over how to treat 
Haitians armed with shotguns and rifles. 

This became known in joint legal circles as the "long-gun" dispute. 
USACOM's original position had been to include both rifles and shotguns in 
the adversary identification matrix. The Joint Staff concluded, with some 
justification, that range rather than length of weapon should be the 
determining factor. USACOM planners yielded, but fretted that U.S. troops 
would be hard-pressed to distinguish rifles from shotguns in time to apply 
hostilities ROE to the former and self-defense ROE to the latter, especially in 
the uncertain light of the first hours of a pre-dawn assault. 

Three days before the scheduled attack date on 19 September, the NCA 
approved the final ROE package for a nonpermissive entry. The relevant rule is 
a hybrid of options debated during the preceding fortnight: 

You may presume that civilians in public armed with crew-served weapons, 
automatic weapons, or rifles are members of the FADH, National Police, or 
paramilitary groups, and therefore may treat them as hostile. Civilians in public 
armed with shotguns or pistols are presumed to be potentially hostile, but deadly 
force is not authorized unless such persons use or threaten to use armed force 
against U.S. troops, U.S. citizens, or designated foreign nationals. 9 

229 



Crafting the Rules of Engagement for Haiti 



In retrospect, it is probably fortunate that a last-minute agreement with the 
Haitian leaders eliminated the need to use these ROE. 10 To be effective, such 
rules need to model real-world activities and choices. Despite weeks of 
discussion, the judge advocates involved in crafting the ROE for a pre-dawn 
airborne assault on Haiti were never fully satisfied that they had captured the 
fractal messiness of what lay ahead. The tradeoffs built into the final package 
strongly supported mission accomplishment — rapid elimination of armed 
resistance in Haiti — while fixing a reasonable, if somewhat artificial, 
breakpoint to distinguish noncombatants. Although OPLAN 2370 belongs to 
the dustbin of history, the ROE issues that surfaced during its construction were 
not unique and continue to challenge U.S. planners in current operations. 

The Specter of Mission Creep 

On 18 September 1994, U.S. forces were primed for a nonpermissive, forced 
entry into Haiti using hostilities ROE. The following day, pursuant to the 
Carter Agreement, they entered Haiti permissively under peacetime ROE. 
Their basic mission was to preserve essential civic order and establish a secure 
environment for the restoration of Haiti's legitimate government. 11 

In this effort to maintain public order, U.S. forces had an unlikely partner, 
their erstwhile adversary of the previous day, the FADH. The Carter 
Agreement had reserved a significant role for the FADH to continue routine 
police duties during the transition period. Direct involvement in foreign law 
enforcement was a task that U.S. military planners were loathe to tackle. 
Recent experience with "mission creep" in Somalia reinforced the notion that 
law enforcement responsibilities in a shattered country often become an 
operational tar baby for military units. 

On the eve of the American entry into Haiti, it appeared that U.S. policy 
makers were comfortable treating "essential civic order" as a macro 
requirement to prevent widespread chaos and loss of life within the indigenous 
population rather than as a guarantee of U.S. protection for individual citizens. 
On 20 September, however, one of the more notorious incidents of the Haiti 
campaign ended up trumping, at least temporarily, DoD's deep-rooted anxiety 
about mission creep. Using brute force, Haitian police dispersed a crowd o( 
pro-Aristide demonstrators which had gathered in a festive mood at the edge of 
a marshalling area for arriving U.S. units. Also on hand were numerous 
representatives from the media, who videotaped a street vendor being clubbed 
to death while U.S. troops stood by passively. Newspapers and television 
networks reported the incident extensively, lambasting policy makers and 

230 



Stephen Rose 

military planners for crippling troop effectiveness with inadequate ROE. 12 
When new ROE cards appeared the next day, authorizing U.S. forces to 
intervene to prevent death or serious injury to Haitians, news reports 
understandably attributed this modification to the media uproar of the day 
before. 13 

The irony is that this "change" in ROE had already been set into motion on 
18 September, before the first soldier set foot in Haiti, and had anticipated the 
sort of incident that actually happened. Unfortunately, staffing delays held up 
execution of the policy shift and dissemination of the change in ROE until a day 
after the fatal beating. In part, this delay was procedural — stemming from the 
laborious nature of the review process for modifying engagement rules of 
national importance. In part, the delay was substantive — a by-product of an 
ongoing debate about the role of the FADH during the interregnum period and 
the need to disarm Haitian society. To understand how all these variables 
interacted to create the new ROE card that appeared on 20 September, it is 
worth a short tour inside the ROE "sausage factory" that existed at the time. 

From the beginning, military planners had recognized that the issue of 
Haitian-on-Haitian crime would be crucial. By June 1994, the ROE cards 
designed for both the hostilities and post-hostilities phases of the 
nonpermissive, forcible entry plan, Operation Uphold Democracy (OPLAN 
2370 for JTF 180), contained explicit guidance for the troops: 

Detain persons suspected of committing a serious criminal act (any act 
committed after H-hour that would constitute the offense of homicide, 
aggravated assault, arson, rape, robbery, burglary, or larceny if committed in the 
United States). Use the minimum force necessary, up to and including deadly 
force. Use only non-deadly force to detain civilians suspected of committing a 
serious criminal act that does not pose a serious threat to human life (e.g., 
larceny). 14 

The analogous card for the permissive entry plan, Operation Maintain 
Democracy (OPLAN 2380 for JTF 190), contained no such guidance, which 
explains why U.S. forces looked on passively as the Haitian police administered 
a five-minute fatal beating to the vendor on 20 September. The closest 
approximation was a rule allowing intervention in a defensive mode. 

You may use necessary force to stop, disarm, and detain members of the Haitian 
military, police, other armed persons, or other persons committing hostile acts or 
showing hostile intent. Stop and detain other persons who interfere with your 



mission. 15 



231 



Crafting the Rules of Engagement for Haiti 



In this context, the range of what could be protected was set out in a prefatory 
note to the soldier card: 

Nothing in the ROE limits your right to use necessary force to defend yourself, 
your fellow servicemembers, your unit, other JTF personnel, key facilities, and 
property designated by your commander. 16 

Armed with these ROE, it would have taken a bold commander to interpret 
them on D+l as including protection of Haitian nationals. 

So, how did the disconnect arise between OPLAN 2370 and OPLAN 2380? It 
is misleading to suggest that OPLAN 2370 was more bellicose due to its primary 
focus as a forced entry plan; the same intervention rule showed up in the 2370 
post-hostilities card, which covered a range of civil-military operations 
equivalent to those being dealt with in OPLAN 2380. Part of the answer lies in 
the rigorous compartmentalization of OPLAN 2370. Although the two plans 
were developed in parallel, the JTF 180 team fleshing out OPLAN 2370 could 
not share ROE with its JTF 190 counterparts preparing OPLAN 2380 until a few 
days before the execution date. 17 USACOM had visibility over both plans as 
they developed, but overlooked the ROE difference until about two weeks 
before the expected D-Day. First realization of the difference in early 
September did not set off alarm bells within the USACOM staff, since the 
working expectation at that time was that OPLAN 2370/JTF 180 ROE would 
control during the first stages of any incursion. Nonetheless, the ROE team at 
USACOM began to draft a request to the Joint Staff to crosswalk relevant JTF 
180 rules into JTF 190. 

At this point, approximately 10 September, matters bogged down. 
USACOM and JTF 190 quickly agreed on the need for authority to intervene in 
Haitian-on-Haitian violence. Both sides concurred that deadly force was 
appropriate, if necessary, to prevent death or serious physical injury. CJTF 190 
wanted to go a step further, however, and suggested that the original 
formulation, allowing only non-deadly force to detain Haitians committing 
property crimes, might be too weak to control looting. After further discussion, 
a distinction was made between fleeing looters (who could not be engaged with 
deadly force) and looters who posed a threat to U.S. personnel seeking to 
detain them (deadly force authorized in self-defense, if necessary). In essence, 
neither side was eager to push for a rule of engagement permitting thieves to be 
shot in the back. 18 

A similar question arose regarding disarmament. USACOM directed JTF 190 
to develop an assertive weapons control program to reduce the potential for 
street violence. Haitian law generally allowed its citizens to be armed in public, 

232 



Stephen Rose 

but JTF 190's approved ROE specified that a soldier "may use necessary force to 
stop [and] disarm . . . armed persons." 19 On 10 September, the Staff Judge 
Advocate for JTF 190 sent me a fax seeking clarification on the degree of force 
that could be used to execute a disarmament policy. 

This command [JTF 190] is highly concerned about possible limitations on its 
ability to disarm the population. Specifically, may deadly force be used, if 
necessary, when an armed civilian flees during our attempt to disarm? 20 

This question revisits in another guise the fleeing looter scenario discussed 
above. By suggesting that continued possession of a weapon might per se be a 
threat to either the security or mission of the force, JTF 190 was seeking a return 
to status-based ROE for a limited category of individuals. A few days later, the 
CJTF 190 raised this same issue with the USACOM Deputy CINC, arguing the 
existence of an ROE-mission mismatch: 

For instance, if a small patrol comes around a corner in Port-au-Prince and there 
is a Haitian ten yards away with a rifle who then runs, the patrol cannot use 
deadly force to stop him. Thereafter, all Haitians with weapons will run, and the 
disarmament mission cannot be accomplished. 21 

For several days more, discussion continued over the best way to calibrate 
the ROE to critical sub-tasks such as disarmament, curfew enforcement, and 
deterrence of looting, all of which supported the main mission of establishing a 
secure and stable environment. By D-2, 17 September, USACOM sent the Joint 
Staff its package of recommended ROE changes to "insure a seamless 
hand-over between CJTF 180 and CJTF 190." 22 The Chairman, serving as 
interlocutor for the Secretary of Defense, 23 messaged USACOM on D-Day, 19 
September, that the changes had been approved as submitted. 24 In a nutshell, 
deadly force was authorized to detain persons observed committing crimes 
involving death or serious injury; non-deadly force was available to control 
property crimes, enforce curfews, stop looting, and disarm Haitians. 25 Hours 
later, USACOM signaled approval to JTF 180 and JTF 190 headquarters, 26 and 
dissemination to troops in the field took place during the next 24 hours, but not 
in time to prevent the beating death on D+ 1. 

On first reflection, this one-day dissemination period may seem to be slow, 
but the implementation process involved training deployed troops to cope with 
an expanded set of responsibilities. Explaining whether robbery, which is a 
crime involving the taking of property from someone by force, authorized a 
deadly or non-deadly intervention response was one of several adventures that 

233 



Crafting the Rules of Engagement for Haiti 



the JTF 190 legal advisors faced in sorting out the new ROE for their 
commander and troops. 27 This overall episode aptly illustrates the 50 percent 
rule that can plague ROE development — on controversial issues, each 
successive review level tends to use up half of the remaining time before 
D-Day. As a result, most of the available time gets absorbed in policy 
deliberations, often creating a frantic scramble when it comes time for 
dissemination to the trigger-puller in the field. 

In retrospect, it also seems that the long debate about mission creep led to 
compromises that were more lawyer-friendly than troop-friendly. As Jack 
Grunawalt always hammered home in his lectures, ROE should be written for 
field use, not CNN consumption. Before Haiti, I had always believed that the 
primary function of ROE was to guide the behavior of the mythical Private 
Smudlap in the field. I realize now that draft ROE also exert pressure on the 
other end of the chain of command by forcing senior commanders and the 
NCA to come to closure regarding their policy for use of force. 

The two vignettes described in this essay reflect the tensions that typically 
arise when crafting ROE for a highly visible, contentious operation. For 
example, at what point does the push for thoroughness and certainty in the 
rules end up undercutting an on-scene commander's flexibility to deal with 
unexpected situations? Conversely, when does too much flexibility become 
unwelcome ambiguity? 28 

These tradeoffs are especially challenging in the murky world of peace 
operations. ROE is both art and science. There can be no universal recipe, since 
the rules always need to be tailored to a specific context; even so, the basic ROE 
themes and ingredients transcend geopolitical atmospherics. The lessons 
learned in Somalia served as a useful head start for those of us working up the 
Haiti ROE. Similarly, the choices made for Haiti, both successful and 
unsuccessful, have added to the accumulation of experience available for 
future planners. 



Notes 



1. See Army Center for Law and Military Operations, Law and Military Operations in Haiti, 
1994-95: Lessons Learned forjudge Advocates 29-38 (Oct. 3, 1995 draft) [hereinafter CLAMO 
Study]. See also Office of the Staff Judge Advocate, 10th Mountain Division (Light Infantry), 
Operation Uphold Democracy, Multinational Force Haiti After- Action Report, 29 July 1994 to 
13 January 1995, at 5-6 (May 1995) [hereinafter 10th Mountain AAR]. 

2. Karl von Clausewitz's classic precept of war as a continuation of politics by other means 
was coined in an era when nations treated war as a reasonable and even noble attribute of 
sovereignty. In one sense, the elaborate attention which the United States gives to formulating 
detailed rules of engagement for its military forces is the full flowering of Clausewitz's principle. 

234 



Stephen Rose 

At the same time, Clausewitz might view our preoccupation with the rule of law as excessive and 
sympathize with the pungent conclusion of one recent commentator that "[a]ttempts to bring 
our wonderful, comfortable, painstakingly humane laws and rules to bear on broken countries 
drunk with blood and anarchy constitute the ass end of imperialism." Ralph Peters, After The 
Revolution, PARAMETERS, Summer 1995, at 13. 

3. For the record, it should be noted that all the intervention plans for Haiti called for a 
multinational force. Eventually, more than 3,000 personnel from 32 other countries joined the 
U.S. effort in Haiti. During the crucial period from April-September 1994, however, the military 
planning and initial execution phase of the intervention were almost exclusively a U.S. project. 

4. Message, U.S. Defense Attache Office, Port au Prince, Haiti, Subj: Weapons Commonly 
Held by Civilians (161839Z Aug 94). 

5. Fax Memorandum from Staff Judge Advocate, U.S. Atlantic Command, to Legal Advisor 
for Chairman, Joint Chiefs of Staff (Sept. 6, 1994). 

6. Fax Memorandum from Legal Advisor for Chairman, Joint Chiefs of Staff to Staff Judge 
Advocate, U.S. Atlantic Command (Sept. 7, 1994). 

7. Notes taken by Staff Judge Advocate, U.S. Atlantic Command, of telephone call from 
Legal Advisor for Chairman, Joint Chiefs of Staff (Sept. 6, 1994). 

8. The phrase "consistent with mission accomplishment and security of the force" is the 
kind of equivocation that gives commanders a headache. Seen in the best light, such qualifiers 
provide flexibility to deal with unforeseen contingencies. Seen in the worst light, they seem to be 
weasel words cueing the commander that his judgment will be questioned if matters go 
badly — e.g., if there had been substantial U.S. or Haitian casualties. 

9. See CLAMO Study, supra note 1, at app. G for the text of the JTF 180 ROE card for 
nonpermissive entry. 

10. Id. at 11 (discussion of the agreement signed on Sept 19, 1994, by former President 
Carter and Emile Jonaissant, the military-appointed president of Haiti) [Carter Agreement] . 

11. See U.S. Atlantic Command, Operation Uphold Democracy: U.S. Forces in Haiti (May 
1997) (monograph prepared by USACOM command historian as after-action report of Haiti 
operations 1994-96), at 16-19. 

12. See, e.g., Haitian Police Attack Crowd: U.S. Troops Watch, WASH. POST, Sept. 21, 1994, at 
Al; Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.l.'s 
Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at Al. 

13. See, e.g., U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept 22, 1994, at Al; 
The G.l.'s and the "Rules of Engagement," N.Y. TIMES, Sept. 22, 1994, at A13. 

14. Headquarters, Joint Task Force 180, Tab F (draft ROE card for hostilities phase) and 
Tab G (draft ROE card for civil-military operations) to Appendix 8 to Annex C to JTF 180 
OPLAN Qune 13, 1994). 

15. See CLAMO Study, supra note 1, at app. I. 

16. Id. The entire ROE card was reprinted on 23 Sept. 1994 in THE WASH. TIMES at A20. 

17. See 10th Mountain AAR, supra note 1, at 5. 

18. The one exception to this rule was "mission-essential property" designated by the 
commander, which could be protected with deadly force. The definition of mission-essential 
property usually encompassed weapons, explosives, cryptological equipment, classified material, 
etc. 

19. See CLAMO Study, supra note 1, at app. I. 

20. Fax Memorandum from Staff Judge Advocate, JTF 190 to Staff Judge Advocate, 
USACOM, at 1 (Sept. 10, 1994). 

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Crafting the Rules of Engagement for Haiti 



21. Fax Memorandum from Commanding General, JTF 190 to Deputy Commander in 
Chief, USACOM, at 3 (13 Sept. 1994). 

22. Message, Commander-in-Chief, USACOM, Subj: ROE Request Serial One (170008Z 
Sep 94). 

23. Technically, the chain of command for approval of national-level ROE runs from a 
geographic commander-in-chief, such as CINCUSACOM, directly to the Secretary of Defense. 
In practice, the Chairman of the Joint Chiefs and his staff serve as a coordinating filter for 
operational matters between the CINCs and the Secretary. 

24. Message, Chairman, Joint Chiefs of Staff, Subj: Approval of ROE Request Serial One 
(190450ZSep94). 

25. ROE modifications were only one aspect of the larger debate over mission creep. In early 
September, USACOM developed the following matrix of activities to summarize the level of 
military involvement in various police functions, during the period before the legitimate 
government of Haiti was scheduled to return: 



Police Activity 



Current Haitian 
Police Involvement 



U.S. Military Involvement 



(Apolitical) 



Traffic control 

Domestic disputes 

Minor crime (Shoplifting) 

Major property crime 
(larceny, burglary) 

Personal violence crime 
(homicide, aggravated 
assault, arson, robbery) 



Yes 
Yes 
Yes 
Yes 

Yes 



Only to support military mission 

No 

No 

Only when observed, non-deadly force 
authorized to detain perpetrator 

Only when observed, deadly force 
authorized to detain perpetrator 



(Civil Disorders) 


Peaceful demonstrations 


Yes 


No 


Violent demonstrations 


Yes 


Yes, if required for force protection or 
mission accomplishment 


Major civil disorder (riots, 
looting) 


Yes 


Yes 


(Special Situations) 


Hostage rescue 


Yes 


Yes, if subject is on protected persons list 


Detention 


Yes 


Yes 


Forensic investigations 


Yes 


No 


Prisons/Jails 


Yes 


No 



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Stephen Rose 

26. Message, Commander-in-Chief, USACOM, Subj: ROE Change Serial One (19082 1Z 
Sep 94). 

27 . In addition to the obvious training challenge, the physical act of printing and distributing 
new ROE cards to every service member in the JTF during the first day in a foreign country was, 
by itself, a feat requiring considerable energy and coordination. See CLAMO Study, supra note 1, 
at 33. 

28. ROE have multiple "users" — policy makers, military commanders, troops, and curious 
onlookers such as the media. Ideally, the troops want clear, simple rules stacked like 
commandments on a 3"x5" card. Commanders want a well-equipped ROE tool kit inside a 
flexible framework. Operational lawyers want the ROE package to be a thorough, seamless 
whole without loose ends or gaps — i.e., a product not requiring intricate glosses. The NCA 
wants all of the above, plus rules that translate into useful sound bites for the inevitable media 
grillings. 



237 



XII 



Clipped Wings: 

Effective and Legal No*fly Zone 

Rules of Engagement 



Michael N. Schmitt 



Y7* 

M REED OF THE STALEMATE that resulted from opposing bipolar 
J-L superpowers wielding off-setting veto power in the United Nations 
Security Council, the enforcement regime envisioned by the drafters of the UN 
Charter in 1945 is slowly becoming a reality. 1 One of the tools that has been 
fashioned to coercively compel desired norms of international behavior is the 
no-fly zone. 2 Its use has challenged traditional notions of sovereignty, while 
clarifying the operational code regarding those actions which are appropriate 
responses to threats to the peace, breaches of the peace, or acts of aggression. 3 

This article will explore how best to craft effective and legal rules of 
engagement (ROE) for no-fly zones. Rules of engagement are the means 
governments use to set forth the circumstances in which their military units 
and personnel are authorized to use force, and, if so, how. 4 They represent the 
intersection of policy, law, and operational concerns at the most fundamental 
level of international relations. This is particularly true for no-fly zone ROE, 
which govern operations intended to deny a sovereign State the use of its own 
airspace. 



Clipped Wings 



Before exploring this relatively new enforcement mechanism, two brief 
caveats are in order. First, it is not the purpose here to assess the legitimacy of 
such zones under international law, either generally or as to specific operations. 
Doing so would necessitate an in-depth analysis of the UN Charter and 
customary international law that is well beyond the purview of this article. 
Rather, the goal is to highlight factors which may contribute to safe, successful, 
and legal enforcement, assuming, arguendo, that a zone is established lawfully. 
Second, because the rules of engagement for no-fly zones implemented since 
1991 remain classified, 5 the play of ROE in actual operations will be referred to 
only rarely. Instead, the article articulates broad principles which apply to 
no-fly zones wherever situated. It is first necessary, however, to set the stage by 
describing no-fly zones themselves. 

No'Fly Zones 

A no-fly zone is a de facto aerial occupation of sovereign airspace in which, 
absent consent of the entity authorizing the occupation, only aircraft of the 
enforcement forces may fly. 6 Violators may be forced out of the zone or, in 
extreme cases, shot down. No-fly zones should not be confused with aerial 
operations designed to enforce economic sanctions against a target State. For 
instance, following the Iraqi invasion of Kuwait in 1990, the United Nations 
imposed an embargo on Iraq and Kuwait that eventually encompassed the 
aerial regime. 7 Such an action only prohibits transit of aircraft carrying cargo 
into or out of a designated area. In other words, it delineates boundaries which 
certain aircraft may not cross; the restriction is linear. By contrast, a no fly-zone 
restricts flight within a designated area. Its coverage is three dimensional. 

Enforcement of a no-fly zone presupposes the possible use of force in 
response to a violation. As the most severe sanction available in international 
law, the circumstances under which it may be resorted to are highly 
circumscribed. By a restrictive interpretation of the UN Charter, there are but 
two. 

The first is pursuant to a Chapter VII mandate. 8 Under Article 39 of that 
chapter, the Security Council determines whether a "threat to the peace, 
breach of the peace, or act of aggression" exists. 9 When it does, the Council 
may "call upon the parties concerned to comply with such provisional measures 
as it deems necessary or desirable." 10 It need not do so, however, and may 
proceed directly to the imposition of "measures not involving the use of armed 
force," such as interruption of aerial "means of communication." 11 In the event 
the Security Council determines that non-forceful measures would be or have 

240 



Michael N. Schmitt 



proved inadequate, it may authorize the United Nations, regional 
organizations, or member States to use force under Article 42 to restore or 
maintain peace. Specifically cited in the article is "such action by air, sea, or 
land forces as may be necessary to maintain or restore international peace and 
security . . . [including] . . . demonstrations, blockades, and other operations by 
air, sea, or land forces of Members of the United Nations." 12 It is Article 42 that 
provides the specific legal basis for the use of force in the mission accomplishment 
rules of engagement for no-fly zones. 13 

Should the Security Council decide to authorize military action under 
Chapter VII, it may do so in one of three ways. First, it may send in "Blue 
Helmets," i.e., national forces under UN command and control (C2); certain 
United Nations Protection Force (UNPROFOR) operations in the former 
Yugoslavia, for example, were eventually conducted under Chapter VII. 14 
Alternatively, it may defer to a regional organization to take the lead in 
enforcement action. For instance, the NATO- controlled Implementation 
Force (IFOR) replaced UNPROFOR following execution of the Dayton Peace 
Agreement in 1995. 15 Finally, the Security Council may authorize member 
States to take action individually or collectively to implement a particular 
mandate. The most notable example of this approach was Operation DESERT 
STORM. 16 

The second basis for the use of force is self-defense in response to an armed 
attack. This authorization is found in Article 51 of the Charter. 17 Albeit 
visionary, the drafters of the Charter were realists. Understanding that Chapter 
VII action might not be feasible or likely in all circumstances, they 
acknowledged the inherent right of States to defend themselves, and other 
States, until such time as the Security Council acted. Article 5 1 provides the 
legal basis for self-defense rules of engagement in effect during no-fly 

• 18 

operations. 

A liberal interpretation of the Charter would allow for a third use of force, 
non-consensual intervention into another State for humanitarian purposes. 
The legality of humanitarian intervention in international law is an unsettled 
issue, for it flies in the face of traditional notions of sovereignty and territorial 
integrity. 19 It is particularly controversial if conducted without the blessing of 
the Security Council. 20 When authorized by the Council on the ground that 
the internal actions in question constitute a threat to or breach of international 
peace under Article 39, humanitarian intervention is somewhat less 
contentious, although not universally accepted. 21 The no-fly zones over Iraq 
have been justified in part on this basis. 22 

241 



Clipped Wings 



Since 1991, there have been three no-fly zone operations. 23 The first two 
were the products of the way the Gulf War ended. In the cease-fire talks at 
Safwan, the Deputy Chief of Staff for Iraq's Ministry of Defense, on being 
informed that aircraft would not be permitted to fly, queried whether the 
prohibition extended to helicopters. He argued that due to the conditions of 
the roads and bridges following the highly effective Coalition air campaign, 
helicopter flights were necessary for transport of Iraqi officials. General 
Norman Schwarzkopf agreed to permit the use of helicopters, although he 
restricted them from flying in areas occupied by Coalition forces. 24 

Soon after the cease-fire, Kurdish groups in the north and Shi'as in the south 
revolted. 25 A brutal suppression of both uprisings followed, in which 
helicopters were used extensively. The Kurds fled into the harsh 
mountainous terrain along the Turkish-Iraqi border. Faced with mounting 
international pressure to come to their assistance, in part the product of a 
perception that the Kurds and Shi'as had acted in reasonable expectation of 
Coalition support, 27 the Security Council adopted Resolution 688. It labeled 
the suppression of the Kurds a threat to "international peace and security in the 
region," insisted that Iraq allow humanitarian relief into the area, and 
demanded that Iraq cooperate with the Secretary-General to realize these 
goals. 28 

Operation PROVIDE COMFORT resulted, and in April 1991 relief flights 
began dropping supplies to the Kurds as forces of a 13 -country coalition 
entered northern Iraq and established a security zone from which the Iraqis 
were directed to withdraw. 29 In order to provide relief to Kurdish groups under 
attack and ensure the security of troops on the ground, a no-fly zone was 
established by the Coalition within Iraq north of the 36th parallel. 30 The 36th 
parallel was an easily understood demarcation that incorporated much of the 
territory in which the Kurds lived. 31 Iraqi forces were notified of the zone by 
demarche. Thereafter, any Iraqi aircraft, whether fixed-wing or helicopter, 
entering the area without prior authorization risked being shot down. 

Aircraft of Turkey, France, the United Kingdom, and the United States 
began flying from Incirlik Air Base in Turkey to enforce the no-fly zone. In 
August 1996, fighting between the two largest Kurdish groups broke out, with 
the Iraqi military overtly supporting one faction. 32 Since Operation PROVIDE 
COMFORT had initially been designed in part to protect the Kurds from the 
Iraqis, the specter of Kurds turning to the Iraqis for assistance caused many to 
rethink the viability of the operation. Soon thereafter, the humanitarian 
element of the mission was terminated, the French pulled out, and PROVIDE 
COMFORT was renamed NORTHERN WATCH. 33 



242 



Michael N. Schmitt 



No comparable humanitarian relief effort was mounted in the south. The 
plight of the Shi'as was less one of starvation or exposure to the elements than 
it was of brutal suppression. Iraqi helicopter operations against the Shi'as 
continued until August 1992, when Operation SOUTHERN WATCH was 
activated to enforce a no-fly zone south of the 32N parallel. 34 As in PROVIDE 
COMFORT, the operation was based on Security Council Resolution 688. 35 In 
response to Iraqi military involvement in the inter-Kurd hostilities, the no-fly 
zone was extended northward to the 33rd parallel in September 1996. 36 
Operation SOUTHERN WATCH is conducted by aircraft of the United States, 
United Kingdom and France operating from bases in Saudi Arabia, Kuwait and 
the United Arab Emirates. 

Interestingly, Resolution 688 neither mentioned Chapter VII nor 
specifically authorized establishment of no-fly zones. On its face, it authorized 
no affirmative action. Further, neither NORTHERN nor SOUTHERN WATCH 
is a classic Chapter VII operation as envisioned in the Charter, i.e., a response 
to aggression by one State against another. Instead, they more closely resemble 
humanitarian intervention mounted by multinational forces in response to a 
threat to international stability. 

Despite the difficulty of fitting either operation into a neatly framed 
Charter-based scheme, legal justification for them has been based on Security 
Council Resolutions 678, 687, and 688. 37 Resolution 678 was the initial grant 
of authority to use force against Iraq under Chapter VII. 38 Subsequently, 
Resolution 687 set forth the terms of the cease-fire, specifically reaffirming 678 
in the process. 39 Thus, so the argument goes, the 678 use of force authorization 
remains intact to effectuate even subsequent resolutions, including 688. This 
being so, and because 678 authorized member States to act on their own, they 
were entitled to mount operations to ensure compliance with 688. The results 
were Operations PROVIDE COMFORT and SOUTHERN WATCH. With the 
demise of the humanitarian component of PROVIDE COMFORT, NORTHERN 
WATCH is a bit more difficult to plug directly into this equation because of the 
absence of direct linkage to the 688 circumstances. Nevertheless, the no-fly 
zone continues as a de facto limit on Saddam Hussein's options against the 
Kurds. Moreover, his involvement in Kurdish internecine conflict, repeated 
interference with UN weapons inspectors, alleged involvement in a plot to 
assassinate George Bush, etc., arguably justify keeping the pressure on him in 
order to limit the extent of his defiance. Resolution 688, considered in light of 
the cease-fire resolutions and Iraqi acceptance of their terms, provides a 
colorable legal basis for doing so in the form of no-fly zones. 

243 



Clipped Wings 



Much cleaner from a legal point of view is the no-fly zone that was 
established over Bosnia-Herzegovina. At the London Conference in 
September 1992, it was agreed that as a confidence-building measure, and to 
facilitate the delivery of humanitarian assistance, military flights over 
Bosnia-Herzegovina would be banned. 40 Nevertheless, such flights continued. 
In response, the Security Council adopted Resolution 781 prohibiting them 
and authorizing UNPROFOR to track compliance through placement of 
observers at military airfields. 41 In support of the effort, NATO Airborne Early 
Warning and Control System (AW ACS) aircraft began monitoring the zone 
and passing data it collected to UN authorities. 

Violations by the Bosnian Serbs continued. In March 1993 the Security 
Council upped the stakes with Resolution 816. It authorized member States: 

4. • . .(A)cting nationally or through regional organizations or arrangements, to 
take, under the authority of the Security Council and subject to close 
coordination with the Secretary-General and UNPROFOR, all necessary 
measures in the airspace of the Republic of Bosnia and Herzegovina, in the event 
of further violations to ensure compliance with the ban on flights . . . and 
proportionate to the specific circumstances and the nature of the flights. 

It also requested: 

5 . (T) he Member States concerned, the Secretary-General and UNPROFOR to 
coordinate closely on the measures they are taking to implement paragraph 4 
above, including the rules of engagement . . . . 42 

The resolution specifically cited Chapter VII of the Charter as the basis for 
authorization. 

Paragraph 4 is in accordance with Chapter VIII of the UN Charter, which 
allows the Security Council to seek the assistance of regional organizations in 
enforcement actions. 43 The response came from NATO the following month in 
the form of Operation DENY FLIGHT. Starting with fifty fighter and 
reconnaissance aircraft, over time the operation grew to more than 200 
operating from bases in Italy and aircraft carriers in the Adriatic. 44 DENY 
FLIGHT continued until December 1995, when responsibility for all 
operations — ground, air, and sea — was transferred to NATO in accordance 
with the Dayton Peace Agreement. 45 Thereafter, control of airspace became 
the responsibility of the IFOR, 46 a NATO-led force tasked with executing 
JOINT ENDEAVOR, the peace implementation operation. 47 In December 

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1996, IFOR transitioned into the Stabilization Force (SFOR). SFOR continues 
to conduct aerial operations from bases in Italy. 48 

Thus, of the three no-fly operations, only DENY FLIGHT was explicitly 
authorized in a Security Council resolution. However, all three look to the UN 
Charter and the authority it vests in the Council for legitimacy. Since no-fly 
zones violate traditional notions of near absolute sovereignty over one's own 
territory, a zone not at least arguably grounded in the Charter regime would be 
unlikely to survive international scrutiny. 49 That being so, it is essential to 
query exactly what the mandate — explicit or implicit — is whenever 
considering no-fly zones. In the case of DENY FLIGHT, the resolutions 
authorizing the zone made it quite clear that the prohibitions were limited to 
military flights, and specifically those in the airspace over the Republic of 
Bosnia and Herzegovina. Any other use of force (at least vis-a-vis the no-fly 
zones) not falling within these narrow boundaries would, therefore, be 
questionable under international law. The sole exception is acts in self-defense 
pursuant to Article 5 1 of the Charter. In the cases of the zones over Iraq, far 
greater interpretive acumen is required, for the mandate is implicit. 

Before turning to the rules of engagement, it is important to emphasize that 
the use of force in no-fly zones is far from an academic question. Violations of 
the zones have occurred periodically, often drawing a forceful response. In 
December 1992, an Iraqi MiG-25 fighter south of the 32nd parallel was 
downed by a SOUTHERN WATCH F-16 Fighting Falcon. 50 The next month, 
another F-16 shot down an Iraqi MiG-23 fighter which had crossed the 36th 
parallel into northern Iraq. 51 Less than a year later, NATO jets downed four 
Galebs which violated the no-fly zone over Bosnia-Herzegovina. 52 
Enforcement aircraft in all of the no-fly operations have taken ground fire from 
anti-aircraft artillery (AAA) or surface-to-air missiles (SAM), in many cases 
necessitating an attack in self-defense on the AAA or missile site in question. 
More seriously, during DENY FLIGHT, a French Mirage crew was taken 
prisoner after ejecting and an American F-16 was downed by a SAM. 53 The 
gravity of no-fly zone enforcement is perhaps best illustrated by the horribly 
tragic incident over northern Iraq on 14 April 1994, in which two U.S. F-15 
Eagles mistakenly shot down a pair of U.S. Army Black Hawk helicopters. 
Twenty-six U.S., UK, French, Turkish, and Kurdish personnel on board 
perished. 54 

The use of force in each of these incidents was governed by the rules of 

engagement then in effect. In the aftermath of the Black Hawk shoot-downs, 

the President of the Aircraft Accident Investigation Board concluded that, in 

.his opinion, Operation PROVIDE COMFORT "personnel did not receive 

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consistent, comprehensive training to ensure they had a thorough 
understanding of the USEUCOM-directed ROE. As a result, some aircrews' 
understanding of how the approved ROE should be applied became 
over-simplified." 55 ROE problems were not the sole cause of the tragedy, but 
they certainly contributed to it. As should be apparent, carefully drafted rules 
of engagement are essential to ensure compliance with national policy, 
international law, and sound and safe tactical practices. 

Rules of Engagement 

Underlying Bases of ROE. Rules of engagement are directives from national 
authorities which "delineate the circumstances and limitations under which 
[forces of a country] will initiate and/or continue combat engagement with 
other forces encountered." 56 Properly designed, they have three underlying 
bases that operate in tandem and synergistically — policy, law, and operational 
concerns. 

First, and most fundamentally, ROE are the means by which the National 
Command Authorities (NCA) 57 (or comparable authority in other countries) 
express their intent as to how force will and will not be used to achieve policy 
objectives. They are the realization of Clausewitz's classic maxim that war is "a 
true political instrument, a continuation of political intercourse, carried on by 
other means." 58 Since the NCA cannot be in the cockpit of aircraft monitoring 
a no-fly zone, ROE allow them to express their intent regarding the use of force 
to those who are. 

The rules of engagement must, therefore, be carefully written so as to 
preclude actions that might run counter to national policy. The process 
requires sensitivity to the distinction between purpose and means. A no-fly zone 
is nothing more than one means to effectuate a national (or international) 
purpose, such as mounting a humanitarian relief effort or keeping feuding 
parties apart. 59 At times, this subtle, yet critical distinction is lost in the rush to 
design an impermeable no-fly zone. However, the proper measure for success is 
not the extent to which violations occur, but rather the congruency of the 
operation's execution with its underlying political purpose. Those who view it 
as existing in a political vacuum risk failure by their inability to factor 
Clausewitzian principles into planning. The Black Hawk shoot-down is apt 
evidence of the need to be able to live with the political and policy 
consequences of one's ROE. ° 

The proper focus is on how rules of engagement can shape and bound the 
use of force to comport with the underlying purpose of the mandate. For 

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instance, if the purpose of a vaguely drafted no-fly zone Security Council 
resolution is simply to ensure safe delivery of relief supplies or to keep ground 
attack aircraft from giving in to the temptation to strike enemy forces held in 
place by a cease-fire, then it is not necessary in the ROE to permit unarmed 
civil aircraft to be engaged. A civil downing would evoke an international 
outcry certain to endanger continuance of the operation. By contrast, if the 
policy goal is to keep intense pressure on a rogue State by denying it the use of 
its own airspace, then perhaps a comprehensive ban is merited. 

Much as rules of engagement are intended to help ensure that use of military 
force furthers national policy, so too do they ensure that use is lawful. 61 This is 
the second structural element of ROE — international law. Indeed, in the 
Department of Defense Dictionary of Defense and Associated Terms, the 
entries "rules of engagement" and "law of war" are cross-referenced, the only 
cross-reference in either definition. 62 

The determinative effect of law is reflective of both the jus ad helium, i.e., 
that law which governs when States may resort to the use of force in their 
relations, and the jus in hello , that law which limits how force may be used once 
resorted to. As to the former, it has been noted that a no-fly zone is usually a 
non-consensual aerial occupation of another sovereign State's airspace by 
force. Absent consent of the nation in whose airspace the zone is established, 
ongoing hostilities in an international armed conflict, or some form of Security 
Council authorization, a no-fly zone would constitute a breach of the enforcing 
State's obligation to respect the sovereignty of other States. It would likely be 
characterized by the international community as a breach of the prohibition on 
the use of force found in Article 2 (4) of the Charter. 63 Moreover, even if an 
implicit or explicit mandate existed, enforcement exceeding the scope of 
authorization would be unlawful. Thus, intentionally shooting down a civil 
aircraft in a no-fly zone for military aircraft or enforcing the zone beyond its 
geographical boundaries would violate international law. 

It is also possible that the actual execution of a lawful decision to resort to 
force to enforce a no-fly zone could violate jus in hello prescriptive norms, 
especially proportionality or necessity. The fact that these two principles are 
applied in a no-fly zone does not affect their substantive content. An act is 
militarily necessary or proportionate in a particular context or it is not. 

Military necessity is the principle of the law of armed conflict that prohibits 
destructive or harmful acts that are unnecessary to secure a military 
advantage. 64 Before an action can be taken, the actor must be able to articulate 
the direct military advantage that will ensue therefrom. In other words, 
destruction may not be wanton or of marginal military value, and military 

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motivations must underlie it. 65 Issues of military necessity are rare in no-fly 
zone enforcement because specific approval is usually required to strike targets 
other than in self-defense. When authorization is provided, it tends towards 
selection of traditional military targets directly related to zone enforcement. 66 

Whereas military necessity is a raw assessment of overall military advantage, 
proportionality expands analysis by balancing the advantage gained against the 
incidental injury to civilians or collateral damage to civilian objects that 
results. 67 It prohibits injury or damage disproportionate to the military 
advantage secured by the action. To illustrate, if a mobile SAM site is operating 
from the middle of a village, but poses minimal risk to the operation, or there 
are clear alternatives to flying through its weapons engagement zone (WEZ), 68 
and attacking it is certain to result in significant casualties among the villagers, 
it should generally not be hit. The attack would be disproportionate. Similarly, 
if a no-fly zone intended to foreclose ground attacks is limited to forbidding the 
presence of military aircraft, it would be disproportionate to destroy a military 
aircraft with no offensive capability transporting civilians across the zone. 
Military (actually political advantage sought by the mandate) advantage is 
outweighed by the incidental injury. The proper remedy in this case is to clarify 
the requirements; at minimum, parties should be warned that further 
violations will be dealt with by force. 69 

Both these principles must be factored in as the mandate is translated into 
rules of engagement. The only exception to their applicability occurs when the 
mandate itself authorizes acts which would otherwise be unnecessary or 
disproportionate. After all, the Security Council resolution on which the 
authority for the zone is based has actual legal valence; the ROE merely 
interpret the mandate. As an example, the Security Council could authorize an 
attack on civil aircraft of no military value to the target State or threat to 
enforcement aircraft (necessity), even if civilian casualties (proportionality) 
would ensue, simply by implicitly or explicitly including them in its mandate. 

