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Full text of "The law of war in the 21st century : weaponry and the use of force"

International Law Studies 



Volume 82 



The Law of War in the 21st Century: 
Weaponry and the Use of Force 



Anthony M. Helm 
Editor 




Naval War College 
Newport, Rhode Island 
2006 



International Law Studies 



Volume 82 



Library of Congress Cataloging-in-Publication Data 

The law of war in the 21st century : weaponry and the use of force / Anthony M. 
Helm, editor. 

p. cm. — (International law studies ; v. 82) 
Includes index. 

ISBN-13: 978-1-884733-40-6 (hard cover) 
ISBN-10: 1-884733-40-9 (hardcover) 
1. War (International law) I. Helm, Anthony M. 
KZ6385.L385 2006 
341.6-dc22 

2006102080 



Table of Contents 



The Law of War in the 21st Century: 
Weaponry and the Use of Force 



Foreword ix 

Introduction xi 

Preface xiii 

Part I: Keynote Address 

I War and International Law: Distinguishing Military and Humanitarian 

Professions 
David Kennedy 3 

Part II: Customary International Humanitarian Law: the ICRC Study 

II Study on Customary International Humanitarian Law: A Contribution to 

the Understanding and Respect for the Rule of Law in Armed Conflict 
Jean-Marie Henckaerts 37 

III An Australian Perspective on the ICRC Customary International 

Humanitarian Law Study 
Timothy L. H. McCormack 81 

IV The ICRC Customary International Humanitarian Law Study 

Yoram Dinstein 99 

Part III: Law of Armed Conflict Dissemination 

V The American Red Cross and International Humanitarian Law 

Dissemination 
Lucy Brown 115 



VI Teaching the Law of Armed Conflict to Armed Forces: 

Personal Reflections 
David Lloyd Roberts 121 

Part IV: Modern Weaponry and Warfare 

VII War, Technology and the Law of Armed Conflict 

MichaelN. Schmitt 137 

VIII Modern Weaponry and Warfare: The Application of Article 36 of 

Additional Protocol I by Governments 
Marie Jacobsson 183 

IX Chemical Agents and "Expanding" Bullets: Limited Law Enforcement 

Exceptions or Unwarranted Handcuffs? 
Kenneth Watkin 193 

PART V: COALITION WARFARE 

X Legal Issues in Coalition Warfare: A US Perspective 

Charles Dunlap 221 

XI "England Does Not Love Coalitions" - Does Anything Change? 

Charles Garraway 233 

XII Coalition Warfare: Challenges and Opportunities 

Dale G. Stephens 245 

Part VI: Future Navies 

XIII Toward 2015, Challenges for a Medium Navy: An Australian 

Perspective 
Raydon Gates 259 

XIV The Current State of the Law of Naval Warfare: A Fresh Look at the 

San Remo Manual 
Wolff Heintschel von Heinegg 269 

XV Future Navies — Present Issues 

Jane G. Dalton 297 



VI 



Appendix — Contributors 323 

Index 329 



vn 



Foreword 



The International Law Studies (the "Blue Book") series was inaugurated by the 
Naval War College in 1901 as a forum for essays, treatises, and articles that 
promote a broader understanding of international law. The eighty-second volume of 
this historic series, The Law of War in the 21st Century: Weaponry and the Use of 
Force, is a compilation of scholarly papers derived from the proceedings of a June 
2005 colloquium hosted by the Naval War College. 

The purpose of this colloquium was to examine international legal standards 
applicable to the use of force, as well as the development and employment of 
weapons systems in the 21st century. Participants came to Newport from more 
than 20 countries and included government officials, military commanders, repre- 
sentatives of nongovernmental organizations, esteemed international law scholars, 
and military and civilian lawyers. During the course of events, attendees grappled 
with vexing issues such as the suitability of principles developed for inter-State 
conflict to a global threat environment increasingly influenced by non-State actors. 
Undoubtedly, the ideas generated during the summer colloquium and revisited in 
this Blue Book volume will contribute substantially to the ongoing examination of 
the major legal challenges accompanying 21 st -century armed conflict. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations, and the 
Commandant of the Marine Corps, I extend a warm thank you to Professor 
Charles Garraway, the 2004-2005 Stockton Professor of International Law, and 
Major Richard Jaques, USMC, under whose leadership this colloquium was orga- 
nized. I also wish to thank the authors and editors for their invaluable contribu- 
tions and for engendering a greater understanding of international law. Thanks 
also to the Lieber Society of the American Society of International Law and Roger 
Williams University's Ralph R. Papitto School of Law, gracious cosponsors of this 
colloquium. And, finally, a very special note of gratitude goes to the Naval War 
College Foundation and Israel Yearbook on Human Rights, whose tremendous 
support made this conference and, particularly, this "Blue Book" possible. 



JACOB L. SHUFORD 
Rear Admiral, U.S. Navy 
President, Naval War College 



Introduction 



The Naval War College hosts an annual conference to examine international 
law issues and developments that affect military operations, both in peace- 
time and during armed conflict. The 2001 conference examined the Legal and Ethi- 
cal Lessons of NATO's Kosovo Campaign. In 2002, following the tragic events of 9/ 
1 1, we looked at International Law and the War on Terror. In 2003, a broad spec- 
trum of issues were analyzed in Current Issues in International Law and Military 
Operations, including, of course, a discussion of the initial events of Operation 
Iraqi Freedom, which had begun on March 20th of that year. In 2004 the work of 
the 2002 conference was continued in Homeland Security & Combating Terrorism. 

By 2005, we determined that it was time to examine the manner in which rapid 
advances in the types and capabilities of weapons and the methods of warfare were 
changing how warfare will be conducted in the future, and the implications of that 
change for the law of armed conflict. The conference began with a discussion of the 
International Committee of the Red Cross's then just published Customary Inter- 
national Humanitarian Law study (hereinafter the Study). We were fortunate 
enough to have Jean-Marie Henckaerts, one of the authors, present an overview of 
the Study, which purports to be a "restatement of contemporary customary inter- 
national law." A panel of equally distinguished scholars and government and mili- 
tary lawyers questioned both the methodology of the Study and certain of its 
conclusions, while acknowledging it was an indispensable resource. The scholarly 
articles contributed to this volume by Mr. Henckaerts and the panelists provide 
valuable insight into the Study. 

Another important development is that participation by the United States in fu- 
ture conflicts is likely to be as one member of a coalition of nations, as was the case 
in Operations Allied Force, Desert Storm, Enduring Freedom, and Iraqi Freedom. 
The panel on coalition warfare addressed the implications and challenges of bring- 
ing together warfighters whose nations may have differing views on the content of 
customary law and are parties to different treaties. 

Immediately following the conclusion of the conference, a Conference Sum- 
mary was prepared and distributed to the participants. This excellent review sum- 
marized the remarks of the speakers and the discussion that followed. It has been 
incorporated into the Preface. I encourage you to read it. 

The conference was cosponsored by the Lieber Society on the Law of Armed Con- 
flict of the American Society of International Law and was organized under the 



leadership of Professor Charles Garraway, the Naval War College's Charles H. 
Stockton Professor of International Law, and Major Richard Jaques, US Marine 
Corps, of the International Law Department. It was made possible with the support 
of the Naval War College Foundation and the Israel Yearbook on Human Rights. 
Without the dedicated efforts and support and assistance of these individuals and or- 
ganizations, neither the conference nor this volume would have been possible. 

I would particularly like to recognize and express my appreciation to Rear Ad- 
miral Joseph Strasser, Executive Director of the Naval War College Foundation, for 
the continuing contributions of the Foundation to our annual conferences and the 
publication of the "Blue Book" series that reflect the proceedings of those confer- 
ences. On the eve of Admiral Strasser's retirement as Executive Director of the 
Foundation, we extend to him our profound thanks, both for the Foundation's 
contributions and his own personal support of the International Law Department. 

I also would like to extend my sincere thanks and gratitude to editors extraor- 
dinaire, Captains Jack Grunawalt and Ralph Thomas, USN JAGC (Ret.). Responsible 
for the "nuts and bolts" editing of these outstanding papers, Jack and Ralph devoted 
myriad hours to this project, assuring painstakingly and skillfully that this work 
would be the best-ever International Law Studies volume. Colonel Tony Helm, 
JAGC, US Army, Deputy Chairman, International Law Department, served as man- 
aging editor of this volume. His dedication and perseverance in communicating with 
contributing authors throughout the world, marshaling authors' papers, packaging 
the volume, and overseeing the complex publishing and distribution process also are 
deserving of special thanks. In short, this Department is truly indebted to these three 
professionals who worked so diligently to bring this Blue Book to its readers. 

For over one hundred years the United States Naval War College has committed 
itself to combining a scholarly understanding of the laws of war with an apprecia- 
tion for and insight into the perspective of the warfighter — the one who must apply 
those laws in the crucible of conflict on land, at sea and in the air. This conference 
and this "Blue Book" continue that tradition. 



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



xn 



Preface 



While planning this volume of the International Law Studies series, we 
concluded that an excellent conference summary prepared painstak- 
ingly by Captains Timothy Flynn and Stephen Sarnoski, both reserve officers in the 
Navy Judge Advocate General's Corps, would be a fitting preface for this book. 
Major Richard Jaques, USMC, who was the 2005 conference coordinator for the 
International Law Department, also played a key role in this compilation. 

Thus, we offer the following edited summary as both a snapshot of the 2005 In- 
ternational Law Conference and an appropriate retrospective context from which 
the works in this volume flow. Of course, at the first mention of editing, it is fitting 
to thank and praise those who breathed life into this volume — Professor Emeritus 
and Captain Jack Grunawalt and Captain Ralph Thomas, both retired Navy Judge 
Advocates and long-time supporters of the International Law Department. Indeed, 
they made tidying up the text and scouring the footnotes of the authors' papers 
look easy, and it was plain to us from the start that they love their work just as much 
as we truly enjoy and love having them work side-by-side with us in the Depart- 
ment. I can think of no one else I'd rather entrust my own writings to than Jack and 
Ralph. They know the law, understand the dynamics of the annual conference, and 
have internalized the protocols and nuances of the legal writer's bible we refer to 
respectfully as "the other Bluebook." Indeed, but for their genuine sense of mod- 
esty, their names unquestionably should grace the spine of this volume of the Inter- 
national Law Studies series. Gentlemen . . . Bravo Zulu — well done. A hearty thank- 
you is also in order for several key members of the Naval War College Desktop 
Publishing Office. As Jack and Ralph brought this volume to life, Ms. Susan Meyer 
was personally responsible for its care and feeding — formatting, providing "cam- 
era-ready" copy, and otherwise completely packaging the volume for publication. 
It would be hard to find a more responsive, thorough, and dedicated professional 
than Ms. Meyer. Likewise, Ms. Meyer's boss, Mr. Jeremiah Lenihan, was instru- 
mental in resolving ticklish formatting matters, and two superb proofreaders, Ms. 
Susan Farley and Ms. Angela Daughtry, whose eagle eyes caught every figurative 
uncrossed "t" and undotted "i," also were indispensable Blue Book contributors. 
Again, thanks to all at Desktop Publishing for helping deliver such a quality project 
to our distinguished readers. 



Preface 

Introduction 

As alluded to above, as time passed and the dust of conference past settled, we be- 
lieved it would be useful to recount salient themes and highlights — not just for his- 
toric value but as a basis for understanding and appreciating the fine works of this 
volume's contributors. For example, during the 2005 Conference, The Law of War 
in the 21st Century: Weaponry and the Use of Force, participants debated energeti- 
cally the measure of importance and authority to be accorded the recently pub- 
lished International Committee of the Red Cross (ICRC) Customary International 
Humanitarian Law study. Attendees and panelists also pointed out the need for 
careful and timely legal review of weapons development programs to ensure their 
by-products ultimately would pass legal muster under international law. Another 
recurring general theme — undoubtedly a truism — was that the realities of today's 
substantially asymmetrical conflicts raise unique international law issues that de- 
mand serious examination. Participants also emphasized the importance of coali- 
tions and stressed the need for a common methodology for conducting combined 
operations, particularly with regard to rules of engagement (ROE) and detainee 
treatment. Finally, the colloquium wrestled with an array of challenges emanating 
from technological advances that will affect future navies and require careful dis- 
cussion and analysis today. 

Keynote Address 

In his keynote address, Professor David Kennedy observed initially that the aspira- 
tions of international humanitarian law proponents and the goals of those who 
practice the military arts are inextricably intertwined. He observed that evolving 
principles of the law of armed conflict have engendered an alliance between mili- 
tary and civilian practitioners and between warriors and their lawyers. Recognizing 
that conflict presents more than a set of easily recognizable legal problems, Profes- 
sor Kennedy addressed the future of international humanitarian law by challeng- 
ing the colloquium to answer several incisive questions. Do law of war principles 
differ depending upon the nature of a conflict? Does it matter whether the survival 
of a nation is at stake or a coalition of nations is simply enforcing a United Nations 
mandate to preserve or restore peace following a low- intensity conflict? If conflict 
presents something more than a complex set of legal problems resolved by applica- 
tion of a discrete set of principles and procedures, does application of the modern 
law of armed conflict also require moral judgments using a broader interpretive 
framework? Professor Kennedy concluded by inviting the conference attendees to 



xiv 



Anthony M. Helm 



answer these and other questions, recognizing that "[l]aw doesn't provide the an- 
swers . . . we do." 

Conference Panel I — Defining Customary International Humanitarian Law 

Following Dr. Kennedy's presentation, Conference Panel I opened with a stimulat- 
ing debate about the efficacy of the ICRC Customary International Humanitarian 
Law study. Mr. Jean-Marie Henckaerts, ICRC legal adviser and co-author of the 
study, explained that the study was commissioned in 1995 by the 26th Interna- 
tional Conference of the Red Cross and the Red Crescent in Geneva, Switzerland. 
During the course of the study, members consulted extensively with 35 law of 
armed conflict experts, reviewed the practices of 47 States, and delved into ICRC 
archives covering more than 40 international and non-international armed con- 
flicts. Study members adopted an inductive reasoning process, reviewing State 
practices and producing 161 rules, most of which address both international and 
non-international conflicts. Mr. Henckaerts also explained the principal reasons 
for embarking on a study aimed at defining principles reflective of customary in- 
ternational law: international humanitarian law treaties bind only those States that 
ratify them, and parties to the same conflict may be bound by different treaty obli- 
gations; treaties governing non-international armed conflict are not always well 
developed; and characterizing a conflict is required before determining which trea- 
ties or protocols apply. In fact, Mr. Henckaerts emphasized that while certain as- 
pects of international humanitarian law exist in treaties, not all States are parties to 
such treaties and not all elements of international humanitarian law are codified in 
such treaties. Likewise, according to Mr. Henckaerts, not all current treaties reflect 
a normative framework for non-international conflicts. 

Professor Tim McCormack, the Australian Red Cross Professor of International 
Humanitarian Law at Melbourne University and the Director of the Asia-Pacific 
Centre for Military Law in Australia, characterized the ICRC study as an invaluable 
primary source of information on the practice of States in international humani- 
tarian law. He asserted, however, that criticism of the study was inevitable because 
any attempt to identify the content of customary international law is invariably 
controversial and because the authors of the study have relied on official docu- 
ments which in some cases were drafted and tabled with no thought to their status 
as examples of State practice. 

Mr. Joshua Dorosin, Assistant Legal Adviser for Political-Military Affairs in the 
U.S. State Department Office of the Legal Adviser, noted the ICRC study is an in- 
dispensable resource, but he also expressed concern over the methodology of for- 
mulating the rules in the study. In his view, the rules are not adequately analyzed 



xv 



Preface 

and do not reflect a separate consideration of State practice versus opinio juris. In- 
deed, in some parts of the study, there are very few references to State practice. 

Former Charles H. Stockton Professor of International Law, Professor Yoram 
Dinstein from Tel Aviv University expressed grave concern over the ICRC study's 
reliance on numerous statements that have no bearing on the practice of States, 
which is the bedrock of customary international law. As examples, he referred to 
various reports submitted by rapporteurs to United Nations bodies and to com- 
ments made by persons not representing States. Professor Dinstein also observed 
that, although military Manuals are indeed a primary source of customary interna- 
tional law, at least two of the so-called manuals referred to in the study are not real 
manuals. He also highlighted a number of inconsistencies and errors in both the 
black-letter rules and commentary of the study. 

In an afternoon session, Mr. Henckaerts noted that the ICRC study was not in- 
tended to be the last word on customary international humanitarian law. Instead, 
the study is where enlightened discussion about further development and clarifica- 
tion of the subject must begin. During ensuing general discussion, conference at- 
tendees emphasized that there is a clear distinction between State practice, as such, 
and customary international law. Likewise, Professor Dinstein stressed the need to 
distinguish between State practice and opinio juris, a distinction that, in his view, 
was not made adequately in the study. He also challenged the leap from treaty law 
to customary law and emphasized that, although treaties may stimulate custom, 
the evidence must be found in the practice of or vis-a-vis non-contracting Parties. 
Others also noted that the ICRC study cannot be viewed as evidence of a substan- 
tive body of customary international law merely because States have signed Addi- 
tional Protocol I to the 1949 Geneva Conventions. In this regard, it was widely 
agreed that evidence of any State practice in support of the existence of customary 
international law must be formulated independently of the voluntarily assumed 
treaty obligations of signatory States. 

Conference Panel II — Disseminating International Humanitarian Law 

Conference Panel II focused on the public awareness of and appreciation for inter- 
national humanitarian law. Commentators emphasized that the Red Cross and 
Red Crescent Societies (RCRC) were founded and operate on the fundamental 
principles of humanity, neutrality, and impartiality. In particular, Dr. Mohammed 
Al-Hadid, President, Jordanian National Red Crescent Society, emphasized that 
there is no religious connotation associated with either the Red Cross or the Red 
Crescent emblems. Both are meant to be purely humanitarian symbols. Dr. Hadid 
also voiced his support for the creation of a third additional protocol to the 1949 



xvi 



Anthony M. Helm 



Geneva Conventions that would adopt a new emblem — the Red Crystal — to en- 
hance the protection of victims and the status of humanitarian assistance, espe- 
cially during armed conflict, where in recent years respect for protective emblems 
has eroded. This third protocol also would promote the universality of the ICRC 
movement and help overcome the objection of certain States to the use of the two 
traditional symbols. 

Ms. Lucy Brown, Senior Adviser, International Humanitarian Law, American 
National Red Cross Society, emphasized the need to increase public awareness of 
and support for the principles of international humanitarian law, particularly 
among school age children and youth. Ms. Brown introduced the "Exploring Hu- 
manitarian Law" curriculum to the conference and noted that it is being piloted or 
implemented in the United States and 94 other countries. Ms. Brown observed that 
a necessary by-product of dissemination is the reinforcement of principles of peace- 
ful coexistence and facilitation of a return to peace in the event of an armed conflict. 

Mr. David Lloyd Roberts, MBE, and formerly of the ICRC addressed the efforts 
of the ICRC to bring international humanitarian law training to the armed forces. 
He cited the importance of the supporting role played by the ICRC and urged con- 
ference participants to ensure training is completed during peacetime because 
"[o]nce the fighting has started, it's too late." Mr. Roberts outlined certain poten- 
tial obstacles to successful implementation of international humanitarian law 
training and noted the lack of support for international humanitarian law princi- 
ples among some senior military personnel, skepticism concerning the effective- 
ness of training, and the difficulty of adapting such training to the realities and 
pressures of combat. 

Conference Panel III — Modern Weaponry and Warfare 

On a completely different tack and heading, Conference Panel III addressed issues 
associated with modern weaponry and warfare. Mr. Ed Cummings, Assistant Legal 
Adviser for Arms Control, Office of the Legal Adviser, US State Department, began 
by recounting the substantial development of conventional weapons principles 
over the past 100 years. Reminding the audience that weapons treaty negotiations 
necessarily occur in a political context, he reinforced the fact that the United States 
always seeks treaty consensus with an overriding goal of reducing human suffering 
during armed conflict. Mr. Cummings noted that the rules focused originally on 
the effect of weapons on combatants but that rules tend now to concentrate on ef- 
fects on civilians. Mr. Cummings also explained that States are reluctant to be too 
technical when negotiating agreements because rapid technological advances may 
make definitions and descriptions of weapons obsolete shortly after agreements 



xvi 1 



Preface 

are executed. On the other hand, he observed that advances in technology can im- 
prove the reliability of weapons and reduce casualty rates. Indeed, the US Depart- 
ment of Defense has directed that at least 99 percent of its submunitions produced 
detonate properly and has proposed an amendment to the treaty covering anti- 
vehicle mines that calls for inclusion of detection devices for such weapons. 

Doctor Marie Jacobsson, Principal Legal Adviser on International Law to the 
Swedish Ministry for Foreign Affairs, discussed Sweden's compliance with Article 
36 of Additional Protocol I to the Geneva Conventions. This article requires that a 
State party determine whether employment of a new weapon would be prohibited 
by Protocol I or any other rule of international law applicable to that State party. 
She averred that very few States complete weapons studies and that ICRC repre- 
sentatives have been discussing what the parameters for such studies should be. In 
1974, it established a delegation to review conventional weapons, which factors 
humanitarian, human rights, and disarmament laws into its Article 36 studies. 
The delegation may set conditions on the development of weapons relating to pri- 
mary, secondary, and indiscriminate effects, and occasionally it proposes alterna- 
tive designs or limits the use of a weapon in military or law enforcement 
applications. In 2003, Sweden pledged to review whether international humani- 
tarian law also should be considered when evaluating weapons for export. Dr. 
Jacobsson commented further that weapons reviews occasionally are stymied by 
the absence of a clear distinction between interstate armed conflict and operations 
such as peacekeeping. 

Colonel Ken Watkin, Canadian Defense Forces Deputy Judge Advocate General/ 
Operations, offered his views on whether certain legal principles developed for in- 
ternational armed conflict should apply equally to asymmetric warfare between 
States and non-State actors. Colonel Watkin framed the issue with two weapons in 
mind — chemical agents and expanding bullets. A large body of well-developed 
treaty law bars the use of chemical weapons in armed conflict, but not for law en- 
forcement purposes. Colonel Watkin, however, argues that it may be more hu- 
mane to use prohibited riot control agents to clear a cave in combat than to use a 
flame thrower or grenade for the same purpose. Certain chemical agents, such as 
malodorants, calmatives, and darts, though prohibited by treaty law, may offer 
non-lethal alternatives to deadly force in armed conflict. Colonel Watkin observed 
that expanding bullets were banned by the 1899 Hague Declaration. He queried, 
however, whether their use should be prohibited in all aspects of non-interna- 
tional armed conflict particularly where the military forces are executing a law en- 
forcement function. If use by police in a domestic law enforcement context is 
considered humane, how is it inhumane to use such bullets for similar purposes in 
armed conflict? 



xvin 



Anthony M. Helm 



Professor Mike Schmitt from the George C. Marshall European Center for Se- 
curity Studies, Garmisch, Germany, opined that law and conflict are in a mutually 
affective relationship and mused how future military technology may affect the ex- 
istence, application, and interpretation of the law of armed conflict. Professor 
Schmitt noted further that while a substantial number of treaties govern specific 
means and methods of warfare, future agreements may cover depleted uranium 
shells, computer network attacks, and space-based offensive operations. Indeed, in 
February 2005, the US Defense Advanced Research Projects Agency (DARPA) 
published a report listing likely future developments in US military technology and 
means, including detection and destruction of elusive surface targets, robust tac- 
tical networks, networked manned and unmanned systems, detection of under- 
ground structures, assured use of space, cognitive computing, and the bio- 
revolution. According to Professor Schmitt, developments of this nature will in- 
crease weapon precision, enhance command and control, render the battlespace 
more transparent, and promote use of autonomous unmanned attack platforms. 
In the context of the law of armed conflict, these developments also will increase 
the asymmetry between technologically advantaged and disadvantaged combat- 
ants. Professor Schmitt commented further that asymmetry disrupts the balance 
between military necessity and humanitarian concerns because the law does not 
operate equally for both sides. Thus, the disadvantaged combatant may resort to 
tactics prohibited under the law of armed conflict as a way to survive or prevail in 
battle, because legally permissible tactics likely will be futile. Such tactics may in- 
clude fighting in civilian clothes, use of human shields and protected places, per- 
fidy, marking mustering points with protected symbols of the ICRC, and resort to 
suicide bombers. Even if a technologically disadvantaged combatant does not dis- 
regard the law of armed conflict, the combatant may instead compensate for its 
disadvantage by defining military objectives broadly while undervaluing collateral 
damage. A technologically advantaged combatant may engage in effects-based op- 
erations rather than a serial destruction of the enemy's military force. During the 
question and answer session, Professor Schmitt asserted that many critics are "cap- 
tured by technology" and have proposed that a State should reduce the asymmetry 
in armed conflict by foregoing use of advanced weapons. 

Conference Panel IV — Coalition Warfare 

Conference Panel IV tackled the timely and highly relevant topic of coalition war- 
fare. Discussion began with comments by Brigadier General Charles Dunlap, Jr., 
USAF, Staff Judge Advocate, Headquarters, Air Combat Command, Langley Air 
Force Base, Virginia. General Dunlap noted that 21st century warfare has become 



xix 



Preface 

increasingly legalistic and complex, and that coalition warfare is no exception. He 
identified a number of challenges facing coalition partners, including differences 
in treaty obligations between and among coalition partners, disagreement over 
what constitutes customary international law, and differences in domestic imple- 
menting legislation. General Dunlap emphasized the importance of developing 
ROE for all coalition forces, but noted the obvious difficulty in achieving this goal, 
particularly with regard to the definition of self-defense and the meaning of hostile 
intent. He also cautioned that legal hurdles facing coalition forces, e.g., the inability 
of US forces to provide logistic support to its coalition partners absent an interna- 
tional agreement concerning reimbursement for costs, have important operational 
effects that cannot be ignored by military commanders. General Dunlap com- 
mented that creating a formal judge advocate general corps among coalition part- 
ners would be a positive initiative. He observed that when coalition partners 
deploy JAGs with their operational forces, coordination is facilitated and synergies 
result. The General emphasized, however, that military commanders must under- 
stand and internalize the proper role of their military legal advisers, instructing 
that "JAGs provide advice; commanders make decisions." General Dunlap con- 
cluded by warning conferees about the development of the phenomenon of 
"lawfare," which he described as the use of legal principles such as those applicable 
to the law of armed conflict to mischaracterize and undermine a State's actions. 
The General emphasized the importance of recognizing the practice of "lawfare," 
and encouraged the US and its coalition partners to meet lawfare activity head-on 
by actively and publicly providing their own legal analysis and justification for 
their actions. 

Commander (CMDR) Dale Stephens of the Royal Australian Navy and liaison 
officer to the International Law Department, US Naval War College, echoed Gen- 
eral Dunlap's comments concerning the importance of harmonizing ROE among 
coalition partners, and briefly summarized the process through which such ROE 
might be developed. CMDR Stephens warned against a purely formalistic ap- 
proach to the development of coalition ROE, however, emphasizing that a more 
realistic approach is necessary. Among considerations pertinent to the develop- 
ment of coalition ROE, CMDR Stephens mentioned the importance of exercising 
"calibrated discretion on key operational law concepts," the value of the socializing 
experience achieved by participation in international coalition operations, and the 
need to globalize the training of military officers. Commander Stephens also iden- 
tified a number of challenges to the effective development of common coalition 
ROE, including difficulties associated with translating the principles of the law of 
armed conflict into a State's domestic law and the pressing need to reinforce a 
commonality of language between international military lawyers and internal 



xx 



Anthony M. Helm 



government agencies. He capped his presentation with a quote from renowned au- 
thor and Professor Louis Henkin, who once stated, "Almost all nations observe al- 
most all principles of international law and almost all of their obligations almost all 
of the time." 

Professor Charles Garraway, the 2004-2005 Charles H. Stockton Professor of 
International Law, US Naval War College, observed that in order for a multi-na- 
tional coalition to work, the principles underlying the reason for coming together 
in the first place must be internally and externally consistent. Professor Garraway 
wisely commented that " [i] f there is no coalescing, there is no coalition." Professor 
Garraway instructed that the distinctiveness of each coalition partner need not be 
sacrificed in order achieve the goals of a successful coalition. Rather, he noted, the 
secret is to work around those distinctions. Professor Garraway also voiced con- 
cern about the apparent uncertainty regarding the US position on which principles 
of the law of armed conflict codified in Additional Protocol I are considered by the 
United States to reflect customary international law. Professor Garraway noted 
that the only existing US viewpoint, articulated in 1987 by Michael J. Matheson in 
The United States Position on the Relation of Customary International Law to the 
1977 Protocols Additional to the 1949 Geneva Conventions, is no longer considered 
authoritative. Professor Garraway concluded his presentation by questioning 
whether the principles of human rights law, codified, for example, in the Interna- 
tional Covenant of Civil and Political Rights, coexist with or are replaced by law of 
armed conflict principles during times of armed conflict. He asserted that the lan- 
guage of the various human rights conventions made it clear that the two legal re- 
gimes were intended to co-exist, despite the former being considered lexgeneralis 
and the latter lex specialis. Professor Garraway again noted a lack of clarity in the 
US stance on this matter and called for the United States to articulate its position 
more clearly. 

Leslie Green, Professor Emeritus, University of Alberta, Canada, and former 
Charles H. Stockton Professor of International Law, picked up where Professor 
Garraway left off. He opined that the law of armed conflict prevails in situations of 
armed conflict where its principles deviate from those embraced by human rights 
law. Professor Green agreed with previous commentators, however, in calling for 
the development of common ROE and a mutual understanding of detainee opera- 
tions. Professor Green also commented that it was time for a new treaty to replace 
the current NATO treaty. In his view, NATO has become an international organi- 
zation that has transcended its original mandate. Professor Green argued that a 
new treaty would reflect more accurately NATO's current goals and aspirations 
and would be more representative of its current membership. 



xxi 



Preface 

Conference Panel V — Future Navies 

The penultimate conference panel generally considered the shape, methods, and 
means of future navies. RADM Robert Cox, Associate Director, Assessment Divi- 
sion, Office of the Chief of Naval Operations, tracked the progression of opera- 
tional concepts in the ongoing transformation of the US Navy. In short, the Navy 
has evolved from the 1950s task group with specific missions, to the platform 
centric motif of the 1970s sporting multi-mission battle groups, to today's network 
centric force focused on defeating anti-access capabilities. According to RADM 
Cox, the future Navy must be joint, distributed, netted, persistent, surge-based, 
and surge-ready at home. Planning now occurs in minutes and hours rather than 
in days. Naval forces must be fully netted with required kinetic and non-kinetic ca- 
pability, employable when directed by the Combatant Commander. In this con- 
text, sea basing does not consist only of technology. Sound doctrine is required to 
support the best use offerees in an effects-based environment. A move from a plat- 
form centric to a network centric environment has spawned legal challenges con- 
cerning employment of unmanned aerial vehicles, civilian mariners, frequency 
spectrum management, and the maritime commons while the United States strives 
to maintain a global naval presence through doctrinal and technological 
transformation. 

Rear Admiral Raydon Gates of the Royal Australian Navy spoke of a future navy 
from the perspective of an operator in a mid-sized sea service. The trend for the fu- 
ture is projection of naval power at home and offshore, wherever Australia's inter- 
ests are at stake. Australia's participation in coalition operations may reflect its 
national interests in the endeavor rather than common interests with other partici- 
pants. Different national objectives reflect different national priorities, and mili- 
tary commanders must manage and harmonize these varied interests. Joint 
application of power is another trend. According to Admiral Gates, national mili- 
tary forces must not only operate jointly, but must work with other instruments of 
national power to assure a concerted defense effort. There will be a maritime ele- 
ment to future security undertakings, particularly in the littoral environment and 
primarily involving ROE development and targeting principles. Technological de- 
velopments in weapons systems also will breed legal issues related, in particular, to 
the employment of missiles with artificial intelligence and development of corre- 
sponding ROE. Australian forces also will be required to balance the implementa- 
tion of network centric warfare with existing technology and fiscal considerations. 
The Royal Australian Navy of the future will be smaller with no corresponding de- 
crease in operational tempo, while its operating budget likely will not increase. On 
the other hand, future ships will feature more automation and be staffed with fewer 



xxn 



Anthony M. Helm 



sailors. Greater use of contractors to support naval forces also will raise questions 
about whether to characterize contractor employees as combatants and appropri- 
ate methods of command and discipline. 

Captain Jane Dalton, Assistant Judge Advocate General (Civil Law) and Com- 
manding Officer, Naval Civil Law Support Activity, identified several aspects of fu- 
ture navies that require timely consideration by military lawyers. For example, 
employment of civilian mariners aboard naval ships in billets historically held by 
military members grows out of the Chief of Naval Operations' effort to move sail- 
ors from non-war fighting jobs to positions in direct support of fleet and combat 
operations. Likewise, the proposed Maritime Prepositioning Force cargo ship is a 
key part of the sea basing concept and will serve as a floating logistics center. Use of 
this ship in an "assault echelon" with combat forces and aircraft aboard raises the 
question of whether civilian mariners lawfully may manage engineering, naviga- 
tion, and deck functions. Under international law, a warship must be "manned by 
a crew which is under regular armed forces discipline." Yet this phrase is undefined 
and calls into question whether the civilian crew must be subject to the same sys- 
tem of discipline as the military members. Whether civilian mariners could be con- 
sidered unlawful combatants depends upon whether they take a direct or active 
part in hostilities. Would manning a weapons system or navigating a ship consti- 
tute direct activity? The Navy has developed a legislative proposal that includes 
Navy Reserve affiliation as a requirement for detailing civilian mariners to a war- 
ship. Unmanned airborne and undersea vehicles are already engaged in combat 
operations. Should they be treated like their manned counterparts? Is an un- 
manned undersea vehicle a "vessel" under international rules to prevent collisions 
at sea and are they required to comply with the innocent and transit passages re- 
gimes under the UN Convention on the Law of the Sea? Captain Dalton also noted 
unanswered questions related to hospital ships, which, while protected by law from 
capture or intentional attack, may not utilize encrypted communications. Changes 
in technology, domestic laws on privacy, and national communications policy, 
however, have prompted the Navy to insist that its two hospital ships deploy with 
secure communications systems in order to complete their humanitarian missions 
and comply with domestic law. Captain Dalton also observed that the Law of the 
Sea Convention supports Sea Power 21 and the Proliferation Security Initiative, 
and does not affect US intelligence-gathering activity. She would contend further 
that reference in the Convention to use of the high seas for other internationally 
lawful uses permits the United States to stage forward-deployed sea bases in the ex- 
clusive economic zones of coastal States. In any event, US sea basing will comport 
with the law, whether the operation involves humanitarian relief, UN sanctions en- 
forcement, or international armed conflict. 



xxin 



Preface 

Professor Doctor Wolff Heintschel von Heinegg of the University of Frankfurt- 
Oder and University of Augsburg, Germany, also a former Charles H. Stockton 
Professor of International Law at the US Naval War College, reviewed the current 
state of the law of naval warfare and its future challenges. Professor Heintschel von 
Heinegg noted first that current provisions regarding signal encryption and arm- 
ing of hospital ships have been questioned and may be somewhat anachronistic. 
He noted further that deception rules and principles must be adjusted to reflect de- 
velopments in the electronic environment. Similarly, according to Professor 
Heintschel von Heinegg, the concept of blockade remains settled, but must be dis- 
tinguished from other methods of naval warfare, such as maritime interception, 
zones, and control of enemy commerce and operations under a UN Security 
Council resolution. Professor Heintschel von Heinegg asserted, as well, that mari- 
time zones must be analyzed carefully to determine whether they are intended to 
be unlawful free fire zones or legal ruses of war. In short, a zone must have a legiti- 
mate purpose and must limit the area of naval warfare, protect neutral and inno- 
cent shipping, and subject neutral shipping and aviation to extensive control 
measures. In Professor Heintschel von Heinegg's view, future challenges to the law 
of naval warfare include excessive maritime claims to well-defined geographical ar- 
eas, different interpretations of basic legal concepts, confusion about political aims 
and legal targets, and the impact of human rights law. Additionally, challenges re- 
garding asymmetric actors are based on the increasing multitude of terrorists and 
non-State actors and other difficult questions have arisen as well from the indefati- 
gable trend toward civilianizing positions within the armed forces. The technology 
gap in naval warfare also has raised the technological inferiority argument which 
has engendered a decreasing willingness to accept legal regulation of armed con- 
flict. So, too, has the illusion of "clean warfare" been fostered by today's precision 
weaponry generated by advances in technology. According to Professor Heintschel 
von Heinegg, however, these various challenges to the law of naval warfare do not 
justify the various demands for new rules. 

Conclusion 

The foregoing, in a nutshell, was an overview of the 2005 International Law De- 
partment conference and a glimpse of the scintillating views, discussion, and opin- 
ions cloaked by the pages of this the 82d volume of the International Law Studies 
series. And if this conference and volume have taught us anything, it is that, as this 
world entered the Age of Aquarius, it changed in ways only the most forward 
thinkers could have imagined — speed-of-light communication available to the 
masses; transnational enemies who rely on this capability, as well as the ready 



xxiv 



Anthony M. Helm 



means to flit about the globe with relative ease; enemies who have waged with im- 
punity a type of asymmetrical conflict that endures without regard for even the 
most basic tenets of international humanitarian law; the "lawfare" phenomenon 
that thrives on the Internet and other mass media and is used by our enemies daily 
to contest the legitimacy of well-intentioned acts or highlight isolated failings; pro- 
lific use of unmanned vehicles and precision weaponry; basing a fighting force at 
sea where coastal access is curtailed; and attempts to over-define ("codify" indi- 
rectly?) specific principles of customary international humanitarian law; and the 
growing practice of employing civilians in positions traditionally held by members 
of the military, to name a few. In the wake of these changes, those entrusted with 
the defense of their nations have struggled to adapt both technologically and oper- 
ationally. It is perhaps for these reasons and in the face of other such challenges that 
Professor Kennedy recognized so poignantly that a firm and durable alliance has 
been struck between warriors and their lawyers. 

In closing, then, it is our sincere desire that the following works of the preemi- 
nent authors who contributed so graciously to this volume will assist those seeking 
answers to today's hard questions and propagate thoughts and action that shape 
the future. 



xxv 



PARTI 



KEYNOTE ADDRESS 



I 



War and International Law: 
Distinguishing Military and Humanitarian 

Professions 



David Kennedy* 

Introduction: a Common Profession 

I would like to begin by thanking Admiral Shuford, Professor Dennis 
Mandsager and Professor Charles Garraway, as well as Major Richard Jaques 
and Commander Dale Stephens, who have given me — and my students — a warm 
welcome at the Naval War College. I appreciate their generous hospitality and 
good counsel. 

For civilian students and academics like me, who have never served in uniform, 
the military profession can seem to be a different universe. But how different are 
we, professionals within and outside the armed services? How different are the pro- 
fessions of war and peace? 

When I was a young man, they could not have seemed more different. I regis- 
tered as a conscientious objector after the Christmas bombings of Hanoi in 1972, 
and eventually became an international lawyer. I hoped I would find work promot- 
ing peace, economic development, humanitarian and progressive values on the 
global stage. Nothing seemed as different as the humanitarian and military 



* Manley O. Hudson Professor of Law, Harvard Law School. The viewpoints expressed in this 
article are the author's alone. 



Distinguishing Military and Humanitarian Professions 

professions — the one made war, the other sought to limit war's incidence and 
moderate war's violence. 

Indeed, the military seemed to me then all that international law was not — 
violence and aggression in contradiction to our reason and restraint. It was only 
later that I learned how many international lawyers serve with the military — and 
how readily humanitarians have rushed to legitimate the use of force. 

War and peace. I studied history and political science. War, we learned, "broke 
out" when "disputes" could not be resolved peacefully, when cosmopolitan reason 
gave way to nationalist passion, when the normal "balance of power" was upset by 
abnormal statesmen. These bad guy statesmen pursued outmoded projects of ag- 
grandizement, domination, aggression or imperialism. They were in cahoots with 
what we called "the military industrial complex"; not knowing we were quoting 
Eisenhower. 

Realpolitik was the disease; the softer wisdom of international law and interna- 
tional relations was the cure. The key to peace was wise statecraft and conflict man- 
agement. We put our faith in negotiations among the disputing parties — which we 
hoped to facilitate. We were sure that reasonable aspirations for peaceful change 
should — and would — be accommodated by wise leaders, for whom we would 
serve as advisors. Leaders who would act for the common good, in a global human- 
itarian and cosmopolitan spirit. Leaders like that would address the roots of war in 
poverty, cultural backwardness, nationalist isolation, or ideological fervor. They 
would need — and want — help from the institutional machinery of the interna- 
tional community. 

More than anything else, management for peace would require procedures — 
good practices, good offices, a steady and imaginative institutional framework and a 
cadre of dedicated humanitarian policy experts who could express and implement 
the world's general interest in peace. The United Nations, the non-governmental 
organizations (NGOs), and civil society, the peacemakers and peacekeepers, 
needed to succeed so that the military would never again be needed. 

How did we imagine the military? Our knowledge was limited, our imagery 
vague. All that ceremony and hierarchy, training to kill. They were hot, passionate; 
we were cooler heads prevailing. We were dry, focused, pragmatic and manage- 
rial. I think we imagined war as it is depicted in films of the ancient world. The 
troops mass at the border, a command is given and everyone rushes forward helter- 
skelter, applying lethal force as fast and furiously as possible. 

But of course it is not like this at all. Scoundrels do rule — often there simply is 
no wise and benevolent ruler waiting for our advice about the general good. 

More importantly, military and civilian professionals, although certainly different, 
are no longer oil and water. War must also be managed by experts. The more I have 



David Kennedy 



known military officers and military lawyers, the more obvious the parallels be- 
tween our professions have become. The more I've come to see us all as managers. 
And the more I've seen that when we differ, it is often the military that are the 
cooler heads. 

Some years ago, before the current war in Iraq, I spent some days on board the 
USS Independence in the Persian Gulf. Nothing was as striking about the military 
culture I encountered there as its intensely regulated feel. Five thousand sailors, 
thousands of miles from base, managing complex technologies and weaponry, 
constant turnover and flux. It was absolutely clear that even if you could afford to 
buy an aircraft carrier, you couldn't operate it. The carrier, like the military, is a so- 
cial system, requiring a complex and entrenched culture of standard practices and 
shared experiences, rules and discipline. 

The carrier is also a small town. I remember the eager salesman in a crowded 
mess hall selling Chevrolets for delivery when the crew next hit shore. I came 
away completely ready to believe that, at least in principle, no ship moves, no 
weapon is fired, no target selected without review for compliance with regulation, 
not because the military has gone soft, but because there was simply no other way 
to make modern warfare work. Warfare has become rule and regulation. 

In a way, of course, the routinization of law — humanitarian law — in the mili- 
tary professions is a terrific achievement. Military professionalism affirms civilian 
control. But more, our military and humanitarian professions have merged, yield- 
ing a humanitarian military and a realistic, pragmatic humanitarianism. 

But I worry. Was there nothing valuable in the separation of military and human- 
itarian professions? As our professions merge, what happens to the virtues of 
standing outside, speaking humanist truth to military power? And what happens to 
the real political necessity for the military to break some eggs when the going gets 
tough? What, moreover, happens to the legal "principle of distinction?" — the prin- 
ciple that military and civilian professions must be distinguished. 

My project this morning is to retrace the laws about warfare to illuminate, as 
best I can, the ways in which the military and legal professions have marked and 
unmarked the boundary between war and peace, and some of the virtues and vices 
of strengthening and weakening our sense that humanitarian and military profes- 
sionals march to different drummers. 

Looking back, the legal mind has sometimes sharply distinguished war and 
peace, and sometimes blurred them together. The modern laws of war inherit both 
traditions — and now offer us a confusing mix of distinctions that can melt into air 
when we press on them too firmly. A law of firm rules and loose exceptions, of 
foundational principles — and counter principles. This complex professional lan- 
guage can certainly limit our vision. For the legal professional — whether serving in 



Distinguishing Military and Humanitarian Professions 

the military or the humanitarian world — the challenge is to engage this slippery 
body of material strategically as a partner in, rather than a substitute for, political 
leadership and command responsibility. 

The narrative line in this very complex historical story is actually quite simple — 
the rise and fall of a distinction between war and peace. For the early 19 th -century 
jurist, war and peace were far less distinct than they came to seem in the half cen- 
tury before the First World War. After that war, 20 th -century international lawyers 
sought to bridge the gap that had opened between war and peace, to routinize hu- 
manitarianism in the military profession and pragmatism among humanitarians. 

Although they were quite successful — our professions have merged — the 
potential to distinguish has not been eliminated. Instead, the relationship between 
war and peace has become, for the humanitarian lawyer and military professional, 
itself something to be managed. We now have the rhetorical and doctrinal tools to 
make and unmake the distinction between war and peace. And we do so as a tactic 
in both war and peace. The result is less a difference between the outside of human- 
itarian virtue and the inside of military violence than a common profession whose 
practitioners manage the relationship between war and peace within a common 
language; all the while working in the shadow of a new outside, the world we think 
of as "politics." 

Historical Backdrop: the Rise of "Modern War" 

Our laws of war were forged in the shadow of a new "modern" conception of war- 
fare. In the late 18th and early 19th centuries, what had been an aristocratic en- 
deavor of the old regime became the general project of a nation — an extension of 
public policy, an act of the whole. 

This is the development crystallized by Clausewitz as a continuity between war 
and peace. We have come to treat his formulation as classic: 

We know, certainly, that War is only called forth through the political intercourse of 
Governments and Nations; but in general it is supposed that such intercourse is broken 
off by War, and that a totally different state of things ensues, subject to no laws but its 
own. We maintain, on the contrary, that War is nothing but a continuation of political 
intercourse, with a mixture of other means. 1 

The new attitude Clausewitz proposes had been building for a generation. But 
the revolutionary break with the ancien regime — and the Napoleonic wars that fol- 
lowed — drove it home. The transformation of war from the interpersonal, dynas- 
tic and religious struggles of an aristocracy to the public struggles of a nation — a 



David Kennedy 



citizens' army, the levee en masse, the army "of the republic" — made war visible as 
an extension of national policy, as a project of the whole society. 

War became continuous with the political intercourse of peacetime as it became 
the public affair of a nation — an instrument of national policy, an expression of 
national sovereignty, a sign of national honor. The ancient marks of military dis- 
tinctiveness, the uniform, the profession, the codes of honor, became synonymous 
not with aristocratic status, but with public life — and often with submission to 
civilian leadership. 

Latent in the merger of war and public policy lay a distinction between the old 
war and the new — wars of chivalry, honor and passion, versus wars of reason, cal- 
culation and policy. 

It took some time for this new vision to take hold. In 1838, a few years after 
Clausewitz wrote, and long before he would became a wartime president, Abra- 
ham Lincoln spoke of the abolitionist cause in these terms: "Passion has helped us, 
but can do so no more. It will in future be our enemy. Reason, cold, calculating, 
unimpassioned reason, must furnish all the materials for our future support and 
defense." 2 

In saying this, Lincoln was understood to set himself against war — the just cause 
would need the calm determination of cooler peacetime heads. Two and a half de- 
cades later, however, Lincoln would be embroiled in a war that would confound 
this easy opposition of passionate war and reasoned peace. 

Our Civil War — birthplace for so much of the law in war — is often remembered 
as the first "modern" war. In part, this is winner's history — a war of the modern 
North against the antebellum South, a war of industrial power and the Federal Na- 
tion, against the old military order of chivalry and the old sectarianism of region. A 
culture of commerce defeating a culture of honor, cold Northern reason slowly 
quenching the hot passions of the South in the name of a National Whole. 

But the Civil War's modernity lay not only in the Northern victory. For both 
sides, this was a war pitting the full economic and spiritual powers of their imag- 
ined community against another in a struggle for national identity. Modern war 
conducted as total war, war of the whole, war for the whole. In this sense, Lincoln's 
unimpassioned reason would not forestall war; it would become war. But neither 
would it remain split from passion, as Lincoln's inspired vocabulary of sacrifice, 
sanctification — "we cannot dedicate, we cannot consecrate, we cannot hallow this 
ground" 3 — would attest. 

More than anything, the modernity of the Civil War lay in the strange brew of 
reason and passion through which the struggle was understood by both sides. The 
Northern cause was also a crusade, the Southern military also a redoubt of profes- 
sional skill, thought, and art, against an often brutal Northern campaign. The 



Distinguishing Military and Humanitarian Professions 

rhetorical tools for distinguishing war and peace, new wars and old wars, were 
there, but they were redirected to define the relations between the warring parties. 

This mix of passion, reason and national expression on both sides conjured up a 
war of singular ferocity. In a sense, the Clausewitzian vision had been realized — 
war had become continuous, in reason and passion, with the great political strug- 
gles of the nation. 

Legal War: Modern War Encounters Modern Law 

On the one hand, 19 th -century legal developments contributed to this emerging vi- 
sion of warfare. The private modes of warfare associated with the old regime, now 
thought incompatible with a unitary public sovereign monopoly of force, were 
progressively eliminated. The 1856 Paris Declaration, 4 for example, eliminated 
"privateering," a complex legal institution through which "letters of marque" au- 
thorized private vessels to carry out belligerent acts. Henceforth there would be 
one sovereign, one military. 

At the same time, however, late 19th century changes in legal consciousness 
transformed what it meant for war to be the exclusive act of a public sovereign. 
Most crucially, by the end of the 19th century, it no longer meant that war was con- 
tinuous with peace, or a project of the whole — more the opposite. 

The emergence of a sharp distinction between public and private brought with it 
the image of a transnational commercial space that should be kept free from con- 
tamination by public force. Private armies, mercenaries, privateers; all these were 
outmoded, not only because they were part of an aristocratic past, but because they 
did not fit with the new, exclusively public nature of sovereign war powers. 

The public realm had become one sphere of power among many, marked off 
from the private realm of the market and the family. Public warfare that had 
seemed general, continuous with the whole society, now seemed, in legal terms, 
specific — the project of the government, not the society. 

Law's Allies: Humanitarians Speaking Virtue to Violence 

Humanitarian voices supported the legal separation of war from the domain of 
peace. Broad pacifist campaigns arose from diverse sources: church leaders, propo- 
nents of woman's suffrage, heirs to the abolition movement, as well as political ac- 
tivists of all types — anarchists, socialists, populists, progressives, Catholics. 

These diverse voices marked the distinction between war and peace in various 
ways — as ethics against politics, as faith against the cruel logic of commerce, as 
calm reason against fanaticism, modern logic against the primitive culture of 

8 



David Kennedy 



honor. In fact, the terms with which they marked the line from peace to war paral- 
lel those by which both sides distinguished North and South. 

All these voices spoke to war, to the statesmen and military who made war, from 
outside — in the name of an alternative ethical vision, sometimes national, more of- 
ten universal. War and peace were separate — Clausewitz was now the problem. We 
might now say they pled for peace by speaking truth to power. The point was to 
shrink the domain of war through moral suasion, agitation, shaming, and prosely- 
tizing. In their view, blurring war with peace was both dangerous and immoral. 

This conviction lent an ethical urgency to the emergence of a sharp legal distinc- 
tion between war and peace. Each was now a legal status, separated by a declara- 
tion. Combatants and noncombatants, neutrals and belligerents have different 
bundles of legal rights and privileges. The battlefield, the territory of belligerency, 
was legally demarcated. The legal treatises of the period began to place the law of 
peace and the law of war in separate volumes. In part, these distinctions aimed to 
limit the carnage of war by expanding the privileges of civilians and limiting the 
military privilege to kill. 

These distinctions were also part of a broader reorganization of legal thought, 
sharpening the distinction between the public and the private sphere, hardening 
private rights and limiting public powers to their respective spheres. 

For all, peace and war were to be legally separated, for example, private rights 
were increasingly thought to be continuous across the boundary. It is here that we 
began to see the logic of thinking that when the dust settles after a war claiming the 
lives of millions, destroying empires, and remaking the political and economic 
landscape of the planet, people might reasonably feel they are still entitled to get 
their property back. 

In short, the late 19th century developed an alliance between two rather differ- 
ent sets of ideas. A moral conviction that the forces of peace stand outside war, de- 
manding that swords be beaten into ploughshares, and a legal project to sharpen 
the distinction between public powers and private rights. 

The result was a legal conception of war as a public project limited to its sphere. 
The legal distinctiveness of war reinforced the idea that war was itself a discrete and 
limited phenomenon — over there, the domain of combat. It seemed reasonable to 
expect that warriors stay over there — and that protected persons, even women sol- 
diers, stay outside the domain of combat. 

This alliance of ethics and legal form has continued across the 20th century and 
is with us still. We see it in the effort to restrain war by emphasizing its moral and 
legal distinctiveness — by walling it off from peace and shrinking its domain. We 
see its echo in the many varieties of 20 th -century pacifism, in efforts to revive "just 
war" theory as an exogenous truth that can limit military power, and in the struggle 



Distinguishing Military and Humanitarian Professions 

to bring the language of human rights to bear on the military, that is, to judge the 
effects of war by a different and higher ethical standard. But we also see it in efforts 
to treat combat and "police action" as fundamentally — ethically, legally — different; 
the one the domain of human rights, the other the proper domain of the law of 
armed conflict. 

I have a great deal of sympathy for this outsider approach. It is where my own 
professional and ethical journey began; in a moral world for which the 
Clausewitzian perspective was precisely the problem. To think war and peace con- 
tinuous was to think the unthinkable. And to embrace a cynical, realpolitik point of 
view which, because it could think war, would also find itself making war, was simi- 
larly unthinkable. If you can't tell the difference between war and peace, how can 
we even have a conversation about limiting war's violence? In this view, our only 
hope is to bring an external reason to bear on the violence of war — and an external 
ethical passion to the cold calculation that war might sometimes make sense. 

The Dark Sides of Outsider Virtue: Limits to the Alliance 

Nevertheless, the dark sides of this outsider's perspective are now familiar. There is, 
and I will come back to this, the uneasy feeling that war simply is no longer as dis- 
tinct as all that. Even assuming war might be conducted "over there," in its own do- 
main, it has always been difficult to keep one's ethical distance from warfare in 
modern discussions of international affairs. 

There is the nagging problem that force also has humanitarian uses in a wicked 
world. Moreover, war can strengthen our moral determination. We know that 
great moral claims often become stronger when men and women kill and die in 
their name. There is some kind of feedback loop between our ethical convictions 
and our use of force. Moreover, we know how easily moral clarity calls forth vio- 
lence and justifies warfare. It is a rare military campaign today that is not launched 
for some humanitarian purpose. 

Looking back, this was a great lesson of the Civil War — both parties experienced 
their project and excoriated their opponents as both cool reason and hot crusade. 
Both battled in the name of the National Whole. Everyone was speaking truth to 
power as they went at one another tooth and nail. 

In the years since, we have learned how easily ethical denunciation and out- 
rage — triggering intervention in Kosovo, Afghanistan, even Iraq — can get us into 
circumstances where we are not able to follow through and cause the making of 
humanitarian promises which war cannot deliver. The universal claims of human 
rights can seem to promise the existence of an "international community" which is 
simply not available to back them up. 

10 



David Kennedy 



Indeed, the discourse of ethical denunciation often has a tip of the iceberg prob- 
lem. Take Abu Ghraib. Sexually humiliating, even torturing and killing prisoners is 
probably not, ethically speaking, the worst or most shocking thing our Coalition 
has done in Iraq. We should worry that our outrage at the photos may also be a way 
of not thinking about other injuries, deaths and mutilations our government has 
wrought. 

Outrage can distract us from the hard questions. Was the problem in Abu 
Ghraib a legal violation — or a failure of leadership? Was the failure one of human 
dignity — or tactics? The whole episode was clearly a military defeat. But we are left 
with the nagging question. If it could be kept secret, if it could be done pursuant to a 
warrant, perhaps sexual humiliation can help win the war; might, on balance, reduce 
the suffering of civilians and combatants alike. 

We know, moreover, that following absolute ethical precepts in wartime — as 
any other time — can become its own idolatry. Is it sensible to clear the cave with a 
firebomb because pepper spray, lawful when policing, is unlawful in "combat"? 
Absolute rules lead us to imagine we know what violence is just and what is unjust, 
always and for everyone. But justice is not like that, it must be imagined, built by 
people, struggled for, and redefined, in each conflict in new ways. Justice requires 
leadership — on the battlefield and off. 

Of course, for all these difficulties, much can sometimes be achieved by bringing 
humanitarian reason to bear on cultures of violence and by opposing the cruel cal- 
culations of cynical statesmen with ethical commitment. 

Still, an external moral discourse may not be able to stay all that external. Often, 
the trouble begins when it hits the problem of exceptions. What if it were Hitler, 
what if there were genocide, what if they were raping your mother? What about 
self-defense? What about deterrence? These classic questions take us straight to the 
doctrinal world of flexible standards, balancing conflicting considerations, assess- 
ing proportionality that is familiar to the professional weighing costs to achieve 
gains. To figure out when and how much self-defense is "just," we need technical, 
professional military expertise. 

Some commentators reacted to the 1996 International Court of Justice opinion 
on the Legality of the Threat or Use of Nuclear Weapons 5 — a fabric of legal equivoca- 
tions — by shaming the Court for speaking with nuance about an apocalypse; for 
parsing the "slaughter of the innocents" into the awkward categories of Article 38; 
for worrying more about the validity of norms than the future of humanity. 

The horrors of warfare, the dead and mangled bodies, the lives and families 
ripped apart, the intense anxiety and suffering on and off the battlefield, the pain of 
a single wounded child crying out, it seems obscene to speak of these things in any 
language but that of moral clarity, regret and outrage. 

11 



Distinguishing Military and Humanitarian Professions 

But is there, in fact, an alternative mode of discussion on which to ground this 
sensibility? Once we set out to speak of nuclear war as "slaughtering the innocents," 
we would soon enough need a definition for innocent. We would need to account 
not merely for the horrors of Hiroshima and Nagasaki, but also for their singular- 
ity. How can the dangers of nuclear proliferation, nuclear error, nuclear first use 
best be prevented? Serious, difficult questions. What about deterrence, does it 
work? When? And, of course, what about torture? When does it work? 

Moreover, presuming we speak about the slaughter of the innocents in order to 
reduce the likelihood of nuclear war — rather than merely to bear witness, we will 
need to assess ethical denunciation itself in tactical terms. What are the costs and 
benefits of denunciation? When should we trim our sails a bit, hold back, even flat- 
ter those whose fingers are on the button, in the name of an effective pacifism? Of 
course, if we hold our rhetorical fire this time people may die. People whose death 
we might have prevented, in whose torture we acquiesce, whom we sacrifice for the 
larger ethical objective of a stronger law in war, or a more legitimate International 
Committee of the Red Cross (ICRC). 

Strategy Switching: Humanitarian Pragmatism and Antiformalism 

Over the last century, these difficulties and ambiguities have eroded confidence in 
the outsider strategy; an erosion sped by the fate of the legal consciousness with 
which this strategy had been allied. The first half of the 20th century saw a wide- 
spread loss of faith in the formal distinctions of classical legal thought; in the wisdom, 
as well as the plausibility, of separating law sharply from politics, or private right 
sharply from public power. 

This loss of faith has had consequences for efforts to limit the violence of warfare 
through law; both undermining classic distinctions, between belligerent and neu- 
tral, for example, and opening new strategies for moving more fluidly between mil- 
itary and humanitarian professional vocabularies. 

As a result, the strategy of external denunciation — naming and shaming — has 
never had the grip in the law of force that it has had, say, in the field of human 
rights. Indeed, the modern law of force represents a triumph for grasping the nettle 
of costs and benefits and infiltrating the background decision- making of those 
whom it would bend to humanitarian ends. 

The result was a new, modern law in war. This is the law known to the ICRC and 
much of the European international law establishment as "humanitarian law," and 
to the US military as the "law of armed conflict." They are speaking about the same 
thing. I prefer the classic term "laws in war" or jus in bello. 



12 



David Kennedy 



As early as the Civil War, the humanitarian project sought less to distinguish 
war from peace, or just war from unjust war, or good guys from bad guys, than to 
limit the violence of all sides through an insider strategy of professionalization. It is 
not surprisingly that Francis Lieber, author of an early code of conduct for battle 6 
had relatives on both sides in our Civil War. The law in war we have inherited elo- 
quently illustrates the strengths and weaknesses of this professionalization strategy. 

The "law in war" — associated most prominently with the International Com- 
mittee of the Red Cross — has always prided itself on its pragmatic relationship 
with military professionals. It is not unusual to hear military lawyers speak of the 
ICRC lawyers as their "partners" in codification — and compliance — and vice 
versa. They attend the same conferences, and speak the same language, even when 
they differ on this or that detail. 

Developing a common insider vocabulary did not mean jettisoning rules; it 
meant first of all placing the rules on a firmer footing in the militarily plausible. 
Rules are not external expressions of virtue, but internal expressions of profes- 
sional discipline. 

Already in the 19th century, many humanitarians thought the best way to pro- 
ceed was to work with the military to codify detailed rules they can respect — no ex- 
ploding bullets, respect for ambulances and medical personnel, and so forth. To 
this day, the most significant codifications have indeed been negotiated among 
diplomatic and military authorities. 

In this, the codified 19 th -century law in war was something of an exception to 
the prevailing spirit of classical legal thought — and a precursor for what would fol- 
low in the 20th century. Rather than elaborating private rights against public pow- 
ers, it harnessed the authority of public sovereignty to the articulation of limits; 
foreshadowing an international legal positivism that would be theorized only in 
the early decades of the 20th century as a repudiation of 19 th -century efforts to 
ground law outside sovereign consent. 

Of course, this reliance on military acquiescence limited what could be 
achieved — military leaders outlaw weapons which they no longer need, which they 
feel will be potent tools only for their adversaries, or against which defense would 
be too expensive or difficult. Narrowly drawn rules permit a great deal — and legiti- 
mate what is permitted. 

Recognition of these costs is one reason the pragmatism of the law in war has al- 
ways meant more than positivism; more than deference to sovereign consent; 
more than legal clarity; more than realism about the power of nation States. Prag- 
matism has also meant antiformalism — principles and standards replacing rules. 

As you all know, since at least 1945, a vocabulary of principles has grown up 
alongside tough-minded military bargains over weaponry. The detailed rules of 

13 



Distinguishing Military and Humanitarian Professions 

The Hague or Geneva law have morphed into standards — simple ideas which can 
be printed on a wallet-sized card and taught easily to soldiers in the field. "The 
means of war are not unlimited," "each use of force must be necessary" and "pro- 
portional." These have become ethical baselines for a universal modern 
civilization. 

Humanitarians have sought to turn rules into principles to render the narrow 
achievements of negotiation in more general terms; transforming narrow treaties 
into broad custom. Military professionals have done the same for different rea- 
sons — to ease training through simplification, to emphasize the importance of 
judgment by soldiers and commanders operating under the rules, or simply to 
cover situations not included under the formal rules with a consistent practice. Ap- 
parently, for example, a standard Canadian military manual instructs that the 
"spirit and principles" 7 of the international law of armed conflict apply to non- 
international conflicts not covered by the terms of the agreed rules. 

It is not just that rules have become principles — we as often find the reverse. 
Military lawyers turn broad principles and nuanced judgments into simple bright 
line rules of engagement for soldiers in combat. Humanitarians comb military 
handbooks and government statements of principle promulgated for all sorts of 
purposes, to distill "rules" of customary international law. The ICRC's recent three 
volume restatement of the customary law of armed conflict is a monumental work 
of advocacy of just this type. 

In the modern law in war, both rules and standards are simultaneously under- 
stood in the quite different registers of "validity" and "persuasion." In the world of 
validity, the law is the law — you should follow it because it is valid. If your battle- 
field acts do not fall under a valid prohibition, you remain privileged to kill. Full 
stop. On the other hand, however, as a tool of persuasion, the law in war overflows 
these banks. It will be hard to argue — particularly to persistent opposers — that 
many of the purportedly customary rules in the ICRC restatement are, strictly 
speaking, "valid." But there is no gainsaying their likely persuasiveness in many 
contexts and to many audiences. 

We are used to working with the law of armed conflict in the key of validity. We 
make rules by careful negotiation. We influence customary rules by intentioned 
and public behavior. We send ships through straits or close to shorelines both to 
assert and to strengthen rights. 

But we will need to become more adept at operations in the law of persuasion. 
The domain in which the image of a single dead civilian can make a persuasive case 
for a law of armed conflict violation trumps the most ponderous technical legal 
defense. 



14 



David Kennedy 



The law in war of persuasion is not only the product of overreaching humani- 
tarian outsiders, of course. The military also interprets, advocates, seeks to per- 
suade. This reinterpretation of rules and principles has brought humanitarian law 
inside the vocabulary of the military profession and brought complex consider- 
ations of strategy to the humanitarian professions. As a framework for debate and 
judgment, this new law in war embraced the unavoidability of trade-offs, of bal- 
ancing harms, of accepting costs to achieve benefit — an experience common to 
both military strategists and humanitarians. 

Take civilian casualties. Of course, civilians will be killed in war. Limiting civil- 
ian death had become a pragmatic commitment — no unnecessary damage, not 
one more civilian than necessary. In the vernacular of humanitarian law, this be- 
comes no "superfluous injury" and no "unnecessary suffering." The range of com- 
plex strategic calculations opened up by this idea, for those inside and outside the 
military, is broad indeed. 

We might say that the old distinction between combatants and civilians has 
been relativized. What, in any event, can it mean for the distinction between mili- 
tary and civilian to have itself become a principle? The "principle of distinction" — 
there is something oxymoronic here — either it is a distinction, or it is a principle. 

Of course, it is but a short step from here to "effects-based targeting," and the 
elimination of the doctrinal firewall between civilian and military, belligerent and 
neutral. But, thinking in humanitarian terms, why shouldn't military operations 
be judged by their effects, rather than by their adherence to narrow rules that might 
well have all manner of perverse and unpredictable outcomes? 

I was struck during the NATO bombardment of Belgrade — justified by the in- 
ternational community's humanitarian objectives in Kosovo — by the public dis- 
cussions among military strategists and humanitarian international lawyers of the 
appropriateness of targeting the civilian elites most strongly supporting the 
Milosevic regime. If bombing the bourgeoisie would have been more effective than 
a long march inland toward the capital, would it have been proportional, neces- 
sary, indeed humanitarian to place the war's burden on young draftees in the field 
rather than upon the civilian population who sent them there? Some argued that 
targeting civilians supporting an outlaw, if democratic, regime would also extend 
the Nuremberg principle of individual responsibility. Others disagreed, of course. 
But the terms of their disagreement were provided by shared principles. 

The law in war today offers the basis for both external denunciation of military 
action and internal calculation of its necessity or proportionality. Although they 
do not lie easily with one another, our thinking fades easily from one to the other. 
Take the Abu Ghraib photos. The law in war offers us two quite different vocabu- 
laries for reacting to the photographs, neither of which is satisfactory. First, moral 

15 



Distinguishing Military and Humanitarian Professions 

outrage. We have repeatedly heard it said that the administration, like so many 
others, was "shocked by the photos." They may have been — but I wonder. If 
Rumsfeld was indeed shocked, might he not be just a bit too naive to be entrusted 
with taking the country to war? He was shocked in part, as we all were, because 
the violence was gratuitous, unnecessary, not instrumentally justified, and, of 
course, because it was photographed. But was it really not necessary? How does 
sleep or sensory deprivation compare to humiliation, or to chills, or to intense 
fear? Which is more humane? Which more effective? Can we still distinguish the 
two questions? 

Asymmetry — Severing the Laws of Validity and Persuasion 

There is something else about this new vocabulary that is disturbing. You may re- 
member Major General James Mattis, poised to invade Falluja, concluding his de- 
mand that the insurgents stand down with these words: "We will always be 
humanitarian in all our efforts. We will fight the enemy on our terms. May God 
help them when we're done with them." 8 1 know I shivered at his juxtaposition of 
humanitarian claims and blunt threats. 

It is troubling, of course, that this so often has been a vocabulary for judgment of 
the center against the periphery. When the Iraqi insurgent quoted on the same 
page of the New York Times as Mattis threatened to decapitate civilian hostages if 
the coalition forces did not withdraw, he was also threatening innocent civilian 
death — less of it actually — but without the humanitarian promise. And he also 
made me shiver. 

It is no secret that technological advances have heightened the asymmetry of 
warfare. In the framework of validity, it is clear that all are bound by the same rules. 
But as persuasion, this assumption is coming undone. When the poor deviate from 
the best military practices of the rich, it is tempting to treat their entire campaign as 
illegitimate. But before we jump to the legitimacy of their cause, how should we 
evaluate the strategic use of perfidy by every outgunned insurgency battling a mod- 
ern occupation army? From an effects-based perspective, perfidious attacks on our 
military — from mosques, by insurgents dressing as civilians or using human 
shields — may have more humanitarian consequences than any number of alterna- 
tive tactics. And they are very likely to be interpreted by many as reasonable, "fair" 
responses by an outgunned, but legitimate force. 

There is no question that technological asymmetry erodes the persuasiveness of 
the "all bound by the same rules" idea. It should not be surprising that forces with 
vastly superior arms and intelligence capacity are held to a higher standard in the 



16 



David Kennedy 



court of world public opinion than their adversaries. As persuasion, the law in 
force has indeed become a sliding scale. 

Persuasion and the CNN Effect 

In 1996, 1 traveled to Senegal as a civilian instructor with the Naval Justice School 
from here in Newport to train members of the Senegalese military in the laws of 
war and human rights. At the time, the training program was operating in 53 coun- 
tries, from Albania to Zimbabwe. As I recall it, our training message was clear: hu- 
manitarian law is not a way of being nice. By internalizing human rights and 
humanitarian law, you will make your force interoperable with international coali- 
tions, suitable for international peacekeeping missions. To use our sophisticated 
weapons, your military culture must have parallel rules of operation and engage- 
ment to our own. Most importantly, we insisted, humanitarian law will make your 
military more effective — will make your use of force something you can sustain 
and proudly stand behind. 

I was struck when we broke into small groups for simulated exercises, by a re- 
gional commander who kept asking the hard questions — when you capture some 
guerrillas, isn't it better to place a guy's head on a stake for deterrence? Well, no, we 
would patiently explain, this will strengthen the hostility of villagers to your troops, 
and imagine what would happen if CNN were nearby. They would all laugh, of 
course, and respond "we must be sure the press stays away." 

Ah, but this is no longer possible, we said, if you want to play on the interna- 
tional stage, you need to be ready to have CNN constantly by your side. You must 
place an imaginary CNN webcam on your helmet, or, better, just over your 
shoulder. Not because force must be limited and not because CNN might show 
up, but because only force which can imagine itself being seen can be enduring. 
An act of violence one can disclose and be proud of is ultimately stronger, more 
legitimate. 

Our lesson was written completely in the key of persuasion, not validity. It was 
a lesson apparently lost on those who considered the interrogation of "high value 
targets" in our own war on terror. Nevertheless, the Senegalese had learned, as 
Secretary Rumsfeld now seems to be learning, what was required for a culture of 
violence to be something one could proudly stand behind. What was required, in a 
word, for warfare to be civilized. The more I thought about that, however, the 
more it made me shiver as well. 



17 



Distinguishing Military and Humanitarian Professions 

Comparative Law: the International Law of Armed Conflict and 

Military Discipline 

I have been speaking about the law in war as if we could rather easily identify its 
terms. But what law governs the battlefield? If you ask an international commercial 
lawyer, what law governs the transaction, the answer will be anything but straight- 
forward. Treaty law on the subject — even the World Trade Organization agree- 
ments — would only be the beginning. There would be international private law, of 
course. But far more importantly, national regulation with transnational effects, 
and the national private law built into the transaction through private ordering. 
Assessing the significance of these various bodies of law requires not only inquiry 
into their formal jurisdictional validity, but also their sociological effect. Who will 
want to regulate the transaction? Who will be able to do so? What rules will influ- 
ence the transaction even absent enforcement? 

The answer for warfare is no simpler, particularly for coalition operations, or for 
campaigns that stretch the "battlespace" across numerous jurisdictions. Who will 
try to apply what rules, who will succeed? When the Italians decide to prosecute 
CIA operatives for their alleged participation in a black operation of kidnapping 
and rendition, the law of the battlefield has shifted. The practice of military law to- 
day requires complex and shifting predictions of fact and law. Whose interpreta- 
tion will prevail and before what audience? 

This kind of analysis will require sophisticated comparative law, for there are 
more than one laws of armed conflict. The rules simply look different if you antici- 
pate battle against a technologically superior foe, or live in a Palestinian refugee 
camp in Gaza. Moreover, although a national military may translate the words of 
the international law of armed conflict directly into its operations manual, the in- 
terpretation and intent may well be different. More often, different nations, even in 
the same coalition, will have implemented and interpreted the shared rules and 
principles quite differently. Humanitarians looking at the same rules might lean 
toward restrictive interpretations, adopting the perspective of the potential "vic- 
tim," while the military might lean towards greater freedom of maneuver. Al- 
though we might disagree with one another's interpretation, we must recognize 
that our professional materials are elastic enough to enable quite diverse interpre- 
tations. Military law is comparative law. 

As humanitarians, when we compare international rules with the military's 
rules of engagement, we might well be surprised: the military rules might well be 
the stricter. The strength and significance of the military's own culture of discipline 
can be difficult for civilians to grasp. I have tried to explain it to civilian audiences 
by saying it is bureaucratic necessity, central to the effectiveness of the mission and 

18 



David Kennedy 



to the safety of colleagues. But my sense is that military discipline is as much pas- 
sion as reason; instrumentalism wrapped in honor and integrity in a culture set off 
from civilian life — a higher calling. 

As a social production, military discipline is also of course, and perhaps more 
importantly, a work on the self. The United States Army runs recruitment com- 
mercials which implore "see your recruiter, become an Army of One." The prom- 
ise is power, to be sure. But also discipline — self-discipline. If you join, you will be 
transformed inside — you will become an army, coordinated, disciplined, your 
own commanding officer, your own platoon, embodying within yourself the force 
of hundreds because of the work you will do, and we will do, on you. 

Of course, there is opportunity for individual judgment — and error. Soldiers 
who run amok. We remember the pilots who flew beneath the Italian ski lift slicing 
the cables. And the precision guided missile fired in Kosovo with the tail fins put on 
backwards, spinning ever further from its programmed target until it exploded in a 
crowded civilian marketplace. We remember the American pilots who bombed 
their Canadian allies. Or, for that matter, My Lai, the abuse of prisoners in Bagh- 
dad, and all the other tales of atrocity in war. 

It can be particularly hard for civilians to grasp that when soldiers are tried for 
breach of military discipline, their defense is often stronger under the vague stan- 
dards of international humanitarian law than under national criminal or military 
law. Or that international law provides the framework less for disciplining the force 
than for unleashing the spear at its tip. 

Indeed, the international legal standards of self-defense, proportionality and 
necessity are so broad that they are routinely invoked to refer to the zone of discre- 
tion rather than limitation. I have spoken to numerous Navy pilots who describe 
briefings filled with technical rules of engagement and military law. After the mili- 
tary lawyer leaves, the commanding officer summarizes in the empowering lan- 
guage of international law — "just don't do anything you don't feel is necessary" 
and "defend yourself; don't get killed out there." The fighter pilot heads out on a 
leash of rules, assembled in a package coordinated by a complex transnational ar- 
ray of operating procedures. Only at the last moment, in contact with the enemy, is 
he released to the discretion framed by the law of armed conflict, that is, necessity, 
and self-defense. 

What are we to make of the widespread sense that military professionals are the 
most disturbed by the current administration's efforts to shrink or skirt humani- 
tarian standards in their war on terror? Has the military gone soft? Become less 
willing than their civilian masters to condone harsh tactics? Or is the scandal that 
the JAG Corps has been more courageous in their opposition to harsh tactics than 
those civilian humanists who stand outside, wringing their hands, but uncertain 

19 



Distinguishing Military and Humanitarian Professions 

whether they are in fact qualified to judge? Perhaps the scandal is our sense that to 
torture or not to torture has become a professional judgment in the first place, un- 
avoidably linked to the question of whether harsh treatment will work. Again, how 
effective, in fact, is sexual humiliation, or isolation, or torture? 

After the Gulf War, it was widely acknowledged that the decision to take down 
the electrical grid by striking the generators had left power out for far longer than 
necessary, contributing to unsanitary water supply and the unnecessary death of 
many thousands from cholera. Military planners involved have admitted this was a 
mistake, and they have reportedly revised their procedures accordingly. In Kosovo 
and Iraq, such a devastating blow to the electrical grid was not struck. 

But in reviewing the Gulf War experience, they will not say that taking out the 
generators lacked proportionality or necessity, or that it was excessive given what 
they knew then and what they were trying to achieve. These legal standards remain 
the solid ground on which their acts, and, ultimately the deaths of many thousands, 
can remain legitimated 

Weighing and Balancing — What Exactly? 

The transformation of the law in war into a vocabulary of persuasion about legiti- 
macy is not the end of the matter. We still need to figure out, for a given purpose, a 
given argument, just what is, in fact, necessary or proportional. And of course, it is 
in this spirit that targets in the recent Iraq conflict were pored over by lawyers. But 
even in the best of times, the promise of weighing and balancing is rarely met. 

I have learned that if you ask a military professional precisely how many civil- 
ians can you kill to offset how much risk to one of your own men, you won't receive 
a straight answer. When the Senegalese asked us, we'd say "it's a judgment call." In- 
deed, at least so far as I have been able to ascertain, there is no background ex- 
change rate for civilian life. What you find instead are rules kicking the decision up 
the chain of command as the number of civilians increases, until the decision 
moves offstage from military professionals to politicians. 

In the early days of the Iraq war, coalition forces were certainly frustrated by 
Iraqi soldiers who advanced in the company of civilians. A Corporal Mikael 
Mcintosh reported that he and a colleague had declined several times to shoot sol- 
diers in fear of harming civilians. "It's a judgment call," he said, "if the risks out- 
weigh the losses, then you don't take the shot." He offered an example: "There was 
one Iraqi soldier, and 25 women and children, I didn't take the shot." His col- 
league, Sergeant Eric Schrumpf chipped in to describe facing one soldier among 
two or three civilians, opening fire, and killing civilians: "We dropped a few civil- 
ians, but what do you do. I'm sorry, but the chick was in the way." 9 

20 



David Kennedy 



There is no avoidance of decisions of this type in warfare. The difficulty arises 
when humanitarian law transforms decisions about whom to kill into judgments. 
When it encourages us to think the chick's death resulted not from an exercise of 
human freedom, for which a moral being is responsible, but rather from the ab- 
stract operation of professional principles. 

We know there are clear cases both ways — destroying the village to save it, or 
minor accidental damage en route to victory — but we also know that the principles 
are most significant in the great run of situations that fall in between. What does it 
mean to pretend these decisions are principled judgments? How should we evalu- 
ate the irreducibly imaginary quality of the promise that costs and benefits will be 
weighed, that warfare will be proportional, its violence necessary? 

I was struck that Iraq war reporting was filled with anecdotes about soldiers 
overcome by remorse at having slaughtered civilians, and being counseled back to 
duty by their officers, their chaplains, and their mental health professionals, who 
explained that what they had done was necessary, proportional, and therefore just. 

Of course, if you ask leading humanitarian law experts how many civilians you 
can kill for this or that, you will also not get an answer. Rather than saying "it's a 
judgment call," however, they are likely to say something like "you just can't target 
civilians," thereby refusing to engage in the pragmatic assessments necessary to 
make that rule applicable in combat; defaulting, if you will, to the external strategy 
of denunciation abandoned a century ago by humanitarian law. 

In psychological terms, it is hard to avoid interpreting this pragmatism-promised- 
but-not-delivered as a form of denial; a collaborative denial — by humanitarians 
and military lawyers — of their participation in the machinery of war. 

In the military vernacular, it might be more accurate to sense a collaborative 
avoidance of command responsibility and leadership; a willingness to push re- 
sponsibility up to the domain of politics or down to the domain of rules. The ten- 
dency to blame the civilian leadership — or the lawyers — is well known. But we also 
know lawyers, whether inside or outside the military, who make that easy by pre- 
tending the law is more decisive — or more open — than it is. 

The Law in War Comes Unstuck 

In this audience, I do not need to emphasize the extent to which the traditional law 
in war is becoming unstuck; questioned from every angle. 

In part this is a matter of blurring boundaries — new technologies and new 
modes of warfare pressing a doctrinal world imagined in the wake of wars that 
seemed "modern" in the 1860s. The language has proliferated — self-defense, war, 
hostilities, the use of force, resort to arms, police action, peace enforcement, 

21 



Distinguishing Military and Humanitarian Professions 

peacemaking, peacekeeping. Who can align them confidently, like "chop," "whip," 
"blend" on the Cuisinart? They are all technical terms in military parlance and legal 
doctrine, but also in ethical and political discourse. 

Earlier this month I participated in a lengthy discussion at the Council on For- 
eign Relations on "post-conflict" reconstruction. All agreed we were far from 19th- 
century warfare. Who was the enemy and where was the battlefield? The old days of 
industrial warfare are over; you're not trying to blow stuff up on the battlefield un- 
til the political leadership surrenders. It's asymmetric, it's chaotic, it's not linear. 
The battlespace is at once global and intensely local; there are no front lines. Here at 
home, we hardly seem at war — the enemy, the conflict, the political goal, all have 
become slippery. 

For the military, everything important and difficult seems to happen in a kind of 
grey area between war and peace. The idea of a boundary between law enforce- 
ment, limited by human rights law, and military action, limited by the laws of 
armed conflict, seems ever less tenable. In the same city troops are at once engaging 
in conflict, stabilizing a neighborhood after conflict, and performing humanitar- 
ian, nation-building tasks. 

I heard military men with experience in Bosnia, Kosovo, and Iraq all stress the 
continuities of the transition from war to peace; they insisted the term "post-conflict" 
was a misnomer. In principle, planning and training for the post-conflict phase 
should begin before the conflict, even if it seems hard to imagine identifying 
"spare" troops in the preparation phase who might be saved for later tasks. In any 
event, restoring water or eliminating sewage after the conflict are part of winning 
the war. To paraphrase Clausewitz, post-conflict action is the continuation of con- 
flict by other means. Anyway, they wondered, when did the war start — on 9/1 1? In 
1991? In 2003? 

The boundaries are blurry. Everywhere we find public/private partnerships, 
outsourcing, insurgents who melt into the mosque, armed soldiers who turn out to 
work for private contractors. There are civilians all over the battlefield, not only in- 
surgents dressed as refugees, but special forces operatives dressing like natives, pri- 
vate contractors dressing like Arnold Schwarzenegger, and all the civilians running 
the complex technology and logistical chains "behind" modern warfare. 

The rules of engagement are no longer just those of humanitarian law or mili- 
tary discipline, there is also private law, contract, environmental regulation. Ap- 
parently at one point the Swiss company backing up life insurance contracts for 
private convoy drivers in Iraq imposed a requirement of additional armed guards if 
they were to pay on any claim, slowing the whole operation. 

There is no question that all this generates enormously difficult doctrinal prob- 
lems; we will deal with many of them over the next days. Why should weapons 

22 



David Kennedy 



permissible in domestic riot control and policing — non-penetrating bullets, cer- 
tain gases — not be available on the battlefield if combat blurs easily with stabiliza- 
tion and law enforcement? In close quarters on board a ship interdicted during a 
blockade should seamen be issued weaponry appropriate for combat or law en- 
forcement? To what extent does law shape or limit this decision? 

In this new environment, we hear that humanitarian law will have to be re- 
thought. But this is more than simply a more complex legal situation requiring 
more sophisticated analysis. Adjusting the law in war to post-modern warfare will 
require more than doctrinal ingenuity. It will require a new way of thinking about 
the role of law — and warfare. 

Indeed, it might be more accurate to say that the fluid modern vocabulary of 
clear rules and sharp distinctions, broad principles and vague calculations of pro- 
portionality and necessity was designed precisely for this. It is a professional vocab- 
ulary for making distinctions and eroding them, for applying principles and simply 
invoking them. What will be required is a new understanding of the work of law — 
and of the responsibilities of command. 

Sophisticated analyses of necessity and proportionality, no less than the external 
vocabulary of distinction and denunciation, seem ever less convincing. Each has, in 
its own way, become a vocabulary of warfare. More importantly, we are increas- 
ingly likely to interpret whatever military or humanitarian professionals say about 
the use of force in strategic terms, that is as things said for a reason, things said for 
tactical advantage. As professionals, civilian or military, we know how to make — 
and unmake — the distinctions between war and peace, between civilian and 
combatant. 