To justify this departure from the traditional law of armed conflict, it must 
be understood that Chapter VII permits what would otherwise be in violation 
of the law if performed by States acting without Council sanction. 70 Article 39 
allows the Security Council to conduct a balancing test between whatever 
enforcement actions it deems necessary and the threat to which they respond. 
Moreover, the Charter, a treaty based in the original consent of the Parties, is 
generally controlling over existing customary law; 71 as to treaty law, Article 103 
provides for the supremacy of Charter obligations. 72 

It can be argued that in certain extreme cases, such as direct enforcement 
against civilian objects or personnel, the prohibition on targeting them is more 

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than customary international law; it has become jus cogens, a peremptory norm 
of international law which admits of no deviation. 73 However, the very 
existence of jus cogens norms is controversial. 74 Any action pursuant to a 
Chapter VII determination by the Security Council that the measure will 
contribute to the maintenance of international peace and security would be 
unlikely to fall as violative of jus cogens. 

Theory aside, in cases of even questionable uses of force, law quickly fades 
before policy. A policy decision will have to be made regarding whether or not 
traditional jus in hello prescriptive norms will yield to a weightier policy interest 
effectuated via Chapter VII. The decision may well turn on a balancing of 
potential harm to enforcement against likely international condemnation. For 
obvious reasons, an act violating the traditional jus in hello normative paradigm 
should only be approved in the most extreme circumstances. 

From a technical point of view, it must be understood that both necessity 
and proportionality are principles of the law of armed conflict, a body of law 
which only applies in international, as distinct from non-international, armed 
conflict. 75 No-fly zones may or may not take place in a state of international 
armed conflict. Fortunately, the difficulty of drawing the complicated legal 
distinction between international and non-international armed conflict is 
eased by the policy decision of many States to have their forces apply the law of 
armed conflict irrespective of the characterization of the conflict absent 
instructions otherwise. 76 Therefore, as a matter of policy, if not law, execution 
of no-fly zone ROE must generally comport with these principles. 

The centrality of legal norms in ROE should by now be apparent. Although 
ROE can never address every possible legal issue that might arise (lest they be so 
complex as to be rendered completely incomprehensible) , effective ROE will 
cover those most likely to arise in the context of a particular operation, as well 
as those most difficult to analyze in the split-second decision-making that 
characterizes aerial operations. It is also important to understand that although 
the legal aspects of ROE tend to be seen as restrictive, law also allows ROE to 
act as force enahlers. 11 This is most true in the case of self-defense. Recognition 
that the use of force is always an act of national policy causes some flyers to 
hesitate to use force, even when reasonable to defend themselves, their troops 
or other appropriate assets. 78 An understanding of the international law basis 
for the ROE can help counter this dangerous propensity. 

The third component of effective rules of engagement — complementing 
policy and law — is operational soundness. ROE may comport with policy and 
fall within the limits of the law, but if they do not make sense from the 
perspective of the pilot in the cockpit, they are unacceptable. As an example, 

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consider a no-fly zone in which there have been multiple incidents of intruder 
aircraft launching missiles at enforcement aircraft. A rule of engagement that 
would require a violator to be visually identified (VID) by enforcing aircraft, an 
act only possible at a distance well within the violator's weapons engagement 
zone (WEZ), would be foolish at best, possibly suicidal. Combat capable 
violators must be engaged beyond visual range (BVR) if the zone is to be 
enforced safely. Of course, fairly complex identification ROE (or guidance on 
the rules issued by the commander) will need to be developed to guard against 
mistaken engagements. 

This example illustrates the point made earlier that the three bases of ROE 
operate in tandem and synergistically. The principle of distinction in 
international law 79 requires a degree of pre-engagement certainty that helps 
prevent mistaken downings likely to undermine policy objectives. At the same 
time, and as will be discussed more fully below, the law of self-defense allows 
enforcement aircraft to take whatever actions are tactically prudent to defend 
themselves and others should a situation not specifically accounted for in the 
ROE arise. The default right of self-defense permits ROE driven by policy and 
law to remain operationally credible to those who might contest the zone. 
Credibility gives rise to the deterrent effect the declaration of the no-fly zone 
was intended to achieve in the first place. 80 

A healthy focus on the bases of ROE will also act to identify defective rules of 
engagement. 81 Only rules responsive to all three are acceptable. Stated 
inversely, any rule of engagement that hinders achievement of policy aims, is 
unlawful or is likely to result in unlawful actions, or is operationally unsound 
must be rejected. Understandably, then, ROE are best drafted by a team 
consisting of a judge advocate and an operator, 82 and must be reviewed at an 
appropriate policy level. 

Mission Accomplishment and Self-Defense Rules. Rules of engagement come 
in two varieties — mission accomplishment and self-defense. Although it is 
critically important that this distinction be recognized, the most common 
mistake made in drafting ROE is the blurring of the two. When this occurs, the 
likelihood of inadvertently frustrating the mission or placing those who are 
tasked with its execution at risk tends to be high. 

Mission accomplishment rules are the easiest to understand and execute for 
the operator but present the greatest challenge to those responsible for drafting 
ROE. As the tether to the specific policy objectives the no-fly zone is intended 
to achieve, they help ensure that tactics and procedures used by enforcement 
aircraft are lawful and operationally sound. Mission accomplishment rules also 

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allow the NCA the opportunity to provide direction on important policy 
questions regarding the use of force not explicitly addressed in the initial 
political mandate. 

It is here that the actual rules for enforcing the zone are set forth. Unlike 
self-defense rules, mission accomplishment rules are operation specific. They 
do not apply outside the context of a particular no-fly zone enforcement effort. 
Reduced to basics, mission accomplishment ROE set forth who may do what to 
whom, and how, when, and where that action may occur. 

Mission accomplishment rules are difficult to develop because of the need to 
ensure consistency with each of the three bases of ROE. For the sake of 
illustration, consider a seemingly straightforward Security Council mandate 
which states that military aircraft are not to fly in a set zone. What does the 
term "military aircraft" mean? Is it limited to armed aircraft? Does it include 
military helicopters? Military transport aircraft? Whose military aircraft? What 
of civil aircraft contracted to carry military supplies and personnel? Are civil 
aircraft conducting reconnaissance for military purposes considered to be 
"military aircraft"? What about military aircraft performing civilian functions, 
such as the transport of officials involved in cease-fire negotiations? Does it 
matter if military aircraft are transporting civilians because the civil air 
transport system in the country has collapsed? 83 Are military aircraft delivering 
relief supplies included in the ban? Are military medical aircraft exempt? 

The problem is that the political mandate directing enforcement of the zone 
is likely to be very broadly drafted because of the difficulty of Security Council 
agreement on minutiae, however important the details may be. The dynamics 
of consensus-building, particularly in a multi-national environment, drive 
mandates towards generalities. In some cases, even the no-fly mandate itself 
must be inferred, as in the case of the Iraqi zones. Mission accomplishment 
ROE fill in the gaps for those in the cockpit who cannot be expected to resolve 
policy and legal issues as they receive a radar return from an incoming violator. 
Therein lies the dilemma. ROE drafters are expected to put policy and legal 
flesh on a skeleton that was not the product of their own labors and which may 
be understood differently by the various States involved. In extreme cases, this 
may result in differing, even conflicting, mission accomplishment ROE during a 
combined operation consisting of multiple national contingents. 84 

Self-defense rules of engagement are much easier to draft, but pose far 
greater interpretive problems. While ROE governing the use of force to 
accomplish the mission must be precise enough to safeguard against exceeding 
the policy mandate, falling short of it, or violating international law, 
self-defense rules are intentionally drafted broadly in order to pass as much 

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discretion to the operator as possible. The burden of decision shifts from the 
drafter to the cockpit; the desire is to avoid any possibility of a crew hesitating 
to defend itself because the ROE are not directly on point. Therefore, whereas 
mission accomplishment ROE should anticipate scenarios, self-defense ROE 
should clarify standards. 

For very practical reasons, self-defense ROE are at the heart of no-fly zone 
enforcement. 85 Such zones are most likely in the netherworld lying between 
armed conflict and peace, where it is often unclear who is and who is not 
friendly. Moreover, they are non-consensual in fact, if not by law. Even when 
technically consensual, there will be powerful incentives to violate the no-fly 
zone. If not, there would be little need for enforcement with combat aircraft. 
What this means is that crews enforcing such zones regularly fly into a highly 
dangerous environment armed with only a contingent right to use force, i.e., 
contingent on whether the zone has been violated or whether there is a need to 
act in self-defense. Effective ROE will allow them to exercise the latter right, 
which is the foundation of a State's willingness to engage in such operations, to 
the fullest extent permissible under international law. 

There are four types of self-defense, each deriving its legal basis from Article 
51 of the Charter. 86 On the macro level is national self-defense, the act of 
defending one's country and national interests. Generally, national 
self-defense is accomplished by declaring forces "hostile," i.e., subject to attack 
sans plus. The mere existence of hostile forces renders them targets. National 
self-defense plays little role in no-fly self-defense ROE. 

The second form of self-defense is individual self-defense — the act of 
defending oneself. Complementing individual self-defense is the third type, 
unit self-defense, an action taken to defend other personnel or units of one's 
own military forces. Finally, political authorities may extend a defensive 
umbrella to other States or their military personnel. This collective self-defense 
must be approved at the highest level — in the United States, the NCA. 87 
Collective self-defense is an essential element in a combined no-fly zone 
operation during which aircraft of a particular nation typically perform set 
functions, such as reconnaissance, relying on aircraft from another nation for 
protection. Article 5 1 legitimizes this cooperative approach. 

It is well established under international law that an act in self-defense must 
be characterized by two elements — necessity and proportionality. 88 Beyond 
that, each State defines the criteria under which its forces may exercise 
self-defense. The United States takes a relatively liberal view of the right. As 
used in the self-defense rules of engagement, 89 necessity and proportionality differ 
from the jus in hello principles of military necessity and proportionality discussed 

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earlier. 90 Proportionality and necessity in the context of self-defense ROE are about 
when force may be resorted to. By contrast, in the jus in hello context, military 
necessity and proportionality are basic principles regarding how force may be used; 
they apply to both mission accomplishment and self-defense ROE. 

When used as an element of self-defense, necessity is defined as a situation 
in which a "hostile act occurs or a force or terrorist unit exhibits hostile 
intent." 91 "Hostile act" and "hostile intent" are ROE terms of art. The cleanest 
basis for a use of force in self-defense is in response to a hostile act. It is 
described as an: 

[A]ttack or other use of force by a foreign force or terrorist unit [organization or 
individual] against the United States, US forces, and in certain circumstances, 
US citizens, their property, US commercial assets, and other designated non-US 
forces, foreign nationals and their property. It is also force used directly to 
preclude or impede the mission and/or duties of US forces, including the 
recovery of US personnel and vital US Government property. When a hostile act 
is in progress, the right exists to use proportional force, including armed force, in 
self-defense by all necessary means available to deter or neutralize the potential 
attacker or, if necessary, to destroy the threat. 92 

In the context of a no-fly zone, hostile act means that someone is shooting at 
you or at someone else involved in the enforcement operation. As a matter of 
law and policy, the right to defend oneself in the face of a hostile act is 
universally accepted. 

It is with the concept of hostile intent that most difficulties surface. For U.S. 
forces, hostile intent is: 

[T]he threat of imminent use of force by a foreign force or terrorist unit, or 
organization against the United States and US national interests, US forces, and in 
certain circumstances, US citizens, their property, US commercial assets, or other 
designated non-US forces, foreign nationals and their property. When hostile 
intent is present, the right exists to use proportional force, including armed force, 
in self-defense by all necessary means available to deter or neutralize the potential 
attacker or, if necessary, to destroy the threat. A determination that hostile intent 
exists and requires the use of proportional force in self-defense must be based on 
convincing evidence that an attack is imminent. 93 

Simplified, hostile intent means someone is about to shoot at you or someone 
else involved in the enforcement operation. Unfortunately, the policy and legal 
underpinnings of ROE may seem to conflict with their operational basis when 
seeking to understand self-defense ROE. Whereas the judge advocate and 

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policy maker want to insure no action is taken until the requisite threshold for 
self-defense under Article 51 has been reached, the operator is concerned 
about one thing — being shot down. These two very different cognitive 
paradigms can lead to confusion over the meaning of self-defense ROE. The 
most common misunderstanding turns on the distinction between "threaten" 
and "threat." The mere fact that something is a threat to an enforcement 
aircraft does not mean it has demonstrated hostile intent. It must first threaten 
the aircraft, i.e., it must engage in an act that is hostile or evidence an intent to 
commit a hostile action. The best way to think of the distinction is as the 
difference between a verb and a noun; because the standard is one of intent, 
the actor, even though posing a threat (noun), must act (verb) to suggest his 
intent in some way. 

To illustrate, consider a combat aircraft flying at high speed and altitude 
towards a no-fly zone line. Armed with long-range air-to-air missiles, this 
"high-fast flyer" is a potent threat to enforcement aircraft, particularly 
non-fighters such as tankers. The longer enforcement aircraft wait to engage it, 
the greater the threat it poses and the more difficult it will be to counter if it 
crosses the line. Yet, it has done nothing that suggests hostile intent', it has 
threatened no one. Instead, the high-fast flyer has merely flown within its own 
sovereign airspace, as it is clearly entitled to do under international law. Unless 
it commits an act that in some way reveals malevolent intent, it may not be 
engaged until it has crossed the line, a point at which mission accomplishment 
ROE intercede to govern the response. This is a difficult distinction to make for 
a crew member who must fly in the face of a threat which has not yet 
threatened. 

Even with definitional clarity, hostile intent is difficult to ascertain in 
practice because it is both subjective and contextual. It is subjective in the 
sense that unless there is reliable intelligence information regarding the intent 
of the opposing forces, it is exceedingly difficult to determine intent until a 
hostile act actually occurs. For instance, if a target State fighter approaching 
the no-fly zone illuminates an enforcement aircraft with its fire control radar 
("locks on"), it may or may not be intending to take a missile shot. Perhaps it 
only aims to frazzle enforcement aircrews, demonstrate resolve against the 
operation, or desensitize enforcement aircraft in order to catch them off-guard 
when it really does intend to shoot. 95 Or perhaps it is about to launch a deadly 
air-to-air missile. 

Each determination is also contextual. What is a demonstration of hostile 
intent in certain scenarios may not be in others. Being locked-on in the Gulf of 
Sidra by a Libyan fighter, for example, is far more likely to constitute hostile 



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intent than being locked-on in the Hudson Bay by Canadian aircraft. When 
assessing context, the following factors are often telling: 96 

• The current political context. What is the level of tension between the 
enforcing States and the State over whose territory the zone has been 
established? Have there been any recent statements or acts indicating the 
possibility of an attempt to test the resolve of the no-fly forces? Is there any 
reason to believe now would be an opportune time to do so? For instance, have 
there been any recent indications of cracks in the coalition enforcing the zone 
or slippage in international support for it? 97 

• Prior practice. Have there been prior violations and/or uses of force against 
enforcement aircraft? In what circumstances? By ground or airborne assets? 
What tactics were employed, and do they resemble those the aircrew is 
observing now? 

• Indications and warning intelligence. Have there been any deployments of 
threat systems that might suggest a greater capability or willingness to engage 
enforcement aircraft? For example, have additional or more capable 
surface-to-air missile systems or aircraft come into the area? Have SAMs been 
moved to as yet undetermined locations, thereby raising the possibility of a 
"SAMbush"? 98 Has there been an increase in air-to-air training? Has there been 
an unexplained stand-down (period of little or no flying) that might suggest 
preparation for an engagement? 99 Have there been unusual movements of 
ground forces that indicate a possible military action likely to be accompanied 
by air support? 

• Capabilities. Does the aircraft or missile system have the capability to 
engage at this distance or altitude? With what likelihood of success? How 
much of a threat is the missile (or other weapon) if the possible hostile intent 
matures into a hostile attack? In other words, are the enforcement aircraft's 
defensive systems, such as electronic-counter measures (ECM) or chaff and 
flare, 100 effective against this particular threat or can the enforcement aircraft 
easily maneuver to "defeat" the threat? 101 

The fact that the determination of hostile intent is subjective and 
contextual renders it unwise to include a laundry list of acts which amount to 
hostile intent in the ROE. 102 If an act contained on the list does not rise to the 
level of hostile intent given the circumstances in which it is occurring, and the 
aircrew nevertheless reacts forcibly, the response may be characterized as a 
violation of the prohibition on the use of force in Article 2(4). After all, no act 
justifying a response under Article 51 has occurred. The action will, at very 
best, embarrass the enforcement State. More likely, it will result in some form 
of international condemnation. 

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On the other hand, a laundry list may cause the aircrew to hesitate to act in 
valid self-defense should they be faced with a situation not previously 
contemplated. It is simply impossible to reliably and comprehensibly predict 
those actions that are indicative of hostile intent. That being so, ROE drafters 
should not attempt to do so. The far better course is to rely on the pre-mission 
self-defense training that aircrews receive to enable them to evaluate events as 
they unfold. 

This does not mean that rules of engagement should not include lists of acts 
that might suggest hostile intent. Most do exactly that. For instance, in the 
no-fly environment, being locked on by a fire control radar or having a 
potential opponent maneuver into a position from which he can best engage 
enforcement aircraft are classic examples of potentially hostile intent. The 
same is true with regard to ground-based SAMs that lock on to enforcement 
aircraft. However, whenever such lists are included in ROE, it is critically 
important to stress that they are only possible indicators of hostile intent, 
neither exclusive nor determinative in nature. 103 

Hostile intent is not only difficult to define, it is difficult to place temporally. 
Recall that the language of Article 51 speaks in terms of an "armed attack." 
Yet, surely there is no requirement to take the first hit before the right to 
self-defense arises. 104 Given today's effective weaponry, any such assertion 
would be absurd, for taking the first hit in aerial combat is usually fatal. Most 
commentators and practitioners agree that there is a right to anticipatory 
self-defense, i.e., the right to act in self-defense before the other side attacks. 
The question that confounds international law is how anticipatory may the 
need for self-defense be? 105 

The most widely accepted standard is that articulated by Secretary of State 
Daniel Webster regarding the Caroline incident in the nineteenth century. For 
Webster, self-defense was to "be confined to cases in which the necessity of 
that self-defense is instant, overwhelming, and leaving no choice of means, and no 
moment for deliberation" 106 This standard was subsequently referred to 
approvingly during the Nuremberg trials. 107 Today it is expressed as the 
requirement of imminency. 

But what is it that must be imminent? Imminency cannot possibly be 
measured in terms of proximity to the actual attack, for such a standard is not 
responsive to the rationale for the right to self-defense, specifically the right not 
to have to sit idly by while a fatal blow is delivered. The proper measure of 
imminency is that point in time when the threatened act can be viably deterred 
or defeated. In other words, one may not act in self-defense until the moment 
when failing to do so may be too late. This fine distinction is of critical 

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importance in aerial operations because of the finality and speed of the hostile 
act that follows a demonstration of hostile intent. 108 

Self-defense not only has a start point, it has an end point as well. Recall the 
requirement that self-defense be a response to a threatening or hostile act. 
When that act ends, i.e., when there is no longer an ongoing hostile act or 
demonstration of hostile intent to respond to, the enforcement aircraft may not 
persist in engaging in self-defense. This is colloquially known as the "once it's 
over, it's over" rule. 109 It is replete with practical implications for no-fly zone 
operations. Most significantly, if an aircraft is acting in self-defense against 
another aircraft, and that aircraft clearly and unambiguously breaks off the 
engagement, then the attacked aircraft has no right under self-defense to 
continue the fight. 110 It too must break off (absent a mission accomplishment 
rule to the contrary). This may seem contrary to good sense, 111 which would 
suggest that the aircraft which committed the hostile act remains a threat by 
definition. So it, in fact, does; however, recall that self-defense only grants a 
legal right to respond to threatening acts, not mere threats (no matter how 
potent) . 

What if the action of the enforcement aircraft defeats the threat before it is 
engaged? For example, assume an enforcement aircraft is illuminated by the 
fire control radar of a SAM site. This would in many cases constitute a 
demonstration of hostile intent and permit an immediate attack on the site. 
However, the threatened aircraft's most prudent course of action would usually 
be to maneuver to evade the missile if fired and depart the SAM's weapons 
engagement zone. This is so because a quick, immediate response to a SAM site 
with whatever ordnance happens to be available is a dangerous proposition; 
SAMs are specifically designed to shoot down aircraft. The alternative, and 
often better, approach tends to be a measured sequential attack on the site by 
aircraft carrying anti-radiation missiles, followed by those employing either 
cluster bomb units or "iron" bombs. 112 May the aircraft withdraw and take time 
to coordinate such an attack? 

No it may not, at least not pursuant to the self-defense rules of engagement. 
Once there are no aircraft within the SAM's weapons engagement zone (WEZ) , 
there is no present threatening act to defend against. This poses a Catch-22 
dilemma for no-fly-zone enforcement. An aircraft that is illuminated is at 
immediate risk and generally should maneuver out of the WEZ as quickly as 
possible. However, once it does, international law intervenes to deny the 
aircraft or its fellow aircraft the right to subsequently attack the site in 
self-defense. The quandary is obvious. The State against whom the no-fly zone 
is applied could easily frustrate enforcement by simply illuminating 

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enforcement aircraft, thereby forcing enforcement aircraft into the Hobson's 
choice of breaking off the overall mission as planned or attacking under less 
than optimal circumstances. 113 

A remedy is to be found in mission accomplishment ROE. By definition, the 
original mandate called for the enforcement of a no-fly zone, but it is unlikely to 
include many specific restrictions on this tasking. The zone cannot be enforced 
effectively if ground-based defenses are permitted to force enforcement aircraft 
to alter planned missions simply by turning on their radar systems. 114 Therefore, 
the authority to enforce the zone necessarily implies corresponding authority to 
take whatever reasonable steps are called for to do so safely; this authority 
would logically include the right to destroy SAM sites that have already 
demonstrated hostile intentions and are, thereby, frustrating overall 
accomplishment of the mandate. The proper method for articulating the right 
is through mission-accomplishment ROE, not an overly expansive view of the 
legal right of self-defense. 

Reasonableness is the key. One might argue that it would be even more 
prudent to take out all SAM sites with an ability to reach enforcement aircraft, 
regardless of whether or not they had committed a hostile act or demonstrated 
hostile intent. Absent specific authority in the mandate, doing so as part of the 
no-fly operation without any incidents of interference with operations would 
likely be judged to be beyond either the Charter-based use of force 
authorization of the mandate or the Article 51/customary international law 
right of self-defense. Reasonableness requires that issuance of the mission 
accomplishment rule result from evidence that activities at the site(s) have 
moved it along the continuum from a mere threat towards a target which has 
acted in a threatening manner. Having just demonstrated hostile intent or 
committed a hostile act would clearly meet the threshold. 

In such cases, the temporal element surfaces again. The longer it has been 
since the qualifying action, the more difficult it will be to justify an after the fact 
air strike against the offending site(s) as an appropriate exercise of the 
mandate. This is particularly so if at some point following the incident, aircraft 
flying in the area were not threatened; the absence of reaction might indicate 
that the initial malevolent act was an aberration. Since international law does 
not permit acts in mere retribution (at least absent specific Chapter VII 
authorization), a strike may be questioned on legal grounds. Therefore, 
prudent ROE drafters will limit the extent of the authorization to restrike, 
recalling the policy component of ROE, to a level at minimum consistent with 
the relative political fragility of the particular operation. This can be done by 
setting time standards (e.g., no strike more than X hours after the incident) or 

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by physical criteria (e.g., strike only with aircraft currently airborne or on strip 
alert). 

Finally, it is vital to remember that hostile intent and hostile acts are merely 
shorthand for the necessity requirement of self-defense. In fact, necessity is 
slightly more restrictive than either intent or act, for there are situations in 
which it is not necessary to engage, even when a hostile act has been 
committed. Consider an individual firing a pistol out the door of a helicopter at 
a fighter trailing it out of the zone. In most cases, the weapon poses little threat 
to the fighter, which can easily lengthen the distance/altitude from which it is 
trailing the helicopter. Unless the mission accomplishment ROE allow a 
forceful response based on the act, there is ample time to seek guidance before 
resorting to force. Remember, the use of force in self-defense has no retributive 
or deterrent purpose; it merely serves to protect one's self and one's unit. There 
is no authority to engage under the law of self-defense until friendly forces 
actually need to be protected. 115 

The second prong of self-defense is proportionality. Proportionality is 
defined as the requirement that "the use of force be reasonable in intensity, 
duration, and magnitude, based on all the facts known to the commander at 
the time, to decisively counter the hostile act or hostile intent and to ensure 
the continued safety of U.S. forces." 116 Several fine points about this definition 
merit mention. One is the pervasive question of proportional to what? Many 
laymen interpret the requirement as "proportional" to the force used against 
them. By this interpretation, one could not respond to small arms ground fire 
with bombs or use a missile to down a helicopter that has employed machine 
guns against an aircraft. This is clearly not the proper reading. The right to use 
self-defense is designed to protect without unnecessarily escalating the 
hostilities; it is not a rule designed to ensure a "fair fight" on a level playing 
field. 

Properly understood, proportionality as used in the ROE allows the 
application of no more force than necessary to counter the hostile act or 
demonstration of hostile intent. 117 Aircrews train to the standard of using the 
minimum force necessary to get the other side to "knock it off," without taking 
unnecessary risks themselves. For instance, a missile launch by a single SAM 
site would not merit a response in self-defense against other SAM sites in a 
country — at least not in self-defense. 118 Similarly, consider a combat search 
and rescue (CSAR) effort. A column of soldiers moving towards a downed crew 
member likely harbors hostile intent if the aircraft was shot down by its forces. 
The troops would reasonably appear to be on their way to capture the crew 
member. The existence of necessity is clear, for the opposing forces are unlikely 

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to be deterred except by force (or a demonstration thereof) , and the threat is 
imminent (they are approaching). May the column be attacked and destroyed? 
Recalling that a no-fly operation is underway rather than open hostilities, the 
answer is — it depends. If the column can be deterred by warning shots or 
selective destruction of only a few of the vehicles without forfeiting the ability 
to destroy it in its entirety, that should be tried. On the other hand, if it is nearly 
upon the pilot or shooting at him, destruction of the entire column would 
clearly be an appropriate response. 119 

What then of the situation where the armament of the enforcement aircraft 
clearly exceeds the amount of force actually necessary to cause the other side to 
cease its threatening act? May it be used? Yes, because the law does not deprive 
an aircraft under attack of the right to defend itself pursuant to Article 5 1 
merely because the mission planners did not fully anticipate the nature of the 
threat when determining the weapons load. The U.S. ROE account for this 
very situation by specifically authorizing a response by "all necessary means 
available" 120 Consistent with the law of self-defense, then, an enforcement 
aircraft may use the amount and type of force currently available to it that is 
reasonably necessary to deter a demonstration of hostile intent or defend against 
a hostile act. 

As should be clear from the discussion of necessity and proportionality, 
determining when self-defense is appropriate is no easy task, particularly in the 
heat of potential battle. Enforcement aircrews can only make subjective 
educated guesses based on the information at hand. That information must be 
"convincing," 121 but the resulting determination need not be correct, it need 
only be reasonable — i.e., would a reasonable airman enforcing this specific 
no-fly zone in the circumstances then prevailing have believed the information 
sufficient to conclude an attack was forthcoming? 122 Constant scenario-based 
training is the key to achieving reasonableness. 123 

Before turning from the distinction between mission accomplishment and 
self-defense ROE, it must be understood that they are independent; neither 
limits the other. An action authorized in accordance with the mission 
accomplishment ROE is not disallowed because it fails to meet the criteria for 
self-defense. Thus, hostile intent and hostile act are generally not relevant 
when acting pursuant to the mission accomplishment ROE. By the same token, 
and more importantly, self-defense ROE are never limited by mission 
accomplishment ROE. If the two should ever come into conflict, self-defense 
always "trumps" mission accomplishment rules. 124 This is a core principle of the 
U.S. approach to rules of engagement, one that is so central that U.S. forces are 

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not permitted to operate under multinational rules of engagement inconsistent 
with U.S. notions of self-defense. 125 

This absolute severability of the two genre of ROE has important 
implications in no-fly zone enforcement. For example, mission 
accomplishment ROE will usually impose very stringent identification 
requirements before a zone violator may be engaged. The goal is to preclude 
mistakes such as those made during the Black Hawks shoot-down incident. 
However, if the violator commits a hostile act or demonstrates hostile intent in 
a situation necessitating an immediate response, it may be engaged in 
self-defense regardless of whether or not it has been identified to the level 
provided for in the mission accomplishment ROE. Similarly, if the mission 
accomplishment ROE permit, a violator may be engaged even when it has 
neither committed a hostile act nor demonstrated hostile intent. 

The ROE System 

ROE systems differ from State to State, with the exception that each country 
usually issues some form of broad ROE that establish overarching national 
rules. These are supplemented for specific operations. Whenever serving in a 
combined operation, the need to understand a coalition partner's ROE system 
is self-evident, particularly if a set of common ROE cannot be agreed upon. 
When this occurs, it will be left to the Coalition Commander and the senior 
officers from each nation contributing forces to develop tactical guidance that 
accounts for their respective ROE differences in a way that plays to the 
strengths in each country's rules. 

The U.S. system is relatively straight forward. At the pinnacle are the Joint 
Chiefs of Staff Standing Rules of Engagement (SROE). 126 Promulgated in 1994, 
the SROE set forth general rules of engagement which govern the use of force 
by the U.S. military during both peacetime and armed conflict (absent a 
specific exemption). 127 They consist of a Chairman's Instruction, which 
introduces the rules, and four enclosures: A - Standing Rules of Engagement 
for U.S. Forces; B - Supplemental Measures; C - Compendium and Combatant 
Commander's Special ROE; and D - References. 

Enclosure A contains the basic rules of engagement that apply in all 
operations, including those involving no-fly zone enforcement, and at all times. 
No further authorization is needed for their execution by aircraft enforcing a 
zone. 128 The enclosure describes the purpose, scope and policies underlying the 
rules. More importantly, Enclosure A contains the self-defense rules of 
engagement. Appendices for Seaborne Forces, Air Operations, and Land 

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Operations are attached. When issues of self-defense in the no-fly 
environment arise, it is to Enclosure A that reference should be made. 129 

Supplemental measures, grouped into appendices for general measures, 
maritime, air, and land operations, are found in Enclosure B. It is essentially a 
catalogue of draft rules of engagement that decision makers at the appropriate 
level can turn to in crafting mission accomplishment rules to support a 
particular operation. For example, possible measures such as the authority to 
pursue aircraft across designated borders, defend designated non-U. S. assets, 
or conduct reconnaissance are included. The authorization level for the 
supplemental varies depending on the nature of the rule sought. 

Enclosure C contains a compendium of guidance on the ROE. It also gathers 
standing rules of engagement issued by the U.S. Combatant Commands to 
complement the SROE for the area or function the combatant command 
controls. 130 In a no-fly zone operation, it is essential to understand both the SROE 
and the standing ROE of that command which has authority over the operation. 131 

Lastly, Enclosure D lists references and contains a glossary of abbreviations, 
acronyms, terms and definitions. The glossary is particularly useful in achieving 
common understanding of the rules. For instance, some States do not allow the 
use of force in the face of hostile intent as a measure in self-defense. Yet, 
optimally, the threshold to cross prior to using force should be the same for all 
assigned forces in a combined operation. To achieve this commonality, 
non-U. S. armed forces that do not apply the intent criterion would have to 
receive the equivalent of mission accomplishment ROE authorizing a response 
to hostile intent before they could react as U.S. forces would under the SROE. 

Sometimes the difference is more one of form than substance. For instance, 
U.S. forces usually consider being illuminated by an aircraft's fire control radar 
to be a demonstration of hostile intent that may require a forceful response. 
Certain coalition allies, on the other hand, may characterize the illumination 
as a hostile act. In practical terms, the ROE are consistent. The glossary can 
provide a useful tool for seeking common ground between differing national 
terminology. Conversely, it can be used to identify substantive variance when 
the same or similar terms are used. 

As noted, combatant commands issue supplemental measures that are the 
operation-specific mission accomplishment rules of engagement. Those selected 
are usually activated in an Operation Order outlining execution of the 
operation. 133 They may also be requested by any subordinate commander (usually 
a Joint Task Force QTF] commander) tasked with enforcing the no-fly zone. This 
option is available throughout the course of the operation. If the JTF commander 
comes to believe his ROE are flawed or insufficient to successfully execute the 



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mission, he is obligated to seek whatever authority is necessary to remedy the 
shortfall. Should Enclosure B not contain a suitable mission accomplishment 
rule to meet his needs, he may draft and propose one of his own. 

The need to revise the ROE during an operation is not uncommon. After all, 
the original rules were responsive to the political and military environment 
existing at the time of issuance; however, the environment is in constant flux. 
For instance, additional SAM systems or ones with greater capabilities may 
deploy into a previously benign area. If so, it may be prudent to request more 
robust ROE for air-to-ground strikes in order to ensure the new SAMs do not 
interfere with the mission. Or consider identification ROE, i.e., the rules 
regarding how intruders and/or threats are to be identified, and with what 
surety. If the target State deploys high performance fighter aircraft into an area 
where there had previously been only helicopters or low performance aircraft, 
it would be prudent to develop beyond visual range (BVR) identification ROE 
in lieu of existing ROE requiring visual identification. Alternatively, if 
enforcement aircraft with a greater capability to identify potential intruders 
deploy into a JTF's tactical area of responsibility (TAOR) , then for legal and 
policy reasons it may be wise to make the identification ROE more restrictive, 
at least vis-a-vis missions involving such aircraft. 

A shift in the ground situation can also require revision. Consider, the 
combat search and rescue (CSAR) ROE. If there are friendly forces or friendly 
indigenous groups in the area, then the rules of engagement for air support to a 
downed crew member will be much less robust than in a region where anyone 
approaching the crew member is probably unfriendly. In the former case, a 
friendly-fire incident is a concern, thereby making it absolutely essential that 
those approaching be positively identified. In the latter, the primary concern 
will be safe and prompt recovery of the crewman. If the ground situation 
changes, then so too should the ROE (or the guidance thereon) . Indeed, any 
change in the environment — political, military, or legal — should occasion a 
review of the ROE. 134 

When drafting supplemental ROE, combatant commands should not 
attempt to supplement the SROE self-defense rules. Self-defense is already fully 
provided for in the SROE to the maximum extent allowed in international law. 
Along these same lines, use of self-defense terms of art such as "hostile act" or 
"hostile intent" in the combatant command's ROE is also ill-advised, for 
combatant commander ROE are mission accomplishment rules. Attempts to 
expand or explain the right of self-defense in the form of supplemental ROE 
may inadvertently result in interpretations that are inconsistent with the policy 

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aims for the operation or complicate the exercise of self-defense by 
enforcement aircraft. 

As a hypothetical example, consider a combatant command rule of 
engagement that reads, "Illumination of JTF aircraft by fire control radar of a 
surface-to-air missile site is a demonstration of hostile intent justifying an attack 
on the emitting site in self-defense." This seemingly clear rule invites confusion 
for a number of reasons. Those experienced in ROE will know that the 
combatant command ROE are intended for mission accomplishment. Their 
immediate question will be whether or not this rule sets a different standard than 
the SROE self-defense principles, particularly since a basic premise of ROE 
draftsmanship is to never create lists of hostile intent. The sense that maybe the 
rule is but a poorly articulated effort to set a lower threshold than would normally 
be the case for self-defense is strengthened by the operational fact that the range 
or altitude parameters of the fire control radar of some SAM systems significantly 
exceed their weapons engagement zone. 135 When this is so, illumination may be 
an unfriendly act, but it is not a demonstration of hostile intent because no threat 
can be posed. 136 By this stream of analysis, the rule is interpreted as a poorly 
drafted mission accomplishment rule that allows the SAM site to be engaged at a 
point which might not be justified in self-defense. This is not to say that lowering 
the threshold would be unreasonable or unlawful. A mission accomplishment 
rule along these lines is in most no- fly contexts a reasonable attempt to create a 
safe environment in which to operate. The point is simply that if the intent is not 
to alter the existing threshold, the rule invites confusion. 

The obverse is equally possible. Given inclusion of the terms self-defense 
and hostile intent, a reasonable conclusion would be that the rule is an attempt 
to refine the already applicable SROE self-defense rules. But if the actual intent 
is to lower the threshold, then that intent will have been frustrated. 
Conversely, if the goal is to clarify self-defense, there is a risk that aircraft will 
hesitate to defend themselves in the face of what would otherwise be a 
demonstration of hostile intent until they have been illuminated by a fire 
control radar. This is the very danger that the drafting prohibition on lists of 
acts demonstrating hostile intent is directed against. 

The possibility of confusion is not far-fetched. Envision a scenario in which 
multiple enforcement aircraft are in the no-fly zone. Suddenly, there are 
several radar warning receiver (RWR) indications that they are being painted 
by fire control radar; one pilot reports seeing a missile on its way up. 
Meanwhile, another enforcement aircraft receives a RWR indication of target 
acquisition radar associated with a SAM site, but no indication of fire control 
radar. 137 Standard hostile intent ROE would allow an immediate attack on the 



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site emitting in the acquisition mode. At least one other ground site has already 
committed a hostile act, and activation of acquisition radar by a second site 
would reasonably appear to be a continuation of the effort to down an 
enforcement aircraft. Further, some SAM systems are able to fire their missiles 
while in target acquisition mode, switching to missile guidance only after the 
missile has been launched. A rule crafted in terms of fire control radar could 
delay appropriate actions in self-defense against the second site. 

The suggestion that combatant command supplemental ROE is the wrong 
place to amplify self-defense, and the urging against lists of acts which 
constitute a demonstration of hostile intent, does not mean to imply that rules 
of engagement should be set forth in a void of possible scenarios. What it does 
suggest is that tying them to real-world situations is best left to those tasked 
with the actual execution of the mission, most often a JTF Commander and his 
Joint Forces Air Component Commander (JFACC). 

It is at this level that the third, and for the aircrew most critical, phase of no-fly 
ROE development and implementation occurs. Typically, a JTF commander will 
issue guidance on the application of the ROE to his aircrews. 138 This guidance 
should be drafted jointly by the operation's staff judge advocate, who will be 
attuned to legal concerns and the nuances of precision draftsmanship as well as 
the JFACC, the officer responsible for operational matters. The guidance will be 
issued by the JTF commander, the one individual in the organization who best 
understands the policy mandate he has been given. Thus, all three underlying 
components of the ROE are accounted for in the guidance. 

The commander's guidance is not a formal part of the rules of engagement. 
Rules of engagement set forth the parameters of what it is that enforcement 
aircraft may do. The commander's guidance on the application of the ROE 
takes those instructions and sets out how the tasks will be accomplished. For 
instance, the mission accomplishment ROE will state that a particular type of 
aircraft violating the no-fly zone may be warned to depart, and if it does not, 
engaged. The guidance, by contrast, outlines the form and content of the 
warning and the requisite identification criteria before the violating aircraft 
may be shot down. It authorizes no act not already authorized in either the 
SROE or the combatant command's supplemental ROE. 

Though lengthy by comparison to the ROE, the commander's guidance 
should inform crew members how they can defend themselves and accomplish 
the mission, not constitute a legal treatise. Furthermore, the ROE guidance 
should be based on various situation specific factors: the tasked mission, the 
threat from ground and air-based systems, capabilities of enforcement assets, 
and tactical good sense. It must also be subject to a robust legal analysis, not 



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only for compliance with the legal limits/authorizations found in the ROE, but 
more generally with international law, especially the law of armed conflict. 

Recurring Issues 

In any no-fly zone operation, there are three seminal goals: 1) no violations; 
2) no mistakes; and 3) no friendly losses. The first is intended to achieve the 
policy mandate without raising the political stakes by actually having to shoot 
down an aircraft that dares test the zone. Its success depends on deterrence 
through credibility, the product of capability and perceived willingness to 
enforce. Critical to this deterrence is maintaining control over when and in 
what way enforcement aircraft occupy the zone. In other words, it is important 
that the target State not be able to drive enforcement aircraft from the zone, 
thereby opening it to their own. 139 It is equally important that the engagement 
decision matrix not be so involved, or the authority to engage so highly set, that 
enforcement aircraft cannot react in a timely fashion. 

The second goal, no mistakes, is intended to maintain the international 
political cohesion that made possible establishment of the zone in the first 
place. In that no-fly zones are intrusions on the sovereignty of a State, setting 
one up is a rather exceptional decision for the international community to 
make. Continued legitimacy of the zone depends on strict compliance with the 
limits of the mandate by enforcing States. 

Lastly, the operation must be mounted safely, both for the sake of the 
aircrews involved and to maintain domestic and international support for the 
operation. This requires a full understanding of what the law of self-defense, 
and the ROE articulating it in the operational context, allows. None of these 
goals can be achieved without clarity of purpose and execution. In the 
remaining section of this article, several of the recurring issues that tend to 
generate confusion or hesitation during no-fly zone operations will be 
examined. 

Who to Shoot and When? The question of who to shoot is far more complex 
than might appear at first glance. To the extent the policy mandate does not 
specify the precise subjects of enforcement, the ROE must do so. Of course, 
those ROE cannot extend enforcement authority beyond what is a reasonable 
interpretation of the mandate, for mission accomplishment rules permitting 
the use of force depend on the mandate involved for legality and legitimacy. 
Effectively drafted mission accomplishment ROE will, at a minimum, make the 
following clear for enforcement aircrews. 

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• What nationality are the aircraft that enforcement action can he taken 
against? Zone prohibitions should be framed with specificity in the ROE. 
Obviously, aircraft of the target State will be included. However, that State 
might be allied or cooperating with other States, the aircraft of which may 
attempt to enter the zone. If so, decision makers should consider extending 
the zone's prohibitions to include aircraft of such States. Alternatively, a zone 
may be expressed in terms of a general prohibition, with specific aircraft 
exempted. For instance, UN aircraft are permitted to fly in the zones over 
Iraq, and do so often in their weapons monitoring role. 140 Similarly, relief or 
humanitarian flights by specified countries or organizations may be 
exempted. Whenever there are either exemptions to a general prohibition or 
specific prohibitions on aircraft of a certain nationality, rigid identification 
procedures must be in effect before a possible violator may be engaged. 141 As 
the Black Hawks shoot-down so tragically demonstrated, determining 
aircraft nationality can be a challenging proposition. 

• Does the prohibition extend to civil aircraft? There is little doubt that no-fly 
zones may be enforced against military aircraft. 142 The legality of using force 
against civil aircraft is a far less settled issue, as the downing of Korean Airlines 
flight 007 (KAL 007) over the Soviet Union in 1983 demonstrated. 143 
International outrage was expressed loudly and immediately. But for a Soviet 
veto, the Security Council would have passed a resolution declaring that "such 
use of force against international aviation is incompatible with the norms 
governing international behavior and elementary considerations of 
humanity." 144 The International Civil Aviation Organization (ICAO) 
approved a resolution containing identical language. 145 Following a 
fact-finding commission review of the incident, the ICAO Council 
subsequently reaffirmed that "whatever the circumstances which . . . may have 
caused the aircraft to stray off its flight plan route, such use of armed force 
constitutes a violation of international law, and invokes generally recognized 
legal consequences." 146 Not long thereafter, the ICAO Assembly adopted a 
proposal for amendment of the Chicago Convention. Article 3 his provides that 
"the contracting states recognize that every state must refrain from resorting to 
the use of weapons against civil aircraft in flight and that, in case of 
interception, the lives of persons on board and the safety of the aircraft must 
not be endangered." 147 Though it has yet to secure the 102 ratifications 
necessary to come into effect, there is some support for the position that it is in 
fact declaratory of existing customary law. 148 

Despite the crescendo of condemnation following KAL 007, the existence of 
a Security Council Chapter VII mandate would arguably allow enforcement 

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against a civil aircraft in a no-fly zone, even if downing it would otherwise 
violate international law. The Charter is, as discussed earlier, supreme. 
Nevertheless, it should be obvious that any downing of civilian aircraft would 
be highly controversial, regardless of its purported legality. Therefore, before 
drafting ROE vis-a-vis civil aircraft, it must be absolutely clear that the original 
mandate authorizing the zone was intended to cover them; during 
post-incident furor over a civil aircraft shoot-down is the wrong time to 
discover that it does not. 

Even if it is clear that such action is authorized by the mandate, the 
authorization level for actually engaging should remain at a level where the 
decision maker can factor in the policy and political environment then 
existing. The fact that one can shoot down a civil aircraft violating a no-fly 
zone does not mean that one should. Downing armed fighters that violate the 
zone is relatively straightforward from a policy perspective; shooting down 
civilian aircraft is an entirely different matter. Not only should the approval 
level be highly placed, but the steps that the enforcement aircraft must perform 
before it may engage a civil aircraft in mission accomplishment need to be very 
carefully considered. In particular, the ROE (and commander's guidance on 
the application of the ROE) must ensure positive identification and impose 
redundant warning requirements. The warning requirement is particularly 
important — it acts to shift the onus of responsibility for the shoot-down to the 
violating aircraft. Additionally, because civil aircraft are being intercepted, 
tactical guidance for intercept methodology should comply with the 
procedures set forth by ICAO. 149 

Finally, in determining if, when, and how to engage civil aircraft, account 
should be taken of what it is they are doing. The closer the aircraft is to 
performing a military function, the less the political risk. It is likely that ROE or 
ROE guidance based on what the aircraft is doing may prove difficult to 
execute. Even with a visual (VID) intercept, it may be impossible to determine 
if it is carrying military or humanitarian relief supplies. Nevertheless, in certain 
circumstances, ROE based on act (e.g., air-dropping supplies) may make sense. 
Of course, if a civil aircraft commits a hostile act or demonstrates hostile intent 
necessitating a response in self-defense, enforcement aircraft may defend 
themselves. 

• Does the type of aircraft make a difference? When the two Black Hawk 
helicopters were downed over northern Iraq, some criticism was voiced 
because the helicopters posed no serious threat to the two F-15s. What is 
forgotten in this assertion is that mission accomplishment ROE were applied in 
the shoot-down; a threat is not generally a prerequisite in these rules. The 

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question of whether the F-15s were threatened by the helicopters (if they had 
actually been Iraqi Hinds) 150 is one of self-defense; in fact, there was never any 
claim that the F-15s mistakenly acted in self-defense. 

The incident highlights the fact that the type of aircraft violating the zone 
matters when contemplating enforcement action. The more offensively 
capable the aircraft, the more acceptable the enforcement action, and the less 
likelihood of negative impact on the policy aims underlying the zone. 
Understanding this fact is useful in crafting ROE and ROE guidance that is 
responsive to the policy component of the rules of engagement. 

. When considering criteria and intercept procedures based on type of 
aircraft, probably the cleanest distinction that can be made, at least from the 
perspective of the enforcement aircraft's cockpit, is between fighter/attack 
aircraft, transport aircraft, and helicopters. Whether the three should be 
handled differently depends on the context in which the no-fly zone exists. If 
helicopters have been active in air-to-ground operations, the need to 
distinguish between engaging fighters and helicopters is minimal. Both are 
offensively oriented threats to the maintenance of peace. By the same 
reasoning, if establishment of the zone was primarily in response to the threat 
to peace posed by ground attack aircraft, it may be prudent to set different 
procedures for responding to helicopters and transports. This certainly is not 
required as a matter of law so long as the mandate covers all military aircraft, 
but it is a prudent political step to take. The point is that enforcement 
procedures and criteria must reflect attendant conditions; type of aircraft is one 
variable ROE drafters and enforcement operation commanders should consider 
to ensure this. 

If a decision is made to treat varying types of aircraft differently, the 
differences will lie primarily in identification and warning. Because of the high 
risk involved in flying close enough to fighter/attack aircraft to visually identify 
them, it is appropriate to authorize beyond visual range identification and 
engagement in most circumstances. By contrast, since they pose minimal 
threat to high performance fighter aircraft, a visual identification of helicopters 
and transports is ordinarily a reasonable requirement from a tactical 
perspective. If tactically acceptable, doing so would certainly make sense from 
a legal or policy perspective. 

Differences in the warning requirement take two forms, procedural and 
substantive. Procedurally, the ICAO intercept procedures are viable in the case 
of helicopters or transports, but would not be when intercepting a fighter 
aircraft with air-to-air capability. Substantively, the nature of a particular 
operation may justify dispensing with the warning requirement altogether for 

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fighters, or even for helicopters if they have previously been involved in 
offensive operations. Violating the zone may alone be sufficient justification for 
engaging them. On the other hand, and again in situation-specific scenarios, it 
may be politically judicious to warn helicopters or transport aircraft out of the 
area before acting to shoot them down. 

• Who authorizes engagement of violators? Whereas the authority to act in 
self-defense must reside in the cockpit, the decision as to when to engage in a 
mission accomplishment intercept can be set at whatever level makes sense 
from a policy and operational perspective. 151 Context is controlling. The more 
politically sensitive a particular type of engagement, the higher the 
authorization level should be set. For example, if consistent with the 
operational context, the decision may be made to let the aircrew of the 
enforcement aircraft determine when to engage a fighter, but require a decision 
by the JFACC or task force commander to engage anything else. The most 
sensitive issues surround civil aircraft. It would be unwise to let aircrew act 
against civil aircraft without higher approval; the political consequences of the 
act are simply too momentous. 

Who to Defend? As noted earlier, U.S. aircraft may always defend themselves or 
other U.S. military assets. No supplemental rule is required to effectuate this 
right. This core principle extends to all U.S. military assets, whether assigned to 
the task force or not. Thus, if Iraqi forces engaged U-2 flights operating in 
support of the UN weapons monitoring operation (United Nations Special 
Commission-UNSCOM), as was threatened, U.S. forces of either SOUTHERN or 
NORTHERN WATCH could act in their defense without any further approval. 153 

Beyond that, a specific supplemental rule must be issued to authorize 
defense offerees of any other State or organization. In most cases, there will be 
a supplemental rule authorizing defense of all aircraft participating in 
monitoring the no-fly zone. Careful review of the scope of the authorization is 
well-advised. Does it only apply to aircraft assigned to the operation or to 
aircraft of those States generally? 154 Are there geographical limits placed on the 
exercise of this collective self-defense? 155 Are there any tactical limits? 

As a matter of law, States may not unilaterally extend protection to other 
States absent their consent. 156 Collective defense ROE should not be approved 
until such a request has been received; generally, this will occur during the 
planning phase of the operation. An interesting derivation of this premise 
involves the extent of self-defense authorized. If the protected State's 
interpretation of self-defense is narrower than the U.S. interpretation, e.g., by 
limiting self-defense to hostile acts, may U.S. aircraft nevertheless act based on 

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their own standard (which includes notions of hostile intent) ? The answer is 
technically "yes," because intent is an appropriate criterion for self-defense 
under Article 5 1 of the UN Charter, which does not distinguish between State, 
individual, and collective defense. However, they should do so only if the 
consent of the protected State is express. 157 This position is a logical extension 
of the ab initio need for consent to collective self-defense. 

Extension of direct defense to international governmental organizations (e.g., 
UN), non-governmental organizations (e.g., relief organizations), or any other 
groups that may be threatened (e.g., the Kurds) also requires specific 
authorization. As in the case of States, a request for such assistance should precede 
its execution. This point bears only on the issue of immediately necessary 
self-defense of such organizations and groups. Beyond that, mission accomplishment 
ROE may be fashioned to implement a national policy providing for their defense. 

The question of defense involves not only who to defend, but also against 
whom. For U.S. forces defending themselves, the SROE rule is clear — anyone. The 
matter is murkier when defending forces of other States or organizations. A 
coalition partner may be engaged in entirely separate operations in the target State 
or have disputes with neighbors unrelated to the no-fly zone enforcement. 158 To 
come to the defense of its aircraft in other than the no-fly zone enforcement 
context is to risk creating the impression that the U.S. or its coalition allies have 
taken sides in an unrelated dispute. When this potential exists, ROE and/or the 
guidance issued thereon must be carefully drafted to ensure collective defense is 
engaged in only as it pertains to the no-fly operation itself. 

Where Can Enforcement Aircraft Fly . . . and Enforce? There are few 
principles more established in international law than territorial inviolability. 
This inviolability extends not only to physical crossings of international 
borders, but also to the causation of harmful effects in other States. 159 Control 
over airspace by a State is near absolute within its land borders and territorial 
sea; it is even more absolute skyward to the point where space begins. 160 The 
three exceptions to the need for State consent prior to entry into national 
airspace are flights pursuant to a Chapter VII authorization (e.g., a no-fly zone), 
necessity in a self-defense situation, force majeure, and assistance entry when 
immediately necessary to save lives. Each applies in the no-fly zone context, 
and ROE and ROE guidance should reflect the relevant legal principles. 

First, because of the principle of territorial inviolability, an ROE 
supplemental rule must specifically authorize the crossing of international 
borders. The legal basis for the authority to cross into the target State is 
obviously the Security Council's express or implied mandate. Beyond that, 

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consent would be required to cross any other borders necessary to enforce the 
zone. If not granted, violators could not be pursued into neighboring States. An 
oft heard contrary assertion is that they may be chased across international 
borders when enforcement aircraft are in "hot pursuit." 161 The assertion is 
mistaken, for the term hot pursuit is a legal concept limited to either law 
enforcement or the proportional protection of territorial sovereignty. 
Moreover, the pursuit is typically from the enforcement State's territory into 
international airspace, not into the sovereign airspace of a third State. 162 There 
being no international legal doctrine of hot pursuit per se applicable to a no-fly 
zone operation, any pursuit that occurs must be based on the authorizing 
mandate or consent. Where pursuit is generally appropriate is in pursuing a 
violating aircraft back across a no-fly line within the target State. Since the 
flight is into the target State's airspace, permitting enforcement aircraft to 
pursue such violators is a reasonable interpretation of the mandate, absent 
indications otherwise that it was not so intended. 

Another argument sometimes heard is that if violating aircraft use 
neighboring States as sanctuary from enforcement aircraft, and the "host" 
States fail to act effectively to preclude that practice from continuing, then 
enforcement aircraft may cross the relevant border to deny violating aircraft de 
facto sanctuary. 163 This is impermissible without express or implied Security 
Council authorization. The right to cross borders in self-help derives from 
application of the law of neutrality and the existence of opposing 
belligerents. 164 However, no-fly operations usually occur in the absence of 
classic belligerency between the States enforcing the zone and the target State. 
Additionally, Security Council approved actions are typically specific as to the 
identity of the target of the sanctions. The sanctuary State is not yet one. That 
being so, additional authorization should be sought before crossing borders not 
encompassed by the original grant of authority. 165 

The major exception for no-fly zone enforcement border-crossing authority 
involves self-defense. There is no geographical limitation to the inherent right 
of self-defense. Enforcement aircraft defending themselves or others may cross 
or shoot across any borders in self-defense. For example, if an intruder aircraft 
illuminates an enforcement aircraft with its fire control radar from across a 
neighboring border, a response in self-defense may be necessary. The existence 
of the border should not affect the aircrew's decision to defend. Further, in an 
actual air-to-air engagement, the existence of all aspect missiles and the ability 
of high performance aircraft to rapidly turn and engage often make it difficult, 
if not impossible, to ascertain when an engagement has broken off. As a result, 
enforcement aircraft may sometimes have to "pursue" intruder aircraft across 

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borders while the engagement is ongoing. Recalling that this is an act in 
self-defense, rather than one in mission accomplishment, the pursuit (really 
the continuation of the engagement) is legal so long as the aircrew's belief that 
they are still engaged and need to defend themselves is reasonable. Since each 
of these situations is based on the right to self-defense, no specific supplemental 
ROE are required. 

Force majeure is the principle of international law that a State must allow an 
aircraft in distress (from weather, mechanical problems, etc.) to enter its 
airspace and land if no other safe alternative is available to it. Note that the 
right of military aircraft to claim force majeure entry is unsettled. 166 
Nevertheless, given the alternative, which may very well be bailing out over 
the territory of the no-fly zone target State, the logical course of action in most 
cases is to at least attempt entry on the basis of force majeure. 

Finally, the right of assistance entry is the right to enter a State's territorial 
sea or airspace to effect the rescue of a downed crew member at sea. 167 Whether 
it extends to downed crew members on land is unsettled. Arguably, it is an 
obligation of the State in whose territory a downed crew member is located to 
come to the aid of such a person. 168 If that State is not attempting to recover the 
crew member or refuses to consent to entry of the rescue aircraft from the 
enforcement forces, and it appears the lives of the crew are at risk due to 
injuries or the elements, then a colorable claim exists that, under the doctrine 
of self-help, rescue forces may enter for the very limited purpose of recovering 
the crew. 

Miscellaneous Issues. There are a myriad of context-specific issues that arise 
during no-fly-zone operations, the resolution of which depends on an 
extremely close working relationship between judge advocates and operators. 
Many arise in the air-to-ground arena. The key to effective air-to-ground ROE 
is to focus on the distinction between the self-defense and mission 
accomplishment ROE. Mission accomplishment ROE, designed to create a 
benign environment in which to enforce the zone, should never be mistaken 
for self-defense ROE, which are intended to ensure an enforcement aircraft an 
adequate defense against a hostile act or demonstration of hostile intent. 

Along these lines, a pervasive issue is the identification criteria for engaging 
SAM sites in mission accomplishment. It is not unusual for there to be spurious 
indications on an aircraft's RWR gear of SAM site activity. Therefore, mission 
accomplishment ROE may require multiple indicators which must be received 
before a site may be engaged in mission accomplishment. After all, in order for 
deterrence to work, the entity to be deterred must be able to determine clearly 

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at which of its acts the response was aimed. However, the criteria in no way 
affect a crew's response in self-defense. Aircrews need to be sensitive to the 
likelihood of spurious returns and factor that reality into their determination of 
whether a hostile act or demonstration of hostile intent has occurred. That 
said, the decision to engage in self-defense is theirs alone to make, regardless of 
whether mission accomplishment criteria have been met. 

Another common air-to-ground scenario involves combat search and 
rescue operations. As noted earlier, a crucial question is when may supporting 
aircraft engage ground forces approaching the downed crew member. As with 
any self-defense situation, the ROE and commander's guidance should avoid 
creating checklists of acts demonstrating hostile intent. It may cite sample 
indicators though, caveating the list with the need to apply them contextually. 
Relevant factors may include the reason the crew member is down (hostile fire 
or mechanical problems?), who controls the territory he is in (the target State 
or indigenous groups friendly to the enforcement operation), and who is 
approaching him and what their reaction is to measures short of the use of 
force, such as the presence of enforcement aircraft. The commander's guidance 
should also set forth who controls the decision that a response in defense of the 
downed crew is necessary, lest the recovery operation become disjointed. The 
decision should rest with the on-scene commander, though the commander's 
guidance must make clear who is serving in that role. 169 

In both these examples, basing ROE on sound intelligence and tactics is 
crucial to success. The determination of whether an act in self-defense is 
necessary in the face of fire control radar illumination may need to turn on 
whether the SAM system is mobile or not. If intelligence is generally reliable 
and an enforcement aircraft receives a RWR indication of a non-mobile SAM 
site from a location at which there is no known site, that should cause less 
concern (possibly a spurious hit) than an indication of a mobile SAM that may 
have been placed there under the cover of darkness. Similarly, recall the 
discussion of the threat system's WEZ when considering defensive actions. 
Some might be lulled into complacency when they receive an indication oi a 
SAM that cannot reach their altitude. Yet, good intelligence work may indicate 
that it is possible to use the radar of that particular system to feed data to 
another system armed with a missile of greater altitude capabilities. This 
intelligence data will likely be determinative in assessing whether to engage in 
self-defense. 

In the air-to-air environment, a recurring concern is the degree of certainty 
necessary before engaging a violator. 170 There is no easy answer to this 
dilemma. As a general rule, the best approach is to require all reasonably 

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available systems to attempt to identify a target before it is engaged if it poses no 
threat. Not only would this require visual identification, but it would also 
necessitate a call by any command and control aircraft working the area (such 
as an AW ACS) that it had no indications the target was anything but a 
wrongful violator. Additional sources of information that should be considered 
include intelligence information, the location of the aircraft when it was first 
noted (e.g., was it in the target State), on-board electronic identification 
systems that enforcement aircraft possess, non-responsiveness to warnings, and 
identify friend or foe (IFF) squawks (or the absence thereof) . m The further one 
moves along the continuum toward aircraft which pose a threat, the more 
authorization of beyond visual range identification and engagement may be 
appropriate. Of course, identification criteria should never serve to keep an 
aircraft from defending itself against what it reasonably believes to constitute a 
threat under the self-defense rules of engagement. 



Rules of engagement, and the commander's guidance on ROE issued to 
implement them, are tools for integrating policy, legal, and operational 
concerns and limits during a no-fly zone operation. It is absolutely critical that 
all three concerns be carefully factored into their development, for the speed 
with which the aerial picture unfolds is such that ROE for no-fly zones must be 
very precisely and carefully crafted if the political mandate is to be 
implemented at minimum risk. As the Black Hawks incident so tragically 
illustrated, there is no room for error. 

Ultimately, two themes must pervade the development of effective ROE for 
no-fly zone enforcement. First, the distinction between self-defense and mission 
accomplishment rules has to be clear on the face of the ROE and any guidance 
thereon. If not, either the mission or the crews who execute it will be placed at 
risk. Second, the importance of ensuring that operational concerns are addressed 
in the ROE and guidance is paramount. Effective ROE are the product of a firm 
grasp not only on the law and the foundational policy objectives of the operation, 
but also operational reality. Abstract legal or policy discourses only serve to 
obfuscate the guidance aircrews need to succeed and survive. 



Notes 



A version of this article is forthcoming at 20 LOYOLA L.A. INT'L & COMP. L.J. (1998). 

1 . On the effect of bipolarity's demise vis-a-vis the Charter security scheme, and obstacles 
to the emergence thereof, see Michael N. Schmitt, The Resort to Force in International Law: 
Reflections on Positivist and Contextual Approaches, 37 A.F. L. REV. 105 (1994). See also W. 

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Michael Reisman, Allocating Competences to Use Coercion in the Post-Cold War World: Practices, 
Conditions, and Prospects, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER (Lori F. 
Damrosch & David J. Scheffer eds., 1991). 

2. On no-fly zones generally, see David E. Petersen, The No-fly Zones in Iraq: Air 
Occupation (June 1996) (unpublished manuscript on file at the Naval War College (NWC) 
library); John N.T. Shanahan, The Roles of Operational Design and Synchronization in No-fly 
Zones: Tactical Success, Strategic Failure, and the Missing Link (June 1996) (unpublished 
manuscript on file at the NWC library) . 

3. The operational code is the unofficial, but actual normative system governing 
international actions. It is discerned in part by observing the behavior of international elites. 
Operational code is contrasted with the "myth system," the law that, according to such elites, 
purportedly applies. On the distinction, see W. MICHAEL REISMAN & JAMES BAKER, 

Regulating Covert Action: Practices, Contexts and policies of Covert Action 
Abroad in international and American Law 23-24 (1992); W. Michael Reisman, 

JURISPRUDENCE: UNDERSTANDING AND SHAPING LAW 23-35 (1987); Schmitt, Resort to 
Force, supra note 1, at 112-119. 

4. The U.S. Rules of Engagement, described infra, are set forth in Chairman, Joint Chiefs 
of Staff Instruction (CJCSI) 3121.02, Standing Rules of Engagement for United States Forces 
(1994) [hereinafter SROE]. This document is classified SECRET, but all portions cited herein 
are unclassified. Additional useful discussions of the ROE include Richard J. Grunawalt, The JCS 
Standing Rules of Engagement: A Judge Advocate's Primer, 42 A.F. L. REV. 245 (1997) (focusing on 
the SROE) ; Bradd C. Hayes, Naval Rules of Engagement: Management Tools for Crisis, Rand 
Note N-2963-CC Quly 1989) ; John G. Humphries, Operations Law and the Rules of Engagement in 
Operations Desert Shield and Desert Storm, AlRPOWER J., Fall 1992, at 25; W. Hays Parks, Righting 
the Rules of Engagement, PROCEEDINGS, May 1989, at 83; Guy R. Phillips, Rules of Engagement: A 
Primer, THE ARMY LAWYER, July 1993, at 4; J. Ashley Roach, Rules of Engagement, NAVAL WAR 
C. REV., Jan. -Feb. 1983, at 51; Stephen P. Randolph, Rules of Engagement, Policy, and Military 
Effectiveness: The Tie That Binds (Apr. 1993) (unpublished manuscript available through 
DTIC and on file at the NWC and Air War College libraries) (focusing on air ROE during the 
Vietnam War and ROE in Beirut in 1982-83); Scott E. Smith, What Factors Affect Rules of 
Engagement for Military Operations Other Than War (May 1995) (unpublished manuscript on 
file at the NWC library) ; Butch Thompson, Factors Influencing Rules of Engagement and ROE's 
Effect on Mission (Nov. 1995) (unpublished manuscript on file at the NWC library). 

5. As of 1 April 1998, Operations NORTHERN WATCH and SOUTHERN WATCH 
continued. Classification of the ROE is necessary for very practical reasons. A State against 
which a no-fly zone is imposed would have a much easier time of violating the zone if it knew 
when enforcement aircraft would employ armed force against intruders, and, more importantly, 
when they would not. Additionally, ROE set forth tactics for aircraft intercepts and attacks on 
ground threats that would endanger enforcement aircrews if they were known in advance by the 
target State forces. 

6. Petersen explores the idea of a no-fly zone as an occupation. Petersen, supra note 2, 
generally. It should be noted, however, that the concept of aerial occupation is not a legal one. In 
traditional humanitarian law, occupation is a term of art for physical control by one belligerent 
over land territory of another (or of a State occupied against its will, but without resistance). 
When an occupation occurs, rights and duties arise as between the occupying power and 
individuals located in the occupied area. An aerial occupation, by contrast, is simply a de facto, 
vice de jure, status in which limits are placed on a State's use of its own airspace. Traditional 
occupation law is found in Geneva Convention Relative to the Protection of Civilian Persons in 



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Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention 
IV] and Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of 
International Armed Conflicts, June 8, 1977, U.N. Doc. A/32/144, 16 I.L.M. 1391 [hereinafter 
Protocol Additional I]. See also GERHARD VON GLAHN, LAW AMONG NATIONS 811-33 (6th 
ed., 1992); LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 246-57 
(1993); Hans-Peter Gasser, Protection of the Civilian Population, in THE HANDBOOK OF 
HUMANITARIAN LAW IN ARMED CONFLICT 209-92 (Dieter Fleck ed., 1995). 

7. The initial embargo prohibited the export or import of goods into either Iraq or Kuwait. 
S.C. Res. 661, U.N. Doc. S/RES/661 (1990), reprinted in 29 I.L.M. 1325 (1990). In Resolution 
665, the Security Council authorized the use of naval force in the implementation of 661. S.C. 
Res. 665, U.N. Doc. S/RES/665 (190), reprinted in 29. I.L.M. 1329 (1990). See also S/PV/2938. In 
Resolution 670, the Security Council extended the embargo to the aerial regime. 

The Security Council . . . (d)ecides that all States, notwithstanding the existence of any 
rights or obligations conferred or imposed by any international agreement or any contract 
entered into or any license or permit granted before the date of the present resolution, shall 
deny permission for any aircraft to take off from their territory if the aircraft would carry any 
cargo to or from Iraq or Kuwait other than food in humanitarian circumstances, subject to 
authorization by the Council or the Committee established by resolution 661 (1990) and in 
accordance with resolution 666 (1990), or supplies intended strictly for medical purposes. 

The Resolution also required States to: 

(D)eny permission to any aircraft destined to land in Iraq or Kuwait, whatever its State of 
registration, to overfly its territory unless: 

a) The aircraft lands at an airfield designated by that State outside Iraq or Kuwait in order 
to permit its inspection to ensure that there is no cargo on board in violation of resolution 
661 (1990) or the present resolution, and for this purpose the aircraft may be detained as 
long as necessary; or 

b) The particular flight has been approved by the Committee established by resolution 
661 (1990); or 

c) The flight is certified by the United Nations as solely for the purposes of UNIIMOG. 

S.C. Res. 670, U.N. Doc. S/RES/670 (1990), reprinted in 29 I.L.M. 1334, 1335 (1990). See also 
S/PV/2943 (1990). On the subject of aerial enforcement operations generally, see Michael N. 
Schmitt, Aerial Blockades in Historical, Legal, and Practical Perspective, 2 USAFA J. LEG. STU. 21 
(1991). 

8. The UN Charter regime for handling situations endangering international peace and 
security is set forth in Chapters VI and VII. Chapter VI articulates measures for the peaceful 
settlement of disputes; the actions provided for therein are entirely consensual. Chapter VI 
operations using military forces are usually labeled peacekeeping. Though Chapter VII 
contemplates peaceful steps to resolve a threat/ breach of the peace or act of aggression, it also 
permits the use of force without the consent of the parties in order to maintain international 
peace and security. Chapter VIII allows regional organizations (e.g., NATO) to deal with 
matters regarding international peace and security if so authorized by the Security Council. On 
peacekeeping, see BEYOND TRADITIONAL PEACEKEEPING (Donald Daniel &Bradd Hayes eds., 
1995); Myron H. Nordquist, WHAT COLOR HELMET? REFORMING SECURITY COUNCIL 
PEACEKEEPING MANDATES (Newport Paper No. 12, Naval War College) (1997). 

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9. U.N. Charter art. 39. 

10. Id. art. 40. 

11. Id. art. 41. 

12. Id. art. 42. 

13. Mission accomplishment rules of engagement are discussed infra. 

14. The UNPROFOR mandate was originally one of peacekeeping. However, as the 
situation in the former Yugoslavia deteriorated, Chapter VII sanctions were authorized. See, e.g., 
S.C. Res. 743 (Feb. 21, 1992), U.N. Doc. S/RES/743 (1992); S.C. Res. 757 (May 30, 1992), U.N. 
Doc. S/RES/757 (1992); and subsequent UNPROFOR Resolutions, such as that allowing 
UNPROFOR to defend safe areas [S.C. Res. 836 Qune 4, 1993), U.N. Doc. S/RES/836 (1993)] . 

15. IFOR was authorized under Chapter VII. S.C. Res. 1031 (Dec. 15, 1995), U.N. Doc. 
S/RES/1031 (1995). The Dayton Peace Agreement is at General Framework Agreement for 
Peace in Bosnia and Herzegovina and the Annexes thereto, U.N. Doc. S/1995/999, annex, 35 
I.L.M. 75 (1996); <http://www.nato.int/ifor/gfa/gfa-home.htm>. A compilation of material 
related to the situation in the former Yugoslavia is at < gopher://marvin.stc.nato.int: 70/1 1/yugo > . 

16. On Nov. 29, 1990, the Security Council, in Resolution 678, authorized: "Member 
States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 
fully implements . . . the foregoing resolutions, 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." S.C. Res. 678, U.N. Doc. S/RES/678 (1990). The 
term "all necessary means" is the standard phraseology for authorizing armed force. 

17. U.N. CHARTER art. 51: "Nothing in the present Charter shall impair the inherent right 
of individual or collective self-defense if an armed attack occurs against a Member of the United 
Nations, until the Security Council has taken the measures necessary to maintain international 
peace and security. Measures taken by members in the exercise of this right of self-defense shall 
be immediately reported to the Security Council and shall not in any way affect the authority and 
responsibility of the Security Council under the present Charter to take at any time such action 
as it deems necessary in order to maintain or restore international peace and security." 
Numerous international agreements and pronouncements have reaffirmed this right of 
self-defense since ratification of the UN Charter. See, e.g., Inter- American Treaty of Reciprocal 
Assistance, Sept. 2, 1947, art. 3, T.I.A.S. No. 1838, 21 U.N.T.S. 77 (Rio Treaty) ; Declaration on 
Principles of International Law Concerning Friendly Relations and Co-operation Among States 
in Accordance with the Charter of the United Nations, princ. 1, G.A. Res. 2625, U.N. Doc. 
A/8028 (1970); North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 34 U.N.T.S. 243; 
Treaty of Friendship, Cooperation and Mutual Assistance, Oct. 10, 1955, art. 4, 219 U.N.T.S. 3 
(Warsaw Pact Treaty). 

18. Self-defense rules of engagement are discussed infra. 

19. On humanitarian intervention, see FERNANDO R. TESON, HUMANITARIAN 
INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (2d ed. 1997). See also Richard B. 
Lillich, Humanitarian Intervention Through the United Nations: Towards the Development of 
Criteria, 53 ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 55 7 
(1993). For a short summary of the subject, see Felix Lopez, The Lawfulness of Humanitarian 
Intervention, 2 USAFA J. LEG. STU. 97 (1991). 

20. In the Nicaragua Case, the International Court o{ Justice rejected any possible 
argument for U.S. actions in Nicaragua on the basis of human rights: "In any event, while the 
United States might form its own appraisal of the situation as to respect for human rights in 
Nicaragua, the use of force could not be the appropriate method to monitor or enforce such 
respect. With regard to the steps actually taken, the protection of human rights, a strictly 



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humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil 
installations, or again with the training, arming, and equipping of the Contras. The Court 
concludes that the argument derived from the preservation of human rights in Nicaragua cannot 
afford a legal justification for the conduct of the United States." Military and Paramilitary 
Actions in and Against Nicaragua (Nicar. v. U.S.) 1986 I.C.J. 13, at para. 268. The Nicaragua 
case, regardless of the merits, is an illustration of why most of the international community 
disapproves of humanitarian intervention. It is a principle subject to abuse, particularly by States 
in a position of strength vis-a-vis the State in which the intervention occurs. 

21. Article 2(7) of the Charter contemplates this very situation. It provides: "Nothing in 
the present Charter shall authorize the United Nations to intervene in matters which are 
essentially within the domestic jurisdiction of any state or shall require the Members to submit 
such matters to settlement under the present Charter; but this principle shall not prejudice the 
application of enforcement measures under Chapter VII." 

U.N. CHARTER art. 2(7) (emphasis added). 

22. See discussion infra. 

23. The operation titles used here— PROVIDE COMFORT, NORTHERN WATCH, and 
SOUTHERN WATCH — are those of the U.S. component of each of these combined (i.e., including 
forces of more than one country) operations. Other countries may use different names. For 
instance, the United Kingdom's forces enforcing the no-fly zone over northern Iraq do so as part 
of Operation WARDEN. Nevertheless, since the U.S. labels are those generally used to refer to 
the operations as a whole, that convention is adopted here. 

24. Rick Atkinson, Crusade: The Untold Story of the Persian Gulf War 9 

(1993) . See also MICHAEL R. GORDON AND BERNARD E. TRAINOR, THE GENERAL'S WAR: THE 
INSIDE STORY OF THE CONFLICT IN THE GULF 446 (1995). President Bush had actually made 
the first cease-fire offer on Feb. 27, 1991. It was immediately accepted by the Iraqis. JOHN N. 
MOORE, CRISIS IN THE GULF: ENFORCING THE RULE OF LAW 254-5 (1992). Talks between 
Iraqi and Coalition military leaders followed on Mar. 2, 1991. The next day, the Security Council 
issued Resolution 686 formalizing implementation of the cease-fire at the international level. 
S.C. Res. 686 (Mar. 2, 1991), U.N. Doc. S/RES/686 (1991), reprinted in 30 1.L.M. 567 (1991). In 
a Mar. 3, 1991, letter from Deputy Prime Minister Tariq Aziz to the President of the Security 
Council, the Iraqis agreed to accept the terms of 686. U.N. Doc. S/22320 (1991). Approximately 
one month later, a much more detailed set of demands was passed as Resolution 687. S.C. Res. 
687 (Apr. 3, 1991), U.N. Doc. S/RES/687 (1991), reprinted in 30 I.L.M. 843 (1991). Its terms 
were grudgingly accepted by the Iraqis in letters to the Secretary General and President of the 
Security Council. Letters from the Permanent Representative of Iraq to the United Nations 
Addressed Respectively to the Secretary-General and the President of the Security Council, 
Apr. 6, 1991, U.N. Doc. S/22456 (1991), reprinted in MOORE, supra, at 497. 

25. See generally HUMAN RIGHTS WATCH, ENDLESS TORMENT: THE 1991 UPRISING IN 
IRAQ AND ITS AFTERMATH (1992). 

26. Not only were helicopters used, but in some cases fixed wing aircraft were employed, 
despite the ban thereon, to suppress the uprisings. See George Bush, Letter to Congressional 
Leaders Reporting on Iraq's Compliance with United Nation Security Council Resolutions, 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Sept. 16, 1992, at 1669. 

27. For instance, in February 1991 President George Bush seemed to call for the overthrow 
of Hussein when he stated, "There's another way for the bloodshed to stop, and that is for the 
Iraqi military and the Iraqi people to take matters into their own hands and force Saddam 
Hussein, the dictator, to step down." Ann Devroy, Wail and See on Iraq, WASH. POST, Mar. 29, 



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1991, at A-15. See also John M. Goshko, Rebel Urges West to Aid Iraqi Kurds, WASH. POST, Apr. 
2, 1991,atA-15. 

28. S.C. Res. 688 (Apr. 15, 1991), U.N. Doc. S/RES/688 (1991). 

29. President Bush announced the operation on April 5, 1991. According to Bush, it was 
"designed to alleviate the plight of the many innocent Iraqis whose lives have been endangered 
by the brutal and inhumane actions of the Iraqi government." George Bush, U.S. Humanitarian 
Assistance to Iraqi Refugees (White House stmt., Apr. 5, 1991), reprinted in DISPATCH, Apr. 8, 
1991, at 233. On Operation PROVIDE COMFORT, see John P. Cavanaugh, Operation Provide 
Comfort: A Model for Future NATO Operations (May 1992) (unpublished manuscript 
available through DTIC, and on file at the NWC and Army Command and General Staff 
College libraries); David E Clary, Operation Provide Comfort — A Strategic Analysis (Apr. 
1994) [unpublished manuscript available through DTIC, and on file at the NWC and Air War 
College libraries]; Donald G. Goff, Building Coalitions for Humanitarian 
Operations — OPERATION PROVIDE COMFORT ( Apr. 1992) (unpublished manuscript available 
through DTIC, and on file at the NWC and Army War College libraries) . 

30. The use of helicopters against the Kurds was prevalent in the North as well as the 
South, and President Bush warned the Iraqis against such use in March. Dab Balz, Bush Criticizes 
Iraq's Use of Helicopters on Rebels, WASH. POST, Mar. 15. 1991, at A-37. See also Rick Atkinson, 
Iraq Shifts Troops to Combat Kurds, WASH. POST, Mar. 30, 1991, at A-l, A-12; Johnathan C. 
Randal, Kurds' Spring of Hope Collapses Amid Feelings of Betrayal, WASH. POST, Apr. 3, 1991, at 
A-l. 

31. See Ann Devroy and John M. Goshko, U.S. Shift on Refugee Enclaves, WASH. POST, 
Apr. 10, 1991, at A-l; John E. Yang & Ann Devroy, U.S. Seeks to Protect Kurd Refugee Areas, 
WASH. POST, Apr. 11, 1991, at A-l. Though the zone did have the effect of protecting the 
Kurds, it was established in part as a security measure for the Coalition forces on the ground in 
northern Iraq. 

32. Operation NORTHERN WATCH Command Briefing (unclassified version) (1997) (on 
file with author) . 

33. Id. The two Kurdish groups are the Patriotic Union of Kurdistan (PUK) and Kurdish 
Democratic Party (KDP) . The Iraqis sided with the KDP in their 3 1 August attack on the PUK 
stronghold of Irbil. 

34. See William H. Johnson, A Piece of the Puzzle: Tactical Airpower in Operations Other 
Than War (1994) (unpublished manuscript available at the NWC library), at 12. 

35. Although singling out the Kurds, 688 applied generally to all Iraqis. The resolution 
stated, "The Security Council . . . [glravely concerned by the repression of the Iraqi civilian 
population in many parts of Iraq, including most recently in Kurdish populated areas . . . which 
threaten international peace and security. . . ." S.C. Res. 688, supra note 28. 

36. President William Clinton, Remarks Announcing Missile Strike on Iraq, Sept. 3. 1996, 
32 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 1641 (1996). The response also 
included two separate cruise missile attacks designed to suppress air defense facilities 

(Operation, Desert Strike I & II). DoD Press Release No. 190-M, 

<http://www.milnet.com/milnet/dstrike/dstrikeO.htm>. On Sept. 4, 1996, the President issued 
a report to Congress in which he stated that the expansion of the southern no-fly zone was a 
"reasonable response to the enhanced threat posed by Iraq." PRESIDENT WILLIAM CLINTON, 
REPORT TO CONGRESS, Sept. 4, 1996. 

37. Id. In the report, the President stated that the zones "were established pursuant to and 
in support of United Nations Security Council Resolutions (UNSCR) 678, 687, and 688, which 



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condemned Iraq's repression of its civilian population, including its Kurdish population, as a 
threat to international peace and security in the region." Id. 

38. S.C. Res. 678, supra note 16. 

39. S.C. Res. 687 & 688, supra notes 24 & 28 respectively. 

40. Specific Decisions by the London Conference, Doc. LC/C7 (Final), Aug. 27, 1992, 
reprinted in 31. I.L.M. 1539 (1992). Subsequently, on September 15, 1992, measures to 
implement the decisions were agreed upon by the London Conference Working Group on 
Confidence and Security-Building and Verification Measures. Report of the Secretary-General 
on the International Conference on the Former Yugoslavia, paras. 103-109, U.N. Doc. S/24795, 
Nov. 11, 1992, reprinted in 31 I.L.M. 1549, 1574-5 (1992). See also U.N. Doc. S/24634, Oct. 8, 
1992. Additionally, in a Joint Declaration, the Presidents of Croatia and the Former Republic of 
Yugoslavia agreed to permit UNPROFOR observers at airfields in their countries as a 
confidence-building measure. Joint Statement of 19 October 1992 Issued by Federal Republic of 
Yugoslavia President Cosic and President Izetbegovic of Bosnia and Herzegovina, para. 5, 
previously issued in U.N. Docs. A/47/571 & S/24702 (1992), reprinted in 31 I.L.M. 1581, 1582 
(1992). 