Brigadier General Charles Dunlap gave me the arresting term "lawfare," using 
law as a weapon, offensively and defensively, to legally condition the battlefield. 
Partly this is public relations; shaping expectations about what will happen and 
what will be legitimate. Getting the word out that we will — and we may — kill some 
civilians. 

Take the difficult question, when does war end? The answer is not to be found in 
law or fact, but in strategy. Declaring the end of hostilities might be a matter of 
election theater or military assessment. Just like announcing that there remains "a 
long way to go," or that the "insurgency is in its final throes." These appear as fac- 
tual or legal assessments, but we should understand them as arguments — messages 
but also weapons. Communicating the war is fighting the war. 

The old distinctions have not disappeared. Indeed, we sometimes want to insist 
upon a bright line. For the military, after all, defining the battlefield defines the 
privilege to kill in the same way that aid agencies want the guys digging the wells to 
be seen as humanitarians, not post-conflict combatants. Defining the 



23 



Distinguishing Military and Humanitarian Professions 

not-battlefield opens a "space" for humanitarian action. For both professions, dis- 
tinguishing, like balancing, has become at once a mode of warfare and of pacifism. 

Ending conflict, calling it occupation; ending occupation, calling it sovereignty; 
then opening hostilities, calling it a police action; suspending the judicial require- 
ments of policing, declaring a state of emergence, a zone of insurgency. All these 
things are also tactics in the conflict. We are occupying, but Falluja, for a few weeks, 
is again a combat zone, and so on. Defining the battlefield is both a matter of de- 
ployed force and a rhetorical claim. This is a war, this is an occupation, this is a po- 
lice action, this is a security zone. These are insurgents, those are criminals, these 
are illegal combatants, and so on. And these are all claims with audiences. The old 
legal issues are there — the claim must have a plausible validity; we must under- 
stand its persuasive potential. 

Audience reaction matters. For detainees at Guantanamo the "war" may never 
end. What war, which war? The war on terror? The war on poverty? Al Qaida? In 
Iraq? The Taliban? Afghanistan? The war for security, for oil, for ... ? What is, pre- 
cisely, the objective that once achieved will end their war? What limits our ability to 
extend the war for which they are held indefinitely — doctrines of the law of armed 
conflict? Hardly, the CNN effect gets closer to the mark. When publics with power 
to impede our ability to achieve our strategic objectives find our argument that the 
war for those prisoners has not ended so unpersuasive that they exercise that 
power, we will need to change course. 

We have heard that police and combat operations now go side-by-side; the zone 
of combat abuts, overlaps the zones of occupation and military action. Must we 
therefore conclude that human rights law and the law of armed conflict operate 
concurrently, across the battlespace? Yes and no. The assertion that human rights 
limits action in combat will seem persuasive to some audiences in some situations; 
as will the assertion that the activities are distinct, the laws separate. Lawfare — 
managing law and war together — requires a strategic assessment of both claims 
and both responses, and an active strategy by military and humanitarian actors to 
frame the situation in one or the other. 

In these strategic assessments, the legal questions become these: who, under- 
standing the law in what way, will be able to do what to affect our ongoing efforts? 
How, using what mix of behavior and assertion, can we transform the strategic sit- 
uation to our advantage? This is not a question of validity, not even of persuasion. 
This requires a social analysis of the dynamic interaction between ideas about the 
law and strategic objectives. 

As humanitarian and military professionals work with the law of armed conflict, 
they change it. Of course the law that pre-exists a conflict constrains its course — 
conditioning expectations, establishing habits of mind and standard procedures of 

24 



David Kennedy 



operation. Humanitarians and military professionals are used to thinking about 
influencing the law in peacetime through careful negotiations, through codifica- 
tion, through advocacy, and through assertions of right. It can be hard, in combat, 
to see that the law is, if anything, more open to change. When humanitarian voices 
seize on vivid images of civilian casualties to raise expectations about the required 
accuracy of military targeting, they are changing the legal fabric. 

In the Kosovo campaign, news reports of collateral damage often noted that co- 
alition pilots could have improved their technical accuracy by flying lower, al- 
though this would have exposed their planes and pilots to more risk. The law of 
armed conflict does not require you to fly low or take more risk to avoid collateral 
damage; it requires you to avoid superfluous injury and unnecessary suffering. But 
these news reports changed the legal context — flying high to reduce risk seemed 
"unfair." Humanitarians seized the moment, developing various theories to de- 
mand "feasible compliance" that would hold the military to technically achievable 
levels of care. In conference after conference, negotiation after negotiation, repre- 
sentatives of the US military have argued that this is simply not "the law." Perhaps 
not, but the effect of the legal claim is hard to deny. 

Of course, the military also seeks to affect the legal context through its public af- 
fairs activity and through its action on the battlefield. Asserting a right to attack a 
given objective may induce defenders to tie up assets in its defense, regardless of 
whether you intend to attack it or not. Attacking — or not attacking — a mosque is 
as much a message, as a tactic on the ground. 

Military action has become legal action, just as legal acts have become weapons. 
When the United States uses the United Nations Security Council to certify lists of 
terrorists to force seizure of their assets abroad, we might say that they have 
weaponized the law since they could, presumably, have immobilized those assets 
using other technologies. Similarly when they use contracts to buy up access to 
commercially available satellite images of the battlefield, they could presumably 
have denied their adversary access to those images using other weapons. The legal 
and military professions have indeed merged. 

None of this would have surprised Clausewitz. He continued his famous para- 
graph on war as a continuation of policy with a striking turn to language: 

[T]he chief lines on which the events of the War progress, and to which they are 
attached, are only the general features of policy which run all through the War until 
peace takes place. And how can we conceive it to be otherwise? Does the cessation of 
diplomatic notes stop the political relations between different Nations and 
Governments? Is not War merely another kind of writing and language for political 
thoughts? It has certainly a grammar of its own, but its logic is not peculiar to itself. 10 



25 



Distinguishing Military and Humanitarian Professions 

Clausewitz might well be surprised, however, by the extent to which the turn to 
language has revitalized the distinction between warfare and the political. In my 
experience, military and humanitarian professionals operating in this vocabulary 
share a sense that somewhere else, outside or beyond their careful calculations, 
somebody else makes decisions in a different way — exercises political judgment 
and discretion. This is why the absence of a clear exchange rate for civilian lives is 
untroubling; if the number is high enough, it will become a political decision. 

The Law of War — Do Politicians Think Differently? 

This takes us directly to the law of war. Normally, of course, for military profes- 
sionals, the law of war is far less present. Civilian leadership means leaving ques- 
tions about the legitimacy of the conflict — the decision to go to war in the first 
place — to a different, the political, domain. 

But, as the law in war has begun to come unstuck, professionals find themselves 
turning increasingly to the law of war; find themselves unable to assess the legiti- 
macy of wartime violence without assessing the legitimacy of the war itself. We 
might say that the law of war has become the law in war's destiny. If the use offeree 
is to be proportional — more force for more important objectives — it seems rea- 
sonable to think there would be a sliding scale for more and less important wars. 
Wars for national survival, wars to stop genocide — shouldn't they legitimate more 
than run of the mill efforts to enforce UN resolutions? 

There can be something perverse here — harsher tactics more legitimate in more 
"humanitarian" campaigns? But once the law of armed conflict becomes relative, a 
function of the conflict's legitimacy, we must ask whether the vocabulary we use to 
make the "political" decision to go to war differs in kind from that we use to fight — 
and restrain — the conflict once underway. Are "political" decisions, in fact, differ- 
ent from decisions of commanding officers and humanitarian advocates? 

As it turns out, while the law in war has infiltrated the military profession, the 
law of war has been engaged in a collateral — and equally successful — campaign to 
infiltrate the vocabulary of politics. The law about going to war has a history quite 
parallel to that of humanitarian law. As a result, the distinction between profes- 
sional and political judgments is far less clear than we might wish. 

This story, which can be told in shorter compass, begins with a period of rather 
fluid justifications expressed in a mixed vocabulary of justice and sovereign right. It 
is not clear, that 17 th -century "unjust" war ideas ever really limited the use of mili- 
tary force. They may well have done more to de-legitimate the enemy and justify 
the cause. 



26 



David Kennedy 



In any event, by the late 19th century, international law had very little to say 
about the decision to go to war, a silence rooted in the assumption that war was an 
unrestrained prerogative of sovereign power. The modern law of war is a century 
long pragmatic reaction against this 19 th - century legal silence. 

The right and capacity to make war was so central to the late 19 th -century legal 
definition of sovereignty that even in the 1920s, we still find jurists assessing the in- 
ternational legal personality of the League of Nations by asking whether it has the 
"right" to make war. But the League's purpose was another. 

The diplomats who made the League sought to replace legal doctrines with a po- 
litical institution that could sanction and deter aggression, while providing a 
framework for peaceful change and the peaceful settlement of "disputes." The 
brave new world of institutional management was born. 

After the Second World War, again in the name of pragmatism, this scheme ma- 
tured into a comprehensive constitutional system. As we all know, the UN Charter 
aimed to establish an international monopoly of force, placing responsibility for 
maintaining the peace with the Security Council. War was prohibited — except as 
authorized by the UN Charter. Not as authorized by the United Nations, but as au- 
thorized by the Charter. 

Like a constitution, the Charter was drafted in broad strokes and would need to 
be interpreted. Over the years, what began as an effort to monopolize force has be- 
come a constitutional regime of legitimate justifications for war. 

This modern vocabulary of force has a jurisprudence — an attitude about the re- 
lationship between law and power. It is the flexible jurisprudence of principles and 
policies, of balancing conflicting considerations, familiar from many domestic 
constitutional systems. 

Legal scholar Oscar Schachter gave perhaps the best description in his eulogy for 
Dag Hammarskjold, who epitomized the new jurisprudential spirit: 

Hammarskjold made no sharp distinction between law and policy; in this he departed 
clearly from the prevailing positivist approach. He viewed the body of law not merely 
as a technical set of rules and procedures, but as the authoritative expression of 
principles that determine the goals and directions of collective action. ... It is also of 
significance in evaluating Hammarskjold's flexibility that he characteristically 
expressed basic principles in terms of opposing tendencies (applying, one might say, 
the philosophic concept of polarity or dialectical opposition). He never lost sight of the 
fact that a principle, such as that of observance of human rights, was balanced by the 
concept of non-intervention, or that the notion of equality of States had to be 
considered in a context which included the special responsibilities of the great Powers. 
The fact that such precepts had contradictory implications meant that they could not 
provide automatic answers to particular problems, but rather that they served as 
criteria which had to be weighed and balanced in order to achieve a rational solution of 

27 



Distinguishing Military and Humanitarian Professions 

the particular problem He did not, therefore, attempt to set law against power. He 

sought rather to find within the limits of power the elements of common interest on 
the basis of which joint action and agreed standards could be established. 11 

There is no doubt that this system of principles has legitimated a great deal of 
warfare. Indeed, it is hard to think of a use of force that could not be legitimated in 
these terms. It is a rare statesman who launches a war simply to be aggressive. There 
is almost always something else to be said — the province is actually ours; our rights 
have been violated; our enemy is not, in fact, a State; we were invited to help; they 
were about to attack us; we are promoting the purposes and principles of the 
United Nations. Something. 

As the law in war became a matter of standards, balancing, and pragmatic calcu- 
lation, the difficult, discretionary decisions were exported to the political realm. As 
the political vocabulary has itself become a matter of constitutional interpretation, 
our understanding of the political process has also been transformed. 

This convergence of humanitarianism and militarism has transformed our un- 
derstanding of international politics. Idealism no longer provides a standpoint ex- 
ternal to the ebbs and flows of the policy conversation. Action legitimates norms, 
norms legitimate action. Humanitarians and statesmen, idealists and realists are in 
the same game, and are increasingly difficult to distinguish from one another. 

International Politics: a Conversation about Legitimacy 

In the international world, we imagine this shared vocabulary of principles and 
policy judgment to operate through conversation. States, private actors, NGOs, 
and national courts are participants in an ongoing conversation about the legiti- 
macy of State behavior — legitimacy judged by their compatibility with UN Charter 
principles. 

Conversing before the court of world public opinion, statesmen not only assert 
their prerogatives, they also test and establish those prerogatives through action. 
Political assertions come armed with little packets of legal legitimacy, just as legal 
assertions carry a small backpack of political corroboration. As lawyers must har- 
ness enforcement to their norms, States must defend their prerogatives to keep 
them — must back up their assertions with action to maintain their credibility. A 
great many military campaigns have been undertaken for just this kind of credibility — 
missiles become missives. 

It was, after all, in this spirit that President Bush went to the United Nations to 
announce that he would enforce the Charter; and if he succeeded and the Iraq re- 
gime were to change and democracy and freedom released, the legitimacy deposit 



28 



David Kennedy 



in his account would be a direct transfer from the United Nations. Of course, it was 
a risk; but the United Nations was also daring, and risking in resisting. 

When the United Nations withholds approval or refuses to participate, it may 
de-legitimate the military campaign. Let us suppose it does not stop it; a deter- 
mined coalition pushes ahead in the name of Charter principles. In the easy cases, 
the campaign succeeds; the United Nations has missed out. Or the campaign fails; 
the United Nations is vindicated. 

The difficult case is now ours. The occupation is more difficult than anticipated, 
the post-conflict/post-war/peace-building/nation-building phase holds hostage 
the ultimate success or failure of the campaign. Op-ed writers urge all parties to ig- 
nore sunk costs, to focus on the future. Surely, they argue, we all have a stake in a 
successful outcome, and it makes sense for the United States and the international 
community to cooperate. 

Perhaps, but sunk costs cannot be ignored so readily. Seen dynamically, it makes 
sense for Bush to resist relying on the United Nations to make good his original 
wager as precedent for the next case; just as it makes sense for the United Nations to 
resist engagement. It is no accident that we sometimes feel the Europeans want the 
project to fail, and sometimes they do, for in this game of meaning and precedent, 
to ignore sunk costs and get with the program is to take a legitimacy hit. 

Either way, Iraqi citizens are paying the price, not in the "great game" of 19 th - 
century diplomacy, but in the "great conversation" of 20 th -century legitimacy. 

If, interpreting the law in war, humanitarians were loath to speak about the 
civilians who might legitimately be killed — "you just can't target civilians" — they 
also resist the suggestion in the law of war that they, like military planners, decide 
when to draw down and when to pay into their legitimacy stockpile, and, therefore, 
when to accept civilian casualties as necessary for longer term objectives. 

Although humanitarians talk about the long-run benefits of building up the UN 
system or promoting the law of force, they do not make such long-run calculations. 
Current costs are discounted, future benefits promised as if there were nothing to 
weigh against expansion of humanitarian institutions and ideas; no civilians who 
needed to be allowed to die for the legitimacy of the United Nations. But in this, we 
depart from pragmatic calculation altogether and move into the domain of abso- 
lute virtue. We are back speaking truth to power. 

When I speak to civilian audiences, there is something scandalous about pre- 
senting an aircraft carrier sailing off to war as the realization of international hu- 
manitarianism. Aircraft carriers are the instruments of statesmen. Civilians prefer 
to think of humanitarians as gentle civilizers, lawyers whispering in the admiral's 
ear, protesters marching in the streets for peace, scholars documenting the norms 



29 



Distinguishing Military and Humanitarian Professions 

and standards of humanitarian law, teachers instructing soldiers in the limits to 
warfare. Humanitarian rulership is often rulership denied. 

The transformation of the law of war into a set of constitutional standards at 
once defined and enforced through an ex-post assessment of legitimacy earned and 
spent offers an open-ended vocabulary for diplomatic and military conversation. 
Any and all criteria that turn out to affect the legitimacy of the action in the eyes of 
those with the power to affect its success will, retrospectively, turn out to have been 
persuasive requirements of the law of war. Like the "preferences" we think stand 
behind market behavior, standards of legitimacy are inevitably subjective when we 
look forward, objective when we look back. Professionalism has, in this sense, 
taken us as far as it can — fully occupying the field. 

Yet this new vocabulary has its own limits, blind spots, biases. Not all voices are 
equally heard, not all concerns equally calculated by the group of elites we call "the 
international community." 

Those in the loop are likely to focus too much on the United Nations as proxy 
for world public opinion. Were opponents of the Iraq war serious when they 
claimed their objection to the war was the lack of UN approval? Would the war re- 
ally have made more sense to them had France had a different government? 

I worry when great debates about war and peace, staged in the vocabulary of the 
Charter, capture our attention. One unfortunate result: it has become routine to 
say that international law had little effect on the Iraq war. Arguments made by a few 
international lawyers that the war was illegal failed to stop the American adminis- 
tration and its allies, who were determined to go ahead, and who had, after all, their 
own international lawyers. 

But this lets international law off the hook too easily. If we expand the aperture 
from the decision to invade, war looks ever more to be a product of law: the laws in 
war that legitimated targeting, the laws of war that provided the vocabulary for as- 
sessing its legitimacy, the laws of sovereignty that defined and limited Saddam's 
prerogatives and have structured the occupation, not to mention commercial 
rules, financial rules, and private law regimes through which Iraq gamed the sanc- 
tions system and through which the coalition built its response. The UN law offeree 
makes these background rules seem matters of fact, rather than points of choice. 

The Charter scheme encourages us to think of global policy as a combination of 
short multilateral police actions and humanitarian assistance. It distracts our at- 
tention from the economic side of the story — and from the development policy 
that comes with an invasion. It shortens our sense of how long and how difficult 
war to build nations or change regimes is likely to be. 

In the Iraq case, international law and the UN Charter focused our attention on 
weapons, which when not forthcoming, de-legitimated the entire enterprise. 

30 



David Kennedy 



International law urges us to respect Iraqi sovereignty, making it all too easy to 
think our intervention in Iraqi affairs began with the invasion and ended with the 
handover of the bundle of rights we have decided to call "sovereignty." 

The vocabulary of the Charter can make it more difficult to address the motives 
for war and devise alternative policies. Let us say the administration's hawks were 
right; suppose that after 9/11 it was necessary to "change regimes" from eastern 
Turkey to western Pakistan. In the months before the war, the international com- 
munity found it difficult to discuss regime change straightforwardly. Ideas about 
sovereignty, the limits of the Charter, core humanitarian commitments to the re- 
nunciation of empire; all placed regime change outside legitimate debate. 

Yet supposedly sovereign regimes are already entangled with one another. They 
struggle every day to change one another's regimes in all manner of legitimate 
ways. Why should this all become taboo when force is added to the mix, unless war 
is no longer, in fact, in Clausewitz's terms, "a continuation of political intercourse, 
with a mixture of other means." 12 

When it comes to force, the Charter vocabulary offered an easy and irresponsi- 
ble way out. We never needed to ask how should the regimes in the Middle East — 
our regimes — be changed? Is Iraq the place to start? Is military intervention the 
way to do it? How do we compare various ways of combining military and non- 
military "means" to the end of regime change? 

Had the Europeans not had the United Nations to shield them, not felt the ge- 
ography of the European Union (EU) marked a legitimate boundary to their 
global responsibilities, they might well have drawn on their own experiences with 
"regime change" in Spain, Portugal and Greece in the '80s, with the old East Ger- 
many in the '90s, and now with the ten new member States in central and eastern 
Europe. Why not EU membership for Turkey, Morocco, Jordan, Palestine, Israel, 
Egypt — regime change through the promise and example of social and economic 
inclusion rather than military force. 

Had our debates not been framed by the laws of war, we might well have found 
other solutions and escaped the limited choices of UN sanctions, humanitarian aid 
and war — in short, thought outside the box. 

Decisionism: Command Responsibility, Leadership and Politics 

I began this morning with a worry about the relationship between the military and 
humanitarian professions. Should we celebrate their merger in a new pragmatism 
or should we reinvigorate the pacifist impulse to stand outside and denounce? 

The choice turns out to be a false one. The military and humanitarian profes- 
sions have merged in a shared practice of making and unmaking the distinctions of 

31 



Distinguishing Military and Humanitarian Professions 

war and peace that once marked the line between their respective domains. If ours 
has become a culture of violence, it is a shared culture, a product of military and 
humanitarian hands. If ours is history's most humane empire, that also is the col- 
laborative achievement of humanitarian and military professionals. 

The laws of force increasingly provide the vocabulary not only for restraining 
the violence and incidence of war, but also for waging war and deciding to go to 
war. We should be clear; this bold new vocabulary beats ploughshares into swords 
as often as the reverse. It forecloses our attention to other causes, consequences and 
alternatives to warfare. 

The problem for humanitarians is no longer an unwillingness to be tough; hu- 
manitarians have advocated all manner of tough and forceful action in the name of 
humanitarian pragmatism, and their words have legitimated still more. The prob- 
lem is an unwillingness to do so responsibly — facing squarely the dark sides, risks 
and costs of what they propose. 

The problem for military professionals is no longer a lack of humanitarian com- 
mitment. The military has built humanitarianism into its professional routines. 
The problem is loss of the human experience of responsible freedom, of discretion 
to kill, and a loss of the political experience of free decision. 

The worry I find most unsettling is the difficulty of locating a moment of re- 
sponsible political discretion in the broader process. We are all experts, humanitar- 
ians, military professionals and statesmen, speaking a common military and 
humanitarian vocabulary. 

The way out will not be to tinker with doctrines of the laws offeree. The way for- 
ward will require a new posture and professional sensibility among those who 
work in this common language. When speaking to civilian audiences, I use the vo- 
cabulary of decisionism to evoke what I have in mind. Rather than fleeing from the 
exercise of responsible decision to the comfortable interpretive routines of their 
professional discourse, humanitarians should, I argue, learn to embrace the exer- 
cise of power, acknowledge their participation in governance, and cultivate the ex- 
perience of professional discretion and the posture of ethically responsible 
personal freedom. International humanitarians, I argue, inside and outside the 
military, have sought power, but have not accepted responsibility. They have advo- 
cated and denounced, mobilized and killed, while remaining content that others 
governed and others decided. 

The military vocabulary of command responsibility and leadership evokes 
many of the same ideas. The new law of armed conflict requires a different collabora- 
tion between the legal and military professions. The lawyer is brought along to carry 
the briefcase of rules and restrictions rather than as a participant in discussions of 
strategy for which he or she would share ethical, if not command, responsibility. 

32 



David Kennedy 



But military and humanitarian professionals alike, however close their partner- 
ship, however flexible, fluid and strategic their approach to law, yearn for an exter- 
nal judgment — by political leaders or others — that what they have gotten up to is, 
in fact, an ethically responsible national politics. In a sense, the commander who 
offloads responsibility for warfare to the civilian leadership is no different from the 
foot soldier who cites failures of leadership, or the lawyer who faults limitations in 
the rules. 

The posture of professionalism against decision, or in contrast to responsibility, 
is only plausible so long as the ethicists and politicians are speaking another lan- 
guage. But they no longer do. Our language has become the language of politics 
and the language of ethics. The challenge for all of us is to recapture the freedom, 
and the responsibility, of discretion. Clausewitz was right; war is the continuation 
of political intercourse. When we make war, humanitarian and military profes- 
sionals together, let us experience politics as our vocation. 

Notes 

1. CARL VON CLAUSEWITZ, On WAR 402 (J. Graham trans., Penguin Books 1968) (1832). 

2. Abraham Lincoln, Address before the Young Men's Lyceum of Springfield, Illinois (Jan. 27, 
1838), available at http://www.presidentialrhetoric.com/historicspeeches/lincoln/lyceumaddress 
.html. 

3. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), available at http://www 
.presidentialrhetoric.com/historicspeeches/lincoln/gettysburg.html. 

4. Paris Declaration Respecting Maritime Law, Apr. 16, 1856, 115 Consol. T.S., reprinted in 
THE LAWS OF ARMED CONFLICTS 1055 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004). 

5. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8, 
1996). 

6. Instructions for the Government of Armies of the United States in the Field, General Orders 
No. 100 (Apr. 24, 1863), reprinted in THE LAWS OF ARMED CONFLICTS, supra note 4, at 3. 

7. Office of the Judge Advocate General, Canadian National Defence Joint Doctrine Manual, 
Law Of Armed Conflict at the Operational and Tactical Levels [B-GJ-005-104/FP-021] para. 
1702, at 17-2 (Aug. 13, 2001), available at http://www.dcds.forces.ca/jointDoc/docs/LOAC_3 
.pdf. 

8. Thorn Shanker, The Struggle For Iraq: Strategy, NEW YORK TIMES, Apr. 11, 2004, at 1. 

9. Dexter Filkins, Either Take a Shot or Take a Chance, NEW YORK TIMES, Mar. 29, 2003, at Al , 
B4. 

10. Clausewitz, supra note l, at 402. 

1 1 . Oscar Schachter, Dag Hammarskjold and the Relation of Law to Politics, 56 AMERICAN 
JOURNAL OF INTERNATIONAL LAW 1, 2-7 (1962). 

12. Clausewitz, supra note 1. 



33 



PART II 



CUSTOMARY INTERNATIONAL 

HUMANITARIAN LAW: 

THE ICRC STUDY 



II 



Study on Customary International 

Humanitarian Law: 

A Contribution to the Understanding and 

Respect for the Rule of Law in Armed Conflict 

Jean-Marie Henckaerts* 

Abstract 

This article explains the rationale behind a study on customary international 
humanitarian law recently undertaken by the International Committee of 
the Red Cross (ICRC) at the request of the International Conference of the Red 
Cross and Red Crescent. It describes the methodology used and how the study was 
organized and summarizes some major findings. It does not, however, purport to 
provide a complete overview or analysis of these findings. 

Introduction 

In the 50 years or so since the adoption of the Geneva Conventions of 1949, man- 
kind has experienced an alarming number of armed conflicts affecting almost every 
continent. During this time, the four Geneva Conventions and their Additional 



* Legal Adviser, Legal Division, International Committee of the Red Cross (ICRC). The views in 
this article are those of the author and do not necessarily reflect those of the ICRC. This article 
was first published in the International Review of the Red Cross, Volume 87, Number 857, March 
2005, at page 175 and is reprinted with permission. © 2006 by Jean-Marie Henckaerts. 



Customary International Humanitarian Law Study 

Protocols of 1977 have provided legal protection to persons not or no longer par- 
ticipating directly in hostilities (the wounded, sick and shipwrecked, persons de- 
prived of their liberty for reasons related to an armed conflict, and civilians). Even 
so, there have been numerous violations of these treaties, resulting in suffering and 
death which might have been avoided had international humanitarian law been 
better respected. 

The general opinion is that violations of international humanitarian law are not 
due to the inadequacy of its rules. Rather, they stem from an unwillingness to re- 
spect the rules, from insufficient means to enforce them, from uncertainty as to 
their application in some circumstances and from a lack of awareness of them on 
the part of political leaders, commanders, combatants and the general public. 

The International Conference for the Protection of War Victims, convened in 
Geneva in August-September 1993, discussed in particular ways to address viola- 
tions of international humanitarian law but did not propose the adoption of new 
treaty provisions. Instead, in its Final Declaration adopted by consensus, the Con- 
ference reaffirmed "the necessity to make the implementation of humanitarian law 
more effective" and called upon the Swiss government "to convene an open-ended 
intergovernmental group of experts to study practical means of promoting full re- 
spect for and compliance with that law, and to prepare a report for submission to 
the States and to the next session of the International Conference of the Red Cross 
and Red Crescent." 1 

The Intergovernmental Group of Experts for the Protection of War Victims met 
in Geneva in January 1995 and adopted a series of recommendations aimed at en- 
hancing respect for international humanitarian law, in particular by means of pre- 
ventive measures that would ensure better knowledge and more effective 
implementation of the law. Recommendation II of the Intergovernmental Group 
of Experts proposed that: 

The ICRC be invited to prepare, with the assistance of experts in IHL [international 
humanitarian law] representing various geographical regions and different legal 
systems, and in consultation with experts from governments and international 
organizations, a report on customary rules of IHL applicable in international and non- 
international armed conflicts, and to circulate the report to States and competent 
international bodies. 2 

In December 1995, the 26th International Conference of the Red Cross and 
Red Crescent endorsed this recommendation and officially mandated the ICRC 
to prepare a report on customary rules of international humanitarian law appli- 
cable in international and non-international armed conflicts. 3 Nearly ten years 
later, in 2005, after extensive research and widespread consultation of experts, 

38 



Jean-Marie Henckaerts 



this report, now referred to as the study on customary international humanitar- 
ian law, has been published. 4 

Purpose 

The purpose of the study on customary international humanitarian law was to 
overcome some of the problems related to the application of international hu- 
manitarian treaty law. Treaty law is well developed and covers many aspects of 
warfare, affording protection to a range of persons during wartime and limiting 
permissible means and methods of warfare. The Geneva Conventions and their 
Additional Protocols provide an extensive regime for the protection of persons 
not or no longer participating directly in hostilities. The regulation of means and 
methods of warfare in treaty law goes back to the 1868 St. Petersburg Declaration, 
the 1899 and 1907 Hague Regulations and the 1925 Geneva Gas Protocol, and has 
most recently been addressed in the 1972 Biological Weapons Convention, the 
1977 Additional Protocols, the 1980 Convention on Certain Conventional 
Weapons and its five Protocols, the 1993 Chemical Weapons Convention and the 
1997 Ottawa Convention on the Prohibition of Anti-personnel Mines. The pro- 
tection of cultural properly in the event of armed conflict is regulated in detail in 
the 1954 Hague Convention and its two Protocols. The 1998 Statute of the Inter- 
national Criminal Court contains, inter alia y a list of war crimes subject to the ju- 
risdiction of the Court. 

There are, however, two serious impediments to the application of these treaties 
in current armed conflicts and which explain why a study on customary interna- 
tional humanitarian law is necessary and useful. First, treaties apply only to the 
States that have ratified them. This means that different treaties of international 
humanitarian law apply in different armed conflicts depending on which treaties 
the States involved have ratified. While the four Geneva Conventions of 1949 have 
been universally ratified, the same is not true for other treaties of humanitarian 
law, for example the Additional Protocols. Even though Additional Protocol I has 
been ratified by more than 160 States, its efficacy today is limited because several 
States that have been involved in international armed conflicts are not party to it. 
Similarly, while nearly 160 States have ratified Additional Protocol II, several States 
in which non-international armed conflicts are taking place have not done so. In 
these non-international armed conflicts, common Article 3 of the four Geneva 
Conventions often remains the only applicable humanitarian treaty provision. The 
first purpose of the study was therefore to determine which rules of international 
humanitarian law are part of customary international law and therefore applicable 



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Customary International Humanitarian Law Study 

to all parties to a conflict, regardless of whether or not they have ratified the treaties 
containing the same or similar rules. 

Second, humanitarian treaty law does not regulate in sufficient detail a large 
proportion of today's armed conflicts, that is non-international armed conflicts, 
because these conflicts are subject to far fewer treaty rules than are international 
conflicts. Only a limited number of treaties apply to non-international armed con- 
flicts, namely the Convention on Certain Conventional Weapons as amended, the 
Statute of the International Criminal Court, the Ottawa Convention on the Prohi- 
bition of Anti-personnel Mines, the Chemical Weapons Convention, the Hague 
Convention for the Protection of Cultural Property and its Second Protocol and, as 
already mentioned, Additional Protocol II and Article 3 common to the four 
Geneva Conventions. While common Article 3 is of fundamental importance, it 
only provides a rudimentary framework of minimum standards. Additional Pro- 
tocol II usefully supplements common Article 3, but it is still less detailed than the 
rules governing international armed conflicts in the Geneva Conventions and 
Additional Protocol I. 

Additional Protocol II contains a mere 15 substantive articles, whereas Addi- 
tional Protocol I has more than 80. While numbers alone do not tell the full story, 
they are an indication of a significant disparity in regulation by treaty law between 
international and non-international armed conflicts, particularly when it comes to 
detailed rules and definitions. The second purpose of the study was therefore to de- 
termine whether customary international law regulates non-international armed 
conflict in more detail than does treaty law and if so, to what extent. 

Methodology 

The Statute of the International Court of Justice describes customary international 
law as "a general practice accepted as law." 5 It is widely agreed that the existence of 
a rule of customary international law requires the presence of two elements, 
namely State practice {usus) and a belief that such practice is required, prohibited 
or allowed, depending on the nature of the rule, as a matter of law (opinio juris sive 
necessitatis). As the International Court of Justice stated in the Continental Shelf 
case: "It is of course axiomatic that the material of customary international law is to 
be looked for primarily in the actual practice and opinio juris of States." 6 The exact 
meaning and content of these two elements have been the subject of much academic 
writing. The approach taken in the study to determine whether a rule of general cus- 
tomary international law exists was a classic one, set out by the International Court 
of Justice, in particular in the North Sea Continental Shelf cases. 7 



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State Practice 

State practice must be looked at from two angles: what practice contributes to the 
creation of customary international law (selection of State practice) and whether 
this practice establishes a rule of customary international law (assessment of State 
practice). 

Selection of State Practice 

Both physical and verbal acts of States constitute practice that contributes to the 
creation of customary international law. Physical acts include, for example, battle- 
field behavior, the use of certain weapons and the treatment afforded to different 
categories of persons. Verbal acts include military manuals, national legislation, 
national case law, instructions to armed and security forces, military 
communiques during war, diplomatic protests, opinions of official legal advisers, 
comments by governments on draft treaties, executive decisions and regulations, 
pleadings before international tribunals, statements in international fora, and gov- 
ernment positions on resolutions adopted by international organizations. This list 
shows that the practice of the executive, legislative and judicial organs of a State can 
contribute to the formation of customary international law. 

The negotiation and adoption of resolutions by international organizations or 
conferences, together with the explanations of vote, are acts of the States involved. 
It is recognized that, with a few exceptions, resolutions are normally not binding 
in themselves and therefore the value accorded to any particular resolution in the 
assessment of the formation of a rule of customary international law depends on 
its content, its degree of acceptance and the consistency of related State practice. 8 
The greater the support for the resolution, the more importance it is to be 
accorded. 

Although decisions of international courts are subsidiary sources of interna- 
tional law, 9 they do not constitute State practice. This is because, unlike national 
courts, international courts are not State organs. The decisions of international 
courts were nevertheless included in the study because a finding by an interna- 
tional court that a rule of customary international law exists constitutes persuasive 
evidence to that effect. In addition, because of the precedential value of their deci- 
sions, international courts can also contribute to the emergence of a rule of cus- 
tomary international law by influencing the subsequent practice of States and 
international organizations. 

The practice of armed opposition groups, such as codes of conduct, commit- 
ments made to observe certain rules of international humanitarian law and other 
statements, does not constitute State practice as such. While such practice may 
contain evidence of the acceptance of certain rules in non-international armed 

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Customary International Humanitarian Law Study 

conflicts, its legal significance is unclear and, as a result, was not relied upon to 
prove the existence of customary international law. Examples of such practice were 
listed under "other practice" in Volume II of the study. 

Assessment of State Practice 

State practice has to be weighed to assess whether it is sufficiently "dense" to create 
a rule of customary international law. 10 To establish a rule of customary interna- 
tional law, State practice has to be virtually uniform, extensive and representa- 
tive. 11 Let us look more closely at what this means. 

First, for State practice to create a rule of customary international law, it must be 
virtually uniform. Different States must not have engaged in substantially different 
conduct. The jurisprudence of the International Court of Justice shows that con- 
trary practice which, at first sight, appears to undermine the uniformity of the 
practice concerned, does not prevent the formation of a rule of customary interna- 
tional law as long as this contrary practice is condemned by other States or denied 
by the government itself. Through such condemnation or denial, the rule in ques- 
tion is actually confirmed. 12 

This is particularly relevant for a number of rules of international humanitarian 
law for which there is overwhelming evidence of verbal State practice in support of 
a rule, alongside repeated evidence of violations of that rule. Where violations have 
been accompanied by excuses or justifications by the party concerned and/or 
condemnation by other States, they are not of a nature to challenge the existence 
of the rule in question. States wishing to change an existing rule of customary in- 
ternational law have to do so through their official practice and claim to be acting 
as of right. 

Second, for a rule of general customary international law to come into existence, 
the State practice concerned must be both extensive and representative. It does not, 
however, need to be universal; a "general" practice suffices. 13 No precise number or 
percentage of States is required. One reason it is impossible to put an exact figure 
on the extent of participation required is that the criterion is in a sense qualitative 
rather than quantitative. That is to say, it is not simply a question of how many 
States participate in the practice, but also which States. 14 In the words of the Inter- 
national Court of Justice in the North Sea Continental Shelf cases, the practice must 
"include that of States whose interests are specially affected." 15 

This consideration has two implications: (1) if all "specially affected States" are 
represented, it is not essential for a majority of States to have actively participated, 
but they must have at least acquiesced in the practice of "specially affected States"; 
and (2) if "specially affected States" do not accept the practice, it cannot mature 
into a rule of customary international law, even though unanimity is not required 

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Jean-Marie Henckaerts 



as explained. 16 Who is "specially affected" under international humanitarian law 
may vary according to circumstances. Concerning the legality of the use of blind- 
ing laser weapons, for example, "specially affected States" include those identified 
as having been in the process of developing such weapons, even though other 
States could potentially become the objects of their use. Similarly, States whose 
population is in need of humanitarian aid are "specially affected" just as are States 
which frequently provide such aid. With respect to any rule of international hu- 
manitarian law, countries that participated in an armed conflict are "specially af- 
fected" when their practice examined for a certain rule was relevant to that armed 
conflict. Although there may be specially affected States in certain areas of inter- 
national humanitarian law, it is also true that all States have a legal interest in re- 
quiring respect for international humanitarian law by other States, even if they 
are not a party to the conflict. 17 In addition, all States can suffer from means or 
methods of warfare deployed by other States. As a result, the practice of all States 
must be considered, whether or not they are "specially affected" in the strict sense 
of that term. 

The study took no view on whether it is legally possible to be a "persistent objec- 
tor" in relation to customary rules of international humanitarian law. While many 
commentators believe that it is not possible to be a persistent objector in the case of 
rules of jus cogens^ there are others who doubt the continued validity of the persis- 
tent objector concept altogether. 18 If one accepts that it is legally possible to be a 
persistent objector, the State concerned must have objected to the emergence of a 
new norm during its formation and continue to object persistently afterwards; it is 
not possible to be a "subsequent objector." 19 

While some time will normally elapse before a rule of customary international 
law emerges, there is no specified timeframe. Rather, it is the accumulation of a 
practice of sufficient density, in terms of uniformity, extent and representativeness, 
which is the determining factor. 20 

Opinio Juris 

The requirement of opinio juris in establishing the existence of a rule of customary 
international law refers to the legal conviction that a particular practice is carried 
out "as of right." The form in which the practice and the legal conviction are ex- 
pressed may well differ depending on whether the rule concerned contains a prohi- 
bition, an obligation or merely a right to behave in a certain manner. 

During work on the study, it proved very difficult and largely theoretical to 
strictly separate elements of practice and legal conviction. Often, the same act re- 
flects both practice and legal conviction. As the International Law Association 
pointed out, the International Court of Justice "has not in fact said in so many 

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Customary International Humanitarian Law Study 

words that just because there are (allegedly) distinct elements in customary law the 
same conduct cannot manifest both. It is in fact often difficult or even impossible 
to disentangle the two elements." 21 This is particularly so because verbal acts, such 
as military manuals, count as State practice and often reflect the legal conviction of 
the State involved at the same time. 

When there is sufficiently dense practice, an opinio juris is generally contained 
within that practice and, as a result, it is not usually necessary to demonstrate sepa- 
rately the existence of an opinio juris. In situations where practice is ambiguous, 
however, opinio juris plays an important role in determining whether or not that 
practice counts towards the formation of custom. This is often the case with omis- 
sions, when States do not act or react but it is not clear why. It is in such cases that 
both the International Court of Justice and its predecessor, the Permanent Court 
of International Justice, have sought to establish the separate existence of an opinio 
juris in order to determine whether instances of ambiguous practice counted to- 
wards the establishment of customary international law. 22 

In the area of international humanitarian law, where many rules require absten- 
tion from certain conduct, omissions pose a particular problem in the assessment 
of opinio juris because it has to be proved that the abstention is not a coincidence 
but based on a legitimate expectation. When such a requirement of abstention is 
indicated in international instruments and official statements, the existence of a le- 
gal requirement to abstain from the conduct in question can usually be proved. In 
addition, such abstentions may occur after the behavior in question created a cer- 
tain controversy, which also helps to show that the abstention was not coinciden- 
tal, although it is not always easy to prove that the abstention occurred out of a 
sense of legal obligation. 

Impact of Treaty Law 

Treaties are also relevant in determining the existence of customary international 
law because they help shed light on how States view certain rules of international 
law. Hence, the ratification, interpretation and implementation of a treaty, includ- 
ing reservations and statements of interpretation made upon ratification, were in- 
cluded in the study. In the North Sea Continental Shelf cases, the International 
Court of Justice clearly considered the degree of ratification of a treaty to be relevant 
to the assessment of customary international law. In that case, the Court stated that 
"the number of ratifications and accessions so far secured [39] is, though respectable, 
hardly sufficient", especially in a context where practice outside the treaty was con- 
tradictory. 23 Conversely, in the Nicaragua case, the Court placed a great deal of 
weight, when assessing the customary status of the non-intervention rule, on the 
fact that the Charter of the United Nations was almost universally ratified. 24 It can 

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Jean-Marie Henckaerts 



even be the case that a treaty provision reflects customary law, even though the 
treaty is not yet in force, provided that there is sufficiently similar practice, includ- 
ing by specially affected States, so that there remains little likelihood of significant 
opposition to the rule in question. 25 

In practice, the drafting of treaty norms helps to focus world legal opinion and 
has an undeniable influence on the subsequent behavior and legal conviction of 
States. The International Court of Justice recognized this in its judgment in the 
Continental Shelf case in which it stated that "multilateral conventions may have an 
important role to play in recording and defining rules deriving from custom, or in- 
deed in developing them." 26 The Court thus confirmed that treaties may codify 
pre-existing customary international law but may also lay the foundation for the 
development of new customs based on the norms contained in those treaties. The 
Court has even gone so far as to state that "it might be that ... a very widespread 
and representative participation in [a] convention might suffice of itself, provided 
it included that of States whose interests were specially affected." 27 

The study took the cautious approach that widespread ratification is only an in- 
dication and has to be assessed in relation to other elements of practice, in particu- 
lar the practice of States not party to the treaty in question. Consistent practice of 
States not party was considered as important positive evidence. Contrary practice 
of States not party, however, was considered as important negative evidence. The 
practice of States party to a treaty vis-a-vis States not party is also particularly 
relevant. 

Thus, the study did not limit itself to the practice of States not party to the rele- 
vant treaties of international humanitarian law. To limit the study to a consider- 
ation of the practice of only the 30-odd States that have not ratified the Additional 
Protocols, for example, would not comply with the requirement that customary 
international law be based on widespread and representative practice. Therefore, 
the assessment of the existence of customary law took into account that, at the time 
the study was published, Additional Protocol I had been ratified by 162 States and 
Additional Protocol II by 157 States. 

It should be stressed that the study did not seek to determine the customary na- 
ture of each treaty rule of international humanitarian law and, as a result, did not 
necessarily follow the structure of existing treaties. Rather, it sought to analyse is- 
sues in order to establish what rules of customary international law can be found 
inductively on the basis of State practice in relation to these issues. As the approach 
chosen does not analyse each treaty provision with a view to establishing whether 
or not it is customary, it cannot be concluded that any particular treaty rule is not 
customary merely because it does not appear as such in the study. 



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Customary International Humanitarian Law Study 

Organization of the Study 

To determine the best way of fulfilling the mandate entrusted to the ICRC, the au- 
thors consulted a group of academic experts in international humanitarian law, 
who formed the Steering Committee of the study. 28 The Steering Committee 
adopted a plan of action in June 1996, and research started the following October. 
Research was conducted using both national and international sources reflecting 
State practice and focused on the six parts of the study identified in the plan of 
action: 

• Principle of distinction 

• Specifically protected persons and objects 

• Specific methods of warfare 

• Weapons 

• Treatment of civilians and persons hors de combat 

• Implementation 

Research in National Sources 

Since national sources are more easily accessible from within a country, it was de- 
cided to seek the cooperation of national researchers. To this end, a researcher or 
group of researchers was identified in nearly 50 States (9 in Africa, 1 1 in the Ameri- 
cas, 15 in Asia, 1 in Australasia and 1 1 in Europe) and asked to produce a report on 
their respective State's practice. 29 Countries were selected on the basis of geo- 
graphic representation, as well as recent experience of different kinds of armed 
conflict in which a variety of methods of warfare had been used. 

The military manuals and national legislation of countries not covered by the 
reports on State practice were also researched and collected. This work was facili- 
tated by the network of ICRC delegations around the world and the extensive col- 
lection of national legislation gathered by the ICRC Advisory Service on 
International Humanitarian Law. 

Research in International Sources 

State practice gleaned from international sources was collected by six teams, each 
of which concentrated on one part of the study. 30 These teams researched practice 
in the framework of the United Nations and other international organizations, in- 
cluding the African Union (formerly the Organization of African Unity), the 
Council of Europe, the Gulf Cooperation Council, the European Union, the 
League of Arab States, the Organization of American States, the Organization of 



46 



Jean-Marie Henckaerts 



the Islamic Conference and the Organization for Security and Co-operation in Eu- 
rope. International case law was also collected to the extent that it provides evi- 
dence of the existence of rules of customary international law. 

Research in ICRC Archives 

To complement the research carried out in national and international sources, the 
ICRC looked into its own archives relating to nearly 40 recent armed conflicts (21 
in Africa, 2 in the Americas, 8 in Asia and 8 in Europe). 31 In general, these conflicts 
were selected so that countries and conflicts not dealt with by a report on State 
practice would also be covered. 

The result of this three-pronged approach — research in national, international 
and ICRC sources — is that practice from all parts of the world is cited. In the 
nature of things, however, this research cannot purport to be complete. The study 
focused in particular on practice from the last 30 years to ensure that the result 
would be a restatement of contemporary customary international law, but, where 
still relevant, older practice was also cited. 

Expert Consultations 

In a first round of consultations, the ICRC invited the international research teams 
to produce an executive summary containing a preliminary assessment of custom- 
ary international humanitarian law on the basis of the practice collected. These ex- 
ecutive summaries were discussed within the Steering Committee at three 
meetings in Geneva in 1998. The executive summaries were duly revised and, dur- 
ing a second round of consultations, submitted to a group of academic and govern- 
mental experts from all regions of the world. These experts were invited in their 
personal capacity by the ICRC to attend two meetings with the Steering Committee 
in Geneva in 1999, during which they helped to evaluate the practice collected and 
indicated particular practice that had been missed. 32 

Writing of the Report 

The assessment by the Steering Committee, as reviewed by the group of academic 
and governmental experts, served as a basis for the writing of the final report. The 
authors of the study re-examined the practice, reassessed the existence of custom, 
reviewed the formulation and the order of the rules and drafted the commentaries. 
These draft texts were submitted to the Steering Committee, the group of academic 
and governmental experts and the ICRC Legal Division for comment. The text was 
further updated and finalized, taking into account the comments received. 



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Customary International Humanitarian Law Study 

Summary of Findings 

The great majority of the provisions of the Geneva Conventions, including com- 
mon Article 3, are considered to be part of customary international law. 33 Further- 
more, given that there are now 192 parties to the Geneva Conventions, they are 
binding on nearly all States as a matter of treaty law. Therefore, the customary na- 
ture of the provisions of the Conventions was not the subject as such of the study. 
Rather, the study focused on issues regulated by treaties that have not been univer- 
sally ratified, in particular the Additional Protocols, the Hague Convention for the 
Protection of Cultural Property and a number of specific conventions regulating 
the use of weapons. 

The description below of rules of customary international law does not seek to 
explain why these rules are customary, nor does it present the practice on the basis 
of which this conclusion was reached. The explanation of why a rule is considered 
customary can be found in Volume I of the study, while the corresponding practice 
can be found in Volume II. 

International Armed Conflicts 

Additional Protocol I codified pre-existing rules of customary international law 
but also laid the foundation for the formation of new customary rules. The practice 
collected in the framework of the study bears witness to the profound impact of 
Additional Protocol I on the practice of States, not only in international but also in 
non-international armed conflicts (see below). In particular, the study found that 
the basic principles of Additional Protocol I have been very widely accepted, more 
widely than the ratification record of Additional Protocol I would suggest. 

Even though the study did not seek to determine the customary nature of spe- 
cific treaty provisions, in the end it became clear that there are many customary 
rules which are identical or similar to those found in treaty law. Examples of rules 
found to be customary and which have corresponding provisions in Additional 
Protocol I include: the principle of distinction between civilians and combatants 
and between civilian objects and military objectives; 34 the prohibition of indis- 
criminate attacks; 35 the principle of proportionality in attack; 36 the obligation to 
take feasible precautions in attack and against the effects of attack; 37 the obligation 
to respect and protect medical and religious personnel, medical units and trans- 
ports, 38 humanitarian relief personnel and objects, 39 and civilian journalists; 40 the 
obligation to protect medical duties; 41 the prohibition of attacks on non-defended 
localities and demilitarized zones; 42 the obligation to provide quarter and to safe- 
guard an enemy hors de combat^ the prohibition of starvation; 44 the prohibition 
of attacks on objects indispensable to the survival of the civilian population; 45 the 

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Jean-Marie Henckaerts 



prohibition of improper use of emblems and perfidy; 46 the obligation to respect 
the fundamental guarantees of civilians and persons hors de combat; 47 the obliga- 
tion to account for missing persons; 48 and the specific protections afforded to 
women and children. 49 

Non-international Armed Conflicts 

Over the last few decades, there has been a considerable amount of practice insist- 
ing on the protection of international humanitarian law in this type of conflicts. 
This body of practice has had a significant influence on the formation of customary 
law applicable in non-international armed conflicts. Like Additional Protocol I, 
Additional Protocol II has had a far-reaching effect on this practice and, as a result, 
many of its provisions are now considered to be part of customary international 
law. Examples of rules found to be customary and which have corresponding pro- 
visions in Additional Protocol II include: the prohibition of attacks on civilians; 50 
the obligation to respect and protect medical and religious personnel, medical 
units and transports; 51 the obligation to protect medical duties; 52 the prohibition of 
starvation; 53 the prohibition of attacks on objects indispensable to the survival of 
the civilian population; 54 the obligation to respect the fundamental guarantees of 
civilians and persons hors de combat; 55 the obligation to search for and respect and 
protect the wounded, sick and shipwrecked; 56 the obligation to search for and pro- 
tect the dead; 57 the obligation to protect persons deprived of their liberty; 58 the pro- 
hibition of forced movement of civilians; 59 and the specific protections afforded to 
women and children. 60 

However, the most significant contribution of customary international human- 
itarian law to the regulation of internal armed conflicts is that it goes beyond the 
provisions of Additional Protocol II. Indeed, practice has created a substantial 
number of customary rules that are more detailed than the often rudimentary pro- 
visions in Additional Protocol II and has thus filled important gaps in the regula- 
tion of internal conflicts. 

For example, Additional Protocol II contains only a rudimentary regulation of 
the conduct of hostilities. Article 13 provides that "the civilian population as such, 
as well as individual civilians, shall not be the object of attack . . . unless and for such 
time as they take a direct part in hostilities." Unlike Additional Protocol I, Addi- 
tional Protocol II does not contain specific rules and definitions with respect to the 
principles of distinction and proportionality. 

The gaps in the regulation of the conduct of hostilities in Additional Protocol II 
have, however, largely been filled through State practice, which has led to the cre- 
ation of rules parallel to those in Additional Protocol I, but applicable as customary 
law to non-international armed conflicts. This covers the basic principles on the 

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Customary International Humanitarian Law Study 

conduct of hostilities and includes rules on specifically protected persons and ob- 
jects and specific methods of warfare. 61 

Similarly, Additional Protocol II contains only a very general provision on hu- 
manitarian relief for civilian populations in need. Article 18(2) provides that "if the 
civilian population is suffering undue hardship owing to a lack of the supplies es- 
sential for its survival . . . relief actions for the civilian population which are of an 
exclusively humanitarian and impartial nature and which are conducted without 
any adverse distinction shall be undertaken." Unlike Additional Protocol I, Addi- 
tional Protocol II does not contain specific provisions requiring respect for and 
protection of humanitarian relief personnel and objects and obliging parties to the 
conflict to allow and facilitate rapid and unimpeded passage of humanitarian relief 
for civilians in need and to ensure the freedom of movement of authorized human- 
itarian relief personnel, although it can be argued that such requirements are im- 
plicit in Article 18(2) of the Protocol. These requirements have crystallized, 
however, into customary international law applicable in both international and 
non-international armed conflicts as a result of widespread, representative and vir- 
tually uniform practice to that effect. 

In this respect it should be noted that while both Additional Protocols I and II 
require the consent of the parties concerned for relief actions to take place, 62 most 
of the practice collected does not mention this requirement. It is nonetheless self- 
evident that a humanitarian organization cannot operate without the consent of 
the party concerned. However, such consent must not be refused on arbitrary 
grounds. If it is established that a civilian population is threatened with starvation 
and a humanitarian organization which provides relief on an impartial and non- 
discriminatory basis is able to remedy the situation, a party is obliged to give con- 
sent. 63 While consent may not be withheld for arbitrary reasons, practice recog- 
nizes that the party concerned may exercise control over the relief action and that 
humanitarian relief personnel must respect domestic law on access to territory and 
security requirements in force. 

Issues Requiring Further Clarification 

The study also revealed a number of areas where practice is not clear. For example, 
while the terms "combatants" and "civilians" are clearly defined in international 
armed conflicts, 64 in non-international armed conflicts practice is ambiguous as to 
whether, for purposes of the conduct of hostilities, members of armed opposition 
groups are considered members of armed forces or civilians. In particular, it is not 
clear whether members of armed opposition groups are civilians who lose their 
protection from attack when directly participating in hostilities or whether mem- 
bers of such groups are liable to attack as such. This lack of clarity is also reflected in 

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Jean-Marie Henckaerts 



treaty law. Additional Protocol II, for example, does not contain a definition of ci- 
vilians or of the civilian population even though these terms are used in several 
provisions. 65 Subsequent treaties, applicable in non-international armed conflicts, 
similarly use the terms civilians and civilian population without defining them. 66 

A related area of uncertainty affecting the regulation of both international and 
non-international armed conflicts is the absence of a precise definition of the term 
"direct participation in hostilities." Loss of protection against attack is clear and 
uncontested when a civilian uses weapons or other means to commit acts of vio- 
lence against human or material enemy forces. But there is also considerable prac- 
tice which gives little or no guidance on the interpretation of the term "direct 
participation," stating, for example, that an assessment has to be made on a case- 
by-case basis or simply repeating the general rule that direct participation in hostil- 
ities causes civilians to lose protection against attack. Related to this issue is the 
question of how to qualify a person in case of doubt. Because of these uncertainties, 
the ICRC is seeking to clarify the notion of direct participation by means of a series 
of expert meetings that began in 2003. 67 

Another issue still open to question is the exact scope and application of the 
principle of proportionality in attack. While the study revealed widespread 
support for this principle, it does not provide more clarification than con- 
tained in treaty law as to how to balance military advantage against incidental 
civilian losses. 

Selected Issues on the Conduct of Hostilities 

Additional Protocols I and II introduced a new rule prohibiting attacks on works 
and installations containing dangerous forces, even where these objects are mili- 
tary objectives, if such attack may cause the release of dangerous forces and conse- 
quent severe losses among the civilian population. 68 While it is not clear whether 
these specific rules have become part of customary law, practice shows that States 
are conscious of the high risk of severe incidental losses which can result from 
attacks against such works and installations when they constitute military objec- 
tives. Consequently, they recognize that in any armed conflict particular care 
must be taken in case of attack in order to avoid the release of dangerous forces 
and consequent severe losses among the civilian population, and this require- 
ment was found to be part of customary international law applicable in any 
armed conflict. 

Another new rule introduced in Additional Protocol I is the prohibition of the 
use of methods or means of warfare that are intended, or maybe expected, to cause 
widespread, long-term and severe damage to the natural environment. Since the 
adoption of Additional Protocol I, this prohibition has received such extensive 

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Customary International Humanitarian Law Study 

support in State practice that it has crystallized into customary law, even though 
some States have persistently maintained that the rule does not apply to nuclear 
weapons and that they may, therefore, not be bound by it in respect of nuclear 
weapons. 69 Beyond this specific rule, the study found that the natural environment 
is considered to be a civilian object and as such it is protected by the same princi- 
ples and rules that protect other civilian objects, in particular the principles of dis- 
tinction and proportionality and the requirement to take precautions in attack. 
This means that no part of the natural environment may be made the object of at- 
tack, unless it is a military objective, and that an attack against a military objective 
which may be expected to cause incidental damage to the environment which 
would be excessive in relation to the concrete and direct military advantage antici- 
pated is prohibited. In its advisory opinion in the Nuclear Weapons case, for exam- 
ple, the International Court of Justice stated that "States must take environmental 
considerations into account when assessing what is necessary and proportionate in 
the pursuit of legitimate military objectives." 70 In addition, parties to a conflict are 
required to take all feasible precautions in the conduct of hostilities to avoid, and in 
any event to minimize, incidental damage to the environment. Lack of scientific 
certainty as to the effects on the environment of certain military operations does 
not absolve a party to the conflict from taking such precautions. 71 

There are also issues that are not as such addressed in the Additional Protocols. 
For example, the Additional Protocols do not contain any specific provision con- 
cerning the protection of personnel and objects involved in a peacekeeping mis- 
sion. In practice, however, such personnel and objects were given protection 
against attack equivalent to that of civilians and civilian objects respectively. As a 
result, a rule prohibiting attacks against personnel and objects involved in a peace- 
keeping mission in accordance with the Charter of the United Nations, as long as 
they are entitled to the protection given to civilians and civilian objects under in- 
ternational humanitarian law, developed in State practice and was included in the 
Statute of the International Criminal Court. It is now part of customary interna- 
tional law applicable in any type of armed conflict. 72 

A number of issues related to the conduct of hostilities are regulated by the 
Hague Regulations. These regulations have long been considered customary in in- 
ternational armed conflict. 73 Some of their rules, however, are now also accepted as 
customary in non-international armed conflict. For example, the long-standing 
rules of customary international law that prohibit (1) destruction or seizure of the 
property of an adversary, unless required by imperative military necessity, and (2) 
pillage apply equally in non-international armed conflicts. Pillage is the forcible 
taking of private property from the enemy's subjects for private or personal use. 74 



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Both prohibitions do not affect the customary practice of seizing as war booty mili- 
tary equipment belonging to an adverse party. 

Under customary international law, commanders may enter into non-hostile 
contact through any means of communication, but such contact must be based on 
good faith. Practice indicates that communication may be carried out via interme- 
diaries known as parlementaires but also by various other means, such as telephone 
and radio. A parlementaire is a person belonging to a party to the conflict who has 
been authorized to enter into communication with another party to the conflict 
and who is, as a result, inviolable. The traditional method of making oneself known 
as a. parlementaire by advancing bearing a white flag has been found to be still valid. 
In addition, it is recognized practice that the parties may appeal to a third party to 
facilitate communication, for example a protecting power or an impartial and neu- 
tral humanitarian organization acting as a substitute, in particular the ICRC, but 
also an international organization or a peacekeeping force. Collected practice 
shows that various institutions and organizations have acted as intermediaries in 
negotiations in both international and non-international armed conflicts, and that 
this is generally accepted. The rules governing parlementaires go back to the Hague 
Regulations and have long been considered customary in international armed con- 
flict. On the basis of practice in the last 50 years or so, they have become customary 
in non-international armed conflicts as well. 75 

Practice reveals two strains of law that protect cultural property. A first strain 
dates back to the Hague Regulations and requires that special care be taken in mili- 
tary operations to avoid damage to buildings dedicated to religion, art, science, ed- 
ucation or charitable purposes and historic monuments, unless they are military 
objectives. It also prohibits seizure of or destruction or willful damage to such 
buildings and monuments. While these rules have long been considered customary 
in international armed conflicts, they are now also accepted as customary in non- 
international armed conflicts. 

A second strain is based on the specific provisions of the 1954 Hague Conven- 
tion for the Protection of Cultural Property, which protects "property of great im- 
portance to the cultural heritage of every people" and introduces a specific distinc- 
tive sign to identify such property. Customary law today requires that such objects 
not be attacked nor used for purposes which are likely to expose them to destruction 
or damage, unless imperatively required by military necessity. It also prohibits any 
form of theft, pillage or misappropriation of, and any acts of vandalism directed 
against, such property. These prohibitions correspond to provisions set forth in 
the Hague Convention and are evidence of the influence the Convention has had 
on State practice concerning the protection of important cultural property. 



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Customary International Humanitarian Law Study 

Weapons 

The general principles prohibiting the use of weapons that cause superfluous in- 
jury or unnecessary suffering and weapons that are by nature indiscriminate were 
found to be customary in any armed conflict. In addition, and largely on the basis 
of these principles, State practice has prohibited the use (or certain types of use) of 
a number of specific weapons under customary international law: poison or poi- 
soned weapons; biological weapons; chemical weapons; riot-control agents as a 
method of warfare; herbicides as a method of warfare; 76 bullets which expand or 
flatten easily in the human body; anti-personnel use of bullets which explode 
within the human body; weapons the primary effect of which is to injure by frag- 
ments which are not detectable by X-rays in the human body; booby-traps which 
are in any way attached to or associated with objects or persons entitled to special 
protection under international humanitarian law or objects that are likely to at- 
tract civilians; and laser weapons that are specifically designed, as their sole combat 
function or as one of their combat functions, to cause permanent blindness to 
unenhanced vision. 

Some weapons which are not prohibited as such by customary law are neverthe- 
less subject to restrictions. This is the case, for example, for landmines and incendi- 
ary weapons. 

Particular care must be taken to minimize the indiscriminate effects of land- 
mines. This includes, for example, the principle that a party to the conflict using 
landmines must record their placement, as far as possible. Also, at the end of active 
hostilities, a party to the conflict which has used landmines must remove or other- 
wise render them harmless to civilians, or facilitate their removal. 

With over 140 ratifications of the Ottawa Convention, and others on the way, 
the majority of States are treaty-bound no longer to use, produce, stockpile and 
transfer anti-personnel landmines. While this prohibition is not part of customary 
international law because of significant contrary practice of States not party to the 
Convention, almost all States, including those that are not party to the Ottawa 
Convention and are not in favor of their immediate ban, have recognized the need 
to work towards the eventual elimination of anti-personnel landmines. 

The anti-personnel use of incendiary weapons is prohibited, unless it is not fea- 
sible to use a less harmful weapon to render a person hors de combat. In addition, if 
they are used, particular care must be taken to avoid, and in any event to minimize, 
incidental loss of civilian life, injury to civilians and damage to civilian objects. 

Most of these rules correspond to treaty provisions that originally applied only 
to international armed conflicts. That trend has gradually been reversed, for exam- 
ple by the amendment of Protocol II to the Convention on Certain Conventional 
Weapons in 1996, which also applies to non-international armed conflicts and, 

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most recently, by the amendment of the Convention on Certain Conventional 
Weapons in 2001 to extend the scope of application of Protocols I-IV to non-inter- 
national armed conflicts. The customary prohibitions and restrictions referred to 
above apply in any armed conflict. 

When the ICRC received the mandate to undertake the study on customary in- 
ternational humanitarian law, the International Court of Justice was considering 
the legality of the threat or use of nuclear weapons, following a request for an advi- 
sory opinion on the issue from the UN General Assembly. The ICRC decided 
therefore not to embark on its own analysis of this question. In its advisory opin- 
ion, the International Court of Justice held unanimously that "a threat or use of 
nuclear weapons should also be compatible with the requirements of the interna- 
tional law applicable in armed conflict, particularly those of the principles and 
rules of international humanitarian law." 77 This finding is significant given that a 
number of States undertook the negotiation of Additional Protocol I on the under- 
standing that the Protocol would not apply to the use of nuclear weapons. The 
opinion of the Court, however, means that the rules on the conduct of hostilities 
and the general principles on the use of weapons apply to the use of nuclear weap- 
ons. In application of these principles and rules, the Court concluded, "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 hu- 
manitarian law." 78 

Fundamental Guarantees 

Fundamental guarantees apply to all civilians in the power of a party to the conflict 
and who do not or have ceased to take a direct part in hostilities, as well as to all per- 
sons who are hors de combat. Because fundamental guarantees are overarching 
rules that apply to all persons, they were not sub-divided in the study into specific 
rules relating to different types of persons. 

These fundamental guarantees all have a firm basis in international humanitar- 
ian law applicable in both international and non-international armed conflicts. In 
the study, most of the rules relating to fundamental guarantees are couched in tradi- 
tional humanitarian law language, because this best reflected the substance of the 
corresponding customary rule. 79 Some rules, however, were drafted so as to capture 
the essence of a range of detailed provisions relating to a specific subject, in partic- 
ular the rules prohibiting uncompensated or abusive forced labor, enforced disap- 
pearances and arbitrary detention and the rule requiring respect for family life. 80 

Where relevant, practice under international human rights law was included in 
the study and in particular in the chapter on fundamental guarantees. This was 
done because international human rights law continues to apply during armed 

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Customary International Humanitarian Law Study 

conflicts, as expressly stated in the human rights treaties themselves, although 
some provisions may, subject to certain conditions, be derogated from in time of 
public emergency. The continued applicability of human rights law during armed 
conflict has been confirmed on numerous occasions in State practice and by hu- 
man rights bodies and the International Court of Justice. 81 Most recently, the 
Court, in its advisory opinion on the legal consequences of the construction of a 
wall in the occupied Palestinian territories, confirmed that "the protection offered 
by human rights conventions does not cease in case of armed conflict" and that 
while there may be rights that are exclusively matters of international humanitar- 
ian law or of human rights law, there are others that "may be matters of both these 
branches of international law." 82 The study does not set out, however, to provide 
an assessment of customary human rights law. Instead, practice under human 
rights law has been included in order to support, strengthen and clarify analogous 
principles of international humanitarian law. 

Implementation 

A number of rules on the implementation of international humanitarian law have 
become part of customary international law. In particular, each party to the con- 
flict must respect and ensure respect for international humanitarian law by its 
armed forces and other persons or groups acting in fact on its instructions or under 
its direction or control. As a result, each party to the conflict, including armed op- 
position groups, must provide instruction in international humanitarian law to its 
armed forces. Beyond these general obligations, it is less clear to what extent other 
specific implementation mechanisms that are binding upon States are also binding 
upon armed opposition groups. For example, the obligation to issue orders and in- 
structions to the armed forces which ensure respect for international humanitarian 
law is clearly set forth in international law for States but not so for armed opposition 
groups. Similarly, there is an obligation on States to make legal advisers available, 
when necessary, to advise military commanders at the appropriate level on the appli- 
cation of international humanitarian law, but not on armed opposition groups. 

A State is responsible for violations of international humanitarian law attribut- 
able to it and is required to make full reparation for the loss or injury caused by 
such violations. It is unclear whether armed opposition groups incur an equivalent 
responsibility for violations committed by their members and what the conse- 
quences of such responsibility would be. As stated above, armed opposition groups 
must respect international humanitarian law and they must operate under a "re- 
sponsible command." 83 As a result, it can be argued that armed opposition groups 
incur responsibility for acts committed by persons forming part of such groups. 
The consequences of such responsibility, however, are not clear. In particular, it is 

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Jean-Marie Henckaerts 



unclear to what extent armed opposition groups are under an obligation to make 
full reparation, even though in many countries victims can bring a civil suit for 
damages against the offenders. 

When it comes to individual responsibility, customary international humani- 
tarian law places criminal responsibility on all persons who commit, who order the 
commission of or who are otherwise responsible as commanders or superiors for 
the commission of war crimes. The implementation of the war crimes regime, that 
is, the investigation of war crimes and the prosecution of the suspects, is an obliga- 
tion incumbent upon States. States may discharge this obligation by setting up in- 
ternational or mixed tribunals to that effect. 

Conclusion 

The study did not attempt to determine the customary nature of each treaty rule of 
international humanitarian law but sought to analyse issues in order to establish 
what rules of customary international law can be found inductively on the basis of 
State practice in relation to these issues. A brief overview of some of the findings of 
the study nevertheless shows that the principles and rules contained in treaty law 
have received widespread acceptance in practice and have greatly influenced the 
formation of customary international law. Many of these principles and rules are 
now part of customary international law. As such, they are binding on all States 
regardless of ratification of treaties and also on armed opposition groups in case of 
rules applicable to all parties to a non-international armed conflict. 

The study also indicates that many rules of customary international law apply in 
both international and non-international armed conflicts and shows the extent to 
which State practice has gone beyond existing treaty law and expanded the rules 
applicable to non-international armed conflicts. The regulation of the conduct of 
hostilities and the treatment of persons in internal armed conflicts is thus more de- 
tailed and complete than that which exists under treaty law. It remains to be ex- 
plored to what extent, from a humanitarian and military perspective, this more 
detailed and complete regulation is sufficient or whether further developments in 
the law are required. 

As is the case for treaty law, effective implementation of the rules of customary 
international humanitarian law is required through dissemination, training and 
enforcement. These rules should be incorporated into military manuals and na- 
tional legislation, wherever this is not already the case. 

The study also reveals areas where the law is not clear and points to issues which 
require further clarification or agreement, such as the definition of civilians in 



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Customary International Humanitarian Law Study 

non-international armed conflicts, the concept of direct participation in hostilities 
and the scope and application of the principle of proportionality. 

In the light of the achievements to date and the work that remains to be done, 
the study should not be seen as the end but rather as the beginning of a new process 
aimed at improving understanding of and agreement on the principles and rules of 
international humanitarian law. In this process, the study can form the basis of a 
rich discussion and dialogue on the implementation, clarification and possible de- 
velopment of the law. 

Notes 

1 . International Conference for the Protection of War Victims, Geneva, Aug. 30-Sept. 1,1993, 
Final Declaration, 296 INTERNATIONAL REVIEW OF THE RED CROSS 381 ( 1993). 

2. Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, 
Geneva, Jan. 23-27, 1995, Recommendation 77, 310 INTERNATIONAL REVIEW OF THE RED CROSS 
84(1996). 

3. 26th International Conference of the Red Cross and Red Crescent, Geneva, Dec. 3-7, 1995, 
Resolution 1, International humanitarian law: From law to action; Report on the follow-up to 
the International Conference for the Protection of War Victims, 310 INTERNATIONAL REVIEW 
OF THE RED CROSS 58 (1996). 

4. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International 
HUMANITARIAN LAW (2005) (2 volumes: Volume I, Rules; Volume II, Practice (2 Parts)). 

5. Statute of the International Court of Justice, art. 38.1(b), June 26, 1945, 33 U.N.T.S. 993. 

6. Continental Shelf (Libya v. Malta), Judgment, 1985 I.C.J. 13, 29-30 (June 3). 

7. North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), Judgment, 1969 I.C.J. 3 (Feb. 
20). 

8. The importance of these conditions was stressed by the International Court of Justice. 
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 254-255 
(JulyS). 

9. Statute of the International Court of Justice, supra note 5, art. 38.1(b). 

10. The expression "dense" in this context comes from Sir Humphrey Waldock, General Course 
on Public International Law, in 106 COLLECTED COURSES OF THE HAGUE ACADEMY OF 
International Law 44 (1962). 

11. North Sea Continental Shelf, supra note 7, at 43. 

12. See Military and Paramilitary Activities (Nicar. v. U.S.), Merits, Judgment, 1986 I.C.J. 14, 98 
(June 27). 

13. International Law Association, Final Report of the Committee on the Formation of 
Customary (General) International Law, Statement of Principles Applicable to the Formation of 
General Customary International Law, Report of the Sixty-Ninth Conference 23 (Principal 14) 
(2000), available at http://www.ila-hq.org/pdf/CustomaryLaw.pdf [hereinafter ILA Report]. 

14. Id. at 25-26 (commentary (d) and (e) to Principle 14). 

15. North Sea Continental Shelf, supra note 7, at 43. 

16. ILA Report, supra note 13, at 26 (commentary (e) to Principle 14). 

17. See HENCKAERTS 8c DOSWALD-BECK, supra note 4, Vol. I, commentary to Rule 144. 



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Jean-Marie Henckaerts 



18. For an in-depth discussion of this issue, see Maurice H. Mendelson, The Formation of 
Customary International Law, in 272 COLLECTED COURSES OF THE HAGUE ACADEMY OF 
International Law 227-244 (1998). 

19. ILA Report, supra note 13, at 27 (commentary (b) to Principle 15). 

20. Id. at 20 (commentary (b) to Principle 12). 

21. Id. at 7 (para. 10(c)). For an in-depth analysis of this question, see Peter Haggenmacher, La 
doctrine des deux elements du droit coutumier dans la pratique de la Cour internationale, 90 REVUE 
GENERALE DE DROIT INTERNATIONAL PUBLIC 5 (1986). 

22. See, e.g., S.S. Lotus (Fr. v. Turk.), Judgment, P.C.I.J. Ser. A, No. 10, at 28 (Sept. 7) (the Court 
found that States had not abstained from prosecuting wrongful acts aboard ships because they 
felt prohibited from doing so); North Sea Continental Shelf, supra note 7, at 43-44 (the Court 
found that States that had delimited their continental shelf on the basis of the equidistance 
principle had not done so because they felt obliged to); ILA Report, supra note 13, at 36-38 
(Principle 17(iv) and commentary). 

23. North Sea Continental Shelf, supra note 7, at 42. 

24. Military and Paramilitary Activities, supra note 12, at 99-100. Another important factor in 
the decision of the Court was that relevant UN General Assembly resolutions had been widely 
approved, in particular Resolution 2625 (XXV) on friendly relations between States, which was 
adopted without a vote. 

25. Continental Shelf, supra note 6, at 33. (The Court considered that the concept of an 
exclusive economic zone had become part of customary international law, even though the 
United Nations Convention on the Law of the Sea had not yet entered into force, because the 
number of claims to an exclusive economic zone had risen to 56, which included several specially 
affected States.) 

26. Continental Shelf, supra note 6, at 29-30. 

27. North Sea Continental Shelf, supra note 7, at 42; see also ILA Report, supra note 1 3, at 43-54 
(Principles 20-21, 24, 26 and 27). 

28. The Steering Committee consisted of Professors Georges Abi-Saab, Salah El-Din Amer, Ove 
Bring, Eric David, John Dugard, Florentino Feliciano, Horst Fischer, Francoise Hampson, 
Theodor Meron, Djamchid Momtaz, Milan Sahovic and Raul Emilio Vinuesa. 

29. Africa: Algeria, Angola, Botswana, Egypt, Ethiopia, Nigeria, Rwanda, South Africa and 
Zimbabwe; Americas: Argentina, Brazil, Canada, Chile, Colombia, Cuba, El Salvador, 
Nicaragua, Peru, United States of America and Uruguay; Asia: China, India, Indonesia, Iran, 
Iraq, Israel, Japan, Jordan, Republic of Korea, Kuwait, Lebanon, Malaysia, Pakistan, Philippines 
and Syria; Australasia: Australia; Europe: Belgium, Bosnia and Herzegovina, Croatia, France, 
Germany, Italy, Netherlands, Russian Federation, Spain, United Kingdom and Yugoslavia. 

30. Principle of distinction: Professor Georges Abi-Saab (rapporteur) and Jean-Francois 
Queguiner (researcher); Specifically protected persons and objects: Professor Horst Fischer 
(rapporteur) and Gregor Schotten and Heike Spieker (researchers); Specific methods of warfare: 
Professor Theodor Meron (rapporteur) and Richard Desgagne (researcher); Weapons: 
Professor Ove Bring (rapporteur) and Gustaf Lind (researcher); Treatment of civilians and 
persons hors de combat: Francoise Hampson (rapporteur) and Camille Giffard (researcher); 
Implementation: Eric David (rapporteur) and Richard Desgagne (researcher). 

31. Africa: Angola, Burundi, Chad, Chad-Libya, Democratic Republic of the Congo, Djibouti, 
Eritrea-Yemen, Ethiopia (1973-1994), Liberia, Mozambique, Namibia, Nigeria-Cameroon, 
Rwanda, Senegal, Senegal-Mauritania, Sierra Leone, Somalia, Somalia-Ethiopia, Sudan, 
Uganda and Western Sahara; Americas: Guatemala and Mexico; Asia: Afghanistan, Cambodia, 
India (Jammu and Kashmir), Papua New Guinea, Sri Lanka, Tajikistan, Yemen and Yemen- 



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Customary International Humanitarian Law Study 



Eritrea (also under Africa); Europe: Armenia-Azerbaijan (Nagorno-Karabakh), Cyprus, 
Former Yugoslavia (conflict in Yugoslavia (1991-1992), conflict in Bosnia and Herzegovina 
(1992-1996), conflict in Croatia (Krajinas) (1992-1995)), Georgia (Abkhazia), Russian 
Federation (Chechnya) and Turkey. 

32. The following academic and governmental experts participated in their personal capacity in 
this consultation: Abdallah Ad-Douri (Iraq), Paul Berman (United Kingdom), Sadi (^aycy 
(Turkey), Michael Cowling (South Africa), Edward Cummings (United States of America), 
Antonio de Icaza (Mexico), Yoram Dinstein (Israel), Jean-Michel Favre (France), William 
Fenrick (Canada), Dieter Fleck (Germany), Juan Carlos Gomez Ramirez (Colombia), Jamshed 
A. Hamid (Pakistan), Arturo Hernandez-Basave (Mexico), Ibrahim Idriss (Ethiopia), Hassan 
Kassem Jouni (Lebanon), Kenneth Keith (New Zealand), Githu Muigai (Kenya), Rein 
Mullerson (Estonia), Bara Niang (Senegal), Mohamed Olwan (Jordan), Raul C. Pangalangan 
(Philippines), Stelios Perrakis (Greece), Paulo Sergio Pinheiro (Brazil), Arpad Prandler 
(Hungary), Pemmaraju Sreenivasa Rao (India), Camilo Reyes Rodriguez (Colombia), Itse E. 
Sagay (Nigeria), Harold Sandoval (Colombia), Somboon Sangianbut (Thailand), Marat A. 
Sarsembayev (Kazakhstan), Muhammad Aziz Shukri (Syria), Parlaungan Sihombing 
(Indonesia), Geoffrey James Skillen (Australia), Guoshun Sun (China), Bakhtyar 
Tuzmukhamedov (Russia) and Karol Wolfke (Poland). 

33. Legality of the Threat or Use of Nuclear Weapons, supra note 8, at 257-258 (with respect to 
the Geneva Conventions) and Military and Paramilitary Activities, supra note 12, at 114 (with 
respect to common Article 3). 

34. See HENCKAERTS & DOSWALD-BECK, supra note 4, Vol. I, Rules 1 and 7. 

35. See id., Rules 11-13. 

36. See id., Rule 14. 

37. See id., Rules 15-24. 

38. See id., Rules 25 and 27-30. 

39. See id., Rules 31-32. 

40. See id., Rule 34. 

41. See id., Rule 26. 

42. See id., Rules 36-37. 

43. See id., Rules 46-48. 

44. See id., Rule 53. 

45. See id., Rule 54. 

46. See id., Rules 57-65. 

47. See id., Rules 87-105. 

48. See id., Rule 117. 

49. See id., Rules 134-137. 

50. See id., Rule 1. 

51. See id., Rules 25 and 27-30. 

52. See id., Rule 26. 

53. See id., Rule 53. 

54. See id., Rule 54. 

55. See id., Rules 87-105. 

56. See id., Rules 109-1 11. 

57. See id., Rules 112-113. 

58. See id., Rules 118-119, 121 and 125. 

59. See id., Rule 129. 

60. See id., Rules 134-137. 



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61. See, e.g., id., Rules 7-10 (distinction between civilian objects and military objectives), Rules 
11-13 (indiscriminate attacks), Rule 14 (proportionality in attack), Rules 15-21 (precautions in 
attack); Rules 22-24 (precautions against the effects of attack); Rules 31-32 (humanitarian relief 
personnel and objects); Rule 34 (civilian journalists); Rules 35-37 (protected zones); Rules 46- 
48 (denial of quarter); Rules 55-56 (access to humanitarian relief) and Rules 57-65 (deception). 

62. See Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Relating to 
the Protection of Victims of International Armed Conflicts, art. 70(1), June 8, 1977, 1125 
U.N.T.S. 3 [hereinafter Additional Protocol I] and Protocol Additional (II) to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International 
Armed Conflicts, art. 18(2), June 8, 1977, art. 18(2), 1125 U.N.T.S. 609, [hereinafter Additional 
Protocol II], reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff 
eds., 3d ed. 2000) at 422 and 483, respectively. 

63. See COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA 
CONVENTIONS OF 12 AUGUST 1949, at para. 4885 (Yves Sandoz, Christophe Swinarski, Bruno 
Zimmermann eds., 1987); see also para. 2805. 

64. See HENCKAERTS & DOSWALD-BECK, supra note 4, Vol. I, Rule 3 (combatants), Rule 4 
(armed forces) and Rule 5 (civilians and civilian population). 

65. Additional Protocol II, supra note 62, arts. 13-15, 17-18. 

66. See, e.g., Amended Protocol II to the Convention on Certain Conventional Weapons, art. 
3(7)— (11), May 3, 1996, 35 INTERNATIONAL LEGAL MATERIALS 1206; Protocol III to the 
Convention on Certain Conventional Weapons, art. 2, Oct. 10, 1980, 1342 U.N.T.S. 137; Ottawa 
Convention on the Prohibition of Anti-personnel Mines, preamble, Sept. 18, 1997, 36 
International Legal Materials 1507; Statute of the International Criminal Court, supra 
note 5, art. 8(2)(e)(i), (iii) and (viii). 

67. See, e.g., Direct Participation in Hostilities under International Humanitarian Law, Report 
prepared by the International Committee of the Red Cross (Sept. 2003), available at 
www.icrc.org. 

68. Additional Protocol I, supra note 62, art. 56(1) (followed, however, by exceptions in 
paragraph 2) and Additional Protocol II, supra note 62, art. 15 (with no exceptions). 

69. See HENCKAERTS & DOSWALD-BECK, supra note 4, Vol. I, Rule 45. 

70. Legality of the Threat or Use of Nuclear Weapons, supra note 8, para. 30. 

71. See HENCKAERTS & DOSWALD-BECK, supra note 4, Vol. I, Rule 44. 

72. See id., Rule 33. 

73. International Military Tribunal at Nuremberg, Case of the Major War Criminals, 
Judgment, Oct. 1, 1946, Official Documents, Vol. I, pp. 253-254. 

74. See Statute of the International Criminal Court, supra note 5, art. 8(2)(b)(xvi) and (e)(v) 
(Elements of Crimes for the International Criminal Court, Pillage as a war crime). 

75. See HENCKAERTS & DOSWALD-BECK, supra note 4, Vol. I, Rules 67-69. 

76. This rule incorporates a reference to a number of other rules of customary international law, 
namely the prohibition of biological and chemical weapons; the prohibition of attacks against 
vegetation that is not a military objective; the prohibition of attacks that would cause incidental 
loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which 
may be expected to be excessive in relation to the concrete and direct military advantage 
anticipated; and the prohibition on causing widespread, long-term and severe damage to the 
natural environment. See id., Rule 76. 

77. Legality of the Threat or Use of Nuclear Weapons, supra note 8, at 226. 

78. Id.; see also United Nations General Assembly, 5 1 st session, First Committee, Statement by 
the International Committee of the Red Cross, UN Doc. A/C. 1/5 1/PV.8, 18 October 1996, p. 10, 



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Customary International Humanitarian Law Study 

reprinted in 316 INTERNATIONAL REVIEW OF THE RED CROSS 1 18-1 19 (1997) ("the ICRC finds it 
difficult to envisage how a use of nuclear weapons could be compatible with the rules of 
international law"). 

79. These rules include the fundamental guarantees that civilians and persons hors de combat be 
treated humanely and without adverse distinction; the prohibition of murder; the prohibition of 
torture, cruel or inhuman treatment and outrages upon personal dignity, in particular 
humiliating and degrading treatment; the prohibition of corporal punishment; the prohibition 
of mutilation, medical or scientific experiments; the prohibition of rape and other forms of 
sexual violence; the prohibition of slavery and the slave trade in all their forms; the prohibition of 
hostage-taking; the prohibition of the use of human shields; fair trial guarantees; the prohibition 
of collective punishments; and the requirement to respect the convictions and religious practices 
of civilians and persons hors de combat. See HENCKAERTS & DOSWALD-BECK, supra note 4, Vol. I, 
Rules 87-94, 96-97 and 100-104. 