41. S.C. Res. 781 (Oct. 9, 1992), U.N. Doc. S/RES/781 (1992). 

42. S.C. Res. 816 (Mar. 31, 1993), paras. 4-5, U.N. Doc. S/RES/816 (1993) (emphasis 
added) . 

43. "The Security Council shall, where appropriate, utilize such regional arrangements or 
agencies for enforcement action under its authority. But no enforcement action shall be taken 
under regional arrangements or by regional agencies without the authorization of the Security 
Council. . . ." U.N. CHARTER art. 53(1). The one exception is for the purposes of collective self- 
defense pursuant to Article 5 1 . 

44. The effort did not prove particularly successful. As one commentator has noted, " [T] he 
no-fly zone had not even been particularly successful at the tactical level. For example, there were 
over 650 violations of the Bosnia-Herzegovina no-fly zone between April 1993 and January 
1994. This is a direct result of a flawed operational design that allowed the Bosnian Serbs to fly 
helicopters essentially unchallenged despite the helicopter's devastating firepower. The Bosnian 
Serbs also continued to fly fixed-wing aircraft in strikes of their own against Bosnian and Croat 
targets even after heavy retaliatory U.N. air strikes in September 1995." Shanahan, supra note 2, 
at 15. 

45. Dayton Peace Agreement, supra note 15, Annex 1A, Agreement on the Military 
Aspects of the Peace Settlement, Art. I. For a summary of the Dayton Peace Agreement, see 
Dep't of State, Fact Sheet: Summary of the General Framework Agreement, Nov. 30, 1995, 
< http://www.nato.int/ifor/gfa/gfa-summ.htm> . 

46. With regard to airspace, the relevant Security Council Resolution provided that under 
Chapter VII it was authorizing IFOR Member States, "acting under paragraph 14 [of the 
resolution] above, in accordance with Annex 1-A of the Peace Agreement, to take all necessary 
measures to ensure compliance with the rules and procedures, to be established by the 
Commander of IFOR, governing command and control of airspace over Bosnia and Herzegovina 
with respect to all civilian and military air traffic." S.C. Res. 1031 (Dec. 15, 1995), U.N. Doc. 
S/RES/1031 (1995). 

47. It also included troops from Russia, Egypt, Jordan, Malaysia and Morocco. Partnership 
for Peace troops were provided by Albania, Austria, Bulgaria, the Czech Republic, Estonia, 
Finland, Hungary, Latvia, Lithuania, Poland, Romania, Sweden, and the Ukraine. 
Background information on this topic is available in NATO, Basic Fact Sheet No. 4: 



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NATO's Role in Bringing Peace to the Former Yugoslavia, March 1977, 
<http://www.nato.int/docu/facts/bpfy.htm>. 

48. Background information on SFOR is available at NATO, Basic Fact Sheet No. 11, The 
NATO-led Stabilization Force (SFOR) in Bosnia and Herzegovina, April 1997, 
<http://www.nato.int/docu/facts/sfor.htm>. 

49. The zone would be a use of force against the territorial integrity of a member State in 
violation of UN Charter Article 2(4). Consider the Corfu Channel case. British ships were 
passing through the Corfu Channel in Albanian territorial waters when they were fired upon by 
Albanian gunners. Several months later, two British warships were struck by mines (made in 
Germany) within those waters. Therefore, the British sent in their minesweepers to clear the 
mines, relying on the right of innocent passage. The International Court of Justice found the 
Albanians liable on the basis that they knew of the mines' presence but did nothing to warn the 
British warships. It also held the first passage of the warships through the channel lawful under 
law of the sea principles. However, it found that the minesweeping was not innocent and, 
therefore, violated Albanian sovereignty. See generally Corfu Channel (U.K. v. Alb.) 1949 I.C.J. 
4. Interestingly, for separate reasons, it was the UK which was awarded damages. 

50. Petersen, supra note 2, at 8. 

51. Combined Task Force Public Affairs, Operation Provide Comfort Fact Sheet, July 1, 
1994 (on file with author) . The fact sheet details other instances in which Coalition aircraft were 
threatened, and in which a forceful response ensued. 

52. Fact Sheet No. 4, supra note 47. The fact sheet details other uses offeree during the 
operations in the former Yugoslavia. See also Marian Nash, U.S. Practice: Contemporary Practice 
of the United States Relating to International Law (NATO Action in Bosnia), 88 AM. J. INT'L L. 5 15, 
522-25 (1994). 

53. Shanahan, supra note 2, at 15. The capture nearly caused the Dayton Peace Agreement 
process to breakdown. 

54. On the incident, see Aircraft Accident Investigation Board Report, Vol. II, Summary of 
Facts (unclassified, undated) (copy on file with author). 

55. Id. at 46 

56. Joint Chiefs of Staff, Department of Defense Dictionary of Military and 

ASSOCIATED TERMS, Joint Pub 1-02, 329 (1994). See also SROE, supra note 4, at GL-15. 

57. The National Command Authorities consist of the President and Secretary of Defense 
or their duly deputized alternates or successors. Joint Pub 1-02, supra note 56, at 253, 
<http://www.dtic.mil/doctrine/jel/old_pubs/jpl_02.pdf>. 

58. CARL VON CLAUSEWITZ, ON WAR 87 (Michael Howard & Peter Paret eds., 1984) . As 
he so perceptively noted, "the political object is the goal, war is the means of reaching it, and the 
means can never be considered in isolation from the purpose." Id. 

59. For example, in the former case, they make execution of the relief mission free from 
interference by a rogue State's aircraft and helicopters possible; in the latter, they may prevent 
military actions from the air that could threaten the fragile control over an on-going conflict. 

60. Similarly, consider the political consequences had SOUTHERN WATCH aircraft shot 
down one of the Iraqi military helicopters transporting Haj pilgrims returning from Mecca or 
engaged Iranian aircraft that penetrated the southern no-fly zone to attack the camps of Iranian 
opposition groups in Iraq. Iraqi Copters Cross No-fly Zone, TORONTO STAR, Apr. 23, 1997, at 
A-19; Baghdad Says Iran Bombed Exiles in Iraq, N. Y. TIMES, Sept. 30, 1997, at A-l. 

6 1 . Military lawyers (judge advocates) have long played an integral role in the development 
of ROE. See, e.g., Dep't of Defense Directive 5100.77, DoD Law of War Program Quly 10, 1979) 
(requires the Chairman of the Joint Chiefs of Staff and Unified and Specified Command 



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Commanders to ensure ROE comply with the law of armed conflict); JCS Memorandum MJCS 
0124-88, Implementation of DoD Law of War Program (Aug. 4, 1988) (on file with author) 
(legal advisers are to review ROE for compliance with the DoD Law of War Program) . The 
requirement for legal involvement in armed conflict is long-standing. See, e.g., Convention 
Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 1, 36 Stat. 2277, 205 
Consol. T.S. 277 [hereinafter Hague IV] (signatories are to issue instructions to their forces on 
the Convention's annex); Geneva Convention IV, supra note 6, art. 144 (Parties "undertake . . . 
to disseminate the text of the present Convention as widely as possible in their respective 
countries, in particular, to include the study thereof in their programmes of military and, if 
possible, civil instruction. . . ."); Protocol Additional I, supra note 6, art. 82 (". . . Parties . . . shall 
ensure that legal advisers are available when necessary, to advise military commanders at the 
appropriate level on the application of the convention and this Protocol and on the appropriate 
instruction to be given to the armed forces in this subject."). On the requirement for and role of 
legal advisers, see LESLIE C. GREEN, ESSAYS ON THE MODERN LAW OF WAR 73-82 (1985). 

62. Joint Pub 1-02, supra note 56, at 329 & 215 respectively. 

63. "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 other manner 
inconsistent with the Purposes of the United Nations." U.N. CHARTER art. 2(4). 

64. The Charter of the International Military Tribunal at Nuremberg specifically 
characterized "the wanton destruction of cities, towns or villages or devastation not justified by 
military necessity" as a war crime. Agreement for the Prosecution and Punishment of the Major 
War Criminals of the European Axis Powers and Charter of the International Military Tribunal, 
Aug. 8, 1945, art. 6(b), 59 Stat. 1544, 82 U.N.T.S. 279. The offense was further clarified in The 
Hostage Case: 

[Military necessity] does not permit the killing of innocent inhabitants for the purpose 
of revenge or the satisfaction of a lust to kill. The destruction of property to be unlawful 
must be imperatively demanded by the necessities of war. Destruction as an end in itself is 
a violation of international law. There must be some reasonable connection between the 
destruction of property and the overcoming of the enemy forces. 

The Hostage Case (U.S. v. List), 11 T.M.W.C. 759, 1253-54 (1950). Codification of the 
principle is in Article 23(g) of Hague IV, which prohibits acts that "destroy or seize the enemy's 
property, unless such destruction or seizure be imperatively demanded by the necessities of war." 
Hague IV, Annex, Regulations Respecting the Laws and Customs of War on Land, supra note 
61, art. 23(g). Though there is occasionally some discussion as to whether the article protects all 
property or only State property, both the U.S. Army and the International Committee of the Red 
Cross opine that it covers any property, wherever situated and however owned. See 2 
DEPARTMENT OF THE ARMY, INTERNATIONAL LAW (Pamphlet No. 27-161-2) 174 (1962); 
INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY: GENEVA CONVENTION 
RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 301 (Jean S. Pictet 
ed., 1958). 

65. During an international armed conflict, the issue usually arises in the context of a target 
that would be protected as a civilian object, but which in some way now contributes to the 
military effort. Since the law wishes to protect civilians and civilian objects, it imposes a 
requirement of directly contributing to an enemy's war effort before it will dispense with that 
protection. 

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66. E.g., air defense related facilities as in the case of DESERT STRIKE I & II in 1996. 
Transcripts of DoD Press Briefings on Desert Strike are collected at 
<http://www.defenselink.mil/iraq/brief.html>. Examples of necessity questions are, 
nevertheless, imaginable. For instance, it would violate the principle of military necessity to 
destroy an electrical generation station serving a city from which a shoulder-launched SAM had 
been launched simply to convince the other side not to launch additional missiles. In the no-fly 
context, the relationship between that act and the goal of precluding the SAM sites from 
engaging enforcement aircraft is too attenuated. 

67. Though the United States is not a Party to the agreement, Additional Protocol I contains 
two proportionality provisions, both of which the U.S. characterizes as declaratory of customary 
international law. Article 51 (5) provides that "an attack 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 advantage anticipated" is 
disallowed as indiscriminate. Article 57(2) (b) requires an attack to be canceled or suspended if "it 
becomes apparent that the objective is not a military one or is subject to special protection or that the 
attack 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 advantage anticipated." Additional Protocol I, supra note 6, arts. 51(5) & 57(2) (b) 
respectively. For a summary of Protocol I and the U.S. position on key articles, see INTERNATIONAL 

and Operations Law Division, Office of the Judge Advocate General, Dept of the 
Air Force, Operations Law deployment Deskbook, tab 12 (n.d.). An unofficial article often 

cited as accurately setting forth the U.S. position is Michael J. Matheson, Session One: The United 
States Position on the Relation of Customary International Law to the 1 977 Protocols Additional to the 1 949 
Geneva Conventions, 2 AM. U. J. INT'L L & POLT 419 (1987). 

68. The area (measured in range and altitude) in which targets can be effectively engaged 
and destroyed. 

69. The advantage calculation would shift if such violations occurred because the overall 
effectiveness of the zone would diminish. Thus, even under the principle of proportionality, 
downing subsequent similar violators following adequate warning might be justifiable. 

70. As noted in the Nuclear Weapons case, " [The] prohibition of the use of force is to be 
considered in the light of other relevant provisions of the Charter. In Article 51, the Charter 
recognizes the inherent right of individual self-defense if an armed attack occurs. A further lawful 
use offeree is envisaged in Article 42, whereby the Security Council may take military enforcement 
measures in conformity with Chapter VII of the Charter." International Court of Justice, Legality 
of the Threat or Use of Nuclear Weapons, General List No. 95, July 8, 1996, para. 41,35 I.L.M. 814 
(1996) [hereinafter Nuclear Weapons] . This point must not be carried to an extreme, for the Court 
was speaking to the issue of the resort to force, vice methods used to employ force. On the case, see 
Michael N. Schmitt, The International Court of Justice and the Use of Nuclear Weapons, 7 USAFA J. 
LEG. STU. 57 (1997) (and NAV. WAR C. REV., Spring 1998, at 91). 

71. The listing of sources found in Article 38 of the Statute of the International Court of 
Justice is generally recognized as being set forth in priority order. It provides: 

1. The Court . . . shall apply: 

(a) international conventions, whether general or particular, establishing rules expressly 
recognized by the consenting States; 

(b) international custom, as evidence of a general practice accepted as law; 

(c) the general principles of law recognized by civilized nations; 

(d) subject to the provisions of Article 59, judicial decisions and teachings of the most 



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highly qualified publicists of the various nations, as subsidiary means for the 
determination of rules of law. 

Statute of the International Court of Justice, art. 38(1), June 26, 1945, 59 Stat. 1055, T.S. 993, 3 
Bevans 1179. 

72. U.N. CHARTER art. 103. The International Court of Justice has in fact noted the 
primacy of Security Council actions. In the Lockerbie case, the Court declined to indicate 
provisional measures requested by Libya on the basis that Charter obligations prevail over those 
in other agreements such as the Montreal Convention. The Charter obligations were contained 
in Resolution 748 (1992), which cited Chapter VII as its basis. The holding of the Court 
illustrates the degree to which Council actions are determinative: "Whereas both Libya and the 
United States, as Members of the United Nations, are obliged to accept and carry out the 
decisions of the Security Council in accordance with Article 25 of the Charter; whereas the 
Court, which is at the stage of proceedings on provisional measures, considers that prima facie 
this obligation extends to the decision contained in resolution 748 (1992); and whereas, in 
accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail 
over their obligations under any other international agreement, including the Montreal 

Convention " Questions of Interpretation and Application of the 1971 Montreal Convention 

Arising from the Aerial Incident at Lockerbie, (Libya v. U.S.) 1992 I.C.J. , para. 39, 3 1 1.L.M. 662 
(1992). In The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, 
International Criminal Tribunal for the Former Yugoslavia, Decision on the Defense Motion for 
Interlocutory Appeal on Jurisdiction, para. 31, Oct. 2, 1995, 31 I.L.M. 32 (1996), the court 
rejected claims that the Security Council establishment of the Tribunal based on Chapter VII of 
the Charter was inappropriate. In particular, it stated that "the Security Council has a broad 
discretion in deciding on the course of action and evaluating the appropriateness of the measures 
to be taken." It declined even to consider the question of legality. 

73. The Vienna Convention on the Law of Treaties describes the norm, using the label 
"peremptory," as follows: "Art. 53. A treaty is void if, at the time of its conclusion, it conflicts 
with a peremptory norm of general international law. For the purposes of the present 
Convention, a peremptory norm of general international law is a norm accepted and recognized 
by the international community of States as a whole as a norm from which no derogation is 
permitted and which can be modified only by a subsequent norm of general international law 
having the same character." Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 
39/27 (1969), 63 AM.J.lNT'LL.875 (1969), 8 I.L.M. 679 (1969). It should be noted that Article 
64 of the Convention provides that "if a new peremptory norm of general international law of the 
kind referred to in Article 53 emerges, any existing treaty which is in conflict with that norm 
becomes void and terminates." Id. art., 64. 

74. The entire issue of jus cogens norms is controversial. Indeed, in North Sea Continental 
Shelf, 1969 I.C.J. 4, 42, the International Court of Justice noted that it was not "attempting to 
enter into, still less pronounce on any question of jus cogens. " In fact, there have been no cases in 
which a treaty provision, or implementation thereof, has been determined violative of a jus 
cogens norm. For conflicting views on the existence of jus cogens norms, see LAURI 

Hannikainen, Peremptory Norms in International Law: Historical Development, 
Criteria, Present Status (1988) and Jerzy Sztucki, Jus Cogens and The Vienna 
Convention on the Law of Treaties: A Critical Appraisal (1974). 

75. On the distinction between international and non-international armed conflict, see 
GREEN, supra note 6, at 52-66; MALCOLM N. SHAW, INTERNATIONAL LAW 815-821 (4th ed. 
1997). 

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76. The SROE guidance on the subject is as follows: "U.S. forces will always comply with 
the Law of Armed Conflict. However, not all situations involving the use of force are armed 
conflicts under international law. Those approving operational rules of engagement must 
determine if the internationally recognized Law of Armed Conflict applies. In those 
circumstances when armed conflict, under international law, does not exist, Law of Armed 
Conflict principles may nevertheless be applied as a matter of national policy. If armed conflict 
occurs, the actions of U.S. forces will be governed by both the Law of Armed Conflict and rules of 
engagement." SROE, supra note 4, at A-2 to A-3. The UN position is that the Law of Armed 
Conflict as articulated in the primary conventions (1949 Geneva Conventions, Protocols 
Additional, and the Cultural Property Convention) should apply in all peace operations. Draft 
Model Agreement Between the United Nations and Member States Contributing Personnel and 
Equipment to the United Nations Peacekeeping Operations, Report of the Secretary General 
(May 23, 1991), U.N. Doc. A/46/185, reprinted in UN PEACE OPERATIONS (Walter G. Sharp 
ed., 1995). The difficulty of determining the status of an armed conflict is illustrated by the case 
of the former Yugoslavia. Seemingly contradictory conclusions on the subject have been reached 
by the International Criminal Tribunal for the Former Yugoslavia. Compare Prosecutor v. 
Drazen Erdomovic, Case No. IT-96-22-A, Appeals Chamber Judgment, Oct. 7, 1997 (finding 
an international conflict vis-a-vis the Bosnian Croats) with Prosecutor v. Dusko Tadic, Case No. 
IT-94-1-T, Opinion and Judgment, May 7, 1997. On these cases, see Leslie C. Green, 
Erdemovic-Tadic-Dokmanovic: Jurisdiction and Early Practice of the Yugoslav War Crimes 
Tribunal (unpublished manuscript on file with author, forthcoming in LESLIE C. GREEN, 

Further Essays on the Modern Law of War, Transnational Pub.). 

77. As has been pointed out by others, ROE can also be viewed as a crisis management tool 
for commanders that allows them, when unable to be present personally, to exercise positive 
control over their forces during stressful situations. Viewed thusly, ROE do not so much limit a 
commander's courses of action, as they frame them. On the point, e.g., see Douglas C. Palmer, 
Rules of Engagement as an Operational Tool 1-3 (Feb. 22, 1993) (unpublished manuscript on 
file at NWC library). 

78. There is evidence that fear of prosecution in the event the ROE are violated has also 
contributed to hesitation to act in self-defense. In February 1993, Army Specialist James Mowris 
and his platoon were on patrol in a Somali village when they saw two men running in an adjacent 
military area that was abandoned. Mowris chased them and, by his account, fired a warning shot 
into the ground to convince them to stop. One of the Somalis was killed. Mowris was 
subsequently convicted of negligent homicide in a trial that suggested the ROE on the use of 
force were poorly understood by the soldiers. The court-martial convening authority 
subsequently decided to set aside the conviction. Mark S. Martins, Rules of Engagement for Land 
Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 17, 66 (1994). Apparently, one 
consequence of the prosecution was that soldiers in Somalia "were reluctant to fire even when 
fired upon for fear of legal action. It took weeks to work through this. . . . There is no doubt that 
this case had a major effect on the theatre." Letter from Colonel Wade H. McManus, Jr., 
Commander, Division Support Command, to Major General Guy A.J. LaBoa, Subject: Specialist 
James D. Mowris (Sept. 28, 1993), reprinted in I Record of Trial, U.S. v. Mowris, GCM No. 68 
(Fort Carson & 4th Inf. Div., July 1, 1993), cited in id. at 66. 

79. The principle requires belligerents to distinguish between valid military targets and 
civilians and civilian objects. It is codified in Protocol I Additional, supra note 4, art. 5 1 (4 & 5) . 

80. Deterrence, properly understood, is the product of the will and capacity perceived by 
the subject of the deterrent action. 



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81. The classic example of failure to adequately do so is the bombing of the Marine 
Headquarters at Beirut International Airport in October 1983. In that case, the ROE failed to 
account for an increase in the terrorist threat, as evidenced by the earlier bombing of the U.S. 
Embassy. Dep't of Defense, Report of the Commission on the Beirut International Airport 
Terrorist Act, October 23, 1983 (Dec. 20, 1983); various lectures by Professor Richard J. 
Grunawalt, Legal Counsel to the Commission, Naval War College, 1995-97. 

82. In aerial operations, "operator" is a term of art for a flyer. It is absolutely essential that 
the judge advocate have a basic understanding of operational concepts and weapons system 
capabilities. For a survey of these matters, see Robert A. Coe & Michael N. Schmitt, Fighter Ops 
for Shoe Clerks, 42 A.F.L. REV. 49 (1997). 

83. Recall, for instance, that Iraqi military helicopters penetrated the southern no-fly zone 
over Iraq to pick up pilgrims returning from the Haj. With regard to the decision not to engage 
the helicopters, DoD spokesman Kevin Bacon stated, "We are not prepared to stop what appear 
to be small-scale and humanitarian operations." Iraqi Copters Cross No- fly Zone, TORONTO 
STAR, Apr. 23, 1997, at A-19. 

84. A "combined operation" is "(a)n operation conducted by forces of two or more allied 
nations acting together for the accomplishment of a single mission." Joint Pub 1-02, supra note 
56, at 77. 

85. For a superb discussion of the right to self-defense in international law, see YORAM 

Dinstein, War, Aggression, and Self Defence 175-308 (2d ed. 1994). 

86. The hierarchy of self-defense is based in part on that set forth in the SROE. SROE, 
supra note 4, at A-4 to A-5. The SROE describe collective self-defense as a subset of national 
self-defense, and individual self-defense as a lesser included form of unit self-defense. It is 
probably more useful to think of them as separate entities that operate quite differently in 
differing contexts. 

87. Id. at A-6. 

88. This was made clear in the Nuclear Weapons case. There the International Court of 
Justice stated: "The submission of the exercise of the right of self-defense to the conditions of 
necessity and proportionality is a rule of customary international law. As the Court stated in the 
case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United 
States of America) (I.C.J. Reports 1986, p. 94, para. 176): 'there is a specific rule whereby 
self-defense would warrant only measures which are proportional to the armed attack and 
necessary to respond to it, a rule well-established in customary international law.' This dual 
condition applies equally to Article 51 of the Charter, whatever the means of force employed." 
Nuclear Weapons, supra note 70, at para. 41. 

89. SROE, supra note 4, at A-6. 

90. An act in self-defense must comport with both the elements of self-defense and the jus 
in hello. Nuclear Weapons case, supra note 70, at para. 42. 

91. Id. 

92. SROE, supra note 4, at GL-9. 

93. Id. 

94. 0( course, ROE are always contextual. If a similar aircraft employing identical tactics 
approached the no-fly-zone boundary the previous day and attacked an enforcement aircraft, the 
threshold for engaging on this day would certainly be lower. 

95. The MiG-25 downed by the SOUTHERN WATCH F-16 in December 1993 was likely 
testing U.S. resolve to enforce the zone. Petersen, supra note 2, at 8; William Matthews, 
Coverage of Iraqi No-fly Zone Increases, A. F. TIMES, Jan. 11, 1993, at 4. 



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96. The SROE cite four factors without amplification: 1) the state of international/regional 
political tension; 2) military preparations; 3) intelligence; and 4) indications and warning 
information. SROE, supra note 4, at GL-9. 

97. This is likely to be the case, e.g., in the event of a mistaken enforcement action, such as 
the Black Hawk shootdowns. Another example of a period posing such a risk was during the Iraqi 
involvement in the Kurdish in-fighting, the shift from Operation PROVIDE COMFORT to 
NORTHERN WATCH, and the resulting pullout of French forces. 

98. A SAMbush occurs when a SAM system "ambushes" an enforcement aircraft. For 
example, a mobile SAM system could be placed in a hidden location near the no-fly boundary. A 
"bait" aircraft might then fly quickly towards the line knowing this will cause the enforcement 
aircraft to maneuver into a position to engage the potential violator that is within range of the 
hidden SAM site. This is but one possible SAMbush scenario. 

99. Stand-downs are used to prepare the aircraft, plan, and ensure adequate rest for 
aircrews prior to combat. 

100. Chaff consists of metallic filaments released by the aircraft to disrupt ground-based 
radar by creating returns that effectively "cloud" it over. Flares are dropped to disrupt 
heat-seeking missiles. See Coe & Schmitt, supra note 82, at 81. 

101. If so, not only does this lower the likelihood of the act constituting hostile intent, it 
allows the aircrew greater time to make the hostile intent determination. 

102. That said, operators will typically look to the judge advocate to do so, pointing out the 
difficulty of making a complex determination in the mere seconds available in the cockpit. 
Self-defense being a legal standard, operators expect the judge advocate to determine which acts 
meet it. The temptation to do so must be resisted, for such a list places both national policy and 
aircrews at risk. The list will inevitably tend to be viewed as exclusive. 

103. The SROE language is as follows: "Commanders should use all available information to 
determine hostile intent. Intelligence, politico-military factors, and technological capabilities 
require a commander to consider a wide range of criteria in determining the existence of hostile 
intent. No list of indicators can substitute for the commander's judgment. The following 
guidance is not meant to be a 'checklist' but rather examples which taken alone or in 
combination might lead a commander to determine that a force is evidencing hostile intent. 
Among the actions that might lead to a reasonable belief that hostile intent exists are. . . ." 
SROE, supra note 4, at A-B-l. Though this particular caveat is for seaborne forces, a similarly 
worded proviso would be appropriate for aerial operations. 

104. For a discussion of this issue, see George Bunn, International Law and the Use of Force in 
Peacetime: Do U.S. Ships Have to Take the First Hit? NAVAL WAR C. REV., May-June 1986, at 69. 
The concern that political pressure will require excessive risk-taking is not new. During the 
Falklands Campaign, the Commander of the Falklands Battle Group was worried that "political 
requirements could result in our entering [the exclusion zone around the Falklands declared by 
the British] with our hands tied behind out backs. I thought it was all too possible that I was going 
to be told again, 'The enemy must fire the first shot.' " He was worried that his political masters 
would want the United Kingdom to appear the "wronged party." SANDY WOODWARD, ONE 
HUNDRED DAYS: THE MEMOIRS OF THE FALKLANDS BATTLE GROUP COMMANDER 108 
(1992). Admiral Woodward's concern appears well founded. In a joint U.S. Naval War College 
and UK Royal Naval Staff College seminar held in October 1996, the British position was that 
"UK ROE will normally accept the risk of first hit, i.e., do not fire unless fired on." Royal Navy 
Staff College Background Paper, ROE. Political Tool or Military Nightmare? (undated, n.p., on 
file with author). 



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105. Professor Dinstein adopts the terminology "interceptive" self-defense. It occurs after 
the other side has "committed itself to an armed attack in an ostensibly irrevocable way." He 
argues that interceptive self-defense is consistent with Article 51. DINSTEIN, supra note 85, at 
190. 

106. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), reprinted in JOHN 
BASSETT MOORE, 2 A DIGEST OF INTERNATIONAL LAW 411, 412 (emphasis added). The 
Caroline incident involved a Canadian insurrection in 1837. After being defeated, the insurgents 
retreated into the United States where they recruited and planned further operations. The 
Caroline was being used by the rebels. British troops crossed the border and destroyed the 
Caroline by setting fire to the vessel and sending her over Niagara Falls. Britain justified the 
action on the grounds that the United States was not enforcing its laws along the frontier and 
that the action was a legitimate exercise of self-defense. 2 DIGEST, supra, at 409-11. 

107. International Military Tribunal (Nuremberg) , Judgment and Sentence, 41 AM. J. INT'L 
L. 172, 205 (1947). The German leaders tried to justify the invasion of Norway as self-defense 
against an anticipated British attack from Norway. 

108. Along these same lines, it is occasionally asked whether an aircraft must "call home" to 
seek authority to act in self-defense. The SROE do require that the threatened aircraft call home 
if time permits. However, if there is time to radio to the air operations center (AOC) for 
instructions, usually the threat is not imminent. The crew may seek general guidance (or even 
authority to engage under the mission accomplishment rules), but in most cases it may not 
engage in self-defense until there is no longer time to call home — until the need is "instant and 
overwhelming." Simply put, the imminency requirement is that an enforcement aircraft may not 
act in self-defense until it has to, but it need not necessarily wait until the hostile intent is about 
to become a hostile act. 

109. Of course, though the right to self-defense is no longer operative, it cannot be 
overemphasized that mission accomplishment ROE may provide a separate and distinct 
authorization to engage. 

110. Note that a "clear and unambiguous" breaking off of the engagement will be difficult to 
discern. Therefore, it is tactically sound and legally acceptable to continue the fight until 
convinced it is over. 

111. It would also appear to conflict with the general approach to surrender of aircraft during 
armed conflict, i.e., that surrenders are seldom accepted in aerial combat because of the difficulty 
of verifying true status. DEPT OF THE AIR FORCE, INTERNATIONAL LAW— THE CONDUCT OF 

Armed Conflict and Air Operations (AFP 110-31), para. 4-2d (1976). 

112. Such missions are labeled SEAD — suppression of enemy air defenses. When the sites 
are actually destroyed, vice simply suppressed for a period sufficient to allow friendly aircraft to 
transit the area, SEAD is sometimes labeled DEAD — destruction of enemy air defenses. See Coe 
& Schmitt, supra note 82, at 53. It is important to understand that tactics are situation specific. If 
the aircraft being threatened is armed with a HARM, a missile specifically designed to home in 
on a target's radar emission (and thus very useful against SAM sites), then the best course of 
action may well be to attack immediately. For this reason, it may be prudent to send a HARM 
"shooter" into the WEZ first to determine whether the SAM site is likely to act aggressively. 
Descriptions of air-to-ground weapons are found in id. at 67-70. 

113. This is a particular problem for reconnaissance missions. No-fly zone or associated 
operations generally have a reconnaissance component to allow the task force to remain 
apprised of the threat to enforcement aircraft. Unfortunately, tactical reconnaissance aircraft 
usually must fly within the WEZ of the site it is imaging to secure photos that are of sufficient 
clarity for use in identifying threats. Thus, such aircraft cannot simply fly around or above 



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ground-based threat systems. 

It should be pointed out, in this regard, that the U.S. definition of self-defense does allow a 
reaction to hostile acts intended to impede the mission. Illumination with fire control radar, 
however, is a demonstration of hostile intent, not a hostile act, and the hostile intent provision 
does not extend to impeding mission accomplishment. Moreover, as a matter of international 
law vice national policy, acting in response to an effort to impede the mission is more an act of 
self -help than of self-defense, though the use of force as a means of self-help under the Charter 
regime is controversial. See VON GHLAHN, supra note 6, at 633-62. On self-help in a peacetime 
context, see Corfu Channel, supra note 49. 

114. This possibly became somewhat of a reality in Operation DENY FLIGHT. NATO 
commanders wanted to attack SAM sites in Bosnia-Herzegovina that threatened enforcement 
aircraft. The UN disapproved the proposal out of fear that the action might result in retaliation 
against UNPROFOR troops on the ground. As a result, NATO aircraft enforcing the ban were 
required to fly outside the WEZs of known sites. Steven Watkins, Does Deny Flight Still Work? 
A. F. TIMES, July 24, 1995, at 3. In this case, operational concerns gave way in the face of greater 
UN policy implementation. 

115. One must be careful about black and white characterizations of lawfulness. The 
determination of actual necessity will be made in the cockpit based on the aircrew's subjective 
judgment. 

116. SROE, supra note 4, at A-5. 

117. For instance, the IFOR (ground) ROE guidelines on opening fire provided, "You may 
only open fire against a person if he/she is committing or about to commit an act LIKELY TO 
ENDANGER LIFE, AND THERE IS NO OTHER WAY TO STOP THE HOSTILE ACT" (emphasis in 
original). Force Commander's Policy Directive Number 13, Rules of Engagement, Part I: Ground 
Forces, July 19, 1993, reprinted in Bruce D. Berkowitz, Rules of Engagement for U.N. Peacekeeping 
Forces in Bosnia, ORBIS, Fall 1994, at 635, 643. 

118. This does not mean that an attack on the country's air defense system would be illegal. 
It simply means that it would not be justifiable under the principle of self-defense. This point 
emphasizes the fact that actions during no-fly operations, other than in self-defense, are 
essentially political in nature. 

119. Care must be taken not to read this principle too liberally. It is not a justification for 
risking the downed survivor. Uncertainty should always be resolved in favor of protecting the 
crew member or other assets involved in the CSAR effort. 

120. SROE, supra note 4, at A-5. 

121. Id. atGL-10. 

122. See. e.g., The Hostage Case (U.S. v. List), 11 T.W.C. 759 (1950) (acquitting general 
who had ordered destruction during German evacuation of Norway on basis that destruction was 
necessary due to general's mistaken belief that Soviets were pursuing his forces). For an example 
of such an evaluation in the context of state-sponsored assassination, see Michael N. Schmitt, 
State-Sponsored Assassination in International and Domestic Law, 17 YALE J. INT'L L. 609, 648-650 
(1992). 

123. For an excellent article on ground forces ROE and training, which contains many 
principles that can be applied to the aerial environment by analogy, see Martin, supra note 78. 

124. The SROE includes the following provision repeatedly throughout the document. 
"These rules do not limit a commander's inherent authority and obligation to use all necessary- 
means available and to take all appropriate action in self-defense of the commander's unit and 
other U.S. forces in the vicinity." See e.g., SROE, supra note 4, at A-3. 

125. The relevant provisions of the SROE are as follows: 



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(1) U.S. forces assigned to the OPCON [operational control] of a multinational force 
will follow the ROE of the multinational force unless otherwise directed by the NCA. US 
forces will be assigned and remain OPCON to a multinational force only if the combatant 
commander and higher authority determine that the ROE for that multinational force are 
consistent with the policy guidance on unit self-defense and with the rules for individual 
self-defense contained in this document. 

(2) When U.S. forces, under US OPCON, operate in conjunction with a 
multinational force, reasonable efforts will be made to effect common ROE. If such ROE 
cannot be established, U.S. forces will exercise the right and obligation of self-defense 
contained in this document while seeking guidance from the appropriate combatant 
command. To avoid mutual interference, the multinational force will be informed prior to 
U.S. participation in the operation of the U.S. forces' intentions to operate under these 
SROE and to exercise unit self-defense. 

Id. at A-l. The need to seek common ROE extends beyond multinational concerns to the 
consistency of ROE as between U.S. forces. On at least two occasions, different sets of ROE 
applicable to U.S. forces have not been consistent. During operations in Somalia in 1994, there 
was a point at which U.S. snipers had more restrictive ROE than those assigned to UNOSOM II 
(United Nations Operations in Somalia II). This was the result of an incident in which a U.S. 
sniper acting in compliance with the ROE killed a Somali in the back of a truck armed with a 
crew-served weapon that was approaching a U.S. compound. Soon thereafter, Somalis appeared 
charging that he had shot a pregnant woman. In the ensuing brouhaha, the U.S. JTF changed its 
rules on snipers, while UNOSOM did not. See F.M. Lorenz, Rules of Engagement in Somalia: Were 
they Effective? 42 NAVAL L. REV. 62, 69-72 (1995). The second incident occurred during 
Operation JOINT ENDEAVOR. When the operation commenced, some U.S. forces involved were 
assigned to IFOR, while others were not. The former applied NATO ROE; non-IFOR troops 
were governed by U.S. ROE, including the SROE. NATO ROE were eventually made applicable 
to all U.S. forces in the Area of Responsibility (AOR). Letter from Headquarters, European 
Command to Commandant (sic), Naval War College, Subj: Lessons Learned from Operation 
JOINT ENDEAVOR, June 28, 1996, USAFE/JA Joint Universal Lessons Learned QULL) (n.p.) 
(on file with author) . 

126. SROE, supra note 4. On the SROE generally, see Grunawalt, supra note 4. 

127. The previous rules primarily governed operations during peacetime. The decision was 
made that this approach had the potential for creating confusion in the transition from peace to 
war. Therefore, the current iteration was designed to apply regardless of the state of conflict. The 
1988 Peacetime Rules of Engagement were promulgated by Memorandum from Secretary of the 
Joint Staff for Unified and Specified Combatant Commanders and Commander U.S. Element, 
NORAD, Peacetime Rules of Engagement for U.S. Forces (Oct 28, 1988) (on file with Oceans 
Law and Policy Dep't, Naval War College). The current ROE provide: "These ROE apply to 
U.S. forces during all military operations and contingencies. Except as augmented by 
supplemental ROE for specific operations, missions, or projects, the policies and procedures 
established herein remain in effect until rescinded." Chairman of the Joint Chiefs of Staff 
Instruction (CJCSI 3121.01), CJCS Cover Letter (the Instruction itself), Oct. 1, 1994, at para 3. 
The SROE do not apply when military forces are assisting federal and local authorities during a 
civil disturbance or disaster. Id. at A-2. 

128. Unless, of course, there are combined rules of engagement for the particular operation 
with which all contributing States must comply. In such cases, the combined operation's rules 

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supplant the SROE for the purposes of that operation. As noted above, though, the U.S. will not 
be bound by such rules unless they are consistent with the U.S. position on self-defense. 

129. Though much of the enclosure is classified, the first eight pages contain general 
information on self-defense that is not. This section can be used as a strawman for the 
development of coalition self-defense ROE. 

130. The Combatant Commands are established in 10 U.S.C. 164. In layman's terms, they 
are the broadest military organizations which employ combat forces. Combatant commands 
report directly to the NCA (President and Secretary of Defense) . They may be organized either 
geographically or functionally. The five geographic commands are Atlantic Command (primarily 
continental U.S.), European Command, Pacific Command, Central Command (Middle East), 
and Southern Command (Latin America). The functional commands are Strategic Command, 
Transportation Command, Special Operations Command, and Space Command. On command 
relationships, see Joint Chiefs of Staff, Unified Action Armed Forces (Joint Publication 0-2), 
Feb. 24, 1995. 

131. For instance, NORTHERN WATCH is a European Command operation, whereas 
SOUTHERN WATCH falls under the control of Central Command. Only Central Command, 
Pacific Command, and Southern Command have issued ROE of their own. 

132. Drawing on a naval example, some States define disabling fire as firing into the rudder, 
whereas others define it as firing into the bridge. Similarly, warning shots at sea are variously 
described as firing across the bow, firing into the funnel, and raking the bridge. 

133. The planning and execution process for U.S. military operations is described in JOINT 

Chiefs of Staff, Doctrine for Planning Joint Operations Qoint Pub. 5-0), April 23, 
1995. 

134. The bombing of the Marine Barracks in Beirut in 1983 is the generally cited example of 
failure in this regard. The Commission found that the "ROE contributed to a mind-set that 
detracted from the readiness of the [Marines] to respond to the terrorist threat which 
materialized on 23 October 1983." Commission Report, supra note 81, at 135. 

135. E.g., the missile may not have the range of the radar associated with the SAM system. 

136. This rather black and white assertion must be tempered by operational prudence. For 
instance, intelligence sources may indicate a missile has a certain range, but it may, in fact, have 
a greater range than advertised or previously witnessed. 

137. Radars operate in various modes. In the acquisition mode, they simply search the sky for 
targets. In the target tracking (fire control) mode, they are locked on to and follow a particular 
target in preparation for launch. In missile guidance mode, radar guides a missile that has been 
launched to target. Whether or not the functions are distinct (and distinguishable by aircraft) 
depends on the radar system. For example, the phased array radar on an Aegis cruiser performs 
all three functions. 

138. The guidance can take multiple forms. In Operation NORTHERN WATCH, e.g., it is in a 
booklet entitled the Commander's Guidance on the Application of the Rules of Engagement, 
which is one part of an overall set of guidance labeled the Consolidated Operating Standards. In 
SOUTHERN WATCH, by contrast, the guidance is contained in a Special Instruction (SPIN) 
issued by the JTF Commander. 

139. For example, by employing the technique of illuminating aircraft with SAM system fire 
control radars discussed supra in the section on self-defense. 

140. The mission is performed by the U.N. Special Commission (UNSCOM). 

141. This need is compounded by the distribution of similar aircraft in the air forces of many 
States. For instance, during DESERT STORM, both Iraq and members of the Coalition flew 
French-made Mirages and Soviet-built MiGs. 



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142. Over the course of the last fifty years, there have been a number of incidents in which 
military aircraft were downed during peacetime operations. For instance, in 1952 and 1954, 
Soviet aircraft shot down B-29s over Japan, in 1953 a USAF F-84 was downed by Czech fighters, 
and the Soviets shot down a U.S. Navy P-2 in 1959. In each case, international condemnation 
focused on the fact that the aircraft had inadvertently, vice intentionally, violated foreign 
airspace. However, when a U-2 was shot down by the Soviets over Soviet territory in 1960 there 
was a relative lack of condemnation. These incidents would tend to support the contention that 
it is intent of the downed aircraft that will drive international assessments of legality. In the case 
of a no-fly zone, the intent of a combat aircraft to violate an internationally "sanctioned" 
prohibition approaches res ipsa loquitor status. On the incidents, and the reaction thereto, see 
1956 I.C.J. Pleadings, Aerial Incident of Oct. 7, 1952 (U.S. v. U.S.S.R.); 1959 I.C.J. Pleadings, 
Aerial Incident of Nov. 7, 1954 (U.S. v. U.S.S.R.) ; 1956 I.C.J. Pleadings, Aerial Incident of Mar. 
10, 1953 (U.S. v. Czech); 1958 I.C.J. Pleadings, Aerial Incident of Sept. 4, 1954 (U.S. v. 
U.S.S.R.); Schmitt, Aerial Blockades, supra note 7, at 51-52. 

143. One hundred six deaths resulted. KAL 007 was certainly not the first incident of a civil 
airliner being downed. In 1954 the Chinese shot down a Cathay Pacific airliner which they 
mistakenly believed to be a Nationalist Chinese military aircraft. Keesings Contemporary 
Archives 13733 (1954). Other incidents of downing civil airliners include downings of: an Air 
France airliner over Berlin in 1952; an El Al airliner in 1955 by Bulgaria; a Libyan airliner by the 
Israelis over the Sinai Peninsula in 1973; and the forced landing of a Korean Air Lines aircraft in 
1983 by the Soviets. See Schmitt, Aerial Blockades, supra note 7, at 52. See also Bin Cheng, The 
Destruction of KAL Flight KE007, and Article 3 Bis of the Chicago Convention, in AIRWORTHY: 

Liber Amicorum Honouring Professor Dr. I.H. Ph. Dierdericks-verschoor 49, 55 

(J.W.E. Storm van Gravesande & A. van der Veen Vonk eds., 1985); Craig A. Morgan, The 
Shooting of Korean Airlines Flight 007: Responses to Unauthorized Intrusions, in INTERNATIONAL 
INCIDENTS: THE LAW THAT COUNTS IN WORLD POLITICS 202, 204-210 (W. Michael 
Reisman & Andrew Willard eds., 1988); and John T. Phelps, Aerial Intrusions by Civil and 
Military Aircraft in Time of Peace, 107 MIL. L. REV. 255, 266-274 (1985). 

144. The text of the draft resolution (S/15966/Rev. 1) is reprinted at 22 I.L.M. 1 148 (1983) . 
Poland also voted against the resolution, and the P.R.C., Guyana, Nicaragua, and Zimbabwe 
abstained. U.N. Doc. S/PV.2476 (1983), reprinted in 22 I.L.M. 1138, 1144 (1983). 

145. ICAO Council Resolution, Sept. 16, 1983, 22 I.L.M. 1150 (1983). 

146. ICAO Council Resolution, Mar. 6, 1984, 23 I.L.M. 937 (1984). 

147. Protocol Relating to an Amendment to the Convention on International Civil 
Aviation (Article 3 bis), May 10, 1984, reprinted in 23 I.L.M. 707 (1984). 

148. Use of the term "recognize," in light of rules of interpretation, would suggest it was 
intended to be declaratory For a discussion of Article 3 bis, see Cheng, supra note 143, at 60-61; 
Gerald F. Fitzgerald, The Use of Force Against Civil Aircraft: The Aftermath of the KAL 007 
Incident, 1984 CAN. Y.B. INTL L. 291; Michael Milde, The Chicago Convention After 40 Years, 9 

Annals of Air & Space Law 119 (1984). 

149. Convention on International Civil Aviation (Chicago Convention), Dec. 7, 1944, 
annex 2 (Rules of the Air), 15 U.N.T.S. 295, T.I.A.S. No. 1591, 61 Stat. (2) 1 180, 3 Bevans 944, 
reprinted in 22 I.L.M. 1154 (1983). See also, Schmitt, Aerial Blockades, supra note 7, at 56-64. 

150. The F— 15 pilots misidentified the Black Hawks as Iraqi Mi-24 Hinds during their visual 
identification. See Aircraft Accident Investigation Board Report, Executive Summary, Vol. I 
(May 27, 1994) at para. 3 (on file with author). 

151. Legally, it does not matter where the level is set, so long as the execution of the 
engagement, and the criteria therefore, are appropriate. Of course, the system of authorization 



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cannot be so complex that it fails to function effectively. It has been argued that during DENY 
FLIGHT, the requirement to secure both NATO and UN approval for the use of force (in mission 
accomplishment) frustrated accomplishment of the mission. The problem was not that of 
connectivity (i.e., technology for communications), but rather unwieldy and slow 
decision-making. See Brian G. Gawne, Dual Key Command and Control in Operation Deny 
Flight: Paralyzed by Design (Nov. 1996) (unpublished manuscript on file at NWC library). 

152. For instance, in the case of the four Galebs shot down by NATO fighters in 1994, they 
were first warned by NATO AW ACS monitoring the area. They then were warned off by the 
fighters. After these warnings went unheeded, the fighters had to secure authority from the 
NATO Combined Air Operations Center before they could engage the violators. Nash, supra 
note 52, at 524. 

153. On the threats, see Containing Saddam, THE ECONOMIST, Nov. 15, 1997, at 16; Saddam 
v. the UN, Continued, THE ECONOMIST, Nov. 15, 1997, at 43. 

154. For example, if operations are run out of a base in country X, can country X's aircraft be 
defended even if they are engaged in operations wholly unrelated to the no-fly enforcement 
operation? The default answer is no, absent authorization to the contrary. 

155. E.g., do the ROE permit forces to cross a border in order to effectively defend X's 
aircraft? 

156. Nicaragua Case, supra note 20, at 104-5. 

157. Of course, this begs the policy question of why U.S. forces should place themselves at 
risk in circumstances in which a State's own forces would not do so. 

158. The classic example is cross-border operations during Operations PROVIDE COMFORT 
and NORTHERN WATCH against Kurds using northern Iraq as a sanctuary in their war against 
the Turks. Turkey is also at odds on a recurring basis with Syria. 

159. Trail Smelter was a case involving a smelter that was discharging sulfur dioxide near 
Trail, British Columbia. The United States alleged that the sulfur dioxide drifted over parts of 
Washington. The arbitration tribunal held for the United States on the ground that countries 
have a duty not to use, or allow the use of, their territory for activities harmful to another State. 
Trail Smelter (U.S. v. Can.) 3 R.I.A.A. 1911, 1965 (1941). 

160. See AFP 110-31, supra note 111, at para. 2-5; DEPT OF THE NAVY, THE 
COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS (NWP 1-14M), para. 
2.5.1 (1995). Note, e.g., that in the law of the sea there is a right to innocent passage through the 
territorial sea. No such right exists in the airspace. NWP 1-14M, id. at para. 2.5.1. 

161. For an excellent discussion of aerial hot pursuit, see N.M. POULANTZAS, THE RIGHT 

of Hot Pursuit in International Law 271-352 (1969). Roach cites a form of pursuit 

labeled "self-defense pursuit," distinguishing it from the hot pursuit of the law of the sea. Roach, 
supra note 4, at 50. Self-defense pursuit would certainly be appropriate in the aerial 
environment; however, because of the speeds involved, it would be less a pursuit than merely an 
ongoing engagement. 

162. Poulantzas describes incidents of pursuit during armed conflicts not amounting to war, 
rejecting the contention that a right to enter a 3rd State's territory exists absent consent. 
POULANTZAS, supra note 161, at 329-338. 

163. Note that the State would be obligated to act to keep its territory from becoming a 
sanctuary by virtue of Article 2(5) of the Charter. That article provides that "(a) 11 Members . . . 
shall refrain from giving assistance to any state against which the United Nations is taking 
preventive or enforcement action." U.N. CHARTER art. 2(5). 

164. The classic case on sanctuary in the law of armed conflict involves the Altmark, a 
German naval auxiliary vessel during the Second World War. In 1940, the Altmark transited 



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Norwegian territorial waters carrying British prisoners. Permission to transit had been granted by 
the Norwegians, who had also refused British requests that the vessel be searched for prisoners. 
After the Altmark had passed through nearly 400 miles of Norwegian waters, a British destroyer 
entered the waters and released the prisoners. The British justified their action in part on the 
basis that the German vessel was using Norwegian waters improperly as sanctuary. On the 
incident, see ROBERT W. TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 236-39 (50 
Naval War College International Law Studies, 1955). 

165. A colorable argument could be offered that crossing into the sanctuary State would be 
authorized by the original mandate because the sanctuary State is unable or unwilling to comply 
with its own obligations under the Charter. However, doing so may present a very real threat in 
terms of an intercept on enforcement aircraft by sanctuary aircraft alleging a violation of their 
airspace. Further, it would certainly be less politically disruptive to allow the Security Council to 
address the matter. 

166. The Air Force law of war manual states that "No settled international rule permits 
intrusion of military aircraft into national airspace on the grounds of mistake, duress, distress or 
other force majeure." AFP 110-31, supra note 111, para. 2-5d. The Navy version, by contrast 
notes that "(a)ircraft in distress are entitled to special consideration and should be allowed entry 
and emergency landing rights." NWP 1-14M, supra note 160, para. 2.5.1. 

167. The right of assistance entry into airspace is less settled. On the U.S. policy regarding 
assistance entry, see Joint Staff, Guidance for the Exercise of Right of Assistance Entry (CJCSI 
2410.01A),Apr. 23, 1997. 

168. In fact, there is just such an obligation in international agreements for the recovery of 
astronauts. See Treaty on Principles Governing the Activities of States in the Exploration and 
Use of Outer Space, Including the Moon and Other Celestial Bodies, art. V, Jan. 27, 1967, 18 
U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205; Agreement on the Rescue of Astronauts, 
and the Return of Objects Launched into Outer Space, arts. 1-4, Apr. 22, 1968, 19 U.S.T. 7570, 
T.I.A.S. No. 6599, 672 U.N.T.S. 119. 

169. As a practical matter, in a CSAR situation it may be more dangerous to attempt to 
defend the downed crew member than seek "repatriation" after capture. The on-scene 
commander must direct only tactically sound and safe procedures unlikely to worsen the crew 
member's situation. 

170. The risk of a mistake is two-fold. First, there are aircraft which are not forbidden to fly in 
the zone (e.g., relief aircraft). Secondly, there is always the possibility of a blue-on-blue 
engagement, i.e., one in which a friendly aircraft is engaged. For a brief discussion of this latter 
issue, see Paul M. Ziegler, Considerations for the Development of Theater Hostilities Rules of 
Engagement: Blue-on-Blue Versus Capability Sacrifice (Nov. 1992) (unpublished manuscript on 
file at NWC library). 

171. On the issue of IFF squawks, see Coe & Schmitt, supra note 82, at 78-79. The 
importance of IFF was tragically demonstrated in the Black Hawk incident. The helicopters were 
squawking a Mode I code that was incorrect for the location they were in. The Mode IV code for 
"friendly" was only received momentarily by the lead F— 15. The wingman received no Mode IV 
response. It remains unexplained as to why the Mode IV interrogation was unsuccessful. Board 
Report, Executive Summary, supra note 150, at 5. 



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The Emerging Role of NATO in 
UN Peace Enforcement Operations 

James P. Terry 



HE RAPID GROWTH OF PEACE ENFORCEMENT REQUIREMENTS 
has obliged the United Nations to seek new avenues of cooperation 
with groups of member States already organized for joint military action, such 
as NATO. 1 This fact, coupled with Congressional concern that American 
forces serve under responsible leadership and that strict standards are adhered 
to in determining whether U.S. forces should participate in any peace 
enforcement operation, suggests that U.S. participation in such operations will 
be significantly restructured in the future. 

This restructured participation in international peacekeeping will likely 
drive similar rethinking among our major allies and other regular contributors 
to these operations. From the U.S. perspective, participation in these 
operations must now comply with the tenets of Presidential Decision Directive 
(PDD) 25. 2 This directive, which requires clear accountability in deciding 
when to participate, when to assign forces, and under what conditions, will 
likely preclude U.S. participation in Somalia-style operations in which UN 
leadership proved inadequate. 3 

The renewed U.S. interest in extending the NATO Charter to encompass 
threats beyond present NATO borders, 4 as evidenced in the current NATO-led 



UN Peace Enforcement Operations 



Bosnia peace operation, suggests regional organizations such as NATO may 
become the leadership element of choice for future UN -sponsored 
peacekeeping and peace enforcement operations. 

U.S. Concerns with UN-Led Peace Operations 

Recent U.S. experience with the United Nations suggests that there are a 
limited number of States with the experience required to lead peace 
enforcement operations effectively. This creates difficulties in two ways. While 
the UN must rely upon those states with experienced leadership and highly 
trained forces for its more difficult operations to succeed, it must also provide 
some opportunity for participation to each of its 188 member States. This 
suggests that the UN must be encouraged to increase its capability to conduct 
Chapter VI peacekeeping operations 5 where a cease-fire exists and 
enforcement issues are minimal, and that Chapter VII enforcement 
operations 6 might be better left to regional organizations such as NATO under 
Chapter VIII of the UN Charter. 

In the nearly seven years since our participation and leadership role in 
Operation Desert Shield/Desert Storm in support of the government of 
Kuwait, the United States has contributed significant forces, at great financial 
cost, to three complex military initiatives conducted under the authority and 
direction of the UN, and one currently being undertaken under NATO 
leadership. The military commitments undertaken under UN leadership in 
Somalia, Haiti, and Bosnia, 7 as well as the current NATO-led operation in 
Bosnia, 8 responded to multilateral requests for assistance voted upon in 
Security Council Resolutions. In another, the humanitarian effort in Rwanda, 
our participation was significant, although combat troops were not directly 
engaged. In each instance of our participation under UN leadership, the 
resulting opposition by Congressional leaders has been forcefully expressed on 
the floor of the House and Senate. In the case o{ Somalia, the Byrd and 
Kempthorne Amendments forced the U.S. withdrawal from that theater by 31 
March 1994. 9 

The carefully developed response of the Clinton administration to these 
legislative pressures is found in PDD 25. The U.S. has strongly encouraged the 
UN and its Department of Peacekeeping Operations (DPKO) to 
institutionalize a similar policy analysis in its review o{ those troubled areas 
where the use of military force may be the only available international option. 
We have recently witnessed greater discrimination in DPKO decision-making 

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James P. Terry 

with respect to proposed operations in Burundi, Liberia, and Angola, 
suggesting the UN's own recognition of the benefit of this rigorous analysis. 

What may be more significant for the UN is its apparent recognition of its 
own limitations in addressing peace enforcement operations under Chapter VII 
of the UN Charter where "all necessary means" are required. In supporting the 
current NATO leadership role in Bosnia, the UN leadership appears to have 
faced up to its lack of credibility in the areas of logistics support, intelligence 
gathering, operational leadership, and necessary airlift. For U.S. leaders, it is 
apparent the PDD 25 analysis simply will not authorize continued U.S. support 
for a UN leadership role in these operations — especially if regional 
organizations such as NATO can successfully exercise an expanded charter. 

PDD 25 Principles Support Leadership by Regional Organizations 

Presidential Decision Directive 25, signed in May 1994, is based upon the 
same principles that underlie the Weinberger Doctrine 10 of 1984. The 
Directive provides for careful analysis of those factors most relevant to 
determining whether, when, how, and to what degree the U.S. should 
participate militarily in international peacekeeping and peace enforcement 
operations. The PDD 25 policy also requires a thorough assessment and 
continuing reassessment of our role to ensure that the operation to which we 
have committed forces is effective, well led, and operating within appropriate 
rules of engagement. The integrated leadership structure within NATO allows 
for this required assessment process, while UN-led force structures, such as 
those cobbled together in recent years for peace enforcement, may not. 

The impetus for the PDD, like the Weinberger Doctrine before it, came from 
a tragic loss of U.S. lives while U.S. forces were serving at the behest of the 
international community. Just as the purpose of the 1984 doctrine was to 
prevent the reoccurrence of another Beirut bombing incident in which 241 
servicemen lost their lives to Shiite extremists, the immediate purpose of the 
PDD was to prevent another disaster such as we experienced in Mogadishu, 
Somalia, where eighteen Americans were killed by General Mohammed Farah 
Aidid's forces in October 1993. 11 

The bombing in Beirut can be traced in part to an unwitting shift in the U.S. 
operational posture from that of a non-partisan U.S. force patrolling various 
areas of the city and providing security at the Beirut International Airport to 
that of a partisan force with U.S. naval forces executing fire missions on behalf 
of the Lebanese Armed Forces. The tragedy in Mogadishu was similar in that 
our operational awareness of the intentions of Aidid was lacking and the force 

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UN Peace Enforcement Operations 



committed did not reflect the actual requirements. Both PDD 25 and the 
Weinberger principles are designed to preclude the same lack of situational 
awareness that arose in Beirut and Somalia. 

When Secretary Caspar W. Weinberger outlined specific requirements for 
U.S. military involvement, he was not concerned with peace operations per 
se. u Nevertheless, those principles, stated below, remain cogent, rational 
beacons in any reasoned analysis of the conditions underlying a decision to 
commit forces in every military operation, to include peacekeeping and peace 
enforcement under a NATO aegis. 

• Any use of force must be predicated upon a matter deemed vital to our 
national interest. 

• The commitment must be undertaken with the clear intention of 
winning. 

• We must have clearly defined political and military objectives. 

• The forces committed must be sufficient to meet the objectives. 

• There must be reasonable assurance that we have the support of the 
American people. 

• The commitment of U.S. forces to combat must be a last resort. 
Similarly, the principles within PDD 25 are presented as factors to be 

considered in a decision to commit U.S. forces, and equally important, as 
criteria required for the successful deployment of those forces. Of necessity, the 
conditions and requirements for a Chapter VII peace enforcement action are 
greater than for a Chapter VI peacekeeping initiative. As a necessary first step, 
the PDD requires that before voting for and supporting a peacekeeping or peace 
enforcement operation in the UN Security Council, the U.S. must ask whether 
the situation represents a threat to international peace and security. Second, 
does the proposed operation, as outlined by the Secretary General or the 
leadership of a regional organization, have a defined scope with clear 
objectives? Third, is there an international community of interest for dealing 
with the problem on a multilateral basis? Fourth, if a Chapter VI peacekeeping 
operation is contemplated, is there a working cease-fire in place? Fifth, are 
there financial and human resources available? Finally, is there an identifiable 
end-point? 

These are the same factors the U.S. considered in supporting the current 
NATO-sponsored peace operation in Bosnia. The PDD similarly requires that 
these factors be considered in determining when to extend an existing 
operation, such as recently occurred when the Congress approved the 
Administration's decision to extend the Bosnia operation. In addition, when 
significant U.S. troop involvement is contemplated in peace enforcement 



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James P. Terry 

operations where all necessary means are authorized, U.S. decision makers 
must now ask whether we have: 

• The ability to commit sufficient forces to achieve our clearly defined 
political and military objectives; 

• A clear intention to decisively achieve these objectives; and 

• The commitment on the part of the UN or a regional organization to 
continually reassess and adjust the objectives, rules of engagement, and 
composition of the force to meet changing operational demands. 

In committing to participate in the current peace enforcement initiative in 
Bosnia, President William Clinton determined that the PDD 25 requirements 
could only be met through a NATO-led operation. While U.S. leaders 
recognized that a cohesive force led by NATO leaders offered a more effective 
means of "executing" the UN mission in Bosnia, there is recognition on the 
part of all NATO members that the UN must remain the primary international 
"authority" under whose aegis these operations are conducted. 

NATO's Role in International Peacekeeping Under the UN Charter 

Chapter VIII of the UN Charter 13 refers to regional organizations, such as 
NATO, in the context of appropriate regional action in the maintenance of 
international peace and security. 14 It is in this area that a relationship exists 
between the two organizations, with ultimate authority centered in the United 
Nations. Excepting the area of international peace and security, however, the 
relationship between the UN and NATO is not hierarchical. 

When the NATO Charter was established in 1949 by the Treaty of 
Washington, 15 it made no mention of any relationship to the Security Council 
as a "regional arrangement," nor did it contain any provision providing for 
action only upon the authorization of the Security Council, or for reporting 
activities "in contemplation." Instead, the Treaty of Washington expressed the 
obligation of NATO's member states to be that of "collective self-defense" 
under Article 5 1 of the UN Charter and, correspondingly, embodied only the 
obligation to report "measures taken" to the Security Council. 16 This 
formulation was adopted by the United States and its NATO allies because 
subordination of NATO actions as a regional arrangement to Security Council 
review in advance during the Cold War would have subjected all actions to 
Soviet veto. By characterizing NATO's military actions as "collective 
self-defense" under Article 51, there would be no action of a "regional 
arrangement" under Chapter VIII of the UN Charter and no prior Security 
Council review. 

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UN Peace Enforcement Operations 



The concerns described above and similar concerns with regard to a possible 
Chinese veto have, at least for now, dissolved. With the internal disintegration 
of the Soviet Union in 1990-1991 and the events in Tiananmen Square in the 
People's Republic of China, those two permanent members of the Security 
Council have become more willing to support UN -directed involvement in 
peacekeeping and peace enforcement operations. 

During his campaign for President of Russia in 1991, moreover, Boris Yeltsin 
committed to voting for Security Council initiatives which would support 
democratic principles. His current entreaties for continued U.S. financial 
assistance should ensure that Russia will not act unreasonably in that forum. 
Similarly, the fallout from the 1989 events in Beijing's Tiananmen Square has 
caused the People's Republic of China to be extremely careful in their actions 
in the United Nations and elsewhere lest they risk their "most favored nation" 
treatment by the United States. 17 

The issues for the United States today in determining whether to support a 
response by a regional organization under Chapter VIII or that of the UN as a 
whole are more pragmatic than political. Our recent experience in Somalia 
with UNOSOM II and Bosnia with UNPROFOR suggest that UN-led operations 
may not be capable of undertaking Chapter VII (all necessary means) 
missions. 18 These peace enforcement missions require careful planning, 
experienced leadership, and highly integrated command and control 
arrangements. This combination is required to execute sophisticated 
air-ground coordination and air- artillery deconfliction as well as to implement 
robust rules of engagement that will protect the force and the civilian 
population. Most importantly, this cohesion is absolutely essential if forces with 
different experience levels and capabilities are to be successfully integrated to 
create force multiplication rather than force division. UN -led peace 
enforcement operations, unless directed by one of a handful of states, will 
continue to have difficulty achieving this integration. It is this understanding 
that underlies the U.S. support for the current NATO-led peace enforcement 
operation in Bosnia. 

NATO As a Regional Organization: Chapter VIII in Operation 

The adaptation of NATO to a role as a Regional Organization under 
Chapter VIII with a peace enforcement charter must be viewed as part of a 
broad, long-term U.S. and Allied strategy that supports the evolution of a 
peaceful and democratic Europe. This strategy benefits U.S. security and builds 
on the bipartisan premise that the security of Europe is a vital U.S. interest. 

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James P. Terry 

Certainly, American sacrifices in two world wars and the Cold War have 
proven our commitment to the region as a community of shared values, and 
those U.S. sacrifices have more than established our interest in recognizing and 
encouraging the rapid settlement of disputes in the area. 

The U.S. and its NATO Allies have pursued a number of initiatives since the 
end of the Cold War to advance this strategy. These include negotiation and 
implementation of the 1990 Conventional Armed Forces in Europe Treaty 
(CFE), 19 support for the unification of Germany, bilateral assistance to support 
reforms in former Soviet states, negotiation and ratification of the START II 
strategic arms control treaty, programs to dismantle nuclear stockpiles in 
Russia, the elimination of intermediate nuclear forces (INF) , including a 90 
percent overall reduction in NATO's nuclear weapons in Europe, and most 
importantly, active U.S. diplomacy and the deployment of American troops as 
part of a NATO-led force to help stop the war and secure the peace in the 
former Yugoslavia. 

NATO plays an important role in this broader strategy for many of the same 
reasons that it played an essential role in maintaining peace and security in 
Europe during the past fifty years. NATO's success during this period went far 
beyond its accomplishments as an effective military mechanism for collective 
defense and deterrence. It also proved invaluable as a political institution in 
fostering continuing involvement of the United States and Canada in 
European security. 

Adaptation of NATO's interest in broader European security to activity 
under the UN Charter's Chapter VIII began in 1990, soon after the fall of the 
Berlin Wall. In July 1990, under the active leadership of the Bush 
administration, NATO's London Summit Declaration set out new goals for the 
Alliance, called for changes in its strategy and military structure, and declared 
that the Alliance no longer considered Russia an adversary. These efforts were 
reaffirmed by the Alliance's declaration in Copenhagen in June 1991, which 
stated that NATO's objective was "to help create a Europe whole and free." At 
NATO's Rome Summit in November 1991, the Alliance adopted a new 
strategic concept, which reaffirmed the continuing importance of collective 
defense, while orienting NATO toward new security challenges, such as 
out-of-area missions, crisis management, and peacekeeping operations. 

Since then, NATO has taken further steps to advance adaptation to a 
Chapter VIII role. At its January 1994 Summit in Brussels, the Alliance made 
two important decisions related to its status as a Regional Organization. First, it 
launched the Partnership for Peace (PFP) to enable intensive political and 
military-to-military cooperation with Europe's new democracies as well as 

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UN Peace Enforcement Operations 



States which had considered themselves neutrals during the Cold War. PFP has 
proven to be an important and effective program for these States and for the 
Alliance: twenty-seven have joined PFP; a PFP Coordination Office has been 
established in Mons, Belgium; and thirty major PFP exercises have been held 
through June 1997, plus numerous exercises with Partners "in the spirit" of 
PFP. The program is proving its merit in Bosnia-Herzegovina, where thirteen 
PFP partner States are making substantial contributions to the NATO-led 
peace enforcement operation in the Balkans. 

The second major initiative related to adaptation to Chapter VIII by NATO 
in Brussels in 1994 was the decision to embrace the concept of Combined Joint 
Task Forces (CJTF) . This concept will enable both NATO forces and military 
assets to be employed in a more flexible manner to deal with peace 
enforcement obligations. 20 

The benefits of a NATO doctrine that emphasizes flexible response as a 
Regional Organization are both immediate and long-term, and they accrue not 
only to existing and prospective NATO allies but to States who are outside the 
Alliance. Europe is a more secure and stable region because of NATO's 
commitment to work within Chapter VIII of the UN Charter. Even now, 
Central and East European States are reconstructing their foreign and defense 
policies to bring them in line with Alliance values and norms. 

While there are many reasons for pursuing the values represented by 
NATO — i.e., democratic government, free markets, and security 
cooperation — a close analysis of recent events in Europe reveals that the 
NATO commitment to flexible response on the continent as a Regional 
Organization is also exerting a positive influence on States toward more 
peaceful relations. As an example, several recent agreements to ensure stable 
borders, promote inter-state cooperation, and address mutual concerns on the 
treatment of ethnic minorities have been signed. These include the 
Polish-Lithuanian Treaty of 1994, the Hungarian-Slovakian Treaty of 1996, a 
series of agreements in 1996 between Poland and Ukraine, the 1996 treaty 
between Hungary and Rumania, and the 1996 agreement between the Czech 
Republic and Germany concerning Sudetenland. 

The NATO acceptance of Chapter VIII responsibilities has been most 
significant in Bosnia. NATO countries made a profound contribution to 
European security through their participation in the NATO-led 
Implementation Force (IFOR) and are still doing so under its successor 
Stabilization Force (SFOR), which is continuing to implement the military 
aspects of the Dayton Peace Accords. It is clear from these Bosnian missions 
that NATO members are already restructuring their forces so they can 



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James P. Terry 

participate in the full spectrum of current and new Alliance demands, 
including both Article V missions and peace enforcement missions. 

One caution arises from our NATO experience in Bosnia, however. This 
relates to mission creep and the concern that military forces are being asked to 
perform tasks that are neither military in nature nor related to the agreed 
mission statement. During the first year of the IFOR mission, NATO 
commanders managed to restrict their responsibilities to separating the 
opposing factions, collecting heavy weapons, and supervising the exchange of 
territory. By early 1997, broader additional taskings were imposed which would 
have been better handled by international civilian agencies or Bosnian 
authorities. These included requests to help resettle refugees, set up elections, 
monitor local police, and sort out control of local broadcast stations. Pressure 
has likewise grown on the SFOR to assist in, if not spearhead, the arrest of 
dozens of war criminals. 21 

The U.S. understands that non- Article V NATO missions will only succeed 
if military personnel are limited to military tasks for which they have been 
trained. It is critical that NATO leaders carefully define force size, force 
structure, and mission as the SFOR proceeds. Allowing assignment of routine 
police functions to a military force will jeopardize many of the other obligations 
that the SFOR has assumed in Bosnia. 

Observations and Conclusions 

NATO acceptance of non-Article V missions is both necessary and 
contemplated by its Charter. With the end of the Cold War, there is a unique 
opportunity to build an improved security structure to provide increased 
stability in the Euro-Atlantic area without creating divisions among NATO 
members. The NATO alignment, with its history of military integration and 
cooperation brought about by years of successful planning and training for 
mutual defense responsibilities, is in the ideal position to participate effectively 
in peace enforcement activities requiring the exercise of "all necessary means" 
under Chapter VII of the UN Charter. 

As noted earlier, peace enforcement operations, to be effective, require 
careful planning, experienced leadership, and highly integrated command and 
control arrangements. The current Bosnia operation reflects that NATO-led 
forces can meet these requirements as well as comply with the principles of 
force commitment embodied in PDD 25. The carefully developed response of 
leaders of the North Atlantic Alliance to the military requirements of the 
Dayton Peace Accords reflect the immense potential resident in NATO for 

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UN Peace Enforcement Operations 



peace enforcement. The UN has recognized the need for regional leadership, 
and NATO has proven that it can successfully execute missions under UN 
authority, following rational requirements for troop deployment. 



Notes 



1 . The North Atlantic Treaty Organization, comprised of sixteen member States and three 
new invitees (Poland, Hungary, and the Czech Republic, who are to be accorded membership in 
1999), provides for collective defense in Article V of its Charter. Non- Article V missions 
authorized for consideration include peacekeeping and peace enforcement, now properly 
considered under Chapter VIII of the UN Charter. 

2. Presidential Decision Directive (PDD) 25, May 4, 1994, "Reforming Multilateral Peace 
Operations," is a classified directive. An unclassified version has been published as Bureau of 
International Organizational Affairs, U.S. Department of State, Pub. No. 10161, The Clinton 
Administration Policy on Reforming Multilateral Peace Operations (1994). 

3. See James P. Terry, U.N. Peacekeeping and Military Reality, 3 BROWN J. OF WORLD 
AFFAIRS 135, 136 (1996), for a review of UN inadequacies in peacekeeping and peace 
enforcement operations. 

4. During NATO's Rome Summit in November 1991, at the urging of the Bush 
administration, the Alliance adopted a new strategic concept which reaffirmed the continuing 
importance of collective defense, while orienting NATO toward new security challenges, such as 
out-of-area missions, crisis management, and peacekeeping operations. 

5. Chapter VI of the UN Charter includes Articles 32-38 and addresses "peaceful 
settlement of disputes." Although peacekeeping is nowhere mentioned in Chapter VI or 
elsewhere in the Charter, these articles (32-38) are interpreted to authorize the presence of an 
international interpositional force only after a peace agreement has been signed and the consent 
of the parties to the force presence and its mandate has been obtained. 

6. Chapter VII of the UN Charter includes Articles 39-51 and addresses "breaches of the 
peace." Because sovereignty claims under Article 2 of the Charter are subordinate to the 
international interest in redressing aggression, Chapter VII authorizes "enforcement" actions to 
restore the peace and maintain the international "status quo," without the requirement to obtain 
the approval of the disputing parties. 

7. Operations in Somalia included Operation RESTORE HOPE, authorized by the UN in 
S.C. Res. 794, U.N. SCOR, 47th Sess., 3145th mtg., U.N. Doc. S/RES/794 (1992), and 
UNOSOM II, authorized in S.C. Res. 814, U.N. SCOR, 48th Sess., 3185th mtg., U.N. Doc. 
S/RES/814 (1993). Operations in the former Yugoslavia included Operation DENY FLIGHT, 
authorized in S.C. Res. 816, U.N. SCOR, 48th Sess., 3919th mtg., U.N. Doc. S/RES/816 (1993), 
Operation PROVIDE PROMISE, authorized in S.C. Res. 770, U.N. SCOR, 47th Sess., 3106th 
mtg., U.N. Doc. S/RES/770 (1992), and Operation SHARP GUARD, authorized in S.C. Res. 781, 
U.N. SCOR, 47th Sess., 3122nd mtg., U.N. Doc. S/RES/781 (1992). Operations in Haiti 
included Operation UPHOLD DEMOCRACY, authorized in S.C. Res. 940, UN SCOR, 49th Sess., 
3413th mtg., U.N. Doc. S/RES/940 (1994), and UNMIH, authorized in S.C. Res. 964, U.N. 
SCOR, 49th Sess., 3470th mtg., U.N. Doc. S/RES/964 (1994). 

8. The NATO-led Implementation Force (IFOR) implemented the military aspects of the 
1995 Dayton Peace Accords in Bosnia and Herzegovina. It has now been succeeded by the 
NATO-led Stabilization Force (SFOR). While President Clinton earlier set June 1998 as the 
end-date for U.S. participation, in December 1997 he agreed to extend that date. 

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James P. Terry 

9. The Byrd Amendment, Sect. 8156 of the FY 94 Defense Appropriations Act, provided 
that any funds appropriated for DoD may be obligated for expenses incurred only through March 
31, 1994, for "operations of United States Armed Forces in Somalia." Department of Defense 
Appropriations Act of 1994, Pub. L. No. 103-139, § 8156, 107 Stat. 1418 (1993) (enacting the 
Byrd Amendment). The Kempthorne Amendment, Sect. 1002 to the FY 95 National Defense 
Authorization Act, although less onerous than the Byrd Amendment, restricted funding for U.S. 
military personnel on a "continuous" basis after September 30, 1994. National Defense 
Authorization Act of 1995, Pub. L. No. 103-337, § 1002, 108 Stat. 2663 (1994) (enacting the 
Kempthorne Amendment). See James P. Terry, A Legal Review of US Military Involvement in 
Peacekeeping and Peace Enforcement Operations, 42 NAVAL. L. REV. 79 (1995), for a discussion of 
other legislation which would limit the President's Article II authority to engage in 
peacekeeping. These include the Nunn-Mitchell Amendment to the FY 95 Defense 
Authorization Act, the Peace Powers Act, and the National Security Revitalization Act. 

10. Secretary of Defense Caspar W. Weinberger articulated criteria for U.S. intervention 
before the National Press Club on October 28, 1984. Secretary Weinberger's speech was printed 
verbatim in THE NEW YORK TIMES, Oct. 29, 1984, at Al, A4. 

1 1 . See discussion in James P. Terry, The Evolving US Policy for Peace Operations, 19 S. ILL. L. 
J. 1 19 (1994) . Our formal efforts to improve UN peacekeeping were begun, even before the 1993 
disaster, by former President George Bush. In a September 1992 speech to the UN, the 
then-President responded to the positive steps reflected in the Secretary General's 1992 
"Agenda for Peace" by committing the U.S. to work with the then-Undersecretary for 
Peacekeeping, Kofi Annan, to improve UN peacekeeping capabilities. 

12. The Weinberger Criteria evolved from "lessons learned" from the Long Commission 
Report, largely written by Professor Grunawalt while serving as Commission Counsel, which 
documented the flawed U.S. actions leading to the 1983 Beirut bombing. 

13. Chapter VIII, in Articles 52-54 of the UN Charter, specifically provides for "regional 
arrangements or agencies for dealing with such matters relating to the maintenance of 
international peace and security as are appropriate for regional action. Article 53 provides, in 
pertinent part: 

The Security Council shall, where appropriate, utilize such regional arrangements or 
agencies for enforcement action under its authority. But no enforcement action shall be 
taken under regional agencies without the authorization of the Security Council. 

14. See An Agenda for Peace, Report of the Secretary General, Jan. 31, 1992, U.N. Doc. 
A/47/277-S/24111. In paragraphs 60-65, Boutros-Boutros Ghali called upon regional 
organizations to do more. In his 1995 Supplement to An Agenda for Peace, Report of the 
Secretary General, Jan. 3, 1995, U.N. Doc. A/50/60-5/1995/1, the Secretary General specifically 
endorsed, in paragraph 79, the present NATO-led operation in Bosnia-Herzegovina. 

15. Treaty of Washington (North Atlantic Treaty), 63 Stat. 2241, T.I.A.S. 1964 (entered 
into force August 24, 1949). 

16. Article 5 of the Treaty of Washington provides, in pertinent part: 

Any such armed attack and all measures taken as a result thereof shall immediately be 
reported to the Security Council. Such measures shall be terminated when the Security 
Council has taken the measures necessary to restore and maintain international peace 
and security. 

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UN Peace Enforcement Operations 



17. See Terry, supra note 9, at 84. 

18. See discussion in BOWETT, THE LAW OF INTERNATIONAL INSTITUTIONS 164-66 (4th 
ed. 1982). 

19. This agreement alone has resulted in the elimination of more than 50,000 pieces of 
military equipment in Europe. 

20. A third major initiative involves the invitation of additional European States to join 
NATO. While this NATO Enlargement Initiative is not directly related to Chapter VIII 
involvement by NATO in peace enforcement activities, the training and increased 
military- to-military relations that will accompany enlargement will complement NATO's 
increased capacity to perform as a regional organization. 

21. In addition, several alleged Croat war criminals agreed to turn themselves in to SFOR 
officials in November 1997 in exchange for speedy trials. The U.S. has agreed to furnish 
investigators and military prosecutors to ensure compliance with the speedy trial guarantee. 
While not a part of the U.S. SFOR commitment directly, it reflects the type of military 
requirements we must be prepared to meet in peace enforcement operations. 



308 




Nuclear Weapons and the World Court: 

The ICJPs Advisory Opinion 

and Its Significance for 

ILS* Strategic Doctrine 

Robert F. Turner 



Introduction 




Y THE NARROWEST OF VOTES (a 7 to 7 split on perhaps its most 
controversial conclusion), in fifteen opinions (including six dissents), 
totaling 270 pages, following eleven days of hearings during which twenty-five 
States testified and more than 30 submitted written materials, 1 the 
International Court of Justice (ICJ or World Court), on 8 July 1996, provided 
the United Nations General Assembly with a nonbinding advisory opinion 2 on 
the lawfulness of using, or threatening to use, nuclear weapons. In the process, 
it solemnly affirmed the obvious, obfuscated the serious, and on at least one 
important issue that was not even raised by the General Assembly's request 
almost certainly reached the wrong conclusion with decisive unanimity. In the 



Nuclear Weapons and the World Court 



process, it may have inadvertently and gratuitously undermined the prospects 
for international peace and world order on the eve of the new millennium. 

Perhaps not surprisingly, the opinion was quickly "interpreted" for the 
media by the "spin-doctors" representing such groups as the original 
"ban-the-bomb" Campaign for Nuclear Disarmament (CND), 3 Greenpeace, 4 
and the International Association of Lawyers Against Nuclear Arms, 5 as a 
decisive victory for opponents of nuclear weapons — ignoring the fact that their 
most vociferous defenders on the Court had issued strong dissenting opinions, 
while at the same time the opinion was generally welcomed by prominent U.S. 
Government lawyers 6 as about as harmless a decision as anyone could have 
anticipated under the circumstances, especially given the opinion's political 
genesis. 7 

Particularly revealing were the reactions of the Japanese mayors of 
Hiroshima and Nagasaki, who had made impassioned appeals to the Court to 
declare nuclear weapons illegal. Hiroshima Mayor Takashi Hiraoka told 
reporters that "the outcome looks as if to approve of the status quo," and 
suggested that "the court is controlled by nuclear powers." 8 Nagasaki Mayor 
Itcho Ito expressed his "anger" at the World Court's opinion, declaring to the 
press: "I felt enraged. . . ." 9 

In reality, despite some serious shortcomings, once properly understood, the 
core of the advisory opinion was consistent with well-established principles of 
international law and is largely to be welcomed. Nevertheless, because it will 
certainly continue to be cited in national and international policy debates in 
the coming years — and some generally reputable authorities have already 
clearly been misled 10 — it is important to understand what the Court did and 
did not say, and to identify a few clear shortcomings in the opinion. 