80. See id., Rules 95, 98-99 and 105. 

81. See id., Introduction to Chapter 32, Fundamental Guarantees. 

82. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 
Advisory Opinion, (July 9, 2004), 43 INTERNATIONAL LEGAL MATERIALS 1009, para. 106 at 1038, 
available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm. 

83. Additional Protocol II, supra note 62, art. 1(1). 



62 



Annex 



List of Customary Rules of International Humanitarian Law 

Note. This list is based on the conclusions set out in Volume I of the study on cus- 
tomary international humanitarian law. As the study did not seek to determine the 
customary nature of each treaty rule of international humanitarian law, it does not 
necessarily follow the structure of existing treaties. The scope of application of the 
rules is indicated in square brackets. The abbreviation IAC refers to customary 
rules applicable in international armed conflicts and the abbreviation NIAC to cus- 
tomary rules applicable in non-international armed conflicts. In the latter case, 
some rules are indicated as being "arguably" applicable because practice generally 
pointed in that direction but was less extensive. 

The Principle of Distinction 

Distinction between Civilians and Combatants 

Rule 1. The parties to the conflict must at all times distinguish between civilians 
and combatants. Attacks may only be directed against combatants. Attacks must 
not be directed against civilians. [IAC/NIAC] 

Rule 2. Acts or threats of violence the primary purpose of which is to spread terror 
among the civilian population are prohibited. [IAC/NIAC] 

Rule 3. All members of the armed forces of a party to the conflict are combatants, 
except medical and religious personnel. [IAC] 

Rule 4. The armed forces of a party to the conflict consist of all organized armed 
forces, groups and units which are under a command responsible to that party for 
the conduct of its subordinates. [IAC] 

Rule 5. Civilians are persons who are not members of the armed forces. The civilian 
population comprises all persons who are civilians. [IAC/NIAC] 

Rule 6. Civilians are protected against attack, unless and for such time as they take a 
direct part in hostilities. [IAC/NIAC] 



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Distinction between Civilian Objects and Military Objectives 

Rule 7. The parties to the conflict must at all times distinguish between civilian ob- 
jects and military objectives. Attacks may only be directed against military objec- 
tives. Attacks must not be directed against civilian objects. [IAC/NIAC] 

Rule 8. 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 contribu- 
tion to military action and whose partial or total destruction, capture or neutraliza- 
tion, in the circumstances ruling at the time, offers a definite military advantage. 

[IAC/NIAC] 

Rule 9. Civilian objects are all objects that are not military objectives. [IAC/NIAC] 

Rule 10. Civilian objects are protected against attack, unless and for such time as 
they are military objectives. [IAC/NIAC] 

Indiscriminate Attacks 

Rule 11. Indiscriminate attacks are prohibited. [IAC/NIAC] 

Rule 12. Indiscriminate attacks are those: 

(a) which are not directed at a specific military objective; 

(b) which employ a method or means of combat which cannot be directed at 
a specific military objective; or 

(c) which employ a method or means of combat the effects of which cannot 
be limited as required by international humanitarian law; 

and consequently, in each such case, are of a nature to strike military objectives and 
civilians or civilian objects without distinction. [IAC/NIAC] 

Rule 13. Attacks by bombardment by any method or means which treats as a single 
military objective a number of clearly separated and distinct military objectives lo- 
cated in a city, town, village or other area containing a similar concentration of ci- 
vilians or civilian objects are prohibited. [IAC/NIAC] 

Proportionality in Attack 

Rule 14. Launching an attack which may be expected to cause incidental loss of ci- 
vilian 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 prohibited. [IAC/NIAC] 

Precautions in Attack 

Rule 15. In the conduct of military operations, constant care must be taken to spare 
the civilian population, civilians and civilian objects. All feasible precautions must 

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be taken to avoid, and in any event to minimize, incidental loss of civilian life, in- 
jury to civilians and damage to civilian objects. [IAC/NIAC] 

Rule 16. Each party to the conflict must do everything feasible to verify that targets 
are military objectives. [IAC/NIAC] 

Rule 1 7. Each party to the conflict must take all feasible precautions in the choice of 
means and methods of warfare with a view to avoiding, and in any event to mini- 
mizing, incidental loss of civilian life, injury to civilians and damage to civilian ob- 
jects. [IAC/NIAC] 

Rule 18. Each party to the conflict must do everything feasible to assess whether 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. [IAC/NIAC] 

Rule 19. Each party to the conflict must do everything feasible to cancel or suspend 
an attack if it becomes apparent that the target is not a military objective 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. [IAC/NIAC] 

Rule 20. Each party to the conflict must give effective advance warning of attacks 
which may affect the civilian population, unless circumstances do not permit. 

[IAC/NIAC] 

Rule 21. When a choice is possible between several military objectives for obtaining 
a similar military advantage, the objective to be selected must be that the attack on 
which may be expected to cause the least danger to civilian lives and to civilian ob- 
jects. [IAC/arguablyNIAC] 

Precautions against the Effects of Attacks 

Rule 22. The parties to the conflict must take all feasible precautions to protect the 
civilian population and civilian objects under their control against the effects of at- 
tacks. [IAC/NIAC] 

Rule 23. Each party to the conflict must, to the extent feasible, avoid locating mili- 
tary objectives within or near densely populated areas. [IAC/arguably NIAC] 

Rule 24. Each party to the conflict must, to the extent feasible, remove civilian per- 
sons and objects under its control from the vicinity of military objectives. [IAC/ar- 
guably NIAC] 



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Customary International Humanitarian Law Study 

Specifically Protected Persons And Objects 

Medical and Religious Personnel and Objects 

Rule 25. Medical personnel exclusively assigned to medical duties must be re- 
spected and protected in all circumstances. They lose their protection if they com- 
mit, outside their humanitarian function, acts harmful to the enemy. [IAC/NIAC] 

Rule 26. Punishing a person for performing medical duties compatible with medi- 
cal ethics or compelling a person engaged in medical activities to perform acts con- 
trary to medical ethics is prohibited. [IAC/NIAC] 

Rule 27. Religious personnel exclusively assigned to religious duties must be re- 
spected and protected in all circumstances. They lose their protection if they com- 
mit, outside their humanitarian function, acts harmful to the enemy. [IAC/NIAC] 

Rule 28. Medical units exclusively assigned to medical purposes must be respected 
and protected in all circumstances. They lose their protection if they are being 
used, outside their humanitarian function, to commit acts harmful to the enemy. 

[IAC/NIAC] 

Rule 29. Medical transports assigned exclusively to medical transportation must be 
respected and protected in all circumstances. They lose their protection if they are 
being used, outside their humanitarian function, to commit acts harmful to the en- 
emy. [IAC/NIAC] 

Rule 30. Attacks directed against medical and religious personnel and objects dis- 
playing the distinctive emblems of the Geneva Conventions in conformity with in- 
ternational law are prohibited. [IAC/NIAC] 

Humanitarian Relief Personnel and Objects 

Rule 31. Humanitarian relief personnel must be respected and protected. [I AC/ 

NIAC] 

Rule 32. Objects used for humanitarian relief operations must be respected and 
protected. [IAC/NIAC] 

Personnel and Objects Involved in a Peacekeeping Mission 

Rule 33. Directing an attack against personnel and objects involved in a peacekeep- 
ing mission in accordance with the Charter of the United Nations, as long as they 
are entitled to the protection given to civilians and civilian objects under interna- 
tional humanitarian law, is prohibited. [IAC/NIAC] 



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Journalists 

Rule 34. Civilian journalists engaged in professional missions in areas of armed 
conflict must be respected and protected as long as they are not taking a direct part 
in hostilities. [IAC/NIAC] 

Protected Zones 

Rule 35. Directing an attack against a zone established to shelter the wounded, the 

sick and civilians from the effects of hostilities is prohibited. [IAC/NIAC] 

Rule 36. Directing an attack against a demilitarized zone agreed upon between the 
parties to the conflict is prohibited. [IAC/NIAC] 

Rule 37. Directing an attack against a non-defended locality is prohibited. [LAC/ 
MAC] 

Cultural Property 

Rule 38. Each party to the conflict must respect cultural property: 

A. Special care must be taken in military operations to avoid damage to 
buildings dedicated to religion, art, science, education or charitable purposes 
and historic monuments unless they are military objectives. 

B. Property of great importance to the cultural heritage of every people must 
not be the object of attack unless imperatively required by military necessity. 

[IAC/NIAC] 

Rule 39. The use of property of great importance to the cultural heritage of every 
people for purposes which are likely to expose it to destruction or damage is pro- 
hibited, unless imperatively required by military necessity. [IAC/NIAC] 

Rule 40. Each party to the conflict must protect cultural property: 

A. All seizure of or destruction or willful damage done to institutions 
dedicated to religion, charity, education, the arts and sciences, historic 
monuments and works of art and science is prohibited. 

B. Any form of theft, pillage or misappropriation of, and any acts of 
vandalism directed against, property of great importance to the cultural 
heritage of every people is prohibited. 

[IAC/NIAC] 

Rule 41. The occupying power must prevent the illicit export of cultural property 
from occupied territory and must return illicitly exported property to the compe- 
tent authorities of the occupied territory. [IAC] 



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Customary International Humanitarian Law Study 

Works and Installations Containing Dangerous Forces 

Rule 42. Particular care must be taken if works and installations containing dan- 
gerous forces, namely dams, dykes and nuclear electrical generating stations, and 
other installations located at or in their vicinity are attacked, in order to avoid the 
release of dangerous forces and consequent severe losses among the civilian popu- 
lation. [IAC/NIAC] 

The Natural Environment 

Rule 43. The general principles on the conduct of hostilities apply to the natural 

environment: 

A. No part of the natural environment may be attacked, unless it is a military 
objective. 

B. Destruction of any part of the natural environment is prohibited, unless 
required by imperative military necessity. 

C. Launching an attack against a military objective which may be expected 
to cause incidental damage to the environment which would be excessive in 
relation to the concrete and direct military advantage anticipated is prohibited. 

[IAC/NIAC] 

Rule 44. Methods and means of warfare must be employed with due regard to the 
protection and preservation of the natural environment. In the conduct of military 
operations, all feasible precautions must be taken to avoid, and in any event to 
minimize, incidental damage to the environment. Lack of scientific certainty as to 
the effects on the environment of certain military operations does not absolve a 
party to the conflict from taking such precautions. [IAC/arguably NIAC] 

Rule 45. The use of methods or means of warfare that are intended, or may be ex- 
pected, to cause widespread, long-term and severe damage to the natural environ- 
ment is prohibited. Destruction of the natural environment may not be used as a 
weapon. [IAC/arguably NIAC] 

Specific Methods Of Warfare 

Denial of Quarter 

Rule 46. Ordering that no quarter will be given, threatening an adversary therewith 
or conducting hostilities on this basis is prohibited. [IAC/NIAC] 

Rule 47. Attacking persons who are recognized as hors de combat is prohibited. A 
person hors de combat is: 

(a) anyone who is in the power of an adverse party; 



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(b) anyone who is defenseless because of unconsciousness, shipwreck, 
wounds or sickness; or 

(c) anyone who clearly expresses an intention to surrender; 

provided he or she abstains from any hostile act and does not attempt to escape. 
[IAC/NIAC] 

Rule 48. Making persons parachuting from an aircraft in distress the object of at- 
tack during their descent is prohibited. [IAC/NIAC] 

Destruction and Seizure of Property 

Rule 49. The parties to the conflict may seize military equipment belonging to an 
adverse party as war booty. [IAC] 

Rule 50. The destruction or seizure of the property of an adversary is prohibited, 
unless required by imperative military necessity. [IAC/NIAC] 

Rule 51. In occupied territory: 

(a) movable public property that can be used for military operations may be 
confiscated; 

(b) immovable public property must be administered according to the rule 
of usufruct; and 

(c) private property must be respected and may not be confiscated; 

except where destruction or seizure of such property is required by imperative mil- 
itary necessity. [IAC] 

Rule 52. Pillage is prohibited. [IAC/NIAC] 

Starvation and Access to Humanitarian Relief 

Rule 53. The use of starvation of the civilian population as a method of warfare is 
prohibited. [IAC/NIAC] 

Rule 54. Attacking, destroying, removing or rendering useless objects indispens- 
able to the survival of the civilian population is prohibited. [IAC/NIAC] 

Rule 55. The parties to the conflict must allow and facilitate rapid and unimpeded 
passage of humanitarian relief for civilians in need, which is impartial in character 
and conducted without any adverse distinction, subject to their right of control. 

[IAC/NIAC] 

Rule 56. The parties to the conflict must ensure the freedom of movement of au- 
thorized humanitarian relief personnel essential to the exercise of their functions. 
Only in case of imperative military necessity may their movements be temporarily 
restricted. [IAC/NIAC] 

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Customary International Humanitarian Law Study 

Deception 

Rule 57. Ruses of war are not prohibited as long as they do not infringe a rule of in- 
ternational humanitarian law. [IAC/NIAC] 

Rule 58. The improper use of the white flag of truce is prohibited. [IAC/NIAC] 

Rule 59. The improper use of the distinctive emblems of the Geneva Conventions 
is prohibited. [IAC/NIAC] 

Rule 60. The use of the United Nations emblem and uniform is prohibited, except 
as authorized by the organization. [IAC/NIAC] 

Rule 61. The improper use of other internationally recognized emblems is prohib- 
ited. [IAC/NIAC] 

Rule 62. Improper use of the flags or military emblems, insignia or uniforms of the 
adversary is prohibited. [IAC/arguably NIAC] 

Rule 63. Use of the flags or military emblems, insignia or uniforms of neutral or 
other States not party to the conflict is prohibited. [IAC/arguably NIAC] 

Rule 64. Concluding an agreement to suspend combat with the intention of attack- 
ing by surprise the enemy relying on that agreement is prohibited. [IAC/NIAC] 

Rule 65. Killing, injuring or capturing an adversary by resort to perfidy is prohib- 
ited. [IAC/NIAC] 

Communication with the Enemy 

Rule 66. Commanders may enter into non-hostile contact through any means of 
communication. Such contact must be based on good faith. [IAC/NIAC] 

Rule 67. Parlementaires are inviolable. [IAC/NIAC] 

Rule 68. Commanders may take the necessary precautions to prevent the presence 
of a parlementaire from being prejudicial. [IAC/NIAC] 

Rule 69. Parlementaires taking advantage of their privileged position to commit an 
act contrary to international law and detrimental to the adversary lose their invio- 
lability. [IAC/NIAC] 

Weapons 

General Principles on the Use of Weapons 

Rule 70. The use of means and methods of warfare which are of a nature to cause 
superfluous injury or unnecessary suffering is prohibited. [IAC/NIAC] 

Rule 71. The use of weapons which are by nature indiscriminate is prohibited. 

[IAC/NIAC] 



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Poison 

Rule 72. The use of poison or poisoned weapons is prohibited. [IAC/NIAC] 

Biological Weapons 

Rule 73. The use of biological weapons is prohibited. [IAC/NIAC] 

Chemical Weapons 

Rule 74. The use of chemical weapons is prohibited. [IAC/NIAC] 

Rule 75. The use of riot-control agents as a method of warfare is prohibited. [IAC/ 

NIAC] 

Rule 76. The use of herbicides as a method of warfare is prohibited if they: 

a) are of a nature to be prohibited chemical weapons; 

b) are of a nature to be prohibited biological weapons; 

c) are aimed at vegetation that is not a military objective; 

d) would cause incidental loss of civilian life, injury to civilians, damage to 
civilian objects, or a combination thereof, which may be expected to be 
excessive in relation to the concrete and direct military advantage anticipated; 
or 

e) would cause widespread, long-term and severe damage to the natural 
environment. 

[IAC/NIAC] 

Expanding Bullets 

Rule 77. The use of bullets which expand or flatten easily in the human body is pro- 
hibited. [IAC/NIAC] 

Exploding Bullets 

Rule 78. The anti-personnel use of bullets which explode within the human body is 

prohibited. [IAC/NIAC] 

Weapons Primarily Injuring by Non-detectable Fragments 

Rule 79. The use of weapons the primary effect of which is to injure by fragments 

which are not detectable by X-rays in the human body is prohibited. [IAC/NIAC] 



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Customary International Humanitarian Law Study 

Booby-traps 

Rule 80. The use of booby-traps which are in anyway attached to or associated with 
objects or persons entitled to special protection under international humanitarian 
law or with objects that are likely to attract civilians is prohibited. [IAC/NIAC] 

Landmines 

Rule 81 . When landmines are used, particular care must be taken to minimize their 

indiscriminate effects. [IAC/NIAC] 

Rule 82. A party to the conflict using landmines must record their placement, as far 
as possible. [IAC/arguably NIAC] 

Rule 83. At the end of active hostilities, a party to the conflict which has used land- 
mines must remove or otherwise render them harmless to civilians, or facilitate 
their removal. [IAC/NIAC] 

Incendiary Weapons 

Rule 84. If incendiary weapons are used, particular care must be taken to avoid, 
and in any event to minimize, incidental loss of civilian life, injury to civilians and 
damage to civilian objects. [IAC/NIAC] 

Rule 85. The anti-personnel use of incendiary weapons is prohibited, unless it is 
not feasible to use a less harmful weapon to render a person hors de combat. [I AC/ 

NIAC] 

Blinding Laser Weapons 

Rule 86. The use of laser weapons that are specifically designed, as their sole com- 
bat function or as one of their combat functions, to cause permanent blindness to 
unenhanced vision is prohibited. [IAC/NIAC] 

Treatment of Civilians and Persons Hors de Combat 

Fundamental Guarantees 

Rule 87. Civilians and persons hors de combat must be treated humanely. [IAC/ 

NIAC] 

Rule 88. Adverse distinction in the application of international humanitarian law 
based on race, color, sex, language, religion or belief, political or other opinion, na- 
tional or social origin, wealth, birth or other status, or on any other similar criteria 
is prohibited. [IAC/NIAC] 

Rule 89. Murder is prohibited. [IAC/NIAC] 



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Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, 
in particular humiliating and degrading treatment, are prohibited. [IAC/NIAC] 

Rule 91. Corporal punishment is prohibited. [IAC/NIAC] 

Rule 92. Mutilation, medical or scientific experiments or any other medical proce- 
dure not indicated by the state of health of the person concerned and not consis- 
tent with generally accepted medical standards are prohibited. [IAC/NIAC] 

Rule 93. Rape and other forms of sexual violence are prohibited. [IAC/NIAC] 

Rule 94. Slavery and the slave trade in all their forms are prohibited. [IAC/NIAC] 

Rule 95. Uncompensated or abusive forced labor is prohibited. [IAC/NIAC] 

Rule 96. The taking of hostages is prohibited. [IAC/NIAC] 

Rule 97. The use of human shields is prohibited. [IAC/NIAC] 

Rule 98. Enforced disappearance is prohibited. [IAC/NIAC] 

Rule 99. Arbitrary deprivation of liberty is prohibited. [IAC/NIAC] 

Rule 100. No one may be convicted or sentenced, except pursuant to a fair trial af- 
fording all essential judicial guarantees. [IAC/NIAC] 

Rule 101. No one maybe accused or convicted of a criminal offence on account of 
any act or omission which did not constitute a criminal offence under national or 
international law at the time it was committed; nor may a heavier penalty be im- 
posed than that which was applicable at the time the criminal offence was commit- 
ted. [IAC/NIAC] 

Rule 102. No one may be convicted of an offence except on the basis of individual 
criminal responsibility. [IAC/NIAC] 

Rule 103. Collective punishments are prohibited. [IAC/NIAC] 

Rule 104. The convictions and religious practices of civilians and persons hors de 
combat must be respected. [IAC/NIAC] 

Rule 105. Family life must be respected as far as possible. [IAC/NIAC] 

Combatants and Prisoner-of-War Status 

Rule 106. Combatants must distinguish themselves from the civilian population 
while they are engaged in an attack or in a military operation preparatory to an at- 
tack. If they fail to do so, they do not have the right to prisoner-of-war status. [IAC] 

Rule 107. Combatants who are captured while engaged in espionage do not have 
the right to prisoner-of-war status. They may not be convicted or sentenced with- 
out previous trial. [IAC] 



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Customary International Humanitarian Law Study 

Rule 108. Mercenaries, as defined in Additional Protocol I, do not have the right to 
combatant or prisoner-of-war status. They may not be convicted or sentenced 
without previous trial. [IAC] 

The Wounded, Sick and Shipwrecked 

Rule 109. Whenever circumstances permit, and particularly after an engagement, 
each party to the conflict must, without delay, take all possible measures to search 
for, collect and evacuate the wounded, sick and shipwrecked without adverse dis- 
tinction. [IAC/NIAC] 

Rule 110. The wounded, sick and shipwrecked must receive, to the fullest extent 
practicable and with the least possible delay, the medical care and attention re- 
quired by their condition. No distinction may be made among them founded on 
any grounds other than medical ones. [IAC/NIAC] 

Rule 111. Each party to the conflict must take all possible measures to protect the 
wounded, sick and shipwrecked against ill-treatment and against pillage of their 
personal property. [IAC/NIAC] 

The Dead 

Rule 112. Whenever circumstances permit, and particularly after an engagement, 
each party to the conflict must, without delay, take all possible measures to search 
for, collect and evacuate the dead without adverse distinction. [IAC/NIAC] 

Rule 113. Each party to the conflict must take all possible measures to prevent the 
dead from being despoiled. Mutilation of dead bodies is prohibited. [IAC/NIAC] 

Rule 114. Parties to the conflict must endeavour to facilitate the return of the re- 
mains of the deceased upon request of the party to which they belong or upon the 
request of their next of kin. They must return their personal effects to them. [IAC] 

Rule 115. The dead must be disposed of in a respectful manner and their graves re- 
spected and properly maintained. [IAC/NIAC] 

Rule 116. With a view to the identification of the dead, each party to the conflict 
must record all available information prior to disposal and mark the location of the 
graves. [IAC/NIAC] 

Missing Persons 

Rule 117. Each party to the conflict must take all feasible measures to account for 
persons reported missing as a result of armed conflict and must provide their fam- 
ily members with any information it has on their fate. [IAC/NIAC] 



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Persons Deprived of their Liberty 

Rule 118. Persons deprived of their liberty must be provided with adequate food, 

water, clothing, shelter and medical attention. [IAC/NIAC] 

Rule 119. Women who are deprived of their liberty must be held in quarters sepa- 
rate from those of men, except where families are accommodated as family units, 
and must be under the immediate supervision of women. [IAC/NIAC] 

Rule 120. Children who are deprived of their liberty must be held in quarters sepa- 
rate from those of adults, except where families are accommodated as family units. 

[IAC/NIAC] 

Rule 121. Persons deprived of their liberty must be held in premises which are re- 
moved from the combat zone and which safeguard their health and hygiene. [I AC/ 

NIAC] 

Rule 122. Pillage of the personal belongings of persons deprived of their liberty is 
prohibited. [IAC/NIAC] 

Rule 123. The personal details of persons deprived of their liberty must be re- 
corded. [IAC/NIAC] 

Rule 124. 

A. In international armed conflicts, the ICRC must be granted regular access 
to all persons deprived of their liberty in order to verify the conditions of their 
detention and to restore contacts between those persons and their families. 

B. In non-international armed conflicts, the ICRC may offer its services to 
the parties to the conflict with a view to visiting all persons deprived of their 
liberty for reasons related to the conflict in order to verify the conditions of 
their detention and to restore contacts between those persons and their 
families. 

[IAC(A)/NIAC(B)] 

Rule 125. Persons deprived of their liberty must be allowed to correspond with 
their families, subject to reasonable conditions relating to frequency and the need 
for censorship by the authorities. [IAC/NIAC] 

Rule 126. Civilian internees and persons deprived of their liberty in connection 
with a non-international armed conflict must be allowed to receive visitors, espe- 
cially near relatives, to the degree practicable. [IAC/NIAC] 

Rule 127. The personal convictions and religious practices of persons deprived of 
their liberty must be respected. [IAC/NIAC] 



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Customary International Humanitarian Law Study 

Rule 128. 

A. Prisoners of war must be released and repatriated without delay after the 
cessation of active hostilities. 

B. Civilian internees must be released as soon as the reasons which 
necessitated internment no longer exist, but at the latest as soon as possible 
after the close of active hostilities. 

C. Persons deprived of their liberty in relation to a non-international armed 
conflict must be released as soon as the reasons for the deprivation of their 
liberty cease to exist. 

The persons referred to may continue to be deprived of their liberty if penal pro- 
ceedings are pending against them or if they are serving a sentence lawfully im- 
posed. [IAC (A&B)/NIAC (C)] 

Displacement and Displaced Persons 
Rule 129. 

A. Parties to an international armed conflict may not deport or forcibly 
transfer the civilian population of an occupied territory, in whole or in part, 
unless the security of the civilians involved or imperative military reasons so 
demand. 

B. Parties to a non-international armed conflict may not order the 
displacement of the civilian population, in whole or in part, for reasons related 
to the conflict, unless the security of the civilians involved or imperative 
military reasons so demand. 

[IAC (A)/NIAC (B)] 

Rule 130. States may not deport or transfer parts of their own civilian population 
into a territory they occupy. [IAC] 

Rule 131. In case of displacement, all possible measures must be taken in order that 
the civilians concerned are received under satisfactory conditions of shelter, hy- 
giene, health, safety and nutrition and that members of the same family are not 
separated. [IAC/NIAC] 

Rule 132. Displaced persons have a right to voluntary return in safety to their 
homes or places of habitual residence as soon as the reasons for their displacement 
cease to exist. [IAC/NIAC] 

Rule 133. The property rights of displaced persons must be respected. [IAC/NIAC] 



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Other Persons Afforded Specific Protection 

Rule 134. The specific protection, health and assistance needs of women affected 
by armed conflict must be respected. [IAC/NIAC] 

Rule 135. Children affected by armed conflict are entitled to special respect and 
protection. [IAC/NIAC] 

Rule 136. Children must not be recruited into armed forces or armed groups. 

[IAC/NIAC] 

Rule 137. Children must not be allowed to take part in hostilities. [IAC/NIAC] 

Rule 138. The elderly, disabled and infirm affected by armed conflict are entitled to 
special respect and protection. [IAC/NIAC] 

Implementation 

Compliance with International Humanitarian Law 

Rule 139. Each party to the conflict must respect and ensure respect for interna- 
tional humanitarian law by its armed forces and other persons or groups acting in 
fact on its instructions, or under its direction or control. [IAC/NIAC] 

Rule 140. The obligation to respect and ensure respect for international humani- 
tarian law does not depend on reciprocity. [IAC/NIAC] 

Rule 141. Each State must make legal advisers available, when necessary, to advise 
military commanders at the appropriate level on the application of international 
humanitarian law. [IAC/NIAC] 

Rule 142. States and parties to the conflict must provide instruction in interna- 
tional humanitarian law to their armed forces. [IAC/NIAC] 

Rule 143. States must encourage the teaching of international humanitarian law to 
the civilian population. [IAC/NIAC] 

Enforcement of International Humanitarian Law 

Rule 144. States may not encourage violations of international humanitarian law 
by parties to an armed conflict. They must exert their influence, to the degree pos- 
sible, to stop violations of international humanitarian law. [IAC/NIAC] 

Rule 145. Where not prohibited by international law, belligerent reprisals are sub- 
ject to stringent conditions. [IAC] 

Rule 146. Belligerent reprisals against persons protected by the Geneva Conven- 
tions are prohibited. [IAC] 



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Customary International Humanitarian Law Study 

Rule 147. Reprisals against objects protected under the Geneva Conventions and 
Hague Convention for the Protection of Cultural Property are prohibited. [IAC] 

Rule 148. Parties to non-international armed conflicts do not have the right to re- 
sort to belligerent reprisals. Other countermeasures against persons who do not or 
who have ceased to take a direct part in hostilities are prohibited. [NIAC] 

Responsibility and Reparation 

Rule 149. A State is responsible for violations of international humanitarian law at- 
tributable to it, including: 

(a) violations committed by its organs, including its armed forces; 

(b) violations committed by persons or entities it empowered to exercise 
elements of governmental authority; 

(c) violations committed by persons or groups acting in fact on its 
instructions, or under its direction or control; and 

(d) violations committed by private persons or groups which it 
acknowledges and adopts as its own conduct. 

[IAC/NIAC] 

Rule 150. A State responsible for violations of international humanitarian law is re- 
quired to make full reparation for the loss or injury caused. [IAC/NIAC] 

Individual Responsibility 

Rule 151. Individuals are criminally responsible for war crimes they commit. [IAC/ 

NIAC] 

Rule 152. Commanders and other superiors are criminally responsible for war 
crimes committed pursuant to their orders. [IAC/NIAC] 

Rule 153. Commanders and other superiors are criminally responsible for war 
crimes committed by their subordinates if they knew, or had reason to know, that 
the subordinates were about to commit or were committing such crimes and did 
not take all necessary and reasonable measures in their power to prevent their com- 
mission, or if such crimes had been committed, to punish the persons responsible. 
[IAC/NIAC] 

Rule 154. Every combatant has a duty to disobey a manifestly unlawful order. 

[IAC/NIAC] 

Rule 155. Obeying a superior order does not relieve a subordinate of criminal re- 
sponsibility if the subordinate knew that the act ordered was unlawful or should 



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have known because of the manifestly unlawful nature of the act ordered. [I AC/ 

NIAC] 

War Crimes 

Rule 156. Serious violations of international humanitarian law constitute war 

crimes. [IAC/NIAC] 

Rule 157. States have the right to vest universal jurisdiction in their national courts 
over war crimes. [IAC/NIAC] 

Rule 158. States must investigate war crimes allegedly committed by their nationals 
or armed forces, or on their territory, and, if appropriate, prosecute the suspects. 
They must also investigate other war crimes over which they have jurisdiction and, 
if appropriate, prosecute the suspects. [IAC/NIAC] 

Rule 159. At the end of hostilities, the authorities in power must endeavour to 
grant the broadest possible amnesty to persons who have participated in a non- 
international armed conflict, or those deprived of their liberty for reasons related 
to the armed conflict, with the exception of persons suspected of, accused of or sen- 
tenced for war crimes. [NIAC] 

Rule 160. Statutes of limitation may not apply to war crimes. [IAC/NIAC] 

Rule 161. States must make every effort to cooperate, to the extent possible, with 
each other in order to facilitate the investigation of war crimes and the prosecution 
of the suspects. [IAC/NIAC] 



79 



Ill 



An Australian Perspective 

on the ICRC Customary International 

Humanitarian Law Study 

Timothy L. H. McCormack* 

Introduction 

It is a pleasure for me to be here to participate in this panel discussion on the In- 
ternational Committee of the Red Cross's (ICRC's) Customary International 
Humanitarian Law study (hereinafter the Study) for several reasons. I have great 
respect for the Naval War College and its important contributions to the develop- 
ment of the law of armed conflict (LOAC) over many years. This is the first oppor- 
tunity I have had to travel to Newport to participate in the annual International 
Law Conference and I am indebted to the Stockton Professor Charles Garraway 
and to Professor Dennis Mandsager for their invitation to me to make the trip 
from Down Under. I have also had a long association with the ICRC customary law 
study and have been looking forward to the opportunity to engage with others in 
response to the Study in a public forum such as this. 

I also confess that Newport, Rhode Island has a reverential aura about it in the 
hearts of Aussies like me. It was in this place in 1983 that Australia II with its infa- 
mous winged keel came from three races down to wrest the "Auld Mug" from the 



* Professor McCormack is the Foundation Australian Red Cross Professor of International 
Humanitarian Law and also the Foundation Director of the Asia-Pacific Centre for Military Law, 
University of Melbourne, Melbourne, Australia. 



Australian Perspective on the ICRC Customary Law Study 

New York Yacht Club — the fiercely competitive custodians of the America's Cup. 
The Cup had never left American hands since it was won by America (hence the 
Cup's name in honor of its inaugural winner) in the inaugural race against the 
Royal Yacht Squadron around the Isle of Wight in 1851, until, after 132 years and 
multiple unsuccessful challenges, the Aussies finally broke the US stranglehold. It 
is fair, although nationally unpalatable, to concede that we were unable to match 
anything like the US ability to successfully defend the Cup against successive chal- 
lenges (24 in total). In 1987 Dennis Connor regained the Cup and returned it to the 
United States — this time to the San Diego Yacht Club — before it was won by the 
Kiwis and now the Swiss. The Aussies have never come close to retrieving it since. 
All this to say that it is special to be here in Newport and I do not take the opportu- 
nity for granted. 

My intention is to briefly explain the nature of my involvement with the cus- 
tomary law study before I move to more substantive observations. I want to offer 
some thoughts on positive benefits of the Study — some potential and others al- 
ready manifest — as a way of congratulating the ICRC on the publication of the 
Study. Then I will add some of my own thoughts on reasons why the ICRC ought 
not be surprised by the level of criticism of the Study which has already emerged 
and which, in my view, will continue largely unabated. 

Personal Involvement with the Study 

As the incumbent of the Australian Red Cross Chair of International Humanitar- 
ian Law, it is sometimes wrongly assumed that I am an official apologist for not 
only the Australian Red Cross but also for the entire Red Cross Movement includ- 
ing the ICRC. The assumption is wrong because my appointment is to the Univer- 
sity of Melbourne and not to the Australian Red Cross. It was agreed at the time the 
Chair was established that the incumbent would exercise academic freedom as an 
employee of the University and would not necessarily act as a spokesperson for the 
Australian Red Cross. On many occasions I have participated in the Australian 
public debate on international humanitarian law related issues on behalf of the 
Australian Red Cross but it is also true that on other occasions I have had to dis- 
tance myself somewhat — either because I disagree with the position of the national 
society or, more commonly, because the decision to speak out publicly about cer- 
tain issues conflicts with one or more of the Fundamental Principles of the Red 
Cross Movement. I accept that the "wearing of different hats" invites confusion 
and can be a recipe for misunderstanding but I am learning to live with those nega- 
tives. I am a firm believer in the Red Cross Movement and not because of the Chair 
I occupy. That belief does not translate automatically into support for every 

82 



Timothy L. H. McCormack 



position the ICRC takes. When it comes to the customary law study I would char- 
acterize myself as cautiously supportive and I intend to explain what I mean by that 
general characterization in due course. 

I was responsible for the preparation of the Australian national report consti- 
tuting one of the forty-seven such national reports forming the primary source of 
evidence of State practice and expressions of opinio juris upon which the ICRC 
has reached its conclusions. The process of searching for and identifying evidence 
of Australian practice and national expressions of opinio juris in the areas of inter- 
national humanitarian law covered by the Study was a novel one for Australia. I 
will say more of my observations of the benefits of undertaking this national 
study later. It is sufficient here to say that having worked hard to finalize the Aus- 
tralian report and then having handed it over to the ICRC early in 1998, 1 antici- 
pated the publication of the Study much sooner than 2005. It is obvious from the 
sheer magnitude of the published Study just how massive an undertaking this 
project really was. Now I can see that I was entirely unrealistic to have expected to 
see the published version of the Study years earlier. Then though, as the years 
slipped by post- 1998, 1 remember growing increasingly disappointed by the pas- 
sage of time, particularly because of my acute awareness that so much more na- 
tional Australian practice had occurred in the course of military operations in 
East Timor, in Afghanistan, in Iraq, in Bougainville and in the Solomon Islands, 
in inter-governmental fora around the world and in Canberra itself in the inter- 
vening period since the Australian report had been submitted to the ICRC. 

The ICRC worked hard to cover developments in State practice up to the cut-off 
date of 2002 but I am convinced that their own staff could not have accessed the 
same documentation as had been possible during the preparation of the national 
reports. The authors of the Study make a concession to this effect in their "Intro- 
duction" when they acknowledge that "the purpose of the additional research was 
also to make sure that the study would be as up-to-date as possible and would, to the 
extent possible^ take into account developments up to December 31, 2002" having 
earlier acknowledged that "national sources are more easily accessible from within 
a country." 1 

Consequently, when Yves Sandoz speaks of a "still photograph of reality," 2 it 
seems to me that the photo is from the late 1990s with some touching up in 2000- 
2002 and that there has already been a prodigious amount of State practice and 
many expressions of opinio juris since then which are not reflected in the Study. If 
I am correct in that assessment it will very soon be a decade since the still photo- 
graph was taken and questions will inevitably be raised about the currency of 
the Study. 



83 



Australian Perspective on the ICRC Customary Law Study 

Some Positive Observations 

I do want to take this opportunity to congratulate the ICRC on the completion of 
this enormous project. The more than 5,000 pages of the Study in three separate 
volumes is so detailed and vast that there must have been many opportunities for 
the individuals involved in the Project, as well as for the ICRC as an institution, to 
seriously doubt whether the Study would ever be concluded and appear in print. 
The fact that it has been published at all is testament to the commitment of the 
ICRC, not only to grasp the initiative and to resource the project, but also to see it 
through to its completion. I offer the following observations about some of the 
positive contributions the Study has already made or is likely to make in the near 
future. 

Providing a Significant Australian National Catalyst 

Yves Sandoz proposes his own test for the success of the Study by suggesting that 
"this study will have achieved its goal only if it is considered not as an end of a pro- 
cess but as a beginning." 3 It is my observation that the beginning of the process of 
reflection, discussion and debate on both the content of customary international 
humanitarian law, as well as on its more effective implementation, commenced 
much earlier than at the moment of publication of the Study. In Australia's case, 
the announcement by the ICRC of its decision to undertake the Study and the invi- 
tation to Australia to prepare a national report on evidence of State practice and ex- 
pressions of opinio juris presented an unprecedented opportunity. There had never 
been a comprehensive audit of Australia's approach to customary international 
humanitarian law and this particular exercise resulted in a unique collaboration 
between the key Australian Government Departments of Defence, Foreign Affairs 
and Trade and the Attorney-General. 

The preparation of the Australian study exposed examples of inconsistency and 
inaccuracy on national approaches to aspects of international humanitarian law. 
Two examples will help illustrate my meaning. Rule 70 of the ICRC Study is the 
prohibition on the use of weapons which are of a nature to cause unnecessary suf- 
fering or superfluous injury. 4 In Volume II of the Study the ICRC provides the sub- 
stantiating State practice and opinio juris to support the articulation of the Rule in 
Volume I. In the assessment of national support for the existence of customary 
Rule 70 the editors of the Study cite, inter alia, the "Australian Military Manual," 5 
which states in relevant part that "weapon use will be unlawful under LOAC when 
it breaches the principle of proportionality by causing unnecessary suffering or in- 
jury." 6 On one reading of this sentence there is clear confusion between the rule of 
proportionality and the rule on superfluous injury or unnecessary suffering. The 

84 



Timothy L. H. McCormack 



rule of proportionality is intended to protect the civilian population from the dele- 
terious effects of armed conflict. The use of weapons violates the rule of propor- 
tionality when the expected loss of civilian life and/or damage to civilian property 
is excessive relative to the expected military advantage from an attack. 7 In contrast, 
the rule on superfluous injury or unnecessary suffering is intended to benefit com- 
batants by prohibiting the use of weapons of a nature to cause superfluous injury or 
unnecessary suffering to those combatants who might otherwise be subjected to at- 
tack from such weapons. It is also possible to read the offending sentence to mean 
superfluous injury or unnecessary suffering to the civilian population, e.g., that the 
expected loss of civilian life or damage to civilian property is excessive (superfluous 
or unnecessary) relative to the expected military advantage to be gained. On the 
first reading, the assertion is wrong in law and on the second reading, the choice of 
terminology is confusing and unhelpful. On either interpretation, the preparation 
of the Australian national report helped to flush out examples such as this which 
can now be rectified and improved. 

My second example also relates to the Rule of Proportionality — incorporated in 
Rule 14 of the ICRC Study. Again in the assessment of State practice to substantiate 
the existence of the customary law rule 8 the authors cite, inter alia, the "Australian 
Military Manual" that states in relevant part that: 

Collateral damage may be the result of military attacks. This fact is recognised by 
LOAC and, accordingly, it is not unlawful to cause such injury and damage. The 
principle of proportionality dictates that the results of such action must not be 
excessive in light of the military advantage anticipated from the attack. 9 

There is no ambiguity here. This particular articulation of the rule of proportion- 
ality wrongly asserts that the test for proportionality is whether the actual loss of 
civilian life and/or damage to civilian property is excessive in relation to the antic- 
ipated military advantage. Articles 51(5)(b) and 57(2) (b) of Additional Protocol 
I 10 both explicitly speak of the expected loss of civilian life and/or damage to civil- 
ian property weighed against the anticipated concrete military advantage. The 
Australian military has not suddenly altered its legal position on the test for pro- 
portionality in attack. The official position of the Government is that the test at 
treaty law (pursuant to the above-mentioned provisions of Additional Protocol I) 
and at customary international law (as encapsulated in the ICRC's Rule 14) is in- 
deed the expected loss of civilian life weighed against the anticipated military ad- 
vantage and certainly not the actual loss of civilian life weighted against the 
anticipated military advantage. The preparation of the Australian national report 



85 



Australian Perspective on the ICRC Customary Law Study 

helped to expose this inaccuracy in the Australian military publication on the law 
of armed conflict. 

The preparation of the Australian national report involved the identification of 
literally hundreds of government documents — many of them classified and re- 
quiring official approval for release. As representatives from different government 
departments poured over the documents identified by research teams, it became 
increasingly obvious that many of the documents had never been retrieved from 
files once those files had been stored. This process proved to be cathartic for those 
involved as we read through statements of Australian Government positions taken 
in various multilateral fora in the past. Now that the ICRC Study has been pub- 
lished, Australia has the opportunity to revisit the preparation of its national report 
and to measure the ICRC's articulation of customary rules against more recent 
Australian State practice not covered by the Australian national report. This op- 
portunity would not exist but for the ICRC initiative and, in my view, acknowl- 
edgement ought to be made and gratitude expressed to the ICRC for it. I would be 
surprised if at least some of the other 46 States which also prepared national reports 
for the ICRC Study have not had similar experiences to the Australian one I have 
described. 

Creating a Rich Source of Comparative Primary Material 

The prodigious effort of the ICRC and the Study's editors to complete the project 
has resulted in over 4,400 pages (in the two volumes of the so-called "Practice" sec- 
tion of the Study) of references to national (and, in some cases international) legis- 
lation, case law, military manuals and statements of national government 
representatives in relevant inter-governmental conferences. There is simply no re- 
source like this in the field of international humanitarian law. The Yearbook of In- 
ternational Humanitarian Law provides a helpful and detailed annual survey of 
State practice which effectively supplements the ICRC Study. The Yearbook mate- 
rial takes the form of "Country Reports" on State practice and developments 
around the world in national approaches to international humanitarian law. 11 
However, this annual report obviously only covers national developments within 
the calendar year of each volume of the Yearbook and is sorted by country name in 
English alphabetical order — certainly not by ICRC rule in the customary law 
study. I am not suggesting that the Yearbook obviates the need for the ICRC to up- 
date its own Study. Rather, I am suggesting that apart from the "Country Reports" 
section of the Yearbook I know of no other attempt to gather primary source mate- 
rial from States and that reality places the ICRC Study in a unique position. 

It is not difficult to conceive circumstances in which the comparative material 
on State practice in the Study will be extremely useful. In my capacity as amicus 

86 



Timothy L. H. McCormack 



curiae on international law issues in the trial of Slobodan Milosevic, for example, I 
can imagine that the Study's two Practice volumes could provide an invaluable 
source of references to a range of case law, legislation and military manuals on na- 
tional approaches to the criminalization and prosecution of the war crimes of mur- 
der, willful killing, torture, willfully causing grave suffering, cruel treatment, 
wanton destruction of villages and plunder of public and private property. I am not 
suggesting that the two Practice volumes would be the sole source of investigation, 
but the fact that they exist and are structured on the basis of topic — corresponding 
with the articulation of the customary law rules in Volume I of the Study — ensures 
that these volumes will be consulted regularly. 

I am surely not alone in this view. Others practicing in the area of international 
criminal law — judges, prosecutors, defense lawyers and registry staff — are all regu- 
larly referring to national case law and/or legislation to flesh out the substance of 
this ever-emerging body of international law. It is undoubtedly the case that as the 
international jurisprudence proliferates there is increasing reliance on interna- 
tional sources. But, it is also the reality that practitioners in this field of interna- 
tional law are often required to resort to national legislation and jurisprudence to 
supplement international sources. The natural tendency has been to rely upon the 
practitioner's own national sources because they are more familiar and accessible 
and for want of entree into other national sources. I suspect that the ICRC Study 
will provide a welcome starting point for comparative criminal law research. 

Of course it is far too simplistic to suggest that only international criminal law- 
yers will rely on the comparative material in the Study. Copies of this Study will be 
routinely pulled off the shelves of government legal advisers in foreign ministries, 
in defense establishments and in justice ministries. The sheer size of the Study will 
ensure that the advice of those government lawyers who do take the time to famil- 
iarize themselves with the contents of the Study will be eagerly sought. 

Sparking a Global Discussion 

The publication of the long-awaited Study has already spawned a succession of 
conferences and seminars focused on the results of the Study and reactions to it. 
Our own panel discussion here follows on from sessions at Chatham House, at the 
Annual Meeting of the American Society of International Law, in The Hague and 
precedes planned events in Bangkok, Brussels, Montreal, New Delhi, San Remo 
and Warsaw. The rush to discuss, to analyze, to question and to criticize on every 
continent in the world is all indicative of the intensity of anticipation of the final ta- 
bling of the Study and, perhaps more importantly for most observers, a keen desire 
for clarification as to how the Study might be utilized, how it will be received and 
the regard it will come to have in the future. It is in this sense that I entirely agree 

87 



Australian Perspective on the ICRC Customary Law Study 

with Yves Sandoz's view that the publication of the Study is not the end but the be- 
ginning of a process and the ICRC is right to ask for as much feedback, debate and 
testing of its findings as it can receive. 

The arrival of the Study also seems to have spawned a new debate on customary 
international law itself — what it is, how it is formed, what sources should be relied 
upon to determine its content, the identification of the precise relationship be- 
tween treaty law and the development of custom. This debate is redolent, even if 
smaller in scale, of the debate following the decision of the International Court of 
Justice (ICJ) in the Nicaragua case. Now, of course, almost 20 years after that deci- 
sion, there is a new generation of international lawyers involved in the debate. That 
is surely a healthy development and one for which the ICRC should be 
congratulated. 

The Inevitability of Criticism for Articulating 
Customary International Law Rules 

Despite the many ways in which the Study will be utilized and relied upon, the 
ICRC ought not be surprised either by the intensity of, or by the specific details of, 
the criticism directed against the Study. The "notorious imprecision" of customary 
international law acknowledged by Judge Koroma of the International Court of 
Justice in his "Foreword" to the Study 12 is a double-edged sword for the ICRC. The 
Study represents a laudable attempt to clarify some of the inherent imprecision but 
the reality of that imprecision emboldens others to challenge the ICRC's attempts 
at clarification. The applicability of the adage "we know it when we see it but can- 
not quite pin it down" to customary international humanitarian law may leave 
many academic international lawyers dissatisfied while simultaneously providing a 
sense of confidence to national government legal advisers. I am not suggesting that 
such advisers can tell their governments that the content of customary interna- 
tional law on a specific issue is whatever the government wants it be. Rather, one 
attraction of the "notorious imprecision" is the slight ambiguity, the elasticity at 
the edges of the specific detail of a rule. Any attempt to introduce precision and cer- 
tainty in the articulation of the specifics of the law will inevitably draw criticism as 
interested parties, particularly States, will simply not agree with some of what has 
been included and also with some of what has been omitted. 

Irrespective of the Authority of the Articulating Organization 

All those involved in the study and practice of international law in the latter half of 
the 1980s are unlikely to forget the deluge of academic articles following the deliv- 
ery of the Court's judgment in the Nicaragua case. It was as if the Judgment 

88 



Timothy L. H. McCormack 



breached a dam wall unleashing a torrent of criticism and condemnation — some 
of it focused on the Court's decision on jurisdiction and some of it on the merits, 
but much of it directed at the Court's reasoning in relation to the formation of cus- 
tomary international law and on the process of identifying the content of custom- 
ary rules on the use offeree by States. 13 Just the titles of some of the articles are 
descriptive enough: "Icy Day at the ICJ"; 14 "Between a Rock and a Hard Place: The 
United States, The International Court and the Nicaragua case"; 15 "Nicaragua and 
International Law: The 'Academic' and the 'Real'"; 16 and "The International Court 
of Justice at the Crossroads." 17 

Hilary Charlesworth's criticisms are particularly pertinent to our present dis- 
cussion and I reproduce some of them in detail. Charlesworth claimed that: 

Generally, in Nicaragua, the Court appears to expand the category of activities that can 
constitute state practice. Its analysis is not easy to follow for the discussion of state 
practice and opinio juris is often elided and it is sometimes uncertain whether the Court 
regards a particular action as state practice, opinio juris, or as doing service to both. The 
Court relies upon the acceptance of treaty obligations as state practice. While this is a 
generally accepted source of state practice, the Court places special emphasis on the 
fact that both Nicaragua and the United States have accepted particular treaty 
obligations as evidence that they at least are firmly bound by such norms. Unlike jurists 
such as D'Amato, who regard only actions which have physical consequences as state 
practice, the Court accepts General Assembly resolutions and resolutions of other 
international organisations, particularly those in which Nicaragua and the United 
States participated, as forms of state practice. This approach accords with that of many 
jurists. The Court, however, does not appear to discriminate between international 
fora, nor does it discriminate between resolutions based on lex lata and lexferenda. The 
Court places considerable reliance on the Declaration on Friendly Relations which is 
couched in legislative language. But it also relies on other resolutions and agreements 
whose language is not mandatory. 18 

Even if the Court in Nicaragua had been more precise about its delimitation be- 
tween evidence of State practice and expressions of opinio juris, it is likely that the 
judgment would have been criticized by those who disagreed with the judges' assess- 
ment of the material falling into either category. The criticism has been exacerbated 
in substantial part by the Court's lack of clarity as to categorization, as well as by its 
apparent failure to accord appropriate weight on the basis of a more nuanced and 
discerning approach to the material it considered. 

The key point here is that in its attempt to bring precision to the "notoriously 
imprecise" customary international law, the ICJ was subjected to a barrage of criti- 
cism. If the ICJ was subjected to such a formidable assault, the ICRC ought not 



89 



Australian Perspective on the ICRC Customary Law Study 

expect to be immune from a similar intensity of opposition in relation to its meth- 
odology, the material it seeks to rely upon and the conclusions it has reached. 

Another example of criticism of a body articulating customary international law 
on a particular topic involved the drafting and subsequent adoption of the Statute 
for the International Criminal Tribunal for the Former Yugoslavia (ICTY). The 
UN Security Council had called for a report from the UN Secretary-General with a 
Statute for the proposed Tribunal to be attached. 19 The Office of the Legal Adviser 
to the UN prepared the Draft Statute on the basis of customary international law 
explaining that: 

The international tribunal should apply rules of International Humanitarian Law 
which are beyond any doubt part of customary law so that the problem of adherence of 
some but not all States to specific conventions does not arise. This would appear to be 
particularly important in the context of an international tribunal prosecuting persons 
responsible for serious violations of International Humanitarian Law. 20 

That stated rationale for the adopted approach could hardly be disputed. If the ju- 
risdiction ratione personae of the ICTY was to extend to all persons allegedly re- 
sponsible for violations of the Statute on the physical territory of the Former 
Yugoslavia, it was essential that members of paramilitary organizations and other 
non-State entities be covered. In any case, even for those members of State militar- 
ies and police forces, State succession issues at the time of the dissolution of the 
Former Federal Republic of Yugoslavia ensured some uncertainties as to the pre- 
cise treaty obligations of the newly independent former Federal republics. 

Understandably, the UN Office of the Legal Adviser took a cautious approach to 
the definition of the crimes within the ICTY Statute. The principal criticism leveled 
against the Draft Statute (which was, perhaps surprisingly, adopted without 
amendment by the UN Security Council 21 ) has been that it was too conservative in 
its approach. The Appeals Chamber of the ICTY is the source of the best-known 
criticism of the drafting of the Statute. In the course of the trial of Dusko Tadic the 
Appeals Chamber had to decide whether or not to accept the challenge of the ac- 
cused to the Tribunal's exercise of jurisdiction over him. In relation to Article 5 of 
the ICTY Statute defining Crimes Against Humanity, the Appeals Chamber stated 
that: 

It is by now a settled rule of customary international law that crimes against humanity 
do not require a connection to international armed conflict. Indeed, as the Prosecutor 
points out, customary international law may not require a connection between crimes 
against humanity and any conflict at all. Thus, by requiring that crimes against 
humanity be committed in either internal or international armed conflict, the Security 



90 



Timothy L. H. McCormack 



Council may have defined the crime in Article 5 more narrowly than necessary under 
customary international law. 22 

Prima facie this criticism is tempered and relatively benign. Coming as it does, 
though, from an international judicial body, the criticism was taken very seriously 
indeed. At the negotiations for the Statute of the International Criminal Court in 
Rome, for example, reference was made to both the text of the Statute of the Inter- 
national Criminal Tribunal for Rwanda, which omits a requisite nexus with armed 
conflict in the definition of crimes against humanity, as well as the ICTY Appeals 
Chamber decision in Tadic as bases for departing from the approach in Article 5 of 
the ICTY Statute. 23 

The drafting of the Statute for the ICTY and the criticism leveled against it was 
clearly on a significantly smaller scale than the response to the ICJ decision in the 
Nicaragua case. That is at least partly explicable on the basis that the ICJ made gen- 
eral declarations on the nature of customary international law and how it is 
formed — with significant implications for future cases before the Court as well as 
more generally. In the case of the Statute of the ICTY, that instrument established 
an important precedent for future international criminal tribunals but the custom- 
ary international law implications were limited to the subject matter of interna- 
tional criminal law. 

The fact remains, however, that both the ICJ and the Office of the Legal Adviser 
found themselves the subject of criticism in response to respective efforts to articu- 
late the content of customary international law in a particular area and, in the ICJ's 
case, in response to the Court's articulation of the process for the development of 
customary international law rules. Given that highly regarded institutions such as 
these have been subjected to intense scrutiny and criticism, the ICRC should not 
expect to be immune. 

It is possible that my analysis is flawed. I have suggested that criticism is inevita- 
ble regardless of the authority of the articulating organization. Perhaps that is in- 
correct. An organization no one takes seriously might purport to articulate the 
content of customary law on a particular issue and receive no critical feedback pre- 
cisely because of the lack of respect for the articulating institution. That is surely 
not the case in relation to the ICRC. The publication of the customary law study 
under the imprimatur of the ICRC ensures that the Study will be taken very seri- 
ously indeed — precisely because of the international standing of the institution. 
Had the Study been prepared by an academic institution, for example, or by a non- 
governmental organization (quite apart from the obvious question of how any 
such institution would have gathered the material from States as effectively as the 
ICRC), it is much less likely that the Study would have attracted anything like the 



91 



Australian Perspective on the ICRC Customary Law Study 

scrutiny it is receiving. But, since it is the ICRC that has published the Study, States 
cannot act as the proverbial ostrich with their heads in the sand, simply ignoring 
the Study in the pretence that it will have no effect or in the hope that it will conve- 
niently disappear. 

Irrespective of the Rigor of the Process Leading to the Articulation 

Criticism of the Study is also inevitable despite the attempt by the ICRC to be as 
rigorous as possible in its approach to the identification and compilation of rele- 
vant State material and to its assessment and articulation of the content of custom- 
ary international humanitarian law. The editors of the Study explain in some detail 
the steps in the process of preparing the Study — the establishment and oversight of 
the Study at all stages by the Steering Committee, the undertaking of 47 national 
studies, the additional collection of material from relevant international organiza- 
tions (including from the ICRC's own archives), the supplementary collection of 
material from the countries the subject of national reports as well as from other 
States not the subject of national reports and the establishment and work of the 
Academic and Governmental Expert Advisory Group. 24 I am sure that many will 
appreciate the efforts of the ICRC to undertake the Study on the basis of a clear, 
transparent and defensible approach. Those efforts will undoubtedly translate into 
greater weight and authority extended to the Study. But, those efforts, while admi- 
rable, will not eliminate criticism of the Study. 

Many examples of State practice are, in fact, the acts of individual advisers 
within national delegations in the context of multilateral fora — with the blessing of 
their national governments of course. Individual members of delegations regularly 
act on the basis of agreed broad national parameters. National statements are usu- 
ally carefully checked through an interagency process in national capitals but the 
reality is that individual members of national delegations — particularly senior 
members of delegations — have broad discretion in the pursuit of national priori- 
ties. In particular, individuals within national delegations become involved in the 
minutiae of multilateral negotiations and develop specialist knowledge about the 
nuances of a negotiated text. In circumstances where such individuals become the 
national experts in relation to particular issues in sustained multilateral negotia- 
tions, those individuals often also assume the mantle of national institutional 
memory. Those individuals know exactly what was meant by a particular interven- 
tion, how an intervention was received by other States, the differences between 
some States' articulated positions and their true intentions (or the failure to reveal 
true intentions). The authors of the ICRC Study have had to make decisions about 
the wording of some customary rules derived in part from treaty provisions. Some 
individuals involved in the specific treaty negotiations have criticized the ICRC for 

92 



Timothy L. H. McCormack 



misunderstanding the context of negotiations and for misrepresenting specific na- 
tional acts to support the ICRC version of the customary rule. 

One of the best examples, to my knowledge, of this phenomenon is the inter- 
vention by Hays Parks at the Annual Meeting of the American Society of Interna- 
tional Law in April 2005. Parks was on a panel to discuss the ICRC Study and, 
having only received his personal copy a few days before, undertook what he char- 
acterized as a "biopsy" on some of the conventional weapons issues he had been ex- 
tensively involved with for almost two and half decades as a member of the US 
delegation to the Certain Conventional Weapons Convention 25 (CCW) negotia- 
tions in Geneva. Parks looked first at incendiary weapons and expressed surprise to 
see that the Study quotes a USSR Statement to the effect that Moscow was "in fa- 
vour of the prohibition of means of warfare which were particularly cruel, because 
their use was incompatible with the norms of international law. One such means 
was napalm." 26 Parks asserts that the Study, at least on this issue, lacks a sense of 
context in relying as it does upon the Soviet Statement as if that represented a state- 
ment of State policy. The United States had changed its position late in the confer- 
ence process and announced that it would support a protocol regulating the use of 
incendiary weapons. Parks explains that that change of US policy threw the Soviet 
delegation into disarray. The Soviet Ambassador, Victor Israelyen, conceded subse- 
quently to Parks that the very statement which the ICRC Study relies upon in part to 
support the emergence of a customary rule on incendiary weapons was in fact a 
smokescreen. The Soviets assumed that the United States would not compromise 
and accept a protocol on incendiary weapons and so were hiding behind the original 
US position. The change of US policy exposed the real Soviet position and Parks 
claims that "the Soviet Union had no intention of accepting a prohibition on incen- 
diary weapons, as the Warsaw Pact had huge stocks it fully intended to employ." 

Whether or not the Soviet Statement tips the balance one way or the other in 
terms of the ICRC claiming the existence of the customary rule is hardly the critical 
point here. What is at stake is the nature of the material the ICRC has relied upon in 
order to assert the formulation of customary rules. The explicit reliance upon a 
statement that, in fact, did not reflect either State practice or opinio juris to support 
a customary rule will inevitably increase skepticism about what other materials 
may have been relied upon in the Study. Parks claims that statements seem to take 
priority over the actual practice of States in armed conflict. He questions why the 
Study fails to refer to and discuss the North Vietnamese use of flamethrowers in its 
1968 Tet offensive, for example, or the Soviet use of incendiaries in Afghanistan 
and the Russian use of incendiaries in Chechnya. 27 Parks makes similar claims 
about exploding bullets. The ICRC is uncomfortable about the widespread use of 
the Raufoss 12.7 mm multipurpose round, which the institution claims can 

93 



Australian Perspective on the ICRC Customary Law Study 

explode on impact with the human body. Parks, and other government lawyers, 
dispute this finding. Parks asserts that the Study fails to mention that more than 
two dozen States include the Raufoss 12.7 mm multipurpose round in their inven- 
tories and that at least some of those States have communicated to the ICRC that 
they have undertaken legal reviews of the round and believe that the continued use 
of the round is compatible with existing legal obligations. 28 

These are serious criticisms and, in my view, more of them are likely to flow. As 
those individuals, like Parks, who have been intimately involved in the develop- 
ment of the law take the time to read the detail of the Study — not only the articula- 
tion of the rules themselves but also the supporting material — the ICRC will 
increasingly be subjected to criticism that it has overlooked, misinterpreted or mis- 
represented the material it claims supports the assertion that "State practice estab- 
lishes this rule as a norm of customary international law." 

Particularly When Rules Are Articulated in Absolute Terms 

I have referred a number of times to Yves Sandoz's claim that: 

[T] he study will have achieved its goal only if it is considered not as the end of a process 
but as a beginning. It reveals what has been accomplished but also what remains 
unclear and what remains to be done. ... [T]he study makes no claim to be the final 
word. 29 

There is a welcome self-effacing here and no doubt Sandoz is absolutely genuine in 
his request that the Study be read, be discussed and be commented upon. However, 
it seems to me that there is a measure of incongruity in the claim that the Study re- 
veals what is unclear and what remains to be done — that it does not represent the 
last word on customary international humanitarian law — and the manner in 
which the 161 Rules themselves are worded. All of them are written in absolute 
terms followed by a summary statement which invariably includes an absolute 
finding that State practice establishes this rule as a norm of customary interna- 
tional law (either in international or non-international armed conflicts or in both). 
Occasionally there is a reference to an issue which is not covered by the Study. Rule 
155 on obedience to superior orders is an example. The Study specifically mentions 
that other defenses, including the defense of duress, may apply but are not covered 
by the Study, 30 demonstrating that the Study does not purport to be exhaustive. 
However, in relation to the issues which are covered by the Study, the language 
used is absolute. 



94 



Timothy L. H. McCormack 



Others have commented upon this aspect of the Study. Daniel Bethlehem, for 
example, notes the pro forma approach of following the formulation of the custom- 
ary rule with a "summary": 

which, almost without exception, asserts 'State practice establishes this rule as a norm 
of customary international law. . . .' There are occasions in which this affirmation is 
followed by a statement noting ambiguity or controversy in respect of some element of 
the rule, but the affirmation of customary status stands fast. 31 

I imagine that it would have been unpalatable for the ICRC to formulate rules 
of customary international humanitarian law other than in absolute terms. An 
equivocal approach to formulation may have undermined the purpose of the 
Study by creating a sense of uncertainty and ambiguity — something the ICRC as 
an institution is rightly committed to avoiding. But in the existing approach to 
formulation of the rules there seems little room for acknowledging dissent or op- 
position to the emergence of a particular rule. I am unable to shake the sense that 
the formulation of rules in the absolute terms that appear in the Study invites dis- 
agreement and criticism rather than discussion and constructive comment. I hope 
I am proved wrong. 

Notes 

1. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International 
HUMANITARIAN LAW xlv-xlvi (2005) (2 volumes: Volume I, Rules; Volume II, Practice (2 
Parts)) (emphasis added). 

2. Yves Sandoz, Foreword, in id., Vol. I, at xvii. 

3. Id. 

4. See id., Vol. I, Chap. 20, at 237. 

5. This language is contentious as the Australian Government does not consider the cited 
document to constitute a military manual as such. The document cited is Australian Defence 
Force, Law of Armed Conflict, OPERATIONS PUBLICATIONS SERIES (1994) (hereinafter ADFP 37). 

6. See HENCKAERTS & DOSWALD-BECK, supra note 1, Vol. II, Part 1, at 1510 citing paragraph 
207 of ADFP37, supra note 5. 

7. See id., Rule 14, Vol. I, at 46. 

8. See id., Vol II, Parti, at 299. 

9. ADFP 37, supra note 5 at para. 535. 

10. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3, reprinted 
in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3rd ed. 2000). 

1 1 . The Yearbook, produced by the Asser Instituut in The Hague and published by Cambridge 
University Press, includes an extremely useful "Country Reports" section every year. That 
section is prepared by correspondents in-country around the world and is the only ongoing 
collection of evidence of State practice in International Humanitarian Law of which I am aware. 
The "Country Reports" section is not and does not purport to be exhaustive of all relevant State 

95 



Australian Perspective on the ICRC Customary Law Study 

practice. The preparation of the material is dependent on the work of volunteer correspondents 
and for many States no suitable correspondent has been found. The Asser Instituut does not 
purport to be supplementing the ICRC Study's Practice volume. I am offering my own 
characterization of the effect of the Section. 

12. Dr. Abdul G. Koroma, Foreword in HENCKAERTS & DOSWALD-BECK, supra note 1, at xii. 

13. See, for example, the Symposium, Appraisals of the ICfs Decision: Nicaragua v. United States, 
81 American Journal of International Law (1987). The following authors contributed to 
that issue: Keith Highet, at 1; Herbert W. Briggs, at 77; Anthony D'Amato, at 101; Michael J. 
Glennon, at 121; Edward Gordon, at 129; John Lawrence Hargrove, at 135; Frederic L. Kirgis Jr., 
at 146; John Norton Moore, at 151; Fred L. Morrison, at 160; W. Michael Reisman, at 166; 
Fernando R. Teson, at 173. Other articles, include those in the following footnotes, and for 
example, Abram Chayes, Nicaragua, the United States and the World Court, 79 COLUMBIA LAW 
REVIEW 1445 (1985); James P. Rowles, Nicaragua Versus the United States: Issues of Law and 
Policy, 20 THE INTERNATIONAL LAWYER 1245 (1986); Keith Highet, You Can Run But You Can't 
Hide: Reflections on the United States Position in the Nicaragua Case, 27 VIRGINIA JOURNAL OF 
INTERNATIONAL LAW 551 (1987); Hilary Charlesworth, Customary International Law and the 
Nicaragua Case, 11 AUSTRALIAN YEARBOOK OF INTERNATIONAL LAW 1 (1984-87); Anthea 
Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A 
Reconciliation, 95 AMERICAN JOURNAL OF INTERNATIONAL LAW 757 (2001). 

14. Thomas M. Franck, Comment: Icy Day at the ICJ, 79 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 379 (1985). 

15. Keith Highet, Between a Rock and a Hard Place - the U.S., the International Court and the 
Nicaragua Case, 21 THE INTERNATIONAL LAWYER 1083 (1987). 

16. Anthony D'Amato, Comment: Nicaragua and International Law: The "Academic" and the 
"Real," 79 AMERICAN JOURNAL OF INTERNATIONAL LAW 657 ( 1985). 

17. This was the title of Lori Fisler Damrosch's book on the implications of the Nicaragua case 
published by Transnational Publishers in 1987. 

18. Hilary Charlesworth, supra note 13, at 18. 

19. See UN Security Council Resolution 808, 48 UN SCOR, UN Doc. S/RES/808 (Feb. 22, 1993). 

20. See Report of the UN Secretary-General, UN Doc. S/25704 (May 3, 1993), para 34. The text 
of the Report is annexed to the text of UNSC Resolution 827. 

21. See UN Security Council Resolution 827, 48 UN SCOR, UN Doc. S/RES/827 (May 25, 
1993). 

22. See Prosecutor v. Dusko Tadic a/k/a "Dule", Decision on the Defence Motion for 
Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-T, Oct. 2, 1995. 

23. See, for example, Herman von Hebel & Daryl Robinson, Crimes within the Jurisdiction of the 
Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE - 

Issues, Negotiations, Results 92-93 (Roy S. Lee ed., 1999). 

24. See "Organisation of the Study" in the authors' Introduction, in HENCKAERTS & DOSWALD- 
BECK, supra note 1, Vol. 1, at xlv-li. 

25. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 
Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 
1980, 1342U.N.T.S. 137, reprintedin DOCUMENTS ON THE LAWS OF WAR, supra note 10,at520. 

26. W. Hays Parks, The ICRC Customary Law Study: A Preliminary Assessment, 99 
Proceedings of the Annual Meeting of the American Society of International Law 
209 (2005). 

27. Id. at 210. 

28. Mat 211. 



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Timothy L. H. McCormack 



29. Sandoz, supra note 2, Vol. I, at xvii. 

30. HENCKAERTS & DOSWALD-BECK, supra note 1, Vol. I, at 565. 

3 1 . Daniel Bethlehem, The ICRC Customary Law Study: An Assessment, paper presented to the 
Seminar on The Law of Armed Conflict: Problems and Prospects, Chatham House, London, 
Apr. 18-19, 2005, available at www.chathamhouse.org.uk/index.php?id=261. 



97 



IV 



The ICRC Customary International 
Humanitarian Law Study 

Yoram Dinstein* 

The Study x 

The publication in 2005 of an impressive Study of Customary International 
Humanitarian Law (IHL) by the International Committee of the Red Cross 
(ICRC) (hereinafter the Study) 1 is undoubtedly an important landmark. The 
Study — done in two parts (Rules and Practice) — is bound to be scrutinized, cited 
and debated for a long time to come. It will leave its imprints in the future both in 
the case law and in the legal literature, and, whatever one's view is of the overall 
success of the enterprise, no scholar or practitioner can afford to ignore it. 

The mandate for the preparation of the Study came exactly ten years prior to its 
publication (1995), from the 26th International Conference of the Red Cross and 
Red Crescent. For an entire decade, the ICRC spared no effort to put the Study to- 
gether. The project was based, inter alia> on extensive consultations with academic 
and government experts; nearly fifty reports of individual States' practice, submitted 
by national research teams; research on the practice of international organizations 
produced by several additional teams; and further archival research pursued by the 
ICRC itself. The resulting two volumes (for reasons of sheer size, Volume II (Prac- 
tice) is published in two separately bound parts) comprise more than 5,000 printed 



* Yanowicz Professor of Human Rights and Pro-President, Tel Aviv University (Israel). This 
article was first published in volume 36 of the Israel Yearbook on Human Rights (2006) and is 
reprinted with permission. © 2006 by Yoram Dinstein. 



The ICRC Customary International Humanitarian Law Study 

pages (621 covering Rules and commentary thereon; and 4,41 1 encompassing Prac- 
tice and appendices). The final product represents the largest scholarly undertak- 
ing (on any theme) ever undertaken in the long history of the ICRC. 

Since this article is an unadorned critique of the Study, I would like to empha- 
size two important personal points. First, I was marginally involved in the enter- 
prise: I am responsible for the Israeli country report; I have participated in 
subsequent consultations convened by the ICRC; and I have been given ample op- 
portunity — which I liberally used — to express reservations about earlier drafts of 
Volume I (although I had not seen Volume II prior to publication). Secondly, and 
even more significantly, I feel that the initiative was absolutely right, even if I do not 
approve of some of the results. Indeed, I take credit for being probably the first to 
have put on record the idea of launching a project with a view to examining the text 
of Additional Protocol I 2 of 1977 against the background of customary interna- 
tional law. I first raised the proposal publicly in 1987, in a conference convened in 
Geneva on the 10th anniversary of the conclusion of the two Additional Protocols 
of 1977, where I said: 

I happen to believe that it is very important to try to pinpoint those provisions of 
Protocol I, which are either reflective of existing customary international law or at least 
are non-controversial to such an extent that there is every reason to believe that they 
will crystallize as customary international law in the near future. 

A year later, in another International Colloquium held at Bad Homburg in 1988 
(the proceedings of which have been published), I reiterated the argument: 

The insertion of clauses like Article 44 in the Protocol is lamentable. All the same, these 
clauses should not overshadow other provisions reflecting customary lex lata or widely 
supported lex ferenda. To my mind, an attempt ought to be made to identify in an 
authoritative way those sections of the Protocol which are declaratory or non- 
controversial (I should hasten to add that, in my assessment, the great majority of the 
norms of the Protocol - perhaps as many as 85% - qualify as declaratory or non- 
controversial). Such an evaluation of the Protocol's text could be undertaken by 
informal meetings of experts like the present one, and it will prove invaluable not only 
to Israel but also to other countries - primarily, the United States - which are not 
expected to become contracting parties in the foreseeable future. 

I have broached this idea before, but have failed to persuade the ICRC representatives 
that it has much merit. 3 

In other words, my main concern was to bridge over what I like to call the "Great 
Schism," 4 dividing Contracting from Non-Contracting Parties of Additional 



100 



Yoram Dinstein 



Protocol I because of the 15% or so of the text (such as Article 44, which will be ad- 
verted to below) thoroughly rejected by the latter States. The ICRC in the late 1980s 
was unenthusiastic; its apprehension being that such an exercise might undermine 
the authority of Additional Protocol I as a treaty. 

Admittedly, the Study goes in several different directions, compared to my own 
idea. A critical segment of the Study relates to non-international armed conflicts 
and Additional Protocol II 5 (something that did not occur to me in the 1980s but I 
find most useful today). There are also sections dealing with law of armed conflict 
norms contained in treaties other than Additional Protocols I and II, particularly 
those dealing with prohibited weapons (an addition which has merit, although it 
has certainly complicated the process). Conversely, not every clause of Additional 
Protocol I is dealt with (an omission that I find puzzling) and not much attention is 
given to lexferenda stipulations that seem to be non- controversial (for instance, 
those provisions dealing with civil defense). 6 From the subjective angle of my origi- 
nal idea, the entire project is upside down. Instead of systematically examining 
Protocol I article by article, what is presented in the Study is a set of independent 
Rules with only the commentary indicating the relationship (if any) to provisions 
of Protocol I. Still, much as I may have wished the Study to be differently struc- 
tured, the three volumes have to be taken as they are. 

The Methodology 

Let me start with some comments about Volume II (Practice). This is the method- 
ological underpinning of the Rules plus commentary, and its size is not just daunt- 
ing; it is overwhelming. However, when one tries to get into the thicket of literally 
tens of thousands of cites, one begins to get underwhelmed for reasons that will 
become apparent in the ensuing text of the present article. Indeed, to my mind, 
Volume II is proof positive of the adage that sometimes more is less. 

The preliminary question that must be addressed is: what is customary interna- 
tional law? The classical definition of international custom is encapsulated in the 
well-known formula of Article 38 ( l)(b) of the Statute of the International Court of 
Justice: "international custom, as evidence of a general practice accepted as law/' 7 
The font et origo of customary international law is, in essence, the general practice 
of States. States are the main actors in the international arena, and it is their general 
practice that constitutes the core of custom. Without State practice there is no gen- 
eral customary international law. 

What does State practice consist of? There is much scholarly debate over the 
question of whether conduct constitutes the sole expression of custom-making 
practice, and whether statements — at times referred to as mere "claims" 8 or as 

101 



The ICRC Customary International Humanitarian Law Study 

"verbal (as distinct from "physical") acts" 9 — count. I share the view of the authors 
of the Study that "[b]oth physical and verbal acts of States constitute practice that 
contributes to the creation of customary international law." 10 Nevertheless, not ev- 
ery statement counts: it all depends on who is making the statement, when, where 
and in what circumstances. The Study has attached an import to statements in a 
most comprehensive generic fashion. I strongly believe that this is going way too 
far: the gamut of admissible statements — as grist to the mill of State practice — 
must be much more focused and filtered. 

The Study includes much State practice but a lot besides. One cannot cavil that 
the Study incorporates the practice of inter-governmental international organiza- 
tions (IGOs). To some extent, this is due to the fact that IGOs may have an interna- 
tional legal personality of their own, 11 but additionally it must not be forgotten that 
IGOs are comprised of States. Member States of an IGO may therefore contribute 
to State practice through their conduct and statements within the fold of the orga- 
nization. As pronounced by the International Court of Justice in its Advisory 
Opinion on Nuclear Weapons, UN General Assembly resolutions (not binding as 
such) "can, in certain circumstances, provide evidence important for establishing 
the existence of a rule or the emergence of an opinio juris." 12 

In contradistinction to IGOs, the role of non-governmental organizations 
(NGOs) in international law-making is confined to a consultative status, 13 not to 
mention lobbying and other behind-the-scenes activities vis-a-vis States. NGOs, 
whatever their standing, can never contribute directly through their own practice 
to the creation of customary norms. This is true even of the most important — and 
unique — NGO, the ICRC. Admittedly, the ICRC is assigned by IHL important 
functions to carry out. 14 But that fact does not turn the ICRC into a State-like entity. 
It is therefore surprising (and inappropriate) that the authors of the Study give a 
lot of attention to the practice of the ICRC itself 15 (and occasionally even to that of 
other NGOs, such as Amnesty International 16 ). ICRC reports, communications, 
press releases, statements and the like — recapitulated at some length in Volume II 
of the Study — are simply not germane to customary international law, unless and 
until they actually impact on State practice. It is true that "the official reactions 
which ICRC statements elicit are State practice." 17 However, this is not ICRC 
practice: this is State practice and it should be subsumed under the right heading. 
The ICRC plays in such circumstances the role of a catalyst for the evolution of 
State practice, but no more. One problem with the erroneous designation of such 
practice is that when ICRC appeals exhorting States to action are registered as 
ICRC practice, the gaze shifts from the actor to the catalyst. If the ICRC is success- 
ful in eliciting a positive response from States, 18 no real harm is done. But what 
happens when the ICRC's appeal evokes no response? 19 At best, the ICRC action 

102 



Yoram Dinstein 



proved itself to be irrelevant. At worst, it is an indication a contrario that States are 
not willing to accept the position of the ICRC. 

The ICRC practice at least deserves that designation, albeit it does not qualify in 
the context of the term of art "practice" employed in the definition of customary 
international law. But, in a manner bordering on the bizarre, the Study goes far be- 
yond anything remotely resembling practice. How can one refer to resolutions of 
the Institut de Droit International — weighty as they indisputably are — as "other 
practice"? 20 Whose practice? The same question arises, in an even starker way, 
when the Restatement prepared under the aegis of the American Law Institute is 
cited as "other practice," 21 and most egregiously when scholarly books (however 
prestigious) get a similar classification. 22 When everything is categorized as prac- 
tice, the reader cannot be blamed for a modicum of skepticism. 

There is much reliance in the Study on a host of military manuals, especially 
where it really counts, viz. in Volume I (Rules). Indeed, it appears that the authors 
themselves — sharing perhaps some of the skepticism re the plethora of items col- 
lated in Volume II (Practice) — opted, to be on the safe side, to predicate the Rules 
more on legislative codes and military manuals than on any other single source of 
practice. This editorial decision should be commended. Irrefutably, legislative 
codes and military manuals (i.e., binding instructions to the armed forces) are in- 
valuable sources of genuine State practice. However, are all the documents called 
manuals in the Study authentic manuals? 

From personal knowledge, I can attest that the so-called Israeli Manual on the 
Laws of War of 1998 23 — cited quite often throughout the Study — is not a genuine 
manual. As I tried on several occasions to point out to the authors of the Study 
prior to its publication — to no avail — this is merely a tool used to facilitate instruc- 
tion and training, and it has no binding or even authoritative standing. The insis- 
tence on regarding the text as a manual has led the authors of the Study to a 
number of errors. Thus, in the context of Rule 65 (whereby "[kjilling, injuring or 
capturing an adversary by resort to perfidy is prohibited"), 24 I alerted them to the 
fact that Israel does not accept the words "or capturing" as a reflection of custom- 
ary international law. They refused to accept this, and, in the commentary on Rule 
65, even singled out the so-called Israeli Manual as the "exception" among non- 
Contracting Parties to Additional Protocol I: other manuals of these countries do 
not mention "capturing"; the Israeli Manual does. 25 As it turns out, the cite given in 
a footnote does not refer to the so-called manual at all, but to another booklet. 26 
When one checks out the matching material in the Practice volume, it turns out 
that (a) the paragraph cited does quote the "Manual" (rather than the booklet) but 
there is no mention of "capturing" at all; (b) a previous paragraph (not the one 
cited) refers to capture, but the quote is from that other booklet (rather than the 

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The ICRC Customary International Humanitarian Law Study 

"Manual"), and, for that matter, it is based on a secondary source! 27 Thus, in decid- 
ing that the "Manual" trumps any and all disclaimers, they went completely astray. 
Since nobody can afford the time to go through every cite in a Study comprising 
thousands of pages, I can only express the hope that this wild goose chase is the ex- 
ception rather than the rule. 

But is the Israeli "Manual" the only non-manual? I wonder. It should be men- 
tioned that there are many references to a UK manual of 1 98 1 on the Law of Armed 
Conflict (listed separately and independently of the 1958 British Military Man- 
ual). 28 In reality, there have been only three UK manuals on the subject of the law of 
armed conflict. The first one (written jointly by L. Oppenheim and Colonel JE 
Edmonds) was a chapter of the Army Manual of Military Law published in 1914 
and revised in 1936. The second (written by Hersch Lauterpacht with the assistance 
of Colonel Gerald Draper), again a part of the Army Manual of Military Law, came 
out in 1958. The third (written jointly by several authors), a completely new and 
separate Manual of the Law of Armed Conflict, was issued by the Ministry of De- 
fence in 2004, not in time for inclusion in the Study. It is not clear what the 1981 
text represents. 

When the ICRC decided to look into its own (otherwise closed) archives to re- 
search some 40 recent armed conflicts, the news was greeted with enthusiasm. Ev- 
erybody hoped that the research would yield a trove of inaccessible State practice. 
In the event, the results have been quite disappointing. First off, although the con- 
flicts are specified in a general list, 29 no identification of the State (or rebel group) 
concerned is made in context. This already diminishes considerably from the 
weight that one can attach to the practice concerned. Secondly, and even more sig- 
nificantly, the "practice" cited is often of no practical use. What value added to the 
law of armed conflict in non-international armed conflicts can be derived, for in- 
stance, from the following vignette: "The Head of Foreign Affairs of an armed op- 
position group told the ICRC in 1995 that his group was conscious of the necessity 
to respect and to spare the civilian population during an armed conflict"? 30 This, 
lamentably, is quite typical of the kind of statements that the Study distilled from 
the archives. Even when more specificity is added, the result can be the following: 
"In 1991, an official of a State rejected an ICRC request to protect the civilian pop- 
ulation from pillage by government troops. He replied that as long as they pro- 
vided a hiding place for rebels, the army would burn the fields if necessary. 
However, this behaviour was not representative of the general opinion of the mili- 
tary personnel met by the ICRC in this context." 31 If civilian fields are burnt, to 
deny a hiding place to rebels, why is this legally deemed "pillage"? 32 And, whatever 
the juridical taxonomy, why does one statement by one unidentified organ of an 
unknown State — inconsistent with other statements by other organs of the same 

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Yoram Dinstein 



State — shed any light on that State's practice? We are not told what actually hap- 
pened or what the circumstances were; nor are we informed about the relative 
ranks of the officials adverted to. And so it goes. 

The Rules 

Having focused so far on methodology, it is necessary to consider some of the 
Rules — constituting the backbone of the Study — and the commentary thereon. I 
do not take issue with many of the black-letter Rules and much of the commentary, 
as presented in Volume I of the Study. But I believe that there are grave errors in the 
formulation of some of the Rules, and part of the commentary, in ways that ad- 
versely affect the ability of the Study to project an image of objective scholarship. 

Rule 1 starts off with an unassailable statement that a [t]he parties to the conflict 
must at all times distinguish between civilians and combatants." 33 But then, in Rule 
5, the dichotomy changes from civilians/combatants to civilians/members of the 
armed forces: " [c] ivilians are persons who are not members of the armed forces." 34 
Is that so? Rule 3 rightly states that, in fact, not all members of the armed forces are 
combatants, since medical and religious personnel are excluded from that cate- 
gory. 35 By the same token, not every person who is not a member of the armed 
forces is a civilian. In particular, by directly (or actively) participating in hostilities, 
a person who claims to be a civilian loses that protective mantle and becomes a 
(perhaps unlawful) combatant. 36 Even Additional Protocol I, in its "Basic rule" — 
Article 48 37 — distinguishes between the civilian population and combatants; and 
in its definition of civilians — Article 50 ( l) 38 — prescribes that civilians are persons 
who do not belong to certain categories of persons, including the category referred 
to in Article 4A(2) of Geneva Convention (III) (covering irregular troops). 39 By 
switching the dichotomy from civilians/combatants to civilians/members of the 
armed forces, the Study lays the ground to loading the legal dice. If the antonym of 
civilians under customary international law is members of the armed forces, it fol- 
lows (as the ICRC believes) that civilians who directly (or actively) participate in 
hostilities do not lose their classification as civilians. Conversely, if — as I think the 
right approach is — the antonym of civilians is combatants, civilians who directly 
(or actively) participate in hostilities may turn themselves into unlawful 
combatants. 