There were initially two separate requests before the World Court for an 
advisory opinion on this issue, but the one brought by the World Health 
Organization was turned down by the Court because it was outside the lawful 
scope of the WHO's responsibilities. 11 While the United States and several 
other countries urged the Court to use its discretion and reject the companion 
request from the General Assembly as well, the authority of the Assembly to 
seek such an opinion was obvious. 12 

The General Assembly had taken the position in nonbinding 13 resolutions as 
early as 24 November 1961, that "the use of nuclear and thermo-nuclear 
weapons is ... a direct violation of the Charter of the United Nations;" 14 
however, these were typically approved by narrow votes that were hardly 
indicative of a broad international consensus. 15 Furthermore, even some of the 
General Assembly resolutions seemed to recognize that no legal rule had yet 

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been established outlawing nuclear weapons per se; for example, an ambiguous 
1978 resolution asserted that "the use of nuclear weapons . . . should ... be 
prohibited. . . ." 16 

Responding to an initiative launched by several anti-nuclear 
Non-Governmental Organizations (NGOs), on 15 December 1994, the UN 
General Assembly approved Resolution 49/75 K, which provided in part that 
the Assembly: 

Decides, pursuant to Article 96, paragraph 1, of the Charter of the United 
Nations, to request the International Court of Justice urgently to render its 
advisory opinion on the following question: "Is the threat or use of nuclear 
weapons in any circumstances permitted under international law?" 

The resolution was approved by a vote of 78 to 43, with 38 abstentions. 
Thus, only a plurality of those States voting registered support for such an 
advisory opinion; or, put differently, a slight majority of the organization did 
not approve the request. While the Charter seems to exclude abstentions in 
determining the outcome of a vote, 17 the Court might certainly have 
considered this reality in deciding whether to respond positively to the request. 

More significantly, an argument might be made that the resolution itself 
required a two-thirds majority to pass pursuant to the second paragraph of 
Article 18 of the Charter 18 — on the theory that urging the World Court to 
declare nuclear weapons per se illegal (the clear objective of the resolution) 
could have the potential to undermine the entire system of nuclear deterrence 
upon which international peace and stability have been premised for fifty years. 
Writing about the Court's decision while still a New York University law 
professor, the current Deputy Legal Adviser to the United Nations argued that 
"it would not have been difficult to hold that a question relating to the threat or 
use of nuclear weapons" falls under the two-thirds majority requirement, but 
noted that "inexplicably no representative objected" on these grounds. 
Nevertheless, he concluded: "It would seem that the Court, in perhaps 
unseemly eagerness to address what is evidently one of the most interesting and 
important current legal questions, failed to consider the possibly most serious 
objection to its jurisdiction to do so." 19 

Misstating the Question 

There is a more fundamental problem with the General Assembly 
resolution: It was not phrased in the language of international law, and indeed 

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seemed calculated to shift the burden of proof from those who argued that 
nuclear weapons were unlawful to those who felt otherwise. The underlying 
premise of modern international relations is that sovereign States are coequal 
and generally independent of constraints except to the degree they consent to 
limitations on their freedom of action (normally in exchange for similar 
constraints on the conduct of other States) , either through treaties and other 
international agreements or by a consistent practice that States recognize as 
reflecting a legal obligation. The burden thus falls upon those who claim a 
breach has occurred to identify the conventional or customary legal rule that 
limits the sovereign discretion of the State accused of the breach. 

The classic statement of this principle was made by the Permanent Court of 
International Justice — the predecessor to the ICJ established under the League 
of Nations — in the landmark 1927 case of the S.S. Lotus: 

International law governs relations between independent States. The rules of 
law binding upon States therefore emanate from their own free will as expressed 
in conventions or by usages generally accepted as expressing principles of law and 
established in order to regulate the relations between these co-existing 
independent communities or with a view to the achievement oi common aims. 
Restrictions upon the independence of States cannot therefore be presumed. 20 

This principle was reaffirmed by the ICJ as recently as the 1986 Paramilitary 
Activities case, 21 and the improper wording of the 1994 resolution was objected 
to by several States in their written and oral presentations to the Court. 22 The 
Court essentially ruled this harmless error, 23 while at the same time 
acknowledging: "State practice shows that the illegality of the use of certain 
weapons as such does not result from an absence of authorization but, on the 
contrary, is formulated in terms of prohibitions." 24 

However, it was clear from the declarations and opinions of the individual 
judges that accompanied the Court's opinion that the Lotus principle is under 
assault by judges from the Third World who wish to see greater constraints 
placed upon States without having to obtain their consent. Thus, President 
Bedjaoui of Algeria contended in his Declaration that, while the Lotus case had 
"expressed the spirit of the times": 

It scarcely needs to be said that the fact of contemporary international society is 
much altered. . . . The resolutely positivist, voluntarist approach of international 
law which still held sway at the beginning of the century — and to which the 
Permanent Court also gave its support in the aforementioned [Lotus] 
judgment — has been replaced by an objective conception of international law, a 

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law more readily seen as the reflection of a collective juridical conscience and as 
a response to the social necessities of States organized as a community. 25 

Restricting the Right of Self-Defense 

The real question before the Court was actually far narrower than might at 
first appear from a reading of the General Assembly's Resolution, as it was 
universally agreed that possession of nuclear weapons did not confer some sort 
of immunity from the prohibition against the aggressive use of force embodied 
in the UN Charter. 26 Thus, the only real question to be addressed was not 
whether the threat or use of nuclear weapons was ever lawful, but whether 
international law prohibited a State in possession of nuclear weapons from 
using them, or threatening to use them, under any conceivable circumstances 
in a defensive response to armed international aggression. 27 

Indeed, since deterrence itself is premised upon an implied "threat" to use 
whatever existing weapons may be necessary and otherwise lawful in the event 
of aggression, the IC] was essentially being asked to outlaw the most powerful 
instrument in international relations for the dissuasion of aggression and the 
promotion of peace. 28 The Court does not appear to have focused on this 
reality, although it was at least implicit in the statements of some of the States 
who provided comments. 29 One of the most compelling reasons for the Court 
to have exercised its discretion 30 and not issued the requested opinion — in 
addition to the fact that a majority of the General Assembly had not supported 
the request, and several States had warned that such an opinion might 
undermine diplomatic negotiations — was that the most likely consequence of 
even hinting that nuclear weapons were per se unlawful might well be to 
undermine the policy of nuclear deterrence that has worked so well for 
half-a-century in keeping the world out of World War III. This point will be 
addressed infra. 31 

The Proper Legal Standard 

The proper role of the International Court of Justice is not to decide what 
result a majority of judges believe to be good public policy or "fair" or 
"just," 32 or to divine legal rules from deep meditation, but to determine 
whether the presumptive right of sovereign States to pursue their perceived 
interests in a specific manner has been limited by an established rule of 
international law. As the Court acknowledged: "It is clear that the Court 
cannot legislate. . . ." 33 

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Article 38 of the Statute of the ICJ sets forth the sources of international law 
the Court may use in deciding whether conduct has been prohibited: 

Article 38 

1 . The Court, whose function is to decide in accordance with international 
law such disputes as are submitted to it, shall apply: 

a. international conventions, whether general or particular, establishing rules 
expressly recognized by the contesting states; 

b. international custom, as evidence of a general practice accepted as law; 

c. the general principles of law recognized by civilized nations; 

d. subject to the provisions of Article 59, judicial decisions and the teachings 
of the most highly qualified publicists of the various nations, as subsidiary 
means for the determination of rules of law. 

Ascertaining the Relevant Law 

Thus, the role of the Court was to examine each of these sources of law to 
ascertain whether, and if so to what extent, they might limit the threat or use of 
nuclear weapons and then to inquire whether there were any conceivable 
defensive settings in which the threat or use of a nuclear weapon might not be 
in conflict with any such legal rules. The basic inquiry was whether 
international law included a per se prohibition against every threat or use of 
nuclear weapons and that the proper test was not the "worst case" setting of a 
massive aggressive assault involving the delivery of thousands of large nuclear 
devices against another State's cities, but rather the "best case" — such as a use 
of a nuclear weapon on the High Seas to destroy an enemy warship preparing to 
launch weapons of mass destruction against the civilian population of the State 
seeking to defend itself. 34 

International Conventions. Quite correctly, no State contended before the 
Court that nuclear weapons were free from constraints under international 
law. On the contrary, the nuclear powers readily conceded that any threat or 
use of such weapons must comply with the jus ad helium governing the initiation 
of hostilities and the jus in hello regulating the conduct of military 
operations — some provisions of which were embodied in treaties and others in 
customary law. 35 

For example, it was universally acknowledged that the UN Charter limited 
any threat or use of nuclear (or any other) weapons to acts of individual or 

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collective self-defense or when authorized by the UN Security Council. 36 
Similarly, it was accepted without dissent that the laws of armed conflict — 
prohibiting such behavior as attacks on noncombatants, the infliction of 
unnecessary suffering, and the use of weapons that are incapable of 
discriminating between combatants and noncombatants — are applicable to 
nuclear weapons. 37 

The Court is to be commended for rejecting a variety of assertions by 
opponents of nuclear weapons, such as that Article 6 of the International 
Covenant on Civil and Political Rights (guaranteeing the "inherent right to 
life") outlawed the defensive use of nuclear weapons in combat (a contrary 
holding would presumably have outlawed all lethal weapons). 38 It also rejected 
claims that a variety of environmental treaties implicitly outlawed nuclear 
weapons, 39 that various treaties prohibiting "poisonous weapons" applied to 
nuclear weapons, 40 or that any use of nuclear weapons would constitute 
genocide. 41 

The States which denied the existence of a per se prohibition on nuclear 
weapons recognized that there were a variety of treaties and international 
agreements imposing legal limits on nuclear weapons, ranging from bilateral 
arms control agreements negotiated by the United States and the former 
Soviet Union to multilateral treaties prohibiting the emplacement of nuclear 
weapons in outer space, on the seabed or ocean floor, and in several geographic 
"nuclear-free" zones. 42 

After a lengthy discussion, the Court concluded that while the growing 
number of treaties limiting nuclear weapons might be seen as "foreshadowing a 
future general prohibition on the use of such weapons, . . . they do not 
constitute such a prohibition by themselves." 43 In this connection, the Court 
noted that under several of these treaties "the nuclear-weapon States have 
reserved the right to use nuclear weapons in certain circumstances," and "these 
reservations met with no objection from the [other treaty] parties ... or from 
the Security Council." 44 

International Custom. As already noted, historically, and as a general principle 
today, States are only obligated to abide by legal rules to which they have 
individually consented — either by entering into treaties or other international 
agreements intended to be binding under international law, or by joining in a 
widespread practice with other States out of the belief (opinio juris) that it is an 
obligation of international law. The provisions of treaties do not normally 
constrain States which have not consented to be so bound, and a State which 

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persistently registers its objection to an emerging rule of customary 
international law is normally not bound by that rule. 

However, there is an exception to the general principle that a State must 
consent to be bound by a legal rule. Since the Court's Statute was written, a 
consensus has emerged that certain "peremptory norms" of international law 
are of such fundamental importance that they will be imposed even upon 
persistent objectors despite their lack of consent. Often identified by the Latin 
expression jus cogens, these principles have been so universally embraced 
through all major legal systems, and the consequences of their breach are 
viewed as so objectionable, that the collective world community basically 
agreed to impose them on all States. Classic examples include the prohibition 
embodied in Article 2(4) of the UN Charter prohibiting the aggressive use of 
military force, the prohibition against certain categories of large-scale murder 
contained in the Genocide Convention, and the prohibitions against piracy 
and the slave trade. 

The Court acknowledged the existence of such "intransgressible principles 
of international customary law" 45 in the Nuclear Weapons case, but such norms 
were not critical to the decision. The standard for constituting a preemptory 
norm of international law is considerably higher than that for normal rules of 
customary law, and there are no jus cogens rules that are not clearly also 
customary law. Once having found that there were no rules of customary law 
prohibiting every threat or use of nuclear weapons, 46 it was unnecessary for the 
Court to ask whether these norms had achieved peremptory status. 

To be sure, no country has actually used a nuclear weapon in hostilities since 
1945; but the Court rejected assertions that this was evidence of customary law 
because of the clear absence of an opinio juris* 1 Another contention that was 
rejected was that a series of UN General Assembly resolutions should be 
accepted as evidence of a customary rule. While the General Assembly has no 
general "lawmaking" authority, 48 its resolutions can, when overwhelmingly 
supported by member States, serve as evidence of the existence of an opinio 
juris. However, as the Court observed, the antinuclear resolutions often 
provided that nuclear weapons "should be prohibited," and they were "adopted 
with substantial numbers of negative votes and abstentions," leading the Court 
to conclude: "although those resolutions are a clear sign of deep concern 
regarding the problem of nuclear weapons, they still fall short of establishing 
the existence of an opinio juris on the illegality of the use of such weapons." 49 

General Principles of Law, National Judicial Decisions, and Scholarly 
Writings. The basic nature of the issue before the Court precluded serious 

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recourse to "general principles of law recognized by civilized nations," as the 
question of threatening or using nuclear weapons is inherently international in 
character. 50 While the Court did note that it was "not called upon to deal with 
an internal use of nuclear weapons," 51 it is obvious that "civilized nations" have 
not formulated special "principles of law" governing the domestic use of 
nuclear weapons. Similarly, there was little recourse to such "subsidiary means" 
for determining legal rules as national judicial opinions and scholarly 
treatises. 52 

The Dispositif 

The Dispositif, or operative provisions, of the Nuclear Weapons case 
consisted of six conclusions in paragraph 105 of the opinion, half of which were 
little more than what the Court's Vice President (and current President) 
acknowledged to be "anodyne asseveration [s] of the obvious. . . ," 53 Thus, no 
State has ever contended that there was any "specific authorization of the 
threat or use of nuclear weapons" in customary or conventional international 
law, 54 and including a sentence on this point made little legal sense other than 
as a political concession to the framers of the General Assembly Resolution 
who had couched their request in such terms. 

Similarly, deciding that "a threat or use of force by means of nuclear 
weapons that is contrary to Article 2, paragraph 4, of the United Nations 
Charter and that fails to meet all the requirements of Article 51, is unlawful," 55 
is obviously tautological — akin to solemnly declaring that "an act prohibited by 
international law is unlawful." Again, the inclusion of such an obvious and 
unquestioned conclusion presumably can be explained as a concession either 
to the supporters of the General Assembly Resolution or to the Court 
dissenters who had wished to declare a per se prohibition. 

Of an essentially similar nature is the Court's unanimous conclusion that: 

A threat or use of force by means of nuclear weapons should also be compatible 
with the requirements of the international law applicable in armed conflict, 
particularly those of the principles and rules of international humanitarian law, 
as well as with specific obligations under treaties and other undertakings which 
expressly deal with nuclear weapons. . . . 56 

Again, the nuclear-weapons States had conceded all of these points, 57 which 
have to this writer's knowledge never been seriously in dispute. Such obvious 
conclusions hardly justified the time and money invested in the process by the 
General Assembly, the Court, or the member States. 

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Turning to more controversial matters, by a still decisive vote of 
eleven-to-three, the Court decided: 

There is in neither customary nor conventional international law any 
comprehensive and universal prohibition of the threat or use of nuclear weapons 
as such. . . . 58 

This was perhaps the most important part of the decision, both because of the 
Court's nearly four-to-one majority on the issue and because it answered the 
basic legal questions implicit in the General Assembly's request. 

To be sure, the Assembly had actually asked whether there were any 
circumstances in which the threat or use of nuclear weapons was permitted 
under international law, but the Court quite properly had rephrased the answer 
to be consistent with the reality that international law permits that which is not 
prohibited. 59 Indeed, had the Court limited its reply to this sentence — perhaps 
accompanied by language noting that the lawfulness of any use of a nuclear 
weapon, like all other weapons not prohibited per se by international law, must 
be determined in the context of both why and how they are threatened or 
used — it would have been an excellent opinion. 

Perhaps the most controversial of the Court's conclusions reads: 

It follows from the above-mentioned requirements [of the international law of 
armed conflict] that the threat or use of nuclear weapons would generally be 
contrary to the rules of international law applicable in armed conflict, and in 
particular the principles and rules of humanitarian law; 

However, in view of the current state of international law, and of the elements of 
fact at its disposal, the Court cannot conclude definitively whether the threat or 
use of nuclear weapons would be lawful or unlawful in an extreme circumstance 
of self-defence, in which the very survival of a State would be at stake. . . . 60 

Perhaps the first observation that should be made about this part of the 
Court's Dispositif is that it was not initially reached by the majority vote normally 
required by the Court's Statute. 61 Judge Andres Aguilar Mawdsley, of Venezuela, 
died in October 1995, a month before the case was argued — leaving a Court of 
only fourteen members, who divided evenly, seven-to-seven, on this conclusion. 
Since in contentious cases it is highly undesirable for tribunals to be unable to 
reach a decision, the Court's Statute provides: 

In the event of an equality of votes, the President or the judge who acts in his 
place shall have a casting vote. 62 

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Because of the application of this rule, President Bedjaoui of Algeria — who 
in his separate Declaration characterized nuclear weapons as "the ultimate 
evil" 63 — was permitted to cast a second vote, bringing the official count on this 
provision to eight- to-seven. One might note that this outcome was totally a 
coincidence of timing, for had the vote occurred less than a year later, after the 
distinguished American jurist Steven Schwebel was elected President of the 
Court, a different opinion would presumably have resulted. 

As an aside, one might argue that the Court has the discretion to withhold 
the "casting vote" procedure in advisory opinions. The considerations which 
encourage the definitive resolution of contentious disputes between or among 
States are not so clearly applicable in the case of a request for an advisory 
opinion. The Statute gives the Court discretion to decide which of its 
procedural rules are "applicable" to an advisory opinion, 64 and it would have 
been consistent with the Statute 65 and fully responsive to the General Assembly 
to reply that: 

(1) International law does not prohibit the threat or use of nuclear weapons per 
se\ 

(2) Like all weapons, the threat or use or nuclear weapons must comply with 
existing jus ad helium and jus in hello, 

(3) Based upon the Court's understanding 66 of the nature of such weapons, their 
use would only be lawful in an exceptional setting; and 

(4) In the absence of more detailed information about the characteristics of the 
weapon in question, its intended target, the purpose for which the threat or use 
of nuclear weapons is made, and many other circumstances, the Court is unable 
to provide more specific meaningful advice that would be applicable to every 
situation. 

In any event, the weight to be accorded the Court's nonbinding "advice" to the 
General Assembly on this point ought to be evaluated in the context of the 
evenly split vote that produced it; and the "casting vote" procedure should be 
recognized as the jurisprudential equivalent of a coin toss. 

However, having said that, one might also note that, under the 
circumstances, the basic conclusion is not all that remarkable. Essentially, the 
Court is saying that by the narrowest of possible margins it has decided that it 
cannot decide whether the threat or use of nuclear weapons would be lawful, 
even "in an extreme circumstance"; and, given the horrific consequences 
commonly associated with any use of nuclear weapons, such a cautious 

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conclusion is not all that surprising — particularly in the absence of a concrete 
case or detailed information about the characteristics of modern (or future 
generations of) nuclear weapons. 

Indeed, had the Court merely reported that it "cannot conclude definitively 
whether the threat or use of nuclear weapons would be lawful or unlawful in an 
extreme circumstance of self-defence," omitting the further qualifying 
language "in which the very survival of a State would be at stake," this writer 
would probably have found that reasonable and acceptable. Given the stakes 
involved, speculative conclusions in the absence of necessary facts probably 
serve little purpose. 

One certainly can embrace the Court's recognition that international 
humanitarian law would preclude the use of nuclear weapons in other than 
"extreme circumstances," but to conclude further than such circumstances 
would necessarily have to involve "a threat to the survival of a State" is 
unwarranted by any established or identified legal rule. As shall presently be 
demonstrated, there are easily conceivable settings in which a State might have 
no effective alternative to using a nuclear weapon to neutralize a threat to the 
lives of millions of its civilians, even though the State might nevertheless 
continue to exist if it elected to endure such a sacrifice. And if there is any 
principle of international humanitarian law that precludes even a threat to use 
nuclear weapons as a means of deterring illegal international aggression 
involving the use of unlawful weapons of mass destruction, the Court has failed 
to identify it. Indeed, any rule that would prohibit a State in lawful possession 
of nuclear weapons from even threatening to use them defensively to preserve 
the lives of tens of millions of innocent noncombatants would stand as clear 
evidence that law had become part of the problem — or, in the words of 
Dickens: "If the law supposes that, the law is a ass, a idiot." 67 

Dangerous Ambiguity: The World Court and the Use of Nuclear 
Weapons in Defense of Third States 

The Court does not in the Dispositif clarify whether a distinction exists 
between threatening or using nuclear weapons in response to "extreme 
circumstances of self-defense" threatening the survival of the nuclear-weapons 
State itself, and a threat by such a State to use nuclear weapons in collective 
defense against a threat to the survival of a third State; however, elsewhere in 
the opinion there is a reference to a State using nuclear weapons "in an 
extreme circumstance of self-defence, in which its very survival would be at 
stake." 68 This is an alarming statement, and it is contrary to the spirit of the 

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United Nations Charter, which expressly recognizes "the inherent right of 
individual or collective self-defence if an armed attack occurs against a Member 
of the United Nations." 69 Senator Arthur Vandenberg, who chaired the 
subcommittee of Commission III at San Francisco that actually drafted Article 
51, explained to his Senate colleagues in 1949: 

To make a long story short, La tin- America rebelled — and so did we. If the 
omission [of the right of collective self-defense] had not been rectified there 
would have been no Charter. It was rectified, finally, after infinite travail, by 
agreement upon article 5 1 of the Charter. Nothing in the Charter is of greater 
immediate importance and nothing in the Charter is of equal potential 
importance. 70 

Similarly, in explaining this provision to the Senate Foreign Relations 
Committee in July 1945, John Foster Dulles affirmed: 

At San Francisco, one of the things which we stood for most stoutly, and which 
we achieved with the greatest difficulty, was a recognition of the fact that that 
doctrine of self-defense, enlarged at Chapultepec to be a doctrine of collective 
self-defense, could stand unimpaired and could function without the approval of 
the Security Council. 71 

There is a strong argument that the right of sovereign States to use necessary 
and proportional lethal force in defense against armed international aggression 
is not only "inherent," as the English- language text of Article 51 terms it, but 
also "imprescriptable" (as the Russian text of Article 51 asserts 72 ) or 
"inalienable" (as the United States argued in 1928 73 ). In his separate opinion, 
Judge Fleischhauer (Germany) argued that the Court could also have found 
legal support for this right in "the general principles of law recognized in all 
legal systems," as it is universally recognized "that no legal system is entitled to 
demand the self-abandonment, the suicide, of one of its subjects." 74 This view 
was also embraced by President Bedjaoui, who acknowledged that "[a] State's 
right to survival is ... a fundamental law, similar in many respects to a 'natural' 
law." 75 It is certainly not a right to be narrowed by judicial fiat of the World 
Court, and anyone asserting that a victim of aggression may not defend itself by 
the use of lawful weapons, against lawful targets, in compliance with the law of 
armed conflict — or may not obtain voluntary assistance from other 
peaceloving States in meeting the aggression collectively — has the burden of 
identifying the legal basis for such a rule in conventional or customary 
international law. The principle of acting collectively to meet threats to the 
peace is not only unimpaired by the Charter, it is the very first objective 

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embodied in the Charter 76 ; and simple declarations, unsupported by 
compelling legal authority, asserting or implying such limitations, are 
insufficient — even when they emanate from the World Court. As the Court 
has acknowledged, it "cannot legislate," 77 yet a careful reading of their opinions 
suggests that "legislate" is exactly what some of the judges attempted to do. 78 
Few legal doctrines have been more critical in deterring aggression and 
promoting peace than the recognized right of relatively weak victims of 
aggression to call upon other peaceloving members of the world community for 
assistance in the event they are victims of armed international aggression; and 
why the World Court seems determined to undermine this important Charter 
principle is unclear. 79 In essence, the World Court seems to be announcing that 
States that can acquire weapons of mass destruction and do not respect the rule 
of law will be free to use them at will against weaker peaceloving States that 
lack such weapons — because the nuclear-weapons States will be prohibited by 
international law from responding (or even threatening to respond) in kind to 
even the most flagrant criminal acts of aggression. 80 This point is of more than 
academic importance, because one of the incentives in the Nuclear 
Non-Proliferation Treaty (NPT) 81 to encourage States to forego their right to 
develop nuclear weapons was a promise, endorsed by the Security Council, that 
the nuclear-weapon States would come to their defense in the event they were 
threatened with nuclear weapons. 82 As Judge Oda (Japan) said in the 
conclusion of his dissenting opinion in the case: 

One can conclude from the above that, on the one hand, the NPT regime which 
presupposes the possession of nuclear weapons by the five nuclear-weapon States 
has been firmly established and that, on the other, they have themselves given 
security assurances to the non-nuclear weapon States by certain statements they 
have made in the Security Council. ... It is generally accepted that this NPT 
regime is a necessary evil in the context o{ international security, where the 
doctrine of nuclear deterrence continues to be meaningful and valid. 83 

Pactum de Contrahendo or Pactum de Negotiando? 

The final paragraph of the Dispositif was also reached by unanimous 
decision: 

There exists an obligation to pursue in good faith and bring to a conclusion 
negotiations leading to nuclear disarmament in all its aspects under strict and 
effective international control. 84 

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This part of the opinion may warrant more consideration than it has thus far 
received. While the General Assembly's request for an advisory opinion was 
clearly politically motivated and poorly phrased, the question focused entirely 
upon the existing legal status of the threat or use of nuclear weapons, and did 
not even suggest that advice was being sought on obligations to negotiate new 
limitations. 85 Nevertheless, the Court sua sponte elected to address this 
issue — presumably as another consolation to States that had hoped or 
expected a decision that nuclear weapons are unlawful per se. 

Not surprisingly, this dicta did not escape the attention of the General 
Assembly, which in December 1996 approved a resolution thanking the Court, 
"taking note" of the opinion, and then resolving that the General Assembly: 

3. Underlines the unanimous conclusion of the Court that there exists an obligation 
to pursue in good faith and bring to a conclusion negotiations leading to nuclear 
disarmament in all its aspects under strict and effective international control; 

4. Calls upon all States to fulfill that obligation immediately by commencing 
multilateral negotiations in 1997 leading to an early conclusion of a 
nuclear-weapons convention prohibiting the development, production, testing, 
deployment, stockpiling, transfer, threat or use of nuclear weapons and 
providing for their elimination. 86 

Because dicta from the IC] advisory opinion is being used to argue that a legal 
duty now exists to reach agreement on these issues, it is important to look more 
carefully at this part of the Court's opinion and at the legal theories upon which 
it is premised. 

By way of background, paragraph F of the Dispositif was premised upon 
Article VI of the Nuclear Nonproliferation Treaty, which provides: 

Article VI 

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith 
on effective measures relating to cessation of the nuclear arms race at an early 
date and to nuclear disarmament, and on a treaty on general and complete 
disarmament under strict and effective international control. 87 

In paragraphs 99 and 100 of its advisory opinion, the Court quotes this 
provision and then provides this conclusion: 

The legal importance of that obligation goes beyond that of a mere obligation of 
conduct; the obligation involved here is an obligation to achieve a precise 

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result — nuclear disarmament in all its aspects — by adopting a particular course 
of conduct, namely, the pursuit of negotiations on the matter in good faith. . . . 
This twofold obligation to pursue and to conclude negotiations formally concerns 
the 182 States parties to the Treaty ... or, in other words, the vast majority of the 
international community. 88 

Despite the unanimous vote on paragraph F of the Dispositif, the Court 
seems clearly to have confused two related legal concepts: an agreement to 
conclude a specific agreement in the future (pactum de contrahendo) and an 
agreement to negotiate in good faith in the future in an effort to reach 
agreement on a specified issue (pactum de negotiando). In this case, the Court's 
conclusion is simply not reconcilable with the text or travaux of the agreement. 
It is submitted that Article VI of the NPT does not, and cannot reasonably be 
interpreted to, 89 obligate treaty parties to conclude anything — the obligation is 
clearly only to "pursue negotiations in good faith" towards that end. 

The basic principles for interpreting international agreements are set forth 
in the Vienna Convention on the Law of Treaties, 90 which, while not binding 
as conventional law on all parties to the NPT, are widely recognized as 
reflecting customary international law. Under the heading "General rule of 
interpretation," the Convention provides, inter alia: 

Article 3 1 

1. A treaty shall be interpreted in good faith in accordance with the ordinary 
meaning to be given to the terms of the treaty in their context and in the light of 
its object and purpose. 

The "ordinary meaning" of a promise to "pursue negotiations" is not "to 
reach an agreement" — which, if it has any meaning, presumably would require 
States to accept the best terms the other side was willing to offer. 91 To be sure, 
the same obligation would exist for the second State — or in this instance for all 
of the 185 parties to the treaty. Does this mean that the first State to get to the 
World Court can obtain a judgment requiring all of the other treaty parties to 
"conclude" the treaty favored by the petitioning State? Since the so-called 
"obligation to . . . conclude negotiations" is not simply for a disarmament 
treaty, but one incorporating "strict and effective international control," is it 
the proper role of the Court to consider the first proposal brought before it, and 
if in the Court's wisdom that proposal includes such control, to compel every 
other treaty party to adhere to those terms? Or does the Court instead intend 
to assume the legislative task of drafting perhaps hundreds of pages of highly 

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detailed and intrusive inspection and verification terms, to be imposed upon 
sovereign States irrespective of their consent? 

What, pray tell, is the Court then to do with the States that are not parties to 
the NPT and thus have clearly not consented to this alleged "obligation ... to 
conclude negotiations?" Having declared that all treaty parties must enter into 
"a treaty on general and complete disarmament under strict and effective 
international control," what is the Court then to do about the small number of 
non-parties to the treaty who do not elect either to surrender all of their 
weapons or to submit to the controls the Court seeks to impose upon treaty 
parties? Are they to be rewarded by being allowed to remain outside the 
disarmament regime — presumably expanding their arsenals (at "going-out- 
of-business" discount prices) as their neighbors are compelled by the Court to 
rid their territory of all weapons — or will the Court anoint the first 
"acceptable" draft treaty submitted to it by any treaty party as establishing a jus 
cogens obligation erga omnesl 

Perhaps the most interesting practical question raised by such an approach is 
how long the NPT would continue to exist before one State after another 
invoked its right under Article X to withdraw from the treaty — citing the 
out- of- control World Court as the "extraordinary event" that has "jeopardized 
the supreme interests of its country?" 92 Surely world peace and the rule of law 
would not be furthered by such an obvious misinterpretation of the NPT. 

Fortunately, the NPT is safe, because the World Court clearly reached the 
wrong conclusion in this nonbinding advisory opinion. The issue raised by 
Article VI of the NPT is not one of first impression in international law. Even 
when the language of an agreement clearly provides that the parties will not 
just negotiate but conclude a future agreement, unless the terms are essentially 
fixed by reference to the original agreement, tribunals tend to treat them as 
nothing more than a commitment to negotiate in good faith. Thus, in the 1925 
Tacna Arica Award (Chile v. Peru) — which involved an agreement to conclude 
a future protocol to prescribe "the manner in which the plebiscite is to be 
carried out, and the terms and time for the payment by the nation which 
remains the owner of the provinces of Tacna and Arica" 93 — the arbitrator 
found: 

As the Parties agreed to enter into a special protocol, but did not fix its terms, 
their undertaking was in substance to negotiate in good faith to that end. . . . Neither 
Party waived the right to propose conditions which it deemed to be reasonable 
and appropriate to the holding of the plebiscite, or to oppose conditions proposed 
by the other Party which it deemed inadvisable. The agreement to make a special 
protocol with undefined terms did not mean that either Party was hound to make an 

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agreement unsatisfactory to itself provided it did not act in bad faith. Further, as the 
special protocol was to be made by sovereign States, it must also be deemed to be 
implied in the agreement . . . that these States should act respectively in 
accordance with their constitutional methods, and bad faith is not to be 
predicated upon the refusal of ratification of a particular proposed protocol 
deemed by the ratifying authority to be unsatisfactory. 94 

In 1931, the predecessor to the current World Court — the Permanent 
Court of International Justice (PCIJ) — issued an Advisory Opinion on 
Railway Traffic between Lithuania and Poland 95 at the request of the League of 
Nations. Summarized briefly, in an effort to resolve a quarrel between the two 
countries, the Council of the League of Nations had approved a resolution 
recommending "the two Governments to enter into direct negotiations as 
soon as possible in order to establish such relations between the two 
neighbouring States [as] will ensure 'the good understanding between 
nations upon which peace depends'. . . ," 96 This resolution was accepted by 
both countries, and Poland subsequently contended that Lithuania was 
obligated to agree to reopen a section of railway between Vilna and Livau 
that had been destroyed during World War I. 

The PCIJ concluded that both States were legally bound by the "agreement 
to negotiate" contained in the Council's resolution, but rejected the Polish 
view that this was in reality a legal obligation "not only to negotiate but also to 
come to an agreement," explaining: 

The Court is indeed justified in considering that the engagement incumbent on 
the two Governments in conformity with the Council's Resolution is not only to 
enter into negotiations, but also to pursue them as far as possible, with a view to 
concluding agreements. . . . But an obligation to negotiate does not imply an 
obligation to reach an agreement. . . . 97 

In 1950 the newly established International Court of Justice was asked for an 
advisory opinion on whether South Africa had a legal duty to negotiate a 
trusteeship agreement to place the former German colony of South-West 
Africa — which had been placed under South African control by a League of 
Nations mandate following World War I — under the new UN trusteeship 
system. 98 While the Court majority found no such obligation, in his dissent, 
Judge Alvarez found not only a duty to negotiate but also an "obligation" to 
reach an agreement. However, he acknowledged: "even admitting that there is 
no legal obligation to conclude an agreement, there is, at least, a political 
obligation. . . ."" 

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Consider as well a 1972 arbitral award by a tribunal established to resolve 
disputes between Greece and Germany resulting from World War II. The 
tribunal was asked to decide whether an undertaking to engage in "further 
discussions" and "negotiations" included an obligation to reach an actual 
agreement. The tribunal held; 

With the ratification of the Agreement, the parties . . . undertook to negotiate 
their dispute anew notwithstanding the earlier refusals of both sides to retreat 
from positions that had hardened over the years. Article 19 must be considered 
as a pactum de negotiando. The arrangement arrived at between the parties in the 
present case is not a pactum de contrahendo as we understand it. This term should 
be reserved to those cases in which the parties have already undertaken a legal 
obligation to conclude an agreement. . . . 10 ° 

The tribunal went on to note that even a pactum de negotiando creates legal 
obligations for the parties: 

However, a pactum de negotiando is also not without legal consequences. It means 
that both sides would make an effort, in good faith, to bring about a mutually 
satisfactory solution by way of a compromise, even if that meant the 
relinquishment of strongly held positions earlier taken. It implies a willingness for 
the purpose of negotiation to abandon earlier positions and to meet the other 
side part way. 101 

An article published in the highly acclaimed Encyclopedia of Public 
International Law in 1997 on these two types of agreements concluded that 
neither contains an enforceable legal obligation to do more than negotiate in 
good faith: 

In the author's view there is no relevant distinction between the two pacta in the 
legal quality of the obligations resulting from these instruments. There is no case 
where an absolute "agreement to agree" has been recognized by an international 
tribunal. Therefore, the contractual obligations to negotiate in good faith with a 
view to concluding a subsequent agreement, laid down in pactum — be it named 
pactum de contrahendo or pactum de negotiando — will only differ slightly according 
to the circumstances in the particular case: the margin of negotiation on matters 
of substance left open to the parties for shaping the ultimate agreement will be 
larger or smaller according to the degree to which the substantive contents of the 
final agreement can be determined by means of the pactum itself. 102 

International and National Treatises, If one were to examine "judicial 
decisions and the teachings of the most highly qualified publicists of the various 

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nations," 103 one would find similar conclusions. One of the world's foremost 
authorities on treaty law was Lord Arnold Duncan McNair, who during his 
distinguished career served as president of both the International Court of 
Justice and the European Court of Human Rights. He provides this discussion 
in his classic 1961 treatise, The Law of Treaties: 

Pactum de contrahendo 

This term is correctly applied to an agreement by a State to conclude a later 
and final agreement, and these preliminary agreements are of frequent 
occurrence. . . . When they are expressed with sufficient precision, they create 
valid obligations. . . . 

It is, however, necessary to distinguish between a true obligation to enter into a 
later treaty and an obligation merely to embark upon negotiations for a later treaty 
and to carry them on in good faith and with a genuine desire for their success. 
Less happily in our opinion, the term pactum de contrahendo is applied to an 
obligation assumed by two or more parties to negotiate in the future with a view to 
the conclusion of a treaty. This is a valid obligation upon the parties to negotiate 
in good faith, and a refusal to do so amounts to a breach of the obligation. But the 
obligation is not the same as an obligation to conclude a treaty or to accede to an 
existing or future treaty, and the application to it of the label pactum de 
contrahendo can be misleading and should be avoided. 104 

Turning to United States law, Professor Allan Farnsworth served as 
Reporter to the Second Restatement of Contracts, and his multivolume treatise, 
Farnsworth on Contracts, is among the leading texts on the issue in the United 
States. He discusses a variety of judicial opinions refusing to enforce 
agreements to agree on the grounds that they were "vague and indefinite," and 
under the heading "Agreements to Negotiate" writes: 

Under an agreement to negotiate, the parties negotiate with the knowledge that 
if they fail to reach ultimate agreement they will not be bound. The parties to an 
agreement to negotiate do, however, undertake a general obligation of fair 
dealings in their negotiations. . . . [H]ere there is no way of knowing what the 
terms of the ultimate agreement would have been, or even whether the parties 
would have arrived at an ultimate agreement .... Because of the uncertain scope 
of an undertaking to negotiate, a court cannot be expected to order its specific 
performance, though it might enjoin a party that had undertaken to negotiate 
exclusively from negotiating with others. 105 

Professor Farnsworth notes that English courts have been "adamant" on this 
issue, quoting "a distinguished English judge" as having "condemned an 

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agreement 'to negotiate fair and reasonable contract sums' " by saying: "If the 
law does not recognise a contract to enter into a contract (where there is a 
fundamental term yet to be agreed) it seems to me it cannot recognise a 
contract to negotiate." 106 

The Travaux Preparatoire, If there is any remaining doubt about whether 
Article VI of the NPT is an agreement to conclude a future agreement, it is 
useful to return to the Vienna Convention on the Law of Treaties: 

Article 32 

Supplementary means of interpretation 

Recourse may be had to supplementary means of interpretation, including the 
preparatory works of the treaty and the circumstances of its conclusion, in order 
to confirm the meaning resulting from the application of article 31, or to 
determine the meaning when the interpretation according to article 31: 

(a) leaves the meaning ambiguous or obscure; or 

(b) leads to a result which is manifestly absurd or unreasonable. 1 

While it is difficult to contend that the language of Article VI is ambiguous 
or obscure — or otherwise meets the test for resorting to supplementary means 
of interpretation — it is nevertheless useful to consult the travaux preparatoires 
to confirm that the unanimous World Court reached the wrong result. The 
standard reference on the NPT is Mohamed I. Shaker's multivolume study, 
The Nuclear Non-proliferation Treaty: Origin and Implementation 1959-1979, 
which provides useful background on Article VI. 

Dr. Shaker notes that the original drafts included merely preambulatory 
references to the importance of ending the nuclear arms race and achieving 
disarmament, and notes that "the two super-Powers preferred a simple treaty 
without linking it with any other arms control and disarmament measures. . . ." 108 
India, however, "advocated that a non-proliferation treaty must embody an 
article of solemn obligation under which nuclear- weapon States would negotiate a 
meaningful programme of reduction of existing stockpiles of weapons and their 
delivery vehicles. . . . The obligation was therefore not merely to negotiate a 
meaningful programme but to undertake certain measures." 109 Similarly, Romania 
proposed that "(t)he nuclear weapon States Parties to this Treaty undertake to 
adopt specific measures. . . . However, as Dr. Shaker observes: 

[I]t was realised that it would not have been accepted by both the Soviet Union 
and the United States. Moreover, it was pointed out that it would liave liardly been 

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feasible in legal terms to enter into obligations to arrive at agreements. The least [sic] 
that could be done, therefore, was to introduce in the NPT an obligation "to 
pursue negotiations in good faith" as proposed by Mexico, or "to negotiate" as 
proposed by Brazil. . . . The Mexican formula was the one adopted by the two 
co-Chairmen in their identical treaty drafts of 18 January 1968. m 

Lest there be any doubt about the obligation that resulted, Dr. Shaker notes: 

Under the pressure of the non-aligned States as well as from some of their own 
allies, the two super-Powers merely accepted in the NPT to undertake to pursue 
negotiations in good faith, but not, as pointed out by one American negotiator, 
"to achieve any disarmament agreement, since it is obviously impossible to predict the 
exact nature and results of such negotiations." 112 

It is thus clear from the text, the travaux, and the underlying legal principles 
involved, that Article VI of the NPT constitutes only a pactum de negotiando — an 
obligation to negotiate in good faith towards the specified end — and, despite the 
unanimous character of the Nuclear Weapons advisory opinion on this point to 
the contrary, it does not constitute a pactum de contrahendo. Indeed, the very 
language of the agreement — with references to "effective measures" and "strict 
and effective international control" — explains why this was but an undertaking 
"to pursue negotiations in good faith" on the subject. 

It might be added that if, despite the clear language to the contrary, this was 
a pactum de contrahendo, the terms of this agreement would presumably need to 
be objectively ascertainable with reasonable clarity. Unless the Court is 
prepared to spell out the precise terms of a "treaty on general and complete 
disarmament under strict and effective international control," including 
identifying when, where, by whom, and under what conditions the highly 
intrusive international verification inspections are to occur — so that it will be 
possible to identify which States are in breach for failing to anticipate and 
accept those terms — it is difficult to take this portion of the Court's decision 
very seriously. It is mere brutum fulmen. 

It is evident that the Court cannot flush out even basic terms for any such 
agreement, because no such agreement ever existed in the minds of the parties 
when they entered into the treaty. Presumably, they all shared a vision that 
someday the world might live at peace without war, and some may well have 
had in mind specific provisions they intended to try to insert in any convention 
promoting this end. But the convention travaux provide no suggestion that 
anything approaching final treaty terms was ever discussed as the NPT was 
drafted. 

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Equally clearly, one can be confident that few countries would have ratified 
the NPT with the expectation that the World Court might subsequently 
declare them in breach of an obligation to ratify a subsequent treaty containing 
highly intrusive but unknowable verification and inspection provisions — not 
to mention to surrender all of their arms — and premise their security upon the 
Court imposing a verifiable and effective machinery to prevent all possible 
violations of this unknown future convention. Put simply, Article VI of the 
NPT creates nothing more than an obligation to negotiate in good faith; and 
the Court's 1996 advisory opinion cannot change that. 

A Legal Use of Nuclear Weapons: The Missing Hypothetical 

The World Court is, in the view of the present writer, clearly mistaken in its 
conclusion that the only conceivable lawful use of nuclear weapons would 
involve a threat to the survival of a State, but the fault may not be entirely that 
of the judges. Much of the public debate on this issue has been fueled by 
scholarship and government studies, dating from the 1950s and 1960s, on the 
destructive nature of nuclear weapons, and the nuclear-weapons States have 
understandably surrounded their more recent weapon-development programs 
in a shroud of secrecy. 

One would have thought, given the importance of the issue and the 
widespread reports of the existence of a new generation of low-yield, highly 
accurate nuclear weapons, that at least one of the nuclear powers would have 
set forth at least one hypothetical that the Court could use in its legal analysis 
phase — applying the law to specific facts — but other than a few vague 
references to "High Seas," "submarines," and "deserts," 113 this does not appear 
to have been done. 

Candidly, even these brief references should have given the Court sufficient 
insight to envision some possible uses of nuclear weapons that would not 
necessarily conflict with existing laws — a single example would have permitted 
a conclusion that under certain conceivable circumstances the threat or use of 
nuclear weapons may be lawful. The ICJ Statute provides that in its advisory 
functions the Court shall be "guided by the provisions of the present Statute 
which apply in contentious cases to the extent to which it recognizes them to 
be applicable," 114 and those provisions provide a plethora of fact-finding 
instruments. Unlike the situation in American courts, where the absence of a 
party permits the tribunal to accept the facts as properly pleaded by the other 
party, the World Court must before rendering a decision in the absence of a 
party "satisfy itself . . . that the claim is well founded in fact and law." 115 It may 

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also call upon parties to a case "to produce any document or to supply any 
explanation," 116 and may "entrust any individual, body, bureau, commission, or 
other organization that it may select, with the task of carrying out an inquiry or 
giving an expert opinion." 117 

Sadly, instead of asking States who argued that not all potential threats or 
uses of nuclear weapons were per se unlawful to provide one or more examples, 
the Court essentially bypassed the task of applying the law to the most 
favorable conceivable set of facts implicit in the question before it. 118 As Judge 
Higgins observed: 

It is not sufficient, to answer the question put to it, for the Court merely briefly to 
state the requirements of the law of armed conflict (including humanitarian law) 
and then simply to move to the conclusion that the threat or use of nuclear 
weapons is generally unlawful by reference to the principles and norms. ... At no 
point in its Opinion does the Court engage in the task that is surely at the heart of 
the question asked: the systematic application of the relevant law to the use or 
threat of nuclear weapons. It reaches its conclusions without the benefit of 
detailed analysis. An essential step in the judicial process — that of legal 
reasoning — has been omitted. 119 

This is unfortunate, because there are any of a number of hypotheticals 
which the Court could have envisioned (or which the nuclear-weapon States 
might have suggested) that might be used to illustrate a lawful use of a nuclear 
weapon. A single case should have allowed the Court to inform the General 
Assembly that in at least some circumstances the threat or use of nuclear 
weapons would be lawful — as the Court was neither requested nor expected to 
provide a comprehensive legal evaluation of every conceivable circumstance. 
Even at this date, it would seem useful to have such a hypothetical. 

Consider for a moment the plight of the Russian Navy, whose sailors have 
often been required to go months without a paycheck and for whom the new 
regime promises little of the glory of earlier decades. Imagine that a group of 
Russian officers and their crew decide that action is warranted, and they decide 
to sell their Delta IV, Typhoon, or newer Bore;y-class 120 nuclear submarine to a 
terrorist group or international criminal cartel for a few million dollars. 
Alternatively, imagine they decide themselves to use this powerful weapons 
system to compel the world to restore Leninists to power throughout the old 
Soviet Empire — demanding in the process that all elected leaders of each 
current regime be publicly executed, or else. 

To enforce these demands and illustrate the else, the group controlling the 
submarine launches three SS-N-18 121 sea-launched ballistic missiles (SLBM) 

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from the mid-Atlantic, each with three 500-kiloton reentry vehicles (each 
with more than twenty-five times the destructive power of the device 
detonated over Hiroshima in 1945), targeted for air bursts over London, Paris, 
and Berlin during afternoon rush hour. Within less than an hour, millions of 
casualties are reported in Europe, and the long-term projections are even more 
frightening. 

Having demonstrated its seriousness, the submarine continues towards the 
American coastline, its captain announcing that three of its remaining missiles 
will soon be fired at targets in the Washington, D.C., New York and Chicago 
areas. It will then move to the Pacific and attack targets in Los Angeles, San 
Diego, and Mexico City; and if confirmation has not been received that the 
changes in regimes and executions of "traitors" have taken place, similar 
attacks will be made in Japan, China, and perhaps other population centers in 
Asia. To deter any foolish efforts to destroy the submarine, the captain explains 
that all of his missiles will be launched immediately at American cities upon 
any detection of another submarine or warship in its vicinity, or if the sound of 
a launched torpedo is detected. 

Let us suppose further that, with the cooperation of the Russian 
Government, the United States has been able to track the movement of the 
submarine. The Military Committee at the United Nations convenes, and 
upon its advice the Security Council immediately asks the United States to 
take effective military action to destroy the submarine before it launches the 
missile now reported to be aimed to impact within 500 meters of the UN 
Headquarters. 

Does international law really require the American representative to the 
Security Council to announce: 

Mr. President and Members of the Security Council. I have been in contact with 
my Government, and I have some good news and some bad news. The good news 
is that our Air Force reports that its pilots have the skill to drop a 20-kiloton 
nuclear device sufficiently close to the submarine that they are certain it would be 
destroyed instantaneously and without any warning, before any additional 
missiles could be launched. The bad news is that, pursuant to the legal principles 
enunciated by the International Court of Justice in the 1996 Advisory Opinion 
on the Threat or Use of Nuclear Weapons, since the United States could clearly 
"survive" the attacks which are being threatened — albeit with the projected loss 
of 10-20 million of our people — it is unlawful for us to attempt effective measures 
to defend ourselves (or the United Nations) in this situation. Indeed, the 
weapons that previously would have been available to address such a threat were 
removed from our inventory and dismantled some years ago. Let us pray. 

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Perhaps the threat instead would come from a Libya, Iran, Sudan, North 
Korea, or even Cuba that had purchased a used Soviet diesel submarine and 
installed primitive ballistic missiles designed to disperse toxic anthrax or other 
biological agents across population centers in various countries. One could 
hypothesize numerous such scenarios that would be as credible as any 
suggestion in 1989 that a year later Saddam Hussein would invade Kuwait and 
threaten to use weapons of mass destruction against UN sanctioned forces 
trying to protect Kuwait and its neighbors. One could multiply such examples 
several fold as the venue shifted from destroying submarines or other warships 
on the High Seas, to striking tanks or super-hardened military command posts 
or weapons bunkers in the desert, to assorted other options not involving direct 
attacks near population centers. 

Indeed, as this writer has suggested elsewhere, 122 one of the most effective 
means of deterring aggression is to have the capability to attack radical regime 
elites who initiate aggressive wars. Possession of a highly- accurate, low-yield, 
deep penetrating "bunker-buster" nuclear device might well persuade a future 
Saddam Hussein — who had sacrificed hundreds of thousands of Iraqi soldiers 
in his war against Iran and was clearly willing to risk massive troop loses in his 
1991 resistance to the UN Security Council — that initiating or continuing 
massive international aggression might well have negative consequences of a 
highly personal nature. 123 

One need not devote pages of analysis to demonstrate that using a nuclear 
weapon against a terrorist submarine on the high seas, if necessary to terminate 
an ongoing barrage of far more destructive weapons of mass destruction against 
innocent civilians, is clearly consistent with jus ad bellum and jus in hello. It 
follows as well that the hypothesized attacks would not "threaten the survival 
of the State." 124 Therefore, the Court's extremely narrow exception in 
paragraph E of the Dispositif is simply wrong as a matter of international law. 
Fortunately, of course, advisory opinions of the World Court have no binding 
authority over States. 125 

Making the World Safe for World War III: 
Limiting Defense and Undermining Deterrence 

For anyone who has witnessed the inhumanity of war firsthand and cares 
about the preservation of peace, portions of the Court's advisory opinion are 
disquieting. Without in the least disputing the horrendous consequences likely 
to be associated with any use of nuclear weapons, one can still wonder whether 
the judges have forgotten the frightening realities of conventional warfare? 



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Why, one must wonder, are they so eager to outlaw even the threat of a nuclear 
response to major acts of armed international aggression — is there some sense 
of "fair play" that leads them to wish to assure future Adolph Hitlers and 
Saddam Husseins that the consequences of massive aggression will never be 
too unacceptable? 

The primary reason for the establishment of the United Nations, of which 
the International Court of Justice is the "principal judicial organ," 126 is "to save 
succeeding generations from the scourge of war. . . ." 127 Yet many of the leaders 
of the antinuclear campaign which precipitated the General Assembly's 
request for an advisory opinion view the problem not as stopping 
aggression — irrespective of the weapons used — but as merely eliminating 
nuclear weapons. One scholar, for example, envisions "an unprecedented 
opportunity" as the world approaches the new century "to create a world in 
which our children will be free from the threat of nuclear war." 128 One is 
tempted to respond: "You mean like in Europe in 1915 and 1943?" 

He tells us that "[s]ince 1945, humanity has lived on the edge of a precipice, 
with human history literally hanging in the balance," 129 and that "[f]or over 
forty years, the world has lived with the relentless and harrowing fear that the 
nuclear arms race might eventually result in a nuclear war." 130 One need not 
quarrel with such conclusions to note, as well, that in no small part because of 
the perceived horrendous consequences of such a war, during this same period, 
most of the world has also lived in peace. 

This same writer expresses understandable alarm at estimates that a 
strategic nuclear exchange attacking only "key military targets" could kill 10 to 
20 million people; 131 but he fails to remind us that two-to-four times that many 
people died in the conventional phases of World War II, 132 that more than 100 
million people have died in major conventional wars in this century, 133 and that 
advances in conventional military technology in the past half-century strongly 
suggest that a non-nuclear World War III could be far more destructive of 
human life than were any earlier wars — even if one assumes that, once started, 
such a conflict would not ultimately escalate to the use of even illegal weapons 
of mass destruction. 

The most vociferous critics of nuclear deterrence apparently see no 
distinction between the possession of such weapons by liberal democracies 
firmly committed to upholding the Charter principles and possession by rogue 
States and terrorist groups — ignoring a compelling body of political science 
that demonstrates that by far the most important variable in predicting the 
outbreak of war is not the existence or absence of any category of weapons, but 
the nature of the political systems of the potential parties to the conflict. 134 

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Compelling statistical data indicate that democracies do not attack 
democracies, and aggression results not from peaceloving States being too well 
armed, but far more commonly from a relatively small number of radical regime 
leaders concluding that they will benefit from aggression because their 
potential adversaries lack either the will or the ability to respond effectively to 
aggression. 135 As the American Founding Fathers understood, 136 and as the 
Latin maxim qui desiderat pacem praeparet bellum 131 affirms, it is perceived 
weakness, rather than strength, in its potential victims that encourages 
aggression. 

Indeed, the most impressive contemporary scholarship demonstrates with 
remarkable clarity that both World War I and World War II resulted in large 
part from perceptions by potential aggressors that their victims, and States 
which might come to their aid, lacked both the will and the ability to respond 
effectively to aggression. 138 Thus, the eminent Yale University Historian 
Donald Kagan notes that, following World War I, "British leaders disarmed 
swiftly and thoroughly and refused to rearm in the face of obvious danger until 
it was too late to save France and almost too late to save Britain," 139 and he 
observes that the failure of the League of Nations to act to defend Ethiopia 
from aggression in 1936 helped persuade Mussolini to join forces with Hitler: 
"The democracies seemed weak, indecisive, and cowardly, and their failure and 
inaction gave courage to their enemies." 140 

When Hitler moved to remilitarize the Rhineland in violation of the 
Versailles Treaty, Professor Kagan notes that "British policy was to avoid war at 
all costs," 141 and that Hitler had actually promised his generals that he would 
withdraw his forces at the first sight of French resistance. He quotes Hitler as 
later writing: "The forty-eight hours after the march into the Rhineland were 
the most nerve-wracking in my life. If the French had then marched into the 
Rhineland we would have had to withdraw with our tails between our legs, for 
the military resources at our disposal would have been wholly inadequate for 
even a moderate resistance." 142 Professor Kagan writes: 

There is no doubt that some leaders of the German Army were powerfully 
opposed to an attack on Czechoslovakia ... [in 1938] because they believed it 
would lead to a general war for which Germany was not prepared and which it 
was bound to lose. When they confronted Hitler he assured them that Britain 

and France would not fight Perhaps the most important reason for the failure 

of this belated attempt at deterrence was that it lacked credibility. Whatever its 
military capabilities, would Britain have the will to use them? Whatever their 
commitments, would the British have the courage to honor them? . . . Small 
wonder that Hitler never seems to have taken his opponents' warnings seriously. 

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As he laid plans for the attack on Poland he discounted the danger from the 
leaders of Britain and France. "I saw them at Munich," he said. "They are little 

»143 

worms. 

World War II did not result from a failure of "arms control" or the presence 
of too many weapons. The London and Washington naval agreements helped 
weaken the military power of the democracies, and after the war was over, 
Japanese leaders explained that watching movie newsclips of American 
soldiers in Mississippi training with wooden rifles had helped convince them of 
American weakness — and thus strengthened the case for attacking Pearl 
Harbor. 144 

Properly utilized, international law has a powerful contribution to make to 
the cause of international peace and security. But parchment barriers like the 
NPT, the Geneva Protocol on chemical and bacteriological warfare, 145 and the 
Chemical Weapons Convention (CWC), 146 are not enough to guarantee peace. 
The reason Hitler did not use his chemical weapons when the tides of battle 
turned against him during World War II was not out of respect for 
international law, but because he knew the Allies would retaliate in kind as a 
belligerent reprisal. Indeed, if all that were necessary to control aggression were 
more solemn, legally-binding, promises, we would need no new treaties — for 
any act of aggression will automatically breach the most fundamental principle 
of the UN Charter. 147 Why assume that a tyrant who is willing to ignore the UN 
Charter is going to abide by any lesser legal obligation that is not self-enforcing? 

The world should have learned from recent experiences with North Korea 
and Iraq that, by itself, the NPT is not likely to prevent the unlawful 
procurement of nuclear weapons. As has been noted time and again, that 
"genie" is out of the bottle, and the basic technology is reportedly even 
available in public libraries and on the Internet. Efforts to erect new legal 
barriers to the possession, threat, or use of nuclear weapons — while not 
necessarily unhelpful or a bad idea — risk missing the point that the primary 
goal is to prevent war of any kind. 

University of Iowa Professor Burns Weston is certainly one of the most 
intelligent, articulate, and respected scholars in the "ban-the-bomb" camp; 
and in a 1989 address to the First World Congress of the International 
Association of Lawyers against Nuclear Arms, Professor Weston observed: "to 
rid ourselves of the nuclear habit we must rid ourselves also of the war habit." 148 
Yet he acts as if there were no distinction between aggressor and victim, 
contending that "nothing is more menacing to the long-term well-being of our 
planet than the sincerely communicated threat to use nuclear weapons if and 
when sufficiently provoked." 149 He apparently sees no moral distinction, and 

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no implication for the preservation of peace, between that "threat" being made 
by someone like Saddam Hussein to compel peaceful Kuwait to submit to his 
aggression, and such a "threat" being made by a State that is being "provoked" 
by a flagrant act of armed international aggression and is acting under the 
authority of a resolution of the Security Council, in order to dissuade the 
aggressor from resorting to the illegal use of weapons of mass destruction that 
might claim millions of innocent lives. 150 There is a difference. 

Rather than permitting peaceloving States to use the threat 151 of a nuclear 
response to deter aggression and protect peace, Professor Weston would have 
us disarm them of the weapons that have proven most effective in deterring 
massive acts of international aggression for most of this century; suggesting in 
the alternative that all the world really needs are a few new "mutual 
nonaggression" pacts. In 1989 he wrote of the need for such treaties between 
NATO and the Warsaw Pact, 152 and between the United States and the Soviet 
Union; 153 and one might assume that today his solution to what might be called 
the "Saddam Hussein problem" would be to get the Iraqi leader to sign a new 
binding international agreement promising, henceforth, to be good. 

Of course, Iraq is already a party to the UN Charter, the Nuclear 
Nonproliferation Treaty, and various other solemn international treaties 
which clearly prohibit the things Saddam has been doing (invading his 
neighbors, developing chemical, biological, and nuclear weapons, etc.); but 
surely if we could just get him to sign one more piece of paper he would change 
his ways — especially if we could assure him that his victims will no longer be 
able to respond most effectively if he violates his promise. 

The logic is so compelling that one can only wonder why the world didn't 
think of it earlier? Imagine the lives that might have been saved had we just 
been able to get Germany and Japan to ratify a binding international treaty 
condemning "recourse to war for the solution of international controversies" 
and renouncing war "as an instrument of national policy" 154 a decade before the 
outbreak of World War II. Readers who recall the optimism that greeted the 
1928 Kellogg-Briand Pact may recall as well that it was solemnly ratified by 
both Japan 155 and Germany 156 — leading many people to conclude after the 
outbreak of World War II that international law was inherently ineffective as 
an instrument of peace. A better lesson to draw from this unfortunate 
experience is that unenforced international law is an unreliable barrier to 
aggression; 157 and a corollary may well be that aggression is encouraged when 
law-abiding States are denied the legal right to seek to deter aggression with 
their most effective legal weapons and the aid of other peaceloving States. 

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Put simply, the (former) President of the World Court was mistaken when he 
described nuclear weapons as being "the ultimate evil. . . ," 158 In this context, if 
there is an "ultimate evil" it is probably the kind of armed international aggression 
that results in the large-scale slaughter of innocent people and the subjugation of 
human freedom. When nuclear weapons — or any weapons — are used for that 
purpose, they are used in an evil manner. When they are used to dissuade potential 
aggressors from slaughtering or enslaving their neighbors, they serve a positive 
moral value. The weapons themselves have no inherent moral content. 159 

The Military Utility of Nuclear Weapons 

A central theme of much of the legal criticism of nuclear weapons is that, 
because of their inherent nature, they have no legitimate military purpose or 
value. Thus, States should not hesitate to give them up, and there is no 
legitimate "cost" in banning them. For example, in his book Prohibition of 
Nuclear Weapons: The Relevance of International Law, Elliott L. Meyrowitz 
asserts that "the nature and effect of nuclear weapons are such that they are 
inherently incapable of being limited with any degree of certainty to a specific 
military target." 160 From such reasoning he concludes that "nuclear weapons 
have no military utility." 161 

This is simply mistaken. Even if one were to assume that no State would ever 
likely again elect to resort to such weapons during combat, it is a dangerous 
fallacy to assume that weapons can have no utility or "military value" outside of 
combat. Indeed, the great Chinese strategist Sun Tzu emphasized this point 
well more than 2,500 years ago when he wrote: "For to win one hundred 
victories in one hundred battles is not the acme of skill. To subdue the enemy 
without fighting is the acme of skill." 162 

A thorough discussion of the utility of nuclear weapons is far beyond the 
scope of this short chapter, but two examples should suffice to establish the 
point. The first is the critically important role that nuclear weapons obviously 
played in keeping Europe at peace throughout the Cold War; and the second is 
the successful use of the implied threat of a nuclear reprisal if Saddam Hussein 
continued with his plans to use chemical or biological weapons during the 
1 990-9 1 Persian Gulf conflict. 

Nuclear Deterrence and the Cold War. It is critically important to keep in 
mind, as the world seeks relief from its fear of intentional or accidental nuclear 
holocaust, that the world as a whole has seen a remarkable era of relative peace 
for more than half-a-century, and that no single factor has likely played a more 

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decisive role in bringing this about than the shared perception of the 
unacceptability and futility of nuclear war and the realization that such an 
outcome might be an unintended consequence of the escalation of any major 
act of aggression by conventional weapons. 

Conrad Harper, the Legal Adviser to the U.S. Department of State in 1995, 
cautioned the Court that "nuclear deterrence has contributed substantially 
during the past 50 years to the enhancement of strategic stability, the avoidance 
of global conflict and the maintenance of international peace and security." 163 
Similarly, Sir Nicholas Lyell, Agent for the United Kingdom, observed: 

[T]hese two requests [by the General Assembly and World Health 
Organisation] ignore . . . the somber but vital role played by nuclear weapons in 
the system of international security over the past 50 years. . . . Our real world 
remains a fragmented and dangerous place, and in this real world, to call in 
question now the legal basis of the system of deterrence on which so many States 
have relied for so long for the protection of their people could have a profoundly 
destabilizing effect. 164 

Perhaps no one formally involved in the case expressed this point more 
eloquently than Judge Rosalyn Higgins (United Kingdom): 

One cannot be unaffected by the knowledge of the unbearable suffering and vast 
destruction that nuclear weapons can cause. And one can well understand that 
it is expected of those who care about such suffering and devastation that they 
should declare its cause illegal. It may well be asked of a judge whether, in 
engaging in legal analysis of such concepts as "unnecessary suffering," "collateral 
damage" and "entitlement to self-defence," one has not lost sight of the real 
human circumstances involved. The judicial loadestar . . . must be those values 
that international law seeks to promote and protect. In the present case, it is the 
physical survival of the peoples that we must constantly have in view. We live in 
a decentralized world order, in which some States are known to possess nuclear 
weapons but choose to remain outside of the non-proliferation treaty system; 
while other such non-parties have declared their intention to obtain nuclear 
weapons; and yet other States are believed clandestinely to possess, or to be 
working shortly to possess nuclear weapons (some of whom indeed may be a 
party to the NPT). It is not clear to me that either a pronouncement of illegality 
in all circumstances of the use of nuclear weapons or the answers formulated by 
the Court in paragraph 2E best serve to protect mankind against that 
unimaginable suffering that we all fear. 165 

Deterring Saddam's WMDs in the Gulf War. Anyone who doubts that the 
threat of a nuclear response can deter wrongful conduct should read the 

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Dissenting Opinion in the Nuclear Weapons case of then-World Court Vice 
President (now President) Steven M. Schwebel (United States), who cites 
chapter and verse in demonstrating that in 1990-91, American threats to 
retaliate with nuclear weapons persuaded the Iraqi regime not to make use of 
the 150 bombs and 25 ballistic-missile warheads filed with anthrax toxin that 
had been specially prepared for use during the war. Judge Schwebel quotes at 
length, for example, from a Washington Post article of 26 August 1995: 

Iraq has released to the United Nations new evidence that it was prepared to 
use deadly toxins and bacteria against U.S. and allied forces during the 1991 
Persian Gulf War that liberated Kuwait from its Iraqi occupiers, U.N. 
Ambassador Rolf Ekeus said today. 

Ekeus, the chief U.N. investigator of Iraq's weapons programs, said Iraqi 
officials admitted to him in Baghdad last week that in December 1990 they 
loaded three types of biological agents into roughly 200 missile warheads and 
aircraft bombs that were then distributed to air bases and a missile site. . . . 

U.S. and U.N. officials said the Iraqi weapons contained enough biological 
agents to have killed hundreds of thousands of people and spread horrible 
diseases. . . . 

Ekeus said Iraqi officials claimed they decided not to use the weapons after 
receiving a strong but ambiguously worded warning from the Bush 
administration on Jan. 9, 1991, that any use of unconventional warfare would 
provoke a devastating response. 

Iraq's leadership assumed this meant Washington would retaliate with 
nuclear weapons, Ekeus said he was told. 166 

Judge Schwebel also quotes from an interview with Iraqi Foreign Minister 
Tariq Aziz on the U.S. public television program Frontline, in which Aziz was 
asked why the expected chemical attack on U.S. forces "never came." He 
replied: "We didn't think that it was wise to use them. That's all what I can say. 
That was not — was not wise to use such kind of weapons in such kind of a war 
with — with such an enemy." 167 

After placing on the record an abundance of evidence of the impact on Iraqi 
policy of the American threat 168 to retaliate with nuclear weapons in the event 
of an Iraqi use of weapons of mass destruction (even though such a response 
had apparently been eliminated as an option before the war started 169 ), Judge 
Schwebel concluded: 

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Thus there is on record remarkable evidence indicating that an aggressor was or 
may have been deterred from using outlawed weapons of mass destruction 
against forces and countries arrayed against its aggression at the call of the 
United Nations by what the aggressor perceived to be a threat to use nuclear 
weapons against it should it first use weapons of mass destruction against the 
forces of the coalition. Can it seriously be maintained that Mr. Baker's 
calculated — and apparently successful — threat was unlawful? Surely the 
principles of the United Nations Charter were sustained rather than transgressed 
by the threat. 170 

The Characteristics of Modern Nuclear Weapons, For perhaps understandable 
reasons, governments are reluctant to discuss publicly the details of their most 
sensitive military programs. Former government officials and employees who 
have been granted access to highly classified defense programs are usually 
prohibited from discussing such details as well. Having been personally 
involved — quite unsuccessfully — in trying to persuade the United States 
Government to declassify persuasive evidence in connection with an earlier ICJ 
case more than a dozen years ago, 171 the present writer is not completely 
surprised that the official submissions to the Court did not focus on the 
technical details of the latest generation of nuclear weapons. Perhaps the 
strongest statement in this regard was by the Government of the United 
Kingdom, which told the Court: 

[M]uch of the writing on nuclear weapons on which these arguments rely dates 
from the 1950's and early 1960's. Modern nuclear weapons are capable of far 
more precise targeting and can therefore be directed against specific military 
objectives without the indiscriminate effect on the civilian population which the 
older literature assumed to be inevitable. 172 

Many references to the nature of nuclear weapons in presentations to the 
Court, and even portions of the Court's opinion, 173 suggest that this 
observation by the United Kingdom is correct. Not all "nuclear weapons" are 
identical. The Soviet Union, for example, once designed a nuclear weapon 
with a yield of 150 megatons and tested one with a yield oi approximately 50 
megatons. 174 Identifying a use for such weapons consistent with the law oi 
armed conflict would be extremely difficult, and most possible uses of a weapon 
capable of l/100th of that level of destructiveness might well conflict with the 
law — particularly if used anywhere near a concentration of noncombatants. 
But the reported trend in the latest generation of nuclear weapons is towards 
much smaller and far more accurate devices, and it is these devices that must 
be considered — in the light o{ all of the circumstances of a given situation — in 

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assessing the lawfulness of a potential use. The Court seems to have made no 
effort to inquire into the characteristics of such weapons, 175 apparently finding 
it more convenient to make assumptions based upon knowledge acquired in 
earlier decades and undocumented assertions made by critics who quite likely 
were also not privy to information on highly classified defense programs of the 
nuclear-weapons States. 

Thus, the President of the Court concluded that: 

Nuclear weapons can be expected — in the present state of scientific 
development at least — to cause indiscriminate victims among combatants and 
non-combatants alike, as well as unnecessary suffering among both categories. 
The very nature of this blind weapon therefore has a destabilizing effect on 
humanitarian law which regulates discernment in the type of weapon used. . . . 
Until scientists are able to develop a "clean" nuclear weapon which would 
distinguish between combatants and non-combatants, nuclear weapons will 
clearly have indiscriminate effects and constitute an absolute challenge to 
humanitarian law. 176 

The present writer has had no access to classified information on this topic 
in well over a decade, but judging from readily available press reports it seems 
likely that modern nuclear weapons have already satisfied this requirement. A 
report in Time magazine in connection with the recent confrontation between 
Saddam Hussein and the UN Security Council, for example, noted that "New 
weapons with ever increasing accuracy led the Pentagon to be confident that 
few will stray, thus limiting what military euphemists refer to as 'collateral 
damage' — innocent, but dead, civilians." 177 It notes that in the September 
1995 attacks on Bosnian Serb strongholds that led to the Dayton Accord, the 
Air Force reported 97 percent accuracy of its "smart bombs" — far superior to 
the success record in Operation Desert Storm less than five years earlier. By 
using Global Positioning System (GPS) satellites for guidance (rather than 
lasers, which could be thrown off target by smoke or bad weather), and new 
high-tech fuses that can actually "count" floors in an underground bunker and 
explode only upon reaching a pre-selected level, the United States had 
achieved weapons of unprecedented accuracy. 178 

Because of the increased accuracy, most targets can be defeated by the use of 
conventional high-explosive warheads, such as the GBU-28 179 and GBU-35 180 
5,000-pound "bunker busters;" however, the highly regarded Aviation Week & 
Space Technology quotes a retired senior Air Force general as saying "You can't 
attack all the chemical and biological weapons storage sites" in Iraq, because 
"[s]ome are too far underground. . . ." 181 

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Frank Robbins, Director of the Precision Strike Weapons Technology 
Office at Eglin Air Force Base in Florida, was quoted in Defense Week as stating 
that GPS-guided munitions "could hit a target the size of a man's upper torso 
within a metropolitan area as large as . . . Washington-Baltimore." 182 However, 
when that man's upper torso-size target is buried deeply underground, below 
the range of any conventional weapon that can be carried by the latest U.S. 
bombers, 183 the only means of deterring a foreign tyrant considering launching 
an aggressive war — or neutralizing his supply of weapons of mass destruction 
before they can be fired at the civilian populations of neighboring States — may 
be with a nuclear warhead. 

The Bulletin of the Atomic Scientists reported in late 1997 that the United 
States had earlier that year deployed the B61 earth-penetrating nuclear 
warhead to destroy "superhardened" or "deeply buried" targets "with great 
precision and bewildering agility, no matter their location." 184 The article 
asserts that the United States is seeking the ability to destroy "underground 
targets, with greater discrimination," for possible counterproliferation 
purposes, and that one recent report by nuclear weapons experts suggests that 
"a small nuclear warhead [like the B61] is the best way to neutralize anthrax 
agents." The present writer emphasizes that he has no personal knowledge 
about any of these programs, but assuming for the moment that these generally 
well-connected sources are correct, they identify critically important military 
missions which might not be achievable through the use of conventional 
ordinance. While it is obvious that the legality of any particular use of such 
weapons must be determined in the context of the purpose for which it is used, 
projected collateral damage, and other considerations, it is equally clear that 
not every use of such weapons would be unlawful. Indeed, one could easily 
conceive of settings in which such a use of nuclear weapons would claim few if 
any noncombatant lives, while in the process saving millions of lives that might 
otherwise be vulnerable to weapons of mass destruction. 

Once again, the utility of such weapons must also be evaluated in terms of 
their contribution to maintaining peace by deterring potential aggressors from 
initiating conflict. If small nuclear weapons make it possible for the United 
States to place the potential aggressor State's leadership at risk, and to 
neutralize an anthrax bomb before it can harm anyone, this serves both to 
diminish the perceived value of anthrax weapons and to place at personal risk 
decision makers who may be contemplating threatening the peace. Both of 
these consequences are highly desirable — irrespective of whether such 
weapons would ever actually be used in combat. 

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Perhaps it was inevitable — and even wise — for the Court to refrain from 
making a detailed speculative inquiry into the technological characteristics of 
modern nuclear weapons. But without doing so, the Court obviously lacked the 
knowledge necessary to draw legal conclusions based upon the application of 
the legal principles it had identified as being germane to the threat or use of 
these weapons. Its conclusions must therefore be considered in the light of this 
shortcoming. 

There are some very able, knowledgeable, and respected military 
professionals who have concluded that nuclear weapons are unnecessary and 
inherently immoral. 185 Their technical understanding of such weapons is far 
superior to that of the present writer, and in terms of the actual use of such 
weapons they may well be right. Surely, anyone with an ounce of sense realizes 
that nuclear war would be horrible beyond description. But precisely because of 
their perceived horror, the existence of these weapons has ironically thus far 
been a powerful force for world peace. And with admitted exceptions, military 
and political leaders in the democracies who know the most about these 
weapons continue to believe they have military utility. 186 

Nuclear Weapons as a Force for Peace 

Perhaps it is time for a "reality check." Strategic nuclear weapons are 
capable of incomprehensible devastation, and it doesn't require a World Court 
decision to make this point. It is not coincidental that they have not been used 
a single time in more than half-a^century since they were first developed and 
used to bring an end to World War II. One can only pray that they will never 
have to be used again. 

But one can also look back at the Cold War era and realize that the world 
might well be a far different place today had such frightening weapons not been 
introduced into national inventories. They have imposed a level of sanity on 
world leaders who otherwise had considerable incentives to promote violent 
change. Largely because of the respect among decision makers on all sides for 
the consequences of nuclear conflict, an unstable political confrontation that 
might easily have resulted in World War III was replaced by nearly 
half-a-century of political struggle and occasional detente, punctuated on 
occasion by relatively minor 187 coercive settings on the periphery of the 
presumptive battlefield. 

The foes of nuclear weapons will not acknowledge it, but it is quite probable 
that the existence of nuclear weapons was the single most important factor in 
keeping Europe at peace for nearly half-a-century following World War 

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II — longer than Europe had experienced peace in many centuries. To be sure, 
the standoff was frightening and the risks of error were horrific; but the 
existence of a nuclear-armed NATO probably saved tens of millions of lives in 
Europe alone. 

Complete Disarmament Is an Impractical Dream 

In a 1793 letter to James Monroe, Thomas Jefferson remarked, with his 
characteristic perception: "I believe that through all America there has been 
but a single sentiment on the subject of peace and war, which was in favor of 
the former. . . . We have differed, perhaps, as to the tone of conduct exactly 
adapted to secure it." 188 We may also have differed on the price to be paid for it, 
for as John Stuart Mill once noted: 

War is an ugly thing, but not the ugliest of things: the decayed and degraded state 
of moral and patriotic feeling which thinks nothing worth a war, is worse. ... A 
man who has nothing which he is willing to fight for, nothing which he cares 
more about than he does about his personal safety, is a miserable creature who 
has no chance of being free, unless made and kept so by the exertions of better 
men than himself. 189 

Who doesn't want peace? No rational, sane citizen of any country favors war 
when peace can be had without price, and the vision of a world without war is 
enticing. A simple — perhaps overly so — logic suggests that since wars are 
fought with weapons, if we can just rid the world of weapons we can guarantee 
peace. Wars, by this theory, result largely from the existence of weapons and 
from military imbalances which promise benefits for the strong. (The wisdom of 
this theory is easily established by reviewing the past two centuries of 
U.S. -Canadian relations.) 

Since we all in principle favor peace and would welcome a world in which all 
beings lived in peace and respected the rights of others, it follows that we would 
incorporate the aspirational goal of general and complete disarmament in 
precatory language designed to make everyone feel good at the conclusion of a 
less ambitious effort to control instruments of war — as was apparently done in 
Article VI of the NPT. 190 This is not to suggest that the parties were disingenuous 
in committing to pursue negotiations "on a treaty on general and complete 
disarmament under strict and effective international control" — presumably 
every peaceloving State would favor such a goal, if the control machinery were 
certain to be effective and could be implemented without totally undermining 
the sovereignty of individual States and the privacy of their citizens — but it is 

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Robert F. Turner 



likely that only the most naive delegates anticipated witnessing the conclusion 
of such an agreement in their own lifetimes. 

Professor Richard B. Bilder is but one of many respected commentators to 
observe that the "nuclear genie" is "out of the bottle," and that "[t]here are 
already over 50,000 of those weapons, knowledge of how to build them will 
never disappear. . . ." 191 Certain chemical and biological weapons are even 
simpler to build and to conceal. The inability of the world community to 
control illicit drugs provides some insight to this dilemma, and much of that 
activity takes place despite serious efforts by host States to prevent it. Those 
who recall the experience of the Gulf War will realize that it is necessary to be 
able to send inspectors not only to established military installations and 
chemical or medical laboratories, but also to inspect such places as "baby milk" 
factories 192 — and quite likely alleged "religious" and "cultural" properties as 
well. Indeed, one might anticipate that if any single category of facility were 
declared "off limits" for inspectors, that would be the most attractive place to 
engage in prohibited behavior. 

One would certainly expect a clever leader who wished to engage in covert 
development and production of prohibited weapons to try to "raise the costs of 
inspection" by concealing such activities in locations that might prove 
embarrassing for foreigners to enter, and then to use political warfare 
techniques to intimidate and discredit the inspectors if they nevertheless 
endeavored to do their job. At the same time, potential violators would 
presumably demand the most intrusive inspections within democratic 
States — both as an intelligence-gathering technique and as a means of 
pressuring other States to accept what might be called "informal 
accommodations" which would lessen the mutual inconvenience of 
inspections (and probably in the process make them virtually meaningless). 193 

Professor Almond has observed: "Because disarmament agreements are very 
difficult to verify without major intrusions into the territory of each of the 
parties, the possibility of concluding such an agreement is slight." 194 Other 
experts have made similar points. 195 It is also clear that the closer one comes to 
total disarmament, the more significant a small amount of "cheating" becomes 
and thus the greater the incentive to cheat. In a world with tens of thousands of 
nuclear weapons, a State that can covertly manufacture half-a-dozen nuclear 
devices is not going to dramatically transform the balance of power — especially 
if the Security Council can remain functional. But if all law-abiding countries 
eliminate all of their nuclear weapons — and, pursuant to the Court's 
interpretation of Article VI of the NPT, their conventional weapons as 
well — then the incentives for an ambitious tyrant to secretly build a small 

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inventory of prohibited weapons are considerably enhanced. A tyrant with a 
global monopoly on weapons of mass destruction, and a willingness to actually 
use them, would be a powerful actor indeed. So, in the absence of "strict and 
effective international control" to guarantee (assuming that were even 
theoretically possible) that no State was "breaking the rules," an unenforceable 
agreement requiring States to destroy all nuclear weapons (or all weapons of 
any kind) could well prove highly counterproductive to such Charter values as 
international peace, human dignity, and freedom. 

Today, any tyrant contemplating building nuclear weapons for aggressive 
purposes must consider the assurances of the world's strongest military powers 
that they will come to the defense of any NPT party that is a victim of 
aggression or a threat of aggression involving nuclear weapons. 196 That is a 
fairly strong disincentive: Why bother to build a small nuclear stockpile to 
harass your neighbors if the immediate consequence will be to bring you into 
conflict with the major nuclear powers? We must ask why the World Court 
seems so anxious to undermine this disincentive, in the process increasing the 
relative political and military value of a small stock of illicit nuclear weapons 
(and thus the incentive to acquire them) perhaps a thousand-fold? 

Any country that pretends to take seriously the vision of general and 
complete disarmament ought first to be willing to demonstrate the 
effectiveness of such a concept at the national level. Let them first take the 
guns and clubs from their own military and police forces, remove all kitchen 
knives from their homes, and display for the world to admire a functioning 
Utopian model of universal peace and tranquillity without the threat or use of 
force. (To paraphrase a comment once made about the practical shortcomings 
of socialism: "nice idea; wrong species.") Until that is done, the serious business 
of trying to promote a more peaceful world ought not be distracted by such silly, 
dangerous, illusions. 