One of the cardinal causes for the "Great Schism" — sharply dividing Con- 
tracting and non-Contracting Parties to Additional Protocol I — is the utter and 
unqualified rejection by the latter countries of those provisions of the Protocol 
that, to all intents and purposes, eliminate the status of unlawful combatants in all 
cases except spies and mercenaries. 40 The epicenter of the controversy lies in the 

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The ICRC Customary International Humanitarian Law Study 

combination of Articles 43 and 44. 41 Rule 4 of the Study simply reiterates some of 
the language of Article 43 of Additional Protocol I: "The armed forces of a party to 
the conflict consist of all organized armed forces, groups and units which are under 
a command responsible to that party for the conduct of its subordinates." 42 The 
commentary treats this definition as customary international law, trying to create 
the impression that organization and discipline (rather than distinction from civil- 
ians) are the gist of the matter; and — whereas the commentary briefly refers to the 
other, cumulative, Hague and Geneva conditions of lawful combatancy (which 
non-Contracting Parties to Additional Protocol I continue to regard as of es- 
sence) — it makes short shrift of them and somehow manages to convey the mes- 
sage that even Article 44 of the Protocol (one of the key sources of the "Great 
Schism") hardly presents a real problem. 43 This is plainly misleading. 

In a written comment to the ICRC on an earlier (but not much different) ver- 
sion of Rule 4, 1 stated: 

Rule 4. The text and commentary are highly objectionable. Israel utterly and 
unreservedly rejects Articles 43-44 of Additional Protocol I as a source of customary 
international law. Israel adheres to the original texts of the Hague Regulations and the 
Geneva Conventions and does not accept any and all changes that Articles 43-44 of the 
Protocol purport to introduce. Allow me to add that the objections to Articles 43-44 lie 
at the root of the refusal to ratify the Protocol. Should the ICRC attempt to gloss over 
the fundamental differences of opinion re this crucial issue, the whole study will be 
irremediably flawed. 

The authors of the Study did not heed these cautioning words, nor did they choose 
to allude to them in the commentary's footnotes. Instead, the commentary — in 
trying to establish the case for the customary nature of Rule 4 and in attempting to 
create the false impression that the customary definition is mainly concerned with 
the discipline and organization of the armed forces — purports to rely even on the 
practice of non-Contracting Parties to Additional Protocol I: a footnote relies spe- 
cifically on the practice of the United States. 44 The US text cited (appearing in The 
Commander's Handbook on the Law of Naval Operations) is quoted in the Prac- 
tice volume, but lo and behold: it does not confine itself to discipline and organiza- 
tion; it explicitly speaks about members of forces "who are under responsible 
command and subject to internal military discipline, carry their arms openly, and 
otherwise distinguish themselves clearly from the civilian population." 45 These last 
Hague/Geneva conditions are of course the crux of the issue. And, in the Anno- 
tated Supplement to The Commander's Handbook, the text is followed by a foot- 
note which mentions expressly the construct of unlawful combatants. 46 



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Yoram Dinstein 



It must be added that when the emergence of customary international law sub- 
sequent to a treaty (in this instance, Additional Protocol I) is examined, it is the 
practice of non-Contracting Parties that carries the day. In the 1969 North Sea Con- 
tinental Shelf cases, the International Court of justice made it amply clear that — in 
analyzing the post-treaty practice of States, with a view to establishing whether a 
new custom has been created in the wake of the treaty — it is required to leave aside 
(and not to consider as a reliable guide) not only the practice of Contracting Parties 
among themselves but even the practice among States that shortly would become 
Contracting Parties, since they were all "acting actually or potentially in the appli- 
cation of the Convention." 47 The Court held that " [f]rom their action no inference 
could legitimately be drawn as to the existence of a rule of customary international 
law" generated by the treaty. 48 The Court therefore concentrated on the practice of 
"those States . . . which were not, and have not become parties to the Convention," 
the goal being to find whether an "inference could justifiably be drawn that they 
believed themselves to be applying a mandatory rule of customary international 
law." 49 The authors of the Study are fully aware of this ruling of the Court, although 
they made a deliberate decision not to confine the Study to the practice of non- 
Contracting Parties to Additional Protocol I. 50 On the central issue of unlawful 
combatancy, that decision led them to an overt misreading of customary interna- 
tional law. 

There are manifold other issues. For instance, Rule 6 states, as a matter of cus- 
tomary international law, that "[civilians are protected against attack unless and 
for such time as they take a direct part in hostilities." 51 Nobody would challenge 
most of the sentence. However, the words "and for such time" — which are based 
on Article 51(3) of Additional Protocol I 52 — are contested. The Study relies on 
practice, including that of the United States, but when one takes a look at The 
Commander's Handbook, which is explicitly cited more than once, 53 it is striking 
that the text omits the words "and for such time"! 54 Moreover, although in my 
written comments to the ICRC, I had observed: "Rule 6. Israel does not accept the 
qualifying phrase 'for such time', which — incidentally — has been removed from 
Article 8 of the Rome Statute . . . ," no account was taken in the Study's commentary 
either of the remark itself or of the deletion of the words "and for such time" from 
Article 8(2)(b)(i) of the 1998 Rome Statute of the International Criminal Court. 55 

It is not proposed here to parse every Rule in the Study. However, it is notewor- 
thy that Rule 35 sets forth that "[directing an attack against a zone established to 
shelter the wounded, the sick and civilians from the effects of hostilities is prohib- 
ited." 56 As the commentary mentions, the idea is based on the provisions of Article 
23 of Geneva Convention (I) 57 and Articles 14-15 of Geneva Convention (IV) 58 
(dealing with hospital zones, safety zones and neutralized zones). But, as the ICRC 

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The ICRC Customary International Humanitarian Law Study 

Commentary on Geneva Convention (I) states categorically, "[t]he zones will not, 
strictly speaking, have any legal existence, or enjoy protection under the Conven- 
tion, until such time as they have been recognized by the adverse Party." 59 The 
same observation appears in the Commentary on Geneva Convention (IV). 60 
Where does the text of Rule 35 even imply that the establishment of a protected 
zone cannot be effected without the prior consent of the other side? 

It seems that the concept of consent is not an easy construct for the framers of 
the Study. Thus, Rule 55 states tout court that "[t]he parties to the conflict must al- 
low and facilitate rapid and unimpeded passage of humanitarian relief for civilians 
in need, which is impartial in character and conducted without any adverse dis- 
tinction, subject to their right of control." 61 This obligation is based on Article 70 of 
Additional Protocol I, except that Article 70 adds the pivotal caveat (missing from 
Rule 55): "subject to the agreement of the Parties concerned in such relief ac- 
tions." 62 Even the ICRC Commentary on Additional Protocol I does not claim 
more than that Article 70 may be construed as precluding refusal of agreement to 
allow relief for arbitrary or capricious reasons. 63 Surely, as I have argued elsewhere, 
"[i]t is impossible to assert, at the present point, that a general right to humanitar- 
ian assistance has actually crystallized in positive international law." 64 This is a 
prime example that the Study — instead of looking for a compromise between Con- 
tracting and non-Contracting Parties to Additional Protocol I — actually tran- 
scends the Protocol (which is lex lata for the former States) and moves into the 
realm of the lex ferenda (for both the former and the latter States). Curiously 
enough, in the commentary on Rule 55, the requirement of consent in Additional 
Protocol I and Additional Protocol II is explicitly mentioned, but there follows a 
vague statement that "[m]ost of the practice collected does not mention this re- 
quirement." 65 Uncharacteristically, no footnote accompanies the proposition, and 
it is not spelled out whose practice this is in reference to. 

Rule 45 of the Study 66 confirms the customary standing of the provisions of Ar- 
ticles 35(3) and 55(1) of Additional Protocol I, which prohibit the use of methods 
or means of warfare expected to cause widespread, long-term and severe damage to 
the natural environment. 67 The commentary on Rule 45 mentions objections by 
France, the United Kingdom and the United States, adding: 

[Tjhese three States are especially affected as far as possession of nuclear weapons is 
concerned, and their objection to the application of this specific rule to such weapons 
has been consistent since the adoption of this rule in treaty form in 1997. Therefore, if 
the doctrine of "persistent objector" is possible in the context of humanitarian rules, 
these three States are not bound by this specific rule as far as any use of nuclear 
weapons is concerned. 68 



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The extract reveals total confusion between two completely disparate concepts in 
the modern analysis of customary international law, namely, "persistent objector," 
on the one hand, and "States whose interests are specially affected," on the other. 

The "persistent objector" doctrine (supported by most commentators) main- 
tains that a State, which persistently and unequivocally objects from the outset to 
the emergence of a new customary rule, cannot be held bound by that rule. 69 A 
timely "persistent objector" cannot be caught in the net of the new custom, but 
otherwise that custom will bind the entire international community. In other 
words, the custom will consolidate — notwithstanding the opposition — although it 
will not affect the "persistent objector." 

The construct of "States whose interests are specially affected" was developed by 
the International Court of Justice, in the North Sea Continental Shelf cases. 70 These 
are States with priority in contributing to the creation of customary international 
law (the paradigmatic example being that of the chief maritime States where the 
law of the sea is concerned). If several "States whose interests are specially affected" 
object to the formation of a custom, no custom can emerge. 

When three nuclear Powers — the United States, the United Kingdom and 
France — have taken the position that Rule 45 does not reflect customary interna- 
tional law, there is no doubt that they act as "States whose interests are specially af- 
fected" (as conceded by the commentary quoted above). By arriving at the 
conclusion that (at the most) the three Powers can only be viewed as "persistent 
objectors" — and that, therefore, they will not be bound by the custom which has 
emerged — the Study gets the law completely wrong. There is no question that, 
when adopted in 1977, Articles 35(3) and 55( 1) were innovative in character. 71 The 
question, consequently, is whether custom has developed thereafter, and it cannot 
be denied that three leading members of the small and select "nuclear club" have 
opposed it vocally since 1977. Surely, as "States whose interests are specially af- 
fected," the three countries cannot be relegated to the status of persistent objection. 
By repudiating the putative custom protecting the environment from all means of 
warfare, the three nuclear States have not merely removed themselves from the 
reach of such a custom: they in fact managed to successfully bar its formation (as a 
minimum, with respect to the employment of nuclear weapons). 

Finally, Rule 77 states that "[t]he use of bullets which expand or flatten easily in 
the human body is prohibited." 72 1 explicitly transmitted to the ICRC the official 
position of Israel re the use of expanding bullets, namely, that it is permissible for 
domestic law-enforcement purposes, as well as in the fight against terrorists and 
"suicide bombers" (when every split-second counts and there is a vital need to pre- 
vent the completion of their heinous attack). Once more, unfortunately, this is not 
reflected in the commentary. 

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The ICRC Customary International Humanitarian Law Study 

Conclusion 

In order not to further complicate the discussion, I did not get into specific issues 
of non-international armed conflicts in this paper. This is not to suggest that the 
Study is unassailable where such conflicts are concerned. But an examination of 
the Study's provisions thereon raises different issues and deserves a separate paper. 
On the whole, as regards international armed conflicts, I am afraid that the 
Study clearly suffers from an unrealistic desire to show that controversial provi- 
sions of API are declaratory of customary international law (not to mention the 
occasional attempt to go even beyond API). By overreaching, I think that the 
Study has failed in its primary mission. After all, there is no practical need to 
persuade Contracting Parties to API that it is declaratory of customary interna- 
tional law. Whether or not such is the case, Contracting Parties are bound by 
API by virtue of their consent to ratify or accede to it. But there is a need to per- 
suade non-Contracting Parties that they must comply with a large portion of API: 
not because it is a treaty but because it is general custom. I do not think that non- 
Contracting Parties will be persuaded by the conclusions of the Study. Thus, the au- 
thors missed a golden opportunity to bring Contracting and non-Contracting 
Parties to API closer together. Indeed, at least on some central points, far from 
bridging over the present abyss, the Study will only drive the two sides of the 
"Great Schism" farther away from each other. 

Notes 

1. Jean-Marie Henckaerts & Louise doswald-Beck, Customary International 
HUMANITARIAN LAW (2005) (2 volumes: Volume I, Rules; Volume II, Practice (2 Parts)). 

2. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, June 8, 1977 [hereinafter Additional 
Protocol I], reprinted in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard 
Guelffeds.,3ded. 2000). 

3. Yoram Dinstein, The Application of Customary International Law Concerning Armed 
Conflicts in the National Legal Order, in NATIONAL IMPLEMENTATION OF INTERNATIONAL 
Humanitarian Law: Proceedings of an International Colloquium Held at Bad 
HOMBURG, JUNE 17-19, 1988, at 29, 34 (Michael Bothe ed., 1990). 

4. See Yoram Dinstein, International Humanitarian Law and Modern Warfare., in 

INTERNATIONAL EXPERT CONFERENCE ON COMPUTER NETWORK ATTACKS AND THE 

Applicability of International Humanitarian Law 17, 18-19 (Karin Bystrom ed., 2004). 

5. Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 
[hereinafter Additional Protocol II] , reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 
2, at 483. 

6. Additional Protocol I, supra note 2, arts. 61-67, at 456-461. 



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Yoram Dinstein 



7. Statute of the International Court of Justice, June 26, 1945, 33 U.N.T.S. 993. 

8. Anthony D'Amato, The Concept of Custom in International Law 88 ( 197 1 ). 

9. Karol Wolflce, Some Persistent Controversies Regarding Customary International Law, 24 
Netherlands Yearbook of International Law l, 3 (1993). 

10. HENCKAERTS & DOSWALD-BECK, supra note 1, Vol. I, at xxxii. 

11. Id. at xxxv. 

12. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 254- 
55 (July 8). 

13. See 1 OPPENHEIM'S INTERNATIONAL LAW 21 (Robert Jennings & Arthur Watts eds., 9th ed. 
1992). 

14. See especially Additional Protocol I, supra note 2, art. 81(1), at 752. 

15. This policy is rather briefly and unpersuasively defended in HENCKAERTS & DOSWALD- 
BECK, supra note 1, Vol. I, at xxxv. 

16. See id., Vol. II, Part 2, at 400. 

17. Id., Vol. I, at xxxv. 

18. For an example, see id., Vol. I, at 38 and Vol. II, Part 1, at 266 (regarding the prohibition of 
indiscriminate attacks). 

19. For several instances of such apparently fruitless exhortations, see id., Vol. II, Part 1, at 267- 
69. 

20. Mat 450. 

21. Id., Vol. II, Part 2, at 2105. 

22. Id., Vol. II, Part 1, at 232, 324-25. 

23. Id., Vol. II, Part 2, at 4201. 

24. Id., Vol. I, at 221. 

25. Mat 225. 

26. id. at n. 152. 

27. Id., Vol. II, Parti, at 1381. 

28. Id., Vol. II, Part 2, at 4206. 

29. Id., Vol. I, at xlix-1. 

30. Id., Vol. II, Parti, at 161. 

31. Id. at 1105. 

32. For a definition of pillage emphasizing the private or personal use of the pillaged property, 
see id., Vol. I, at 185. 

33. Id. at 3. 

34. Id. at 17. 

35. Id. at 11. 

36. On unlawful combatancy, see YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER 

the Law of International Armed Conflict 27-54 (2004). 

37. Additional Protocol I, supra note 2, at 447. 

38. Id. at 448. 

39. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 
U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 2, at 244, 246. 

40. See DINSTEIN, supra note 36, at 44-47. 

41. Additional Protocol I, supra note 2, at 444-45. 

42. HENCKAERTS & DOSWALD-BECK, supra note 1, Vol. I, at 14 et seq. 

43. Id. at 14, 16. 

44. Id. at 14, n.91. 

45. Id., Vol. II, Parti, at 93. 



Ill 



The ICRC Customary International Humanitarian Law Study 

46. Annotated Supplement to The Commander's Handbook on the Law of Naval 
OPERATIONS 296 (A. R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US Naval War College 
International Law Studies). 

47. North Sea Continental Shelf, (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J 3, 43 (Feb. 20). 

48. Id. 

49. Id. at 43-44. 

50. HENCKAERTS & DOSWALD-BECK, supra note 1, Vol. I, at xliv. 

51. Mat 19. 

52. Additional Protocol I, supra note 2, at 448. 

53. HENCKAERTS & DOSWALD-BECK, supra note 1, Vol. I, at 20, and Vol. II, Part 1, at 1 10, 1 17. 

54. Annotated Supplement, supra note 46, at 484. 

55. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, reprinted 
in 37 International Legal Materials 999, 1006. 

56. HENCKAERTS 8c DOSWALD-BECK, supra note 1, Vol. I, at 1 19. 

57. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31, reprinted in DOCUMENTS ON THE 
LAWS OF WAR, supra note 2, at 197, 206. 

58. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 
12, 1949, 75 U.N.T.S. 287, reprinted in id. at 301, 306-07. 

59. l Commentary on the Geneva Conventions of 12 August 1949, at 215 (Jean S. Pictet 
ed., 1952). 

60. 4 Commentary on the Geneva Conventions of 12 August 1949, at 127 (Oscar M. 
Uhler 8c Henri Coursier eds., 1958). 

61. HENCKAERTS 8c DOSWALD-BECK, supra note 1, Vol. I, at 193. 

62. Additional Protocol I, supra note 2, at 462. 

63. Commentary on the Additional Protocols of 8 June 1977 to the Geneva 
CONVENTIONS OF 12 AUGUST 1949, at 819 (Yves Sandoz, Christophe Swinarski, Bruno 
Zimmermann eds., 1987). 

64. Yoram Dinstein, The Right to Humanitarian Assistance, 53 NAVAL WAR COLLEGE REVIEW 
77 (2000). 

65. HENCKAERTS 8c DOSWALD-BECK, supra note 1, Vol. I, at 196. 

66. Id. at 151-52. 

67. Additional Protocol I, supra note 2, at 442, 451. 

68. HENCKAERTS 8c DOSWALD-BECK, supra note 1, Vol. I, at 154-55. 

69. See Committee on Formation of Customary (General) International Law, Final Report, 
International Law Association, 69th Conference 712, 738-39 (2000). 

70. North Sea Continental Shelf, supra note 47, at 43. 

71. See HENCKAERTS 8c DOSWALD-BECK, supra note 1, Vol. I, at 152. 

72. Mat 268. 



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PART III 



LAW OF ARMED CONFLICT DISSEMINATION 



V 



The American Red Cross and International 
Humanitarian Law Dissemination 



Lucy Brown* 

We heard about Nuremburg — and stuff about World War II in other classes in school, 
but it didn't really mean anything . . . now I understand why ifs important. 

Introduction 

For well over a decade, the American Red Cross (ARC) has been telling the 
United States civilian population that international humanitarian law (IHL) 
is an important subject about which everyone needs to be knowledgeable. The 
ARC outreach occurs primarily at a grassroots level, through our chapter network 
around the country, and focuses on dissemination to the general public. It is our 
hope, and a goal of our dissemination, that the majority of students — as well as 
adults — in the United States will be able to say, as the high school student quoted 
above did, that they know what IHL is and they understand why it's important. 

IHL Dissemination in the US Context 

Since the attacks of 9/1 1 and the US engagement in Afghanistan and Iraq there has 
been a marked increase in organizations speaking to the American public about 
IHL. I think this is very much a "good news/bad news" phenomenon. It is wonder- 
ful that Americans are much more interested in a subject that not many found 



* Senior Advisor, International Humanitarian Law, American Red Cross. 



International Humanitarian Law Dissemination 



relevant only a few years ago. What is unfortunate is the reason they find it rele- 
vant — that armed conflict now affects many more people in this country. 

The Role of the American Red Cross 

We are often asked, especially by those in the military, why we say "international 
humanitarian law" instead of "law of armed conflict" or "law of war." The answer 
is that while we sometimes use the terms interchangeably, our perspective is the 
humanitarian one and it is focused primarily on teaching the Geneva Conventions. 
In our courses we situate IHL within the wider context of international law, includ- 
ing Hague law. Our objective, however, is to increase protection for vulnerable 
groups in armed conflict and facilitate humanitarian work by raising awareness 
within the general public about the 1949 Geneva Conventions and their 1977 Pro- 
tocols. While the content of our training overlaps with the military's law of war 
training, the military understandably has an additional emphasis on Hague law, fo- 
cusing on the means and methods of warfare. 

In our dissemination we also explain the role of the Red Cross Movement — 
what it is and what it is not. We have learned that many people think the Red Cross 
is a human rights organization, and that IHL is synonymous with human rights 
law. We explain to them, for example, that while the Red Cross is not a human 
rights organization as such, much of the work it does benefits people's human 
rights. 

Sometimes members of the public are surprised to discover the Red Cross is not 
an organization whose primary purpose is to promote peace. However, we discuss 
how a byproduct of Red Cross efforts in conflict regions can help facilitate a return 
to peace, and a byproduct of Red Cross principles being understood and acted on 
can help promote peaceful coexistence among antagonistic groups. 

Sometimes we have to correct the mistaken notion that the Red Cross is respon- 
sible for enforcing the rules of IHL against those who commit violations. I think 
people imagine some kind of international Red Cross police force and expect to see 
Red Cross staff providing testimony against war criminals. They do not realize how 
impossible that would be for a Movement based on the principles of humanity, im- 
partiality and neutrality — whose most powerful weapon may be its ability to be 
present on both sides of a front line. 

One of our challenges over the years is what to call our program. Just the term 
"international humanitarian law" is a real mouthful and can be very off-putting. 
That is why we settled on "Humanity in the Midst of War." That phrase comes 
much closer to expressing the message we want to convey — that respect for IHL 



116 



Lucy Brown 

helps ensure that the principle of humanity, and humanitarian actions themselves, 
will continue to exist, even in the midst of war. 

We let people in our classes know that they, as individuals, have an important 
role to play in making this happen. Many people feel a profound sense of helpless- 
ness when faced with the brutality and suffering of war. They would like nothing 
more than to turn away. We tell them IHL makes a difference and that they them- 
selves can make a difference — for humanity. 

Why Is the ARC Involved in Dissemination? 

Our responsibility for dissemination derives from the Geneva Conventions and 
our role as an auxiliary to the US Government under our 1905 Congressional 
Charter. The Statutes of the International Red Cross and Red Crescent Movement 
explicitly state that national Red Cross and Red Crescent societies are to "dissemi- 
nate and assist their governments in disseminating international humanitarian 
law; they take initiatives in this respect." 

The American Red Cross began its dissemination program with a 1988 grant 
from the US Institute of Peace that enabled us to develop our educational materials 
for the general public. Then in 1991 the International Services Department of the 
American Red Cross received an internal grant to develop an instructor training 
curriculum. Starting in 1993 we began a series of instructor training courses. 

What Is the Message? 

We focus on very basic messages that address protection and human dignity. Ex- 
amples include: 

• That those no longer taking an active part in hostilities — wounded, sick and 
captured combatants, and civilians — must be protected from harm and treated 
with respect regardless of what side they are on. 

• That people in these protected groups are entitled to humane treatment. We 
ask a class what rules they think should apply in armed conflict. Then we ask: 
"How should a prisoner be treated if he has just killed your buddy?" and then 
"What if the prisoner is your brother?" 

• Another message is that governments have the primary responsibility for 
enforcing IHL and that the Red Cross, the International Committee of the Red 
Cross in particular, has a role in implementing it. 

• We point out that the Geneva Conventions are treaties, agreements 
negotiated by governments, and they therefore reflect a balance between 
humanitarian protections and military objectives. This comes as a surprise to 
some people, who wonder why IHL doesn't just outlaw war. 



117 



International Humanitarian Law Dissemination 



• We stress the importance of the principle of distinction (combatant vs. 
noncombatant), but also discuss how civilians can lose protections by 
participating in the fighting. 

• We talk about the US military's own training for soldiers and give examples 
of how the provisions of the Geneva Conventions have been incorporated into 
military operational training. We now show a portion of a US Marine Corps law of 
war training video in our classes and distribute a handout on the "Basic Principles 
of the Law of War" as provided to Marines. We believe it is essential that the 
American public understand how seriously the majority in our military takes this 
body of law. 

These are a few of the basic messages we think an informed public needs to 
know. 

Who Do We Want to Reach — What Target Groups? 

Our dissemination program is designed primarily for the general public. It is the 
audience we reach best, as anyone who is familiar with our first aid, CPR or water 
safety classes, to name a few, understands. It is seen as part of our organization's 
mission to help communities prevent, prepare for and respond to emergencies. 

However, within the general public we have some priority audiences, including: 
1) American Red Cross internal audiences and prospective instructor/dissem- 
inators; 2) youth and educators; and 3) opinion leaders within the general public, 
including in the media, academia, and in community leadership positions. 

We do offer some programs for more specialized or expert audiences, but these 
are fewer in number and are mostly dependent upon the level of expertise, motiva- 
tion and opportunity of individual instructors. 

How Do We Do It? 

Our dissemination program is based on a national instructor training model 
through which over 300 American Red Cross instructors have been trained in over 
25 training sessions. Since 1993 these instructors have reached over 324,000 people 
through introductory courses and presentations in communities around the coun- 
try. These courses and presentations have been organized and coordinated by our 
network of over 800 local chapters, although, of course, not all our chapters have 
the capacity to offer IHL instruction. It is important to realize that for the most part 
instructors are not legal experts, but act instead as facilitators to guide and stimu- 
late discussion and learning. 



118 



Lucy Brown 

While the IHL courses tend to generate excitement and interest in those who 
attend, we have had limited human and financial resources from the very begin- 
ning of the dissemination effort and our reach has been much smaller than we 
would like. We hope to change that. We recently streamlined our instructor train- 
ing model and the IHL course itself to bring them more into alignment with other 
American Red Cross training models, thereby hopefully expanding the number of 
people we can reach. 

Exploring Humanitarian Law and IHL Dissemination to Youth 

A major part of our current strategy is to make IHL dissemination to youth — 
through a program called "Exploring Humanitarian Law" — a priority. 

Why Focus on IHL Dissemination to Youth? 

The advantage of exposing young people to the Geneva Conventions at an early age 
is obvious. As one military lawyer put it rather succinctly, "The last thing we want is 
for young people to come into the military thinking it's okay to harm prisoners." 
Exploring Humanitarian Law (EHL) is the best material I have ever seen for 
teaching IHL to youth. To date, the feedback from teachers and students has been 
overwhelmingly positive. As one student said: 

It gives you a whole new perspective ... a bigger perspective. People don't think about 
these things because we live in America and war seems so far away . . . but war isn't 
really far away and all of this is a lot closer than people think. It changed the way I 
think 

EHL was developed by the ICRC working with the Educational Development 
Corporation, based in Boston, and the American Red Cross was one of the original 
pilot sites. It is a resource pack of materials designed to use with adolescents and 
can be used alone or to enrich existing classroom materials. 

EHL teaches students respect for human life and dignity, ethical judgment, life 
skills, global citizenship, the protections of the Geneva Conventions and the role of 
the Red Cross. Students learn by actively participating in a series of ethical explora- 
tions that look at both historical and contemporary examples and that examine 
concepts such as: 

• Human dignity 

• Obstacles to humanitarian behavior 

• Dilemmas 



119 



International Humanitarian Law Dissemination 



« The chain of consequences 
• Multiple perspectives 

Exploring Humanitarian Law is currently being implemented in 95 countries 
through national Red Cross and Red Crescent societies and ministries of educa- 
tion. In the United States, it has been aligned with the national standards for high 
school social studies; but it is also used in other classes, including: psychology, his- 
tory, anthropology, economics, global studies, geography and political science. Ex- 
tracurricular groups have begun using the materials, including some Junior 
Reserve Officer Training Course classes. These materials resonate at the deepest 
level with both students and teachers. 

The American Red Cross is currently seeking funding to expand the program to 
reach thousands of teachers and millions of students. We are working on the devel- 
opment of an EHL distance-learning course for teachers and exploring ways to in- 
clude the study of IHL in the curriculum offered by American high schools. It is 
not an easy task in a country with, in effect, 50 separate departments of education. 
However, if we can expand EHL into many more classrooms, it will be a major 
leap forward for IHL dissemination in the United States. We have shared these 
materials with individuals at the Department of Defense, who have responded 
very positively. 

Conclusion 

A few years ago when I was interviewed by MTV for an article they wrote for their 
online news titled What Are the Geneva Conventions? I explained that whoever said 
"All's fair in love and war" only got it half right. My remark was obviously designed 
to draw the attention of a young audience to the fact that there are widely agreed 
upon standards for humane treatment in war. Making these standards much more 
widely known and accepted is a goal worthy of all our best efforts. 



120 



VI 



Teaching the Law of Armed Conflict to 
Armed Forces: Personal Reflections 



David Lloyd Roberts* 

Introduction 

The International Committee of the Red Cross' (ICRC) approach to training 
the armed forces in the law of armed conflict, as well as some of my personal 
approaches, will be addressed under the following subheadings: 

• Problems that might be faced by armed forces in teaching and applying the law. 

• The need to accept that training must be based on the realities and pressures 
of combat. 

• The approach to training soldiers, young officers and senior officers. 

• Suggested gaps in the teaching of the law. 

• Views on whether that training is accepted and implemented in battle. 

The ICRC Approach 

In terms of dissemination, the ICRC has a supporting role. Its aim is to assist the 
military wherever possible in carrying out their responsibilities in relation to train- 
ing and teaching the law of armed conflict. Its mandate stems directly from the 



* Independent consultant and lecturer in the law of armed conflict and human rights law, as well 
as humanitarian security issues. The views expressed in this article are the author's alone unless 
reference is made to specific ICRC policy. 



Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

Geneva Conventions of 1949 l and the Additional Protocols of 1977, 2 as well as res- 
olutions stemming from the Fourth Session of the 1974-1977 Diplomatic Confer- 
ence on the Reaffirmation and Development of International Humanitarian Law 
Applicable in Armed Conflicts. 3 

How does the ICRC carry out this mandate? In its headquarters in Geneva, the 
ICRC has a small department dealing with relations with armed and security 
forces. Then throughout the world there are officers based on regional delegations. 
These officers are known as "Delegates to the Armed Forces." All are retired and all 
have seen some form of operational service with their own forces or with the 
United Nations. Their task is to make contact with the armed forces of the region in 
which they are working and to explain how and to what extent the ICRC can offer 
assistance based on their particular requirements. The key is assistance and coop- 
eration. It is certainly not the ICRC's mandate or intention to assume the full re- 
sponsibility of an armed force to train its own personnel in the law. Many countries 
have their own system of dissemination in place while others have nothing. 

The strategy is essentially one of encouraging armed forces to integrate the law 
of armed conflict into their training and operations. This is based on initial confi- 
dence building, e.g., meetings, briefings and introductory courses. This would be 
followed by training courses for selected officers resulting in the actual training of 
trainers. Thereafter, the ICRC might offer assistance in the drawing up of law syl- 
labi so that the law is integrated into all levels of training and operational planning. 

The ICRC Delegates to the Armed Forces can offer the following: 

• A wide-ranging experience in combat and other military operations. These 
new and different experiences can be shared with an armed force to broaden 
knowledge. 

• Access to good teaching material, produced by the ICRC in Geneva and 
specifically tailored to the needs of the particular country. The ICRC's new 
Teaching File for Armed Forces is a good example of this. Its purpose is to provide 
instructors with the basic tools they require to conduct lessons in the law of armed 
conflict. It consists of twelve lessons covering the whole subject, including human 
rights law and standards applicable to the use of force in internal security 
operations. 4 It has been translated into a number of languages including French, 
Russian, Chinese, Spanish, Mongolian and Amharic. In order to keep abreast of 
new developments or simply for more detailed advice on particular issues, the 
delegates also have access to the large legal department at the ICRC headquarters 
in Geneva. 

• The delegates bring to their instruction their operational experience, but 
because they are also from the ICRC they are impartial and neutral in what they 



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have to say. It is for the students and staff of colleges and academies to relate the 
law to their own particular circumstances. It is definitely not the role of the ICRC 
instructor. 

• Because they have been soldiers and because they have sat through lectures 
at their own military academies or staff colleges, they know how easy it is for 
lecturers to send students to sleep, particularly when the topic is law. They try 
therefore to inject realism and interest into their presentations and to motivate 
their audience by a mix of programming and training aids. Case studies using up- 
to-date examples are a particularly valuable way of bringing the subject alive and 
encouraging a cross flow of ideas and discussion. In addition to lectures and 
courses, the instructors can offer assistance with seminars, training programs and 
the provision of training booklets. Courses can be tailored to the specific needs of 
army, navy, air force, paramilitary and police personnel. The human rights law 
and standards applicable to lower levels of internal violence are more and more in 
demand, particularly from the military. 

• Finally, the ICRC can sponsor senior officers at courses either in Geneva, or 
more regularly, at the International Institute of Humanitarian Law in San Remo, 
Italy where they have the opportunity to interact with officers from a range of 
countries. 

Personal Approach 

To teach the law you must believe in it. There is no way you could possibly bluff a 
military audience if you did not. Based on my experiences of conflict, I believe that 
the law is sound. It is useful when teaching the law to point out that it was born on 
the battlefield. It is very much soldiers law molded by our ancestors' experiences of 
battle. The law is rich in military tradition and custom; for example, ruses of war, 
perfidy, and the truly customary white flag of truce. One of the principles of war is 
simplicity of action. The law is also simple and straightforward. It is full of good 
practical guidance. In no way does it hinder your actions on the battlefield or, as 
some may think, tie one hand behind your back. In no area does it conflict with the 
principles of war, such as maintenance of momentum, concentration of effort, sur- 
prise and so on. 

The law to which we're referring is today usually called either international hu- 
manitarian law or the law of armed conflict. I still find, however, that soldiers re- 
spond more readily to the subject if we refer to it as the "law of war," and that is the 
term I will use in this article. Knowing the attitude of soldiers to the subject of the 



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Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

law, I like to begin lectures by putting them on the spot and making them think at 
the very outset about the subject so I begin the very first lecture by saying to them: 

I would like to take a guess at what you're thinking right now. Some probably think 
that this is an ideal opportunity to catch up on some well-earned rest. You may be 
saying to yourself "thank goodness I'm not on the assault course or on maneuvers. 
This is absolutely marvelous. I can switch off and let this instructor ramble on for 45 
minutes. I know all about the Geneva Conventions anyway — the law is part of my 
culture and our military traditions. I really don't need to listen to all this legal mumbo- 
jumbo." 

The more skeptical and cynical might well be thinking along the lines of Cicero, 
the very famous orator of ancient Rome, who stated, "Laws are silent amidst the 
clash of arms." 5 In other words, war by its very nature is beyond the law. Wars 
break out when the rule of law breaks down, so that there are no longer any rules. 
It's like finding yourself in the middle of a football match without referees or um- 
pires, so just go for it. The mentality becomes, "We have to win at any cost, so let's 
forget the legal do-gooders." 

Some may hold the view that consideration of the law, while of great interest to 
lawyers, leaves most operational officers, and certainly every soldier, absolutely 
cold. I am sure that the word "law" on military programs immediately brings to 
mind dust-covered old books and instills feelings of boredom or remoteness and, 
to put it quite bluntly, irrelevance. 

Some might actually think the law is important for any professional soldier, but 
they are frightened by it. Becoming conversant with the law represents a massive 
investment of time and effort. How, on top of all the other commitments, can one 
be expected to come to grips with the subject? 

At this stage, and if time allows, one can pose the question "where do you stand 
on the issue?" Having heard what the students think and having involved them in 
the subject from the outset, the time has come to gently point out that they might 
not be quite as knowledgeable as they originally thought. This is done by running 
over once again the differing attitudes described above and asking, "This question 
is for those of you who know all about the Geneva Conventions. If you really do, 
that is fine, but can you tell me exactly what these mean?" A picture of a soldier 
holding a white flag appears on a PowerPoint slide, hands flash up and inevitably, 
the class answer will be "It means I want to surrender." It is not the time to teach 
just yet, so we put the class on hold with the reply, "Let's see later in our lessons if 
you were right or wrong." We move on to the next slide and here few, if any, stu- 
dents know what the symbol of large orange circles is designed to protect. 6 The les- 
son continues in this vein. For example, we can then ask the class if they are sure 

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about their exact duties in relation to the following categories of persons and ob- 
jects: captured combatants, civilians, the Red Cross protective emblem, and the 
wounded, both military and civilian. 

To those who may be among the skeptics and believe that war must be fought 
without rules, we ask: 

Perhaps you would like to consider whether it would be useful to you in battle for some 
provisions of the law to protect you, if you have been captured, from torture while 
under interrogation, or from poisonous gas attacks from your opponent; or to protect 
you if you are a civilian. 

And to those who think the subject is dull and irrelevant, we can ask: 

Are you absolutely sure what your legal responsibilities are when planning an attack? 
Are you sure how and when you can use weapons such as booby traps and 
flamethrowers? How does the law of war differ from the law applicable to internal 
security operations? Are there any differences? 

I end this introduction by saying, "I hope that this has allowed you to focus on 
the relevance of the law of war — to you and to those under your command." By 
now, most are fully awake and most are now fully aware of their shortcomings in 
the subject and motivated to learn more. 

It is important in this approach to training that the instructor has credibility 
with his military audience. An instructor who has experienced conflict will have a 
head start in getting the subject across to the audience. The rapport and under- 
standing in both directions will be immediate and will make any teaching more rel- 
evant and acceptable. Even the language and jargon used will be more digestible 
and acceptable to the audience. This, as I mentioned earlier, is exactly the approach 
used by the ICRC. 

Problems Faced by Armed Forces in Teaching and Applying the Law 

In training armed forces, one must accept that there are certain problems that have 
to be taken into account. Even in the very best of armed forces there will always be 
constraints on training time. At a military academy or a staff college, the comman- 
dant will always be pulled in numerous directions to include more of this or that in 
the syllabus. It is a brave commandant who insists on maintaining a module on the 
law of war. Yet it is in these very institutions that a nation's future high command 
must be instructed in the provisions of the law that are one day likely to influence 
them and their decisions as commanders. Ignorance of the law in light of a nation's 



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Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

obligation under the Geneva Conventions to teach the law is inexcusable. It is in 
peacetime that we have time to consider the law; once the balloon goes up it is then 
too late. 

Commanders must believe in the law and demonstrate by their interest and em- 
phasis on training in peacetime, and, of course, by their behavior in battle that they 
respect the law. Commanders must be trained to know the law and their responsi- 
bilities within it. Setting a bad example or giving unclear, ambiguous orders has 
certainly caused problems in the past and has been a principal root cause of grave 
breaches of the law. 

Once when teaching a bunch of young cadets we came to the coffee break. We 
were sitting with the commandant and his senior officers, separated, thankfully, 
from the cadets. "What you are saying David is all very well but at the end of the day 
I have found that the only way to get information out of a terrorist is to break his 
legs!" I could see and tell from the reaction of my students that they were interested 
and receptive. However, with this sort of barracks room attitude or culture, my 
message would soon be adjusted — "OK, forget what you have just been told. This is 
the way we do it here!" 

Another real problem is that there is indeed a great deal of skepticism and cyni- 
cism out there at the coalface of the law of war. Most audiences will say, "We accept 
what you are telling us. It's all very well us abiding by the law, which of course we 
do. But what about our opponents? They continually break the law and get away 
with it." That is the old "eye for an eye, tooth for a tooth" argument. They ask, 
"Have you been to teach in country XYZ (a potential opposing belligerent) as well? 
Why don't you, the ICRC, or the UN do something about those who abuse the 
law?" Sometimes it is very difficult to accept that in the long run it is better to adopt 
the high moral ground when you know that today your opponent has a policy of 
using suicide bombers and a "no quarter" policy! 

Following on from this is the general feeling that the law is toothless. When, as is 
so often the case, it is abused, the chances of any international body such as the 
United Nations putting an end to it are slim. The powerful can get away with viola- 
tions. There is not a great deal of faith in the United Nations. Often audiences will 
refer to UN resolutions, which are ignored or circumvented. There is also much 
cynicism surrounding the International Criminal Court. No doubt, this will di- 
minish as the court finds its feet and produces results; for the present, however, this 
cynicism remains. 

At a course in Africa, I came face to face with this general feeling of cynicism. It 
was at the end of a two-week session for a very bright group of officers. A senior 
commander arrived from the Ministry of Defense for the farewell speech. We 
spoke a little beforehand and I had told him what I had been doing with the ICRC. 

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David Lloyd Roberts 



In front of the assembled officers, he thanked me very much for my lectures and 
noted that I had spent many years teaching armed forces in Third World countries. 
He said, "Of course we know all about the law of war and have always applied the 
rules in our fighting with our neighbors. May I suggest that the ICRC's time would 
be better spent educating the more civilized nations in this subject who it would 
seem need it more than us!" My course coincided with the disclosures in the writ- 
ten press and television of the alleged abuses of prisoners in Abu Ghraib. 

Training Must Be Based on the Realities and Pressures of Combat 

It is important in training to accept that there are sometimes severe difficulties and 
pressures placed upon a soldier in battle that might incline them to disregard the 
rules they are supposed to obey. There may be fear, tiredness, frustration, anger, 
hunger and stress. There may be the need to overcome the inclination for revenge 
or retribution. This must be controlled by good training, and good clear orders 
which are enforced by good commanders at all levels. 

Let us take a look at some of the pressures. We know that every member of the 
armed forces, whatever his or her rank, has a personal responsibility to comply 
with the law and to ensure that it is complied with by others and to take action in 
the event of violations. 7 If you break the rules, you can be tried, and not just by your 
own courts. 8 

It is no defense to a war crime to say that the act was committed in compliance 
with a superior order. A soldier who carries out an order that is illegal under the law 
of war is guilty of a war crime, provided that he or she was aware of the circum- 
stances which made that order unlawful or could reasonably have been expected to 
be aware of them. 9 

This point is of great significance to any soldier. It is a simple point to make but 
much more difficult for soldiers to carry out in the field. It means they must refuse 
a command if they believe it to be plainly unlawful. Surely unflinching loyalty and 
obedience to superior commanders are fundamental to any armed force. This is 
true, but there is clearly a higher loyalty, to your State and its laws. The duty of all 
soldiers not to comply with unlawful orders is quite clearly established in interna- 
tional law. During the Nuremberg and Tokyo trials that followed the Second 
World War, the defense of superior orders, while considered a mitigating factor in 
relation to sentencing, in no way excused law breakers. The principle has been reaf- 
firmed in modern tribunals such as those set up to deal with war crimes committed 
in the former Yugoslavia and Rwanda. If an order is plainly unlawful, a soldier has a 
duty not to carry it out. Superior orders might be used in mitigation of an offense, 
and might result in reduced punishment, but not as an excuse for an offense. 

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Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

Let's take a look at some other pressures. How about dealing with prisoners of 
war (POW) or other categories of captured persons? Whether they have surren- 
dered or not, they become protected persons under the law the instant they fall into 
the power of the adverse party. The law clearly states that it is forbidden to kill or 
mistreat a combatant who has been taken prisoner or who is hors de combat. That's 
fine on paper but how does it translate onto the battlefield? During and immedi- 
ately after combat, soldiers are still hyped up; the adrenaline is running very high. 
One minute they may be required to kill the enemy and the next they have to treat 
him with kid gloves even though he might well have killed or wounded some of 
their comrades. 

This is obviously a difficult situation, but professional soldiers must cope. The 
best way is to put yourself in the prisoners' position. "Do unto others as you would 
have others do unto you." How would you like to be treated if you had been cap- 
tured? As professional soldiers who now have the upper hand, the time has come to 
show humanity and respect for your opponents. 

The POWs are no doubt tired, disorientated and very frightened. No good sol- 
dier or commander should take advantage of their plight or vulnerability. Bullying 
or mistreatment of POWs is a real problem immediately after capture. Anger and 
frustration might result in this being vented against the prisoner. 

Misguided attempts by unprofessional soldiers to gain information can lead to 
problems. The law is quite clear on this. No coercion whatsoever may be used to 
force a prisoner to give information. Torture, both physical and mental, inhumane 
or degrading treatment or punishment is absolutely prohibited. 10 

The argument of military necessity can never be used to justify torture. For ex- 
ample, we can never say that we needed to torture someone because we knew they 
had vital information that might save the lives of others (sometimes referred to as 
the "ticking bomb scenario"). In combat, torture is not only illegal; it serves little 
military purpose except perhaps to vent anger. It is far more sensible to send a sus- 
pect to the rear where trained interrogators can use their skills within the law to 
gain information. Battlefield interrogation, or as it is sometimes called "tactical 
questioning" can waste valuable time and in most cases will be futile. A well- 
trained and motivated soldier will tell you nothing or, even worse, try to mislead 
you. A frightened prisoner might tell you anything just to ease his plight; so again 
the information is unreliable. Anyway, who will do the questioning? Are they 
qualified interrogators? Do they know what they are doing? Is the information you 
gain reliable? 

Prisoners must therefore be moved as soon as possible to the rear and must not 
be unnecessarily exposed to danger in the meantime. They must not be compelled 
to engage in activities of a military character, for example clearing the way through 

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a minefield. They must be protected against acts of violence, intimidation, insults 
or public curiosity. For example, television crews may take pictures of the group as 
a whole, but only on condition that no prisoner of war is individually identifiable. 
This has not been the case in recent history, with those on both sides flouting the law. 

Training Methodology 

Soldiers 

For soldiers to understand and implement the law it must be presented in a credi- 
ble and digestible way. It is in peacetime that we have time to consider the law, to 
teach and to train. Once the fighting has started, it is too late. For soldiers, the law 
needs to be a part of normal behavior in action. Just as they are taught to fire weap- 
ons, to employ camouflage and concealment, etc., as a matter of routine, they 
should also be taught the basics of the law so that it becomes second nature, a reflex 
action. In battle, a soldier cannot be overburdened with complicated legal jargon 
or rules. He needs simple and understandable guidelines, especially if he is to re- 
spect the law in a combat environment. The KISS approach (Keep It Simple Stu- 
pid) is certainly the best. Long lectures will not be appreciated. The best approach is 
one based on short practical exercises or demonstrations to bring out points and 
then making sure they are repeated in training. Ambush drills, section attacks, and 
fighting in built-up areas exercises can all have a small element of law of war train- 
ing incorporated into them. The scope is simply dependent on the interest and en- 
thusiasm of the instructor. For example, exercises could easily include capture 
drills; correct treatment of prisoners of war; treatment and evacuation of the 
wounded (yours and the enemy's); and respect for the civilian population and pro- 
tected property. Drills for dealing with the white flag of truce and dealing with hu- 
manitarian aid convoys are further examples. All of these scenarios can be built 
into field exercises without too much difficulty; indeed, they tend to make field 
training much more interesting. 

In this way, tactics and law of war issues are seen to be part and parcel of the 
same subject. They become accepted routine procedures, i.e., a matter of normal 
behavior in action. Classroom instruction for soldiers should be kept to the mini- 
mum. Some lectures will be necessary to set the scene. Perhaps one or two periods 
as a maximum, any more and they are likely to prove counterproductive. Here the 
use of playlets to demonstrate a point is particularly useful, for example, the right 
and wrong way to deal with a captured combatant. In addition, up-to-date exam- 
ples of law of war issues, pictures of real events, video clips — sometimes from war 
movies — and so on are important in maintaining interest. Many nations have 



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Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

produced their own law of war training videos; they find them particularly useful 
in getting key messages on the law across to soldiers. 

Junior Officers 

Training of junior officers is, in my view, probably the most important aspect of all. 
These future commanders must be given the opportunity to learn and reflect on 
the subject from the outset. The time spent on this training need not be long. If 
done properly a young officer can be taught all the law of war lessons he really 
needs to know for the whole of his career. Eight to ten periods covering will give 
them the background knowledge they need. There is a need to set the scene and ex- 
plain the background to the law — how it originated, its status today, its aims and 
when the law applies. The principles of the law, in particular those relating to dis- 
tinction, military necessity, proportionality and limitation are very important and 
if taught to junior officers will act as a foundation for all future training, planning 
and operations. There must be a period on command responsibility. Commanders 
must be trained in the law and their responsibilities within it. The law in relation to 
the conduct of operations is of course of paramount importance. Periods on weap- 
ons and the law and logistics and rear areas, including prisoner of war camps, 
should be included. Today, the law of belligerent occupation might be quite im- 
portant. Perhaps the law applicable to lower levels of violence should be included 
so that the differences in approach and in the rules are known from the outset. In- 
ternal security operations, post-conflict situations of restoring law and order or 
UN peacekeeping (as opposed to peace enforcement) operations come to mind. 
Field exercises and model room exercises can incorporate law of war aspects to re- 
inforce this teaching. Case studies and military history can also be used to draw out 
lessons on the law as the course progresses. I think it is also very important that ju- 
nior officers are left in no doubt as to their responsibilities to teach the law to their 
subordinates and perhaps to give them some ideas and tools to do that. 

Senior Officers and Staff Officers 

Staff colleges and war colleges are ideal places to reinforce the lessons learned as a 
cadet and junior officer and to consider broader issues of the law. The officers at 
these places of learning will be filling important posts in the future and some will be 
destined for high command. Case studies of recent conflicts can be used to high- 
light not only tactical or strategic issues but also law of war concerns. Topics could 
include command responsibility. Indeed, there are a number of useful case studies 
in this area resulting from recent experiences in Iraq and in the former Yugoslavia. 
Targeting and the law would be another important topic, in particular recent les- 
sons relating to the principle of proportionality and distinction, the avoidance of 

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collateral damage, the problems caused to planners and commanders by dual-use 
targets, and the need for good intelligence on which to base targeting decisions. 
There are a number of good case studies resulting from the conflicts in Kosovo, Af- 
ghanistan and Iraq. Logistic implications of the law are areas worthy of study at this 
higher level. For example, the treatment, handling and back loading of prisoners of 
war or casualties. Then there are UN operations/coalition operations and the law. 
There is plenty to cover. 

Gaps in Teaching the Law 

Do armed forces actually pay the required attention to the law? How much training 
actually takes place? Will they apply it in battle? All these are hard to assess. How 
many armed forces insist on a formal qualification in the law from their soldiers? 
Almost all countries require everyone to pass a written and practical test in the law 
before he or she can drive a car. How many soldiers that we send into combat have 
to pass a test on the laws of war? We know that States have undertaken to respect 
and to ensure respect for the Geneva Conventions in all circumstances, but how 
many actually do? 

To a very large extent the international community relies on the ICRC to dis- 
seminate the law to armed forces. They do a good job but with some 20 delegates 
devoted to the task, and a few "on call" consultants, their impact on armies that in 
some cases exceed one million persons might be considered a pinprick. Some in the 
United Nations and large non-governmental organizations may believe that as 
"guardians" of the Geneva Conventions, the law of war is very much the ICRC's re- 
sponsibility and that they should not interfere. If we are to rely exclusively on the 
ICRC then their efforts and staff devoted to this particular task must be greatly in- 
creased. Of course, we should not rely on them entirely. It is a nation's responsibil- 
ity to ensure their armed forces are fully aware of their legal responsibilities in 
combat. It is a national responsibility to enforce and ensure respect for the law. 

I have found a thirst for knowledge of the law that applies to the levels of con- 
flict below the threshold for the application of the international law of war. It is in 
these lower levels of conflict that domestic law and international human rights law 
and standards come into play. There is, in my view, a definite gap here that must 
be filled. Many nations are facing situations of internal violence and disturbances, 
or as the military terms them, internal security situations. Many are interested in 
the law applicable to peacekeeping and post-conflict situations, i.e., where re- 
straint and minimum force are required, the opposite of what is required of a sol- 
dier in conventional warfare. Although such situations will, in the main, be the 
responsibility of the police, there are occasions when the armed forces might be 

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Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

called upon to assist, or in some cases take over completely until law and order can 
be restored. This is occurring more and more frequently. If the armed forces are 
deployed into these situations with no knowledge of the law, with inadequate 
training and without the equipment necessary to produce a graduated response, 
then mistakes are likely which might well make the situation worse. 

Acceptance and Implementation of the Law 

Finally, I think it is important to consider whether and how well the law is actually 
being accepted and implemented by soldiers in battle even if training is perfect and 
the gaps are all filled. The cynical and skeptical might, as mentioned at the outset, 
agree with Cicero that in the reality of the recent conflicts in Afghanistan, Iraq and 
the ongoing "war on terror" the rules are indeed very often "Silent midst the clash 
of arms." 

Is the situation that bad? Based on my experience, when it comes to practical 
law of war issues such as prisoner of war treatment, prohibition of torture, guide- 
lines for attack, use of weapons, etc., I never had anyone arguing the toss 11 with the 
content of the law, which says a great deal about its practicality and common 
sense. Superior orders sometimes cause problems and I have covered that. 

We mostly only hear the bad things. As someone once said, "If a dog bites a man, 
it's hardly news. On the other hand, if a man bites a dog, then it's going to be exten- 
sively reported." There have indeed been numerous reports of violations of the law, 
but very rarely are reports made on how well it is being applied, on how much ef- 
fort is being put into target planning to avoid collateral damage, or on efforts to 
spare and protect the civilian population. 

Perhaps from a cynical standpoint one could point out that the armed forces 
and civilian political leaders are now much more aware of their responsibilities and 
the dangers of breaking the law because of the CNN, BBC or "Al Jazeera" factor. It 
can make a commander's eyes water as he sees his promotion prospects disappear- 
ing when having to explain a mistake to CNN's Christiana Amanpour or BBC's 
John Simpson. 

We cannot rest on our laurels, the gaps must be closed and we must make con- 
tinued and indeed greater efforts to teach and ensure all combatants understand 
the law and apply it on operations. Offenders must be brought to justice, punished 
and be seen to be punished. At the end of the day, if soldiers in tight situations 
know as a reflex action how they should react then we have achieved our aim. 



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Notes 

1 . See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed 
Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31 [Geneva Convention I]; Convention for the 
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed 
Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85 [Geneva Convention II]; Convention Relative to the 
Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 [Geneva Convention III]; 
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 
U.N.T.S. 287 [Geneva Convention IV]; all reprinted in DOCUMENTS ON THE LAWS OF WAR 
(Adam Roberts & Richard Guelff eds., 3d ed. 2000), at 197, 122, 244 and 301, respectively. The 
following appears in Geneva Convention I at Article 47, Geneva Convention II at Article 48, 
Geneva Convention III at Article 127, and Geneva Convention IV at Article 144: 

The High Contracting Parties undertake, in time of peace as in time of war, to 
disseminate the text of the Convention as widely as possible in their respective 
countries, and, in particular, to include the study thereof in their programmes of 
military and, if possible, civil instruction, so that the principles thereof may be known 
to the entire population, in particular to the armed fighting forces, medical personnel 
and chaplains. 

2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, Jun. 8, 1977, 1 125 U.N.T.S. 3, reprinted 
in Roberts & Guelff, supra note 1, at 422 [Additional Protocol I]. Article 83 provides: 

1. The High Contracting Parties undertake, in time of peace as in time of armed 
conflict, to disseminate the Conventions and this Protocol as widely as possible in their 
respective countries, and, in particular, to include the study thereof in their 
programmes of military instruction and to encourage the study thereof by the civilian 
population, so that those instruments may become known to the armed fighting forces 
and to the civilian population. 

2. Any military or civilian authorities who, in time of armed conflict, assume 
responsibilities in respect of the application of the Conventions and this Protocol shall 
be fully acquainted with the text thereof. 

Article 6 adds: 

1. The high Contracting Parties shall, also in peacetime, endeavour, with the assistance 
of the national Red Cross (Red Crescent, Red Lion and Sun) Societies, to train qualified 
personnel to facilitate the application of the Conventions and of this Protocol, and in 
particular the activities of the Protecting Powers. 
Article 82 states: 

The High Contracting Parties at all times, and the Parties to the conflict in time of 
armed conflict, shall ensure that legal advisers are available, when necessary, to advise 
military commanders at the appropriate level on the application of the Conventions 
and this Protocol and on the appropriate instruction to be given to the armed forces on 
this subject. 

3. See Resolution 21 of the Fourth session of the 1974-1977 Diplomatic Conference on the 
Reaffirmation and Development of International Humanitarian Law Applicable in Armed 
Conflicts: "The Diplomatic Conference encourages the authorities concerned to plan and give 
effect, if necessary with the assistance and advice of the ICRC to arrangements to teach 
international humanitarian law, particularly to the armed forces." Reprinted in COMMENTARY 

133 



Teaching the Law of Armed Conflict to Armed Forces: Personal Reflections 

ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 to the Geneva Conventions of 12 August 1949, 
at 1525 (Yves Sandoz, Christophe Swinarski & Bruno Zimmerman eds., 1987). 

4. David Lloyd Roberts, International Committee of the Red Cross, Unit for Relations with 
Armed and Security Forces, The Law of Armed Conflict - Teaching File for Instructors (Knut 
Dormann ed., 2002). 

5. Marcus Tullius Cicero, Quotes, available at http://www.brainyquote.com/quotes/authors/ 
m/marcus_tullius_cicero.html. 

6. Three bright orange circles placed on the same axis identify works and installations 
containing dangerous forces. See Additional Protocol I, supra note 2, art. 56 and Annex I, art. 16. 

7. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International 
HUMANITARIAN Law, Vol. I, Rule 151: Individual Responsibility, at 551 (2005). 

8. See Geneva Convention I, supra note 1, art. 49; Geneva Convention II, supra art. 50; Geneva 
Convention III, supra art. 120; and Geneva Convention IV, supra art. 146. See also Additional 
Protocol I, supra note 2, arts. 85, 86. 

9. Henckaerts & Doswald-Beck, supra note 7, Rules 154 & 155, at 563-567. 

10. Geneva Convention I, supra note 1, arts. 12, 50; Geneva Convention II, supra arts. 12, 51; 
Geneva Convention III, supra arts 17, 87, 130. Geneva Convention IV, supra arts. 32, 100, 118, 
147; Protocol Additional I, supra note 2, art. 75; Protocol Additional to the Geneva Conventions 
of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed 
Conflicts art. 4, June 8, 1977, 1125 U.N.T.S. 609, reprinted in Roberts & Guelff, supra note 1, at 
483. 

11. "Disagree" when translated from the King's English. 



134 



PART IV 



MODERN WEAPONRY AND WARFARE 



VII 



War, Technology and the Law of Armed 

Conflict 



Michael N. Schmitt* 



War, technology, and the norms governing warfare have influenced 
each other dramatically since the beginning of organized conflict. 1 
Technology determines how wars can be fought. When the resulting hostilities run 
counter to prevailing values or interests, law and other prescriptive strictures often 
emerge to restrain them. 2 This occurs either through treaties or as the result of pol- 
icy decisions by belligerents (generally States) to conduct themselves in a particu- 
lar manner. In the latter case, the practice matures into customary international 
law when it becomes "general" (widespread) and "accepted as law" by States. 3 
Finally, as the norms governing war become outdated, law is reinterpreted, ig- 
nored, or discarded. 

In the 21st century, the pace of technological change in warfare has quickened. 
This article asks how war and law are likely to react to, and upon, one another in the 
near future. It begins with a brief survey of the normative architecture governing 



* Professor of International Law, George C. Marshall European Center for Security Studies, 
Garmisch-Partenkirchen, Germany. The views expressed herein are those of the author in his 
personal capacity and should not be construed as the official position of either the Federal 
Republic of Germany or the United States. This article was previously published as an 
Occasional Paper by the Program on Humanitarian Policy and Conflict Research (HPCR) 
(Summer 2005) and is reprinted with permission. © 2006 by Michael N. Schmitt. 



War, Technology and the Law of Armed Conflict 



methods (tactics) and means (weapon systems) of warfare. Technology is then re- 
viewed, with particular emphasis on current weapons development programs and 
overall trends. The article concludes with an analysis of how this technology may 
influence the application and interpretation of the law of armed conflict. 

The Law Relevant to Technology 

In 1996, the International Court of Justice (ICJ) recognized the law of armed 
conflict's two "cardinal" principles in Legality of the Threat or Use of Nuclear 
Weapons. 4 Distinction, the first, provides that "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." In other words, weapons 
must be both capable of discrimination and used discriminately. The second disal- 
lows weapons that cause combatants unnecessary suffering. Nearly all law of 
armed conflict prohibitions related to the conduct of hostilities, whether treaty- 
based or customary, find their genesis in these principles. 

The 1868 St. Petersburg Declaration, which dealt with explosive projectiles, 
ushered in the modern era of limitations on methods and means of warfare with its 
pronouncement: 

That the only legitimate object which States should endeavour to accomplish during 
war is to weaken the military forces of the enemy; 

That for this purpose it is sufficient to disable the greatest possible number of men; 
That this object would be exceeded by the employment of arms which uselessly 
aggravate the sufferings of disabled men, or render their death inevitable; 

That the employment of such arms would, therefore, be contrary to the laws of 
humanity. . . . 5 

Other efforts to restrict military technology followed 6 — projectiles and explo- 
sives dropped from balloons (1899 and 1907); gas and chemicals (1899, 1925, 
1993); expanding bullets (1899); submarine mines (1907); biological weapons 
(1972); environmental modification techniques (1976); non-detectable fragments 
(1980); mines & booby traps (1980, 1996, and 1997); incendiary weapons (1980); 
and blinding lasers ( 1995). 7 

Undoubtedly, further attempts to regulate weaponry will be launched. Possible 
topics include depleted uranium shells, cluster munitions, computer network at- 
tacks, non-lethal weapons, and space-based offensive operations. 8 The prospect of 
States agreeing to accept limits on their weaponry depends on variables ranging 

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Michael N. Schmitt 



from whether they possess or are likely to be attacked with them, to the degree of 
international and domestic concern about their impact on the civilian population. 
The international community also regulates methods and means of warfare 
through non-weapon specific law of armed conflict principles. Two early compila- 
tions were the Regulations annexed to the 1899 and 1907 Hague Conventions on the 
Laws and Customs of War on Land. 9 These regulations set forth the most basic limi- 
tation on the conduct of hostilities, that " [t]he right of belligerents to adopt means of 
injuring the enemy is not unlimited." 10 Other relevant provisions include a ban on 
poison 11 and "arms, projectiles, or material calculated to cause unnecessary suffer- 
ing"; 12 acceptance of ruse; 13 and a requirement to 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." 14 

The most comprehensive codification governing methods and means of war- 
fare is the 1977 Protocol Additional to the 1949 Geneva Conventions (Additional 
Protocol I) which governs international armed conflict. 15 Although key States 
such as Israel, India, and the United States are not party to the instrument, they 
recognize many of the Protocol's provisions as reflective of the customary law of 
armed conflict. 16 

Article 35 restates the basic Hague principles that there are limits on methods 
and means of warfare and that weapons causing superfluous injury or unnecessary 
suffering are banned. 17 More significant, is Article 48, which sets forth the core law 
of armed conflict principle, distinction: "In order to ensure respect for and protec- 
tion 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." Articles 51 and 52 build on this requirement. 

Article 51: (2) The civilian population as such, as well as individual civilians, shall not be 
the object of attack. Acts or threats of violence the primary purpose of which is to 
spread terror among the civilian population are prohibited. 

(3) Civilians shall enjoy the protection afforded by this Section, unless and for such 
time as they take a direct part in hostilities. 

Article 52: (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, 



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War, Technology and the Law of Armed Conflict 



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. 

In a related prohibition, Article 51.4 bans "indiscriminate" attacks on civilians, 
defining them as: 

(a) those which are not directed at a specific military objective; 

(b) those which employ a method or means of combat which cannot be directed at a 
specific military objective; or 

(c) those which employ a method or means of combat the effects of which cannot be 
limited as required by this Protocol; and consequently, in each such case, are of a 
nature to strike military objectives and civilians or civilian objects without 
distinction. 

Subpart (a) of the article contemplates the indiscriminate use of a weapon sys- 
tem capable of being aimed or otherwise controlled, i.e., one that is by nature dis- 
criminate. Iraq's launch of SCUD missiles against Israeli population centers during 
the 1990-91 Gulf War constitutes the textbook example. 18 The remaining subparts 
address indiscriminate weapons, the use of which is prohibited altogether. Subpart 
(b) deals with weapon systems incapable of being aimed directly at a military ob- 
jective. A long-range missile with a guidance system so rudimentary or unreliable 
that its chances of striking a military objective are almost happenstance illustrates 
this category. 19 By contrast, subpart (c) outlaws use of aimable weapons that pro- 
duce uncontrollable effects. A biological contagion that spreads uncontrollably 
through a civilian population, albeit initially targeted against combatants, epito- 
mizes such weapons. 20 

Even if an attack is directed at a combatant or other military objective, and the 
weapon system employed is both discriminate by nature and used discriminately, it 
must be proportionate. Codified in Article 51.5(b), the principle of proportionality 
prohibits attacks which "may be expected to cause incidental loss of civilian life, in- 
jury to civilians, damage to civilian objects, or a combination thereof, which would 
be excessive in relation to the concrete and direct military advantage anticipated." 21 
The law of armed conflict styles injury or death of civilians as "incidental injury," 
whereas damage or destruction of civilian property is labeled "collateral damage." 

Finally, attackers must take "precautions in attack" to minimize harmful effects 
on civilians and civilian objects caused during an otherwise lawful strike. Article 57 
sets out the requirements, the bulk of which represent customary law of armed 
conflict. 22 The principle requires "those who plan or decide upon an attack" to do 
"everything feasible" to ensure they are not attacking civilians, civilian objects, or 



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Michael N. Schmitt 



items or individuals who enjoy special protection; to "take all feasible precautions" 
when choosing weapons and tactics in order to minimize incidental injury and col- 
lateral damage; and to select that military objective from among those yielding a 
"similar military advantage" that "may be expected to cause the least danger to ci- 
vilian lives and to civilian objects." 

Beyond the general principles, Additional Protocol I extends special protection 
to specified objects, most notably medical establishments, cultural objects, places 
of worship, objects indispensable to the civilian population, the natural environ- 
ment, and works and installations containing dangerous forces. 23 Also proving in- 
creasingly significant is the prohibition on perfidy. Perfidy occurs when one party 
feigns protected status to kill, injure, or capture the enemy. 24 Examples include 
feigning: an intent to negotiate under a flag of truce or surrender; civilian status; 
being sick or wounded; and protected status (indicated by uniform or emblem) of 
the United Nations or a State not party to the conflict. 25 

In addition to treaty law, the customary law of armed conflict imposes certain 
restrictions on methods and means of warfare. Given the fact that the applicability 
provisions found in law of armed conflict treaties preclude their operation in many 
conflicts, customary law provides the key constraints on warfare. 26 In this regard, 
recall the Martens Clause, the contemporary formulation of which is found in Arti- 
cle 1.2 of Additional Protocol I: "In cases not covered by this Protocol or by other 
international agreements, civilians and combatants remain under the protection 
and authority of the principles of international law derived from established cus- 
tom, from the principles of humanity and from dictates of public conscience." 27 

The dilemma with customary law lies in determining its content. The Interna- 
tional Committee of the Red Cross recently released its Customary International 
Humanitarian Law study. Based on extensive surveys of State practice and pro- 
nouncements, the study attempts to capture the current customary law of armed 
conflict in writing. 28 Although somewhat controversial, it represents the only com- 
prehensive attempt to do so in any systematic, internationally vetted fashion. 

The study reiterates most norms described above, drawing heavily on the text of 
Additional Protocol I. Chapter 21 restates the ban on the use of methods or means 
"of a nature to cause superfluous injury or unnecessary suffering" and on indis- 
criminate weapons. 29 The subsequent chapters prohibit poison, biological weap- 
ons, chemical weapons, riot-control agents as a method of warfare, certain uses of 
herbicides, expanding bullets, exploding anti-personnel bullets, weapons with 
non-detectable fragments, specified uses of booby-traps, and laser weapons de- 
signed to cause blindness. 30 

Part I of the study sets out the broad law of armed conflict prohibitions: attack- 
ing or terrorizing civilians (unless directly participating in hostilities); 31 attacking 

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War, Technology and the Law of Armed Conflict 



other than military objectives; 32 perfidy; 33 and indiscriminate attacks, including 
the use of indiscriminate weapons, using discriminate weapons indiscriminately, 
and treating distinct military objectives in a concentration of civilians or civilian 
objects as a single target. 34 It further contains the principles of proportionality 35 
and precautions in attack. 36 Rules governing medical, religious, humanitarian re- 
lief, and peacekeeping personnel and objects; journalists; protected zones; cultural 
property; works and installations containing dangerous forces; and the natural en- 
vironment are found in Part II. 37 

The aforementioned instruments and principles represent the core normative 
boundaries applicable to methods and means of warfare . . . and which they will in- 
fluence. Before turning to these dynamics, it is useful to consider 21st-century mil- 
itary technology. 

The Technology Relevant to Law 

Too often, thinking about war focuses on weaponry. Yet, weapons are simply one 
component of a "weapon system," i.e., "a combination of one or more weapons 
with all related equipment, materials, services, personnel, and means of delivery 
and deployment (if applicable) required for self-sufficiency." 38 It is the weapon 
system, often incorporating technology more complex than the weapon itself, 
which determines success or failure. For instance, in an air-to-ground engagement 
against a fleeting target, the intelligence assets that allow the target to be identified 
and the communications, command, and control networks that make rapid attack 
possible are as essential to mission success as the aircraft and the bomb it drops. 
Simply put, fully understanding combat operations requires consideration of all 
the technologies having a direct causal relationship to weapons employment. 
Therefore, this article adopts an inclusive approach to the technology of future 
war, looking first at specific development programs and then at general trends. 

Specific Programs: Since the United States armed forces enjoys a technological 
edge over every other military in the world (a gap that will certainly widen), the 
best indicator of technology's vector lies in US military research and development 
programs. 39 Within the Department of Defense, the Defense Advanced Research 
Projects Agency (DARPA) oversees future technologies. 40 DARPA's current re- 
search centers around eight "strategic thrusts." 41 Because they provide a feel for the 
technology likely to be fielded on the 21st-century battlefield, it is useful to briefly 
review each category. 

1 ) Detection, Precision Identification, Tracking, and Destruction of Elusive 
Surface Targets. Today, weapons fielded by advanced militaries are highly accu- 
rate. However, target detection, identification, and tracking continue to present 

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Michael N. Schmitt 



major hurdles to even the best-equipped forces. The unsuccessful decapitation 
campaign against Iraqi leadership during Operation Iraqi Freedom (OIF) offers a 
classic illustration. US air forces conducted 50 highly accurate strikes, yet failed to 
kill even a single targeted individual. 42 The problem lay both in the unreliability of 
some intelligence and the inability to leverage reliable information quickly enough. 

In response to such challenges, DARPA hopes to find ways to collapse the cur- 
rent sequential targeting process (find, fix, track, target, engage, and assess results) 
into an uninterrupted and continuous one that adapts to battlefield events. 43 For 
instance, new technologies will blur the traditional distinction between intelligence 
(gather and process information), plans (determine what to do in response to that 
information), and operations (execute the plan). Platforms that carry both sensors 
and weapons, like the Predator, are merely the tip of the iceberg. 44 In the near 
future, systems will operate without human input; in other words, a single plat- 
form will search for, identify, and destroy targets autonomously. 45 

Networking represents the other thread in this strategic thrust. DARPA envis- 
ages developing systems that will first "connect more and more sensors, platforms, 
and weapons with a variety of communications links," and later permit "comput- 
ers and commanders" to "take advantage of the massive amounts of data available 
to increase the speed, accuracy, agility, and capability" of combat forces. 46 In a sim- 
ple illustration, a Predator might use video to track a target. When it enters an area 
of heavy foliage, the networked system would automatically switch to foliage pene- 
trating radar. In response to the radar returns, 3D LADAR (laser detection and 
ranging) sensors would produce a detailed three-dimensional image which can be 
compared to computerized geometric models to accurately identify the target. 
Technology will have seamlessly linked sensors to sensors to shooters. 

2) Robust, secure self- forming tactical networks. Although this strategic thrust 
supports the previous one, it is not limited to target destruction. "Network centric" 
operations "turn information superiority into combat power so that the United 
States and its allies have better information and can plan and conduct operations 
far more quickly and effectively than any adversary." 47 Doing so depends on highly 
advanced command, control, communications, computers, intelligence, surveil- 
lance, and reconnaissance (C4ISR) systems integrated into a single network. 48 The 
goal is an ability to rapidly gather, process, and react to information about an op- 
ponent, while hindering its efforts to do the same. In military terms, this is known 
as "getting inside the enemy's observe-orient-decide-act (OODA) loop." 49 Once 
inside, you control the flow, pace, and direction of battle. Eventually, disorienta- 
tion paralyzes your adversary. 50 

DARPA is pursuing a number of systems along these lines. For instance, it has 
developed prototype self-forming, self-healing networks, such as the Small Unit 

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War, Technology and the Law of Armed Conflict 



Operations Situational Awareness System (SUO SAS). SUO SAS will be used at the 
squad level to allow soldiers in complex physical environments such as cities and 
jungles to securely communicate with each other and monitor the location of fel- 
low squad members. 

3) Networked manned and unmanned systems. This thrust teams manned and 
unmanned systems to leverage the unique qualities each offers. An example is the 
backpack portable Micro Air Vehicle, which will perform intelligence, surveillance, 
and reconnaissance functions for small units. Another is the Unmanned Ground 
Combat Vehicle, a system providing fire support missions for ground forces. 51 Un- 
manned systems are especially useful in high threat environments or where the al- 
ternative (e.g., manned aerial reconnaissance) is labor intensive, costly, or in short 
supply. 52 

4) Urban Area Operations. Because of the advantages US forces enjoy on the 
open battlefield, adversaries increasingly confront them in urban areas where they 
can take advantage of clutter and proximity to civilians and civilian objects to mask 
their location or shield their activities. Events in Iraq have shaped the direction of 
research in this area. Present studies include systems to detect enemy forces, ex- 
plosives (including suicide bombers and improvised explosive devices), and 
weapons of mass destruction (WMD); distinguish combatants from civilians and 
threats from civilian objects in crowded areas; "tag" a potential target (individual 
or object) to allow it to be monitored; employ weapons of variable effectiveness 
(non-lethal to lethal) to minimize collateral damage; and make individual soldiers 
and unmanned systems vertically mobile. An illustrative example is the Boomer- 
ang shooter detection system, which calculates the direction from which shots have 
been fired at a moving vehicle to enable effective return fire. Another is the Com- 
mand Post of the Future (CPOF). Presently, command and control (C2) is exer- 
cised from a distinct physical location — a command post. CPOF creates a virtual, 
mobile, distributed, collaborative C2 system in which key participants operate 
from different locations, but still collaborate effectively in real time. 

5) Detection, Characterization, and Assessment of Underground Structures. In 
light of US capabilities to accurately target aboveground structures, adversaries are 
using underground facilities for such purposes as hiding weapons (including 
WMD), protecting leadership, C2, and mustering forces. They range from the 
caves used by the Taliban and al Qaeda to the huge underground bunkers found in 
Iraq. 53 

DARPA has responded with the Counter-Underground Facility program. The 
program will develop ground and airborne seismic, acoustic, electromagnetic, op- 
tical, and chemical sensors that locate underground facilities; analyze their 



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Michael N. Schmitt 



construction, layout, and vulnerabilities; and conduct post-attack battle damage 
assessment to determine the need for reattack. 

6) Assured Use of Space. Operations like those taking place in Afghanistan and 
Iraq would be unimaginable without space-based communications, navigation, 
surveillance, reconnaissance, and weather systems. From satellite imagery to hand- 
held global positioning system locators, space is integral to every facet of high-tech 
warfare. To leverage space, and deny enemies the same opportunity, DARPA has 
focused efforts in five areas: rapid and affordable space access; situational aware- 
ness in space (what is there and what is it doing); protecting US spaced-based as- 
sets; preventing adversaries from using space-based assets; and using space in 
support of earth-based operations. 

Numerous programs are underway. Orbital Express involves automated space- 
craft to refuel, upgrade, and maintain other spacecraft. The Space Surveillance 
Telescope is a ground-based telescope with the capability to search space for small 
objects. Perhaps most significant is the Falcon program's Hypersonic Cruise Vehi- 
cle, which will traverse space to speed travel. 

7) Cognitive Computing. Cognitive computing reverses the process whereby 
computer users adapt to computers by creating computers that adapt to users. 
Such computers "learn" from their experiences and adjust their activities accord- 
ingly. For instance, they can be used in operations centers to deal with fast-paced, 
complex situations by using past experiences to filter and prioritize information 
and craft responses thereto. When this occurs, the possibility of surprise dimin- 
ishes significantly. An example is the Personalized Assistant that Learns (PAL). 
PAL will anticipate an individual's (e.g., decision-makers or intelligence analysts) 
needs based on previous experiences and prepare materials for them before being 
tasked to do so. 

8) The Bio-revolution. This DARPA strategic thrust envisions technologies that 
either work with the human body or imitate nature. Examples of the former in- 
clude programs that maintain physical and mental performance despite stress, en- 
vironmental conditions like heat or altitude, lack of sleep, or insufficient nutrients. 
"Legged" robots able to traverse rough terrain better than wheeled vehicles (in one 
case modeled on a cockroach), optics based on the eye, and sensors inspired by in- 
sects that calculate room temperature exemplify the latter. 

9) Miscellaneous Programs. DARPA works in areas other than its strategic 
thrusts. Three merit particular mention. The first is materials. 54 One current effort 
is the Structural Amorphous Metals program, which studies materials with amor- 
phous microstructures that yield hardness and strength previously unattainable. 
Such materials might be of use, for example, in replacing the depleted uranium 
shells that have generated so much controversy. Other possibilities include an 

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War, Technology and the Law of Armed Conflict 



unobtrusive external skeleton for soldiers carrying heavy backpacks and 
"morphing" aircraft structures that change shape while airborne to vary the flight 
envelope (much as the body of a bird does). 

Microsystems comprise a second area of interest, one that gives the United 
States much of its current technological edge. In particular, microtechnology dra- 
matically increases the functions performable by computer chips, thereby enhanc- 
ing the processing capabilities of military systems. Similarly, smaller weapon 
systems on aircraft or vehicles yield greater range, mobility, and carrying capacity. 
This allows striking more targets with fewer platforms. 

The third area is information technology. Present projects include peta-scale 
computing, 55 autonomous vehicle navigation, and collaboration between humans 
and robots or robots and robots. The High Productivity Computing Systems pro- 
gram is improving computer efficacy in activities such as cryptanalysis and weather 
forecasting by a factor of 10 to 40. Also noteworthy is the Improving Warfighter In- 
formation Intake under Stress program, which non-invasively monitors human 
cognitive load so information provided to the warfighter does not overload 
thought processes. 

General trends: The aforementioned programs offer a real-world glimpse into 
the technology of future war. Some are understandable reactions to current chal- 
lenges, such as the urban warfare and underground facility programs, while others 
reflect weaponry trends already underway. Since the characteristics of weapon sys- 
tems, not individual systems, determine conflict's character, it is useful to summa- 
rize those trends most likely to persist. 

1) Precision. Precision must be distinguished from accuracy. Accuracy is the 
ability of a weapon to strike a specified location, known as the aimpoint. 56 Preci- 
sion, by contrast, involves identifying targets in a timely fashion and striking them 
accurately. 

Many weapons are highly accurate, with circular error probable (CEP) calcula- 
tions now measured in feet. 57 Accuracy lessens the risk of causing collateral damage 
and incidental injury, not only because weapons hit closer to their intended 
aimpoints, but also because the more accurate they are, the less explosive charge 
needed to achieve the desired probability of damage (PD). 58 While we can expect 
CEPs to progressively improve, the unfortunate reality is that few States can afford 
the "precision guided munitions" and associated launch platforms necessary to 
conduct truly accurate operations. 59 This being so, the task for research and devel- 
opment is affordable accuracy. 60 

A more prevalent trend in precision warfare is improved ability to locate, iden- 
tify, and track targets — transparency of the battlefield. Today's warfighters benefit 
from an array of information sources: imagery intelligence (IMINT); human 

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Michael N. Schmitt 



intelligence (HUMINT); signals intelligence (SIGINT); measurement and signa- 
ture intelligence (MASINT); open-source intelligence (OSINT); technical intelli- 
gence (TECHINT); and counterintelligence (CI). 61 Moreover, aircraft such as the 
AWACs, JSTARS, and UAVs offer transparency in real-time, 62 while equipment 
like night vision goggles allow soldiers and airmen to locate and target the enemy in 
adverse conditions like darkness and poor weather. All indicators point to contin- 
ued improvements in this area. 

2) Coordination, command, and control. Another discernable trend is im- 
proved coordination horizontally and better command and control vertically. 
DARPA's work in network centric warfare is illustrative, for it demonstrates that 
future high-tech militaries will fight as networked entities, rather than hierarchical 
organizations. 

Networking permits quicker collection, fusion, analysis, and dissemination of 
critical information (such as the location of a fleeting target); better decisions 
about the platforms able to respond most effectively to it; greater control over an 
ongoing operation; increased ability to coordinate operations in real-time with 
other friendly forces; enhanced responsiveness to unanticipated events that arise as 
the operation unfolds; less risk of friendly operations interfering with each other; 
and greater ability to deal with enemy threats. Taken together, networking is one of 
two keys to operating within the enemy's OODA loop. 

An example is Blue-Force Tracker, a satellite-based tracking and communica- 
tion system that allows computerized data integration and dissemination to troops 
in the field. With Blue-Force Tracker, all echelons of command and staff can follow 
a battle and provide combat support. Using a combination of computer maps, 
real-time automated data updates (on friendly and enemy locations, as well as 
other battlefield information), and chat room coordination, troops engaging the 
enemy no longer have to rely on preplanned support or that which happens to be 
"on-station" (in the vicinity). Instead, they can draw on the full range of theater as- 
sets, near simultaneously. 63 Blue-Force tracker, currently fielded in Afghanistan 
and Iraq, is merely the tip of the iceberg in terms of the networking likely to charac- 
terize tomorrow's battlefield. 64 

3) Transparency. As mentioned, transparency is the current focus of efforts to 
improve precision attack. But transparency also allows warfighters to anticipate 
enemy actions and proactively counter them. It is the second key to getting inside 
an adversary's OODA loop. Equipped with improved command and control, 
transparency, precision, and the ability to operate at night and in all-weather con- 
ditions, the high-tech military can sculpt the course of most ongoing battles against 
lesser-equipped foes. 



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War, Technology and the Law of Armed Conflict 



Space enjoys particular importance in this regard, not only as the ultimate "high 
ground" from which to observe the enemy, but also as a medium through which 
information may be transmitted (e.g., by communications and navigation satel- 
lites); hence the centrality of space in US development programs. Transparency 
also undergirds efforts to link sensors for persistent battlefield coverage, as well as 
the fielding of unmanned systems to maintain coverage in high threat 
environments. 

4) Soldier effectiveness. Several of the programs described earlier will dramati- 
cally improve the effectiveness of individual soldiers relative to their opponents. 
The bio-revolution and cognitive computing thrusts are illustrative, with potential 
further gains from research in tactical networking, manned-unmanned collabora- 
tion, materials, and microsystems. These programs cap a long-record of providing 
individual soldiers competitive advantages over their foes, represented by such 
currently fielded systems as night-vision goggles, light weight body armor, global 
positioning systems, individual weapons equipped with advanced sighting, and 
hand-free communications capability. The relative effectiveness and survivability 
of the individual soldier in militaries capable of acquiring such technology will 
only increase over time. 

5) Unmanned and man-out-of-the-loop systems. Unmanned systems have be- 
come common on the modern battlefield (and off in the global war on terror). Al- 
though early systems provided rudimentary battlefield surveillance and 
reconnaissance, 65 UAVs are evolving into weapons platforms. A variant of the 
Predator, the MQ-1, is now armed with two Hellfire missiles, allowing it to directly 
engage targets it locates, as in the CIA-controlled strike on a car carrying Qaed 
Senyan al-Harthi, al Qaeda's senior operative in Yemen, in 2002. 66 It is only a mat- 
ter of time before UAVs and other unmanned systems conduct attacks without the 
involvement of a human decision-maker. 

6) Variable lethality and destructiveness. As noted, DARPA is assessing weapons 
of variable lethality for use in urban areas. This effort builds on the extensive non- 
lethal systems (more accurately labeled less-than-lethal) research done to date. 67 
The difference is that in the past such systems were viewed primarily as useful in 
crowd control and other low-intensity situations. However, urban combat in Iraq 
has demonstrated the utility of weapons with differing destructiveness and 
lethality even in relatively intensive combat. This is particularly true when civilians 
and civilian objects are used as shields. Thus, field commanders are actively seeking 
ways to effectively attack the enemy in an urban setting while limiting collateral 
damage and incidental injury. 