G 



iven the political nature of the entire process, and the risk that under 
pressure from so-called "peace" groups, NGOs, and numerous 
Third-World States, the Court would have ignored the law and pronounced a 
dangerous new doctrine limiting the rights of States to use nuclear weapons to 
deter aggression and defend themselves and their allies if necessary, one must 
on balance view the advisory opinion with relief and some satisfaction. 
Basically, the Court got the law right. It overwhelmingly concluded that there 
is no conventional prohibition per se against the threat or use of nuclear 

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Robert F. Turner 



weapons, and similarly found no rule of customary law to support the position 
embodied in the General Assembly Resolution. It also quite properly noted 
that, like all weapons, nuclear weapons may not be used in violation of jus ad 
bellum or jus in hello — such as to commit aggression against a prohibited target 
or in a manner disproportional or unnecessary to the legitimate defensive needs 
of a particular situation. It also noted that the highly destructive nature of such 
weapons, and the commonly associated collateral effects like fallout and 
radioactive contamination, clearly made such weapons unsuitable for any but 
the most serious of settings. From the standpoint of its proper function and the 
rules of international law, had the opinion stopped there it would have been 
not only unobjectionable but quite commendable. 

From a political standpoint, however, such an opinion would have been less 
than ideal, as it would have constituted a complete rejection of the views of the 
countries and NGOs that had championed the initiative. While the Court's 
courage in resisting political pressure on the fundamental legal issues raised by 
the request is commendable, its decision to go further and include language 
apparently carefully designed to placate this considerable political bloc (and 
presumably the personal preferences of several of the judges) is regrettable. The 
decision led the Court first to depart from the judicial task of identifying and 
applying legal principles to specific facts associated with the highly technical 
and secretive field of modern nuclear weapons technology for which it lacked 
both the necessary factual information and the scientific expertise to make 
meaningful judgments; and secondly to gratuitously address an issue that had 
not been part of the request — and, more sadly still, to arrive unanimously at the 
wrong answer. 

As has been discussed, the Court's speculation about possible uses of nuclear 
weapons that might comply with existing jus in bellum quickly took the judges 
into a realm where they lacked sufficient expertise or information to make 
sound judgments. Apparently (and understandably) not being familiar with the 
characteristics of the latest generation of nuclear weapons, the Court seems to 
have assumed that any such weapons would necessarily and indiscriminately 
slaughter hundreds of thousands if not millions of combatants and 
noncombatants alike; and trying to hypothesize any scenario in which such 
conduct would not conflict with the laws governing military operations was, not 
surprisingly, difficult. 

Trying to emphasize the extreme nature of any such exception, the Court 
spoke in terms of defending against a threat to the survival of a State — which is 
not a bad example of a situation in which resort to a nuclear weapon might be 
justified. But it is hardly the only example. It would seem clear, for example, 



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Nuclear Weapons and the World Court 



that a victim of aggression that concluded that the use of nuclear weapons 
against an aggressor's underground stockpiles of weapons of mass destruction 
(or hardened military delivery systems for such weapons) was the only defense 
likely to save the lives of tens of millions of its citizens — even though the State 
might ultimately "survive" with even half of its original population — would be 
permitted under international law to make use of such weapons. The mere 
threat of such a defensive response is still less objectionable as a means of 
dissuading aggressive intentions. 

As an aside, some confusion may result from a misreading of the quite 
accurate and important language in paragraph 47 of the Court's opinion 
linking the lawfulness of a "threat" to use force with the underlying question of 
whether the actual use of force in that setting is permissible under the Charter. 
The Court concluded: 

The notions of "threat" and "use" of force under Article 2, paragraph 4, of the 
Charter stand together in the sense that if the use of force itself in a given case is 
illegal — for whatever reason — the threat to use such force will likewise be illegal. 
In short, if it is to be lawful, the declared readiness of a State to use force must be 
a use of force that is in conformity with the Charter. 197 

This is correct. But it does not follow that this rule — which governs jus ad 
helium and is associated with Article 2(4) of the Charter — applies in analyzing a 
threat or use of force under jus in hello. A State is required to consider the 
probable magnitude and risk of collateral damage to noncombatants when 
deciding whether it is lawful to attack an otherwise lawful military target, and 
for that reason, some tyrants find it convenient to place important military 
targets in the middle of population centers — presumably hoping that even if it 
remains "legal" for a country like the United States to attack the target (which 
it generally does) , considerations of humanity and more pragmatic concerns of 
public opinion will act as a deterrent. But a threat to use nuclear (or other) 
weapons in a defensive response to armed aggression does not endanger the 
interests protected by international humanitarian law. 198 Since, as already 
noted, the aggressive threat or use of nuclear weapons is already prohibited by 
the Charter, any analysis of potential defensive behavior needs to discriminate 
between actual use (which must comply with jus in hello) and expressed or 
implied threats aimed at enhancing deterrence. Deterring armed international 
aggression, after all, is an important Charter value. 

The legal test that ought to be used in responding to the General Assembly's 
question is not whether the Court majority successfully anticipated every 
future act of aggression which might legally be met with a particular defensive 

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nuclear response, but whether in every given situation the use of such weapons 
necessarily violates some governing legal principle. The Court's ignorance 
about recent (or future) technological developments in the characteristics of 
nuclear weapons does not alter the principle legal conclusions of the opinion. 
The proper test of the lawfulness of nuclear weapons is precisely the same as the 
test applied to any other weapon that has not been expressly banned: Does the 
action under all of the relevant circumstances violate any applicable provision 
of international law? 

Applying this test, it is abundantly clear that: 

Nuclear weapons may not be used aggressively, or in any other manner contrary 
to a State's relevant treaty commitments; 

Nuclear weapons may not be used contrary to any applicable rule of customary 
international law binding upon the State considering their use; 199 

Nuclear weapons may not be used against targets prohibited by international 

1 200 

law; 

Nuclear weapons may not be used even defensively except consistent with the 
legal rules which constrain the use of all force in self-defense and collective 
self-defense, such as necessity, proportionality, and discrimination. 

These principles are uncontroversial, unobjectionable, and fully consistent 
with United States military doctrine dating back more than four decades. 201 
Beyond that, the Court's speculation that the horrendous inherent 
characteristics of all nuclear weapons would preclude any use from satisfying 
these legal tests that did not involve a threat to "the very survival of a State" is 
only legally meaningful to the extent that the Court's comprehension of the 
nature of such weapons — today and tomorrow — was accurate. The legally 
significant point to the opinion is the test to be applied, not the prescience of 
the judges in foreseeing every conceivable circumstances that might threaten a 
State in the years ahead, or their perspicacity in understanding current military 
technology. To the extent the Court's uninformed and speculative 
inquiry — one might better say noninquiry, as there was little evidence of serious 
inquiry in the opinion — into the technical nature of modern nuclear weapons 
was unsoundly premised, the legal conclusions seven of the fourteen judges 
drew from that factual predicate are of little value. They certainly do not 
constitute binding rules limiting the conduct of States. 

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As much as the sponsors of the General Assembly request may have wished, 
once the Court properly recognized that neither conventional nor customary 
international law prohibits the defensive threat or use of nuclear weapons (so 
long as such conduct complies with the law of armed conflict), the Court 
clearly lacked the authority to modify those legal rules to conform to the 
political preferences of members of the Court or a plurality of members of the 
United Nations. Therefore, the Court's subsequent speculation about possible 
settings in which the use of such weapons would comply with the laws of armed 
conflict may have been a useful reminder of the potential horror of nuclear 
weapons, but to the extent it was premised upon factual error or limited vision, 
it is of no legal significance. The test remains whether a threat or use of nuclear 
weapons is consistent with the relevant rules of international law under all of 
the specific circumstances in which it occurs. It is a good test, and it is precisely 
the test that the United States has long recognized as controlling. The fact that 
the judges who most strongly favored a per se prohibition on the threat or use of 
nuclear weapons found it necessary to dissent from the majority opinion stands 
in clear refutation of the "spin control" efforts of antinuclear activists to portray 
the advisory opinion in a light more favorable to their political perspective. The 
clear reality is that they lost, and, as ironic as it may seem to some, the cause of 
international peace and effective deterrence emerges clearly victorious from a 
proper reading of the case. 



Notes 



1. This does not include all of the thirty-five countries which earlier submitted opinions in 
the companion request by the World Health Organization for an advisory opinion, which was 
rejected by the World Court as exceeding the proper jurisdiction of the organization. 

2. Unlike the U.S. Supreme Court, which by the Constitution is limited to deciding 
"cases" or "controversies" (U.S. CONST, art. Ill, §2) the World Court is expressly authorized to 
give nonbinding "advisory opinions" to the Security Council, General Assembly, and other UN 
organs to assist them in fulfilling their own responsibilities. See U.N. CHARTER art. 96; I.C.J. 
STAT. arts. 65-68. 

3. The CND "Information Officer" wrote in a letter to the editor: "I sat in the 
International Court of Justice while it ruled that the threat or use of nuclear weapons was illegal 
under international law." Letters, THE INDEPENDENT (London), July 11, 1996, at 17. See also, 
Christopher Bellamy, World Takes First Steps to Ban the Bomb, id. July 9, 1996, at 1 ("Last night, 
anti-nuclear pressure groups, including CND, were claiming victory. . . ."). The CND web page 
(http://mcb.net/cnd/cndtoday/winter97/) includes an article from CND Today (Winter 1997) 
which interprets the case as establishing that "The threat or use of nuclear weapons is illegal in 
all conceivable circumstances," and notes that "The Court . . . found no nuclear weapon which 
could comply" with international humanitarian law. (Of course, by similar reasoning, one might 
note that the Court did not identify any nuclear weapon which could not under any 
circumstances comply, but how many people will read the actual case?) Interestingly, the article 

352 



Robert F, Turner 



asserts that individuals being prosecuted in European courts for "serious anti-nuclear actions" 
(e.g., destroying government property) were successfully citing as a defense the ICJ Nuclear 
Weapons case. For readers who are not familiar with the CND, it was the original 
"ban-the-bomb" group established in Great Britain more than four decades ago and is perhaps 
most famous for having originated the so-called "peace sign," using a black circle around a 
vertical line with what might be described as an inverted "V" joining the line in the center. This 
symbol represents the international semaphore flag code for the letters N (flags extended 
downward on both sides at 45 degree angles from the legs) and D (left flag down, right flag above 
head — creating the appearance of a vertical line), signifying "Nuclear Disarmament." 

4. A Greenpeace spokesman declared that "The ruling, in fact, means that any use or 
threat to use nuclear weapons could be in breach of international law," and declared the opinion 
to be "much stronger than I expected." Disarmament: World Court Decision "Misunderstood" 
INTER PRESS SERVICE, July 10, 1996, available in 1996 WL 10768077. 

5. The American co-president of this group characterized the opinion as "much better 
than what we expected." Jonathan C. Randal, World Court: Nuclear Arms Mostly Illegal, WASH. 
POST, July 9, 1996, at A12. 

6. This statement is based upon personal conversations by the writer with lawyers who 
took part in arguing the case. 

7. For an excellent summary of the background to both the WHO and UNGA resolutions, 
see, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 3 Quly 8) [hereinafter cited as 
Nuclear Weapons], (Dissenting Opinion of Judge Oda at 3-23). See also Lt Col Michael N. 
Schmitt, USAF, The International Court of Justice and the Use of Nuclear Weapons, 51 (2) NAVAL 
WARC. REV. 91, 92-94 (Spring 1998); and Nuclear Weapons, Statement of the Government of 
the United Kingdom, June 1995, part II at 3-5. 

8. Japan Mum on World Court Refusal to Rule on Nuke Use, KYODO NEWS 
INTERNATIONAL, INC., July 15, 1996, available in 1996 WL 7593453. 

9. Id. 

10. See, e.g., Asides: In Their Opinion (editorial), WALL ST. J., July 15, 1996, at A12 
(characterizing the case as ruling "that the threat or use of nuclear weapons is not only really 
bad, but also illegal according to international law."). See also, Thalif Deen, Use of Nuclear 
Weapons Illegal, Says World Court, JANE'S DEFENCE WEEKLY, July 17, 1996, at 4 (quoting 
Daniel Ellsberg). 

11. For a discussion of the Court's handling of this case, see Peter H. F. Bekker, Dismissal of 
Request by World Health Organization for Advisory Opinion on Legality of Nuclear Weapons, 91 AM. 
J. INT'LL. 134(1997). 

12. U.N. CHARTER art. 96 ("The General Assembly . . . may request the International 
Court of Justice to give an advisory opinion on any legal question."). 

13. The General Assembly is not a "legislative" body and its resolutions, by themselves, do 
not create or determine international law (except to the extent it is empowered to make binding 
decisions having to do with the functioning of the organization) . 

14. G.A. Res. 1653 (XVI). 

15. The 1961 resolution, for example, passed by a vote of 56 to 19, with 26 abstentions. 

16. G.A. Res. 33/71B, Dec. 14, 1978 (emphasis added). 

17. U.N. CHARTER art. 18 (referring to a majority or two-thirds majority "of the members 
present and voting." (Emphasis added.) While one might argue that registering an abstention 
during the electronic voting process nevertheless constitutes a "vote" for purposes of Article 18, 
the Rules of Procedure of the General Assembly define this language of the Charter to exclude 



353 



Nuclear Weapons and the World Court 



abstentions. U.N. Doc. A/520/Rev.l5, Rule 86 (1985), quoted in Paul C. Szasz, Addendum: The 
Vote in the General Assembly, 91 AM. J. INT'L L. 133 n.3 (1997). 

18. "Decisions of the General Assembly on important questions shall be made by a 
two-thirds majority of the members present and voting. These questions shall include: 
recommendations with respect to the maintenance of international peace and security. ..." 

U.N. Charter art. 18(2). 

19. Szasz, supra note 17, at 134- 

20. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J., (ser. A), No. 10, at 18-19 (Sept. 7). 

21. "[I]n international law there are no rules, other than such rules as may be accepted by 
the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State 
can be limited, and this principle is valid for all States without exception." Military and 
Paramilitary Activities (Nicar. v. U.S.) (Merits), 1986 I.C.J. 4 Oune 27), para. 269. 

22. See, e.g., Nuclear Weapons (written submissions of the United Kingdom at 21, and the 
Russian Federation at 5). 

23. Nuclear Weapons, para. 22. 

24. Id., para. 52. 

25. Nuclear Weapons (Declaration of President Bedjaoui at para. 13). 

26. U.N. CHARTER art. 2, para. 4 ("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 other manner inconsistent with the Purposes of the United Nations."). 

27. I am indebted to my colleague John Norton Moore for perceiving this reality more than 
a decade ago. See John Norton Moore, Nuclear Weapons and the Law: Enhancing Strategic 
Stability, in NUCLEAR WEAPONS AND LAW 54 (Arthur Selwyn Miller & Martin Feinrider eds., 
1984). The Russian Government also emphasized the importance of distinguishing between 
offensive and defensive uses of nuclear weapons. Nuclear Weapons, "Written Statement and 
Comments of the Russian Federation on the Issue of the Legality of the Threat or Use of Nuclear 
Weapons," Moscow, June 16, 1995, at 5. 

28. The writer is not suggesting that there are no dangers inherent in predicating world 
peace upon the hope that rational leaders will always be deterred from aggression by the 
knowledge that initiating a war might even unintentionally lead to nuclear holocaust. To be 
sure, this is a frightening thought. But one might also be concerned about legal efforts to 
undermine the ability of the world community to dissuade potential aggressors from initiating 
war in the first place. The impact of this decision on deterrence and peace is addressed infra, at 
notes 127-160 and accompanying text. 

29. See, e.g., infra note 165 and accompanying text. 

30. "The Court may give an advisory opinion on any legal question at the request of 
whatever body may be authorized by or in accordance with the Charter of the United Nations to 
make such a request." I.C.J. STAT. art. 65(1) (emphasis added). 

31. See infra notes 127-188 and accompanying text. 

32. This is true unless the parties to a contentious case elect to submit a dispute for the 
Court to decide ex aequo et bono pursuant to Article 38(2) of the I.C.J. Statute. 

33. Nuclear Weapons, para. 18. 

34. See Schmitt, supra note 7, at 108. 

35. Nuclear Weapons, para. 86. 

36. Id., paras. 37-39. 

37. See, e.g., id. paras. 22, 85, 86 ("None of the statements made before the Court in any way 
advocated a freedom to use nuclear weapons without regard to humanitarian constraints."). 

38. Id., paras. 24-25. 



354 



Robert F. Turner 



39. Id., paras. 27-33. 

40. Id., para. 55 ("The practice is clear, and the parties to those instruments have not 
treated them as referring to nuclear weapons."). 

41. Id., para. 26. 

42. These are discussed in id., paras. 58 &59. For the text and background to some of these 
instruments, see U.S. ARMS CONTROL AND DISARMAMENT AGENCY, ARMS CONTROL AND 
DISARMAMENT AGREEMENTS (1996). For an excellent summary of international agreements 
declaring certain regions to be "nuclear-free zones," see Mark E. Rosen, Nuclear -Weapon-Free 
Zones, NAVAL WAR C. REV., Autumn 1996, at 47-55. 

43. Nuclear Weapons, para. 62. 

44. Id., para. 62. 

45. Id., paras. 79, 83. 

46. Indeed, as the Russian Government was quick to point out, the World Health 
Organization virtually conceded the lack of a customary ban in noting that "over the last 38 years 
marked differences of opinion have been expressed by Member States about the lawfulness of the 
use of nuclear weapons." Quoted in Nuclear Weapons, "Written Statement and Comments of the 
Russian Federation on the Issue of the Legality of the Threat or Use of Nuclear Weapons," 
Moscow, June 16, 1995, at 17. The Russians also noted that one of the reasons States are 
negotiating various international agreements placing limits on certain deployments or uses of 
nuclear weapons is because they recognize that there is no established customary norm, which, if 
it existed, would make the treaties unnecessary. Id. at 7. 

47. Nuclear Weapons, para. 67. 

48. Decisions of the General Assembly do have legal effect in certain specified areas, such 
as in setting the contributions to be paid each year by member States. 

49. Nuclear Weapons, para. 71. 

50. This may be optimistic. While one would hope that no government would contemplate 
using a nuclear weapon against its own nationals, the same thing might have been said about the 
use of other weapons of mass destruction until Saddam Hussein actually did so. 

51. Nuclear Weapons, para. 50. 

52. While activist scholars have in recent years produced a number of books and articles 
arguing that there is a "fundamental need to erect an international legal structure" to outlaw 
nuclear weapons, or calling for "an effort to create a legal regime for the reduction and 
elimination of nuclear weapons" as a "high priority," and a relatively small number assert that 
existing treaties already effectively outlaw any threat or use of nuclear weapons, there is certainly 
no consensus among "the most highly qualified publicists of the various nations" that 
international custom already imposes a per se ban on the threat or use of nuclear weapons. See, 

e.g., Elliott L. Meyrowitz, Prohibition of Nuclear weapons: The Relevance of 

INTERNATIONAL LAW 197, 204, 205 (1990); NUCLEAR WEAPONS AND LAW 5-6 (Professor 
Richard B. Builder), 52 (Professor John Norton Moore), & 58 (Professor Harry Almond) 
(Arthur Selwyn Miller & Martin Feinrider eds., 1984); and Lori Fisler Damrosch, Banning the 
Bomb: Law and Its Limits, 86 COLUM. L. REV. 653, 667 (1986). 

53. Nuclear Weapons (Dissenting Opinion of Vice-President Schwebel at 13). 

54. Nuclear Weapons, para. 105 (2) (A). 

55. Id., para. 105(2) (C). 

56. Id., para. 105(2) (D). 

57. See, e.g., Nuclear Weapons, "Written Comments of the Government of the United 
States of America on the Submissions of Other States," June 20, 1995, at 34 ("The United States 



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Nuclear Weapons and the World Court 



has long taken the position that various principles of the international law of armed conflict 
would apply to the use of nuclear weapons as well as to other means and methods of warfare.") . 

58. Nuclear Weapons, para. 105 (2) (B). 

59. See supra note 24 and accompanying text. 

60. Nuclear Weapons, para. 105 (2) (E). 

61. "All questions shall be decided by a majority of the judges present." I.C.J. STAT. art. 
55(1). 

62. Id., art. 55(2). 

63. Id. (Declaration of President Bedjaoui), para. 19. One might have thought that slavery, 
torture, or genocide might better qualify as "the ultimate evil." 

64. I.C.J. STAT. art. 68. 

65. It is not here suggested that the Court should alter its own procedural rules from case to 
case, but rather that a reasonable argument can be made that tie votes in connection with 
advisory opinions do not necessarily need to be artificially "broken" by permitting one judge to 
vote twice. Contentious cases may pertain to impassioned disputes which, if left unresolved, 
might lead to unpleasantness and even hostilities. A just and impartial resolution of such 
disputes may be important, and if dispassionate experts are evenly divided on which party is in 
the legally superior position, and a compromise solution is impractical, it may even be useful (and 
fair) to essentially have the Court "flip a coin" to resolve the matter. A United Nations agency 
seeking a nonbinding advisory opinion could presumably adjust to the reality that the members 
of the World Court are evenly divided upon a legal question. 

66. Implicit or explicit here would be the point that if a "nuclear weapon" existed or was 
developed that either lacked, or greatly reduced, the devastating characteristics normally 
associated with such weapons, a different conclusion might result from the application of the 
governing legal principles to the facts of that specific weapon and the circumstances in which it 
was being threatened or used. 

67. CHARLES DICKENS, OLIVER TWIST 354 (Kathleen Tillotson ed., Oxford Univ. Press 
1966). See infra note 198 and accompanying text. 

68. Nuclear Weapons, para. 96 (emphasis added). 

69. U.N. Charter art. 51. 

70. 95 CONG. REC. 8892 (1949) (statement of Sen. Vandenberg). 

71. The Charter of the United Nations: Hearings Before the Senate Comm. 

ON FOREIGN RELATIONS, 79th Cong., 1st Sess. 349-350 (1945) (statement of John Foster 
Dulles, official adviser to United States delegation at San Francisco). The Russian Government 
noted in its written statement to the Court that "the Charter does not impair in any sense the 
inherent right of individual or collective self-defence if an armed attack occurs against a Member 

of the United Nations " Written Statement and Comments of the Russian Federation on the 

Issue of the Legality of the Threat or Use of Nuclear Weapons, Moscow, June 16, 1995, at 8. 

72. This translation was confirmed by the Russian Federation Mission to the United 
Nations in New York by telephone. 

73. When questions were raised about whether the Kellogg- Br iand Pact would restrict the 
right of States to use force in self-defense, the United States sent a diplomatic note to all 
countries being invited to sign the treaty which read in part: "There is nothing in the American 
draft of an anti-war treaty which restricts or impairs in any way the right of self-defence. That 
right is inherent in every sovereign State and is implicit in every treaty. Every nation is free at all 
times and regardless of treaty provisions to defend its territory from attack or invasion and it 
alone is competent to decide whether circumstances require recourse to war in self-defense. . . . 
Express recognition by treaty of this inalienable right, however, gives rise to the same difficulty 



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Robert F. Turner 



encountered in any effort to define aggression." Quoted in DOCUMENTS ON NATIONAL 
SECURITY LAW 139 n.2 0°hn Norton Moore, Guy B. Roberts & Robert F. Turner eds., 
1995) (emphasis added). 

74. Nuclear Weapons (Separate Opinion of Judge Fleischhauer at 3). 

75. Id. (Declaration of President Bedjaoui at para. 22). 

76. The United Nations was established in the final months of World War II for the primary 
purpose of avoiding World War III, and the very first purpose identified in Article I is "to take 
effective collective measures for the prevention and removal of threats to the peace. . . ." U.N. 

Charter art. I, sect. 1. 

77. See supra note 32 and accompanying text. 

78. Consider this excerpt from the Declaration of President Bedjaoui: "Humanity is 
subjecting itself to a perverse and unremitting nuclear blackmail. The question is how to put a 
stop to it. The Court had a duty to play its part, however small, in this rescue operation for 
humanity. . . . This very important question of nuclear weapons proved alas to be an area in 
which the Court had to acknowledge that there is no immediate and clear answer to the question 
put to it. It is to be hoped that the international community . . . will endeavour as quickly as 
possible to correct the imperfections of an international law which is ultimately no more than the 
creation of the States themselves. The Court will at least have had the merit of pointing out 
these imperfections and calling upon international society to correct them." Nuclear Weapons 
(Declaration of President Bedjaoui at paras. 6, 8). 

79. The Court also sought to narrow this right in the Paramilitary Activities Case. See Robert 
F. Turner, Peace and the World Court, 20 VAND. J. TRANS. L. 53, 69-70 (1987). 

80. The Court elected not to address the lawfulness of a proportional use of nuclear 
weapons as a belligerent reprisal to an armed attack with weapons of mass destruction. Nuclear 
Weapons, para. 47. 

81. Treaty on the Non-Proliferation of Nuclear Weapons, signed on July 1, 1988, 21 U.S.T. 
483. 

82. U.S. Arms Control and Disarmament Agency, Arms Control and 
Disarmament Agreements: Texts and Histories of The Negotiations 93-94 (1996) . 

83. Nuclear Weapons (Dissenting Opinion of Judge Oda at 29). 

84. Nuclear Weapons, para. 105 (2) F. 

85. This point has been observed by commentators and was also noted in Nuclear Weapons 
(Minority Opinion of Vice President Schwebel at 13; Separate Opinion of Judge Fleischhauer at 
4). 

86. G.A.Res.51/45M,Dec. 10, 1996 (adopted by a vote of 115-22-32) (emphasis added) . 

87. Treaty on the Non-Proliferation of Nuclear Weapons, signed on July 1, 1988, 21 U.S.T. 
483. 

88. Nuclear Weapons, paras. 99-100 (emphasis added). 

89. If the Court perceives a legal duty to conclude an agreement, it presumably must be able 
to articulate at least the basic provisions of that agreement. Were it nothing more than an 
agreement to destroy all of their nuclear or other weapons, that might be manageable; but 
Article VI speaks in terms of attempting to negotiate "effective measures . . . under strict and 
effective international control." (Emphasis added.) Where is the Court to turn in ascertaining a set 
of objective treaty terms to accomplish this goal? Can anyone say with a straight face that the 
States which ratified the NPT would have done so had they been informed that the World Court 
would arbitrarily impose a set of terms to satisfy the "strict and effective international control" 
requirement of Article VI — terms which would either be extremely intrusive on traditional 

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Nuclear Weapons and the World Court 



principles of national sovereignty or would likely prove ineffective in safeguarding the security of 
those States? Such an idea is simply not credible. 

90. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27 (1969), 8 1.L.M. 
679 (1969). 

9 1 . Article 2 (4) of the UN Charter would prohibit States from attempting to coerce other 
States to sign an agreement (which would in any event be void ab initio under Article 52 of the 
Vienna Convention) . Since it is axiomatic that no "agreement" can exist without the consent of 
all parties, if a State has a legal obligation to conclude an unspecified agreement it is presumably 
at the mercy of the other party or parties. 

92. Article X of the NPT provides, inter alia: "Each Party shall in exercising its national 
sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, 
related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. 
It shall give notice of such withdrawal to all other Parties to the Treaty and to the United 
Nations Security Council three months in advance. ..." 

93. Tacna-Arica Question (Chile v. Peru), 2 R.I.A.A. 921, 926 (1925). For a useful 
discussion of this and other international cases of relevance, see Martin A. Rogoff, The Obligation 
to Negotiate in International Law, 16 MICH. J. INT'L L. 141 (1994). 

94. 2 R.I.A.A. 929-930. 

95. Railway Traffic Between Lithuania and Poland, Oct. 15, 1931, PCIJ (ser. A/B), No. 42, 
at 108. 

96. Id. 

97. Id. at 116 (emphasis added). 

98. International Status of South-West Africa, 1950 I.C.J. 128. 

99. Id. at 184 (dissenting opinion of Judge Alvarez) (emphasis added). 

100. Graeco-German Arbitration, 19 R.I.A.A. 55 (1990); 47 INTERNATIONAL LAW 
REPORTS 452-53 (E. Lauterpacht, ed. 1974). 

101. 47 INT'L L. REFT at 453. 

102. Quoted in Ulrich Beyerlin, Pactum de Contrahendi, Pactum de Negotiando, in 3 

Encyclopedia of Public International Law 854, 858 (1997). 

103. I.C.J. STAT art. 38(3). 

104. Lord McNair, The Law of Treaties 27, 29 (1986). See also, Max S0rensen, 

MANUAL OF PUBLIC INTERNATIONAL LAW 678-679 (1968) (emphasis added). 

105. l E. Allan Farnsworth, Farnsworth on Contracts 328 (1990). 

106. Id. at 330. 

107. Convention on the Law of Treaties, supra note 90, art. 32. 

108. 2 Mohamed I. Shaker, The Nuclear Non-proliferation Treaty: Origin and 

IMPLEMENTATION 1959-1979, at 566 (1980). 

109. Id. at 569-570. 

110. Id. at 570. 

111. Id. at 571 (emphasis added). 

112. Id. at 567 (italicized emphasis added) (quoting U.S. negotiator Gerard Smith.) Dr. 
Shaker notes further that "[s]ome countries took refuge in the UN General Assembly resolution 
23 73 (XXII) commending the final draft of the NPT, [and] interpreting it as laying upon the 
nuclear-weapon States a solemn obligation to agree on further constructive measures of 
disarmament over and above the provisions of Article VI of the NPT." Id. at 572. One might 
note that: (1) this is a much narrower "obligation" than that held by the World Court to exist in 
the Nuclear Weapons advisory opinion; (2) the United States, for its part, has in fact agreed to a 
wide range of "further constructive measures of disarmament" through the SALT and START 



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Robert F. Turner 



process and through various multilateral treaties; and (3) resolutions of the UN General 
Assembly are not binding as a source of treaty interpretation. 

1 13. See, e.g., Nuclear Weapons, "Statement of the Government of the United Kingdom, June 
1995," at 53. 

114. I.C.J. STAT. art. 68 (emphasis added). 

115. Id., art. 53. 

116. Id., art. 49. 

117. Id., art. 50. 

118. "The Court would observe that none of the States advocating the legality of the use of 
nuclear weapons under certain circumstances . . . has indicated what . . . would be the precise 
circumstances justifying such use. . . ." Nuclear Weapons, para. 94. 

119. Nuclear Weapons (dissenting opinion of Judge Higgins at para. 9). For similar 
observations made more than a dozen years earlier, see W. Michael Reisman, Deterrence and 
International Law, in NUCLEAR WEAPONS AND THE LAW, supra note 27, at 129, 131-132; and 
John Norton Moore, Nuclear Weapons and the Law: Enhancing Strategic Stability, in id. at 51, 
54-55. 

120. See, e.g., OFFICE OF NAVAL INTELLIGENCE, WORLDWIDE SUBMARINE CHALLENGES 
16 (1997). 

121. I have chosen to use this older missile because its characteristics are better known than 
the newer SS-NX-28 that is reportedly being built for the new Bore^-class submarines. While the 
Borey is expected to carry "at least 12 strategic missiles," their characteristics and payload are not 
in the public domain. Id. 

122. Robert F. Turner, Killing Saddam: Would It Be a Crime? WASH. POST, Oct. 7, 1990 at 
Dl. 

123. It has been widely reported that Saddam has constructed a number of hardened 
underground sites to protect him from personal risk. The world community has now affirmed 
that aggressive war is a criminal act erga omnes, and even if one assumed that a deep-penetrating 
small nuclear warhead would in some settings cause collateral damage claiming hundreds and 
perhaps thousands of innocent lives, this may be more acceptable than a prolonged conventional 
conflict in which hundreds of thousands or even millions of soldiers and noncombatants are 
slaughtered. Further, when the regime elite in question has the capability of unleashing weapons 
of mass destruction on innocent civilians in other countries, these risks must be balanced against 
anticipated collateral damage from a surgical strike against the aggressor regime elite. Each 
setting must obviously be evaluated in the context of all of the available information; but the idea 
that international law prohibits even threatening to use such a weapon to destroy the leadership 
of an aggressor State in an effort to deter the use of weapons of mass destruction against millions 
of innocent civilians is without foundation (see infra, notes 197-198 and accompanying text). To 
be sure, the risks of collateral damage must always be considered and might often preclude the 
actual use of such a weapon; but there is no per se ban on the threat of such use as an element of 
deterrence of international aggression. 

124. The terrorists in this setting made no threat to occupy the United States or change even 
its form of government — and the Cambodian tragedy of two decades ago has demonstrated that 
a country might lose nearly a third of its population to tyranny and still "survive" as a State. 

125. There is no stare decisis rule for the World Court. Even in contentious cases, "[t]he 
decision of the Court has no binding force except between the parties and in respect of that 
particular case." I.C.J. STAT. art. 59. 

126. UN CHARTER art. 92. 

127. Id.,pmbl. 



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1 28. ELLIOTT L. MEYROWITZ, PROHIBITION OF NUCLEAR WEAPONS: THE RELEVANCE OF 
INTERNATIONAL LAW 208 (1990). 

129. Id. at 204. 

130. Id. at 206. 

131. Id. at 202. 

132. John Ellis, World War il A Statistical Survey 253 (1993). 

133. R.J. Rummel, The Miracle That is Freedom 3 (1995). 

134. See, e.g., BRUCE RUSSETT, GRASPING THE DEMOCRATIC PEACE (1993) ; R.J. RUMMEL, 
POWER KILLS: DEMOCRACY AS A METHOD OF NONVIOLENCE (1997) and other works by this 
author; and Part IV of APPROACHES TO PEACE: AN INTELLECTUAL MAP (W. Scott Thompson 
etal. eds., 1991). 

135. Particularly insightful on these issues is the work of my colleague, Professor John 
Norton Moore, who co-teaches a seminar with me at the University of Virginia School of Law on 
"War and Peace." While much of his work is still unwritten, a useful summary of some of his 
conclusions may be found in John Norton Moore, Toward a New Paradigm, 37 VA. J. INT'L L. 81 1 
(1997). 

136. See, e.g., Secretary of Foreign Affairs Thomas Jefferson's letter to James Monroe, July 
11, 1790, in 17 PAPERS OF THOMAS JEFFERSON 25 (Julian P. Boyd ed., 1965) ("Whatever 
enables us to go to war, secures our peace."). 

137. "If you desire peace, prepare for war." FLAVIUS VEGETIUS RENATUR, EPITOMA RE 
MILITARIS, Prologium at 3 (380 AD). 

138. See, e.g., DONALD KAGAN, ON THE ORIGINS OF WAR AND THE PRESERVATION OF 
PEACE, chs. 2 &4 (1995). 

139. Id. at 302. 

140. Id. at 351. 

141. Id. at 359. 

142. Id. at 360-361. 

143. Id. at 394, 412. 

144. As a junior naval officer nearly three decades before becoming Chairman of the Joint 
Chiefs of Staff, Admiral Thomas Moorer took part in debriefing Japanese leaders at the end of 
World War II. Conversation with the writer. 

145. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other 
Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, T.I.A.S. No. 
8061. 

146. The Convention on the Prohibition, Production, Stockpiling, and Use of Chemical 
Weapons, opened for signature Jan. 13, 1993, U.N. GAOR, 47th Sess., Supp. No. 27, U.N. Doc. 
A/47/27/Appendix 1 (1992), 32 I.L.M. 800 (1993). 

147. U.N. CHARTER art. 2, para. 4, quoted supra at note 26. 

148. Burns H. Weston, Law and Alternative Security: Toward a Nuclear Weapons-Free World, 
75 IOWA L REV. 1077, 1087 (1990). 

149. Id. at 1077. 

150. See infra, notes 166-170 and accompanying text. 

151. While maintaining national credibility generally militates against making threats a 
State is unwilling to carry out, when the stakes involve trying to deter a possible chemical, 
biological, or nuclear attack, there may well be settings where a country will elect to threaten a 
belligerent reprisal which it might ultimately decide not to actually carry out. Like "bluffing" in 
poker, it is seldom useful to gain a reputation for not being able or willing to back up words with 
deeds; and in the war-peace setting this can be especially costly in terms of undermining 



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deterrence. For this reason, the assertion in some recent autobiographical accounts of the 1991 
Gulf War that the United States had decided in advance to strongly imply that Iraqi use of 
weapons of mass destruction would be decisively countered with American nuclear weapons, but 
not to use such weapons under any circumstances, is unfortunate. The policy itself made 
imminent sense, but it should have remained a secret. The next time the United States finds it 
necessary to make such a threat, it may prove to be far less credible. In the writer's view, a threat 
of belligerent reprisal by nuclear weapons as a means of deterring an aggressive chemical, 
biological, or nuclear attack is neither contrary to existing jus ad helium nor with any established 
jus in hello principle. To be sure, it may raise the anxiety level of a tyrant contemplating 
aggression, but that is one of the objectives of any deterrence policy. 

152. Id. at 1087. 

153. Id. at 1088. 

154. Treaty on Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 
T.I.A.S. No. 796, 94 L.N.T.S. 57, reprinted in NATIONAL SECURITY LAW DOCUMENTS, supra 
note 73, at 139. 

155. Japan ratified the treaty on July 24, 1929. 

156. Germany ratified the treaty on March 2, 1929. 

157. The unwillingness of the international community to respond seriously to the Japanese 
invasion of Manchuria in 1930, and the Italian invasion of Ethiopia in 1936, demonstrated the 
toothless character of both the League of Nations and the Kellogg-Briand Pact. In a not 
dissimilar manner, the world community's failure to respond seriously to Iraq's invasion of Iran in 
1980 and its subsequent use of prohibited chemical weapons likely contributed to the decision to 
invade Kuwait in August 1990. 

158. See supra note 63 and accompanying text. 

159. This is not to say that there are no weapons which might be characterized as "immoral" 
or even "evil." While this writer believes the better approach is to ascribe moral content to 
human actors, he might not quarrel with the conclusion that certain weapons may be incapable 
of being used in a moral manner — and thus their creation may be an immoral act. However, if 
they are created not to facilitate aggression and the painful slaughter of the innocent, but rather 
to deter the use of such weapons by others, even chemical weapons may serve a moral value. 
Consider, for example, the role played by Allied chemical weapons during World War II in 
dissuading Hitler from making use of the Nazi stockpile of such weapons. 

160. MEYROWITZ, supra note 52, at 201. 

161. Id. at 207. 

162. SUN TZU, THE ART OF WAR 77 (Samuel B. Griffiths ed., 1963). 

163. Nuclear Weapons (Oral Statement of State Legal Adviser Conrad Harper (U.S.), in 
Verbatim Record, Public Sitting, Wednesday, Nov. 15, 1995, CR 95/34, at 68). 

164. Nuclear Weapons (Oral Statement of Sir Nicholas Lyell (UK) in Verbatim Record, 
Public Sitting, Wednesday, Nov. 15, 1995, CR 95/34, at 22-23). 

165. Nuclear Weapons (dissenting opinion of Judge Higgins at 8). 

166. R. Jeffrey Smith, L/.N. Says Iraqis Prepared Germ Weapons in Gulf War; Baghdad Balked, 
Fearing U.S. Nuclear Retaliation, WASH. POST, Aug. 26, 1995, at Al, quoted in Nuclear Weapons 
(dissenting opinion of Vice-President Schwebel at 10-11). 

167. Quoted in Nuclear Weapons (dissenting opinion of Vice-President Schwebel at 10) 
(emphasis added). 

168. Judge Schwebel quotes from the writings of former U.S. Secretary of State James Baker 
to establish that the United States "purposely left the impression that the use of chemical or 
biological agents by Iraq could invite tactical nuclear retaliation." Id. 



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169. Id. One can be pleased that the United States made this decision and at the same time 
alarmed that it has been made public in the memoirs of key players and in other accounts of the 
conflict. Presumably it will be more difficult to deter the use of weapons of mass destruction 
against U.S. troops in any future conflicts because of the reports that the effective 1991 threat 
was merely a "bluff." See supra note 151. 

170. Nuclear Weapons (dissenting opinion of Vice-President Schwebel at 12). 

171. The reference is to the Paramilitary Activities case, supra note 21 and accompanying 
text. The writer served as Principal Deputy Assistant Secretary of State for Legislative Affairs at 
the time, and because of his background, both in international law and with the intelligence 
program being examined by the Court (in an earlier position as Counsel to the President's 
Intelligence Oversight Board at the White House), he was asked to serve on the interagency 
group that ultimately (over the writer's strong objection) recommended that the United States 
withdraw its acceptance of the Court's jurisdiction under Article 36(2) of the ICJ Statute. During 
this process, the writer tried in vain to persuade Intelligence Community officials to declassify 
some of the powerful evidence that had persuaded the Kissinger Commission, the House and 
Senate intelligence committees, and various other groups, that the United States was in fact 
responding defensively to an effort by Nicaragua to overthrow neighboring governments. 

172. Nuclear Weapons Statement of the Government of the United Kingdom, June 1995, at 
52. 

173. See, e.g., Nuclear Weapons, para. 35. 

174. Arthur G. Gaines, Jr., Comment: The Environmental Threat of Military Operations, in 

Protection of the Environment During Armed Conflict 144 (Richard J. Gmnawalt, 

John E. King & Ronald S. McClain eds., 1996). 

175. Admittedly, such an effort might well have proven unsuccessful given the secrecy 
which usua