7) Other significant trends. As warfare becomes more complex, technology may 
outpace the ability of uniformed personnel to develop and maintain proficiency in 

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its operation. Some technologies, such as computer network or space operations, 
require education that the average member of the armed forces lacks. Or, given the 
limited numbers of a particular system in the inventory, it may be cost prohibitive 
to develop training programs for military personnel. Whatever the case, techno- 
logical complexity suggests a greater civilianization of the battlefield and a closer 
nexus between civilians and the conduct of hostilities. 

Future battlefields will also be less cluttered with military personnel and equip- 
ment. Simple cost calculations put massive inventories of equipment beyond the 
reach of most countries, as does the per item cost of advanced weapon systems. A 
B-2 bomber, for instance, has a life cycle cost of 2.5 billion dollars. 68 At this price, 
only the United States can field the aircraft in sufficient numbers to make risking it 
in combat reasonable. And high-tech weapons are much more effective than their 
low-tech counterparts, thereby requiring the use of fewer weapons platforms to 
achieve a given objective. 

At the same time, militaries throughout the world are downsizing, usually for 
political and economic reasons. Compensatory technology has also made reduc- 
tions possible. Unmanned systems are but one example. Additionally, the more 
technology allows penetration of an enemy's OODA loop, the less important raw 
troop strength is to effective combat operations. 

Finally, although not a specific DARPA focus, future weapons will be employ- 
able from ever-greater distances and altitudes. Current systems are frequently 
launched beyond visual range (BVR). 69 For instance, during Operation Iraqi Free- 
dom, naval vessels launched 802 Tomahawk Land Attack Missiles (BGM-109), 
which have a range of 690 miles. US forces also launched, inter alia, over 900 AGM- 
65 Maverick air-to-ground missiles, with a range of over 17 miles, and 408 AGM- 
88 HARM (high speed anti-radiation missile), with a 30-mile range. 70 The fre- 
quency of BVR engagements will only increase as those with long-range precision 
systems leverage them to stay outside the enemy's threat envelope. 

Range, the ability to locate and fix distant enemies, and penetrable enemy de- 
fenses, 71 have made battlefields four dimensional (land, sea, air/space, and 
cyberspace) and spatially unlimited. War is no longer necessarily linear, i.e., fought 
along fixed lines of troops; instead, it may encompass the opponent's entire terri- 
tory — from day one. Battlefields have been replaced by "battlespaces." 

The Impact of Technology on Law 

The technologies described above are dramatically influencing the application and 
interpretation of the law of armed conflict. They will continue to do so in the future. 
First and foremost, such technologies exacerbate the asymmetry that already 

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challenges certain key law of armed conflict principles. Second, they complicate ef- 
forts to distinguish combatants and other military objectives from civilians and ci- 
vilian objects. Third, and somewhat paradoxically, modern technology empowers 
militaries to avoid collateral damage, incidental injuries, and mistaken attacks. As 
it does so, however, troubling expectations regarding casualties are surfacing, ex- 
pectations that endanger current understandings of the law of armed conflict. 

Asymmetry: The technologies of war already on the battlefield, and development 
programs like those described above, will create a degree of asymmetry between the 
high and low-tech forces that has seldom been observed in military history. 72 High- 
tech forces locate their enemies more easily; observe their actions with better un- 
derstanding; anticipatorily react to those actions with greater speed, coordination, 
and effectiveness; field weapons systems and soldiers that are infinitely more sur- 
vivable and better able to neutralize enemy defenses; employ weapons that strike 
their aimpoint with a degree of force precisely metered to achieve the desired level 
of destruction; and assess the results of their actions, and readjust if necessary, very 
quickly and with a high degree of reliability. And, as first demonstrated during 
Operation Enduring Freedom in Afghanistan, technology has reached the point 
where these tasks can be performed around-the-clock. 73 

Even numerically superior low- tech militaries with positional advantage cannot 
prevail against such forces in conventional combat. At the start of the recent con- 
flict, Iraq fielded a ground force of nearly 400,000. 74 It was defeated in six weeks by 
one less than half its size. 75 Further demonstrating the impact of asymmetry, the 
Iraqi air force never even left the ground. Meanwhile Coalition aircraft flew 20,733 
fighter/bomber sorties over territory with an air defense system that was robust by 
contemporary standards. Only one fixed wing aircraft, an A- 10 Warthog, was lost 
to hostile fire. 76 And in its most inhospitable environment, the urban battlefield, 
technology prevailed. For instance, during the battle for Fallujah, US Marines 
killed nearly 1,200 insurgents while suffering only 50 casualties. 77 

Cynics will point out that weapons advances historically either find their way to 
the enemy or soon fall victim to effective countermeasures. 78 As an example, Iraqi 
insurgents are using mobile phones to rapidly coordinate attacks on Coalition 
forces and detonate roadside bombs. Similarly, complex US Department of De- 
fense systems are regularly the target of cyberattacks. But the prospects of disad- 
vantaged forces turning the tables on their high-tech opponents in the near term 
remain slight. 

Low- tech forces face two basic challenges in modern warfare: 1 ) how to perform 
the most basic function in combat, survival; and 2) how to engage the enemy, ei- 
ther to defeat it or to so alter its cost-benefit calculations that it withdraws from the 
fray voluntarily. 

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Consider survival. Facing an adversary armed with advanced C4ISR and imme- 
diately available precision weaponry, the best survival option is to avoid being 
spotted in the first place. Lawful methods to avoid discovery include, inter alia, 
camouflage, ruses, jamming, and spoofing. 79 As demonstrated during the unsuc- 
cessful Coalition decapitation strikes, simply staying on the move can frustrate ad- 
vanced detection systems. 80 And militaries have always used physical features such 
as jungle canopy, mountainous areas, caves, underground bunkers and tunnels, 
and urban areas, as well as night and weather, to mask their presence. 

But, as noted, research is underway on systems to counter each of these tactics, 
from jam resistant networked information networks to chemicals capable of map- 
ping caves. So how does the out-teched side survive? Increasingly, it does so by 
blurring or even discarding law of armed conflict principles. Iraq is the paradig- 
matic example. During the first Gulf War, Coalition forces slaughtered Iraqi mili- 
tary units wherever they met in open battle. 81 By 2003, the technology available to 
US forces had radically improved, while the Iraqi military had not recovered from 
its earlier defeat and the ensuing sanctions regime. Wisely, then, the Iraqi army 
avoided open confrontations. 

To keep the Coalition troops from identifying them, many Iraqi soldiers 
promptly discarded their uniforms. 82 The tactic has no dejure relationship to the 
prohibition on attacking civilians, but it endangered them in the sense that Coali- 
tion soldiers were less certain about who posed a threat, thereby heightening the 
risk of mistaken uses of force against innocents. Because such mistakes of fact are 
more reasonable than would be the case where civilians and combatants are clearly 
distinguishable, the law of armed conflict's deterrent effect was effectively 
weakened. 

In fairness, members of the military who merely wear civilian clothes do not vi- 
olate the law of armed conflict. Rather, they lose combatant status because they 
lack the prerequisites thereof set forth in Article 4 of the Third Geneva Conven- 
tion. 83 Article 4A(1) provides that members of the armed forces enjoy combatant 
status. Article 4A(2) sets forth four cumulative conditions which members of a 
militia not forming part of the armed forces (and members of other volunteers 
corps, including resistance fighter) must meet to be lawful combatants. Because 
these conditions are inherent in the meaning of "armed forces," they apply equally 
to those encompassed in Article 4A(1). 84 The relevant criterion in this context is 
"having a fixed distinctive sign recognizable at a distance," one typically met 
through uniform wear. 

Two consequences attach to the loss of this status. First, those captured do not 
qualify as prisoners of war. 85 Second, because only combatants have the right to 
"directly participate" in hostilities, 86 others enjoy no combatant immunity for 

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their actions during the hostilities. While it is not a war crime to attack the enemy, 
doing so may amount to a criminal offense (e.g., murder) under the national law of 
capturing forces. Lacking immunity, they may be prosecuted in the courts of any 
State with subject matter over the offense and personal jurisdiction over the of- 
fender. 87 

Another technique for avoiding identification is feigning specially protected 
status. Iraqi regular and irregular forces did so, for instance, by misusing protective 
emblems. One recurring tactic was to seize ambulances and use them as scout vehi- 
cles. Iraqi militia forces also marked the Ba'ath Party building in Basra with the em- 
blem of the International Committee of the Red Cross (ICRC). Party buildings 
were regularly used as military supply depots and mustering points. 88 The law of 
armed conflict expressly prohibits the display of the distinctive emblems of medi- 
cal and religious personnel, transports, and units, or the personnel, property, and 
activities of the International Movement of the Red Cross and Red Crescent, for 
other than their intended purposes. 89 

Sometimes one cannot avoid being identified by the enemy. When that is the 
case, an increasingly common survival tactic is "counter-targeting," i.e., the use of 
civilians and civilian objects as shields. 90 Shields may serve voluntarily or involun- 
tarily, an important distinction vis-a-vis the law of armed conflict. 

The war in Iraq is illustrative. Iraqi forces, especially the paramilitary Fedayeen, 
frequently forced humans, including women and children, to shield their activities. 
For instance, in one common tactic, they drove their vehicles next to those of civil- 
ians whenever they observed Coalition helicopters in the area. 91 

Article 51(7) of Additional Protocol I forbids the use of "[t]he presence or 
movements of the civilian population or individual civilians ... to render certain 
points or areas immune from military operations, in particular in attempts to 
shield military objectives from attacks or to shield, favor or impede military opera- 
tions," 92 a prohibition that is unquestionably customary. 93 Violation of this norm 
by one side does not impose an absolute obligation on the other to refrain from at- 
tacking the shielded object or persons, but neither does it release the attacker from 
its own obligations. 94 Therefore, the principle of proportionality applies to attacks 
on shielded targets; if the likely injuries to (or death of) the shields, together with 
any other incidental injury or collateral damage caused, is excessive in relation to 
the resulting concrete and direct military advantage, attack is prohibited. 95 Volun- 
tary shields are an exception, for they lose their law of armed conflict immunity 
from attack by "directly participating" in hostilities. 96 Obviously, since direct par- 
ticipants may be attacked, it would be incongruent to suggest they should never- 
theless count in proportionality calculations. 97 



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Civilian objects are also useful in counter-targeting. Iraqi forces often located 
military equipment and troops in or near civilian buildings, including specially 
protected locations. For instance, as Coalition forces moved north the Fedayeen 
used such protected locations as al-Nasiriyya Surgical Hospital, the Baghdad Red 
Crescent Maternity Hospital, the Imam Ali mosque in al-Najaf, and the Abu 
Hanifa mosque as bases for operations. 98 Later, during the battle for Fallujah, 60 of 
the city's 100 mosques and three medical facilities were so used." 

Although no express provision on using civilian objects as shields exists in the 
law of armed conflict, such actions violate Additional Protocol I's Article 58 obli- 
gations to "endeavour to remove the civilian population, individual civilians and 
civilian objects under their control from the vicinity of military objects; avoid 
locating military objectives within or near densely populated areas; [and] take the 
other necessary precautions to protect the civilian population, individual civilians 
and civilian objects under their control against the dangers resulting from military 
operations," albeit only "to the maximum extent feasible." 100 It is always "feasible" 
to refrain from intentionally placing military equipment and personnel in or near 
civilian objects in order to keep the former from being attacked. 

Even more clearly a law of armed conflict violation is misuse of specially pro- 
tected objects to compensate for technological disadvantage. The First Geneva 
Convention provides in Article 19 that "responsible authorities shall ensure that . . . 
medical establishments and units are, as far as possible, situated in such a manner 
that attacks against military objectives cannot imperil their safety." Additional 
Protocol I is plainer still: "Under no circumstances shall medical units be used in 
an attempt to shield military objectives from attack." 101 Further, "historic monu- 
ments, works of art or places of worship which constitute the cultural or spiritual 
heritage of peoples" receive analogous protections under the Protocol. 102 The 
Iman Ali and Abu Hanifa Mosques, mentioned above, qualify, for they are impor- 
tant Shia and Sunni shrines respectively. 103 

Absent special protection, civilian objects can become military objectives due to 
their militarily significant location, through use for military actions, or when their 
future purpose is military. 104 Moreover, each treaty granting specially protected sta- 
tus withdraws it upon misuse. 105 Thus, as a matter of law, shielding with civilian 
objects has little effect aside from influencing proportionality calculations. 

Assuming the technologically weaker forces survive, they still need to attack the 
enemy. One logical, albeit unlawful, tactic for doing so is perfidy. Iraqi forces 
adopted a number of other perfidious tactics to offset the Coalition's technological 
superiority. Recall that Iraqi forces regularly fought in civilian clothes, a perfidious 
act if done as an element of an attack tactic. Of course, this is precisely why soldiers 
usually don civilian clothes. Additionally, they feigned surrender and used stolen 

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ambulances to approach Coalition forces, hoping their opponents would make 
themselves more vulnerable by lowering their guard. 106 

Another tactic adopted in Iraq is suicide bombing. The increasing frequency of 
bombings attests either to the success of the tactic against superior forces or the 
relative lack of alternatives in the face of such superiority. 107 Although lawful if 
directed against combatants and military objectives, 108 when the bomber feigns 
protected status to approach targets, as is the norm, the attack is perfidious. 
Typically, though, civilians (unlawful combatants) carry out suicide attacks. Their 
mens rea determines whether doing so constitutes perfidy. If merely attacking, 
their actions comprise direct participation in hostilities. On the other hand, if the 
wearing of civilian clothing forms an integral part of their attack tactics, they have 
committed perfidy. 109 

Eventually, the technologically disadvantaged side may conclude that it is un- 
likely to prevail and reframe the conflict by shifting attention towards a center of 
gravity other than the military. 110 As Clausewitz recognized, war is the continua- 
tion of politics by other means. This being so, when facing overwhelming odds, it is 
quite rational to abandon the principle of distinction altogether and attack civil- 
ians as a center of gravity. 

Both practicalities and objectives compel adoption of such a strategy. From a 
practical perspective, it is impossible to protect the civilian population effectively, 
no matter how robust one's technological wherewithal. Crippled by technology in 
a classic fight, the disadvantaged side responds asymmetrically by attacking its op- 
ponent's vulnerabilities. 

Attacking civilians is also appealing when the objective is to take the fight out of 
an enemy without defeating it militarily. For instance, the goal may be to rupture a 
coalition, as in Iraqi targeting of Israeli cities in 1991. 111 Attacking civilians may 
also be intended to affect non-governmental and intergovernmental organiza- 
tions. In Iraq, for instance, insurgents attacked the UN and ICRC headquarters in 
an effort to force their withdrawal. Similarly, civilian targeting can make the con- 
flict appear too costly to belligerent States and citizens. The kidnapping and mur- 
der of foreign hostages in Iraq is designed to convince US partners to leave Iraq; 
such crimes are proving effective. Or, the "target" population might be the at- 
tacker's own. One goal of the attacks against Iraqi civilians is to convince the popu- 
lation it will be safer without Coalition forces. More directly, attacks against 
civilian politicians, judicial officials, and law enforcement personnel are designed 
to deter cooperation with the Coalition. Whatever the motivation, attacking civil- 
ians is a sadly frequent asymmetrical method of countering battlefield technologi- 
cal advantage. 



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Beyond unlawful methods, the technologically weaker side may resort to com- 
pensatory means of warfare. Two at the center of discussion are computer network 
attack (CNA) 112 and weapons of mass destruction. 

CNA represents "war on the cheap" for an otherwise technology starved bellig- 
erent, for cost is limited to acquisition of off-the-shelf computers and exploitation 
software, access to the target network, and computer expertise. Moreover, the 
higher-tech an opponent, the more vulnerable it is to such attacks. Terrorist 
groups are already effectively using websites to conduct information campaigns, 
the broadcast of beheadings representing the extreme example. Concerted, orga- 
nized offensive use of information technology will soon follow. 

There is nothing unlawful per se about cyberattacks. On the contrary, when 
computer network attack assets are readily available, the law of armed conflict's 
precautions in attack requirements may sometimes mandate their use because 
CNA usually risks less collateral damage and incidental injury than kinetic weap- 
ons. 113 That said, the proportionality principle applies to CNA, as it does in all at- 
tacks. This is a particularly meaningful limitation on CNA because civilian systems 
are often linked to military networks (thereby risking the spread of viruses and 
other computer contagions), 114 and because many potential CNA targets are dual- 
use entities (e.g., power grids). 115 

As suggested by DARPA's programs, high-tech militaries have recognized this 
threat and are developing robust defenses. This may have the ironic effect of turn- 
ing attention towards more penetrable civilian networks. In a networked world, 
the consequences of such attacks could be disastrous. Imagine cyberattacks against 
global financial networks, air traffic control systems, water treatment and distribu- 
tion facilities, nuclear power plants, oil refineries and pipelines, or medical data 
systems. 

The issue of whether attacks on civilian networks violate the law of armed con- 
flict has generated an interesting debate. Some experts argue that all CNA opera- 
tions against civilian networks violate the principle of distinction. 116 The better 
view is that the law of armed conflict only prohibits those rising to the level of an 
"attack." Although Article 48 of Additional Protocol I requires Parties to "direct 
their operations only against military objectives," every other relevant Protocol 
prohibition cites "attack" as its operative criterion. 117 "Attack" is a term of art de- 
fined in Article 49 as "acts of violence against the adversary, whether in offence or 
in defence." 

Given advances in military technology, it would be unreasonable to further in- 
terpret the term "attacks" as being limited to those conducted through kinetic 
means. Indeed, universal consensus exists that non-kinetic biological, chemical, 
and radiological operations qualify as attacks. But at the same time, the express 

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War, Technology and the Law of Armed Conflict 



reference to violence can only be interpreted as implying violent consequences , 118 
Thus, a military operation causing injury to humans (or severe mental suffering) 
or physical damage to property is an attack. 119 Mere inconvenience would not suf- 
fice. Universal acceptance of the proportionality principle as considering "inciden- 
tal loss of civilian life, injury to civilians [and] damage to civilian objects" supports 
this interpretation. 

In addition to exploiting the cyber-vulnerabilities of technology dependent 
societies, disadvantaged foes may fight asymmetrically with WMD. A number of 
States are acquiring WMD ostensibly to deter attack by technologically advan- 
taged militaries, most notably North Korea. 120 Doing so is a predictable response 
on the part of those facing militarily dominant rivals. 

The law of armed conflict outlaws chemical and biological weapons use for 
States party to the various instruments cited above. Arguably, customary law does 
the same for the rest. 121 That States do not have great confidence in these normative 
prohibitions is attested to by the extensive efforts they take to be able to operate in 
contaminated environments. This is understandable, for biological and chemical 
weapons are relatively low- tech, cheap, accessible, and easily deployable. 122 

Yet, it is not battlefield use that generates the greatest concern. The dynamic of 
asymmetry operates in the biological and chemical context in much the same way 
it does vis-a-vis CNA. Facing militaries equipped to withstand biological and 
chemical attacks, opponents may decide civilians pose the more attractive target. 
Thus, beyond the general prohibition on use, violation of the distinction principle 
logically (albeit not lawfully) results from severe disadvantage in conventional 
weapons systems. 

The case of nuclear weapons is more complicated. In its 1996 advisory opinion 
on The Threat or Use of Nuclear Weapons, the International Court of Justice opined 
that their use "would generally be contrary to the rules of international law applica- 
ble in armed conflict, and in particular the principles and rules of humanitarian 
law." However, it added the caveat that it could not "conclude definitively whether 
the threat or use of nuclear weapons would be lawful or unlawful in an extreme cir- 
cumstance of self-defence, in which the very survival of a State would be at 
stake." 123 

These conclusions demonstrate a relative misunderstanding of nuclear war- 
fare. 124 Clearly, there are circumstances in which the use of such weapons would 
comply with the principle of distinction, including proportionality. 125 That there 
are probably nine nuclear powers, including all five of the permanent members of 
the Security Council, further draws the Court's conclusions into question. 126 For 
these and related reasons, the Customary International Humanitarian Law study 



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Michael N. Schmitt 



wisely refrained from asserting that the use of nuclear (in contrast to chemical and 
biological) weapons violates the customary law of armed conflict. 127 

But the days of imaging nuclear warflghting generally faded away with the Cold 
War. Today, a limited number of nuclear weapons would not be decisive in a battle 
against determined high-tech forces like those of the United States. Therefore, be- 
yond deterrent saber-rattling, the most likely nuclear scenario in the early 2 1st cen- 
tury is use of a small, low-yield, unsophisticated weapon against a population 
center, for holding the population at risk (or attacking it) offers the greatest lever- 
age over an opponent. The perverse logic of technological asymmetry yet again 
leads, at least in theory, the disadvantaged belligerent towards extreme measures 
violating the law of armed conflict. 

Each of the dynamics of asymmetry sketched out thus far centers on technology 
possessed by one side impelling its lesser-equipped opponent beyond the bound- 
aries of the law of armed conflict. But the effect of technological asymmetry may be 
subtler, resulting in shifting interpretations of the law, rather than outright viola- 
tion. Most significantly, the scope of military objectives and the principle of pro- 
portionality are likely to be so affected. 

Recall that the principle of distinction limits attacks to combatants and military 
objectives. 128 Military objectives are objects that "make an effective contribution to 
military action," the attack on which will yield a "definite military advantage." 
Typically, the concept is interpreted narrowly, requiring a relatively direct nexus 
between the object attacked and the conduct of hostilities. 129 But to the extent mili- 
tary assets are difficult to attack due to an adversary's technological edge, an incen- 
tive exists to characterize entities with a weaker nexus to combat, but which are 
more vulnerable, as military objectives. Thus, for instance, while all would agree 
that a munitions factory qualifies, a disadvantaged side might argue that other in- 
dustries providing income to finance the war effort do as well. 

In fact, the United States may have inadvertently strengthened the position of 
those who would so argue by adopting a broad interpretation of military objectives 
in the Navy, Marine Corps and Coast Guard's The Commander s Handbook on the 
Law of Naval Warfare. In that manual, military objectives are described as objects 
contributing to the enemy's warflghting or war-sustaining capability. The Hand- 
book goes on to note that "[e]conomic targets of the enemy that indirectly but ef- 
fectively support and sustain the enemy's war-fighting capability may also be 
attacked." In light of this interpretation, which is labeled customary, it is difficult to 
contest adoption of a similar approach by a technologically weaker opponent de- 
termined to impose costs on its superior enemy. 130 

Paradoxically, militaries that outclass their adversaries may also see merit in a 
broad interpretation of the concept of military objectives. Technology, particularly 

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War, Technology and the Law of Armed Conflict 



when not possessed by an opponent, makes possible strategies that otherwise 
might not be viable. Most notable in this regard are coercive strategies, which seek 
not to defeat the enemy militarily, but rather to coerce it into engaging in a particu- 
lar course of conduct (or desisting from one) through imposition of unacceptable 
costs. The archetypal example is Operation Allied Force, NATO's 1999 air cam- 
paign to force the Federal Republic of Yugoslavia to quit killing Kosovar Albanians 
and negotiate a political settlement on the basis of the Rambouillet Accords. 131 
NATO never harbored a desire to defeat Yugoslavia militarily. On the contrary, 
President Clinton famously announced that NATO had no intention of sending in 
ground forces. 132 Instead, the aim was to employ force to alter the cost-benefit cal- 
culations of the Yugoslavian leadership, particularly Slobodan Milosevic. 

From a law of armed conflict perspective, the predicament with coercive cam- 
paigns is that destruction of military targets may not affect the enemy leadership as 
much as holding its political power base, the civilian population, or personal finan- 
cial assets {inter alia) at risk. This being so, there is an incentive to define military 
objectives as encompassing attractive coercion targets. Indeed, one distinguished 
commentator has gone so far as to suggest that elements of the principle of distinc- 
tion should be abandoned altogether to permit targeting along these lines. 133 

The adoption of effects-based operations (EBO) — a targeting approach that re- 
places attrition strategies that progressively destroy enemy forces with surgical 
strikes designed to achieve particular well-defined effects — coincided with the rise 
of thinking about coercive strategies. 134 Advanced technology, especially precision, 
stealth, and C4ISR, has rendered effects-based operations feasible by making it 
possible to reliably deconstruct enemy systems, identify those aspects thereof that 
can yield a defined effect, and penetrate enemy territory to conduct precision 
strikes. 135 

Inevitably, concentrating on effects will lead to strategies aimed at achieving 
them without necessarily destroying the enemy's military as the means of doing so. 
As discussed, there are already suggestions along these lines with overtly coercive 
campaigns. A closely related doctrine with the potential for operationalizing this 
tendency is axiological targeting. Made possible by advanced technologies, 
axiological operations distinguish between utility and value targets. 136 Utility is the 
future usefulness of a prospective target to the enemy, whereas value constitutes its 
relative worth. In utility targeting, the attacker seeks to deny enemy forces what 
they need to operate by striking military objects such as airfields, vehicles, troops, 
headquarters, and command and control. 137 By contrast, axiological operations 
(although including utility targets) focus on objects the enemy leadership values, 
prioritizing targets based on the extent to which their destruction (or neutraliza- 
tion) is likely to affect decision-making. 138 

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Michael N. Schmitt 



Although affecting cost-benefits calculations is often one mission planning goal, 
axiological operations elevate it to the central purpose. As with coercive strategies, 
viewing military operations in this manner drives one towards interpreting the 
concept of military objectives very liberally or, perhaps, even ignoring the principle 
of distinction. 

Application of the proportionality principle may also be affected in subtle ways 
by technological disadvantage. Understandably, the technologically weaker side 
tends to view all victories over its superior opponent as momentous. To some ex- 
tent they may be, for even minor successes by the weaker side embolden one's own 
troops and can demoralize an adversary. As a result, the weaker side might over- 
value military advantage when determining whether incidental injury and collat- 
eral damage are excessive. Conversely, facing defeat, the weaker side may 
undervalue collateral damage and incidental injury, for risk to enemy civilians is 
unlikely to resonate as forcefully given its own dire straits. 

The technologically superior side is liable to reverse these tendencies. Nearly 
certain of ultimate victory, the importance of any one military success will weigh 
less heavily in the proportionality calculation. Casualty aversion on the part of 
dominant forces reflects this dynamic in a slightly different context; the greater the 
likelihood of victory, the less willing the prevailing side is to place its forces at risk. 
Similarly, the advantaged belligerent may attribute considerable value to enemy 
collateral damage and incidental injury because it has more leeway to avoid them 
without jeopardizing its pending victory. This is particularly true given the media's 
ability to globally report civilian losses in near real time. 

Of course, it is impossible to objectively relate the value of military advantage to 
collateral damage and incidental injury; they are dissimilar values that cannot be 
compared meaningfully except in the extreme cases. Be that as it may, the propor- 
tionality principle does cause warfighters pause when planning and executing at- 
tacks. The degree to which it does so depends in part on the extent of one's combat 
wherewithal relative to the enemy. 

Finally, as we have seen in Iraq and as recognized by DARPA, technological dis- 
advantage drives one from the open battlefield into either terrain that masks loca- 
tion or urban areas. In the case of the former, such as jungle or mountainous 
terrain, there is seldom risk to civilians, for it is the very remoteness of the areas that 
appeals to the vulnerable side. But as noted, DARPA is working hard to develop 
systems that deny the enemy the protection of jungle canopies, caves, etc. As this 
occurs, disadvantaged forces will be pushed into urban areas where, despite emerg- 
ing urban warfare technology, the proximity to civilians and the difficulty in distin- 
guishing combatants (who will often wear civilian attire) from civilians will offer 
greater hope of survival. 

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It is apparent that technological asymmetry creates faultlines in international 
humanitarian law. Yet, advanced technology will affect the interpretation and ap- 
plication of the law of armed conflict in ways wholly distinct from asymmetrical 
warfare. 

Hindering Distinction: Technology complicates application of the principle of 
distinction, but not always as advertised. Much is often made of the fact that many 
weapons are launched BVR. Further, as described above, systems are now being 
developed in which an attack occurs without direct involvement of humans. There 
is a persistent tendency to characterize both BVR and "man-out-of-the-loop" 
technologies as weakening the ability to distinguish. Their use, so the argument 
goes, violates the precautions in attack requirements to "do everything feasible to 
verify that the objectives to be attacked are neither civilians nor civilian objects and 
are not subject to special protection" and to "take all feasible precautions in the 
choice of means and methods of attack with a view to avoiding, and in any event 
minimizing, incidental loss of civilian life, injury to civilians and damage to civilian 
objects." 139 For instance, some have claimed that an accidental attack on an Alba- 
nian refugee column during Operation Allied Force and the bombing of marked 
ICRC warehouses during Operation Enduring Freedom could have been averted 
had the pilots flown low enough to see the targets. 140 

While it may be true in individual cases that human involvement enhances tar- 
get identification and verification and lowers the probability of collateral damage 
and incidental injury, this is not always the case. Most significantly, getting close 
enough to actually see the enemy brings with it vulnerability to enemy fire. This 
fact alone affects one's ability to perceive accurately. So too does taking the eva- 
sive maneuvers necessary to avoid being hit, for some precision weapons require 
a stable launch platform and sufficient time to acquire and lock onto a target. 
Further, certain precision weapons become more accurate with distance and alti- 
tude because there is greater opportunity for the weapon to guide to the target. 
Finally, there is no scientific basis for concluding that human perception and 
judgment is necessarily more acute or reliable than that of machines. Even if there 
was, it is appropriate to consider the safety of one's own forces when assessing the 
propriety of a strike. Force protection cannot alone outweigh any degree of collat- 
eral damage and incidental injury, but it is certainly a proper consideration for 
the attacker. 141 

A greater obstacle to application of the distinction principle is the growing 
proximity of military objectives to civilians and civilian objects, a phenomenon 
caused in part by technology. Perhaps most significantly, the range and precision 
of weapons, the transparency of the battlefield made possible by advanced ISR, 
and the ability to generate attacks very quickly using networked C4 have 

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Michael N. Schmitt 



transformed traditional battlefields, on which forces typically engaged along a 
relatively identifiable line know as the FEBA (forward edge of the battle area). 
Linearity allowed civilians to distance themselves from the hostilities to some ex- 
tent, although the advent of airpower dramatically limited their ability to do so. 

As noted, current technologies have transformed the linear battlefield into a 
battlespace, with combat operations often occurring simultaneously on the 
ground and high seas, in air and space, and through cyberspace. 142 And distance is 
no longer an obstacle; hi-tech militaries such as those of the United States can 
mount attacks very quickly almost anywhere they wish. During Operation Iraqi 
Freedom, for instance, there was no part of the country that the Coalition could 
not monitor and attack. 

The distinction implications are momentous. Because hostilities can take place 
everywhere, a location to which civilians flee may itself become the site of attacks. 
In particular, precision has made strikes against targets within populated areas via- 
ble. Imprecision ironically protected civilians, for many attacks, especially in urban 
areas, could not be mounted due to the potential for unacceptable impact on the 
civilian population. With modern weaponry, this de facto protection disappears 
since strikes against military objectives near civilians and civilian objects are often 
possible without causing "excessive" collateral damage and incidental injury. Yet, 
even with high-tech weaponry, it remains impossible to avoid all collateral damage 
and incidental injury. Therefore, by opening populated areas to military opera- 
tions, precision denies civilians risk-free sanctuary therein. 

Other aspects of modern weaponry increase the presence of civilians or civilian 
objects near combat operations. For instance, there are more civilian employees and 
contractors on the modern battlefield. Downsizing, cost-cutting measures, and un- 
anticipated demands for troops are partially responsible. But advanced technology 
also drives civilianization. In some cases, there may not be sufficient numbers of 
advanced systems in the inventory for the military to develop training programs 
for its own personnel. Thus, weapon systems contracts often include maintenance 
and operations personnel. Or the systems may simply be so complex that few in the 
military have the background necessary to be trained to handle them. 

Additionally, because of the prohibitive cost of developing high-tech systems, 
armed forces are turning to "off-the-shelf (civilian) equipment. Thus, a factory 
producing items used by the military is a valid target despite its civilian produc- 
tion, unless a strike thereon would violate the principle of proportionality. The 
same applies to locations where the items are stored. Militaries also increasingly 
use civilian facilities and functions (such as airfields, electrical generation, civilian 
transport, communications assets) for their military needs. All such objects and 
dual-use locations are military objectives by the "use" criterion. To the extent they 

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War, Technology and the Law of Armed Conflict 



are planned for use, they become military objectives by virtue of "purpose." In all 
these cases, attacks will by definition result in collateral damage, and, in many 
cases, incidental injury to civilians. 143 

Enhancing Distinction: At the same time, technology often fosters distinction. In 
the first place, collateral damage and incidental injury are typically caused by: in- 
complete knowledge about what is being attacked; a lack of understanding of how 
civilians will be affected; inaccuracy; an inability to precisely meter the force ap- 
plied to ensure no more than necessary is used; and restriking a target because one 
is unsure whether the desired level of destruction or neutralization has been 
achieved. The advanced technologies described above, as well as the general trends 
noted, will counteract these causal factors to varying degrees. Transparency will 
provide a greater quantity of information about the target and its environs, and it 
will be increasingly reliable. Similarly, post-strike battle damage assessment will 
give commanders a more complete picture of when they need to restrike a target, 
thereby avoiding unnecessary additional attacks that place the civilian population 
at risk. Improvements in accuracy will steadily reduce the circular error probable 
and allow the use of smaller charges to achieve the desired level of damage. 

Moreover, technological advances are making possible non-kinetic (or non- 
lethal) alternatives to destructive kinetic attacks. For instance, rather than destroy- 
ing components of an electrical grid, which may be located near civilians or upon 
which they depend for power, it is now possible to drop carbon-fiber filaments on 
power lines to interrupt electricity to a particular military objective, such as a 
command and control facility. Offering even greater possibilities is computer net- 
work attack. Using CNA, power to the target could simply be shut off. It might 
even be possible to exert some control over enemy command and control (rather 
than merely disrupting it) by altering, adding, or deleting select information 
within the system. Doing so might be more advantageous than simply turning off 
power, for it could create a false picture of the battlespace such that the enemy ac- 
tually places itself at risk. Obviously, CNA and other technological alternatives to 
attack with kinetically destructive weapons present the possibility of dramatically 
limiting collateral damage and incidental injury, while attaining the same or 
greater military advantage. 

Finally, as noted, technology can compensate for numbers in warfare. During 
World War II, the circular error probable (CEP) of a B- 17 dropping gravity bombs 
was roughly 3,300 feet. This required 1,500 sorties dropping 9,000 bombs before 
achieving a high probability of damage against a point target. 144 An F-117 armed 
with laser-guided munitions, by contrast, can now strike its target with an unclassi- 
fied CEP of approximately 10 feet, good enough for one-bomb, one-target tactics. 
Obviously, the impact on civilians produced by hundreds of sorties dwarfs that 

162 



Michael N. Schmitt 



caused by one. Moreover, because technology decreases the number of troops nec- 
essary to conduct combat operations, there is less intermingling with the civilian 
population, and less opportunity for collateral damage and incidental injury. 

Technology's ability to enable one to operate within the enemy's OODA loop is 
also generating positive effects. By controlling the course of battle, the advantaged 
side can avoid engagements that slow the pace of operations. This is exactly what 
happened in Iraq. The Coalition, operating within the Iraqi OODA loop, was able 
to quickly speed north, bypassing urban areas where fighting would have both 
bogged it down and endangered the civilian population. 145 Since the best way to 
minimize the impact of combat on civilians is to limit its duration, the technology 
that makes speedy defeat possible enhances the protections of civilians and other 
protected persons and objects. 146 

The greatest impact of technology on the law of armed conflict lies in the area of 
precautions in attack. Recall that those who plan or decide on an attack have to do 
everything feasible to verify targets are military objectives, choose methods and 
means of warfare with an eye towards minimizing collateral damage and incidental 
injury, provide a warning if the circumstances permit, and select that target from 
among those yielding a similar military advantage that causes the least collateral 
damage and incidental injury. As discussed, technology is expanding the opportu- 
nities for militaries equipped with state of the art equipment to avoid collateral 
damage and incidental injury by complying with these requirements. They possess 
more robust systems for reliably locating and tracking military objectives and dis- 
tinguishing them from civilians and civilian objects, have a greater variety of weap- 
ons systems with which to strike the target, can choose from a larger set of possible 
targets (in part because they have a greater ability to penetrate enemy defenses), 
and will often have more opportunity to warn because, given their superiority, sur- 
prise is not as valuable a commodity to them as it is to their lower-tech adversaries. 

But as the technological gap widens, the precautions in attack requirements op- 
erate on the belligerents in an increasingly disparate manner. After all, the stan- 
dards are subjective, not objective; a belligerent is only required to do what is 
feasible, and feasibility depends on the available technology. The result is norma- 
tive relativism — the high tech belligerent is held to higher standards vis-a-vis pre- 
cautions in attack than its opponent. It is, of course, normative relativism by choice 
because States are under no legal obligation to acquire assets that will permit them 
to better distinguish between military objectives and the civilian population. 

The problem with normative relativism is that States comply with the law of 
armed conflict in part due to reciprocity, i.e., they agree to be bound because their 
opponents shoulder identical obligations. The obligations may not impose equiva- 
lent burdens in practice, but at least as a matter of law the parties are on equal 

163 



War, Technology and the Law of Armed Conflict 



are planned for use, they become military objectives by virtue of "purpose." In all 
these cases, attacks will by definition result in collateral damage, and, in many 
cases, incidental injury to civilians. 143 

Enhancing Distinction: At the same time, technology often fosters distinction. In 
the first place, collateral damage and incidental injury are typically caused by: in- 
complete knowledge about what is being attacked; a lack of understanding of how 
civilians will be affected; inaccuracy; an inability to precisely meter the force ap- 
plied to ensure no more than necessary is used; and restriking a target because one 
is unsure whether the desired level of destruction or neutralization has been 
achieved. The advanced technologies described above, as well as the general trends 
noted, will counteract these causal factors to varying degrees. Transparency will 
provide a greater quantity of information about the target and its environs, and it 
will be increasingly reliable. Similarly, post-strike battle damage assessment will 
give commanders a more complete picture of when they need to restrike a target, 
thereby avoiding unnecessary additional attacks that place the civilian population 
at risk. Improvements in accuracy will steadily reduce the circular error probable 
and allow the use of smaller charges to achieve the desired level of damage. 

Moreover, technological advances are making possible non-kinetic (or non- 
lethal) alternatives to destructive kinetic attacks. For instance, rather than destroy- 
ing components of an electrical grid, which may be located near civilians or upon 
which they depend for power, it is now possible to drop carbon- fiber filaments on 
power lines to interrupt electricity to a particular military objective, such as a 
command and control facility. Offering even greater possibilities is computer net- 
work attack. Using CNA, power to the target could simply be shut off. It might 
even be possible to exert some control over enemy command and control (rather 
than merely disrupting it) by altering, adding, or deleting select information 
within the system. Doing so might be more advantageous than simply turning off 
power, for it could create a false picture of the battlespace such that the enemy ac- 
tually places itself at risk. Obviously, CNA and other technological alternatives to 
attack with kinetically destructive weapons present the possibility of dramatically 
limiting collateral damage and incidental injury, while attaining the same or 
greater military advantage. 

Finally, as noted, technology can compensate for numbers in warfare. During 
World War II, the circular error probable (CEP) of a B-17 dropping gravity bombs 
was roughly 3,300 feet. This required 1,500 sorties dropping 9,000 bombs before 
achieving a high probability of damage against a point target. 144 An F-117 armed 
with laser-guided munitions, by contrast, can now strike its target with an unclassi- 
fied CEP of approximately 10 feet, good enough for one-bomb, one-target tactics. 
Obviously, the impact on civilians produced by hundreds of sorties dwarfs that 

162 



Michael N. Schmitt 



caused by one. Moreover, because technology decreases the number of troops nec- 
essary to conduct combat operations, there is less intermingling with the civilian 
population, and less opportunity for collateral damage and incidental injury. 

Technology's ability to enable one to operate within the enemy's OODA loop is 
also generating positive effects. By controlling the course of battle, the advantaged 
side can avoid engagements that slow the pace of operations. This is exactly what 
happened in Iraq. The Coalition, operating within the Iraqi OODA loop, was able 
to quickly speed north, bypassing urban areas where fighting would have both 
bogged it down and endangered the civilian population. 145 Since the best way to 
minimize the impact of combat on civilians is to limit its duration, the technology 
that makes speedy defeat possible enhances the protections of civilians and other 
protected persons and objects. 146 

The greatest impact of technology on the law of armed conflict lies in the area of 
precautions in attack. Recall that those who plan or decide on an attack have to do 
everything feasible to verify targets are military objectives, choose methods and 
means of warfare with an eye towards minimizing collateral damage and incidental 
injury, provide a warning if the circumstances permit, and select that target from 
among those yielding a similar military advantage that causes the least collateral 
damage and incidental injury. As discussed, technology is expanding the opportu- 
nities for militaries equipped with state of the art equipment to avoid collateral 
damage and incidental injury by complying with these requirements. They possess 
more robust systems for reliably locating and tracking military objectives and dis- 
tinguishing them from civilians and civilian objects, have a greater variety of weap- 
ons systems with which to strike the target, can choose from a larger set of possible 
targets (in part because they have a greater ability to penetrate enemy defenses), 
and will often have more opportunity to warn because, given their superiority, sur- 
prise is not as valuable a commodity to them as it is to their lower-tech adversaries. 

But as the technological gap widens, the precautions in attack requirements op- 
erate on the belligerents in an increasingly disparate manner. After all, the stan- 
dards are subjective, not objective; a belligerent is only required to do what is 
feasible, and feasibility depends on the available technology. The result is norma- 
tive relativism — the high tech belligerent is held to higher standards vis-a-vis pre- 
cautions in attack than its opponent. It is, of course, normative relativism by choice 
because States are under no legal obligation to acquire assets that will permit them 
to better distinguish between military objectives and the civilian population. 

The problem with normative relativism is that States comply with the law of 
armed conflict in part due to reciprocity, i.e., they agree to be bound because their 
opponents shoulder identical obligations. The obligations may not impose equiva- 
lent burdens in practice, but at least as a matter of law the parties are on equal 

163 



War, Technology and the Law of Armed Conflict 



footing. With precautions in attack, however, the law itself, interpreted in a com- 
pletely neutral manner, imposes dissimilar duties. This reality creates resentment; 
the greater the disparity, the greater the dissatisfaction of the belligerent bearing 
the greater burden of the legal obligation. 

Complicating matters are exaggerated expectations on the part of many as to the 
ability of high-tech forces to avoid either mistakes or collateral damage and inci- 
dental injury. Advanced militaries bear part of the responsibility for creating such 
expectations. Since at least Operation Desert Storm, they have mounted aggressive 
public affairs campaigns designed to convince the domestic and international pub- 
lic that they are doing everything possible to avoid harming civilians and their 
property. In the process, they have created the impression that high-tech militaries 
have an endless supply of precision munitions, when in fact the inventories remain 
limited. 147 

Moreover, they also inadvertently caused an impression that weapons are flaw- 
less. Yet, even when working perfectly, they are not perfectly accurate. The most 
commonly employed precision munitions used in Iraq (and most accurate) were 
laser guided. Among these, the most frequently dropped was the GBU-12 Paveway 
II, which has a circular error probable of nine meters. 148 Although such accuracy is 
extraordinary, it is far from perfect. 

At the same time, tales of satellite photos of individuals taken from space and 
eavesdropping on cell phone conversations from aircraft circling overhead cause 
many to believe the battlespace transparency enjoyed by high-tech militaries is 
comprehensive and fully accurate. Although it is true that transparency is at a level 
unimaginable even a decade ago (and improving rapidly), it is equally true that it 
is not absolute, a fact demonstrated by incidents ranging from the attack on the 
Chinese Embassy in Belgrade, to two strikes against an ICRC warehouse in Af- 
ghanistan, to the attack on a wedding party in Iraq. 

Critics of recent campaigns, who tend to overrate the ability of high-tech forces, 
often overlook the fog of war. Increasingly, they view collateral damage and inci- 
dental injury (or mistaken attacks) as prima facie evidence of a failure to take pre- 
cautions in attack. After all, given the high-tech systems at the disposal of advanced 
militaries, civilian loss "must" have been caused by either a failure to take the nec- 
essary precautions or outright recklessness. A rebuttable presumption of negli- 
gence in serious collateral damage/incidental injury incidents seems to be 
emerging vis-a-vis attacks conducted by high-tech attackers, who increasingly bear 
the burden of persuasion as to having taken appropriate precautions. 149 

Consider the reports written on the air campaigns during Operations Allied 
Force and Iraqi Freedom. 150 While occasionally questioning attacks on the basis of 
whether the target was a military objective (most notably media facilities), the bulk 

164 



Michael N. Schmitt 



of the criticism alleged failure to take adequate precautions in attack. For instance, 
with regard to Allied Force, Human Rights Watch (HRW) expressed uneasiness 
over "whether every feasible precaution was taken to accurately distinguish civil- 
ians from combatants" and felt there were "questions regarding the decisions to at- 
tack on the basis of incomplete and/or seriously flawed information." 151 
Commenting on the Dubrava Prison incident, in which 20 prisoners died during 
NATO attacks on nearby military facilities, HRW argued that "NATO did not ap- 
ply adequate precautions in executing its airstrikes on nearby military objectives, 
and therefore must be held accountable for the civilian deaths that occurred as a di- 
rect result of those attacks." But the organization failed to cite those precautions 
the attackers should have taken, beyond a general comment earlier in the report 
about bombing from altitude. 

The same tact was taken vis-a-vis Iraqi Freedom. HRW opined that continuing 
the decapitation campaign despite the lack of success "can be seen as a failure to 
take 'all feasible precautions' in choice of means and methods of warfare in order to 
minimize civilian losses as required by international humanitarian law." 152 Yet, the 
organization offered no alternatives to those precautions taken, other than not 
striking at all. This suggestion misstates the law, for the precautions in attack prin- 
ciple only applies to an attack that is otherwise lawful. The central issue is whether 
the attacker could have done something differently that would have lessened harm 
to the civilian population without forfeiting military advantage. 

Many have been so captured by the wizardry of modern weaponry and so ex- 
posed to the horror of civilian suffering through the media that entire campaigns 
now become tainted by individual incidents. Indeed, scholarly, NGO, and journal- 
istic comment often focuses on specific incidents, such as the Grdelica Gorge 
Bridge attack in Yugoslavia or the wedding party incident in Iraq, forgetting in the 
process that overall high-tech warfare is yielding campaigns that are ever-more dis- 
criminate. 153 Recall, that the number of weapons dropped during Operation Iraqi 
Freedom exceeded 10,000 and Allied Force involved the employment of more than 
20,000. Yet, Human Rights Watch labeled its report on the former Off Target and 
the latter Civilian Deaths in the NATO Air Campaign. 

Thus, technology not only actually heightens the legal standards to which high- 
tech forces must conform, but it creates expectations which, albeit initially without 
legal valence, create de facto standards which States operating under the media mi- 
croscope can ill-afford to ignore. Very subtly, these de facto standards will influ- 
ence application and interpretation of de jure standards as to what is and is not 
lawful collateral damage and incidental injury, the nature of the duty of care re- 
quired of those planning and executing attacks, and the reasonableness of mistakes 
of war. 



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War, Technology and the Law of Armed Conflict 



Conclusions 

What is striking about the relationship between the technology, warfare, and the 
law of armed conflict is that all the news is not good. One would expect technology 
to increasingly limit the impact of warfare on the civilian population. It certainly 
does so to an extent, and a number of the technologies described will further dis- 
tance war from civilians. 

Yet, the technology has a negative face as well. Although almost never a purpose 
of technology, the weapons of war are increasingly placing the principles under- 
pinning the law of armed conflict at risk. In great part, this is the result of an ever- 
widening divide between the technological "haves" and "have-nots." Faced with 
near certain defeat, "have-nots" are understandably (albeit inexcusably) rejecting 
the law of armed conflict as they compensate for their asymmetrical weakness. 
When one side operates in repeated violation of the law, adherence by the other 
usually deteriorates in lock-step. 

Even the technology itself weakens the ability to safeguard the civilian popula- 
tion and other protected individuals and entities during armed conflict. Whether 
because it has broken the traditional spatial limitations of conflict or simply placed 
more civilians on the battlefield, technology has proven it is no panacea. 

And sadly, technology has confused many observers of warfare, causing them to 
adopt unrealistic expectations that seem to be morphing into normative bound- 
aries. Inevitably, militaries will react negatively to this trend, for it places limita- 
tions on their activities that were not the product of the careful balancing between 
military necessity and humanitarian concerns that typically characterize the for- 
mation of the law of armed conflict. This division does not bode well for either the 
military or those who seek to limit its use. 

Notes 

1. For an interesting article exploring the relationship between war and technology, see 
Charles J. Dunlap, Jr., Technology: Recomplicating Moral Life for the Nation's Defenders, 
PARAMETERS, Autumn 1999, at 24. 

2. For instance, in ancient India the Law Code of Manu proclaimed that when "engaged in 
battle, (one) must never slay his enemies with weapons that are treacherous, barbed, or laced 
with poison, or whose tips are ablaze with fire." THE LAW CODE OF MANU (INDIA), ch. VII, v. 90 
(Patrick Olivelle trans., Oxford University Press, 2004) (c. 100 BCE). In the fifth century BC, the 
koina nomina (common customs of the Hellenes) forbade the use of "unhoplite" arms. Josiah 
Ober, Classical Greek Times, in THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE 
WESTERN WORLD 12, 13 (Michael Howard et al. eds., 1994). The Second Lateran Council 
condemned the use of the arc and crossbow in 1 139 because it was seen as less than honorable to 
attack from a distance [Gerald I.A.P. Draper, The Interaction of Christianity and Chivalry in the 



166 



Michael N. Schmitt 



Historical Development of the Law of War, 5 INTERNATIONAL REVIEW OF THE RED CROSS 3, 19 
(1965)], and in 1500 the Corpus Juris Canonici outlawed arrows, darts, and catapults on the same 
rationale. Leslie C. Green, The Law of War in Historical Perspective, in THE LAW OF MILITARY 
OPERATIONS 39, 46 (Michael N. Schmitt ed., 1998) (Vol. 72, US Naval War College International 
Law Studies). 

3. Statute of the International Court of Justice, art. 38.1(b), June 26, 1945, 33 U.N.T.S. 993. 
The Court has noted that customary international law is "looked for primarily in the actual 
practice and opinio juris of States." Continental Shelf (Libya v. Malta), Judgment, 1985 I.C.J. 13, 
29 (June 3). See also North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), Judgment, 
1969 1.C.J. 3, 44 (Feb. 20). For an excellent summary of the nature and sources of the customary 
law of armed conflict, see Jean-Marie Henckaerts, Study on Customary International 
Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed 
Conflict, 87 INTERNATIONAL REVIEW OF THE RED CROSS 175 (2005). 

4. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 
(JulyS). 

5. St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles 
Under 400 Grammes Weight, Dec. 11, 1868, reprinted in THE LAWS OF ARMED CONFLICT 91 
(Dietrich Schindler & Jiri Toman eds., 4th ed. 2004). 

6. Generally, restrictions on military technology were reactive in nature. For instance, the 
current prohibition on chemical weapons found its first expression in the 1925 Gas Protocol, a 
reaction to the 1.3 million gas casualties, including 91,000 deaths, during the First World War. 
Similarly, the Conventional Weapons Convention's anti-personnel mine Protocols of 1980 and 
1996, and the 1997 Ottawa Convention, are belated responses to a weapon that had killed some 
250,000 individuals since its invention. Occasionally, the international community attempts to 
constrain technologies before they find their way onto the battlefield. Famously unsuccessful 
were attempts to limit airpower in the late 19th and early 20th centuries. More successful has 
been the ban on biological weapons in the 1925 Gas Protocol and the 1972 Biological Weapons 
Convention, and the 1995 Protocol on blinding lasers to the Conventional Weapons 
Convention. See cites, infra note 7. 

7. Hague Declaration (IV, 1) to Prohibit, for the Term of Five Years, the Launching of 
Projectiles and Explosives from Balloons, and Other Methods of Similar Nature, July 29, 1899; 
Hague Declaration (IV, 2) Concerning Asphyxiating Gases, July 29, 1899; Hague Declaration 
(IV, 3) Concerning Expanding Bullets, July 29, 1899; Convention (VIII) Relative to the Laying of 
Automatic Submarine Contact Mines, Oct. 18, 1907; Declaration (XIV) Prohibiting the 
Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907; Protocol for the 
Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological 
Methods of Warfare, June 17, 1925; Convention on the Prohibition of Development, 
Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their 
Destruction, Apr. 10, 1972; Convention on the Prohibition of Military or any Other Hostile Use 
of Environmental Modification Techniques (arguably a method, not means, of warfare), Dec. 
10, 1976; Convention on Prohibitions or Restrictions on the Use of Certain Conventional 
Weapons Which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects 
(hereinafter Conventional Weapons Convention), with its Protocols on Non-Detectable 
Fragments (I), Mines, Booby Traps and Other Devices (II, amended May 3, 1996), and 
Incendiary Weapons (III), Oct. 10, 1980; Protocol (IV) to the CCW on Blinding Lasers, Oct. 13, 
1995; Convention on the Prohibition of the Development, Production, Stockpiling and Use of 
Chemical Weapons and on Their Destruction, Jan. 13, 1993; and the Convention on the 
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on 



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Their Destruction, Sept. 18, 1997. All reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, 
at 309, 95, 99, 1071, 309, 105, 135, 163, 181, 239, and 285, respectively. 

Means of warfare have been addressed through other avenues. As noted, in 1996 the ICJ 
issued an advisory opinion on nuclear weapons. Three decades earlier, the United Nations 
General Assembly had addressed nuclear weapons in its aspirational 1961 Declaration on the 
Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons. UNGA Res. 1653 (XVI), Nov. 
24, 1961, reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, at 127. Also noteworthy is 
the 1979 Conventional Weapons Convention Conference's Resolution on Small-Calibre 
Weapons. Resolution on Small-Calibre Weapon Systems, adopted by the UN Conference on 
Prohibitions or Restrictions on the Use of Certain Conventional Weapons, Sept. 28, 1979, 
reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, at 237. 

8. Various non-governmental organizations (NGOs) are seeking a moratorium (or ban) on 
the use of cluster munitions. See, e.g., Human Rights Watch, Cluster Munitions and 
International Humanitarian Law: The Need for Better Compliance and Stronger Rules, 
Prepared for the Convention on Conventional Weapons (CCW) Group of Governmental 
Experts on Explosive Remnants of War (ERW), July 5-16, 2004, (no date). 

9. Hague Convention (II) with Respect to the Laws and Customs of War on Land, and its 
Annex: Regulations Respecting the Laws and Customs of War on Land, July 29, 1899, reprinted 
in THE LAWS OF ARMED CONFLICT, supra note 5, at 55 [hereinafter Hague II Regulations]; 
Hague Convention (No. IV) Respecting the Laws and Customs of War on Land and its Annex: 
Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907, reprinted in THE 
LAWS OF ARMED CONFLICT, supra note 5, at 55 [hereinafter Hague IV Regulations]. 

10. Id., art. 22 (both instruments). 

11. Id., art. 23(a) (both instruments). 

12. Id., art. 23(d) (both instruments). The text is drawn from the 1907 formula. The 1899 
provision prohibited employment of "arms, projectiles, or material of a nature to cause 
superfluous injury." On this issue and variations in modern texts, see YORAM DINSTEIN, THE 
Conduct of Hostilities in the Law of International Armed Conflict 57-61 (2004). 

13. Hague II Regulations, Hague IV Regulations, supra note 9, art. 24. Ruses are defined in 
Additional Protocol I, Article 37: 

Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an 
adversary or to induce him to act recklessly but which infringe no rule of international 
law applicable in armed conflict and which are not perfidious because they do not invite 
the confidence of an adversary with respect to protection under that law. The following 
are examples of such ruses: the use of camouflage, decoys, mock operations and 
misinformation. 

Ruses must be distinguished from unlawful perfidy (see discussion infra). Protocol Additional to 
the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of 
International Armed Conflicts (Protocol I), Dec. 12, 1977, reprinted in THE LAWS OF ARMED 
CONFLICT, supra note 5, at 71 1 [hereinafter Additional Protocol I]. 

14. Hague II Regulations, Hague IV Regulations, supra note 9, art. 27 (both instruments). Note 
that historical monuments were added in the 1907 version. 

15. Additional Protocol I, supra note 13. 

16. 160 States were party as of May 2005. The US position on Additional Protocol I is 
authoritatively set out in Memorandum for Assistant General Counsel (International), Office of 
the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary 
International Law Implications, May 8, 1986 (on-file with author). See also Michael J. Matheson, 
The United States Position on the Relation of Customary International Law to the 1977 Protocols 



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Michael N. Schmitt 



Additional to the 1949 Geneva Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF 
International Law & Policy 419 (1987). 

17. In unusual placement, this article includes a prohibition on employment of "methods or 
means of warfare which are intended, or may be expected, to cause widespread, long-term and 
severe damage to the natural environment." 

18. Article 51.5(a)'s ban on "an attack by bombardment by any methods or means which treats 
as a single military objective a number of clearly separated and distinct military objectives 
located in a city, town, village or other area containing a similar concentration of civilians or 
civilian objects" is a variation of this prohibition. 

19. Such as the German Vergeltungswaffe (reprisal) 2 rockets of World War II. 

20. Of course, biological warfare is separately unlawful through specific prohibition. All 
weapons must be reviewed to assess their legality prior to being fielded. Additional Protocol I, 
supra note 13, art. 36. Although not a party to Additional Protocol I, US policy mandates such 
reviews. Deputy Secretary of Defense, Interim Guidance, Defense Acquisition, Memo, Oct. 30, 
2002. US military service regulations also require weapons reviews. Army Regulation 27-53, 
Review of Weapons Under International Law, Jan. 1, 1979; Air Force Instruction 51-402, 
Weapons Review, May 13, 1994; Secretary of the Navy Instruction 571 1.8 A, Review of Weapons 
Under International Law, Jan. 29, 1988. See also Isabelle Daoust, Robin Coupeland & Rikke 
Ishoey, New Wars, New Weapons? The Obligation of States to Assess the Legality of Means and 
Methods of Warfare, 84 INTERNATIONAL REVIEW OF THE RED CROSS 345 (2002). 

21. The principle is repeated in Article 57.2(a)(iii) & (b). 

22. See, e.g., Jean-Marie Henckaerts & Louise Doswald-Beck, I CUSTOMARY INTERNATIONAL 
HUMANITARIAN LAW (2005), ch. 5 [hereinafter Customary Law Study]. For an operational 
expression of this principle in an Additional Protocol I non-party State's military manual, see US 
Navy, US Marine Corps, US Coast Guard, The Commander's Handbook on the Law of Naval 
Operations, NWP 1-14M, MCWP 5-2.1, COMDTPUB P5800.7,H 8.1.2.1, 1995, reprinted in its 
annotated version as Volume 73, US Naval War College International Law Studies (1999). 

23. Additional Protocol I, supra note 13, arts. 12, 53, 54, 55, and 56 respectively. The Customary 
Law Study suggests that the following are specially protected under the customary law of war: 
medical and religious personnel and objects, humanitarian relief personnel and objects, 
journalists, protected zones, cultural property, works and installations containing dangerous 
forces, the natural environment, and those who are hors de combat (wounded, sick, shipwrecked, 
those who have surrendered, and prisoners of war). Customary Law Study, supra note 22, Parts 
II and V. 

24. Additional Protocol I, supra note 13, article 37 provides that: 

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

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

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

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

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

25. These examples are contained in Article 37 itself. The 1907 Hague IV Regulations reference 
"improper use of a flag of truce, of the national flag or of the military insignia and uniform of the 



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enemy, as well as distinctive badges of the Geneva Convention," a prohibition that is now 
unquestionably customary. Hague IV Regulations, supra note 9, art. 23(f). Customary Law 
Study, supra note 22, ch. 18; International Military Tribunal (Nuremberg), Judgment and 
Sentences (1946), 41 AMERICAN JOURNAL OF INTERNATIONAL LAW 172, 218 (1947). The 
reference is to the Geneva Convention of 1864. Convention for the Amelioration of the 
Condition of the Wounded in Armies in the Field, Aug. 22, 1864, reprinted in THE LAWS OF 
Armed Conflict, supra note 5, at 365. 

26. Consider the 2003 war in Iraq. Neither the United States nor Iraq was party to Additional 
Protocol I. The UK's party status imposed no legal obligations on British forces because 
Additional Protocol I applies between a party and non-party State only when the latter "accepts 
and applies the provisions thereof (art. 96). Iraq had not done so. Since Iraq was not a party to 
the 1907 Hague Convention (IV), that agreement was inoperative by virtue of its general 
participation clause (art. 2). Only the 1925 Gas Protocol, 1949 Geneva Conventions, and the 
1972 Biological Weapons Convention bound all three major belligerents. The 1993 Chemical 
Weapons Convention also constrained the United States and the United Kingdom, even though 
Iraq was not a party, because it prohibits using chemical weapons "under any circumstances" 
(art. 1.1). 

27. A provision along these lines appears in numerous law of armed conflict conventions. 
Hague II Regulations, supra note 9; Hague IV Regulations, supra note 9, Preamble; Gas Protocol, 
supra note 7, Preamble; Convention for the Amelioration of the Condition of the Wounded and 
Sick in Armed Forces in the Field, art. 63, Aug. 12, 1949, 75 U.N.T.S. 31, reprinted in THE LAWS 
OF ARMED CONFLICT, supra note 5, at 459 [hereinafter Geneva Convention I]; Convention for 
the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed 
Forces at Sea, art. 62, Aug. 12, 1949, 75 U.N.T.S. 85, reprinted in THE LAWS OF ARMED CONFLICT, 
supra note 5, at 485 [hereinafter Geneva Convention II]; Convention Relative to the Treatment 
of Prisoners of War, art. 142, Aug. 12, 1949, 75 U.N.T.S. 135, reprinted in THE LAWS OF ARMED 
CONFLICT, supra note 5, at 507 [hereinafter Geneva Convention III]; Convention Relative to the 
Protection of Civilian Persons in Time of War, art. 158, Aug. 12, 1949, 75 U.N.T.S. 287, reprinted 
in THE LAWS OF ARMED CONFLICT, supra note 5, at 575 [hereinafter Geneva Convention IV]; 
Conventional Weapons Convention, supra note 7, para. 5. In its Nuclear Weapons advisory 
opinion, the International Court of Justice stated that the "continuing existence and 
applicability" of the Martens Clause "is not to be doubted." Nuclear Weapons, supra note 4, at 
260. 

28. Customary Law Study, supra note 22. 

29. Id., Rules 70 and 71. 

30. Id., Rules 72, 73-80, 86. It further cites landmines and incendiaries as requiring particular 
care. Id., Rules 81-85. 

31. Id., Rules 1-2, 6. 

32. Id., Rules 7-8 (adopting the Additional Protocol I, art. 52.2, definition thereof). 

33. Id., Rule 65. 

34. Id., Rules 11-13. 

35. Id., Rule 14. 

36. Id., Rules 15-21. 

37. Id., Rules 25-30. 

38. Chairman Joint Chiefs of Staff, Department of Defense Dictionary of Military and 
Associated Terms, Joint Publication 1-02, as amended through May 9, 2005, available at 
www.dtic.mil/doctrine/jel/doddict/. 



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39. The US defense budget for 2003 (most recent comparative figures available) was 404.9 
billion dollars. Compare this figure with: Germany, 35.1b$; the United Kingdom, 42b$; France 
45.7b$; China, 55.9b$; and Russia, 65.2b$. International Institute of Strategic Studies, 
STRATEGIC BALANCE 2004-2005. The United States spent 26.2% of this amount on investment 
(research, development, acquisition). Available comparable figures for Germany and the United 
Kingdom are 18.5% and 24.4%, respectively. NATO Press Release 146 (2003). 

40. Initially set up in response to the 1957 Soviet launch of Sputnik, DARPA's current mission is 
twofold: "to prevent technological surprise to the US" and "to create technological surprise" for 
US adversaries. Defense Advanced Research Agency, Bridging the Gap, Feb. 2005, para 1 
[hereinafter DARPA Mission] . The agency was instrumental in conception and development of 
such systems as the F-117 stealth fighter and the Global Hawk and Predator unmanned aerial 
vehicles. Most notably, DARPA created the ARPANet and its network protocol architecture, the 
precursor to today's Internet. The following discussion of strategic thrusts is drawn primarily 
from this document. On the organization, see http://www.darpa.mil/. 

41. DARPA Mission, supra note 40, at ch. 3. On the agency's programs, see also Statement by 
Tony Tether, Director DARPA, to the Subcommittee on Terrorism, Unconventional Threats 
and Capabilities, House Armed Services Committee, House of Representatives, Mar. 10, 2005, 
available at www.darpa.mil/body/news/2005/darpa_hasc_3_10_05_final.pdf; Institute for 
Defense Analyses, Transformation and Transition: DARPA's Role in Fostering an Emerging 
Revolution in Military Affairs (Paper P-3698), April 2003. 

42. For a discussion of these strikes and their law of armed conflict implications, see Michael N. 
Schmitt, The Conduct of Hostilities during Operation Iraqi Freedom: An International 
Humanitarian Law Assessment, 6 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 73 
(2003). 

43. DARPA Mission, supra note 40, fig. 6. 

44. The RQ-1 Predator is an unmanned aerial vehicle (UAV) that provides surveillance, 
reconnaissance, and target acquisition services over long periods of time. Its detection 
capabilities include a TV camera, an infrared camera, and synthetic aperture radar for looking 
through smoke, clouds or haze. 

45. See Raydon Gates, Towards 2015: Challenges for a Medium Navy — An Australian Perspective, 
which is Chapter XIII in this volume, at 262-263. 

46. DARPA Mission, supra note 40, para. 3.1. 

47. Id., para. 3.2. 

48. Intelligence is "the product resulting from the collection, processing, integration, analysis, 
evaluation, and interpretation of available information concerning foreign countries or areas." 
Surveillance is the "systematic observation of aerospace, surface, or subsurface areas, places, 
persons, or things, by visual, aural, electronic, photographic, or other means." Reconnaissance is 
"a mission undertaken to obtain, by visual observation or other detection methods, information 
about the activities and resources of an enemy or potential enemy, or to secure data concerning 
the meteorological, hydrographic, or geographic characteristics of a particular area." DoD 
Dictionary, supra note 38. 

49. Colonel J. Boyd, USAF, coined the term. Operating within an opponent's OODA loop is a 
decision-making concept in which one party, maintaining constant situational awareness, 
assesses a situation and acts on it more rapidly than its opponent. When this happens, the 
opponent is forced into a reactive mode, thereby allowing the first party to maintain the 
initiative. As the process proceeds, the opponent eventually begins to react to actions that no 
longer bear on the immediate situation. The resulting confusion causes paralysis. Boyd's ideas 



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were set out in a briefing titled "Patterns of Conflict," which he delivered hundreds of times at 
numerous venues. 

50. The 2004 US National Military Strategy specifically adopts this approach by emphasizing 
the criticality of decision superiority: 

Decision superiority - the process of making decisions better and faster than an 
adversary - is essential to executing a strategy based on speed and flexibility. Decision 
superiority requires new ways of thinking about acquiring, integrating, using and 
sharing information. It necessitates new ideas for developing architectures for 
command, control, communications and computers (C4) as well as the intelligence, 
surveillance and reconnaissance assets that provide knowledge of adversaries. Decision 
superiority requires precise information of enemy and friendly dispositions, 
capabilities, and activities, as well as other data relevant to successful campaigns. 
Battlespace awareness, combined with responsive command and control systems, 
supports dynamic decision-making and turns information superiority into a 
competitive advantage adversaries cannot match. 

Chairman of the Joint Chiefs of Staff, National Military Strategy of the United States 17 (2004). 

51. Fire support consists of firing artillery or other weapons in support offerees engaging the 
enemy. 

52. Robots are also being developed, some of which are already fielded in Iraq to deal with 
roadside bombs. For a description of the robotics development program, see Tim Weiner, 
Arsenal of the Future: Robots in Combat, NEW YORK TIMES, Feb. 16, 2005, at Al. 

53. CNN.com, Huge Underground Hideout Uncovered in Iraq, June 5, 2005, available at 
www.cnn.com/2005/WORLD/meast/06/05/iraq.main/. The air-conditioned 503,000 square 
foot bunker contained a large supply of weapons and ammunition, and contained living spaces 
for Iraqi forces. 

54. DARPA was instrumental in developing stealth materials for aircraft. 

55. Peta as a prefix refers to 10 to the 15th power. In computing, it is one quadrillion (one 
thousand million million) bytes. 

56. An aimpoint is " [a] precise point associated with a target and assigned for a specific weapon 
impact to achieve the intended objective and level of destruction. [It] may be defined 
descriptively (e.g., vent in center of roof) by grid reference or geolocation." Chairman of the 
Joint Chiefs of Staff, Joint Doctrine for Targeting, Joint Publication 3-60, Jan. 17, 2002, at G-6. 

57. CEP is the radius of a circle within which 50% of the weapons will strike. 

58. Probability of damage (PD) expresses the statistical probability (percentage or decimal) that 
specified damage criteria can be met assuming the probability of arrival. United States Air Force, 
Intelligence Targeting Guide, AF Pamphlet 14-210, at 59-60, Feb. 1, 1998. For non-nuclear 
weapons, damage criteria include F-Kill (Fire-power Kill), M-Kill (Mobility Kill), K-Kill 
(Catastrophic Kill), FC-Kill (Fire Control Kill), PTO-Kill (Prevent Takeoff Kill), I-Kill 
(Interdiction Kill), SW-Kill (Seaworthiness Kill), and Cut and Block. Id. at 58. 

59. For instance, a single cruise missile costs over $ 1 ,000,000. Federation of American Scientists, 
BGM-109 Tomahawk, available at www.fas.org/man/dod-101/sys/smart/bgm-109.htm. Per 
unit cost for forces already equipped to employ these systems is approximately $500,000. 

60. The joint direct attack munition (JDAM) is a major first step. JDAMs consist of an existing 
unguided bomb to which a guidance tail kit is attached. Using global positioning system 
(satellite) and inertial navigation guidance, the resulting weapon has an unclassified CEP of 
approximately 20 feet from as far away as 15 miles. Most aircraft can be easily modified to 
employ the system. At a cost of roughly $20,000, JDAM brings accuracy within the reach of many 
nations. 



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During Operation Iraqi Freedom, 5,086 JDAM GBU-31s (2,000 pound) were dropped 
between March 19 and April 18, 2003. In addition, US forces dropped 768 JDAM GBU 32s 
(1,000 pound) and 675 GBU 35s (1,000 pound penetrator). US Central Command Air Forces, 
Assessment and Analysis Division, Operation Iraqi Freedom — By the Numbers, Apr. 30, 2003, 
at 11, available at www.globalsecurity.org/military/library/report/2003/uscentaf_oif_report 
_30apr2003.pdf. 

61. Chairman of the Joint Chiefs of Staff, Doctrine for Intelligence Support to Joint Operations, 
Joint Publication 2-0, Mar. 9, 2000, fig. II-2 

62. The E-3 Sentry is an airborne warning and control system ( AWACS) providing surveillance, 
command, weapons control, battle management, and communications services in the aerial 
environment. Defensively, AWACS detects enemy aircraft or missiles and directs fighters to 
intercept them. Offensively, it can monitor the battlespace, providing real-time location and 
identification of enemy and friendly aircraft and naval vessels to users at the tactical, operational, 
and strategic levels of warfare. The E-8C Joint Surveillance Target Attack Radar System 
(JSTARS) is an airborne battle management, command and control, intelligence, surveillance 
and reconnaissance aircraft that provides ground and air commanders with information that 
supports attacks on enemy ground forces. Unmanned Aerial Vehicles (UAV) are aircraft 
without a crew that can (depending on the system) perform surveillance, reconnaissance, and 
target acquisition and attack functions. 

63. Interview with senior US Army officer with recent combat experience. DARPA has also 
demonstrated the capability for establishing Internet connectivity with tactical aircraft which 
will allow ground station operators to access, as needed, data from sensors (e.g., electro -optical 
and infrared video) on the aircraft. DARPA, DARPA Demonstrates Internet Connection for 
Tactical Aircraft, News Release, Jun. 28, 2004. 

64. Networking significantly affects command and control. On the one hand, it pushes 
authority and responsibility down the chain of command because the underlying premise of a 
networked system is rapid response to information through enhanced horizontal cooperation 
(e.g., by passing data directly from the sensor to the "shooter"). Yet, the technology that makes 
transparency possible and improves communications speed and reliability also allows those up 
the chain to become involved in even minor tactical engagements. Senior commanders can 
literally watch soldiers enter buildings from thousands of miles away and talk to those soldiers as 
they do so. 

65. Over time, UAVs have become more robust. For instance, the Global Hawk can fly to an 
area over 1 ,000 miles away and remain on station for 24 hours. Equipped with synthetic aperture 
radar, a ground moving target indicator, and high-resolution electro-optical and infrared 
sensors, it collects information that is transmitted to users in near real-time. Because it operates 
at high altitude, the Global Hawk is highly survivable and can monitor huge areas on earth. 

66. Anthony Dworkin, The Yemen Strike, Nov. 14, 2002, available at www.crimesofwar/ 
onnews/news-yemen.html. 

67. Non-lethal weapons are " [ w] eapons that are explicitly designed and primarily employed so 
as to incapacitate personnel or material, while minimizing fatalities, permanent injury to 
personnel, and undesired damage to property and the environment." DOD Dictionary, supra 
note 38. The United States has established the Joint Non-Lethal Weapons Program to "provide 
warfighters a family of Non-Lethal Weapon (NLW) systems with a range of optional non-lethal 
capabilities across the full spectrum of threats and crisis." See generally, NLWP website, available 
at www.jnlwd.usmc.mil/mission.asp. 

68. In then-year dollars. B-2 Bomber: Status of Cost, Development, and Production, General 
Accounting Office, GAO/NSIAD-95-164, Aug. 1995. 



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69. I.e., without the shooter actually seeing the target. Also labeled an "over the horizon" attack. 

70. Through April 18, 2003. By the Numbers, supra note 60. Or consider computerized 
counter-battery radar systems that identify an incoming shell at the apex of its flight and 
immediately calculate its source. Fire is returned quickly, presumably before the enemy has an 
opportunity to relocate. 

71 . Using advanced defensive and offensive technologies such as stealth aircraft (e.g., B-2 Spirit 
and F-117 Nighthawk), anti-radar missiles (e.g., AGM-88 HARM high speed anti-radiation 
missile), and jamming (e.g., with an EA6-B Prowler aircraft). 

72. Steven Metz and Douglas Johnston have usefully described asymmetry as follows: 

In the realm of military affairs and national security, asymmetry is acting, organizing, 
and thinking differently than opponents in order to maximize one's own advantages, 
exploit an opponent's weaknesses, attain the initiative, or gain greater freedom of 
action. It can be political-strategic, military strategic, or a combination of these. It can 
entail different methods, technologies, values, organizations, time perspectives, or 
some combination of these. It can be short-term or long-term. It can be deliberate or by 
default. It can be discrete or pursued in combination with symmetric approaches. It can 
have both psychological and physical dimensions. 

Steven Metz & Douglas V. Johnson II, ASYMMETRY AND U.S. MILITARY STRATEGY: DEFINITION, 
Background, and Strategic Concepts (US Army War College, Strategic Studies Institute, 
Jan. 2001). The instant article limits discussion to technological asymmetry. Other useful 
material on asymmetry includes Stephen J. Blank, RETHINKING ASYMMETRIC THREATS, (US 
Army War College, Strategic Studies Institute, Sept. 2003); Ivan Arrequin-Toft, How the Weak 
Win Wars: A Theory of Asymmetric Conflict, INTERNATIONAL SECURITY, Summer 2001, at 19; 
Steven J. Lambakis, Reconsidering Asymmetric Warfare, JOINT FORCE QUARTERLY, Dec. 2004, at 
102; Montgomery C. Meigs, Unorthodox Thoughts about Asymmetric Warfare, PARAMETERS, 
Summer 2003, at 4; R.V. Gusentine, Asymmetric Warfare — On Our Terms, PROCEEDINGS OF 
the United States Naval Institute, Aug. 2002, at 58. 

73. Norman Friedman, Terrorism, Afghanistan, and America's New Way of War 166 

(2004). 

74. International Institute for Strategic Studies, THE MILITARY BALANCE 2002-2003, at 97 
(2003). 

75. 183,000. BOB WOODWARD, PLAN OF ATTACK 401 (2004). 

76. By the Numbers, supra note 60, at 3, 7-8. Losses also included four Apache and two Cobra 
helicopters. Id. Iraqi air defenses had been degraded by Operations Northern Watch and 
Southern Watch air strikes prior to commencement of Operation Iraqi Freedom. These 
operations monitored the no-fly zones in northern and southern Iraq. 

77. November 2004. Estimates of casualties vary somewhat. See, e.g., Anthony Shadid, Baghdad 
Suffers a Day of Attacks, WASHINGTON POST, Nov. 21, 2004, at A30; US Casualties Surge in Iraq, 
but Public Impact is Muffled, AGENCE FRANCE PRESSE, Nov. 30, 2004; Iraq Coalition Casualty 
Count, icasualties.org/oif/Stats.aspx (filter by place and month). 

78. The United States specifically noted this possibility in its 2004 National Military Strategy. 

Dual-use civilian technologies, especially information technologies, high-resolution 
imagery and global positioning systems are widely available. These relatively low cost, 
commercially available technologies will improve the disruptive and destructive 
capabilities of a wide range of state and non-state actors. Advances in automation and 
information processing will allow some adversaries to locate and attack targets both 
overseas and in the United States. Software tools for network-attack, intrusion and 



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Michael N. Schmitt 



disruption are globally available over the Internet, providing almost any interested 
adversary a basic computer network exploitation or attack capability. 

National Military Strategy, supra note 50, at 6. 

79. Jamming impedes the enemy's use of the electromagnetic spectrum. Spoofing involves 
creating signals that imitate those of the enemy or others. 

80. In this case, intercepting mobile phone signals. 

81. See generally US Department of Defense, Final Report to Congress: Conduct of the Persian 
Gulf War (1992). 

82. Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq 
78-79 (Dec. 2003), available at www.hrw.org/reports/2003/usal203/. Since the denial of 
combatant status to Taliban fighters and publication of photos of US Special Forces soldiers 
attired in indigenous clothing during Operation Enduring Freedom, the "requirement" to wear 
uniforms has evoked much discussion. See, e.g., Michelle Kelly & Morten Rostrup, Identify 
Yourselves: Coalition Soldiers in Afghanistan are Endangering Air Workers, GUARDIAN (London), 
Feb. 1, 2002, at 19. For a comprehensive legal analysis of the subject, see W. Hays Parks, Special 
Forces' Wear of Non-Standard Uniforms, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 493 
(2003). 

83. The relevant provisions of Article 4 exclude the following from civilian status: 

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

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

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

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

(c) that of carrying arms openly; 

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

Geneva Convention III, supra note 27. On the wear of "distinctive" attire, see also Hague IV 
Regulations, supra note 9, art. 1.2; Geneva Convention I, supra note 27, art. 13(2)(b); Geneva 
Convention II, supra note 27, art. 13(2)(b). Article 44.3 of Additional Protocol I relaxes the 
uniform requirement in "situations in armed conflicts where, owing to the nature of hostilities 
an armed combatant cannot so distinguish himself." In such circumstances, he or she must carry 
arms openly during military engagements and while visible to the adversary during "a military 
deployment preceding the launch of an attack." This provision is not customary law of armed 
conflict, and therefore does not supercede the Geneva criteria for non-party States. 

84. Michael Bothe (et al.) have noted that, " [i]t is generally assumed that these conditions were 
deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, 
to be inherent in the regular armed forces of States. Accordingly, it was considered unnecessary 
and redundant to spell them out in the Conventions." MICHAEL BOTHE ET AL., NEW RULES 
FOR VICTIMS OF ARMED CONFLICT 234 (1982). See also discussion in Customary Law Study, 
supra note 22, at 15. Case law is supportive. See, e.g., Mohammed Ali et al. v. Public Prosecutor 
(1968), [1969] AC 430, 449; Ex parte Quirinetal., 317 U.S. 1 (1942). For a superb analysis of the 
subject, see Kenneth Watkin, WARRIORS WITHOUT RIGHTS? COMBATANTS, UNPRIVILEGED 



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Belligerents, and the Struggle Over Legitimacy, Program on Humanitarian Policy and 
Conflict Occasional Paper No. 2, Winter 2005. 

85. This point is reflected in Customary Law Study, supra note 22, Rule 106. 

86. "Members of the armed forces of a party to a conflict (other than medical personnel and 
chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they 
have the right to participate directly in hostilities." Additional Protocol I, supra note 13, art. 43.2. 

87. The classic article on the subject is Richard R. Baxter, So-called "Unprivileged Belligerency": 
Spies, Guerrillas and Saboteurs, 1952 BRITISH YEARBOOK OF INTERNATIONAL LAW 323, reprinted 
in MILITARY LAW REVIEW (Bicentennial Issue) 487 (1975). For a contemporary treatment of the 
issue of direct participation, see Michael N. Schmitt, Humanitarian Law and Direct Participation 
in Hostilities by Private Contractors or Civilian Employees, 5 CHICAGO JOURNAL OF 
INTERNATIONAL LAW 511 (2005); Michael N. Schmitt, "Direct Participation in Hostilities" and 
21st Century Armed Conflict, in CRISIS MANAGEMENT AND HUMANITARIAN PROTECTION: 

Festschrift fur Dieter Fleck 505 (Horst Fischer et al. eds., 2004). 

88. Off Target, swpra note 82, at 70. 

89. The prohibition dates from the 1863 Lieber Code, and appears in the 1899 and 1907 Hague 
Regulations; 1906, 1929, and 1949 Geneva Conventions; and Additional Protocol I. General 
Order No. 100, US Department of Army, Instructions for the Government of Armies of the 
United States in the Field (Lieber Code), art. 117, reprinted in THE LAWS OF ARMED CONFLICT, 
supra note 5, at 3; Hague II Regulations, supra note 9, art. 23(f); Hague IV Regulations, supra 
note 9, art. 23(f); Convention for the Amelioration of the Condition of the Wounded in Armies 
in the Field, arts. 27-28, July 6, 1906, reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, 
at 385; Convention for the Amelioration of the Condition of the Wounded in Armies in the 
Field, arts. 24 & 28, July 27, 1929, reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, at 
409; Geneva Convention I, supra note 27, arts. 39, 44, 53, 54; Geneva Convention II, supra note 
27, arts. 41, 44, 45; Additional Protocol I, supra note 13, art. 38.1. See also the military manuals of 
many nations. E.g., Commander's Handbook, supra note 22, para. 11.9.6; UK Ministry of 
Defence, The Manual of the Law of Armed Conflict, para. 5.10(a) (2004). Permitted purposes 
are set forth in Geneva Convention I, supra note 27, arts. 24-27, 38-44; Geneva Convention II, 
supra note 27, arts. 22, 24-25, 27, 36-39, 41-44; Geneva Convention IV, supra note 27, arts. 18- 
22; Additional Protocol I, supra note 13, arts. 8, 18, 22-23. The prohibition is self- evidently 
customary in nature today. See, e.g., Customary Law Study, supra note 22, Rule 59. When the 
purpose of the misuse goes beyond merely "hiding" from the enemy to the use of the emblem to 
treacherously attack, the separate violation of perfidy occurs. See, e.g., Commander's Handbook, 
supra note 22, para. 12.2.; Federal Ministry of Defence (Germany), Humanitarian Law in Armed 
Conflicts Manual, sec. 640 (1992). 

90. Counter-targeting is "preventing or degrading detection, characterization, destruction, and 
post-strike assessment." Defense Intelligence Agency, Saddam's Use of Human Shields and 
Deceptive Sanctuaries: Special Briefing for the Pentagon Press Corps, Feb. 26, 2003, available at 
www.defenselink.mil/news/Feb2003/g030226-D-9085M.html. 

91. Todd S. Purdum, Night Time Ambush in Iraqi City, NEW YORK TIMES, Apr. 5, 2003, at 1; 
Dexter Filkins, In the Field Choosing Targets: Iraqi Fighters Or Civilians? Hard Decision for 
Copters, NEW YORK TIMES, Mar. 31, 2003, at 5. 

92. This prescription tracks that found in the 1949 Fourth Geneva Convention, Article 28: "The 
presence of a protected person may not be used to render certain points or areas immune from 
military operations." The prohibition only applies vis-a-vis those who "find themselves ... in the 
hands of a Party to the conflict or Occupying Party of which they are not nationals." It would not 
apply to Iraqi forces using Iraqis as shields. Geneva Convention IV, supra note 27, art. 4. 



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93. Customary Law Study, supra note 22, Rule 97. See also Commander's Handbook, supra note 
22, para. 11.2; Rome Statute of the International Criminal Court (Rome Statute), art. 
8.2(b) (xxiii), July 17, 1998, reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, at 1309. 
The customary nature is further evidenced by the widespread condemnation that results 
whenever shields are used. The UN General Assembly labeled Iraq's use of human shields during 
the first Gulf War as a "most grave and blatant violation of Iraq's obligations under international 
law" GA Res. 46/134 (Dec. 17, 1991). In May 1995, Bosnian Serbs seized United Nations 
Protection Force (UNPROFOR) peacekeepers and used them as human shields against NATO 
air strikes. In response, the UN condemned the action, demanded release, and authorized the 
creation of a rapid reaction force to handle such situations. SC Res. 998 (June 16, 1995). 

94. A principle enshrined in Article 51.8 of Additional Protocol I: "Any violation of these 
prohibitions [includes the prohibition on shielding] shall not release the Parties to the conflict 
from their legal obligations with respect to the civilian population and civilians. ..." 

95 . Those taking the opposite stance on involuntary shields reasonably and accurately point out 
that it creates an incentive for the use of shields because an opponent can effectively render a 
military objective immune from attack simply by placing enough civilians at risk (by virtue of 
operation of the proportionality principle). A.P.V. Rogers has argued that: 

[A] tribunal considering whether a grave breach has been committed [a 
disproportionate attack] would be able to take into account when considering the rule 
of proportionality the extent to which the defenders had flouted their obligation to 
separate military objectives from civilian objects and to take precautions to protect the 
civilian population . . . the proportionality approach taken by the tribunals should help 
to redress the balance which would otherwise be tilted in favour of the unscrupulous. 

A.P.V. ROGERS, LAW ON THE BATTLEFIELD 129 (2d ed. 2004). See also W. Hays Parks, Air War 
and the Law of War, 32 AIR FORCE LAW REVIEW 1, 163 ( 1992). 

96. As noted in Article 51.3 of Additional Protocol I, "[civilians shall enjoy the protection 
afforded by this Section, unless and for such time as they take a direct part in hostilities. " The Rome 
Statute adopts this standard by making it a war crime to intentionally attack civilians unless they 
are "taking direct part in hostilities." Supra note 93, art. 8.2(b)(i). The United States correctly 
takes the position that as direct participants, they become targetable (although there will seldom 
be any reason to directly attack them) and, more important, are excluded in the estimation of 
incidental injury when assessing proportionality. 

And then, the other target category that is a challenge for us is where the human shields 
that we've talked of before might be used. And you really have two types of human 
shields. You have people who volunteer to go and stand on a bridge or a power plant or 
a water works facility, and you have people that are placed in those areas not of their 
own free will. In the case of some of the previous use of human shields in Iraq, Saddam 
placed hostages, if you will, on sensitive sites in order to show that these were human 
shields, but, in fact, they were not there of their own free will. Two separate problems to 
deal with that, and it requires that we work very carefully with the intelligence 
community to determine what that situation might be at a particular location. 

US Department of Defense, Background Briefing on Targeting, Mar. 5, 2003, available at 
www.defenselink.mil/news/Mar2003/t03052003_t305targ.html. Human Rights Watch takes 
the opposite position. Human Rights Watch, International Humanitarian Law Issues in a 
Potential War in Iraq, Feb. 20, 2002, available at www.hrw.org/backgrounder/arms/ 
iraq0202003.htm#l. Children legally lack the mental capacity to form the intent to voluntarily shield 
military objectives. Israeli forces do not use live ammunition against children. Justus R. Weiner, 



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Co-existence Without Conflict: The Implementation of Legal Structures for Israeli-Palestinian 
Cooperation Pursuant to the Interim Peace Agreements, 26 BROOKLYN JOURNAL OF 
International Law 591 n.407 (2000). 

97. International volunteer shields traveled to Iraq prior to Operation Iraqi Freedom. All 
departed once they realized the seriousness of their actions and the Iraqi Government's desire to 
use them as shields for military objectives. Those who suggest that shielding is not direct 
participation forget that, in the CNN age, shielding may be a more effective defense against 
attack than weaponry. 

98. Off Target, supra note 82, at 72-73. 

99. Marine Expeditionary Force 8c Multi-National Corps-Iraq, Telling the Fallujah Story to the 
World, Briefing Slides, Nov. 20, 2004 (on file with author). 

100. See also Customary Law Study, supra note 22, ch. 6. 

101. Additional Protocol I, supra note 13, art. 12.4. 

102. Id., art. 53(b). See also Hague IV Regulations, supra note 9, art. 27. 

103. Off Target, supra note 82, at 72-73. On misuse of religious locations, see also Regime Shows 
Disregard for Historical, Religious Sites in Holy City, US Central Command News Release No. 03- 
04-28, Apr. 2, 2003; Regime Use of Baghdad Mosques And Hospitals, US Central Command News 
Release No. 03-04-65, Apr. 6, 2003. 

104. Additional Protocol I, supra note 13, art. 52.2. According to the ICRC Commentary on the 
definition of military objective, " [t]he criterion of purpose is concerned with the intended future 
use of an object, while that of use is concerned with its present function." COMMENTARY ON THE 
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 
at para. 2022 (Yves Sandoz, Christophe Swinarski & Bruno Zimmerman eds., 1987). For instance, 
an apartment building's use as a unit headquarters transforms it into an attackable military 
facility. Any collateral damage or incidental injury that might be caused during an attack thereon 
would be governed by the principle of proportionality. 

105. See also Rome Statute, supra note 93, art. 8.2(b) (ix). 

106. See, e.g., Glenn Collins, Allied Advances, Tougher Iraqi Resistance, and a Hunt in the Tigris, 
NEW YORK TIMES, Mar. 24, 2003, at 1; Brian Knowlton, Bush Tells ofVood Progress' But Says 
War has Just Begun, INTERNATIONAL HERALD TRIBUNE, Mar. 24, 2003, at 6. The prohibition is 
set forth in Article 37.1(a), Additional Protocol I. See also Lieber Code, supra, note 89, art. 71; 
Project of an International Declaration Concerning the Laws and Customs of War (1874 
Brussels Declaration), art. 13, reprinted in THE LAWS OF ARMED CONFLICT, supra note 5, at 21; 
The Laws of War on Land (1880 Oxford Manual), at 9(b), reprinted in THE LAWS OF ARMED 
CONFLICT, supra note 5, at 29; Hague II Regulations, supra note 9, art. 23(c); Hague IV 
Regulations, supra note 9, art. 23(c); Additional Protocol I, supra note 13, art. 41.2(b). Violation 
is a grave breach pursuant to Additional Protocol I, Article 85.3(e). A flag is not the sole means of 
communicating intent to surrender; any technique that so informs the enemy suffices. 
Surrendering forces are hors de combat and entitled to immunity from attack. 

107. On the increasing use of suicide bombings in Iraq, see Robert A. Pape, Blowing Up an 
Assumption, INTERNATIONAL HERALD TRIBUNE, May 19, 2005, at 8. See also ROBERT A. PAPE, 
Dying to Win: The Strategic Logic of Suicide Terrorism (2005). Pape looked at 315 
suicide bombings, concluding that suicide bombers are seldom religious fanatics. On the 
contrary, the majority of bombings are conducted as part of a political or military campaign, 
often intended to motivate democracies to leave territory that the bombers consider their 
homeland. See also Dan Eggen 8c Scott Wilson, Suicide Bombs Potent Tools of Terrorist, 
Washington Post, July 17, 2005, at Ai. 

108. As illustrated by the kamikaze in the Second World War. See Yoram Dinstein, Jus in Bello 
Issues Arising in the Hostilities in Iraq in 2003, 34 ISRAEL YEARBOOK ON HUMAN RIGHTS 1, 4-5 
(2004), for a discussion of the legal issues in the context of the war in Iraq. 



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109. See Schmitt, Humanitarian Law and Direct Participation, supra note 87, at 520-21. 

110. Centers of gravity consist of" [t]hose characteristics, capabilities, or sources of power from 
which a military force derives its freedom of action, physical strength, or will to fight." DoD 
Dictionary, supra note 38. 

111. To draw Israel into the conflict, thereby disrupting the Coalition, which included Arab 
States such as Syria. 

112. CNA consists of " [operations to disrupt, deny, degrade, or destroy information resident in 
computers and computer networks, or the computers and networks themselves. . . . CNA relies 
on the data stream to execute the attack. ..." An example is "sending a code or instruction to a 
central processing unit that causes the computer to short out the power supply." DoD 
Dictionary, supra note 38. On computer network attack, see COMPUTER NETWORK ATTACK 
AND INTERNATIONAL LAW (Michael N. Schmitt & Brian O'Donnell eds., 2002) (Vol. 76, US 
Naval War College International Law Studies); Michael N. Schmitt, Wired Warfare: Computer 
Network Attack and International Law, 84 INTERNATIONAL REVIEW OF THE RED CROSS 365 
(2002); Michael N. Schmitt, Heather A. Harrison-Dinniss & Thomas C. Winfield, Computers 
and War: The Legal Battlespace, Harvard Program on Humanitarian Policy and Conflict 
Research, International Humanitarian Law Research Initiative Briefing Paper (June 2004), 
available atwww.ihlresearch.org/ihl/pdfs/schmittetal.pdf; Michael N. Schmitt, CNA and the Jus 
in Bello: An Introduction, in INTERNATIONAL EXPERTS CONFERENCE ON COMPUTER NETWORK 

Attack and the Applicability of International Humanitarian Law: Proceedings 10 1 
(Karin Brystrom ed., 2005). 

113. Recall that Article 57.2(a)(ii) of Additional Protocol I requires those who plan or decide 
upon an attack to "take all feasible precautions in the choice of means and methods of attack 
with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to 
civilians and damage to civilian objects." 

114. If the computer contagions are designed to spread randomly in a way that may cause injury 
to civilians or damage to civilian objects, they constitute prohibited indiscriminate weapon. 

115. Dual-use objects are those used for both military and civilian purposes. 

116. See, e.g., Knut Dormann, Applicability of the Additional Protocols to Computer Network 
Attack, in INTERNATIONAL EXPERTS CONFERENCE, supra note 112, at 139, 145. 

117. For instance, "the civilian population as such, as well as individual civilians, shall not be the 
object of attack" (51.2); "civilian objects shall not be the object of attack" (52.1); "indiscriminate 
attacks are forbidden" (5 1 .4); "attacks shall be limited strictly to military objectives" (52.2); etc. 

118. This position is consistent with other aspects of Additional Protocol I. For instance, Article 
51, which provides that the "civilian population and individual civilians shall enjoy general 
protection against dangers arising from military operations," and which prohibits "acts or 
threats of violence the primary purpose of which is to spread terror among the civilian 
population," as well as the commentary to Article 48, which notes that "the word 'operation' 
should be understood in the context of the whole of the Section; it refers to military operations 
during which violence is used." Additional Protocol I, supra note 13, art. 51.1-2; COMMENTARY, 
supra note 104, para. 1875. 

119. A point supported by the prohibition on attacks intended to terrorize the civilian 
population in Additional Protocol I, art. 51.2. 

120. See, e.g., James Brooke, North Koreans Claim to Extract Weapons Grade Fuel for Bombs, NEW 
YORK TIMES, May 12, 2005, at 1. 

121. This is the position taken by the Customary Law Study, supra note 22. 

122. For a threat analysis of biological weapons, see Milton Leitenberg, Biological Weapons and 
"Bioterrorism" in the First Years of the 21st Century, 21:2 POLITICS AND THE LIFE SCIENCES 3 
(2002). 

123. Nuclear Weapons, supra note 4, para. 105E. 



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124. See generally, Michael N. Schmitt, The International Court of Justice and the Use of Nuclear 
Weapons, NAVAL WAR COLLEGE REVIEW, Spring 1998, at 91, reprinted in 7 JOURNAL OF LEGAL 
STUDIES 57 (1997). 

125. For instance, use of nuclear mines in remote areas of the high seas against enemy ballistic 
missile submarines or low-yield battlefield nuclear weapons employed against armor forces in 
remote parts of the desert when there is no wind. The situations are rare, but not unimaginable. 

126. Additional States include Israel, Pakistan, India, and North Korea. 

127. See Customary Law Study, supra note 22, ch. 22. 

128. The term extends to members of the armed forces. It is not limited to objects. 
COMMENTARY, supra note 104, at para. 2017. 

129. The official ICRC COMMENTARY, discussing the term "definite military advantage," states 
"it is not legitimate to launch an attack which offers only potential or indeterminate advantages." 
COMMENTARY, supra note 104, para. 2024. 

130. Commander's Handbook, supra note 22, para. 8.1.1. This assertion is labeled a "statement 
of customary international law." The Handbook cites General Counsel, Department of Defense, 
Letter of September 22, 1972, reprinted in 67 AMERICAN JOURNAL OF INTERNATIONAL LAW 123 
(1973), as the basis for this characterization. US joint doctrine reinforces this approach by 
providing that "[civilian objects consist of all civilian property and activities other than those 
used to support or sustain the adversary's warfighting capability." Joint Publication 3-60, supra 
note 56, at A-2. The term "war sustaining" also appears in the Instructions for the US Military 
Commission at Guantanamo. Department of Defense, Military Commission Instruction No. 2, 
Crimes and Elements for Trials by Military Commission, Apr. 30, 2003, para. 5D. 

131. NATO's demands were set forth in a Statement of the Extraordinary Meeting of the North 
Atlantic Council on April 12, 1999, and reaffirmed by the Heads of State and Government at 
Washington on April 23. They included a cessation of military action, as well as ending violence 
and repression of the Kosovar Albanians; withdrawal from Kosovo of military, police, and 
paramilitary forces; an international military presence in Kosovo; safe return of refugees and 
displaced persons and unhindered access to them by humanitarian aid organizations; and the 
establishment of a political framework agreement on the basis of the Rambouillet Accords. Press 
Release M-NAC-1(99)51, Apr. 12, 1999, available at www.nato.int/docu/pr/1999/p99- 
051e.htm; Press Release S- 1(99)62, Apr. 23, 1999, available at www.nato.int/docu/pr/1999/p99- 
062e.htm. 

132. Christopher Marquis, In Wartime, Some Argue, Commanders in Chief Do Best When They 
Really Command, NEW YORK TIMES, Feb. 10, 2004, at 18. 

133. See, e.g., Charles J. Dunlap, Jr., The End of Innocence: Rethinking Noncombatancy in the Post- 
Kosovo Era, Strategic Review 14 (Summer 2000). 

134. Effects based operations are "[a]ctions taken against enemy systems designed to achieve 
specific effects that contribute directly to desired military and political outcomes." US Air Force, 
Air Force Glossary (AF Doctrine Document 1-2) 26 (Aug. 24, 2004). Consider electrical power. 
Command and control usually relies to some degree on the civilian electrical grid. Therefore, in 
the past, neutralizing C2 often led to strikes against power substations and generating plants. 
However, the effect sought was not destruction of the electrical grid, but merely interference 
with command and control. An effects -based analysis would deconstruct the electrical grid to 
identify that discrete component thereof depriving C2, and little more, of electricity. Only that 
component would be attacked. A focus on effects has now been included in the National Military 
Strategy: "Force application focuses more on generating the right effects to achieve objectives 
than on generating overwhelming numbers of forces." National Military Strategy, supra note 50, 
at 15. 

135. On effects-based operations, see DAVID A. DEPTULA, EFFECTS-BASED OPERATIONS: 
CHANGE IN THE NATURE OF WAR (2001); Department of Defense, Effects-based Operations 



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Briefing, Mar. 19, 2003, available afwww.defenselink.mil/news/Mar2003/g030318-D-9085.html. 
On EBO and law, see Michael N. Schmitt, Aerial Effects-Based Operations and the Law of Armed 
Conflict, paper presented at a conference to mark the launch of the UK Manual of the Law of 
Armed Conflict, Oxford University, July 2004. The articles presented at the conference will 
appear in a compilation to be edited by Steven Haines. 

136. See generally Peter W.W. Wijninga & Richard Szafranski, Beyond Utility Targeting: Towards 
Axiological Operations, AEROSPACE POWER JOURNAL, Winter 2000, at 45. 

137. Proponents of axiological operations cite Colonel John Warden's model, in which the 
enemy is attacked as a system consisting of five concentric circles (leadership, organic or system 
essentials, infrastructure, population, and fielded forces), as an example of sophisticated utility 
targeting. In Warden's approach, the intent is to cause the system to malfunction such that 
paralysis sets in. On Warden's theory, see JOHN A. WARDEN III, THE AIR CAMPAIGN: PLANNING 
FOR COMBAT (Brassey's rev. ed., 1998). 

138. Recall the comments by NATO air commander, Lieutenant General Michael Short, 
regarding Operation Allied Force air attacks against Belgrade: "I felt that on the first night the 
power should have gone off, and major bridges around Belgrade should have gone into the 
Danube, and the water should be cut off so the next morning the leading citizens of Belgrade 
would have got up and asked 'Why are we doing this?' and asked Milosevic the same question." 
Short realized that Milosevic most feared losing the support of the population, and thereby 
political power; in axiological operations terms, popular support for the regime was the value to 
be attacked to most effectively create the effects sought — incentivizing compliance with NATO 
demands. C.R. Whitney, The Commander; Air Wars Wont Stay Risk-Free, General Says, NEW 
YORK TIMES, June 18, 1999, at Al. 

139. Additional Protocol I, supra note 13, art. 57.2. 

140. For example, Human Rights Watch specifically discussed the Djakovica Road incident in its 
report on Operation Allied Freedom, concluding that because "higher altitude seems to have 
impeded a pilot from adequately identifying a target" . . . "inadequate precautions were taken to 
avoid civilian casualties." Human Rights Watch, Civilian Deaths in the NATO Air Campaign, 
Feb. 2000, available at www.hrw.org/reports/2000/nato/index.htm#TopOfPag. 

141. As noted by Michael Bothe et al., "[t]he term military advantage involves a variety of 
considerations, including the security of the attacking force." BOTHE ET AL., supra note 84, para. 
2.4.4. See also, A.P.V. Rogers, Zero-Casualty Warfare, 82 INTERNATIONAL REVIEW OF THE RED 
CROSS 165 (2000). 

142. The term "battlespace" has been formally adopted in the National Military Strategy, supra 
note 50, at 16. 

143. Some argue (albeit contentiously) that even future potential use meets the purpose 
criterion, although the better position is that there must be a reasonable belief that such use is 
highly likely before an object or location may be characterized as a military objective and 
attacked. 

144. Effects-based Operations Briefing, supra note 135. To take another example, during 
Operation Cobra, the breakout from Normandy, US air forces dropped 14,600 500-pound 
bombs on one German division, destroying 66 tanks and 1 1 heavy guns. During Desert Storm, 
the US dropped 9,800 precision guided munitions, destroying 2,500 tanks, heavy artillery pieces, 
and armored personnel carriers — a ratio of bombs to equipment destroyed 50 times that of 
Operation Cobra. Robert A. Pape, Hit or Miss: What Precision Air Weapons do Precisely, FOREIGN 
AFFAIRS, Sept./Oct. 2004, at 160, 163. 

145. For general discussions of the conduct of the war in Iraq, see JOHN KEEGAN, THE IRAQ WAR 
(2004); Anthony H. Cordesman, The War In Iraq: Strategy, Tactics, and Military 
Lessons (2003); Williamson Murray & Robert H. Scales, Jr., The Iraq war: A Military 
History (2003). 



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146. This temporal aspect was recognized in the Lieber Code, which noted "[t]he more 
vigorously wars are pursued the better it is for humanity. Sharp wars are brief." Lieber Code, 
supra note 89, art. 29. 

147. For instance, during Desert Storm, a mere 8.8% of the munitions dropped were precision. 
WILLIAM M. ARKIN ET AL., ON IMPACT: MODERN WARFARE AND THE ENVIRONMENT, A CASE 
STUDY OF THE GULF WAR 78 (1991). By Operation Iraqi Freedom this figure had only grown to 
68%. By the Numbers, supra note 60. For an excellent summary of the precision aspects of the 
campaign in Kosovo, see US Department of Defense, Report to Congress, Kosovo/Operation 
Allied Force After- Action Report, Jan. 31, 2000. 

148. 7,1 14 of the 19,948 guided munitions dropped. By the Numbers, supra note 60, at 1 1. 

149. For a discussion of Operation Iraqi Freedom, see Schmitt, supra note 42. 

150. Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia, Final 
Report to the Prosecutor by the Committee Established to Review the NATO Bombing 
Campaign Against the Federal Republic of Yugoslavia, June 13, 2000, reprinted in 39 
INTERNATIONAL LEGAL MATERIALS 1257, 1258 (2000); Amnesty International, "Collateral 
Damage" or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied 
Force, AI Index: EUR 70/18/00, June 2000, available flfwww.amnesty.org/ailib/intcam/kosovo/ 
docs/natorep_all.doc; Civilian Deaths, supra note 140; Off Target, supra note 82. 

151. Civilian Deaths, supra note 140. 

152. Off Target, supra note 82, at 40. 

153. On the Grdelica attack, see Final Report, supra note 150; Civilian Deaths, supra note 140; 
Collateral Damage, supra note 150. On the wedding party incident, see Dexter Filkins & Edward 
Wong, Disputed Strike by U.S. Leaves 40 Iraqis Dead, NEW YORK TIMES, May 20, 2004, at 1. 



182 



VIII 



Modern Weaponry and Warfare: 

The Application of Article 36 of Additional 

Protocol I by Governments 

Marie Jacobsson* 

Introduction 

The basic rules directly addressing the use of weapons as reflected in Addi- 
tional Protocol I to the 1949 Geneva Conventions are found in Articles 35 
and 36. 1 Needless to say, there are other articles in the Protocol (primarily those re- 
lating to targeting) and, of course, other conventions that also address matters re- 
lating to the use of weapons. Regulating and restricting the use of weapons is not 
only a matter that is dealt with in the context of international humanitarian law, 
disarmament law and human rights law are also relevant. 

Neither the 1949 Geneva Conventions nor the 1977 Additional Protocols prohibit 
a specific, easily identifiable weapon. This conclusion is by no means controversial. 
On the contrary, the International Committee of the Red Cross's (ICRC's) Commen- 
tary to the Additional Protocol I clearly concluded that " [t]he Protocol does not im- 
pose a specific prohibition on any specific weapon. The prohibitions are those of 
customary law, or are contained in other international agreements." 2 The ICRC's 
Customary International Humanitarian Law 3 study draws the same conclusion. 



* Principal Legal Adviser on International Law to the Swedish Ministry for Foreign Affairs. The 
ideas presented in this paper do not necessarily reflect the views of the Swedish Government. 
© 2006 by Marie Jaobbson. 



Article 36 of Additional Protocol I 



In many States, soldiers are taught that it is prohibited to use certain types of 
weapons. 4 A section on prohibited weapons also has a natural part in any decent 
presentation to the public of the contents of international humanitarian law. 5 As a 
result of such education, as well as media coverage, many people are aware that cer- 
tain weapons are prohibited, such as gas, dum-dum bullets and anti-personnel 
land mines. In short, the general public has the perception (however vague it might 
be) that the laws of warfare prohibit and restrict the use of weapons. Or perhaps it 
would be better to say that the prohibitions and restrictions are nothing but a re- 
flection of "the laws of humanity and the dictates of the public conscience." 6 

However, when a lawyer, or for that matter, any interested person, attempts to 
list prohibited weapons, the result may be described in two diametrical ways. It is 
either possible to conclude that the list is depressingly short, or to conclude that it is 
impressively long; it all depends on the perspective. When viewed from that of hu- 
manitarian law, the list can be characterized as depressingly short; from that of in- 
ternational disarmament law, the list can be characterized as impressively long. 

Although the ICRC Commentary is clear (and the Customary International 
Humanitarian Law study somewhat less clear) 7 when it concludes that Additional 
Protocol I does not impose a specific prohibition on any specific weapon, the sec- 
ond paragraph of Article 35 of the Protocol declares that "It is prohibited to em- 
ploy weapons, projectiles and material and methods of warfare of a nature to cause 
superfluous injury or unnecessary suffering." This is nothing short of a clear-cut 
prohibition on certain types of means of warfare (weapons, projectiles and mate- 
rial), as well as a clear-cut prohibition of certain methods of warfare. 

It is well known that the language of this article catches the essence of the long- 
standing prohibition under international law that certain weapons are unaccept- 
able (to phrase it in ethical and moral terms) and hence such weapons are prohib- 
ited (to phrase it in normative and legal terms). 

However, the Geneva Conventions and the Additional Protocols do not offer 
much practical guidance as to which particular weapons are prohibited. These 
conventions leave it to the States themselves to identify the weapons that fall under 
the prohibition. Attempts by individual States and individual nongovernmental 
organizations to propose an independent "international scrutinizing mechanism" 
have never met with support. What was left from the Diplomatic Conference in the 
1970s was the obligation imposed on States to determine whether the employment 
of a particular weapon "would, in some or all circumstances, be prohibited by this 
Protocol or by any other rule of international law." 8 

In fact, even that provision must be regarded as a diplomatic success, given the 
resistance on the part of some States to include such a provision in the Protocol. 
Unfortunately, very few States undertake such an examination before employing 

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Marie Jacobsson 



new means and methods of warfare, despite the fact that the obligation relates to 
the initial stages, i.e., the "study" and "development" of a new weapon. 

The ICRC has attempted to assist States — and put pressure on States — to estab- 
lish evaluation procedures to meet the obligation in Article 36. The first attempt 
was made through the so-called SIrUS project. 9 That was not very successful. 

More successful was the initiative taken at the 28th International Conference of 
the Red Cross and Red Crescent in 2003. The Conference invited States that have 
review procedures in place to cooperate with the ICRC with a view to facilitating 
the voluntary exchange of experience on review procedures. 10 The purpose of the 
"exchange of experience" is to disseminate knowledge of, and information about, 
how Article 36 is implemented, with the goal that more and more States would es- 
tablish Article 36 procedures. Such processes of informal exchanges of experience 
have already commenced, including several meetings and workshops. 11 

The Swedish Delegation for International Law Monitoring of Arms Projects 

The Swedish Delegation for International Law Monitoring of Arms Projects was 
set up by the Government in 1974 to meet the requirements of international hu- 
manitarian law concerning the potential effects of conventional (mainly anti-per- 
sonnel) weapons for unnecessary suffering and indiscriminate use. Sweden and the 
United States were the first States to set up such a mechanism. 

The reason the Delegation was set up should be seen against the efforts made by 
Sweden, particularly during the early 1970s, as regards restrictions and use of cer- 
tain excessively inhumane weapons. It was noted that the Swedish efforts were met 
by growing international response. It was therefore considered that future Swedish 
requisition of arms for the military defense needed to be judged and scrutinized 
from the perspective of international law (hence, not only humanitarian law). It 
was deemed that such examination was best undertaken in conjunction with the 
then existing technical-economical examination. It was therefore decided that the 
Delegation should consist of experts on international and national law, military 
and technical experts, experts on arms technology and scientists. The Delegation is 
today an independent "authority." It is not subordinated to the Swedish Defence 
Forces or any other authority or ministry. 

The Delegation monitors planned purchases or modifications of military weap- 
ons or applications of means and methods of warfare to assess whether they would 
be dubious from the point of view of international law (primarily humanitarian 
law), human rights law and disarmament law. 

After monitoring, the Delegation makes either approval or non-approval deci- 
sion. The Delegation may combine a negative decision with a request that 

185 



Article 36 of Additional Protocol I 



modifications of the construction of the weapon or ammunition be made, or that 
the applicant consider an alternative weapon system or restrict the operational use 
of the weapon in order to meet the requirements of international law. The deci- 
sions can be appealed to the Government. 

The mandate of the Delegation developed over time. It has become more and 
more precise — but also wider. It was clear from the outset that the Delegation 
should not only look at what was already forbidden under international law, but 
also on international discussions that could lead to further prohibitions. Hence, 
the mandate(s) has/have clearly reflected not only de lege lata requirements, but 
also de legeferenda tendencies. 

For example, the year after the establishment of the Delegation, in 1975, follow- 
ing the Lucerne and Lugano conferences that preceded the negotiations on the Ad- 
ditional Protocols, the Ministry of Defence amended the instructions for the 
Delegation with regard to projected means of warfare to direct that it should par- 
ticularly examine whether they could result in unnecessary suffering or have indis- 
criminate effects. 

Some features of the mandate have been particularly noteworthy. Among those 
is the requirement that the Delegation, in examining weapons projects, should not 
only take into account existing law, but also international treaties that had not yet 
entered into force, but which Sweden had signed or ratified. 

Consideration should also be given to proposals that Sweden had put forward at 
international conferences. 

In addition, attention should also be given to the limited resources of Sweden as 
regards weapons acquisition. The Delegation should make sure that the possibility 
of Sweden to be part of the development in weapons technology was not impeded. 
The Delegation had, particularly in the 1980s, contacts with the Swedish weapon 
industry. 

The present mandate of the Delegation is formulated under a separate ordi- 
nance that stems from 1994. In that year, the Delegation became an independent 
authority under the Ministry of Defence. According to the ordinance, all Swedish 
authorities (e.g., the Swedish Armed Forces, the Coast Guard and the Swedish Po- 
lice Authority) that intend to purchase weapons must report their intended pur- 
chases to the Delegation, which then monitors the project. As a result, the 
Delegation has examined the acquisition of so-called pepper spray and certain am- 
munition to be used by the Swedish police, the Swedish Coast Guard, and the 
Swedish Prison and Probation Service. 

Finally, it should be mentioned that the Delegation has a right to initiate moni- 
toring even if the Swedish authorities have not reported planned purchases or use. 



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Marie Jacobsson 



What Kind of Comments Has the Delegation Made? 

The Delegation often requests more information or requires more tests to be made 
if it believes that the test results either do not meet scientific criteria or are difficult 
to interpret. Moreover, it often sets out conditions for the use of a certain weapon, 
for example, that a certain projectile must be used only for anti-materiel purposes; 
that development of a weapon may continue only if certain conditions are met; or 
that only a described combination of a weapon and ammunition is allowed, and if 
changes are made, a new application must be submitted. 

The analysis comprises both primary and secondary effects, possible indiscrimi- 
nate effects, whether Sweden (or any other State) has put forward a proposal that 
could lead to a prohibition, and implications of allowing civil authorities such as 
the Swedish police or the Coast Guard, but not military personnel, to use a specific 
weapon. 

Since the Delegation primarily focuses on anti-personnel weapons or weapons 
that can have anti-personnel effects, the two notions of superfluous injury and un- 
necessary suffering are of particular interest. The Delegation has not established 
specific criteria of its own, but evaluates the weapons much along the lines that are 
described in the Customary International Humanitarian Law study. 12 

The extended mandate of the Delegation has been both a challenging and mean- 
ingful exercise. It is challenging because the traditional ethical norms transformed 
into international humanitarian law rules do not correspond with the norms ex- 
pressed in human rights law. Tear gas and pepper spray are clearly prohibited un- 
der disarmament law and international humanitarian law as means and methods 
of warfare, but perfectly acceptable in a police enforcement situation. 

Although the mandate has been extended, it does not cover export control. It is 
the Swedish Inspectorate of Strategic Products that is entrusted with the task of en- 
suring that the export of weapons is in conformity with Swedish laws and regula- 
tions. However, it does not fall under the competence of the Inspectorate to 
examine whether or not a weapon would contravene humanitarian law rules. 

This has raised some concern. The Swedish Government, together with the 
Swedish Red Cross, and the other Nordic States, therefore issued a Pledge at the 
28th International Conference of the Red Cross and Red Crescent in 2003 to 

undertake a review of national legislation and policies on arms transfer, in order to 
explore the possibilities to take international humanitarian law into consideration as 
one of the criteria on which arms transfer decisions are made and to examine 
appropriate ways of assessing an arms recipient's likely respect for international 
humanitarian law. 13 



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The Nordic States also pledged "to use the result of the review as a basis in order 
to explore the possibilities to develop a model for the incorporation of interna- 
tional humanitarian law criteria in national arms transfer decision-making." 14 
Sweden has commenced working to achieve the goals set out in the Pledge. 

There are various references to "Swedish needs" in relation to the mandate of 
the Delegation. This might be surprising to those who believe the illusion that Swe- 
den has taken advocated strong positions in all weapons contexts (disarmament, as 
well as international humanitarian law) on the ground that Sweden did not have a 
national security interest to protect. Such an assumption is incorrect. 

On the contrary, Sweden, in the 1970s aiming at proclaimed neutrality in war 
time, had all the more reason to ensure that it could secure its own weapon produc- 
tion and, as a consequence, that the industry was strong enough to export its prod- 
ucts and survive. At the same time, Sweden had at long-standing ideological record 
in the context of disarmament, humanitarian law and human rights values. Instead 
of disconnecting what on the surface appear to be contradictory policies, all Swed- 
ish Governments attempted to combine them — and still do. Faced with a relatively 
new political context (judged from the perspective of a history of nearly 200 years 
of almost uninterrupted neutrality in wartime), namely, the fall of the Berlin Wall 
and new political requirements, including its membership in the European Union, 
Sweden has started to take a new and fresh look at the weapons issues. 

To limit the rights of combatants to use certain new weapons is often inter- 
preted as "telling the industry" not to develop certain types of weapons. That is to 
cast an obligation in the negative. Instead, it gives the producers an opportunity to 
interpret the prohibition in a positive manner, i.e., develop weapons that fall into 
the framework of Article 36! This can be part of the producers' policy on corporate 
responsibility. 

But it is not enough that the Governments and the producers are collaborating. 
Weapons technology is still developing at an impressive speed. The manufacturers 
quickly respond to the demands of the market, irrespective of whether the market 
consists of States, organizations or individuals. Indeed, this is yet another area 
where the market economy has proven to be "successful." At the same time, States 
focus their discussions on existing weapons and remnants of weapons that cause 
problems today. Of tomorrow's weapons we hear nothing — at least not in the con- 
text of discussing their legality or legitimacy. The real challenge is to get States to 
focus on "new weapons" and "methods of warfare." 

All weapons need to be reviewed from a humanitarian perspective. The diffi- 
cult challenge is whether or not the same norms should apply when considering a 
weapon used by one combatant against another combatant, as when we consider 



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a weapon or ammunition to be used by a police enforcement official against a 
civilian. 

Previously, it seemed easy to argue that there is a built-in distinction between a 
combatant-to-combatant situation (a traditional armed conflict) and a police en- 
forcement situation. In the first situation, the combatant is simply not allowed to 
attack a civilian. In the second, the entire rationale for the police operation is to re- 
store civil order and security for individuals by, albeit as a last resort, the use of 
force. The objective of the military operation is to weaken the enemy by disabling 
his combatants. Today such a distinction is more difficult to uphold, for example, 
the UN operation maybe exclusively one of peacekeeping or one that contains ele- 
ments of both peacekeeping and police enforcement or even an Operation Other 
Than War (OOTW). 

In this context, it is interesting to note that, despite the almost daily reports on 
the development and employment of so-called non-lethal (or less lethal) weapons, 
virtually no discussion on the political and legal implications of these weapons has 
been held on a State-to-State basis, either at a civil or military level. It is worrying 
that the legally shallow argument, "it is always better to be wounded than dead," is 
resurfacing in the discussion on less lethal weapons. 

There are a number of critical issues that need to be addressed at an interna- 
tional level. These include high-power microwaves, millimeter waves, thermobaric 
devices and improvised explosive devices. Addressing them does not imply that the 
weapons should be prohibited. But given the obligation imposed on all States to 
evaluate the legality of the weapons used, it is reasonable to discuss the matter in a 
multilateral context. 

Conclusion 

I would like to encourage States to: 

• Set up Article 36 mechanisms; 

• Get medical, military, technical, industry experts, lawyers and scientists 
involved; 

• Establish a transparent view; 

• Be prepared to review the mandate; 

• Cooperate with other States — not only with allies. 

Finally, be a step ahead. Look not just at existing weapons and methods of warfare 
but at the new weapons and new warfighting methods that rapidly evolving tech- 
nological capabilities are now and will continue to produce. International 



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humanitarian law and the "dictates of public conscience" require that these weap- 
ons and methods of warfare be examined to ensure they are consistent with the law 
and do not unnecessarily add to the suffering inherent in war. 

Notes 

1. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1 125 U.N.T.S. 
3, reprinted in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d 
ed. 2000). Article 35 (Basic rules) reads provides: 

1. In any armed conflict, the right of the Parties to the conflict to choose methods or 
means of warfare is not unlimited. 

2. It is prohibited to employ weapons, projectiles and material and methods of 
warfare of a nature to cause superfluous injury or unnecessary suffering. 

3. It is prohibited to employ methods or means of warfare which are intended, or may 
be expected, to cause widespread, long-term and severe damage to the natural 
environment. 

Id. at 422. 

Article 36 (New weapons) provides: 

In the study, development, acquisition or adoption of a new weapon, means or method 
of warfare, a High Contracting Party is under an obligation to determine whether its 
employment would, in some or all circumstances, be prohibited by this Protocol or by 
any other rule of international law applicable to the High Contracting Party. 

Id. 

2. Commentary to the Additional Protocols of 8 June 1977 to the Geneva 
CONVENTIONS OF 12 AUGUST 1949, at 399 (Yves Sandoz, Christopher Swinarski & Bruno 
Zimmermann eds., 1987) (hereinafter ICRC COMMENTARY). The Commentary hastens to add: 
"The rules of the Protocol must be interpreted in good faith at every level." Id. 

3. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International 
HUMANITARIAN LAW (2005) (2 volumes: Volume I, Rules; Volume II, Practice (2 Parts)) 
(hereinafter CUSTOMARY LAW STUDY). "Although there is general agreement on the existence of 
the rule, views differ on how it can actually be determined that a weapon causes superfluous 
injury or unnecessary suffering." Id., Vol. I, at 240. 

4. See, for example, Krigets lagar & soldatregler (The laws of war and the soldiers' rules), 
published by the Swedish Armed Forces in 2001. This pocket friendly booklet contains eight 
basic soldiers' rules and two additional references to the law of naval warfare and the law of air 
warfare. The second rule refers to the prohibition to use certain means and methods of warfare. 

5 . ROY GUTMAN & DAVID RlEFF, CRIMES OF WAR. WHAT THE PUBLIC SHOULD KNOW (1999). 

6. The formulation of the famous Martens clause as it appears in the preamble to Hague 
Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, reprinted in 
DOCUMENTS ON THE LAWS OF WAR, supra note 1, at 70. 

7. Customary Law Study, supra note 3, at Vol. I, at 242. 

8. Additional Protocol I, Article 36 (New weapons) provides: 

In the study, development, acquisition or adoption of a new weapon, means or method 
of warfare, a High Contracting Party is under an obligation to determine whether its 



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employment would, in some or all circumstances, be prohibited by this Protocol or by 
any other rule of international law applicable to the High Contracting Party. 

DOCUMENTS ON THE LAWS OF WAR, supra note 1, at 442. 

9. International Committee of the Red Cross, The SlRUS Project: Towards a Determination of 
which Weapons Cause "Superfluous Injury or Unnecessary Suffering" (Robin M. Coupland ed., 
1997). 

10. The invitation was proposed action 2.5.3 of Final Goal 2.5 of the Agenda for Humanitarian 
Action. The text is available at http://www.icrc.org/Web/Eng/siteengO.nsf/htmlall/pl 103/$File/ 
ICRC_002_1 103.PDF!Open. 

11. These include a seminar hosted by the Canadian Ministry of Foreign Affairs, Ministry of 
Defence and the Canadian Red Cross. The seminar took place in Ottawa on February 9-10, 2005, 
and indeed provided valuable input. 

12. Customary LAW STUDY, supra note 3, Vol. I, Part IV, at 240-296. 

13. Joint Pledge P105, available at http://www.icrc.org/Applic/pl28e.nsf/pbk/UCOE-5TVNNP 
?openDocument&section=PBP 

14. Id. 



191 



IX 



Chemical Agents and "Expanding 55 Bullets: 

Limited Law Enforcement Exceptions or 

Unwarranted Handcuffs? 



Kenneth Watkin* 

Introduction 

Modern armed conflict has entered a particularly dangerous, and in many 
ways, chaotic phase. The post-September 11, 2001 period has witnessed 
significant debate concerning the ability of existing humanitarian norms to regu- 
late 21st-century warfare, and in particular the "war on terror." 1 In an interna- 
tional system of "order" based on the nation-State much of today's conflict is 
taking place on the fringes of what Clausewitz might have viewed as war between 
"civilized peoples." 2 

Certainly as the 2003 Iraq campaign demonstrated, traditional conflict between 
States is still a reality. Here, the "black and white" treaty law provides a well estab- 
lished, if not perfect, normative structure known as the law of armed conflict or in- 
ternational humanitarian law. 3 Customary international law also sets out the 
obligations of States in international armed conflict. Determination of the exact 
scope of this second body of law is more challenging as is evidenced in the continu- 
ing dialogue over which of the provisions of Additional Protocol I are to be viewed 



* Brigadier General, Canadian Forces. The opinions expressed in this article are those of the 
author and do not necessarily reflect the views of the Government of Canada, the Canadian 
Forces, or the Office of the Judge Advocate General. 



Chemical Agents and "Expanding" Bullets 



as customary international law. 4 However, notwithstanding this dialogue, there is a 
significant commonality in the understanding of the obligations on States during 
the conduct of hostilities. 5 

However, much of contemporary conflict is occurring in what can be termed a 
"gray" zone. There are four situations where the military forces of the State are re- 
quired to conduct operations at the interface between warfare and policing: occu- 
pation, non-international armed conflict, peace support operations and the 
international campaign against terrorism. Consistent with the term "gray zone," 
the determination of the normative framework to be applied is not always clear. 
While there is often a common theme of violence being applied between State and 
non-State actors, the lack of clarity as to what rules should be followed occurs in 
two ways. First, there is the question of the degree to which the law of armed con- 
flict, designed for inter-State conflict, can or should regulate violence between 
State and non-State actors. Secondly, there is the inevitable interface between the 
law of armed conflict and human rights norms. In simpler terms: the rules govern- 
ing armed conflict versus those applying to law enforcement. 

Resolving the question of which normative framework applies is extremely im- 
portant. For the personnel involved, identification of the correct normative 
framework governing the decision to use force can be literally a matter of life and 
death. Complying with that framework means military personnel are not only act- 
ing "legally," but also in accordance with the value system demanded by modern 
States of its "warriors." 6 The importance for soldiers, sailors and airmen to act ac- 
cording to the standards of society, both broader society as well as military society, 
cannot be overstated. 

In dealing with this challenge of applying the law, military and civilian govern- 
ment legal advisors can take some solace from the fact that they are not alone in 
their struggle to do the right thing in the complex security situations confronting 
States. Non-governmental organizations and other humanitarian groups are also 
wrestling with what law or norms should be applied to 21st-century conflict. 7 Just 
as military forces are changing their understanding and approaches towards armed 
conflict, human rights and humanitarian groups are being confronted with having 
to apply long- cherished norms in an uncertain operational environment. One 
scholar from the humanitarian law community has written "[i]t is debatable 
whether the challenges of asymmetrical war can be met with the current law of war. 
If war between States is on the way out, perhaps the norms of international law that 
were devised for them are becoming obsolete as well." 8 This observation provides 
an indication that the ability of existing codified law to meet the challenges of 21st- 
century warfare is being opened up to considerable debate. 



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The purpose of this article is to look at two discrete areas of weapons usage — 
chemical agents and "expanding" bullets — in order to identify some of the chal- 
lenges presented in determining the law governing their use during complex secu- 
rity operations. Such operations often straddle the armed conflict and law 
enforcement paradigms. In this analysis, particular reference will be made to the 
2005 International Committee of the Red Cross Customary International Humani- 
tarian Law study (hereinafter the Study). 9 This ambitious Study seeks to outline 
customary international law rules for both international and non-international 
armed conflict, as well as provide an important compendium of State practice. In 
seeking to clarify the customary law of armed conflict rules that apply to non-inter- 
national armed conflict, the Study represents the most fulsome attempt to date to 
do something that the courts, academics and the militaries themselves have in- 
creasingly attempted to do over the past few decades. 10 That being said, the Study 
offers a starting point for discussion rather than the definitive word on what con- 
stitutes customary international humanitarian law. The ultimate test for such 
statements of customary international law, and particularly those dealing with the 
law of armed conflict, may be whether they can be practically applied by govern- 
ments and the military forces who act on their behalf. 

This exploration of the law surrounding the use of chemical agents and "ex- 
panding" bullets in contemporary conflict is divided into four parts. The first part 
outlines the law of armed conflict governing the use of these weapons. Particular 
emphasis is placed on identifying the restrictions on their use set out in treaty law. 
However, as will be noted, those prohibitions are not absolute as both chemical 
agents and "expanding" bullets are permitted in law enforcement situations. The 
second part identifies two approaches to analyzing contemporary armed conflict. 
The first more formal approach sets out distinct categories of conflicts such as in- 
ternational armed conflict, non-international armed conflict and domestic distur- 
bances that are often analyzed independently of one another. However, the second 
approach notes armed conflict is increasingly being viewed in a less structured 
manner, thereby recognizing greater potential for overlap between the law of 
armed conflict and human rights normative regimes. 

This then leads to the third area of analysis: the challenge of applying the law of 
armed conflict rules governing chemical agents and "expanding" bullets in con- 
temporary conflict. The final part outlines State practice in applying the "spirit and 
principle" of the law of armed conflict rather than the formal rules governing large- 
scale inter-State conflict. In effect, there is a more flexible application of the law 
than a rule-based system of international armed conflict otherwise provides. In the 
final analysis, it is suggested the complex 21st-century security environment may 



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Chemical Agents and "Expanding" Bullets 



require a re-analysis of rules governing the use of less lethal weapons such as riot 
control agents and "expanding" bullets. 

Broad Prohibitions? 

In dealing with chemical weapons and "expanding" bullets across the broad spec- 
trum of conflict, it will be helpful to first review the provisions of the law as they ap- 
ply to international armed conflict. 

Chemical Weapons 

As is noted in the Study, there is a broad treaty prohibition against the use of chemical 
weapons in international armed conflict, including: the 1899 Hague Declaration Con- 
cerning Asphyxiating Gases, 11 the 1925 Geneva Gas Protocol, 12 the 1993 Chemical 
Weapons Convention 13 and the 1998 Statute of the International Criminal 
Court. 14 For example, there are only 13 States that are not a "party to either the 
Geneva Gas Protocol or the Chemical Weapons Convention." 15 Strong support for 
suggesting that such a ban is customary is found in domestic legislation, military 
manuals and the statements of governments and national case law. 16 

Similarly, in respect of non-international armed conflict, the Chemical 
Weapons Convention, Article I broad prohibition framed as "under any circum- 
stances" reflects a more general trend "towards reducing the distinction between 
international and non-international armed conflicts for the purposes of the rules 
governing the conduct of hostilities." 17 Many of the contemporary abuses, per- 
haps most infamously the use of chemical weapons by Saddam Hussein against 
the Kurds in 1988, 18 have occurred in non-international armed conflict. In terms 
of a normative prohibition there appears to be a broad consensus, including a 
strong statement by the International Criminal Tribunal for the former Yugosla- 
via Appeal Chamber in the Tadic decision against the use of such weapons in non- 
international armed conflict. 19 

However, not all military use of "chemicals" is prohibited. It is, after all, a 
"weapons" convention involving "toxic chemicals and their precursors." 20 As a 
result, military purposes "not connected with the use of chemical weapons and 
not dependent upon the use of the toxic properties of chemicals as method of war- 
fare" are not prohibited. 21 This is not the end of the discussion. The use of "chemi- 
cal agents" is not absolutely forbidden for all purposes by States seeking to control 
violence. There is a significant exception regarding the use of such agents. Among 
the purposes not prohibited under the Convention is "[l]aw enforcement includ- 
ing domestic riot control purposes." 22 However, "riot control agents" will not be 
used as a method of warfare. 23 A rationale provided for the prohibition of what is 

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Kenneth Watkin 



otherwise an effective, less-lethal means of warfare, and one particularly suited to 
certain activities such as forcing an enemy out of caves, bunkers and confined 
spaces, is "the fact that use of tear gas . . . 'runs the danger of provoking the use of 
other more dangerous chemicals' . . . since a party 'may think it is being attacked 
by deadly chemicals and resort to the use of chemical weapons.'" 24 

Riot control agents have traditionally been associated with CS and CN gases as 
well as vomiting agents. 25 The clarification over the use of chemical agents for law 
enforcement found in the Chemical Weapons Convention ended long-standing 
controversy over the scope of the 1925 Gas Protocol. The Study indicates the vast 
majority of States were of the view the Protocol did apply to riot control agents; 
however, there were notable exceptions. 26 The United States took the view that the 
Gas Protocol did not apply to agents with temporary effects and used such agents 
during the Vietnam conflict. 27 The United Kingdom clarified its position in 1970 
to indicate "CS and other such gases accordingly as being outside the scope of the 
Geneva Protocol." 28 

The exception regarding the use of chemical agents for law enforcement pur- 
poses is reflected, perhaps too narrowly, in the Study in Rule 75 which states "[t]he 
use of riot-control agents as a method of warfare is prohibited." It should be noted 
that under the Chemical Weapons Convention "law enforcement" is a broader 
concept than "riot control." 29 These provisions reflect State practice where certain 
chemical agents are used against citizens for law enforcement purposes, primarily 
as a less lethal alternative to using deadly force. 30 Not all such agents are used as 
"riot control agents" as chemical substances such as "pepper spray" may be used 
for self-defense and for subduing of violent suspects. 31 

In addition to riot control agents, chemical incapacitants can include 
malodorants 32 and calmatives. 33 The use of the latter led to tragic consequences 
during the 2002 Moscow Theatre hostage rescue operation when Russian security 
forces attempted to incapacitate Chechen terrorists with gas. 34 

"Expanding" Bullets 

The second area where the law of armed conflict and law enforcement can interface 
is in respect of the prohibition against using "bullets which expand or flatten easily 
in the human body." 35 This prohibition is linked to the 1899 Hague Declaration 36 
and Additional Protocol I, Article 35(2) in that it is prohibited "to employ weap- 
ons, projectiles and material and methods of warfare of a nature to cause superflu- 
ous injury or unnecessary suffering." 37 The use of bullets "which expand or flatten 
easily in the human body, such as bullets with a hard envelope which does not en- 
tirely cover the core or is pierced with incisions" is listed as a "war crime" in the 



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Chemical Agents and "Expanding" Bullets 



1998 Rome Statute of the International Criminal Court (ICC Statute) in respect of 
international armed conflicts. 38 

The question of whether "expanding" bullets may be used in non-interna- 
tional armed conflict is a more interesting one. In respect of the Study it is noted 
that the prohibition against the use of "expanding" bullets "in any armed conflict 
is set out in several military manuals" 39 and that "[n]o official contrary practice 
was found with respect to either international armed conflict or non-interna- 
tional armed conflict." 40 

Since Canada was one of the countries whose manual was identified as support- 
ing this principle, it is important to note that the Canadian manual approaches the 
application of the law of armed conflict to internal armed conflict situations in a 
much more nuanced fashion than the Study suggests. The Canadian manual does 
not make a broad statement suggesting that "expanding" bullets are prohibited as a 
matter of law in non-international armed conflict situations. The Law of Armed 
Conflict at the Operational and Tactical Level does state that expanding bullets are 
prohibited weapons under the law of armed conflict. 41 However, the application of 
the law of armed conflict to non-international armed conflict is specifically dis- 
cussed in terms of common Article 3 42 and Additional Protocol II. 43 As the Cana- 
dian manual indicates, "[t]oday a significant number of armed conflicts in which 
the CF maybe involved are non-international in nature. As stated, the law applica- 
ble to such conflicts is limited. It is CF policy, however, that the CF will, as a mini- 
mum, apply the spirit and principles of the LOAC during all operations other than 
domestic operations." 44 

This is not to suggest that "expanding" bullets are permitted as a means of war- 
fare in non-international armed conflict. However, the rules of the law of armed 
conflict may have a far more nuanced application in complex security situations 
where a significant part of the duties of military forces may also involve law en- 
forcement and other public security duties. In this regard, it must be noted that the 
Appeals Chamber in the Tadic decision warned that two limitations would apply to 
the application of humanitarian law rules to non-international armed conflict. 
Those limitations were "(i) only a number of rules and principles governing inter- 
national armed conflicts have gradually been extended to apply to internal con- 
flicts; and (ii) this extension has not taken place in the form of a full and 
mechanical transplant of those rules to internal conflicts; rather, the general es- 
sence of those rules, and not the detailed regulation they may contain, has become 
applicable to internal conflicts." 45 

There is also a further indication that the broad extension of the law of armed 
conflict to non-international conflict found in the Study may not fully reflect the 
contemporary consensus of States. In this respect, unlike the provision making the 



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Kenneth Watkin 



use of "expanding" bullets a war crime during international armed conflict, there is 
no similar provision in the ICC statute in respect of "conflicts not of an international 
character." 46 As with the use of chemical agents, it is also notable that there is a "law 
enforcement" exception regarding the use of "expanding" bullets. While this excep- 
tion is not written in any treaty, it is specifically referred to in the Study. 47 Unfortu- 
nately, in the Study it is phrased in terms of "several" States having decided to use 
such ammunition for domestic law enforcement purposes. There seems to be a sig- 
nificantly broader practice than this wording suggests, extending even to the devel- 
opment of "fragible" ammunition. "Expanding" ammunition appears to be used 
by security forces in Canada, the United States and the United Kingdom primarily 
for reasons related to the ammunition being "less susceptible to ricochet and the 
concomitant creation of unintended collateral casualties." 48 

Law Enforcement Operations 

It is these exceptions to the prohibitions of chemical agents and "expanding" bul- 
lets that raise some of the most significant challenges to the contemporary law of 
armed conflict. Both chemical agents and "expanding" bullets options are em- 
ployed in law enforcement operations with humanitarian goals in mind. For 
chemical agents, it is the opportunity to apply less lethal means. Regarding the use 
of "expanding" ammunition, sometimes, but far too inclusively, referred to as 
"hollow point" bullets, it is concerns over collateral damage and injury that favor 
their use. When these means are not allowed, particularly where armed conflicts 
and law enforcement responsibilities interface, a situation can be created where a 
less "humane" option is imposed on combatants. As a result, uninvolved civilians 
maybe exposed to greater risk of death or injury because of the application of rules 
that are approximately a century old in their genesis and which were designed spe- 
cifically for State versus State conflict. The circumstances under which these moral 
and legal challenges arise are particularly evident is the complex operational envi- 
ronment of contemporary conflict. In that respect, the analysis will now turn to 
looking at how modern conflict is impacting on the application of normative re- 
gimes governing the use of these less lethal weapons. 

"Paper Worlds" and the Categorization of Conflict 

The application of the law of war is dependent upon the categorization of conflict. 
While Michael Walzer has noted "lawyers have created a paper world which fails at 
crucial points to correspond to the world the rest of us live in," 49 the establishment 
of law and order is ultimately dependent upon the drawing of jurisdictional lines. 



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Chemical Agents and "Expanding" Bullets 



However, the determination of when and how the law of war applies is impacted by 
two often divergent perspectives. 

One more traditional approach sees conflict divided into three formal catego- 
ries of: international armed conflict, non-international armed conflict and "situa- 
tions of internal disturbances and tensions." 50 International armed conflict is 
governed by the extensive treaty and customary law regime of the law of war, while 
the last category is controlled by a law enforcement/human rights regime. The 
boundaries of each of these two categories are fairly well prescribed. International 
armed conflict is largely defined by inter-State conflict, while non-international 
armed conflict is usually separated from normal law enforcement by the require- 
ment for the conflict to be between "organized armed groups" controlling territory 
and exercising a semblance of governance. It should also be noted Additional Pro- 
tocol I provides recognition that international armed conflict can occur between 
States and non-State actors. 51 However, there is a generally recognized view that 
most non-State groups will not be able to avail themselves of its provisions. 52 

Under a traditional interpretation of the law, the law of armed conflict operates 
during international armed conflict as a lex specialis to the exclusion of human 
rights norms. 53 Even though there is a growing body of case law and opinion that 
places the law of war in a more tightly woven relationship with human rights 
norms, even during international armed conflict, 54 in many instances this idea of 
overlap continues to be rejected particularly where it is suggested that human 
rights treaties have extra-territorial application. 55 

Finally, in respect of non-international armed conflict, it is the provisions of 
common Article 3 to the 1949 Geneva Conventions 56 and Additional Protocol II 57 
which are applied. The scope of internal armed conflict can be quite broad ranging 
from civil war to conflict just outside the scope of purely criminal activity. 58 A par- 
ticular challenge has been identifying the limits to the application of common Arti- 
cle 3 which does not have the territorial control; organized armed forces with a 
responsible command; or "sustained and concerted military operations" criteria of 
Additional Protocol II. 59 While neither of these law of armed conflict codifications 
provides as extensive a list of legal provisions as the law applicable to inter- State 
conflict, they inject basic standards of humanity into conflicts where States still 
view their non-State opponents as "criminals." 60 

The second perspective on the application of the law of war appears to be nei- 
ther as definitive nor exclusionary as the first, more formal, model. Here, as is re- 
flected in the more general wording of common Article 3 to the 1949 Geneva 
Conventions, the dividing lines between the categories of armed conflict are less 
well defined. Particularly, among humanitarian and human rights groups there is a 
reluctance to clearly identify when common Article 3 applies either by associating 



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Kenneth Watkin 



it with Additional Protocol II, or definitively outlining how it interfaces with the 
lower standard of "internal disturbances and tensions." 61 It is these groups which 
have also pressed to have international human rights standards apply concurrently 
with the law of armed conflict. In addition, the existence of an armed conflict can 
be viewed as having a quite limited temporal existence. For example, in Juan Carlos 
Abella v. Argentina, the Inter- American Commission on Human Rights appeared 
to view the "armed conflict," the retaking of a military barracks from rebels, as be- 
ing limited in time to the actual operation. 62 

This second, less well defined, delineation of armed conflict has been signifi- 
cantly influenced in the post Cold War construct of armed conflict. The breakup of 
Yugoslavia forced the International Criminal Tribunal for the Former Yugoslavia 
(ICTY) to address the interface between international and non-international 
armed conflict resulting in a ruling in the Tadic case that the law of armed conflict 
applied to non-international conflicts. 63 The impetus for this change was a shift 
from a sovereignty based approach to one placing emphasis on "human beings." 64 

The reality is that some aspects of contemporary armed conflict have changed. 
The events of 9/ 1 1 have highlighted the often complex interface between armed 
conflict and normal policing. The categorization of the post-9/1 1 events included 
assessments that the conflict was international, non-international or internation- 
alized non-international armed conflict. 65 Another category known as "transna- 
tional armed conflict" has been suggested primarily, it would appear, to avoid 
admitting international armed conflict can occur between States and non-State ac- 
tors. 66 Some scholars have seen the attacks as only being amenable to a law enforce- 
ment response. 67 However, it is possible to conclude that "[i]n many respects, 
global terrorism seems to straddle the law enforcement and armed conflict para- 
digms. Engagement in criminal activity by terrorist groups, warlords, and other 
non-State actors to finance their operations adds significantly to the perception of 
an overlap between law enforcement and the conduct of hostilities." 68 

The current emphasis on extending the laws of armed conflict to non-international 
armed conflict, while seeking to expand the application of human rights norms, 
sets the scene for a conflict of normative regimes. This could have significant and 
quite unintended results in the effort to expand humanitarian and human rights 
protection. The extension of the law of armed conflict not only brings with it a le- 
gal regime designed to protect uninvolved civilians, it also expands on the level of 
violence that can be used by the State to counter an insurgency threat. At the 
same time, the interface with the human rights-based regime extends the poten- 
tial for the application of chemical agents and "expanding" bullets in the context 
of law enforcement. 



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Chemical Agents and "Expanding" Bullets 



Perhaps the most graphic example of this potential blurring of law of armed 
conflict and human rights norms can be found in the United Nations Secretary- 
General's Bulletin Observance by United Nations Forces of International Humani- 
tarian Law. 69 The Bulletin states that the "fundamental principles and rules of in- 
ternational humanitarian law" are applicable in situations of armed conflict, which 
are stated to include "enforcement actions, or in peacekeeping operations when 
the use of force is permitted in self-defence." 70 It appears that the use of force dur- 
ing a United Nations operation, even in self-defense, is equated to "combat." How- 
ever, it is not clear that would always be the case, nor is it evident that the level of 
violence confronted during a peace support operation would necessarily rise to 
that of an armed conflict. 

While the use of "weapons or methods of combat of a nature to cause unneces- 
sary suffering" is prohibited under the Secretary- General's Bulletin, it is equally 
evident that the use of riot-control agents for law enforcement purposes is con- 
templated during United Nations operations. A 2002 Chemical and Biological 
Weapons (CBW) Conventions Bulletin, "Law Enforcement" and the CWQ 71 rec- 
ognizes law enforcement under the Chemical Weapons Convention 72 would in- 
clude United Nations operations. These law enforcement operations are defined 
as actions within the scope of a nation's jurisdiction to enforce its national laws 
and as authorized by the United Nations. In respect of actions that are "taken in 
the context of law enforcement or riot control functions under the authority of 
the United Nation, they must be specifically authorized by that organization. No 
act is one of 'law enforcement' if it otherwise would be prohibited as a 'method of 
warfare'. . . ." 73 

Similarly, another analysis has concluded "peacekeeping operations authorized 
by the receiving state, including peacekeeping operations pursuant to Chapter VI 
of the UN Charter; and . . . peacekeeping operations where force is authorized by 

the UN Security Council under Chapter VII of the UN Charter " are operations 

falling within the context of "law enforcement." 74 This very broad concept of law 
enforcement increases the likelihood of an awkward interface between the two 
normative regimes governing the use of chemical agents. 

Operating in the "Gray Zone" 

Having established the increasing overlap and sometimes unclear interface be- 
tween normative regimes, the question remains as to how the different norms gov- 
erning the use of riot control agents and "expanding" bullets are applied in 
practice. The answer in part can be found in the reality that operating in an opera- 
tional "gray zone" has long been a part of military operations. 

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Kenneth Watkin 



However, it should be noted that the problem of viewing armed conflict as being 
limited to inter-State conflict is not unique to the legal community. Military forces 
themselves often look at "war" primarily through the lens of conventional combat 
between the armed forces of nation States. Preference for "traditional" armed con- 
flict impacts on doctrine, equipment acquisition, training, and, ultimately, the ca- 
pabilities of the armed forces. Generally, less time is spent on "low intensity 
conflict" and the range of operations which require consideration of law enforce- 
ment activities. 

However, "warfare" has always included a range of conflict significantly 
broader than battles between the armed forces of a State. Such conflict has been 
termed, somewhat inaccurately, as "small wars" since they are not necessarily 
"small" in scope. 75 As Max Boot has stated "[t]hese days social scientists and sol- 
diers usually call them either 'low intensity conflicts' or — a related category — 
'military operations other than war.'" 76 In 19th-century terms, they were identi- 
fied as "campaigns undertaken to suppress rebellions and guerrilla warfare in all 
parts of the world where organized armies are struggling against opponents who 
will not meet them in the open field." 77 In those campaigns, beating a hostile army 
is not necessarily the main object. They may involve the subjugation of insurrec- 
tion, the repression of lawlessness, or the pacification of territory. These operations 
"involve [d] struggles against guerrillas and banditti." 78 While 19th-century warfare 
was not necessarily sensitive to issues of "law," it is clear that governance and "law 
enforcement" type activities have been an integral part of operations at this end of 
the conflict spectrum. 

Military involvement in law enforcement includes operations in times of occu- 
pation, non-international armed conflict and the campaign against terrorism. Fur- 
ther, a broad range of peace support operations can be added to this list. Such 
operations may not be dependent upon traditional sources of authorization such 
as a United Nations Security Council resolution, but could also involve a request 
from the governing authority of the territory involved. Military involvement can 
arise in a number of ways. The absence of police and other security forces in failed 
and failing States, or the responsibility to govern occupied territory, can result in 
the military performing a law enforcement role. 79 Even where local security forces 
exist, operations maybe conducted in support of those forces in order to mentor or 
augment their capability. Such operations are evident in Afghanistan and Iraq. 80 In 
addition, law enforcement and military forces may conduct joint operations when 
the threat is one like global terrorism which contains elements of both criminal ac- 
tivity and armed conflict. 81 

The new complex operational environment is perhaps best articulated in the 
United States Marine Corps doctrine of the "three block war." 82 This doctrine has 



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Chemical Agents and "Expanding" Bullets 



been integrated into Canada's 2005 International Policy Statement and has been 
described as " [o] ur military could be engaged in combat against well-armed militia 
in one city block, stabilization operations in the next block, and humanitarian re- 
lief and reconstruction two blocks over." 83 The doctrine recognizes the significant 
potential for military forces to be engaged in combat with armed groups while at 
the same time potentially being confronted with interfacing and controlling civil- 
ian populations. The latter responsibility can quickly take on the attributes of a po- 
licing function. Finally, military involvement in law enforcement is not restricted 
to international operations. Many nations regularly use military forces in a domes- 
tic law enforcement role including participation in hostage rescue. 84 

The interface with law enforcement means that military forces may themselves 
be conducting law enforcement operations, or may be conducting operations with 
security forces performing that function. This could mean participation in joint 
patrols with local security forces in a policing role under circumstances where the 
military and police forces both become involved in an engagement with organized 
insurgents. 85 The question immediately arises as to whether those security forces 
should be barred from carrying riot control or other chemical agents because of the 
potential to be engaged in armed conflict with insurgents. In this regard, it has been 
suggested the use of such agents would be permissible as part of law enforcement 
operations of an occupying power or in "non-traditional military operations such 
as peacekeeping operations, recognized as legitimate under international law." 86 It 
has also been acknowledged that "non-traditional military operations" may also 
apply to non-combatant evacuation and rescue missions. 87 

The question of whether riot control agents or "expanding" bullets should 
be applied in military operations is not limited to operations normally associ- 
ated with law enforcement. For example, cramped, confined spaces on mer- 
chant vessels and the crewing of those vessels by diverse multi-national crews 
provide ample practical reasons to seek out less-lethal means to detain or act in 
self-defense while conducting visit and search or maritime interdiction opera- 
tions. 88 The latter operations are normally authorized pursuant to a Security 
Council resolution. However, a strong argument can also be made that less-lethal 
law enforcement tools should be equally applicable to law of armed conflict-based 
visit and search operations when it is not anticipated there would be a confronta- 
tion with enemy forces. 

Similarly, "expanding" bullets are the ammunition of choice for hostage rescue 
units in many States. At the same time, kidnapping, both criminal and insurgent 
based, appears common in many failed or re-building States. 89 It raises interesting 
moral issues to suggest the civilians of a State such as Afghanistan or Iraq should be 
exposed to greater risk of injury in a law enforcement operation because there also 

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Kenneth Watkin 



happens to be an armed conflict occurring in parts of the nation with insurgent 
forces. All of this points to a broader use of riot control agents and potentially "ex- 
panding" bullets than the concept of law enforcement might ordinarily imply. 

State Practice 

While many States and their legal advisors acknowledge the delineation of conflict 
into the various traditional categories, there is at some point a requirement to set 
out the legal framework to be used for operations in the "gray zone." The solution 
to this challenge is reflected in the approaches already referred to in the Canadian 
manual and the United Nations Secretary-General's Bulletin. The law of armed 
conflict is applied as a matter of policy in situations where it technically may not 
apply as a matter of law. The United States approach is articulated as all heads of 
Department of Defense Components who are required to "[e]nsure that the mem- 
bers of their DoD Components comply with the law of war during all armed con- 
flicts, however such conflicts are characterized, and with the principles and spirit of 
the law of war during all other operations." 90 

In practical terms, States approach the use of law enforcement tools such as 
chemical agents and "expanding" bullets in different ways. The United States 
permits the use of riot control agents in a variety of circumstances, both during 
armed conflict and lower intensity peace support operations. That policy is set 
out in Executive Order 11850 which "allows their use in defensive military 
modes to save lives. Since riot control agents in this capacity are not being used 
against combatants, they are not being used as a 'method of warfare.'" 91 Autho- 
rized use includes the following situations: controlling riots in areas under 
United States military control; the rioting of prisoners of war; escaping prison- 
ers of war in remotely controlled areas; dispersing civilians when they are used 
to mask an attack; rescue missions for downed pilots; and for police actions in 
rear areas. 92 The United States military has used both rubber bullets and tear gas 
in dealing with violent detainee disturbances in Iraq. 93 The US Navy's Annotated 
Supplement to The Commander's Handbook on the Law of Naval Operations notes 
that the United States prohibits the use of riot control agents as a form of warfare 
in both international and internal armed conflicts; however, it goes on to state 
"that it does not apply in normal peacekeeping operations, law enforcement op- 
erations, humanitarian and disaster relief operations, counter-terrorist and hos- 
tage rescue operations, and non-combatant rescue operations conducted outside 
of such conflicts." 94 

Australian Air Force doctrine outlines a non-exhaustive list where riot control 
agents can be used. These situations include: rioting prisoners of war; rescue 

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Chemical Agents and "Expanding" Bullets 



missions involving downed aircrew or escaped prisoners of war; the protection of 
supply depots, military convoys and rear echelon areas from civil disturbances and 
terrorist activities; civil disturbance when acting in aid to the civil power; and dur- 
ing humanitarian evacuations involving Australian or foreign nations. 95 Under 
Canadian doctrine, "the use of CS gas or pepper spray is lawful and may be used for 
crowd control purposes, but their use as a means of warfare is illegal." 96 The United 
Kingdom, at least in respect of operations in Iraq, appears to have placed a total ban 
on the use of riot control agents in armed conflict. Defence Minister Hoon was re- 
ported to have stated that riot control agents "would not be used by the United 
Kingdom in any military operations or on any battlefield." 97 However, riot control 
agents appear to be permitted for riot control. 98 

The use of riot control agents in situations involving civilians used to mask or 
screen attacks; for rescue missions of downed aircrew; and to capture escaping 
prisoners of war has been criticized. 99 However, there has also been an acknowl- 
edgment that an "argument can be made that use of a RCA against an escaping 
prisoner of war in an isolated area might be legitimate. . . ." 10 ° This concession 
would not be extended to the use of chemical agents against enemy combatants 
seeking to capture a downed pilot because such use "more resembles a method of 
warfare than a law enforcement purpose." 101 

However, this viewpoint appears to assume such use would only be directed 
towards "enemy combatants." Regarding the rescue of downed aircrew it does 
not take into account the use of riot control agents to ensure local civilians do 
not attempt to attack the aircrew. If civilians were to attempt to capture and kill 
that aircrew those civilians might be considered to be taking a direct part in hos- 
tilities and therefore be liable to attack. 102 In any event, civilians capturing and 
causing the death or injury of downed aircrew would be the commission of a 
criminal act. 103 

Denying the ability to use riot control agents in such circumstances could be 
seen as an overly formalistic approach to a difficult moral situation. It would indeed 
be incongruous to end up with a "humanitarian" interpretation that those threaten- 
ing to attack downed aircrew would have to be subjected to deadly force when mili- 
tary personnel would prefer to use riot control agents to spare the civilians. 

Similarly, contemplating the use of riot control agents in situations where civil- 
ians are being used as human shields places military personnel in an extremely dif- 
ficult moral and legal situation. Such chemical agents are not to be used as a 
"method of warfare," but they may offer the only viable alternative to killing inno- 
cent women and children. Interestingly, it has been suggested that riot control 
agents might be appropriate in some crowd situations during ongoing armed con- 
flict. During an incident in Fallujah, Iraq on April 30, 2003, US military personnel 

206 



Kenneth Watkin 



fired on a crowd of demonstrators from which they believed insurgents were en- 
gaging them. This incident attracted the criticism of Human Rights Watch. 104 That 
non-governmental organization noted that the troops "had no teargas or other 
forms of non-lethal crowd control" 105 and among the recommendations was that 
"U.S. troops in Iraq be equipped with adequate crowd control devices to avoid a re- 
sort to lethal force." 106 

A recommendation that law enforcement means be used against rioting civil- 
ians is an appropriate one in most circumstances. However, the challenge is apply- 
ing it during an armed conflict with an ongoing insurgency when armed members 
of armed opposition groups maybe in the crowd. In that circumstance "the separa- 
tion between a law enforcement role and operations in armed conflict may not 
lend itself to being neatly drawn as the occupying power struggles to bring order 
out of chaos." 107 However, to the extent the use of riot control means provides a vi- 
able alternative in situations like those presented in Fallujah, it becomes difficult to 
argue they should also not be applied to limit casualties to human shields being set 
up by similar armed groups. 

Similar challenges arise in respect of military operations in failed or failing 
States where it may not be possible to easily separate the civilians from the oppos- 
ing forces, or those forces from ordinary criminals. Here it may be helpful to con- 
sider the reason why the ban on the use of riot control agents as a means of warfare 
was imposed, namely, to avoid a misunderstanding as to whether a Party to the 
conflict is being attacked by chemical weapons. 108 If, however, that rationale does 
not apply to the operational situation and the use of riot control agents involving 
civilians more closely approximates situations of domestic law enforcement, it 
would be much more difficult to suggest that the use of riot control agents does not 
provide an appropriate response. Further, the opportunity for misunderstanding 
could be reduced by the use of an information operations campaign explaining the 
circumstances under which such chemical agents are going to be used for riot con- 
trol or other forms of law enforcement. Of course, many of these situations will be 
fact dependant. However, the challenge is to ensure rules are not applied overly 
formally at the expense of employing more humane options. 

Regarding the use of "expanding" bullets, there appears to have been less overt 
reference to State practice. Identifying a consistent interpretation of the test for 
what constitutes "unnecessary suffering" and "superfluous injury" is itself prob- 
lematic. One approach has been to see the terms as synonymous, 109 while others 
have viewed the expression to cover "both measurable — objective (mostly physi- 
cal) injury and subjective — psychological suffering and pain." 110 In addition, as 
Yoram Dinstein has noted "[s]ome scholars speak about proportionality between 
injury or suffering and the military advantage anticipated" although he is not in 

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Chemical Agents and "Expanding" Bullets 



agreement with that approach. 111 This lack of consensus nearly 140 years after the 
development of the 1868 St. Petersburg Declaration 112 highlights the challenges in 
applying this area of law. 

The Study does indicate that the prohibition on the use of "expanding" bullets is 
set forth in numerous military manuals and states that "no State has asserted that it 
would be lawful to use such ammunition." 113 However, it also indicates the United 
States has taken an "ambiguous" position regarding the use of "expanding" am- 
munition if there is "a clear showing of military necessity for its use." 114 The Study 
reaches a similar conclusion regarding non-international armed conflict. 115 How- 
ever, the Study deals only tentatively with the question of the use of "expanding" 
bullets for law enforcement and relies heavily on references to domestic law en- 
forcement. It is here that the issue of State practice needs to be further explored. It 
is likely more than the "several states" alluded to in the Study permit the use of "ex- 
panding" bullets for law enforcement purposes. It is a common practice in North 
America. 

The Study describes the two most common reasons for using such ammunition 
in a domestic law enforcement context: avoiding over-penetration and the stop- 
ping power of such ammunition. Then, in a somewhat ambiguous fashion of its 
own, the Study notes "expanding bullets commonly used by police in situations 
other than armed conflict are fired from a pistol and therefore deposit much less 
energy than a normal rifle bullet, or a rifle bullet which expands or flattens eas- 
ily." 116 It could be argued that this statement is problematic for those supporting a 
complete ban on hollow point ammunition. If the effect of hollow point or "ex- 
panding" bullets fired by a pistol has a less damaging effect than a normal rifle bul- 
let, an argument might be made that the ammunition causes neither unnecessary 
suffering nor superfluous injury. If that is the case, then it would be difficult to see 
why it should not be permitted in armed conflict situations as well. However, it is 
not apparent this was the intention of the authors of the Study. 

A more fundamental question is why ammunition that is viewed as causing 
unacceptable injury and suffering under international law is viewed as lawful un- 
der a human rights-based law enforcement regime governing domestic law en- 
forcement. This issue becomes even more complex when the humanitarian factor 
of limiting collateral damage to uninvolved civilians, including those of the op- 
posing State, through the use of "hollow point" ammunition is considered. For 
example, in the same way that "law enforcement" has been interpreted to permit 
the use of riot control agents during many international operations, a convincing 
argument can be made that "expanding" ammunition would also be permitted 
under that exception. 117 



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Kenneth Watkin 



Conclusion 

In respect of the use of chemical agents and "expanding" bullets, the increasing 
influence that human rights norms are having on both military operations and 
the law of armed conflict may very well require a re-assessment of long held be- 
liefs regarding the use of law enforcement means during armed conflict. In many 
respects, the spotlight turned on the "law enforcement" role performed by States in 
complex security environments is already having that effect, although it is a role 
that has long been performed by military forces on international operations. 

On a practical level, many military lawyers advising commanders are placed in 
an awkward situation of explaining why riot control agents or "expanding" bullets 
can be used domestically (i.e., against your own citizens) and even internationally 
in a law enforcement role, but cannot be used against an enemy. This is a discus- 
sion that becomes even more challenging as military forces are forced to confront 
the reality of conducting operations in "three block wars" or performing law en- 
forcement duties in failed or failing States. 

It is not suggested that the long held and important prohibitions under the law 
of armed conflict with respect to the use of riot control agents as a "method of war- 
fare," or using "expanding" bullets, be removed. However, there is considerable 
merit to the argument that the underlying rationale for these prohibitions, created 
more than a century ago, be critically analyzed. The interpretation of how the cus- 
tomary law of armed conflict rules apply to complex security situations requires 
careful consideration of the more flexible application of law traditionally applied 
by many States. The law of armed conflict has not been rigidly or formally applied 
to those situations, but rather the "spirit and principles" of those laws have been 
followed. Given the continuing complexity of 21st-century conflict, the need to be 
flexible and to search out humane approaches to applying force, remains an im- 
portant goal. 

The extension of law of armed conflict norms to internal conflicts highlights this 
need for a flexible approach. As Lindsay Moir has noted, many States that would be 
"happy to see an increase in the level of humanitarian protection and regulation for 
internal conflicts are unlikely to agree to the wholesale adoption in such cases of the 
rules for international armed conflicts." There remains a broad acceptance 
throughout the international community that internal and international armed 
conflicts are fundamentally different in character." 118 A similar challenge arises in 
attempting to apply law of armed conflict rules to other complex security situa- 
tions such as occupation and the war on terror. 



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Chemical Agents and "Expanding" Bullets 



In the words of Thomas Franck: 

There has always been a large measure of agreement that terrorism poses a new 
challenge to the rule of law. Now that it seems clear that the rule of law — in both its 
domestic and its international configurations — still applies, the next task is to make it 
more responsive to the onerous new circumstances in which it must operate. 119 

This ultimately will require all the parties who have an interest in the law of 
armed conflict, or international humanitarian law, however it is termed, to re- 
think some long held views on the conduct of operations, particularly when mili- 
tary forces are required to also perform law enforcement functions. Included 
among the areas for analysis should be the use of less-lethal means such as chemical 
agents and "expanding" bullets in order to ensure the protection for uninvolved ci- 
vilians and other non-combatants is not unduly handcuffed by rules designed for 
large scale inter-State conflict. 

Notes 

1 . For example, see Toni Pfanner, Asymmetrical Warfare from the Perspective of Humanitarian 
Law and Humanitarian Action, 87 INTERNATIONAL REVIEW OF THE RED CROSS 149 (2005); 
Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the "War on 
Terror," 27 THE FLETCHER FORUM OF WORLD AFFAIRS 55 (2003), available at http://www 
.icrc.org/Web/eng/siteeng0.nsf/htmlall/5PWELF/$File/Rona_terror.pdf; and Noelle Quenivet, 
The Applicability of International Humanitarian Law to Situations of a {Counter -)T err orist 
Nature, in INTERNATIONAL HUMANITARIAN LAW AND THE 2 1ST CENTURY'S CONFLICTS 25 
(Roberta Arnold & Pierre-Antoine Hildbrand eds., 2005). Also see generally Kenneth Watkin, 
Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 
AMERICAN JOURNAL OF INTERNATIONAL LAW 1, 2-6 (2004). 

2. CARL VON CLAUSEWITZ, On WAR 86 (Michael Howard & Peter Paret trans. & eds., 1986) 
(1832). (Although most of his work is dedicated to removing external factors when considering 
the application of force Clausewitz also indicates that in his view wars between "civilized nations 
are far less cruel and destructive than war between savages.") 

3. The terms "law of armed conflict," "law of war" and "international humanitarian law" are 
often used synonymously. However, the fact that military writers exhibit a preference for the 
more martial connection to armed conflict or war, while humanitarian organizations (such as 
the International Committee of the Red Cross (ICRC)) and human rights non-government 
organizations (NGOs), such as Human Rights Watch and Amnesty International, prefer to use 
"humanitarian" law, graphically demonstrates a fundamental tension in this area of the law, i.e., 
the balancing of military necessity and humanity. 

4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 UNTS 3 
[hereinafter Additional Protocol I]. See Michael J. Matheson, The United States Position on the 
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva 
Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 415 
(1987); Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in 

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Kenneth Watkin 



Humanitarian Law of Armed Conflict: Challenges Ahead 93 (Astrid J. M. Delissen & 
Gerard J. Tanja eds., 1991); and George S. Prugh, American Issues and Friendly Reservations 
Regarding Protocol I, Additional to the Geneva Conventions, 3 1 MILITARY LAW AND LAW OF WAR 
Review 224 (1992). See also Jean-Marie Henckaerts & Louise Doswald-Beck, Customary 
International Humanitarian Law xxvii-xlv (2005) [hereinafter Customary Law Study] . 

5. Jefferson D. Reynolds, Collateral Damage on the 21st Century Battlefield: Enemy Exploitation 
of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 AIR FORCE LAW 
REVIEW 1, 23-24 (2005) ("[Additional Protocol I] is thoroughly represented in U.S. military 
doctrine, practice and rules of engagement"). 

6. See Kenneth Watkin, Warriors, Obedience and the Rule of Law, 3/4 THE ARMY DOCTRINE 
AND TRAINING BULLETIN 24, 28 (Winter 2000, Spring 2001) available at http://armyapp 
.forces.gc.ca/ael/adtb/vol_3/No_4/vol3_no_4_E.pdf. 

7. See Pfanner, supra note 1. 

8. Mat 158. 

9. Customary Law Study, supra note 4. 

10. See, e.g., Prosecutor v. Tadic (Appeal on Jurisdiction) paras. 65-142 (Oct 2, 1995) available 
at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm [hereinafter Tadic], and Lindsay 
Moir, Towards the Unification of International Humanitarian Law?, in INTERNATIONAL 
Conflict and Security Law: Essays in Memory of Hilaire McCoubrey 108 (Richard 
Burchill, Nigel D. White & Justin Morris eds., 2005). 

11. Hague Declaration 2 Concerning Asphyxiating Gases, July 29, 1899, UKTS 32 (1907), 
reprinted in DOCUMENTS ON THE LAWS OF WAR 59 (Adam Roberts & Richard Guelff eds., 3d. ed. 
2000). 

12. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, 
and of Bacteriological Methods of Warfare, June 17, 1925, UKTS 24 (1930), reprinted in 
DOCUMENTS ON THE LAWS OF WAR, supra note 1 1, at 155. 

13. Convention on the Prohibition of the Development, Production, Stockpiling and Use of 
Chemical Weapons and on their Destruction, Jan. 13, 1993, reprinted in THE LAWS OF ARMED 
CONFLICTS 239 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004). There are 174 States parties 
to the Chemical Weapons Convention. See States Parties to Main Treaties available at 
www.icrc.org. 

14. Rome Statute of the International Criminal Court, July 17, 1998, reprinted in THE LAWS OF 
ARMED CONFLICTS, supra note 13, at 1309 [hereinafter ICC Statute]. 

15. Customary Law Study, supra note 4, at 259. 

16. Id. at 260. 

17. David Kaye & Steven A. Solomon, The Second Review Conference of the 1980 Convention on 
Certain Conventional Weapons, 96 AMERICAN JOURNAL OF INTERNATIONAL LAW 922, 922 
(2002). 

18. See Hiwa Osman, Iraqi Kurds Recall Chemical Attack, BBC NEWS (Mar. 17, 2002), available 
at http://news.bbc.co.uk/ 1 /hi/world/middle_east/ 1877161 .stm. 

19. See Tadic, ICTY Appeal Chamber (1995), supra note 10, at para. 124 ("It is therefore clear 
that, whether or not Iraq really used chemical weapons against its own Kurdish nationals — a 
matter on which this Chamber obviously cannot and does not express any opinion — here 
undisputedly emerged a general consensus in the international community on the principle that 
the use of those weapons is also prohibited in internal armed conflicts."). See also CUSTOMARY 
LAW STUDY, supra note 4, at 263; Antonio Cassesse, The Statute of the International Criminal 
Court: Some Preliminary Reflections, 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 144, 152— 
153 (1999) ("That Appeals Chamber rightly [found] . . . that the prohibition of weapons causing 



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Chemical Agents and "Expanding" Bullets 



unnecessary suffering, as well as the specific ban on chemical weapons, also applies to internal 
armed conflicts."). 

20. Convention on the Prohibition of the Development, Production, Stockpiling and Use of 
Chemical Weapons and on Their Destruction, art. II, para. 1, Jan. 13, 1993, 32 INTERNATIONAL 
Legal Materials 800, reprinted in The Laws of Armed Conflicts, supra note 13, at 239, 242. 

21. Id., art. II, para. 9(c), at 243. 

22. Id., art. I, para. 5, at 242. 

23. Id., art. II, para. 9(d), at 244. 

24. See CUSTOMARY LAW STUDY, supra note 4, at 265 quoting in part the military manual of the 
Netherlands. 

25. See FM 8-9 Nato Handbook On The Medical Aspects Of NBC Defensive Operations 
Amedp-6(B) Chap. 7, Riot Control Agents para. 701 (1996), available at http://www.fas.org/ 
nuke/guide/usa/doctrine/dod/fm8-9/toc.htm ("Riot control agents are irritants characterised by 
a very low toxicity (chronic or acute) and a short duration of action. Little or no latent period 
occurs after exposure. Orthochlorobenzylidene malononitrile (CS) is the most commonly 
used irritant for riot control purposes. Chloracetophenone (CN) is also used in some countries 
for this purpose in spite of its higher toxicity. A newer agent is dibenzoxazepine (CR) with 
which there is little experience. Arsenical smokes (sternutators) have in the past been used on 
the battlefield. Apart from their lachrymatory action they also provoke other effects, e.g., 
bronchoconstriction and emesis and are some times referred to as vomiting agents."). 

26. CUSTOMARY LAW STUDY, supra note 4, at 263-264 (The noted exceptions are Australia, 
Portugal and the United Kingdom). 

27. Id. For a detailed outline of the US position regarding the 1925 Gas Protocol, see 
Annotated Supplement to The Commander's Handbook on the Law of Naval 
OPERATIONS 467-471 (A.R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US Naval War 
College International Law Studies) [hereinafter ANNOTATED SUPPLEMENT]. 

28. David Carlton & Nicholas Sims, The CS Gas Controversy, SURVIVAL 333, 333 ( 1971 ) quoting 
Hansard (Commons) vol. 795, c. 17-18. Written answers: February 1970. (The authors suggest 
"it may well be the British Government in 1969-1970 came to share [the US delegate's] opinion 
either as a result of the use of CS gas in Northern Ireland or as a result of contemplating how best 
to assist President Nixon ... in seeking to persuade Congress to approve . . . the Geneva 
Protocol.") Id. at 336-337. 

29. See David P. Fidler, Law Enforcement Under the Chemical Weapons Convention, FAS 
Working Group on Biological and Chemical Weapons for the Open Forum on Challenges to the 
Chemical Weapons Ban 5 (May 1, 2002), available at http://www.armscontrolcenter.org/cbw/ 
papers/wg/wg_2002_law_enfo rcement.pdf ("application of international law on treaty 
interpretation indicates that the definition of a RCA in Article 11.9(d) [of the 1993 Chemical 
Weapons Convention] does not limit the range of toxic chemicals that can be used for law 
enforcement purposes."). 

30. See CNN.com./World, Protesters Battle Police at Summit of Americas, http://archives 
.cnn.com/2001/WORLD/americas/04/20/summit.americas.02/ ("Riot police with helmets, batons 
and shields stood shoulder-to-shoulder trying to maintain their perimeter while demonstrators 
lobbed rocks, bottles and parts of the fence at the officers. Police answered with tear gas. 
Protesters picked up some of the tear gas canisters and tossed them back at police. The air soon 
grew hazy with the gas."). 

3 1 . See The Effectiveness and Safety of Pepper Spray, US Department of Justice, Office of Justice 
Programs, National Institute of Justice 1, 1 (April 2003) available fltwww.ncjrs.org/pdffilesl/nij/ 
195739.pdf ("Pepper spray, or oleoresin capsicum (OC), is used by law enforcement and 



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Kenneth Watkin 



corrections agencies across the United States to help subdue and arrest dangerous, combative, 
violent, or uncooperative subjects in a wide variety of scenarios."). 

32. See Squadron Leader C.R. Coles, Air-delivered Non-lethal Weapons and the RAAF Weapons 
Inventory, Geddes Papers, Australian Command and Staff College 70, 78 (2003) ("Commonly 
referred to as 'stink bombs' malodorants are derived from living organisms or toxins and 
produce a powerful smell which humans find repugnant. When applied can be used to disperse a 
crowd or deny an area to an adversary and quite clearly have potential application in all forms of 
military action including peacekeeping. The effects of exposure to malodorants can range from 
mild displeasure to gagging and vomiting."). 

33. Id. ("Calmatives act much like sedatives — they depress the central nervous system having a 
psychological effect in altering moods as well as a physiological effect by depressing the 
respiratory system. Calmatives have obvious applications against large bodies of people or 
against individuals who are either unmanageable or are dispersed among a group of civilians.") 
However, see Sarah V. Hart, Less-Than-Lethal Weapons, Statement Before the Subcommittee on 
Aviation Committee on Transportation and Infrastructure, U.S. House Of Representatives 
(May 2, 2002) available at http://www.ojp.usdoj.gov/nij/speeches/aviation.htm (outlining the 
challenges of using calmatives in an aircraft hijacking situation.). 

34. See Quenivet, supra note 1, at 31. 

35. See CUSTOMARY LAW STUDY, supra note 4, at 268 ("Rule 77. The use of bullets which 
expand or flatten easily in the human body is prohibited."). 

36. The "expanding" bullets prohibition is contained in Hague Declaration (IV, 3) Concerning 
Expanding Bullets, July 29, 1899, UKTS 32 (1907), reprinted in DOCUMENTS ON THE LAWS OF 
WAR, supra note 1 1, at 64. 

37. Supra note 4. 

38. Supra note 14, art. 8(2)(b)(xix). 

39. HENCKAERTS & DOSWALD-BECK, supra note 4, at 270. 

40. Id. 

41. Canadian Forces Doctrine Manual: The Law of Armed Conflict at the 
Operational and Tactical Level, B-Gj-005-l04/FP-02l,t 510, at 5-2 (Aug. 13, 2001), 
available at http://www.forces.gc.ca/jag/training/publications/loac_man_e.asp [hereinafter 
Operational and Tactical Level Manual] ("bullets that expand or flatten easily in the 
human body, such as bullets with a hard envelope that does not entirely cover the core or is 
pierced with incisions (that is, hollow point or 'dum-dum' bullets)"). 

42. Article 3, common to the Geneva Conventions of 1949, e.g., Convention for the 
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 
1949, 75 U.N.T.S. 31 [Geneva Convention I]; Convention for the Amelioration of the Condition 
of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 
U.N.T.S. 85 [Geneva Convention II]; Convention Relative to the Treatment of Prisoners of War, 
Aug. 12, 1949, 75 U.N.T.S. 135 [Geneva Convention III]; Convention Relative to the Protection 
of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 [Geneva Convention IV]; all 
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 11, at 197, 222, 244 and 301, 
respectively. 

43. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protect of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, 
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 11, at 483 [hereinafter Additional 
Protocol II]. 

44. See OPERATIONAL AND TACTICAL LEVEL MANUAL, supra note 4 1 , at 1 7- 1 para. 1 702. See also 
the CODE OF CONDUCT FOR CF PERSONNEL, B-GG-005-027/AF-023, 1-2, para. 10 [hereinafter 



213 



Chemical Agents and "Expanding" Bullets 



CODE OF CONDUCT], available at http://www.forces.gc.ca/jag/training/publications/ 
code_of_conduct/Code_of_Conduct_e.pdf ("The Law of Armed Conflict applies when Canada 
is a party to any armed conflict. During peace support operations the spirit and principles of the 
Law of Armed Conflict apply. The CF will apply, as a minimum, the spirit and principles of the 
Law of Armed Conflict in all Canadian military operations other than Canadian domestic 
operations."). 

45. See Tadic (Appeals Chamber) (1995), supra note 10, at para. 126. 

46. See ICC Statute, supra note 14, art. 8(2) (d). See also Cassesse, supra note 19, at 152 ("The 
prohibited use of weapons in internal armed conflicts is not regarded as a war crime under the 
ICC statute."). 

47. HENCKAERTS & DOSWALD-BECK, supra note 4, at 270. 

48. See Rules of War and Arms Control, in A Short History of SALW International and Domestic 
Constraints 3 n.32 (Foreign Affairs Canada), available at http://www.dfait-maeci.gc.ca/arms/ 
Trends/section09-en.asp. See also David Cracknell et al., The Web of Terror, THE SUNDAY TIMES 
(July 17, 2005), at 12 (where it is indicated that the special Scotland Yard police unit, SO 19, tasked 
with stopping suicide bombers "use 'frangible' ammunition that releases all its energy in the 
targets body, instead of passing through it and endangering nearby civilians."). See supra note 88. 

49. Michael Walzer, Just and Unjust Wars xviii-xix, (1977). 

50. See Additional Protocol II, supra note 43, art. 1(2). 

51. Leslie Green, The Contemporary Law of Armed Conflict 55-56 (2d ed. 1996) 
(where it is noted that "to some extent certain non-international conflicts have come under the 
aegis of international law since 1977 with the adoption of Article 1(4) of Protocol I and Protocol 
II additional to the 1949 Geneva Conventions ...."). 

52. This can occur either because of the limited application of Additional Protocol I to 
movements seeking "self-determination" or because of an inability of the national liberation 
movements to apply the provisions of the Protocol. For a discussion of the limitations of the 
application of Additional Protocol I, see Theodor Meron, The Time Has Come for the United 
States to Ratify Geneva Protocol I, 88 AMERICAN JOURNAL OF INTERNATIONAL LAW 678, 682-685 
(1994) and George H. Aldrich, Prospects for United States Ratification of Additional Protocol I to 
the 1949 Geneva Conventions, 85 AMERICAN JOURNAL OF INTERNATIONAL LAW 1, 4-7 (1991). 
The responsibility of non-State actors to apply the law are discussed in Hans-Peter Gasser, Acts of 
Terror, "Terrorism" and International Humanitarian Law, 84 INTERNATIONAL REVIEW OF THE 
RED CROSS 547, 563 (2002). See also KEITH SUTER, AN INTERNATIONAL LAW OF GUERRILLA 
WARFARE: THE GLOBAL POLITICS OF LAW-MAKING 167 (1984) ("Guerrillas, by contrast, would 
find it much harder if not impossible, to implement these provisions."). 

53. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 
8). 

54. Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory, 
Advisory Opinion (I.C.J. 41-42 (July 9, 2004), 43 INTERNATIONAL LEGAL MATERIALS 1009, 
1038-1039, available at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm ("there 
are thus three possible situations: some rights may be exclusively matters of international 
humanitarian law; others may be exclusively matters of human rights law; yet others may be 
matters of both these branches of international law."). 

55. Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed 
Conflict and Military Occupation, 99 AMERICAN JOURNAL OF INTERNATIONAL LAW 119, 141 
(2005). 

56. Supra note 42. 

57. Supra note 43. 



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Kenneth Watkin 



58. Id., art. 1(2). 

59. Id. (For example, Additional Protocol II does 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.") 

60. See Waldemar A. Solf, The Status of Combatants in Non-International Armed Conflicts Under 
Domestic Law and Transnational Practice, 33 AMERICAN UNIVERSITY LAW REVIEW 53, 58-59 
(1983) and Robert K. Goldman & Brian D. Tittemore, Unprivileged Combatants and the 
Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human 
Rights Law, The American Society of International Law Task Force on Terrorism 5-6 (Dec. 
2002), at http://www.asil.org/taskforce/goldman.pdf (last visited Nov. 5, 2005). 

61. In Case 11.137, luan Carlos Abella v. Argentina, 1997 INTER-AMERICAN YEAR BOOK ON 
HUMAN RIGHTS 602, 681-84, at paras. 152-53, (Commission report) (the line separating an 
especially violent incident of internal disturbances from the application of international 
humanitarian law principles "may sometimes be blurred and, thus, not easily determined."). 

62. Id. 

63. Tadic, supra note 10, at paras. 96-127. 

64. Id. at para. 97 ("A State-sovereignty-oriented approach has been gradually supplanted by a 
human-being-oriented approach. Gradually the maxim of Roman law hominum causa omnejus 
constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in 
the international community as well. It follows that in the area of armed conflict the distinction 
between interstate wars and civil wars is losing its value as far as human beings are concerned."). 

65. Watkin, supra note 1, at 3-4. 

66. See Rona, supra note 1, at 58 and Pfanner, supra note 1, at 154-156. 

67. Anthony Dworkin, Revising the Law of War to Account for Terrorism: The Case Against 
Updating the Geneva Conventions, On the Ground That Changes Are Likely Only to Damage 
Human Rights, Findlaw's Writ: Commentary (Feb. 4, 2003), at http://writ.news.findlaw.com/ 
commentary/20030204_dworkin.html (last visited Nov. 5, 2005) and Leila Nadya Sadat, 
Terrorism and the Rule of Law, 3 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW 135, 
136 (2004). 

68. See Watkin, supra note 1, at 5. 

69. Reprinted in 38 INTERNATIONAL LEGAL MATERIALS 1656 (1999). 

70. Id. at section 1. 

71. "Law Enforcement" and the CWC, 58 THE CBW CONVENTIONS BULLETIN, Dec. 2002, at 1. 

72. Supra note 13. 

73. Supra note 71, at 1 (quoting a March 1997 issue of the Bulletin). 

74. See Fidler, supra note 29, at 14-15. See also Barbara Hatch Rosenberg, Riot Control Agents 
and the Chemical Weapons Convention, FAS Working Group on Biological and Chemical 
Weapons for the Open Forum on Challenges to the Chemical Weapons Ban 3 (May 1, 2003) 
available at http://www.armscontrolcenter.org/cbw/papers/wg/wg_2003_riot_control_agents 
.pdf (last visited Nov. 2, 2005). 

75. Max Boot, The Savage Wars of Peace: Small Wars and the Rise of American 
POWER xvi (2002). Boot categorizes the Vietnam Conflict as a "small" war because of the tactics 
used rather than the scale of the conflict. See also United States Marine Corps, SMALL WARS 
MANUAL (1940), which provides, in part, that: 

Small wars vary in degrees from simple demonstrative operations to military 
intervention in the fullest sense, short of war. They are not limited in their size, in the 
extent of their theater of operations nor their cost in property, money, or lives. The 
essence of a small war is its purpose and the circumstances surrounding its inception 



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Chemical Agents and "Expanding" Bullets 



and conduct, the character of either one or all of the opposing forces, and the nature of 

the operations themselves The ordinary expedition of the Marine Corps which does 

not involve a major effort in regular warfare against a 'first-rate power' maybe termed a 
small war. 

76. See BOOT, supra note 75, at xiv. 

77. See C.E. CALDWELL, SMALL WARS: THEIR PRINCIPLES AND PRACTICE 21 (3d ed. 1996) 
(1906). 

78. Id. at 42. 

79. As is set out in the 1907 Hague Regulations, an occupying power has the responsibility to 
"take all measures in his power to restore, and ensure, as far as possible, public order and safety, 
while respecting, unless absolutely prevented, the laws in force in the country." Regulations 
Respecting the Laws and Customs of War on Land, Hague Convention IV Respecting the Laws 
and Customs of War on Land (and annexed Regulations), art. 43, Oct. 18, 1907, UKTS 9 (1910), 
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 11, at 69. See also Geneva 
Convention IV, supra note 42, art. 64, regarding the obligation of an occupying power "to 
maintain the orderly government of the territory." 

80. As is set out in United Nations Security Council Resolution 1386 (2001), the mandate for 
the International Security Assistance Forces (ISAF) broadly involves providing assistance to 
Afghan security forces in the maintenance of security: 

The establishment for 6 months of an International Security Assistance Force to assist 
the Afghan Interim Authority in the maintenance of security in Kabul and its 
surrounding areas, so that the Afghan Interim Authority as well as the personnel of the 
United Nations can operate in a secure environment. 

Such a mandate can entail assisting police forces, training security forces and potentially 
participating in armed conflict with armed groups such as the Taliban and Al Qaeda threatening 
the Afghan governing authority. 

81. See Gerald L. Neuman, Comment, Counter-terrorist Operations and the Rule of Law, 15 
EUROPEAN JOURNAL OF INTERNATIONAL LAW 1019, 1019-1020 (2004). 

82. General Charles C. Krulak, The Strategic Corporal: Leadership in the Three Block War, 
MARINES, Jan. 1999, at 26, available at http://www.usmc.mil/marinesmagazine/pdf 
.nsf/8e8afdadel9e000c852565e700807312/ba6c7b077948belb852566e800538752/$FILE/jan99.pdf 
(last visited Nov. 5, 2005). 

83. A Role of Pride and Influence in the World 11 (Apr. 2005), available at http:// 
www.dfait-maeci.gc.ca/cip-pic/IPS/IPS-Overview.pdf. 

84. See Watkin, supra note 1, at 14. 

85. See Kenneth Watkin, Warriors Without Rights? Combatants, Unprivileged Belligerents, And 
The Struggle Over Legitimacy 2 HPCR OCCASIONAL PAPER SERIES 66 (Winter 2005), available at 
http://www.hpcr.org/pdfs/OccasionalPaper2.pdf ("Both military forces and their traditional 
law enforcement counterparts may be confronted with threats that range from violence 
associated with normal criminal activity to military type attacks under circumstances where it 
could be difficult to distinguish initially the nature or scope of the threat. In each of these 
situations, internal order may be maintained by a combination of military and police forces 
engaged primarily, but not exclusively, in law enforcement against 'criminal' activity."). 

86. See Fidler, supra note 29, at 14. See also Rosenberg, supra note 74, at 3. 

87. See Fidler, supra note 29, at 14 n.7. 

88. See Global Security.org, Frangible Ammunition, http://www.globalsecurity.org/military/ 
systems/munitions/frangible.htm (last visited Nov. 5, 2005) ("Concerns with over penetration/ 
ricochet hazards aboard aircraft, ships and (e.g.) nuclear power plants that might release 



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Kenneth Watkin 



hazardous materials have led to efforts to provide small caliber ammunition with reduced 
ricochet, limited penetration (RRLP) for use by SOF to reduce risk to friendly forces and 
innocent persons. There are three general levels of frangible: Training [may be used for training 
only]; reduced ricochet, limited penetration [RRLP, designed for purposes stated]; and general 
purpose frangible [though no military requirement has been established for a general purpose 
round for use by conventional forces]. Specific ammunition must undergo wound ballistics 
testing/legal review once developed. It can be used for: Close Quarter Battle (CQB); Military 
Operations in Urban Terrain (MOUT); Visit Board Search and Seizure; and Counter-Narcotics 
(CN) Operations."). 

89. For example, see Guardian Unlimited, Associated Press, Militants Extend Afghanistan 
Hostages Deadline, http://www.guardian.co.Uk/afghanistan/story/0, 1 284, 1340957,00.html and 
new.amnesty.com, Iraq: Violence Must Stop - Rule Of Law Must Prevail, http://news.amnesty 
.org/pages/iraq_press ("Amnesty International condemns the use of civilians as bargaining chips 

in the continuing political instability in Iraq Armed groups must set free all hostages they are 

detaining and refrain from kidnapping people or attacking civilians.") (both last visited Aug. 28, 
2005). 

90. See Deputy Secretary of Defense, DoD Law of War Program, Department of Defense 
Directive 5100.77 4, para. 5.3.1 (Dec. 9, 1998) available at http://www.dtic.mil/whs/directives/ 
corres/pdf/d510077_120998/d510077p.pdf (last visited Aug. 28, 2005). 

91. See Center for Law and Military Operations, Legal Lessons Learned From Afghanistan 
and Iraq: Vol. I Major Combat Operations ( 1 1 September 2001 to 1 May 2003), Appendix A-6, 
at 297 (Aug. 1, 2004) available at https://www.jagcnet.army.mil/JAGCNETIntranet/Databases/ 
Operational+Law/CLAMO.nsf/(JAGCNetDocID)/399A488BDCB4F6BB85256F3C0065B445/ 
$FILE/OEF%20OIF%20Volume%20I.pdf (last visited Nov. 5, 2005) [hereinafter Lessons 
Learned]. See also ANNOTATED SUPPLEMENT, supra note 27, at 10-17 n.39 (where it is indicated 
that the United States Senate Resolution of Ratification for the 1993 Chemical Weapons 
Convention required that "[t]he President shall take no measure, and prescribe no rule or 
regulation, which would alter or eliminate Executive Order 1 1,850 of April 8, 1975."). 

92. See Lessons Learned, supra note 91, at 297-98. 

93. See Steve Fainaru and Anthony Shadid, In Iraq Jail, Resistance Goes Underground., 
WASHINGTON POST FOREIGN SERVICE, Aug. 24, 2005, at AOL ("The Americans fired back with 
rubber bullets and tear gas but failed to slow the projectiles cascading from the courtyard."). 

94. See Annotated Supplement, supra note 27, at 10-15 to 10-16. 

95. See ROYAL AUSTRALIAN AIR FORCE, FUNDAMENTALS OF AUSTRALIAN AlRPOWER 76-77 
(4th ed. 2002), available at http://www.raaf.gov.au/airpower/publications/doctrine/aapl003/ 
highres/Ch_9.pdf (last visited Nov. 5, 2005). 

96. CODE OF CONDUCT, supra note 44, at 2-4, para. 9. 

97. See Lessons Learned, supra note 91, at 1 16 n.31. 

98. See Rosenberg, supra note 74, at 3 ("The UK Ministry of Defence recently encapsulated a 
clear understanding of the CWC regarding the use of RCA, as follows: RCA 'are permitted for 
dealing with riot control,' but the CWC precludes the use of chemicals, including RCA, in 
[other] 'military operations or on any battlefield' (G. Hoon, Press Conference, Mar. 27, 2003)." 

99. See Fidler, supra note 29, at 15-16. 

100. Id. at 15. 

101. Id. 

102. Additional Protocol I, supra note 4, art. 50(3). 

103. See Yoram Dinstein, The Distinction Between Unlawful Combatants and War Criminals, in 
INTERNATIONAL Law AT A TIME OF PERPLEXITY 1 1 1 (Yoram Dinstein & Mala Tabory eds., 
1989). 



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Chemical Agents and "Expanding" Bullets 



104. Human Rights Watch, Violent Response: The U.S. Army in Al-Falluja (June 2003), 
available at http://www.hrw.org/reports/2003/iraqfalluja/ (last visited Nov. 5, 2005). 

105. Id. at 1. 

106. Id. at 3. See also Fidler, supra note 26 at 13-14 (where an interpretation of "law 
enforcement" is provided that supports some of the circumstances in which the United States 
has indicated riot control agents could be used: "in rear echelon areas outside the zone of 
immediate combat to secure convoys from civil disturbances."). 

107. Watkin, supra note 1, at 32. 

108. See HENCKAERTS & DOSWALD-BECK, supra note 4, at 265 

109. Sniper Use of Open-Tip Ammunition, Memorandum for Commander, United States 
Army Special Operations Command 3, at para. 3 (Oct. 12, 1990) ("In some law of war treatises, 
the term 'unnecessary suffering' is used rather than 'superfluous injury.' The terms are regarded 
as synonymous.") (On file with the author). 

110. See Yoram Dinstein, The Conduct of Hostilities Under the Law of 
International Armed Conflict 59 (2004). 

ill. Id. 

112. Declaration Renouncing the Use, in time of War, of Explosive Projectiles Under 400 
Grammes Weight, Dec. 11, 1868, reprinted in DOCUMENTS ON THE LAWS OF War, supra note 
11, at 54-55. 

1 13. See HENCKAERTS & DOSWALD-BECK, supra note 4, at 269. 

114. Id. 

115. Mat 270. 

116. Id. 

117. See ANNOTATED SUPPLEMENT, supra note 27, at 9-3 n.7, where it is noted the US practice is 
to apply hollow-point ammunition in peacetime counter terrorist and special security missions. 

118. Moir, supra note 10, at 128. 

1 19. Thomas M. Franck, Criminals, Combatants, or What? An Examination of the Role of Law in 
Responding to the Threat of Terror, 98 AMERICAN JOURNAL INTERNATIONAL LAW 686, 688 
(2004). 



218 



PARTY 



COALITION WARFARE 



X 



Legal Issues in Coalition Warfare: 
A US Perspective 



Charles Dunlap 



* 



With increasing frequency, a growing number of nations find themselves 
engaged in operations with US forces. I hope to give you some perspec- 
tive on how the United States views the legal obligations and challenges of opera- 
tions within coalitions. 

A nation's participation as a member of a coalition is more than just a synchro- 
nization of military plans and objectives; it is also a synchronization of legal issues. 
Interpreting and applying the law are rarely easy tasks with coalitions comprised of 
nations with widely differing political, cultural, and historical influences on their 
legal systems. The precise legal context is becoming increasingly technical, yet vi- 
tally important — and hardly intuitive. Indeed, legal issues and the differing ap- 
proaches amongst coalition partners make the legal aspects of conflict a strategic 
issue that must be addressed. As General James L. Jones observes: 

It used to be a simple thing to fight a battle. ... In a perfect world, a general would get 
up and say, "Follow me, men," and everybody would say, "Aye, sir" and run off. But 
that's not the world anymore. . . . [Now] you have to have a lawyer or a dozen. It's 
become very legalistic and very complex. 1 



* Brigadier General, US Air Force. The views and opinions expressed by the author are his alone 
and do not necessarily reflect those of the US Government or any of its components. 



Legal Issues in Coalition Warfare: A US Perspective 

Of course, even when lawyers are there to advise, a variety of legal challenges will 
still affect coalition operations. Each one will be discussed in more detail, but here 
are the big issues: interpreting and applying international law in coalition warfare; 
domestic law and policy limitations on the different coalition partners (including 
the United States); and how coalition partners provide legal support within the op- 
erational area. I will close with a challenge that faces military forces of every demo- 
cratic nation: the enemy's abuse of law as a tool of asymmetrical warfare. 

With all of these issues, often the biggest question is "which law governs?" On 
one hand, national commanders in the field and leaders back at home ask, "How 
does my nation's interpretation and application of law affect my ability to conduct 
operations with coalition partners?" On the other hand, the coalition commander 
must overcome these same legal issues to effectively employ national forces in co- 
alition operations. 

International Law: The Challenge of Applying the Law of Armed Conflict 

in Coalition Warfare 

International law in coalition operations may appear, at first glance, to be a matter 
of interpreting and applying established rules to the coalition as a whole. Much of 
international law related to coalition operations is fairly settled, for example, law of 
the sea and diplomatic relations law. However, difficulties arise as to whether a par- 
ticular international law is recognized by each nation participating in the coalition 
and as to widely different interpretations of seemingly fundamental rules. In the end, 
a nation's domestic law and policy will shape its application of international law. 

The law of armed conflict (LOAC) is international law that everyone agrees cov- 
ers coalition warfare. 2 Yet, the interpretation and application of armed conflict 
laws differ, sometimes significantly, between coalition partners. Which law gov- 
erns? To illustrate this thorny question from a US point of view, we'll look at exam- 
ples from customary international law and international agreements. 

Some LOAC is based in customary international law. These are rules that na- 
tions have historically followed because of a sense of legal obligation to do so. How- 
ever, how each nation views them can vary widely. For example, depleted uranium 
(DU) is a common element used in making armor piercing rounds for a variety of 
ammunition, including the A- 10's 30 mm cannon. 3 The United States views DU as 
a legal weapon that can be used. However, some other nations consider it unlawful 
because of the potential dangers of exposure from the resulting debris. 4 

International agreements, or treaties, are arguably more robust international 
law than customary law because nations agree to be bound by the terms of treaties 
to which they are parties. The bulk of LOAC has been established and defined by 

222 



Charles Dunlap 



widely accepted international agreements. 5 Treaties that most individuals associate 
with LOAC are the Geneva Conventions and its Protocols. 6 However, not all coali- 
tion partners are parties to the same treaties. For instance, the United States has not 
ratified Protocol I, yet it still follows the principles as part of customary law. 7 An- 
other example is the Ottawa Convention on anti-personnel mines. 8 The United 
States is not a party to this while most coalition partners are. 

Even if coalition partners are all parties to the same treaties, various domestic 
implementation laws affect how and when each nation follows the treaties. This 
can be seen in the different interpretation and application of the Geneva Conven- 
tions in the war on terror by long-time allies and coalition partners. 

One area that created a legal debate and a flurry of press coverage is the Interna- 
tional Criminal Court (ICC). 9 Although the United States was an original signer of 
the treaty that created the ICC, it was never ratified by the Senate. Thus, the United 
States is not a party to the treaty. Among other things, the US government has con- 
cerns about politicized prosecutions by individuals or entities who seek to use the 
process not to redress legitimately made allegations, but merely to disrupt US op- 
erations. In fact, the United States routinely asks other nations to sign "Article 98" 
agreements 10 which would operate to protect US service members from being sent 
to the ICC for trial. This has not stopped other individuals from filing suit in other 
nations' courts alleging that US leaders were committing war crimes. 11 In any 
event, as a matter of policy the United States prefers to handle allegations of mis- 
conduct in American courts, and seeks to avoid subjecting its military personnel to 
the jurisdiction of foreign courts. 

Even when nations agree on the law, the application to individual cases can vary 
widely. For example, radio and television stations are seen by the United States as 
potential military targets. During the Kosovo operations, US aircraft participating 
in a NATO operation bombed a Serb radio and television facility. Many considered 
this an unlawful attack on a civilian target, despite the military use of the air- 
waves. 12 This also very nearly became an issue during Operation Iraqi Freedom 
(OIF) when the United States, as part of coalition operations, considered attacking 
Iraqi television and radio stations. In this case, the Iraqis themselves made it clear 
that these were valid military targets under LOAC. Even though the television is 
traditionally thought of as a civilian medium, the Iraqis used it to rally troops and 
provide military direction. The news reports were even read by individuals wearing 
uniforms of the Iraqi army. Nevertheless, this is an area where there will be contro- 
versy in future conflicts. Coalition commanders will have to address this on a case- 
by-case basis. 



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Legal Issues in Coalition Warfare: A US Perspective 

Domestic Law, Policy, and Regulation: Limits on National Commanders 

As we have seen, international law affecting coalition warfare is viewed through the 
lenses of nations taking part in a coalition. Domestic law further shapes, and often 
limits, nations' ability to work as coalition partners. National commanders and 
their forces must comply with their domestic laws, policies, and regulations, fur- 
ther complicating the legal aspects of coalition operations. 

US domestic law, policies, and regulations have the potential to significantly im- 
pact US forces' conduct in coalitions. For US forces, domestic law is another aspect 
of LOAC. Our policy is to apply LOAC principles to any conflict, no matter how 
characterized. 13 Going even further, US forces normally operate within rules of en- 
gagement (ROE) for a particular operation. Using LOAC as a foundation, civilian 
and military leadership develops ROE based on domestic law and policy consider- 
ations, in addition to LOAC. Common ROE for coalition forces is highly desirable. 
However, even ROE for coalition forces can be different as a result of each partner's 
own domestic laws and policy. The United States works with coalition partners to 
develop and abide by common ROE in coalition operations; however, US forces al- 
ways retain the right to "use necessary and proportional force for unit and individ- 
ual self-defense." 14 

As with other aspects of law, ROE are not immune from differing interpreta- 
tions. US ROE typically permit units and individuals to use force in self-defense in 
situations where someone or some group displays hostile intent and capability. 
This is the "threat of imminent use of force against ... US forces" or the use of the 
threat of force to "impede the mission and/or duties of US forces." 15 Each coalition 
partner defines hostile intent differently and may even limit the ability of their 
forces to engage in self-defense in these types of situations. This becomes an even 
more interesting determination when dealing with air operations. What represents 
"hostile intent" to an aircraft? 

Domestic law can create challenges for US commanders in areas other than 
LOAC. Commanders must abide by those international agreements to which the 
United States is a party, which may limit their authority. Furthermore, under US law 
American commanders usually cannot provide logistic support to coalition part- 
ners without some type of government-to-government agreement covering the ex- 
change of goods and services — and often having a reimbursement requirement. 16 

Command and control issues are also very important. The US Constitution and 
domestic law place limits on the ability of US forces to serve under foreign com- 
mand. Typically, operational control or tactical control is not a problem as long as 
there is ultimately a US commander who exercises actual command. 



224 



Charles Dunlap 






Discipline is at the core of every successful military operation, including coali- 
tion operations. Historically, each coalition partner is responsible for disciplining 
its troops in accordance with domestic military and criminal law. This authority 
does not rest with the coalition commander, but with the national commanders of 
the coalition partners. However, every coalition commander has a strong interest 
in unit welfare and discipline, and should make sure that discipline is carried out 
to avoid adverse operational effects. As General Sanchez learned during the Abu 
Ghraib abuse scandal, a failure of discipline can be just as bad as a defeat on the 
battlefield. 17 

Applying domestic law to disciplinary matters creates challenges for all coalition 
commanders, especially with respect to situations that arise during specific opera- 
tions. Since Operation Desert Shield in 1990, US forces deployed for a contingency 
operation generally operate with some form of "General Order #1" applicable to 
all components of the American contingent. 18 Such orders are typically issued at 
the beginning of an operation and may limit the actions of troops for policy rea- 
sons. They limit, for example, the ability of troops to consume alcohol in certain lo- 
cations. While US troops often are prohibited from drinking alcohol, other troops 
may be free to do so. A US soldier is likely to be punished for drinking, while her 
British friend might not. It is just another area where coalition partners may differ 
and may present complications for US commanders. 

The US illustrations, above, highlight some of the international and domestic 
law challenges faced by coalition commanders and their legal teams when tackling 
the question of "which law governs?" We now move to the individuals who can as- 
sist commanders to effectively accomplish the coalition mission within the com- 
pass of the law. 

Legal Support to Commanders: The Role of Lawyers in the Coalition 

The types of legal support commanders receive vary greatly between the coalition 
members. Although General Jones would not go to war without a dozen or so law- 
yers, many coalition partners do not have judge advocates (JAG) 19 or do not train 
them on the various aspects of operational law. In many cases, their legal advisors 
are not even deployed forward with the troops they service. For operations law, 
many coalition partners have to rely on civilian attorneys back in their nation's 
capital for advice on complex and ever-changing operational issues. However, 
when coalition JAGs do deploy together, great things can happen. 

Bright Star 99/00 — a biannual exercise held in Egypt 20 — was a perfect example 
of coalition JAGs working together. The 1999/2000 exercise brought together mili- 
tary lawyers from the United States and Britain into a coalition warfare setting. The 

225 



Legal Issues in Coalition Warfare: A US Perspective 

coalition JAGs bring their knowledge of their nations' domestic law and policy to 
the table and help educate other JAGs on why they cannot engage in certain opera- 
tions or use certain weapons. This is a reason we like to see robust, international 
JAG participation in coalition operations. 

In the United States, and for coalition partners as well, JAGs must have more 
and more knowledge about areas beside the law. JAGs need to know the weapon 
systems that are being used, how they are being used, and the overall strategy for a 
particular operation. They also need to understand the complex and intricate com- 
mand and control environment in which they operate. 

How do US JAGs cope with the issues they face in operations, especially serving 
in Coalition Air Operations Centers (CAOC)? All JAGs that deploy to CAOC posi- 
tions are required to attend a six- week-long training program on the computer sys- 
tems and methodologies used to run a CAOC. This is not a JAG-specific course, 
but one attended by all specialties who serve in the CAOC. It enables them to learn 
how things are done and what attributes each career field brings to the fight. 

In contrast to the increased training and resources available for US JAGs, many 
coalition partners do not have the access to high-tech systems found in the CAOC 
to enable them to provide effective oversight to operations. Nor do all coalition 
lawyers receive training in the complex and fast-paced conduct of modern warfare. 
Unfortunately, this may be leading to a tech and training gap between US JAGs and 
our coalition partners that will need to be addressed. 

What about friendly fire cases? As the United States saw with the Tarnak Farms 
"friendly fire" case, this can cause both political and operational problems. Tarnak 
Farms was an incident in Afghanistan where US aircraft mistakenly bombed Cana- 
dian ground forces. Canadian and US military lawyers were deeply involved in in- 
vestigating and advising commanders after this unfortunate incident. Legal issues 
ranged from LOAC to discipline to release of information. These are difficult ques- 
tions that still need more thoughtful study. 

Another challenge facing the United States is how to respond to allegations of 
LOAC violations. Unfortunately, in conflicts innocent civilians will be harmed. 
The United States must maintain a transparent approach to its targeting especially 
in the media-intense world. US targeting philosophies and the lengths we go to in 
order to avoid unnecessary casualties need to be highlighted and available to the 
media. When incidents occur, reports should be made available for the media and 
the general public so nothing is hidden. In addition to being an integral part of the 
targeting process, JAGs must be prepared to advise commanders and military 
spokespersons on alleged LOAC violations. 

What roles to JAGs play in modern conflict? Michael Sirak in Janes Defence 
Weekly suggests that JAGs are the ones who determine what weapons are built, the 

226 



Charles Dunlap 



bombs, and their targets. 21 The reality for US forces is that JAGs are advisors — 
commanders make the decisions about weapons and targets. 22 Effective legal sup- 
port to coalition forces is critical in this age of complex legal challenges, but law- 
yers should not and cannot displace commanders as decision-makers. 

Lawfare: An Asymmetrical Threat to Coalitions 

Besides being a foundation for how we operate, the law is being used as a weapon 
by our adversaries. As Rivken and Casey said in 2001, "international law may be- 
come one of the most potent weapons ever deployed against the United States." 23 
Our enemies, as William Eckhardt said, are now attacking our military plans as 
being illegal and immoral. Our laws have become a new Clausewitzean "center of 
gravity." 24 

This is a new form of asymmetrical warfare I call "lawfare." 25 As more and more 
adversaries learn they cannot go up against our coalition forces on the battlefield, 
they have moved to attack us through the law to achieve their operational objec- 
tives. However, not all lawfare is "bad" and the United States applies it when neces- 
sary, like controlling the cameras on commercial satellites with coverage areas over 
Operation Iraqi Freedom/Operation Enduring Freedom bases. Such control is 
achieved through the use of law, not the use of force. Lawfare, as I use this term, is 
an operational methodology that can be used for "good" or "bad" purposes. 

Our adversaries often employ an abusive form of lawfare aimed at undermining 
the kind of public support democracies need to conduct military operations. It 
very much has a Clausewitzean basis. When we talk about Clausewitz, we are talk- 
ing about the "remarkable trinity" that coalesces to create warfighting potential: 
the government, the people, and the military. America's typical approach to con- 
flict is to focus its energy and effort against the military capability of the enemy. 
Using lawfare, adversaries are not trying to defeat the United States militarily; they 
seek to separate the people from the trinity and erode their will for the conflict. 
How do they erode the will of the people? 

One way is to use actual or perceived LOAC violations. By repeatedly character- 
izing military actions as illegal and immoral, for example declaring LOAC viola- 
tions, the enemy's objective is to cause the people to grow weary of war and begin 
to question the military and government's conduct. Increasingly, organizations 
and forums are facilitating these messages so the enemy has a variety of ways to 
spread the word. As technology continues to develop in the 21st century, so too do 
new means of spreading information. Our adversaries have been quick to utilize 
the Internet and the power of the globalized media to spread their message. 



227 



Legal Issues in Coalition Warfare: A US Perspective 

Another strategy that we have seen is actually goading coalition forces into com- 
mitting LOAC incidents that would have strategic impact on our operations. For 
example, bin Laden has attempted to exploit the fact that women and children 
were victims of collateral damage in an effort to ensnare the United States into a 
larger East-West conflict, further inflaming Muslim opinion against the United 
States and other friendly nations, including those in the Persian Gulf. 26 Our ene- 
mies know that the secret to any democratic society is to get their message to the 
people and the people will respond. 

We have also seen Iraqi forces that feigned surrender and then turned to at- 
tack. 27 These incidents occurred frequently, causing coalition and civilian casual- 
ties. The enemy's perfidy created an environment in which US troops have been 
known to shoot first and ask questions later when they encounter surrendering in- 
dividuals. However, the television -viewing public sees only the US conduct. The 
more we see incidents like this, the more people believe the war is being wrongly 
fought. Professors W. Michael Reisman and Chris T. Antoniou explain: 

In modern popular democracies, even a limited armed conflict requires a substantial 
base of public support. That support can erode or even reverse itself rapidly, no matter 
how worthy the political objective, if people believe that the war is being conducted in 
an unfair, inhumane, or iniquitous way. 28 

However, this does not mean that democracies are at a disadvantage in future 
wars. In fact, history proves that those nations that comply with the accepted 
norms of behavior in warfare are more successful than those nations that wage war 
against civilians. 

Coalitions must develop strategies to counter lawfare; just as they must be pre- 
pared to fight any asymmetrical attack. Foremost, every coalition partner must be 
committed to complying with the law. Participating nations should strive to har- 
monize their interpretation and application of LOAC, despite the legal and politi- 
cal challenges of doing so. Many of these issues are for the civilian leadership to 
tackle. Yet, commanders, with their lawyers, can emphasize common ground 
among coalition forces and be ready to respond to lawfare through transparency 
and prompt public response. 

Coalition Warfare: A Synchronization of Legal Issues 

Nations with a stunningly broad range of operational capabilities and legal sys- 
tems have joined the United States in a number of military operations. Integrating 
these diverse forces into an effective coalition requires more than coordination of 



228 



Charles Dunlap 



military plans, objectives, and logistics. It requires orchestration of each nation's 
interpretation and application of law. 

I have tried to present a US perspective on some of the legal challenges faced by 
modern coalitions. Far from being secondary, domestic law and policy are at the 
heart of different legal perspectives, from LOAC to the legal services provided by a 
nation to its commanders. The United States views its legal obligations and chal- 
lenges through this lens, which neither discounts nor minimizes the importance of 
international law. In addition to confronting legal issues between coalition part- 
ners, the coalition must be prepared to counter the enemy's lawfare. In the highly 
complex environment of coalition warfare, synchronization of legal issues is criti- 
cal to operational success. 

Notes 

1. Lyric Wallwork Winik, A Marine's Toughest Mission (Gen. James L. Jones), PARADE 
MAGAZINE, Jan. 19, 2003. General Jones is the Supreme Allied Commander, Europe. 

2. Compliance with the Law of Armed Conflict, Air Force Policy Directive 51-4 (Apr. 26, 1993). 
Paragraph 6.4, defines LOAC as "All international law which concerns the conduct of hostilities 
during armed conflict and is binding on the United States or US citizens. It includes 
international treaties and agreements to which the United States is a party as well as customary 
international law. These treaties include the 1949 Geneva Conventions and the 1907 Hague 
Conventions and Regulations, among others." 

3. For information about the A- 10 aircraft, see http://www.af.mil/factsheets/factsheet.asp 
?fsID=70. 

4. See generally, Depleted Uranium Education Project, http://www.iacenter.org/depleted/ 
du.htm (last visited July 14, 2006); contra, see Jim Garamone, Study Finds Little Risk From 
Depleted- Uranium Particles, Armed Forces Information Service, Oct. 19, 2004, available at http:/ 
/www.defenselink.mil/news/Oct2004/nl0192004_2004101903.html (last visited July 14, 2006). 

5. At least 15 significant LOAC treaties have come into force since 1948. See DOCUMENTS ON 
THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000). 

6. The four Geneva Conventions of August 12, 1949, are the Geneva Convention for the 
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva 
Convention I), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of 
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II), 75 
U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War (Geneva 
Convention III), 75 U.N.T.S. 135; and Geneva Convention Relative to the Protection of Civilian 
Persons in Time of War (Geneva Convention IV), 75 U.N.T.S. 287. All reprinted in DOCUMENTS 
ON THE LAWS OF WAR, supra note 5, at 197, 222, 244 and 301, respectively. The two Protocols 
Additional to the Geneva Conventions of 1949 are the 1977 Additional Protocol to the Geneva 
Conventions of 1949, and Relating to the Protection of Victims of International Armed Conflicts 
(Additional Protocol I), June 8, 1977, 1125 U.N.T.S. 3, reprinted in id. at 422; and the 1977 
Additional Protocol to the Geneva Conventions of 1949, and Relating to the Protection of 
Victims of Non-International Armed Conflicts (Additional Protocol II), June 8, 1977, 1125 
U.N.T.S. 609, reprinted in id. at 483. 



229 



Legal Issues in Coalition Warfare: A US Perspective 

7. The United States is not a party to the Additional Protocols; however, to the extent that 
certain provisions of the Protocols reflect customary international law or existing law under the 
Geneva Conventions of 1949, the United States adheres to those provisions. For a discussion on 
the US views concerning the Additional Protocols, see Michael J. Matheson, The United States 
Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 
1949 Geneva Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW & 
POLICY 419 (1987). 

8. The technical title of the Ottawa Convention is the Convention on the Prohibition of the 
Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, 
Sept. 18, 1997, 36 INTERNATIONAL LEGAL MATERIALS 1507, reprinted in DOCUMENTS ON THE 
LAWS OF WAR, supra note 5, at 648, available at http://www.icrc.org/ihl (last visited Mar. 1, 
2006). 

9. For information about the ICC, see http://www.icc-cpi.int/about.html (last visited Mar. 1, 
2006). 

10. For information about Article 98, see http://www.state.gOv/t/pm/art98/ (last visited July 14, 
2006). 

11. See e.g., Rumsfeld Sued for War Crimes in Germany, DEUTSCHE WELLE, Nov. 30, 2004, 
available at http://www.globalresearch.ca/index.php?context=viewArticle&code=20041 130 
&articleld=269 (last visited Mar. 1, 2006). 

12. Human Rights Watch, Civilian Deaths in the NATO Air Campaign (Feb. 2000), available at 
http://www.hrw.Org/reports/2000/nato/index.htm#TopOfPage (last visited Jul. 5, 2006). 

13. Office of the General Counsel, Department of Defense, DoD Law of War Program, DoD 
Directive 5100.77 (Dec. 9, 1998). Paragraph 4.1 states "The law of war obligations of the United 
States are observed and enforced by the DoD Components." 

14. Chairman of the Joint Chiefs of Staff Instruction 3 1 2 1 .0 1 A, Standing Rules of Engagement 
for U.S. Forces, Encl. A, para, l.c(l) at A-l (Jan. 15, 2000), available at http://www.fas.org/man/ 
dod-101/dod/docs/cjcs_sroe.pdf (last visited July 14, 2006). 

15. Id., para. 5.h, at A-5. 

16. For a brief discussion of sale, disposal, and transfer of defense articles and services, see US 
Air Force Judge Advocate General's Department, Air Force Operations & the Law: A Guide for 
Air & Space Forces, Ch. 48 (2002), available at http://www.au.af.mil/au/cpd/jagschool/press/ 
iodb/index.htm (last visited July 14, 2006). 

1 7. Tom Brokaw, National Broadcasting Corporation Nightly News, June 30, 2004, available at 
http://www.msnbc.msn.com/id/5333895 (last visited March 3, 2006). 

18. For an example of a General Order #1, see US Central Command, General Order Number 
1A, Prohibited Activities for U.S. Department of Defense Personnel Present Within the United 
States Central Command (USCENTCOM) AOR, December 19, 2000, available at http:// 
www.mnf-iraq.com/archive/regulations/gola.pdf (last visited July 14, 2006). 

19. In US usage, the term "judge advocate" refers to a legal advisor on the staff of a military 
commander. The United States designates the senior uniformed lawyer of each military Service 
as "Judge Advocate General," thus the common use of "JAG" to identify military lawyers. See 
Black's Law Dictionary 976 (4th ed. 1968). 

20. See US Department of Defense, Memorandum for Correspondents, No. 143-M, Sept. 14, 
1999, available at http://www.defenselink.mil/news/Sepl999/m09141999_ml43-99.html (last 
visited July 14, 2006). 

21. Michael Sirak, Fighting by the Rules: Debating the Laws of War on the Unconventional 
Battlefield, JANE'S DEFENCE WEEKLY, Jan. 14, 2004. 



230 



Charles Dunlap 



22. This has been codified in Chairman of the Joint Chiefs of Staff Instruction 58 10. IB, 
Implementation of the DOD Law of War Program (Mar. 22, 2002), available at http:// 
www.dtic.mil/cjcs_directives/cdata/unlimit/5810_01.pdf, which mandates that JAGs provide 
advice to commanders at all operational levels. 

23. David Rivkin & Lee Casey, The Rocky Shoals of International Law, THE NATIONAL INTEREST, 
Winter 2000/2001, at 35, extract available at http://ontology.buffalo.edU/smith//courses01/rrtw/ 
Rivkin.htm (last visited July 14, 2006). 

24. William G. Eckhardt, Lawyering for Uncle Sam When He Draws His Sword, 4 CHICAGO 
Journal of International Law 431 (2003). 

25. See Charles J. Dunlap, Jr., Law and Military Interventions, Working Papers, Carr Center for 
Human Rights Policy, Harvard University, Nov. 29, 2001 available at http:// 
www.ksg.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Force/ 
Dunlap2001.pdf (last visited July 14, 2006). 

26. Lisa Beyer, Osama 's Endgame; His aims are clear — to expel the U. S. from the Islamic world and 
unite Muslims in one empire, TIME, Oct. 15, 2001, at 17. 

27. Ron Harris, Surprise attacks by Iraqis who "surrendered" turn military's mood mean, ST. 
LOUIS POST-DISPATCH (Missouri), Mar. 25, 2003, at Al. 

28. W. Michael Reisman & Chris T. Antoniou, The Laws Of War xxiv ( 1994) (emphasis 
added). 



231 



XI 



"England Does Not Love Coalitions" 
Does Anything Change? 



Charles Garraway* 



My title comes from a quote from Benjamin Disraeli, speaking in the House 
of Commons on December 16, 1852. 1 In 1852, Victoria was on the throne 
of England and Abbott Lawrence was the United States Ambassador to the Court 
of St. James. Lawrence was born at Groton, Massachusetts, not too far from the 
Naval War College, and is the founder of Lawrence, Massachusetts and of the Law- 
rence Scientific School at Harvard. The British Empire was at its height in 1852 and 
on it the sun never set. Livingstone was setting out on his journeys into the African 
hinterland. This was two years before the start of the Crimean War; British forces 
were fighting in Burma; the Punjab had just been annexed and gold had been dis- 
covered in a remote prison colony called Australia. Disraeli was not yet Prime 
Minister — that was yet to come. He was Chancellor of the Exchequer — Treasury 
Secretary in US terms. 

But what did Disraeli mean by "coalition"? I have not been able to find an 1852 
English dictionary and I therefore take my definition from my old copy of the Con- 
cise Oxford Dictionary (which still bears my school particulars in the front cover!). 
This reads: "Coalition, n. Union, fusion; (Pol.) temporary combination for special 
ends between parties that retain distinctive principles." 2 



* Visiting Professor at King's College, London and an Associate Fellow of Chatham House. 



"England Does Not Love Coalitions" - Does Anything Change? 

Why, therefore, did England not love coalitions? I would suggest that the problem 
is similar to that facing the United States today. Britain at that time did not need co- 
alitions — except, as it soon found out in the Crimea, in Europe. In the rest of the 
world, it was supreme and could act as it liked. A coalition, by my definition, is a 
"temporary combination for special ends between parties that retain distinctive prin- 
ciples." The problem is not so much in the "temporary combination" as in the "dis- 
tinctive principles." For a coalition to work, those "distinctive principles" must be at 
least similar. If there is no "coalescing" there, there can be no "coalition." In Europe, 
coalitions came and went as principles coalesced in certain fields and then parted 
again. The Crimean War itself was a classic example where British and French inter- 
ests in stopping Russian expansion led to a temporary coalition between countries 
that less than half a century before had been locked in bloody conflict. 

Modern history is full of talk of coalitions. The most relevant here is that of the 
"United Nations" — not the modern entity, but the group of countries that came to- 
gether in the 1940s to stand up to tyranny and fascism. That metamorphosed into the 
North Atlantic Treaty Organization (NATO) alliance where the need to hold the 
Communist bear in check outweighed the "distinctive principles" of the different 
countries involved. The collapse of the Soviet Union and the end of the Cold War has 
led to the balance shifting and more emphasis now being on the "distinctive princi- 
ples" rather than the common purpose. It is the new World Superpower that now 
states that it has no love for coalitions. Joseph Fitchett of the International Herald 
Tribune writing in 2002 in European Affairs, talks of "[t]he dismissive attitudes that 
have recently seemed to prevail in Washington toward NATO, ranging from benign 
neglect during the Afghan campaign to forthright dislike for coalition warfare in the 
comments of some Pentagon officials." 3 

Yet, as the British found less than two years after Disraeli's dismissive comment, 
coalitions are a necessary evil when the interests of the differing parties combine suf- 
ficiently to outweigh the differences in the principles. But does that mean that the dif- 
ferences are removed or set aside? No. The distinctiveness of each coalition partner 
remains and ways are found of working around the differences without prejudicing 
the position of any of the partners. That is difficult and requires compromise on all 
sides. It is that need for compromise that superpowers — whether Great Britain in the 
mid- 19th century or the United States in the 21st century — find so difficult. 

What I would like to examine is the way that we have reached the current state of 
affairs and then look at two specific areas of apparent disagreement between the 
United States and some of its major Allies. I will also try to see whether these "dis- 
tinctive principles" are in fact distinctive and, if so, whether they can be worked 
around. Those two specific areas are the impact of Additional Protocol I 4 and of human 
rights law. 

234 



Charles Garraway 



Ambassador James B. Cunningham, United States Deputy Permanent Represen- 
tative to the United Nations, speaking in the Security Council on September 24, 2003 
on Justice and the Rule of Law in International Affairs, stated: 

The United States of America is a nation founded, not upon ethnicity or cultural custom 
or territory, but upon law enshrined in our Constitution. As a consequence, establishing 
and maintaining the rule of law has been an enduring theme of American foreign policy 
for over two centuries. Notably, the U.S. Constitution specifically provides that treaties 
shall be the supreme law of the land. We therefore do not enter into treaties lightly 
because we believe the importance of the rule of law to a successful system of peace 
cannot be overstated. Democracy, justice, economic prosperity, human rights, 
combating terrorism, and lasting peace all depend on the rule of law. The rule of law is 
essential to fulfill the ideas behind the UN Charter we are all pledged to support. 5 

I make this point right at the start because it is often overlooked. The United States 
is a country founded on and believing in the rule of law. The very fact that debate to- 
day in political circles often centers on that phrase is an illustration of how funda- 
mental it is to the American psyche. The United States does not only recognize the 
validity of the rule of law in the domestic sphere but also in the international sphere 
as Ambassador Cunningham makes plain. It is therefore of vital importance to those 
who work with and alongside the United States to understand where, in the opinion 
of the United States, that law exists and what it is. However, what is good for the 
goose is also good for the gander and it is just as vital that the United States under- 
stands the laws that govern the activities of their Allies. It would not be appropriate 
for the United States to demand that their Allies act outside the law that binds them, 
even if that law is not binding on the United States. Such a demand would make a 
mockery of the rule of law as a concept. 

This was recognized by the United States in the early 1990s, and in particular in 
Operation Desert Storm. Although Additional Protocol I did not apply as a matter of 
treaty law because Iraq was not a party (nor at the time were the United States, the 
United Kingdom or France), it was recognized by the United States that many of the 
provisions of that Protocol were seen as binding law by some of the Coalition forces. 
Indeed, the Final Report to Congress on the Conduct of the Persian Gulf War of April 
1992, in Appendix O, The Role of the Law of War, discusses Additional Protocol I at 
some length, confirming that parts are "generally regarded as a codification of the 
customary practice of nations, and therefore binding on all." 6 However, the Report 
also confirms the US view that parts of the Protocol are not such a codification and 
seeks to identify specific "deficiencies" therein. 7 

There are frequent approving references to specific articles of Additional Proto- 
col I throughout Annex O and, under "Observations," the remark is made that 



235 



"England Does Not Love Coalitions" - Does Anything Change? 

"Adherence to the law of war impeded neither Coalition planning nor execution; 
Iraqi violations of the law provided Iraq no advantage." 8 

This very practical approach mirrored that taken by President Reagan in his Letter 
of Transmittal of Additional Protocol II (Non-International Armed Conflict) to the 
Senate on January 29, 1987, 9 when he announced that he would not seek Senate ad- 
vice and consent to Additional Protocol I, describing it as "fundamentally and irrec- 
oncilably flawed." 10 However, he referred to the Protocol as containing "certain 
sound elements" and to "the positive provisions of Protocol I that could be of real 
humanitarian benefit if generally observed by parties to international armed con- 
flicts." He went on to state: 

We are therefore in the process of consulting with our allies to develop appropriate 
methods for incorporating these positive provisions into the rules that govern our 
military operations, and as customary international law. I will advise the Senate of the 
results of this initiative as soon as it is possible to do so. 11 

In fact, that initiative had been under way since the adoption of the Protocols, 
with a NATO working group looking at possible agreed reservations which would 
enable the Alliance to adopt a united front. Unfortunately, that process seemed to go 
on for too long for some European States, who broke ranks and ratified Protocol I 
while negotiations were still continuing, adopting some — but not all — of the NATO 
working group reservations. For example, and I am not seeking to isolate any partic- 
ular State, Belgium, who ratified in 1986, prior to the Reagan transmittal, made "in- 
terpretative declarations" on Article 44 and Article 1(4), the two areas of particular 
concern identified by the United States. While the former was in accordance with the 
NATO formula, that on Article 1(4) was in less stringent terms. 12 The statements 
made by the United Kingdom on its ratification in 1998 probably bear the closest re- 
semblance to the almost-agreed NATO position. 13 

Unfortunately, the failure of the NATO initiative seemed to bring an end to nego- 
tiation on a formal level though there was continuous contact among military law- 
yers, particularly those tasked with the drafting of military manuals. There were a 
series of meetings in various countries at which such issues were discussed and at- 
tempts were made to strike a common balance. In addition, Michael Matheson, then 
the Deputy Legal Adviser at the US Department of State, in a presentation made in 
1987 at the Washington College of Law, 14 provided a comparatively detailed analysis 
of Protocol I indicating those areas which the United States found acceptable and 
those that it did not. 

Although, as we have seen, Additional Protocol I was considered and tested dur- 
ing Desert Storm, the tide in the United States was already beginning to turn against 



236 



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the treaty. There had always been a strong element within the United States that op- 
posed any compromise, illustrated by Douglas Feith's writing in 1985. 15 On the other 
hand, the military, who actually had to work in the field, were seeking to adopt the 
Reagan approach and to develop "appropriate methods for incorporating these posi- 
tive provisions into the rules that govern our military operations." The problem that 
the military faced was in identifying those "positive provisions" in the absence of any 
clear government position. The military inevitably turned to the only guidance that 
they could find, namely the Matheson article, and this found its way into military 
manuals of all the Services. There are frequent references to parts of Additional Pro- 
tocol I, such as in the Annotated Supplement to The Commander's Handbook on the 
Law of Naval Operations (NWP 1-14M), 16 usually citing Matheson as the authority. 
For example, in referring to Article 54( 1 ) of Additional Protocol I creating a new pro- 
hibition on the starvation of civilians as a method of warfare, NWP 1-14M states that 
this is a prohibition that "the United States believes should be observed and in due 
course recognized as customary law," citing Matheson. 17 The Operational Law 
Handbook of the Army Judge Advocate General's Corps 18 went further, publishing in 
detail a list of the articles which "the U.S. views ... as either legally binding as custom- 
ary international law or acceptable practice though not legally binding." 19 This type 
of detail appeared in the Handbook from 2000 to 2003 but was omitted in 2004. It re- 
appeared in 2005, 20 only to be overtaken by an Errata note stating that the entry 
should be "disregarded." This note went on to state that "Information was taken 
from an Article written by Michael Matheson in 1986. It takes an overly broad view of 
the U.S. position and as a result may cause some confusion as to U.S. Policy." 21 This 
followed an article by Hays Parks in 2003 in which in a footnote he had stated that 
Michael Matheson had expressed "his personal opinion that 'certain provisions of 
Protocol I reflect customary international law or are positive new developments 
which should. . . become part of that law'." 22 In fact, the full text of that paragraph of 
Matheson's article reads: 

The executive branch is well aware of the need to make decisions and to take action on 
these issues. We know from our conversations with our allies that there is a shared 
perception, particularly among North Atlantic Treaty Organization (NATO) countries, 
of a strong military need for common rules to govern allied operations and a political 
need for common principles to demonstrate our mutual commitment to humanitarian 
values. We recognize that certain provisions of Protocol I reflect customary international 
law or are positive new developments which should in time become part of that law. 23 

This should be read together with his opening statement that: "I appreciate the 
opportunity to offer this distinguished group a presentation on the United States po- 
sition concerning the relationship of customary international law to the 1977 

237 



"England Does Not Love Coalitions" - Does Anything Change? 

Protocols Additional to the 1949 Geneva Conventions." 24 It is hard to see this as re- 
flecting a personal statement. The Royal "we" went out in American English at the 
time of George III! 

So where are we now? It appears that the Matheson analysis is no longer consid- 
ered "authoritative." It is interesting in reading the so-called "Torture Memos," 25 to 
find the almost complete lack of reference to Additional Protocol I. It is as if it has 
been wiped out of the memory bank. It is no longer even clear whether the United 
States accepts such key provisions as Article 75 on Fundamental Guarantees, of 
which Matheson had said: "We support in particular the fundamental guarantees 
contained in article 75. . . ." 26 

This lack of legal clarity causes acute problems for Allies seeking to work alongside 
the United States. Quite apart from the issues arising from targeting decisions — what 
is the US definition of a military objective? — serious issues arise over detainee han- 
dling. If the United States is not prepared even to accept the fundamental guarantees 
of Article 75, it is hard to see how allies can hand over detainees to the custody of the 
United States. This is before one takes into account the presidential decision that 
Common Article 3 to the Geneva Conventions does not apply outside non-interna- 
tional armed conflict. 27 While this may be correct as a matter of treaty law, it is now 
generally accepted that, in the words of the International Court of Justice, "there is 
no doubt that, in the event of international armed conflicts, these rules [Common 
Article 3] also constitute a minimum yardstick. . . ." 28 

My point here is not to criticize the United States decision not to ratify Additional 
Protocol I. That is an acceptable position. However, the existence of the Protocol 
cannot be ignored, nor the fact that the majority of the United States' traditional al- 
lies are parties to it, including the United Kingdom, Japan and Australia. 29 You will 
note that I have omitted other parts of "Old Europe" such as France and Germany 30 
though in fact almost all the NATO States are indeed parties. 31 We need to know 
what the United States position is and uncertainty simply undermines the trust that 
is vital for coalition operations. I appreciate that the role of customary international 
law — and even its very existence — is sometimes questioned within the US govern- 
ment. 32 However, it should still be possible for the Administration to publish in an 
authoritative form its stance on the provisions of Additional Protocol I which at least 
will allow a baseline from which others can work. It is to be hoped that the planned 
law of war manual under preparation in the Office of General Counsel of the US De- 
partment of Defense will in fact do exactly that and for that reason, if for no other, I 
would urge its early completion. As Michael Matheson noted, "The United States 
[must] give some alternative clear indication of which rules they consider binding or 
otherwise propose to observe." 33 Indeed he went on to put it even more clearly: "It is 
important for both the United States government and the United States scholarly 

238 



Charles Garraway 



community to devote attention to determining which elements in Protocol I deserve 
recognition as customary international law, either now or in the future." 34 That was 
true in 1987 and remains true today. If Matheson saw his effort as "work in progress," 
it needs to be completed. 

My second point is the increasing role of human rights law. Again there is a grow- 
ing divide between the United States and, in particular, Europe — and not just "Old 
Europe." The European Convention for the Protection of Human Rights 35 has prob- 
ably the most effective enforcement mechanism of any human rights organization in 
the world. The European Court of Human Rights passes binding judgments and 
presents a progressive interpretation of human rights law. Whether one agrees with 
that approach or not, it is a fact. 

The Convention requires parties to "secure to everyone within their jurisdiction 
the rights and freedoms" contained in the Convention. 36 Jurisdiction has been inter- 
preted widely and it has been ruled that although the application of the Convention is 
primarily territorial, extraterritorial jurisdiction is not ruled out, inter alia, "when the 
respondent State, through the effective control of the relevant territory and its inhab- 
itants abroad as a consequence of military occupation or through the consent, invita- 
tion or acquiescence of the Government of that territory, exercises all or some of the 
public powers normally to be exercised by that Government." 37 The United King- 
dom courts have interpreted that as allowing the application of the Convention to 
some activities in Iraq. 38 

There is a difference here from the wording of the International Covenant on Civil 
and Political Rights which requires States to grant rights to "all individuals within its 
territory and subject to its jurisdiction." 39 This clearly seems to lay down a two-part 
test which is lacking in the text of the European Convention where jurisdiction alone 
is the standard. However, this has been interpreted as "those within its territory and 
those otherwise subject to its jurisdiction." 40 This interpretation was confirmed by 
the United Nations Human Rights Committee in General Comment 31, adopted 
March 29, 2004, when it stated, "A State Party must respect and ensure the rights laid 
down in the Covenant to anyone within the power or effective control of that State 
Party, even if not situated within the territory of the State Party." 41 

The United States position, however, appears to be to adopt the literal reading of 
the text and to limit the application of the Covenant to United States territory. This 
position is confirmed by the Working Group Report on Detainee Interrogations in 
the Global War on Terrorism which stated, "The United States has maintained con- 
sistently that the Covenant does not apply outside the United States or its special 
maritime and territorial jurisdiction, and that it does not apply to operations of the 
military during an international armed conflict." 42 



239 



"England Does Not Love Coalitions" - Does Anything Change? 

It is interesting to note that the American Convention on Human Rights, signed 
but not ratified by the United States, in Article 1, also refers to the obligation to en- 
sure rights "to all persons subject to their jurisdiction," thus equating to the language 
of the European Convention. 43 

Thus the first divergence of opinion is to the territorial applicability of human 
rights law. The United States considers that it is not bound in law to grant rights to 
persons within its jurisdiction if they do not meet the territoriality test. The Europeans — 
and many others — consider that, while territoriality is a key factor, it is not the sole 
governing factor and that they are therefore obliged as a matter of law to extend cer- 
tain rights outside their own territory. 

But the quote from the Working Party also reveals another divergence. The 
United States view appears to be that in time of international armed conflict, human 
rights law is inapplicable and is replaced by the law of armed conflict. This was indeed 
an accepted view among many in the past and seemed to reflect the classic divide be- 
tween the law of peace and the law of war. But in the same way that the boundary be- 
tween peace and war itself has become blurred, so an analysis of the treaties 
themselves no longer supports the purist view. Article 4 of the International Cove- 
nant deals with derogations and provides for such "in time of public emergency 
which threatens the life of the nation and the existence of which is officially pro- 
claimed." Even then, there are certain rights that are non-derogable. 

The European Convention is even more specific referring in Article 1 5 to "in time 
of war or other public emergency threatening the life of the nation." In Article 15(2), 
it specifically states: "No derogation from Article 2 [the right to life] , except in respect 
of deaths resulting from lawful acts of war . . . shall be made under this provision." It 
is clearly not open to the European States to argue that the Convention does not ap- 
ply in time of war as it specifically caters for that eventuality. It is therefore necessary 
for them to examine how the two bodies of law mesh together in time of conflict. 

For purposes of completeness, the American Convention refers, in its derogation 
clause, to "war, public danger, or other emergency that threatens the independence 
or security of a State Party." 44 

The International Court of Justice has addressed this issue in a number of cases in- 
cluding the Nuclear Weapons case 45 and, most recently, the "Barrier" case involving 
the so-called "Wall in the Occupied Palestinian Territory." 46 

In the Nuclear Weapons case, the Court observed: 

[Tjhat the protection of the International Covenant of Civil and Political Rights does not 
cease in times of war, except by operation of Article 4 of the Covenant whereby certain 
provisions may be derogated from in a time of national emergency. Respect for the right 
to life is not, however, such a provision. In principle, the right not arbitrarily to be 



240 



Charles Garraway 



deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation 
of life, however, then falls to be determined by the applicable lex specialise namely, the law 
applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus 
whether a particular loss of life, through the use of a certain weapon in warfare, is to be 
considered an arbitrary deprivation of life contrary to Article 6 of the Covenant can only 
be decided by reference to the law applicable in armed conflict and not deduced from the 
terms of the Covenant itself. 47 

In the ''Barrier' case, the Court quoted from the Nuclear Weapons case and 
continued: 

More generally, the Court considers that the protection offered by human rights 
conventions does not cease in case of armed conflict, save through the effect of provisions 
for derogation of the kind to be found in Article 4 of the International Covenant on Civil 
and Political Rights. As regards the relationship between international humanitarian law 
and human rights law, there are thus three possible situations: some rights may be 
exclusively matters of international humanitarian law; others may be exclusively matters 
of human rights law; yet others may be matters of both these branches of international 
law. In order to answer the question put to it, the Court will have to take into 
consideration both these branches of international law, namely human rights law and, as 
lex specialise international humanitarian law. 48 

Lawyers operating with Allied countries have no choice but to wrestle with this 
complex interaction and find it difficult to understand the United States objections, 
particularly if they lead to presidential statements such as, "Of course, our values as a 
Nation, values that we share with many nations in the world, call for us to treat de- 
tainees humanely, including those who are not legally entitled to such treatment." 49 
(Emphasis added.) 

Is the president seriously suggesting that there are people who are not legally enti- 
tled to "humane treatment"? Indeed, this sits oddly with the words of the same presi- 
dent on his second inauguration when he said: "From the day of our Founding, we 
have proclaimed that every man and woman on this earth has rights, and dignity, and 
matchless value." 50 I agree with these words and the president is right, not least be- 
cause this is indeed the exact opposite of the doctrine preached by our terrorist oppo- 
nents. The United States has stood as a bastion for human rights since its founding. It 
was the United States that led the human rights movement in the early days and the 
Universal Declaration of Human Rights 51 itself had Eleanor Roosevelt as its guiding 
force. It was the United States who during the Cold War stood as a beacon of light of- 
fering a different vision to oppressed people. It is therefore unfortunate that the view 
being given to the world now is that only Americans have rights — the rest of the 
world has them only at the will of the United States! That is not the message of the 



241 



"England Does Not Love Coalitions" - Does Anything Change? 

Founding Fathers, nor is it the message of the president but "[i]f the trumpet give an 
uncertain sound, who shall prepare himself to the battle?" 52 

In the same way as there is confusion about the status of Additional Protocol I in 
the United States, so there is confusion on the applicability of human rights law to 
military operations. Whether we like it or not, the world is moving on and the United 
States is part — a big part — of that world. However, it is not so big that it can ignore 
what is going on in the rest of the world. Those of us who are wrestling with these 
knotty legal problems need the help and expertise that the United States can bring. 
Furthermore, if the United States wants to shape the legal landscape, it can only do so 
by a position of active involvement. There are many who are concerned with the 
manner in which human rights law is being used to reinterpret accepted principles of 
the law of armed conflict. The law of armed conflict reflects the realities of war in a 
way that human rights law does not — and was never designed to do. 

I come back to my definition of coalition: "temporary combination for special 
ends between parties that retain distinctive principles." 

The United States has distinctive principles but so do all its friends and allies. If a 
coalition is to work, all parties need to retain those distinctive principles. The fact 
that they exist — and are distinctive — cannot be ignored. If the United States wishes 
to impose its own distinctive principles on others, that is not a "coalition." Nor can 
we — or should we — , as allies, impose our own principles on the United States. How- 
ever, in recognizing that we do have differences, we need to work together to find 
ways of channeling those distinctive principles so that we move forward together. 
Our purpose is the same. 

Notes 

1. Hansard, Dec. 16, 1852, at Col. 1666. 

2. The Concise Oxford Dictionary of Current English (Henry W. Fowler & Francis G. 
Fowler eds., 4th ed. 1960) (1911). 

3. Joseph Fitchett, New NATO Force Could Help, Not Hinder Europe, 3 EUROPEAN AFFAIRS, (Fall 
2002), available at http://www.ciaonet.org/olj/ea/2002_fall/2002_fall_34.html. 

4. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts, Jun. 8, 1977, 1125 U.N.T.S. 3, reprinted in 
DOCUMENTS ON THE LAW OF WAR 422 (Adam Roberts & Richard Guelffeds., 3d. ed. 2000). 

5. United States Mission to the United Nations Press Release #147, Sep. 24, 2003, available at 
http://www.un.int/usa/03_147.htm. 

6. US Department of Defense, Conduct of the Persian Gulf War, Final Report to Congress, 
Appendix O at 0-13 (Apr. 1992). 

7. Id. at O- 15. 

8. Id. at 0-36. 

9. Reprinted in Agora: The U.S. Decision not to Ratify Protocol I to the Geneva Conventions on the 
Protection of War Victims, 81 AMERICAN JOURNAL OF INTERNATIONAL LAW 910 (1987). 

242 



Charles Garraway 



10. Id. at 911. 

11. Mat 91 1-912. 

12. These can be found in DOCUMENTS ON THE LAW OF WAR, supra note 4, at 501. 

13. Mat 510. 

14. See Michael J. Matheson, The United States Position on the Relation of Customary International 
Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AMERICAN UNIVERSITY 
Journal of International Law and Policy 415, 418 (1987). 

15. Douglas J. Feith, Law in the Service of Terror — The Strange Case of the Additional Protocol, THE 
National Interest, Fall 1985, at 36. 

16. Annotated Supplement to The Commander's Handbook on the Law of Naval 
OPERATIONS (A. R. Thomas & James Duncan eds., 1999) (Vol. 73, US Naval War College 
International Law Studies). 

17. Id., para. 8.1.2.1 n. 17, at 404. 

18. International and Operational Law Department, The Judge Advocate General's Legal Center 
& School, Operational Law Handbook. 

19. Id., 2001 version, at 10. 

20. Id., 2005 version, at 15. 

21. Errata Sheet dated Sep. 27, 2004, in id., 2005 version. 

22. Hays Parks, Special Forces' Wear of Non-Standard Uniforms, 4 CHICAGO JOURNAL OF 
International Law 519 n. 5 5 (2003). 

23. Matheson, supra note 14, at 421. 

24. Id. at 419. 

25. These have been compiled in THE TORTURE PAPERS — THE ROAD TO ABU GHRAIB (Karen 
Greenberg & Joshua Dratel eds., 2005). 

26. Matheson, supra note 14, at 427. 

27. White House Memo, Humane Treatment of Al Qaeda and Taliban Detainees, Feb. 7, 2002, 
reprinted in TORTURE PAPERS, supra note 25, at 134. 

28. MilitaryandParamilitaryActivities(Nicar.v.U.S.), 1986 I.C.J. 14, para. 218 at 104 (June 27). 

29. The United Kingdom ratified Additional Protocol I on January 28, 1998, Japan on August 31, 
2004, and Australia on June 21, 1991. 

30. France ratified Additional Protocol I on April 1 1 , 200 1 . Germany did so on February 14,1991. 

3 1 . Turkey is a notable exception. 

32. See e.g., US Department of Justice Office of Legal Counsel Memorandum for Alberto 
Gonzales, Counsel to the President, and William J. Haynes Jr., General Counsel of the Department 
of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, Jan. 22, 2002, 
reprinted in TORTURE PAPERS, supra note 25, at 81, 1 1 1-1 16. 

33. Matheson, supra note 14, at 420. 

34. Id. at 421. 

35. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 
4, 1950, 213 U.N.T.S. 222, reprinted in BASIC DOCUMENTS IN INTERNATIONAL LAW 244 (Ian 
Brownlie ed., 5th ed. 2002). 

36. W.,art. 1. 

37. Bankovic v. Belgium and Others, Case No. 52207/99, 123 INTERNATIONAL LAW REPORTS 94, 
para. 71 at 113 (2001). 

38. R (Al-Skeini and others) v. Secretary of State for Defence, Divisional Court, 2005 2 WEEKLY 
LAW REPORTS 1401 and Appeal Court, 2005 ALL ENGLAND REPORTS (D) 337 (December). 



243 



"England Does Not Love Coalitions" - Does Anything Change? 

39. International Covenant on Civil and Political Rights art. 2(1), G.A. Res. 2200, at 52, U.N. 
GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), reprinted in BASIC DOCUMENTS IN 
International Law, supra note 35, at 205, 206. 

40. See Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible 
Derogations, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL 
RIGHTS 73-75 (Louis Henkin ed., 1981). 

41. Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on 
States Parties to the Covenant, Mar. 29, 2004, U.N.Doc.CCPR/C/21/Rev.l/Add.l3 (2004). 

42. Working Group report on Detainee Interrogations in the Global War on Terrorism: 
Assessment of Legal, Historical, Policy and Operational Considerations, 6 Mar. 6, 2003, reprinted 
in TORTURE PAPERS, supra note 25, at 241, 243. 

43. American Convention on Human Rights art. 1, Nov. 22, 1969, 1 144 U.N.T.S. 123, reprinted in 
Human Rights: Documentary Supplement 374 (Louis Henkin et al. eds., 2001). 

44. Id., art. 27. 

45. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8). 

46. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 

Advisory Opinion, 2004 I.C.J. (9 July), available at http://www.icj-cij.org/icjwww/idocket/ 

imwp/imwpframe.htm. 

47. Nuclear Weapons, supra note 45, para. 25 at 240. 

48. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra 
note 46, at para. 106. 

49. White House Memo, supra note 25, at 134. 

50. Inauguration speech of President George W. Bush, Jan. 20, 2005, available at http:// 
www. whitehouse.gov/news/releases/2005/0 1/20050 1 20- 1 .html. 

51. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. 
mtg., U.N. Doc A/810 (Dec. 10, 1948), reprinted in BASIC DOCUMENTS IN INTERNATIONAL LAW, 
supra note 35, at 192. 

52. 1 Corinthians 14:8 (King James). 



244 



XII 



Coalition Warfare: 
Challenges and Opportunities 



Dale G. Stephens 



-k 



When planning for coalition warfare, the military lawyer is concerned with 
achieving effective interoperability under applicable international and 
domestic law. In the modern context of "coalitions of the willing," this essentially 
means achieving a harmonization of rules of engagement (ROE) with the lead na- 
tion, having regard to the specific taskings and missions the coalition partners have 
assumed. Usually (but not always) the lead nation in conducting serious global op- 
erations in the contemporary environment is the United States. As is well known, 
the United States has asserted formally that it is not prepared to sign and ratify a 
number of treaties applicable in the context of armed conflict 1 and has been consis- 
tently critical of the "progressive" nature of a number of assertive statements of 
customary law heralded by some. 2 Therein lays the obvious, but "ostensible" chal- 
lenge, for coalition military partners in trying to ensure operational effectiveness 
when operating under potentially divergent legal regimes. The word "ostensible" is 
emphasized, because at the working officer level of coalition warfare, there is much 



* Commander, Royal Australian Navy. The views expressed in this article are those of the author 
alone and do not necessarily represent the views of the Australian Government, the Australian 
Defence Force, or the Royal Australian Navy. This article was first published in volume 36 of the 
Israel Yearbook on Human Rights (2006) and is reprinted with permission. © 2006 by Dale G. 
Stephens. 



Coalition Warfare: Challenges and Opportunities 

more commonality of approach than what one might expect notwithstanding the 
stridency of statements sometimes made as to national divergence under the law. 
It is a theme of this article that coalition operations are frequently successful 
due to the pragmatic approach taken to interpreting the law by coalition partners. 
This is not to suggest any subversion of the law, but rather reflects choices made by 
coalition partners to intelligently accommodate differing legal approaches among 
them for the common good. This success is also due to the nature of the law itself, 
which is generally cast in terms of "standards" as opposed to "bright line" rules 
and thus is more usually predicated upon the invocation of "values" by the mili- 
tary decision-maker. Within this interdependent world, such values are more con- 
vergent and synonymous with those of society at large than what many outside of 
the military may think. 

Modes of Analysis — Formalism 

There are, of course, a number of ways in which to assess the issue of coalition 
interoperability under the law. At the immediate or formalist level, one can merely 
compare treaties ratified by coalition partners and statements of customary law 
made by such partners to determine who is able to do what in the course of a cam- 
paign and to orchestrate missions accordingly. Of course, this assumes the absence 
of a single consensus standard to which all will comply, which in terms of coalitions 
of the willing, is a relatively safe assumption. 3 

From this formalist position, we are faced with some obvious direct inconsis- 
tency issues under international law. The Ottawa Land Mines Convention 4 is the 
classic example of such inconsistency, especially Article 1(c) which provides that 
"Each State Party undertakes never under any circumstances: to assist, encourage 
or induce, in any way, anyone to engage in any activity prohibited to a State Party 
under this Convention." 5 US allies such as Australia, Canada, Germany, Japan, 
New Zealand and the United Kingdom 6 have all signed and ratified this treaty. 
Having regard to the literal wording of the obligations imposed, mission taskings 
by such signatories could not, for example, contemplate the tactical level carriage 
of US forces or refueling of US assets where such forces or assets are carrying and/ 
or contemplate the use of anti-personnel landmines. 7 Additionally, a number of 
US allies have assumed obligations under the International Criminal Court 
Statute 8 and under the 1980 Conventional Weapons Convention and its five Pro- 
tocols. 9 The United States is not a party to the International Criminal Court treaty 
nor to two of the five Conventional Weapons Convention Protocols. 10 Again, these 
disparities have their own dynamics regarding tactical level mission taskings. 



246 



Dale G. Stephens 



Such dissonance is also found in differing interpretations of customary interna- 
tional law. The potential dichotomy between the definitions "war sustaining" un- 
der the US Commander's Handbook on the Law of Naval Operations 11 and 
"effective contribution to direct military action" under the San Remo Manual on 
International Law Applicable to Armed Conflicts at Sea 12 is one such obvious area. 

Similarly, those who have ratified Additional Protocol I 13 are bound by a num- 
ber of provisions that the United States is not. For example, Article 56 with its prohi- 
bition on attacking dams, dikes and nuclear electrical generating stations is one 
where the United States has stressed its opposition as a ground for non-ratification. 14 
Similarly divisive is the issue of belligerent reprisal. Article 51(6) of Additional Pro- 
tocol I expressly prohibits attacks on civilians. Such a constraint does not, however, 
apply to US forces under US formulations as to the residual scope of this right pur- 
suant to customary international law. 15 Such differences in obligation are real and 
are necessarily reflected in default statements of national ROE and "red card" di- 
rectives to coalition commanders. 16 

Under the formalist paradigm, all of this would seem to render the chance of ef- 
fective interoperability very difficult, if not impossible. But of course this has not 
been the case. In recent years, coalition forces have participated with the United 
States in numerous operations without any serious compromise to mission effec- 
tiveness. Coalition operations during Operations Desert Shield and Desert Storm, 
during operations in Somalia, in East Timor, in Afghanistan and during Operation 
Iraqi Freedom are, in fact, a testament to coalition effectiveness under the law. 
Why is this so? The answer to this question lies not in a formalist paradigm of the 
law, but rather resides in a realist critique of formalism. 

Realist Critique 

The theme of this essay is that effective legal interoperability is possible, indeed 
very common, despite the impression of grave differences of view. This is not a 
unique observation. Colonel David Graham, JAGC, US Army (Ret.) has previously 
addressed this theme 17 and has put forward a number of explanations for why this 
may be so. Firstly, he offered the proposition that while US allies had ratified these 
treaties, they had submitted a number of agreed-upon reservations or declarations 
that effectively achieved a common understanding of application. 18 Secondly, Col- 
onel Graham highlighted the extensive consultation and sharing of military law 
manuals that has happened in more recent times, which have prompted a greater 
socialization of concepts. 19 Finally, he stressed the operational significance of mul- 
tilateral ROE development on operations occurring since 1977, which has driven a 
convergence of legal principle. 20 

247 



Coalition Warfare: Challenges and Opportunities 

The insightful observations of Colonel Graham are fully supported in this arti- 
cle. It is the third ground in particular which, it is submitted, has been decisive in 
forging successful legal compatibility. The investigation of this phenomenon is the 
principal focus of this article. Firstly, however, it is useful to examine the initial 
ground proffered by Colonel Graham, namely the issue of collective reservations/ 
declarations. There is no doubt that the language used in such reservations/decla- 
rations by many nations when ratifying Additional Protocol I is very similar, if not 
identical. A cursory review of the tenor of declarations made to operative provisions 
of the Protocol does evidence a certain symmetry of language and intent with respect 
to issues like the definition of military advantage concerning attacks to be assessed as 
a "whole," 21 to the incorporation of the lives of one's own military members in the 
proportionality equation, 22 and to the definition of "deployment" for ascertaining 
combatant status. 23 This necessarily allows for a common understanding and confi- 
dence when applying potentially ambiguous operative provisions in the specific con- 
texts contemplated in the course of combined/coalition operations. 

The second ground put forward relates to the increasing declassification and 
sharing of military manuals, such publication having had the effect of engendering 
a convergence of thinking. There is ample normative evidence that official publica- 
tions which distill national interpretations of the law do have significant impact 
upon international thinking. The US Commanders Handbook on The Law of Na- 
val Operations 24 and public release of Standing ROE for US Forces in the mid- 
1990s, 25 have had a tremendous proselytizing effect on the development of manu- 
als and ROE doctrine in other countries. Partly because of the simple availability of 
such resources, and partly because of the accomplished line of reasoning em- 
ployed, the tenor and substance of the positions reached in these sources has con- 
sciously and subconsciously influenced the operational legal thinking of others. 
Indeed, the very phrases of the US ROE are repeated in numerous iterations of co- 
alition ROE that have been relied upon and have even found their way into the UN 
Model ROE for Peacekeeping Forces. 26 

Finally, it is in the last category of Colonel Graham's three grounds, the question 
of ROE development through multilateral operations, where the most effective 
tool for convergence of legal principle is found. 

The Psychology of Mission Accomplishment 

The psychology of coalition ROE development in active, combined operations is 
something that is little explored in the literature. 27 As a normative experience, it is 
evident that this process is one that engenders an irresistible quality of intellectual 
facilitation. The methodology of coalition ROE harmonization appeals to the 

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Dale G. Stephens 



pragmatic, mission accomplishment goals of the military psyche. The process of 
intense consultation between military partners generates a compulsive mindset 
and fosters cooperative and creative legal engagement to achieve nationally agreed- 
upon strategic outcomes. Obvious legal prohibitions, such as those contained in the 
Ottawa Convention concerning anti-personnel land mines for example, plainly con- 
stitute "show stoppers," but the law is not commonly that stark. The modern law of 
armed conflict is generally more concerned with attaining specific standards, than 
imposing bright line rules. Thus, the perennial issues of deciding upon questions of 
"military advantage" 28 and quantifying "proportionality" 29 anticipate a calibrated 
discretion, which in turn allows for realistic acuity between coalition force ROE. 

The issue of "law choice" theory is not new. Answering international relations 
school critics of international law's alleged "legalistic-moralistic" inertia in the 
early 1950s, the well known international lawyer, Myres McDougal, emphasized 
the dynamic nature of international law and spoke of a choice between "effective 
and ineffective" law. 30 He observed that: 

The process of decision-making is indeed, as every lawyer knows, one of continual 
redefinition of doctrine in its application to ever-changing facts and claims. A 
conception of law which focuses upon doctrine to the exclusion of the pattern of 
practices by which it is given meaning and made effective, is therefore, not the most 
conducive to understanding. 31 

McDougal concluded that "A realistic conception of law, must, accordingly, 
conjoin formal authority and effective control and include not only doctrine but 
also the pattern of practices of both formal and effective decision makers." 32 This 
thesis of "effective law" shares much with the subsequent Hammerskjold approach 
to innovative and pragmatic legal resolution 33 and is anchored very heavily within 
a defined societal value set. 

This thinking also draws on the concept of the law of armed conflict as "soft 
power," a process articulated masterfully by Professor Schmitt. 34 Professor Schmitt 
examined the decision-making calculus resident within US attitudes concerning 
treaty ratification and offered a number of hypotheses concerning law as a policy 
choice. Professor Schmitt sought to identify the causative impact of American de- 
cision making, both with respect to those treaties that are ratified, and more in- 
triguingly, those that are not. Hence, he made the significant point that: 

Law can even shape war for those not party to a particular normative standard. For 
instance, Additional Protocol I, which the United States has not ratified, prohibits 
most attacks on dams, dikes, and nuclear electrical generating stations. Despite U.S. 
opposition to this particular provision, there have been no U.S. attacks on any of these 



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Coalition Warfare: Challenges and Opportunities 

target sets since the Vietnam War; should it conduct such an attack it would be 
condemned. . . . Apprehension over condemnation certainly influences the policy 

choice of whether to engage in such strikes [I]t would be hard to imagine . . . U.S. 

forces in a coalition intentionally conducting an operation that would violate Protocol 
I ... if any significant coalition partners were parties to the treaty. The realities of 
coalition-building and maintenance would simply not allow it. 35 

The point artfully made by Professor Schmitt discloses two underlying precepts. 
The first is that US views on the scope of action legally available as a consequence of 
not ratifying Additional Protocol I is often contextualized in an operational envi- 
ronment in a manner that accommodates coalition harmony. Just because the 
United States retains the full legal capacity to attack the types of objects prohibited 
by the Protocol to others does not mean that it will necessarily undertake such at- 
tacks. Policy imperatives regarding coalition cohesion plainly inform decisions 
concerning attack profiles. 

Secondly, the assessment made by Professor Schmitt acknowledges the role of 
"values" when assessing the relative cost exchange for attacking particular targets 
or deciding upon requisite levels of collateral damage or incidental injury. The law 
of armed conflict requires that a military commander exercise his/her judgment as 
to whether the significance of attacking a particular military objective is worth the 
"cost." There is actually a wide level of discretion available to the commander un- 
der the law provided that such judgments are "reasonable and made in good faith." 
In the modern context of volunteer military and naval forces, it is likely that mili- 
tary commanders will reflect the very values of the population at large when assess- 
ing amorphous standards like "concrete and direct military advantage 
anticipated." One is often struck with how civilian audiences will go through a target 
evaluation process and arrive at strikingly similar legal solutions concerning the 
proportionality equation as would a seasoned military audience. Indeed, the politi- 
cal ramifications of such methodologies tend to be more prescient within military 
decision-making evolutions than that found within civilian thinking. 

It is also evident that within professional military audiences of different na- 
tions there tends to be a broad consensus as to the values placed upon the mili- 
tary significance of certain targets and the costs deemed acceptable in terms of 
incidental civilian injury and collateral damage to property when attacking (or 
not) those targets. This has been a product of the increasing frequency of multi- 
lateral coalition operations over recent years, in conjunction with the dramatic 
increase of UN peace operations that have operated under common sets of ROE. 
Similarly, it is also the product of the increasing socialization process brought 
about by international professional military education. Venues such as the US 
Naval War College have been hosting officers from around the world for almost 

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Dale G. Stephens 



50 years and have been inculcating the teaching program with the promotion of 
democratic liberal values. These values find precise expression in the targeting de- 
cisions made by senior commanders who are driven by both the goals of mission 
achievement under extant ROE and the increasingly homogenous cultural imper- 
atives of modern societies. 

Challenges to Coalition Warfare 

While there is much greater commonality to ROE development than what one may 
imagine, that isn't to deny the very real challenges that pervade this process. At the 
tactical level, it is self- evidently difficult to frame appropriate ROE in circum- 
stances where government policy as to the existing law is either unarticulated or 
has been subject to several reversals. While governments may prefer the policy flex- 
ibility of leaving their options open as to what they perceive to be customary inter- 
national law, this has an obviously deleterious consequence for planning for both 
the subject nation and coalition partners. 

The other challenge to coalition interoperability is overt political intervention 
in the ROE process by governments. Although to be fair, unlike the Vietnam era, 
the contemporary practice of governments has been to allow the military full reign 
for the execution of the campaign under the law and to interject political involve- 
ment once calculations concerning compliance with the law have been under- 
taken. Hence, approval may be required for an attack even though it fulfills the 
proportionality test, but nonetheless anticipates a significant loss of life. Such "in- 
tervention" is plainly appropriate and reflects the realities of the political dimen- 
sion of undertaking modern armed conflict. 36 

Ironically, the greatest potential challenge to coalition operations may come 
from the application of domestic law to the ROE process. It is somewhat of a para- 
dox that military lawyers of different countries can speak easily about applicable legal 
concepts and yet when those same lawyers speak to national legal colleagues of 
other government departments who may have a stake in ROE development, such 
conversations are at cross-purposes. 

The Rome Statute of the International Criminal Court 37 has also brought into 
focus the challenge of aligning criminal law standards reflected in that treaty with 
more traditional standards contained within domestic law. Issues such as "intent" 
and "recklessness" and their translation into an operational context are obvious 
points of potential difficulty. Similarly, the use of lethal force to protect mission es- 
sential property and the application of domestic law self-defense criteria to opera- 
tions against deadly enemies in the jungles and deserts of the world where military 



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Coalition Warfare: Challenges and Opportunities 

forces operate in the twilight zone between war and peace are two other areas 
where there is potential for dichotomous answers. 

The issue of dealing with domestic legal conundrums when striving for coalition 
interoperability is not unique. It may be time to revisit the concept of "transna- 
tional law" that was originally championed by those such as Professor Jessup in the 
1920s as a more reliable way to advance international law's reforming promise. 38 It 
is a theme that, in a modified way, has been picked up more recently by Anne-Marie 
Slaughter and her liberalist, international relations critique of the modern legal 
method and may well be a profitable avenue of focus for those of us keen to recon- 
cile public international law rights and responsibilities with domestic law. 39 Profes- 
sor Slaughter advocates a recasting of international law to assimilate public and 
private law, across and between territorial boundaries of liberal States, to conceive 
of a more effective body of resulting law that is defined not by "subject or source 
but rather in terms of purpose and effect." 40 

Conclusion 

Professor Louis Henkin famously observed that "Almost all nations observe almost 
all principles of international law and almost all of their obligations almost all of 
the time." 41 It remains a trite but powerfully correct statement. Despite some clear 
differences of opinion on some aspects of the law of armed conflict, and despite 
some very real challenges under both domestic and international law, the process 
of ensuring legal interoperability for ROE development and mission fulfillment 
between coalition partners is not as grave as one might imagine. It is incumbent 
upon professional military lawyers to continue to use their best creative endeavors 
to seek solutions to otherwise intractable legal problems. This is essential not only 
to ensure the success of the mission, which is always the paramount obligation, but 
to also instill greater strength into the intricate mosaic that is international law. 

Notes 

1 . At the time of this writing the United States had not ratified the Protocol Additional to the 
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of 
International Armed Conflicts [Protocol I], June 8, 1977, 1125 U.N.T.S. 3, reprinted in 
DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts 8c Richard Guelff eds., 3d ed. 2000); the 
Rome Statute of the International Criminal Court, July 17, 1998, 37 INTERNATIONAL LEGAL 
MATERIALS 999; nor the Convention on the Prohibition of the Use, Stockpiling, Production and 
Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36 INTERNATIONAL 
Legal Materials 1507. 



252 



Dale G. Stephens 



2. See generally critical commentary on the International Committee of the Red Cross (ICRC) 
customary law study by David Rivkin and Lee Casey, Rule of Law: Friend or Foe, THE WALL 
STREET JOURNAL, Apr. 11, 2005, available at http://www.defenddemocracy.org/research_topics/. 

3. This conundrum may even apply in the circumstances of a standing alliance such as NATO. 
See Michael Kelly, Legal Factors in Military Planning for Coalition Warfare and Military 
Interoperability, 2 AUSTRALIAN ARMY JOURNAL 161, 162-3 (2005). 

4. Supra note 1. 

5. Id. 

6. Australia ratified the Ottawa Convention on January 14, 1999; Canada on December 3, 
1997; Germany on July 23, 1998; Japan on September 30, 1998; New Zealand on January 27, 
1999; and the United Kingdom on July 31, 1998. 

7. Kelly, supra note 3, at 169. 

8. Supra note 1. 

9. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 
which maybe deemed to be Excessively Injurious or to have Indiscriminate Effects, and Protocol 
I on Non-Detectable Fragments; Protocol II on Prohibitions or Restrictions on the Use of Mines, 
Booby Traps and other Devices; Protocol III on Prohibitions or Restrictions on the Use of 
Incendiary Weapons, Oct. 10, 1980, 1342U.N.T.S. 137; Protocol IV on Blinding Laser Weapons, 
Oct. 13, 1995, 35 INTERNATIONAL LAW MATERIALS 1218; and Protocol V on Explosive 
Remnants of War, Nov. 28, 2003, (not yet in force). 

10. The United States has not ratified Protocol IV (Blinding Laser Weapons) nor Protocol V 
(Explosive Remnants of War). 

11. See Annotated Supplement to The Commander's Handbook on the Law of Naval 
OPERATIONS % 7.4 n.88 (A. R. Thomas and James Duncan eds., 1999) (Vol. 73, US Naval War 
College International Law Studies) [hereinafter ANNOTATED SUPPLEMENT], which states: 

Although war-sustaining commerce is not subject to precise definition, commerce that 
indirectly but effectively supports and sustains the belligerent's war-fighting capability 
properly falls within the scope of the term. . . . Examples of war-sustaining commerce 
include imports of raw materials used for the production of armaments and exports of 
products the proceeds of which are used by the belligerent to purchase arms and 
armaments. (Emphasis added.) 

12. San Remo Manual on International Law Applicable to Armed Conflicts at Sea u 
60.11 (Louise Doswald-Beck ed., 1995) where, after discussing the US formulation of "war- 
fighting/war-sustaining" outlined above, states: 

[T]he Round Table accepted the view that the descriptive phrase "integration into the 
enemy's war-fighting/war-sustaining effort" was too broad to use for the residual 
category. The phrase chosen to describe the residual category of merchant vessels which 
were legitimate military objectives was merchant vessels which make an effective 
contribution to military action by, for example, carrying military materials. 

13. Supra note 1. 

14. Michael N. Schmitt, The Law of Armed Conflict as Soft Power: Optimizing Strategic Choice, in 
International Law Across the Spectrum of Conflict: Essays in Honour of Professor 
L.C. Green on the Occasion of his Eightieth Birthday 455, 459 (Michael N. Schmitt ed., 
2000) (Vol. 75, US Naval War College International Law Studies). 

15. See ANNOTATED SUPPLEMENT, supra note 11, U 6.2.3, n.36, which provides that: 
Reprisals may lawfully be taken against enemy individuals who have not yet fallen into 
the hands of the forces making the reprisals. Under customary international law, 



253 



Coalition Warfare: Challenges and Opportunities 

members of the enemy civilian population are legitimate objects of reprisals. The 
United States nonetheless considers reprisal actions against civilians not otherwise 
legitimate objects of attack to be inappropriate in most circumstances. For nations 
party to [Additional Protocol I], enemy civilians and the enemy civilian population are 
prohibited objects of reprisal. The United States has found this new prohibition to be 
militarily unacceptable. . . . 

16. Kelly, supra note 3, at 165. 

17. David E. Graham, Coalition Operations - Commentary, in LEGAL AND ETHICAL LESSONS OF 
NATO'S KOSOVO CAMPAIGN 377 (Andru E. Wall ed., 2002) (Vol. 78, US Naval War College 
International Law Studies). 

18. Mat 378. 

19. Id. 

20. Id. at 378-9. 

21. Australia: 

In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it 
is the understanding of Australia that references to the "military advantage" are 
intended to mean the advantage anticipated from the military attack considered as 
a whole and not only from isolated or particular parts of that attack. 

United Kingdom: 

In relation to paragraph 5(b) of Article 51 and paragraph (2) (a) (hi) of Article 57, 
that the military advantage anticipated from an attack is intended to refer to the 
advantage anticipated from the attack considered as a whole and not only from 
isolated or particular parts of the attack. 

Canada: 

It is the understanding of the Government of Canada in relation to sub-paragraphs 
5(b) of Article 51, paragraph 2 of Article 52, and clause 2(a)(iii) of Article 57 that 
the military advantage anticipated from an attack is intended to refer to the 
advantage anticipated from the attack considered as a whole and not from isolated 
or particular parts of the attack. 

Italy: 

In relation to paragraph 5(b) of Article 51 and paragraph 2(a)(iii) of Article 57, the 
Italian Government understands that the military advantage anticipated from an 
attack is intended to refer to the advantage anticipated from the attack considered 
as a whole and not only from isolated or particular parts of the attack. 

Germany: 

In applying the rule of proportionality in Article 51 and Article 57, "military 
advantage" is understood to refer to the advantage anticipated from the attack 
considered as a whole and not only from isolated or particular parts of the attack. 

The complete text of all reservations and declarations is available at http://www.icrc.org/ihl.nsf/ 
WebSign?ReadForm&id=470&ps=P#res. 

22. For example, New Zealand declared: "In relation to paragraph 5(b) of Article 51 and to 
paragraph 2(a) (hi) of Article 57 . . . the term "military advantage" involves a variety of 
considerations, including the security of attacking forces." A similar declaration was made by 
Australia. While not a party to Additional Protocol I, the United States has included in The 
Commander's Handbook on the Law of Naval Operations {supra note 11, ^ 8.1.1) the following 



254 



Dale G. Stephens 



commentary: "Military advantage may involve a variety of considerations, including the security 
of the attacking force." 

23. Australia: 

It is the understanding of Australia that in relation to Article 44, the situation 
described in the second sentence of paragraph 3 can exist only in occupied territory 
or in armed conflicts covered by paragraph 4 of Article 1 . Australia will interpret the 
word "deployment" in paragraph 3(b) of the Article as meaning any movement 
towards a place from which an attack is to be launched. It will interpret the words 
"visible to the adversary" in the same paragraph as including visible with the aid of 
binoculars, or by infra-red or image intensification devices. 

United Kingdom: 

In relation to Article 44, that the situation described in the second sentence of 
paragraph 3 of the Article can exist only in occupied territory or in armed conflicts 
covered by paragraph 4 of Article 1, and that the Government of the United 
Kingdom will interpret the word "deployment" in paragraph 3(b) of the Article as 
meaning "any movement towards a place from which an attack is to be launched." 

Canada: 

It is the understanding of the Government of Canada that: 

a. the situation described in the second sentence of paragraph 3 of Article 44 
can exist only in occupied territory or in armed conflicts covered by para- 
graph 4 of Article 1; and 

b. the word "deployment" in paragraph 3 of Article 44 includes any move- 
ment towards a place from which an attack is to be launched. 

Germany: 

The criteria contained in the second sentence of Article 44, paragraph 3, of 
Additional Protocol I for distinction between combatants and the civilian 
population are understood by the Federal Republic of Germany to apply only in 
occupied territories and in the other armed conflicts described in Article 1, 
paragraph 4. The term "military deployment" is interpreted to mean any 
movements towards the place from which an attack is to be launched. 

Ireland: 

It is the understanding of Ireland that: 

a. The situation described in the second sentence of paragraph 3 of Article 44 
can exist only in occupied territory or in armed conflicts covered by para- 
graph 4 of Article 1: and 

b. The word "deployment" in paragraph 3 of Article 44 includes any move- 
ment towards a place from which an attack is to be launched. 

Spain: 

It is understood that the criteria mentioned in sub-paragraph b of Article 44(3) on 
the distinction between combatants and civilians can be applied only in occupied 
territories. The Spanish Government also interprets the expression "military 
deployment" to mean any movement towards a place from which or against which 
an attack is going to be launched. 

The complete text of all reservations and declarations is available at http://www.icrc.org/ihl.nsf/ 
WebSign?ReadForm&id=470&ps=P#res. 

24. Supra note 11. 



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Coalition Warfare: Challenges and Opportunities 

25. Chairman, Joint Chiefs of Staff, Standing Rules of Engagement for U.S. Forces, CJCS Inst. 
3121.01 (series). 

26. Department of Peacekeeping Operations, Guidelines for the Development of Rules of 
Engagement (ROE) for United Nations Peacekeeping Operations, May 2002. 

27. In the broader context of national security decision making, an insightful analysis of the 
psychological foundation for such thinking can be found in YEHADA BEN-MEIR, NATIONAL 
Security Decisionmaking: The Israeli Case (1986). 

28. See, e.g., ANNOTATED SUPPLEMENT, supra note 11, | 8.1.1, where, in describing "military 
advantage" in the context of determining the efficacy of an attack, it is stated: 

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. Military advantage may 
involve a variety of considerations, including the security of the attacking force. 

29. See id. % 8.1.2.1, where proportionality is described as follows: "It is not unlawful to cause 
incidental injury to civilians, or collateral damage to civilian objects, during an attack upon a 
legitimate military objective. Incidental injury or collateral damage must not, however, be 
excessive in light of the military advantage anticipated by the attack." 

30. Myers S. McDougal, Law and Power, 46 AMERICAN JOURNAL OF INTERNATIONAL LAW 102, 
113(1952). 

31. Mat 110. 

32. Id. 

33. Oscar Schachter, Dag Hammarskjold and the Relation of Law to Politics, 56 AMERICAN 
Journal of International Law l (1962). 

34. See Schmitt, supra note 14. 

35. Id. at 459. 

36. See DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL 
HUMANITARIANISM 117 (2004), who comments upon the "CNN effect" and consequential 
political significance of proportionality determinations. 

37. Supra note 1. 

38. Phillip C. Jessup, The Functional Approach as Applied to International Law, in PROCEEDINGS 
of the Third Conference of Teachers of International Law 134, 137 ( 1928). 

39. See Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUROPEAN 
Journal of International Law 503 (1995). 

40. Mat 516. 

41. Louis Henkin, How Nations Behave 47 (2d ed. 1979). 



256 



PART VI 



FUTURE NAVIES 



XIII 



Toward 2015, Challenges for a Medium Navy: 
An Australian Perspective 



Raydon Gates* 



The purpose of this article is to provide an operator's assessment of future 
challenges for a medium sized Navy from an Australian perspective. I am 
going to range quite widely across warfighting and organizational issues and sug- 
gest a few areas where I might be able to generate some work for our judge advocate 
colleagues. I will conclude with a short scenario that I hope will set people thinking 
about the legal issues associated with future combat operations, enabled by net- 
work centric warfare in a coalition setting. 

Let me begin by addressing what I see as the most important future warfighting 
trends. I am sure that they will not be a surprise to most of you. The Royal Austra- 
lian Navy's (RAN) job is to protect the sovereignty of Australia, Australia's inter- 
ests and Australian citizens. Australia's interests are global, our national security 
strategy is maritime in nature and our government's approach to global security is- 
sues reflects these facts. Therefore, the first enduring trend is a requirement for our 
Navy to be able to project maritime power at home and offshore, wherever Austra- 
lia's interests may lie. This trend is accompanied by a requirement to deliver com- 
bat power across the spectrum of conflict, whether that be in support of coalition 



* Rear Admiral, Royal Australian Navy. The views expressed in this article are those of the author 
alone and do not necessarily represent the views of the Australian Government, the Australian 
Defence Force, or the Royal Australian Navy. © 2006 by Raydon Gates. 



Toward 2015, Challenges for a Medium Navy: An Australian Perspective 

combat operations in the war on terror, providing a secure environment in a failed 
State or delivering humanitarian support to regional neighbors. That being said, 
the Australian Defence Force (ADF) acquires capabilities in support of combat op- 
erations and adapts those capabilities, along with our tactics, techniques and pro- 
cedures, to deliver options to the Government across the remainder of the mission 
space. We do not, as a general rule, acquire major capabilities that only have appli- 
cations in operations other than combat. We simply can't afford it. 

Earlier, I perhaps over-emphasized that the RAN is in the business of looking af- 
ter Australia's national interest to make a point. Often in the coalition context we 
hear about the notion of common national interests. I would argue that this notion 
is generally a fallacy. In coalitions, compatible national interests are and certainly 
must be present, but compatible interests are not necessarily common interests. 
Even in the tightest of alliances or coalitions we will see divergences in the handling 
of certain issues. The fact that coalition partners are signatories, or not signatories, 
to a range of international treaties is a direct reflection of political divergence. 
Noting the observations of Clausewitz — that war is a continuance of the political 
discourse by other means — it follows that within the coalition force we immedi- 
ately have the potential for a number of different military objectives, reflecting dif- 
fering national political objectives. A tension is thus created within coalition 
structures; in my view that tension is an enduring feature of coalitions and there- 
fore of the future war fighting landscape. It is up to military commanders to ac- 
count for and manage national divergences so that unity of effort is maintained, 
within national constraints and in accordance with national priorities. 

Military lawyers play a large part in harmonizing, where practicable, national 
rules of engagement (ROE) and establishing procedures within coalitions to ac- 
count for political divergences. I would offer that these issues need to be addressed 
very early in the planning process as they have the potential to affect the very es- 
sence of an operation; from targeting to operating areas, from rules of engagement 
to task group disposition. Before I leave this subject I would not want to leave you 
with the impression that political divergence always offers problems, in fact it often 
offers opportunities. It may be possible for a coalition commander to use the forces 
of another nation to undertake a task with more freedom of maneuver than would 
be available to their own forces. For example, I experienced this in the Red Sea in 
1992/93 where Australian ROE gave our units greater freedom of action, in certain 
areas, when conducting maritime interception operations with coalition partners. 
This was an advantage to the US commander, who subsequently employed RAN 
units closest to the Straits of Tiran at the mouth of the Gulf of Aqaba to intercept 
"inspection runners" when required. 



260 



Raydon Gates 

A trend in all Western armed services is that warfighting is being undertaken via 
the application of joint effects. In Australia, we are a relatively small defense force 
and enjoy a close relationship between the Services. Yet we have still learned les- 
sons about operating as a joint force in recent times. The joint application of com- 
bat power will be an enduring feature of the future warfighting landscape. Even 
simple issues such as terminology can mean different things to people from differ- 
ent Services from the same nation. Maritime forces are also increasingly being 
required to provide support to the joint force ashore. I will have more to say on 
this issue a little later on. 

In the Australian context, we are also seeing responses to security issues in- 
creasingly being approached from a whole-of-government perspective. The mili- 
tary must work with other government, and importantly non-government, 
agencies to achieve the mission at hand. In some circumstances, perhaps most, it 
could be argued that the activities of other, non-military government agencies are 
the war winners. In these circumstances, the military's role becomes one of pro- 
viding a secure environment so they can get on with their job; this is probably now 
the case in Iraq. 

Australia's recent lead role in the Regional Assistance Mission to the Solomon 
Islands is another example. This was a Department of Foreign Affairs and Trade led 
mission in close partnership with the Australian Federal Police, the ADF and others. 
The ADF contributed its weight and presence to the equation, creating a secure en- 
vironment so police and other government agencies could assist the Solomon Island 
authorities to regain control of their community and system of government. As a 
result of this whole-of-government trend, we are seeing increased numbers of non- 
military personnel legitimately in combat zones. This has advantages and chal- 
lenges. Obviously, some adversaries often fail to make any distinction between a 
combatant and a noncombatant in this regard; they simply fight by a different set 
of rules or lack thereof. This poses interesting force protection and ROE quanda- 
ries for the modern day and future commander. 

The future maritime warfighting environment is characterized by lethality no 
matter what mission you are conducting, whether it is peace operations, assisting 
with law enforcement in territorial waters or delivering humanitarian aid. The 
asymmetric threat of non-State players, including disaffected people and elements 
of transnational crime, enabled by the proliferation of weapon technologies and 
unrestrained by an obligation to comply with the law of armed conflict, has di- 
minished warning time for a potential engagement and has further blurred the 
distinction between combatants and noncombatants. Lethal effects can be deliv- 
ered by individuals or small groups on an increasingly devastating scale. A humani- 
tarian aid mission in an area frequented by terrorist groups can be as lethal as 

261 



Toward 2015, Challenges for a Medium Navy: An Australian Perspective 

combat operations in a State-on-State scenario. It is only the duration, magnitude 
and potential warning time of the lethal engagement that varies, not whether 
lethality is present or not. 

As a result of the global trend of urbanization, particularly in coastal regions, 
and the importance of the sea for global trade, I think it is fair to say that the major- 
ity of the world's future security issues will have an element either on, or within in- 
fluence of, the sea. Accordingly, we conclude that future maritime force operations 
will be dominated by the littoral; a parallel development to the increasing impor- 
tance of urban terrain to the land force. Littoral environments mean an increase in 
the density of noncombatants, complications from terrain and the environment, 
and the increased presence of sea mine and land-based threats. Combine this with 
asymmetric tactics, the blurring of combatants and non-combatants, reduced 
warning times and increased lethality and we have significant ROE, target identifi- 
cation, threat response time and force protection challenges. 

Another trend from recent conflicts that we see continuing is the problem of ac- 
cess, basing and overflight rights. In Australia's region, this is particularly relevant. 
From my observations, it is not the culture of Asian nations to get involved in what 
they consider each other's internal business — a fair enough stance. The recent 
Southeast Asian regional non-aggression pact proposal is probably a reflection of 
this position. Combine this trend with the littoral emphasis of future operations 
and the response is to develop sea basing concepts. The RAN's Future Maritime 
Operating Concept also looks to leverage the freedoms and maneuver space of the 
sea. Those freedoms are embedded in the United Nations Convention on Law of 
the Sea (1982 LOS Convention). 1 Australia has signed and ratified this treaty. 
Archipelagic sea lanes, international straits and complex maritime boundary inter- 
pretations abound in Australia's potential mission space. Our lines of communica- 
tion lay across and through all of these maritime areas. The 1982 LOS Convention 
remains a key convention in a globalized world where seaborne trade accounts for 
the vast majority of global commerce and is crucial to energy flows. Freedom of the 
sea is obviously key to the freedom of maneuver of coalition navies. 

On the technology side of warfare, we are seeing the increased use of unmanned 
vehicles for surveillance and for offensive and defensive purposes. With the future 
development and confluence of miniaturization, propulsion technologies and fuel 
cells, nanotechnology, communications and computing technologies we will see 
the capabilities and presence of unmanned platforms increase in all warfighting 
domains. Potential legal issues abound here. 

Missile technologies are proliferating at an accelerated rate; their speed and in 
particular their ranges are rapidly increasing. These missiles are now fire-and-forget, 
but I am sure we will see increasing levels of artificial intelligence in missiles. For 

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Raydon Gates 

example, on arrival at a target area a missile may reassign itself if the target appears 
to have moved or seems absent. How does this sit with ROE and identification cri- 
teria? There is also the potential for land forces to reassign the missile in flight 
should a target be destroyed while the missile is inbound. Again, take the situation 
of forces from one nation reassigning a missile from another with the firing unit 
having little say in the process. Vexing legal problems arise that must be overcome 
so that warfighters can leverage advances in technology. Sea mines are in the in- 
ventories of many maritime nations and it would be reasonable to expect that non- 
State actors could acquire these technologies without too much trouble, should 
they so desire. Of course, submarines are entering service with many nations, par- 
ticularly in Australia's area of interest. They are a great weapon if you are trying to 
leverage an asymmetric advantage or are simply outgunned on or above the sur- 
face of the ocean. 

To top it all off, the future maritime battlespace will be wrapped in a network, 
linking sensors to shooters and, in theory, facilitating a pervasive situational 
awareness that will synchronize forces and provide subordinate commanders with 
the information they need to act independently to implement the senior com- 
mander's intent. Decision cycles will be compressed and fires delivered faster to 
deal with elusive and mobile targets. Network enabled operations will be a feature 
of the future. 

As you are well aware, the United States leads the world in military technology 
in most areas and in particular in implementing a network centric approach. The 
cost of technology is generally very high and for some, possibly our own Navy, the 
full implementation of network centric warfare (NCW) may simply be unafford- 
able. Australia uses technology to generate a fighting edge. Importantly, this also 
includes the smarter application of technology as proliferation of modern weapons 
and sensors narrows the gap between others and ourselves. Let me say at this junc- 
ture, there is no quandary in the mind of Australia's military leaders when we ex- 
amine where we might need to be technologically; we use interoperability with the 
United States as a benchmark. However, we must strike a balance that ensures we 
remain interoperable with both technically advanced allies and those not as techni- 
cally advanced, but no less important, regional and coalition partners. Australia 
successfully led the UN effort in East Timor because it had the ability to flex its 
command and control systems, technology, tactics, techniques and procedures in 
both directions to accommodate coalition partners across a range of technological 
capabilities. We must continue to achieve this balance within a tight budget. This 
will challenge our ingenuity and, I suspect at times, our patience! 

Let me move on to organizational challenges. Recently, my Chief of Navy re- 
leased his strategic guidance for the Future Navy known as Plan Blue. This 

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Toward 2015, Challenges for a Medium Navy: An Australian Perspective 

document examined the future Navy we need to be and the challenges that will face 
us. I would like to touch on but a few of those issues. 

I think it is fair to say that our two largest concerns will be people and budgets. 
Western populations are aging and stagnating, yet our economies continue to 
grow. This places an enormous strain on our all volunteer Navy's traditional re- 
cruiting base. Competition with industry for the right people will sharpen mark- 
edly over the coming decades. Engineering and technical skills will be in particular 
demand. In our view, the RAN will probably become incrementally smaller with 
time, yet it must deliver the same — if not a greater — warfighting punch. Careful 
management and preservation of our most precious resource, people, will be re- 
quired to manage workloads, ensure the Service is an attractive career option and, 
once people are part of our Service, ensure we retain them. As you are all well 
aware, uniformed people are a rare and very expensive asset in which the armed 
services make a substantial investment. Regardless of technological prowess, war is 
a clash of wills, it is a human endeavor and, at the end of the day, the fighting effec- 
tiveness of militaries is all about the quality of their people. 

An aging population and infrastructure reinvestment requirements will gener- 
ate increasing fiscal demand within the budgetary structure of a decreasing per- 
sonal tax base. By our Government's own analysis, post-2017 Australia will not be 
able to fund its governance without incurring budget deficits. Obviously, struc- 
tural changes to taxation and spending patterns will be required to address this 
challenge. I think the impact on a medium navy is obvious; an expectation of real 
funding increases in the longer term, while possible, is not likely, barring a major 
discontinuity in the world's security situation. So it is a pretty simple problem to 
articulate; do our business better with fewer people and fewer resources. 

These two critical factors, along with the warfighting trends addressed above, 
will generate a range of other future issues. I will touch on but a few. Within our 
ships we will see increasing automation to decrease the requirement for people and 
help manage the workload of smaller ships' companies. There will be an increasing 
number of human-machine interfaces and eventually machine-machine inter- 
faces. Decision support systems may be required to implement decisions pro- 
grammed into them without a human in the loop. Ships will have to stay at sea 
longer in order to maximize greater reliability and availability, but somehow we 
must balance workloads and retain our people. In the future, our ships will con- 
tinue to have to comply with international treaties to which our governments may 
be party. Environmental law and occupational health and safety will play an in- 
creasing role in ship design, maintenance and operation. As some will be aware, the 
RAN has recently purchased the double hulled merchant tanker Delos, soon to be 
commissioned as HMAS Sirius, so that we comply with the International Maritime 

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Raydon Gates 

Organization's (IMO) pollution from ships requirements for the transportation of 
fuels at sea, 2 just as an example. 

The eternal drive for fiscal efficiency will see the greater use of contracted sup- 
port both on and off board our ships. Contractors will have to be integrated into 
the way we do our business rather than being seen as simply delivering services. We 
may find that the armed services and defense industry effectively share people as 
the workforce skill base decreases in proportion to demand. The legal aspect of 
contracted support to deployed operations is an area we could talk about for hours. 
Are contractors in providing direct support to the force combatants or noncomba- 
tants, and from whose perspective? In this case are they under military command 
or are they not? Are they subject to the Defence Force Discipline Act (or the Uni- 
form Code of Military Justice (UCMJ) for the United States)? What if a contractor 
refuses to deliver services into a combat zone despite the usual fiscal enticements 
and contractual requirements? Can we compel a contractor to put civilians in 
harm's way and subject to the constant presence of lethal force? The status of con- 
tractors vis-a-vis host nations who provide logistic support also raises issues as, for 
example, in the application of local health, safety and insurance laws and regula- 
tions. With regard to the protection of host nation contractors, do they become 
designated persons under our rules of engagement or not? Not to mention status of 
forces agreements or arrangements or memorandums of understanding, or what- 
ever the flavor of the month happens to be. These are issues that we have had to ad- 
dress during recent operations and must continue to address in the future. 

There are numerous other issues to consider, such as the competition for mari- 
time practice areas with commercial interests and environmental concerns. The is- 
sue of whales and sonar has recently been of contention both in the United States 
and in Australia. Increasing commercial traffic and access to ports, security of war- 
ships in ports and the application of security zones around warships are but a few 
of the contentious issues with which we must wrestle. 

Let me conclude with a very brief scenario that encapsulates some interesting 
contemporary and future warfighting and international law issues. 

The year is 2015 and His Majesty's Australian Ship Adelaide lays 20 miles off- 
shore on the boundary of the new territorial sea limit. It would be better if she were 
in at 12 miles like the old days. The combat system is up, the decision support soft- 
ware filters information, delivering only, as the system has been programmed, as- 
sessments that a person can consume. A hypersonic, autonomous, fire-and-forget 
missile is on the rails. The ship is waiting for the call for fire. There are boats every- 
where; whether friend or foe it is hard to tell. Are they hostile intelligence collectors 
or fishermen? They are all traveling fast and can't all be stopped, boarded and 
checked out. They seem to be avoiding the 500-meter warship exclusion zone 

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Toward 2015, Challenges for a Medium Navy: An Australian Perspective 

though. (Legal or not, the zone seems to be having its desired effect and that's all 
that counts.) 

Ashore Purpleland special forces have identified the target. The E-message 
streaks through the ether to the Orangeland commanded coalition headquarters. 
This is a time sensitive target. Just one shot, no time to mess around. The E-message 
is permitted to auto-progress from the sensor network to the shooter grid for fires 
allocation. Onboard Adelaide the missile launcher bell sounds and almost immedi- 
ately the familiar sound of a missile streaking landward breaks the silence. The 
Combat Information Center (CIC) duty officer watches on his heads up, virtual 3D 
display. He sees the target position and terrain, observes the correct protocols and 
thinks nothing more of it. There are plenty of time sensitive targets that arise in 
these war on terror operations. No need to tell the Captain, she was on the bridge 
and saw the bird go. Adelaide sets off for a port visit, a job well done. 

Upon arrival, a defense contractor climbs the mast to replace an aerial; he is 
from the contractor support unit based in the Fleet Forward Operating base. A 
Captain's worst nightmare unfolds; a sniper has just shot the contractor, and one 
of her sailors has shot a local who he believes was the assailant. The sailor had no 
time to think, he had to make a decision. One moment the assailant was bunkering 
the ship from the wharf, the next minute he was a sniper. No time to ask permis- 
sion. The ROE talked about this situation, but he never fully understood what he 
was really meant to do. 

The Captain's day is not going to get any better. She has been advised that the 
missile Adelaide fired struck its target. She has also been advised that the target was 
a local politician. He was visiting a community center; 50 people have been killed. 
How could this happen? That politician wasn't a combatant within the Australian 
ROE. His targeting was not consistent with our international obligations! A com- 
munity center is not an approved target for Australian units and the death of 50 
noncombatants is outside national collateral damage/incidental injury limits. The 
NCW system was meant to be programmed, there were meant to be safeguards in 
place. What could she have done from sea with the system in automatic? There was 
no time to confirm the target in any event. It was time sensitive. 

Purpleland and Orangeland commanders seem to be notably absent; all the locals 
know is that the round that killed the apparent sniper came from an Australian 
ship, as did the missile that hit the community center. In both cases Australia ap- 
plied the lethal force. These are Australian problems. The Captain sits down and 
decides to have a drink; you can do that on Australian ships. Common versus com- 
patible national interests, divergent international legal obligations, status of forces 
agreements, it's all networked, it's all automated and it's all too much for a simple 
warrior. She decides to call a lawyer . . . after she finishes her drink! 

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Raydon Gates 



Notes 

1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833U.N.T.S. 3, reprinted in 
21 International Legal Materials 1261, available at www.un.org/Depts/los/convention 
_agreements/texts/unclos/closindex.htm. 

2. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, reprinted 
in 12 INTERNATIONAL LEGAL MATERIALS 1319 (with Protocol of Feb. 17, 1978) [hereinafter 
MARPOL 73/78]. Regulation 13f to Annex I of MARPOL 73/78 requires that all new tanker 
vessels built after a designated date be equipped with double hulls, a mid-deck design or the 
equivalent. 



267 



XIV 



The Current State of The Law of Naval Warfare: 
A Fresh Look at the San Remo Manual 



Wolff Heintschel von Heinegg* 

Introduction 

The 1994 San Remo Manual 1 has met widespread approval as a contemporary 
restatement of the principles and rules of international law applicable to 
armed conflicts at sea. In view of the fact that many of its provisions are but a com- 
promise between the differing views within the group of international lawyers and 
naval experts who drafted it, some of its provisions may be far from perfection. 
Still, this has not prevented a considerable number of States from adopting most of 
the San Remo rules in their respective manuals or instructions for their naval 
armed forces. 2 Against that background it is somewhat surprising that there are an 
increasing number of both operators and lawyers criticizing parts of the San Remo 
Manual as outdated and as an unreasonable obstacle to the success of their oper- 
ational or strategic goals. They, inter alia, refer to the provisions on measures 
short of attack and on methods and means of naval warfare, especially on block- 
ade and operational zones. In their view, those provisions meet neither the neces- 
sities of modern operations, e.g., maritime interception operations (MIO) nor 
non-military enforcement measures decided upon by the UN Security Council, 
nor do they offer operable solutions to the naval commander. 3 



* Professor of International Law at Europe-University in Frankfurt (Oder), Germany. This 
article was first published in volume 36 of the Israel Yearbook on Human Rights (2006) and is 
reprinted with permission. © 2006 by Wolff Heintschel von Heinegg. 



A Fresh Look at the San Remo Manual 



Of course, the San Remo Manual does not prioritize military or operational ne- 
cessity. Rather it imposes legal restrictions on naval commanders that may prove 
inconvenient in view of the means available and in view of the task of the respective 
mission. The said criticism, however, goes beyond such general complaints about 
legal rules. It is based upon the belief that whenever it comes to other States' ship- 
ping, interference would be permissible only if it is in accordance with the law of 
naval warfare, i.e., with the provisions of the San Remo Manual. If so, it would be 
difficult, indeed, to maintain that certain missions, e.g., MIO, conducted within 
the framework of the Global War on Terror are legal. It would be similarly difficult 
to explain the legality of measures enforcing an embargo if they had to be judged in 
the light of the law of blockade alone. 

However, the said criticism is based upon an erroneous understanding of the 
law of naval warfare, of its scope of applicability and, thus, of the San Remo Manual. 
Maritime interception operations aimed at combating transnational terrorism 4 or 
the proliferation of weapons of mass destruction 5 and related components do have 
a legal basis that is independent from the law of naval warfare. The same holds true 
with regard to enforcing an embargo — either with or without the authorization of 
the UN Security Council. 6 Therefore, neither the law of naval warfare nor the San 
Remo Manual as its most recent restatement pose an insurmountable obstacle to 
such operations. The San Remo Manual's provisions apply exclusively to situations 
of international armed conflicts. 7 MIO and other maritime operations have to be 
based upon that body of law only if they occur in the course of an armed conflict 
between two or more States. 

However, the said criticism does not seem to be absolutely unjustified insofar as 
the San Remo Manual may indeed no longer properly reflect contemporary State 
practice or meet the realities of modern maritime and naval operations. Moreover, 
some of its provisions seem to be quite ambiguous and, thus, may be misinter- 
preted. This lack of legal clarity could ultimately render obsolete the great progress 
achieved by the San Remo Manual. 

Therefore, it is time to take a fresh look at the San Remo Manual. The task this 
author has been entrusted with is to identify those provisions that ought to be re- 
considered or modified 8 and to evaluate the persuasiveness of some of the critical 
arguments that have been put forward. 

Definitions 

At first glance, the list of definitions in paragraph 13 of the Manual seems to be 
comprehensive and reflective of customary law. The latter is certainly true in 



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Wolff Heintschel von Heinegg 



principle. 9 Still, this does not necessarily mean that all the definitions continue to 
reflect contemporary State practice. 

Civilian Mariners and Private Contractors on Board Warships 

There is a tendency in contemporary State practice to crew warships with civilians 
or at least to make use of civilian contractors who work on board warships. 10 In 
many cases, the contribution of civilian contractors is essential for the operation of 
the ship or of its weapons systems. Hence, the question arises whether the presence 
of civilian mariners or civilian contractors affects the legal status of the ship con- 
cerned. The ability to exercise belligerent rights remains reserved for warships. 11 
Warships are authorized to engage in offensive military activities, including visit 
and search, blockade, interdiction and convoy escort operations. Auxiliary vessels 
are expressly prohibited from exercising belligerent rights. 12 There are convincing 
arguments according to which civilians on board warships should perform neither 
crew functions nor other functions related to the operation of the ship and its 
weapons or electronic systems. Such activities should indeed remain reserved for 
the armed forces personnel who have traditionally performed them. 

It should be noted, however, that the definition of warships in paragraph 13 (g) 
and in customary international law does not necessarily rule out the use of civilian 
mariners and of civilian contractors. According to that definition the warships 
must be manned by "a crew that is under regular armed forces discipline." In con- 
trast, the 1907 Hague Convention VII Relating to the Conversion of Merchant 
Ships into Warships, 13 in Article 4, provides that "the crew" of a converted mer- 
chant ship "must be subject to military discipline." While the use of the definite 
article in Hague Convention VII rules out the (further) use of civilian mariners, the 
indefinite article in the definition of warships justifies the conclusion that not nec- 
essarily all crew members must be under regular armed forces discipline. Leaving 
aside the ensuing question of the permissible proportion of civilian mariners (or 
private contractors) in comparison to sailors and officers proper, it, thus, becomes 
clear that the manning of warships with civilian mariners does not affect the legal 
status of the ship as long as the other criteria are met and as long as a certain por- 
tion of the crew remains under regular armed forces discipline. Of course, these 
findings are without prejudice to the legal status of civilian mariners and of civilian 
contractors. If captured they could, with good reasons, be considered unlawful 
combatants and prosecuted for direct participation in hostilities. The latter prob- 
lem could be solved by conferring a special legal status on civilian mariners and pri- 
vate contractors. Still, it would certainly contribute to legal clarity if paragraph 13 
(g) were supplemented by an explanatory statement with regard to the presence of 
civilians on board warships. 

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A Fresh Look at the San Remo Manual 



Unmanned Vehicles 

Paragraph 13 lacks a definition of unmanned — aerial or underwater — vehicles. 14 
This issue is raised here because their legal status may well be of importance with 
regard to the rights and duties of neutral States. An unmanned vehicle is either an 
integral part of a warship's weapons systems or otherwise controlled from a mili- 
tary platform. If that military platform is a warship or a military aircraft, the un- 
manned aerial vehicle (UAV), unmanned combat air vehicle (UCAV), or 
unmanned underwater vehicle (UUV), according to the position taken here, nec- 
essarily shares the legal status of that platform and it, thus, enjoys sovereign immu- 
nity as long as it is operated in high seas areas or in international airspace. 
Accordingly, neutral States would under no circumstances be allowed to interfere 
with them. 

Regions of Operations 

The provisions of the San Remo Manual on the Regions of Operations are evidently 
influenced by the 1982 UN Convention on the Law of the Sea. 15 The adaptation of 
the rules on the regions of operations to the contemporary law of the sea is by all 
means a realistic, and the only operable, approach to reconcile the interests of bellig- 
erent and neutral States. Of course, this delicate compromise is continuously chal- 
lenged by excessive maritime claims. 16 Creeping jurisdiction may unsettle that 
compromise and may, ultimately, render obsolete that part of the San Remo Manual. 
Therefore, States should take all necessary measures to preserve the achievements of 
both the Law of the Sea Convention and of the San Remo Manual. 17 Still, the provi- 
sions of the San Remo Manual on the regions of operations are far from perfect. 

Those provisions reflect the approach underlying the Law of the Sea Conven- 
tion not only with regard to the determination of neutral waters," 18 but also with 
regard to the obligations of belligerents at sea to pay due regard to the legitimate 
rights of coastal States, when operating within their EEZ, and of third States, 
when operating in high seas areas. 19 The author is aware that during the drafting 
process of the San Remo Manual there was a controversy about the exact meaning 
of the due regard principle and that its inclusion in the manual was a compromise 
decision. 20 Nevertheless, there should be a little further guidance as to its exact 
meaning. Unless specified, the due regard principle will only be paid lip service 
or, even worse, it will be abused by coastal States in order to camouflage acts of 
unneutral service. 

The same holds true with regard to paragraph 15 of the Man ual which states that 
"within and over neutral waters . . . hostile actions by belligerent forces are forbid- 
den." Paragraph 16 contains a non-exhaustive list of activities that are covered by 

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Wolff Heintschel von Heinegg 



the term "hostile actions." This enumeration predominantly refers to traditional 
naval operations during armed conflict. Of course, the term "hostile action," as 
well as one of the activities listed — "use as a base of operations" — would be broad 
enough to also cover other activities, e.g., the use of means for electronic warfare 
(EW), target acquisition, or reconnaissance purposes. Such an interpretation 
would, it is maintained here, certainly be in accordance with customary interna- 
tional law. However, the examples following that term could cast doubt on 
whether such activities would also be covered by the prohibition of using neutral 
waters and neutral airspace as a base of operations. One way of avoiding such cases 
of doubt would be the deletion of all examples. In order to contribute to legal clar- 
ity, however, it seems preferable to add to the examples listed a formulation similar 
to that of Article 47 of the 1923 Hague Rules 21 which provides: 

A neutral state is bound to take such steps as the means at its disposal permit to prevent 
within its jurisdiction aerial observations of the movements, operations or defenses of 
one belligerent, with the intention of informing the other belligerent. 

This provision applies equally to a belligerent military aircraft on board a vessel of war. 

Such a clarification also seems appropriate with regard to combat rescue opera- 
tions in neutral territory. Such rescue operations are not specially protected under 
the law of armed conflict. Rather, they are to be considered military operations that 
would also fall into the category of "hostile action." 

The Aerial Element — Underestimated 

Modern naval operations are no longer conducted in a purely maritime environ- 
ment. Naval battles proper, as traditionally envisioned, belong more or less to the 
past. Today naval forces operate jointly with other forces, especially with air 
forces. 22 As an integral part of these joint operations, naval forces can no longer be 
considered bound by only one set of rules specifically and exclusively designed for 
them. Moreover, even if naval operations were confined to the maritime environ- 
ment, they would always imply the use of aircraft and of missiles because these as- 
sets are among the most effective weapons against enemy naval forces. 

Of course, the San Remo Manual does not follow the limited approach of the 
treaties of 1907 23 or of 1936. 24 Its provisions are not limited to naval platforms, but 
also relate to military aircraft, civil aircraft, and to missiles. 25 Thus, the Manual has 
broadened — or at least clarified — the scope of the term "law of naval warfare" to 
cover not only ship-to-ship, but also ship-to-air and air-to-ship operations, 



273 



A Fresh Look at the San Remo Manual 



including the use of missiles; as well as "prize measures," and the protection of ves- 
sels, aircraft, objects and persons at sea, on land, and in the air. 

While the San Remo Manual addresses many of the issues arising from the inter- 
action of naval and air warfare, its provisions sometimes give reason to assume that 
naval warfare still has been regarded in isolation. At least one cannot entirely escape 
the impression that the aerial element of maritime operations, as well as the possi- 
ble impact of aircraft on naval operations, has been dealt with only marginally. 

With paragraph 45 stating that "surface ships, submarines and aircraft are 
bound by the same principles and rules," the San Remo Manual starts from the 
premise that when it comes to methods and means of naval warfare there is no 
need to distinguish between the vehicles or platforms employed. Since the basic 
principles of the law of armed conflict apply to all methods and means of warfare, 
this approach seems to be logical and cogent. Still, the question remains whether 
this approach will lead to operable and viable provisions for the conduct of modern 
maritime operations. For example, the Manual's rules on mine warfare and on 
blockade do not seem to meet that test. The same holds true with regard to those 
rules dealing with enemy and neutral aircraft. 

Aerial Threats 

Aircraft have always posed, and continue to pose, a considerable threat — a threat 
not limited only to naval platforms. Accordingly, particularly the conditions that 
render civil aircraft legitimate military objectives need to be reconsidered. An air- 
craft approaching naval surface forces can inflict damage to a warship by the use of 
comparatively inexpensive and non-sophisticated means. Moreover, it may gain 
and transmit information that is vital to the success of the military operation in 
question. The drafters of the 1923 Hague Rules 26 understood this and, accordingly, 
agreed upon Articles 33, 34, and 35 27 that would have enabled belligerents to deal 
with those threats adequately. 

Spaight, who is hesitant to accept the 1923 Hague Rules relating to the treatment 
of civil aircraft as suitable for adoption, 28 doubts whether Article 34 would prove 
operable in practice for the following reasons: 29 

Item ( 1 ) of the Article contemplates a contingency which is improbable; enemy non- 
military aircraft are hardly likely to venture into the jaws of the enemy's jurisdiction. 
The term 'operations' in item (3) of the same Article is unduly restricted. If a 
belligerent warship saw an enemy private aircraft suddenly approaching at high 
speed, surely it would be entitled to repel the aircraft by gunfire even if no operations 
were in progress in the locality? The reference to the 'immediate vicinity' of a 
'jurisdiction' — a new test in international law — may lead to difficulties in 
interpretation; it will not be an easy test for the officers concerned to apply in practice. 



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Wolff Heintschel von Heinegg 



The framing of both Articles in a positive, instead of the usual prohibitory, sense leads 
to lack of precision. The quite unchallengeable right of a belligerent to fire upon a non- 
military aircraft which disobeys his signal or order to stand offor change its course does 
not seem to be safeguarded, at any rate in the open sea when 'operations' are not in 
progress. 

Spaight therefore suggests replacing Articles 30, 33, and 34 with the following for- 
mulation: 30 

A non-military aircraft may not be fired upon in flight, unless 

( 1 ) It disobeys a belligerent's signals or orders; or 

(2) It enters an area notified by him as one of military activity in which aircraft 
circulate at their peril and are liable to be fired upon without warning. 

Spaight's criticism is not necessarily valid today. On the one hand, it is not im- 
probable that civil aircraft continue to fly within the jurisdiction of the respective 
enemy. On the other hand, the term "immediate vicinity of operations" has obvi- 
ously gained some support and, moreover, has to be distinguished from self- 
defense situations obviously (also) envisaged by Spaight. While we will return to 
these concepts, it needs to be emphasized here that Spaight, despite his criticism, 
agrees that aircraft — enemy or neutral — pose a considerable risk and that the 
belligerents are entitled to counter that risk if necessary by the use of armed force. 

Unlike Spaight and the 1923 Hague Rules, 31 the San Remo Manual obviously 
underestimates that threat and imposes upon belligerents obligations of absten- 
tion that will hardly meet the test of reality. Accordingly, therefore paragraph 63 (f) 
is too restricted. Pursuant to that provision, an enemy civil aircraft is a legitimate 
military objective if it, inter alia, is "armed with air-to-air or air-to-surface weap- 
ons." This excludes, as emphasized in the explanations, "light individual weapons 
for defence of the crew, and equipment that deflects an attacking weapon or warns 
of an attack." 32 But it remains an open question of what weapons can be qualified 
as coming within the categories of paragraph 63 (f). Moreover, this formulation 
leaves out of consideration the possibility that the aircraft itself is used as a weapon. 
The way modern warships are constructed would not enable them to sustain a hit 
by an aircraft. In this context, one should not think of "Kamikaze" aircraft used as a 
pattern of an unsuccessful military tactic or strategy. What needs to be considered 
are scenarios similar to that of the USS Cole incident. 33 



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A Fresh Look at the San Remo Manual 



Mine Warfare 

One consequence of equating warships and aircraft is that the latter would also be 
obliged to "record the locations where they have laid mines." 34 States possessing 
advanced military equipment may be in a position to comply with that obligation, 
e.g., by equipping air delivered mines with a system that would transmit their loca- 
tion without the enemy belligerent profiting from the signals. The majority of 
States will, however, hardly be in a position to acquire such systems. As the practice 
of World War II demonstrated, the recording of minefields laid by aircraft is a most 
difficult undertaking 35 and an obligation to do so does not seem to reflect custom- 
ary international law. 36 Closely related is the problem — at least for a considerable 
number of States — of how to provide "safe alternative routes for shipping of neu- 
tral States" 37 in case the mining is executed by military aircraft. The minelaying bel- 
ligerent will, in many cases, only be in a position to identify the mine area as such 
but not routes through the minefield that would be sufficiently safe. No consider- 
able difficulties arise with regard to the obligation laid down in paragraph 85 of the 
San Remo Manual?* For example, the United States, when mining Haiphong har- 
bor, made it possible for merchant vessels lying there to leave the harbor by day- 
light. The mines delivered by aircraft were activated three days after their 
delivery. 39 

Blockade 

It is true that in the past blockades were a method of economic warfare at sea; how- 
ever, today a blockade will regularly be an integral part of a genuinely military op- 
eration. Therefore, the lack of a definition of the concept of blockade in the San 
Remo Manual could give rise to some unnecessary misunderstandings. 40 Such a 
definition could read as follows: "Blockade is a method of naval warfare by which a 
belligerent prevents vessels and/or aircraft of all nations from entering or exiting 
specified ports, airfields, or coastal areas belonging to, occupied by, or under the 
control of an enemy nation." 

The purpose of establishing a blockade is to deny the enemy the use of enemy 
and neutral vessels or aircraft to transport personnel and goods to or from enemy 
territory. It should be emphasized that a blockade is the only method of naval war- 
fare by which belligerents may interfere with enemy exports. 

But even if exclusively directed against the enemy's economy, there will always 
be a strategic element because the enemy's capabilities of resistance will necessar- 
ily be weakened. 41 Regardless of the distinction between economic and strategic 
blockades there is today general agreement that a blockade need not be enforced 
exclusively against seagoing vessels but that it may also be enforced against air- 
craft. 42 Moreover, and in view of the importance of aerial reconnaissance, a 

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blockade may be maintained and enforced "by a combination of legitimate meth- 
ods and means of warfare," 43 including military aircraft. 44 

The San Remo ManuaTs provisions on blockade, however, lack any express ref- 
erence to aircraft. Of course, an interpretation of paragraphs 96 45 and 97 46 justifies 
the conclusion that a blockade may also be enforced and maintained by military 
aircraft. In most cases, these aircraft will operate from a warship that serves as their 
base. 47 It is also possible, however, that the aircraft entrusted with the enforcement 
of a blockade are deployed on airfields on land. Still, while there seems to be general 
agreement on the lawfulness of the enforcement of a blockade by military aircraft, 
two questions remain unanswered. ( 1 ) Is the presence of a warship or its opera- 
tional control of the military aircraft necessary for a blockade to be lawful or may a 
blockade be enforced by aircraft (and mines) alone? (2) What criteria have to be 
met in order for the blockade to be effective if it is maintained and enforced by 
aircraft? 

In most cases, the aircraft entrusted with the enforcement of a blockade need 
not be dependent upon a warship, i.e., they are not necessarily under the opera- 
tional control of a warship. However, the answer to the first question becomes a lit- 
tle complicated if one takes into consideration the following scenario: A merchant 
vessel or a neutral warship may be damaged or in another distress situation. There- 
fore, it will have to access the blockaded coast or port but the blockade is main- 
tained by mines and aircraft only. How will the blockading power be able to 
comply with its obligation to allow ships in distress entry into the blockaded coast- 
line if no warship is in the near vicinity? 48 Accordingly, there is at least one argu- 
ment against the legality of a blockade that is enforced and maintained without a 
surface warship present in, or in the vicinity of, the blockaded area. 

As regards the second question, one may be inclined to point to the well-established 
rule according to which the "question whether a blockade is effective is a question 
of fact." 49 While it is clear that "effectiveness" can no longer be judged in the light 
of the state of technology of the 19th century 50 and, while the view is widely held 
that effectiveness continues to be a constitutive element of a legal blockade, 51 it 
must be recognized that there are no criteria that would make possible an abstract 
determination of the effectiveness of all blockades. In this context, Castren 
postulates: 

Aircraft in the blockaded area may leave the area when there are other aircraft on patrol 
duty so that the blockade remains in force the whole time. The activities of aircraft even 
in connexion with a naval blockade are effective only to the extent that they do in fact 
dominate the air. 52 



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It is maintained here that this position is correct. In any event, aircraft will be used 
tor the enforcement of a blockade only if the respective belligerent has gained air 
superiority. Otherwise, the use of aircraft would be too dangerous. 

A further aspect regarding blockade, as dealt with in the San Remo Manual, is 
whether this method of naval warfare is necessarily restricted to vessels or whether 
it may also be enforced vis-a-vis aircraft. Again, the provisions of the San Remo 
Manual are silent on this issue. The "explanations" reveal that the legal and naval 
experts, in the context of the effectiveness of a blockade, considered that question 
only indirectly. 53 While it may be correct that a (purely) naval blockade may not be 
considered to have lost its effectiveness for the sole reason that a considerable small 
number of aircraft continue to land within the blockaded area, this is but one as- 
pect. Although traditionally blockades have been viewed as a method of naval war- 
fare proper, there is no reason why it may not be extended (or even restricted) to 
aircraft. 54 In this context, the argument that "transport by air only constitutes a 
very small percentage of bulk traffic" 55 is not absolutely convincing. The blockaded 
belligerent State, either alone or together with its allies, may have a considerable air 
fleet at its disposal. As the example of the "blockade of Berlin" shows — although 
the cargoes only served humanitarian purposes — a considerable percentage of 
bulk traffic can be transported by air over a considerable period of time. 

Methods and Means of Naval Warfare 

Despite the lack of a definition and despite the disregard of the aerial elements, the 
provisions of the San Remo Manual on blockade certainly reflect customary inter- 
national law. 56 Whether this also holds true with regard to the provisions on 
zones 57 is far from settled. Of course, it seems that, in principle, zones have become 
a recognized method of naval warfare 58 — and it is quite probable that the Manual 
has contributed to that development. Still, as already stated elsewhere, 59 the San 
Remo Manual's provisions on zones remain rather obscure, particularly with re- 
gard to the purpose such zones may serve. This, however, is not the only criticism 
of the Manual's provisions on methods and means of naval warfare. 

Precautions in Attack 

The Manual's rules on precautions in attack are directly taken from the 1977 Addi- 
tional Protocol I. 60 In principle, this does not necessarily pose problems — even 
though Additional Protocol I is far from being recognized by all States of the world. 
It would be futile to reopen the famous dispute between Meyrowitz 61 and Rauch 62 
on whether and to what extent the provisions of Additional Protocol I apply to na- 
val warfare at all. It is maintained here that, according to Article 49(3) of the 

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Protocol I, a special body of rules applies to ship-to-ship, ship-to-air, and to air-to- 
ship attacks as long as such attacks do not affect civilians or civilian objects on land. 
That is also clear from a reading of Article 49 (4 ). 63 Accordingly, Articles 58 and 59 
of Additional Protocol I are inapplicable to naval warfare as treaty law. Whether 
and to what extent they are customary in character is not quite settled. 64 Moreover, 
it is far from clear whether paragraph 46 of the San Remo Manual offers operable 
solutions for the conduct of hostilities at sea. The use of the concept of "feasibility" 
certainly mitigates some of the difficulties. Still, if naval operations are conducted 
in sea areas with dense maritime traffic, like in the Persian Gulf, it could become 
nearly impossible to determine "whether or not objects which are not military ob- 
jectives are present in an area of attack." 65 The USS Vincennes incident may be in- 
dicative of the difficulties involved. 66 Legal rules that are merely paid lip service will 
certainly not pass the test of practice. 

Naval Bombardment 

Attacks against targets on land (naval bombardment) are not dealt with explicitly 
in the San Remo Manual. This is partly due to the fact that the participants regarded 
this subject as already covered by the respective provisions of Additional Protocol 
I. 67 It should be kept in mind, however, that not all States are bound by the Proto- 
col. Then the question arises whether the provisions of the 1907 Hague Conven- 
tion IX 68 constitute customary international law. 

Even if that question is answered in the affirmative, 69 it remains unsettled how 
to deal with aircraft launched from warships attacking targets on land. According 
to Article XLI of the 1923 Hague Rules "aircraft on board vessels of war, including 
aircraft-carriers, shall be regarded as part of such vessels." This could imply that the 
rules applicable to warships engaged in naval bombardment also apply to aircraft 
launched from them. Then, however, such aircraft would be allowed to attack mili- 
tary objectives in non-defended localities. 70 While Additional Protocol I, Article 
59, paragraph 1 , prohibits attacks on such localities "by any means whatsoever," 
i.e., including aircraft, such attacks would not be prohibited under Articles 1 and 2 
of Hague Convention IX. Castren takes the position that Hague Convention IX 
"must probably be understood to concern warships only, and not aircraft even 
when collaborating with them." 71 If, however, Article XLI of the 1923 Hague Rules 
is a correct statement of customary law, warships and military aircraft launched 
from warships would be bound by the same rules. 

Apart from the wording of these provisions, a further argument in favor of the 
view that land attacks by aircraft operating from warships should be governed by 
Additional Protocol I is the ability of modern aircraft to discriminate and to con- 
duct surgical strikes by means of high-precision ammunition. 

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Still, it must be remembered that for a locality to be entitled to protection 
against attacks, Article 59(2) of Additional Protocol I, and the probably corre- 
sponding rule of customary law, provides that four conditions must be met: 

(a) all combatants, as well as mobile weapons and mobile military 
equipment must have been evacuated; 

(b) no hostile use shall be made of fixed military installations or 
establishments; 

(c) no acts of hostility shall be committed by the authorities or by the 
population; and 

(d) no activities in support of military operations shall be undertaken. 

Accordingly, even if fixed military installations or establishments remain in the re- 
spective port or town this would not justify an attack "by any means whatsoever" if 
no hostile use is made of them. Then, regardless of the binding force of Additional 
Protocol I, an attack would probably be contrary to the law of armed conflict be- 
cause the object in question would not make an effective contribution to military 
action and its neutralization would not offer a definite military advantage. Be that 
as it may, a clarification of the rules applicable to naval bombardment, including 
the use of aircraft and missiles launched from warships, should be taken into 
consideration. 

Deception (and Surrender) 

The San Remo Manual's rules on deception are too vague and, thus, do not provide 
the necessary guidance for naval commanders. On the one hand, it is rather diffi- 
cult to distinguish "active simulation" 72 from "passive simulation." The capabili- 
ties of modern technologies could open a vast grey area and, consequently, could 
render the provision obsolete. On the other hand, there should be a definition of 
legitimate ruses amended by a non- exhaustive list of permitted ruses that should 
be drafted with a view to modern technologies. The traditional examples given for 
permissible ruses of naval — especially Count Luckner and the Cruiser Emden — 
have a romantic charm but they certainly are too remote from the realities of mod- 
ern naval operations. 73 

In a highly electronic environment and with over-the-horizon or beyond- 
visual-range capabilities, the hoisting of the true flag prior to an attack no longer 
seems to make much sense. However, ruses remain an important pattern of mod- 
ern naval warfare. Therefore, there is a growing need for specific rules enabling 

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naval commanders to distinguish between permissible ruses and prohibited acts of 
perfidy. While perfidy has been clarified in the San Remo Manual, ruses are not ad- 
equately addressed. It needs to be emphasized in this context that it is not always 
sufficient to draw the necessary conclusions from the prohibition of perfidy. For 
example, actively feigning the status of a protected vessel is prohibited by para- 
graph 1 10 of the Manual and the corresponding customary law. 74 This rule, how- 
ever, is without prejudice to a decision to feign neutral status by the use of civilian 
radars or other electronic equipment. According to the position taken here, the use 
of civilian navigational radars (thus taking advantage of the respective emissions) 
is to be considered a permissible ruse of naval warfare if the radar is switched off 
immediately prior to the launching of an attack. It may well be, however, that this 
position is not shared by all. It should be recalled that, in 1983, the World Adminis- 
trative Conference for the Mobile Services adopted Resolution No. 18 75 on the 
identification of vessels and aircraft of States not participating in an international 
armed conflict, recommending the use of adequate transponders and that: 

The frequencies specified in No. 3021 of the Radio Regulations may be used by ships 
and aircraft of States not parties to an armed conflict for self- identification and 
establishing communications. The transmission will consist of the urgency or safety 
signals, as appropriate, described in Article 40 followed by the addition of the single 
group 'NNN' in radiotelegraphy and by the addition of the single word 'NEUTRAL' 
pronounced as in French 'neutral' in radiotelephony. As soon as practicable, 
communications shall be transferred to an appropriate working frequency. . . . 

It would, of course, be a considerable progress if the protection of neutral vessels 
were enhanced. However, that proposal is not suited for achieving that aim. As 
Fenrick has rightly pointed out, the resolution: 

appears to have been issued by a forum unfamiliar with law of armed conflict issues 
and without consultation with national officials responsible for such matters. Ships 
and aircraft using such procedures may assume they are entitled to protection when in 
fact they are not. The fact that a ship or aircraft is registered in a state not party to the 
conflict does not, in and of itself, mean that it is not a legitimate military objective. 76 

Therefore, it would certainly add to legal clarity and legal certainty if the rules on 
permissible ruses were amended by a non-exhaustive list of examples. 

A problem closely related, but not limited, to ruses and perfidy is the surrender 
of warships and military aircraft. The provision of the San Remo Manual referring 
to the surrender of warships 77 certainly reflects customary international law. 78 Still, 
in a modern battlefield environment, visual identification is rather the exception 
than the rule. Therefore, an effort should be undertaken to specify the different 

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possibilities of how warships and military aircraft can surrender at all. The more so 
since the San Remo Manual lacks a provision on enemy aircraft exempt from attack 
which have surrendered. It may, indeed, be difficult to verify whether a military 
aircraft has surrendered. 79 If, however, surrender has been offered bonafide y an at- 
tack on it would be contrary to basic rules of the law of armed conflict. 

Maritime Neutrality 

Probably, the law of neutrality is one of the most disputed aspects of public inter- 
national law. The diversity of views on the subject makes it almost impossible to es- 
tablish the continuing validity of that body of law, its scope of applicability, and its 
content. The drafters of the San Remo Manual have been heavily criticized for hav- 
ing adopted a rather traditional approach to the law of maritime neutrality. 80 It is 
maintained here, however, that this criticism is unfounded. 

Obsolete by Desuetude or Irrelevant under the Jus ad Bellum 7 . 

Although the said uncertainties persist, there is general agreement that there is a 
need to protect States not taking part in an international armed conflict, as well as 
their nationals, the vessels flying their flags and the aircraft bearing their mark- 
ings. 81 Moreover, there is similar agreement on the need for there to be obligations 
on neutral States, their nationals and their merchant shipping and civil aviation 
with a view to effectively prevent the escalation of an ongoing international armed 
conflict. 82 However, there is no consensus on how these objectives ought to be 
pursued. 

According to a widely held view, the traditional law of neutrality is incompatible 
with the jus ad bellum. 83 The proponents of that view claim that the traditional 
rules have been extensively modified by the UN Charter. Therefore, they maintain, 
States not parties to an ongoing international armed conflict are entitled to take a 
position of "benevolent" neutrality if one party to the conflict has violated the jus 
ad bellum. 84 Indeed, under the right of collective self-defense, States are entitled to 
participate in an international armed conflict on the side of the victim of aggres- 
sion. If they may assist the victim militarily then, a fortiori, they must be entitled to 
discriminate against the aggressor and to assist the victim State by any means short 
of war. In theory, this is certainly correct. However, the concept of benevolent neu- 
trality is operable only if the Security Council has authoritatively determined the 
aggressor. This is expressly recognized in paragraphs 7 and 8 of the San Remo Man- 
ual. 85 If, however, the Security Council is unable or unwilling to act under Chapter 
VII, the benevolent neutral's right will compete with the right of the aggrieved bel- 
ligerent to take appropriate counter measures in order to induce the neutral State 

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to comply with the traditional rules. The better view is, therefore, to apply the laws 
of neutrality to such situations because only by so doing can the object and purpose 
agreed upon — protection of neutrals and prevention of an escalation of the armed 
conflict — be achieved. 

Moreover, the concept of benevolent neutrality has no foundation in State prac- 
tice. The proponents of that view ignore the fact that, since 1945, third States assist- 
ing one belligerent to the disadvantage of the other never referred to the right of 
collective self-defense. 86 Rather, they either advanced contractual obligations, or 
they claimed that their assistance did not cover military ("lethal") items, 87 or they 
simply acted clandestinely. 88 Hence, State practice since 1945 is not apt "for prov- 
ing that a new legal status of non-belligerency has emerged as a concept of law. It 
would be all too easy to avoid duties of neutrality by just declaring a different sta- 
tus." 89 The fact that in many instances "non-belligerents" endeavored to conceal 
their assistance indicates, if not proves, that they had not based their conduct on a 
corresponding opinio juris. 

Hence, State practice, as well as military manuals 90 and the International Law 
Association's Helsinki Principles, 91 support the view that the traditional rules of 
the law of maritime neutrality as codified in the 1907 Hague Convention XIII 92 
have neither become obsolete nor have they been extensively modified. Therefore, 
the provisions of the San Remo Manual continue to reflect customary interna- 
tional law. 

Continuing Value of the Laws of Maritime Neutrality 

The main reason why most States continue to pledge allegiance to the laws of mari- 
time neutrality is the intrinsic value of its principles and rules. On the one hand, 
this body of law serves the interests of neutral States by protecting them, their na- 
tionals, their merchant shipping and their aviation against the harmful effects of 
ongoing hostilities. 93 On the other hand, it guarantees that legitimate belligerent 
interests are not jeopardized by neutral States, their nationals, their merchant ship- 
ping and aviation unduly interfering in the warfighting and war- sustaining effort. 94 
It should be remembered, however, that the applicability of that law in its en- 
tirety is not triggered automatically as soon as an international armed conflict is in 
existence. This only holds true with regard to those rules of the law of maritime 
neutrality that are essential for safeguarding its object and purpose (essentialia 
neutralitatis) . There is widespread agreement that the following rules of the law of 
maritime neutrality become applicable to every armed conflict at sea, irrespective 
of a declaration of war or of a declaration of neutrality: protection of neutral wa- 
ters, 95 the obligation of neutral States to terminate violations of their neutral sta- 
tus, 96 and the prohibition of unneutral service. 97 

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It needs to be emphasized that, despite allegations to the contrary, 98 the 24-hour 
rule" also belongs to those essentialia neutralitatis. If a neutral State does not, on a 
non-discriminatory basis, prohibit access to its territorial sea and its internal wa- 
ters by belligerent warships, 100 a passage or sojourn exceeding 24 hours (unless un- 
avoidable on account of damage or stress of weather) would amount to the use of 
neutral waters as a sanctuary. If the neutral State does not terminate that violation 
of its neutral status, the aggrieved belligerent will be entitled to take appropriate 
countermeasures. 101 The ensuing potentialities for escalation are obvious. The fact 
that the international armed conflict takes place in areas remote from the neutral 
waters in question is irrelevant. While the aggrieved belligerent may not be in a po- 
sition to enforce the neutral State's obligations by directly interfering with its war- 
ships or military aircraft, it would certainly be entitled to take other measures in 
response to that violation of international law. Even if the aggrieved belligerent 
does not react at all, this does mean that there has not been a violation unless the 
aggrieved belligerent's conduct amounts to acquiescence. 

Of course, the 24-hour rule implies some inconveniences for belligerent war- 
ships and auxiliaries, especially if their visit in a neutral port is unrelated to the on- 
going international armed conflict. However, the object and purpose of the 24- 
hour rule is not limited to the protection of the belligerents, it also contributes to 
the protection of neutral States. If neutral States wish to remain under the protec- 
tion of the law of maritime neutrality they are under an obligation to apply and to 
enforce the 24-hour rule. It should not be forgotten that the rule may prove a most 
valuable tool in pursuing belligerent goals as the case of the GrafSpee clearly dem- 
onstrates. 102 

Measures Short of War 

A final criticism of the San Remo Manual relates to its section on "measures short 
of attack," i.e., prize law. The United Kingdom in particular has long taken the view 
that this part of the law of naval warfare and neutrality at sea has been considerably 
modified by the jus ad helium. This approach must be rejected. The provisions of 
the San Remo Manual on prize measures certainly reflect customary international 
law. There are, however, two aspects that should be reconsidered. 

Prize Law — Modified by the Jus ad Bellum? 

The San Remo Manual — as well as the military manuals of some navies — starts 
from the premise that the jus ad bellum and the ius in hello are two distinct parts of 
international law. 103 In view of the basic principle of the equal application of the ius 
in hello, 104 the San Remo Manual does not distinguish between the aggressor and 

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the victim of aggression, unless the UN Security Council has acted under Chapter 
VII of the Charter of the United Nations. 105 Accordingly, it allows all parties to an 
international armed conflict at sea to make use of the full spectrum of methods and 
means of naval warfare, including measures short of attack. 106 

According to the UK Manual, however, "the conduct of armed conflict at sea is 
subject to the limitations imposed by the UN Charter on all use of force." There- 
fore, in "a conflict of limited scope ... a belligerent state is constrained, to a greater 
extent than the rules set out in the present chapter might suggest, in the action that 
it may lawfully take against the shipping or aircraft of states not involved in the 
conflict." 107 

This position is far from new. The UK government has maintained it since the 
1980s — and has been heavily criticized for it. According to the position taken here, 
this criticism is well-founded. The British position would, if adopted by other 
States, lead to a most unfortunate lack of legal clarity and it would enable some ma- 
levolent States to arbitrarily deny the legality of measures taken by a belligerent 
against the shipping and aviation of States not parties to an ongoing international 
armed conflict. 

This position is not shared by the UK's allies who are unwilling to limit the spec- 
trum of methods and means provided by the law of naval warfare. 108 Obviously, 
those allies maintain that it will be up to them to decide whether and to what extent 
they will interfere with neutral shipping and aviation when engaged in an interna- 
tional armed conflict. And indeed the question arises as to who other than the bel- 
ligerent State is competent to decide what is "necessary and proportionate to the 
achievement of the goal for which force may be used." 

Of course, in case of an authoritative decision by the UN Security Council based 
upon Chapter VII of the UN Charter, a belligerent may be prevented from making 
use of the full spectrum provided by the law of naval warfare. However, if there is 
no such decision by the Security Council, it is generally recognized that the bellig- 
erent States alone are entitled to decide whether they will interfere with neutral 
shipping and aviation. The affected neutral States will be limited to a legal evalua- 
tion of the concrete measures taken, i.e., they may judge their legality in the light of 
the law of naval warfare and the law of maritime neutrality. 109 The right to judge, in 
a legally binding manner, the legality of the initial decision to resort to actions such 
as visit and search has been conferred upon the UN Security Council. Therefore, 
statements by neutral States on the legality of measures short of attack based upon 
rules other than those of the ius in hello (including the law of maritime neutrality) 
are to be considered merely political in character. 

Another concern with the UK position is that it may lead to an arbitrary applica- 
tion of the law of naval warfare. In this respect, the British conduct during the 

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Falklands War (1982) and during the Iran-Iraq War (1980-1988) may serve as an 
example. 110 

As is well known, during the Falklands War the British government, on April 28, 
1982, announced a Total Exclusion Zone (TEZ). 111 According to the wording of 
that proclamation the UK was prepared to attack every ship encountered within 
the limits of the TEZ. In the light of the jurisprudence of the Nuremberg Tribunal 
and of customary international law the legality of the TEZ, or of attacks performed 
therein, would have been more than doubtful. 112 It may well be that the proclama- 
tion was intended to deter rather than to serve as a legal basis for attacks on neutral 
shipping. It may well be that it was, after all, nothing but a — permissible — ruse of 
war. Taken at face value, however, and in view of the fact that the British govern- 
ment tried to justify the TEZ by referring to the right of self-defense, the British 
conduct during the Falklands War could also justify the following conclusion: if 
the British Government considers it necessary for its self-defense, it may decide to 
go beyond what is provided for by the law of naval warfare by establishing and en- 
forcing a "free-fire zone." 

During the Iran-Iraq War, the British Government chose the same approach. 
That time, however, it did not lead to a widening but rather to a restriction of the 
spectrum of measures provided by the law of naval warfare. After Iranian forces 
had stopped the British merchant vessel Barber Perseus^ the Foreign Office, on Jan- 
uary 28, 1986, declared: 

[U]nder Article 51 of the United Nations Charter a State such as Iran, actively engaged 
in an armed conflict, is entitled in exercise of its inherent right of self-defence, to stop 
and search a foreign merchant ship on the high seas if there is reasonable ground for 
suspecting that the ship is taking arms to the other side for use in the conflict. . . ." 113 

Thus, the British Government claimed the right to judge the legality of belligerent 
measures not in the light of the law of naval warfare alone, but also in the light of 
Article 51 of the UN Charter. 

In other words, if party to an international armed conflict, the British Govern- 
ment, by referring to its inherent right of self-defense, considers itself entitled to 
enlarge the spectrum of methods and means under the law of naval warfare. If not 
party to an international armed conflict, the British government denies that very 
right to the belligerents but claims to be entitled to judge and declare what is neces- 
sary and proportionate for the belligerents' self-defense. 

Hence, the British position will not lead to operable and practicable solutions. 
Of course, in theory it is always possible to identify a breach of the jus ad bellum. 
However, it must be emphasized that the prohibition of the use of force is an 



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integral part of the UN system of collective security. 114 If the Security Council is not 
in a position to authoritatively determine the limits of the right of self-defense in a 
given case, it remains with the parties to the conflict to determine and decide which 
measures are necessary. The only operable legal yardstick providing practical solu- 
tions will then be the jus in hello . Moreover, the British position is irreconcilable 
with the principle of the equal application of the ius in hello. The continuing valid- 
ity of that principle is confirmed by State practice since 1945 and by the Preamble 
to the 1977 Additional Protocol I. Accordingly, there is an overwhelming interna- 
tional consensus that the jus in hello does not discriminate between the alleged ag- 
gressor and the alleged victim of aggression. Moreover, that position may prove 
counterproductive for British interests in case the United Kingdom is party to an 
international armed conflict at sea. The use of prize measures by the Royal Navy, as 
provided for in the UK Manual, 115 could be qualified as illegal by other States that 
may refer to this very statement. 

Prize Measures and the Necessity of Prize Courts 

In view of the fact that, under customary international law, belligerents, by resort- 
ing to prize measures, are entitled to interfere with enemy and neutral merchant 
shipping and aviation, 116 it is indispensable to provide for the establishment of 
prize courts. There is no evidence in State practice or in legal writings that the tradi- 
tional maxim "Toute prise doit etre jugee" has become obsolete by desuetude. 117 
Rather, pre- and post-World War II practice and scholarly statements give ample 
proof that the maxim remains in force. 118 

Aspects to Be Reconsidered 

It has been shown in the foregoing that the provisions of the San Remo Manual on 
prize measures indeed restate the customary rules and principles on the subject 
matter. Still, the question remains whether those rules sufficiently take into ac- 
count practical requirements. 

On the one hand, there seems to be an unjustified discrimination between 
warships and military aircraft. As regards the rules applicable to military aircraft 
conducting visit and search operations, the San Remo Manual unnecessarily de- 
nies military aircraft the same rights as warships. While paragraphs 139 and 151 
allow, "as an exceptional measure," the destruction of enemy and of neutral mer- 
chant vessels, there is no such exception for enemy or neutral civil aircraft. It 
should be kept in mind that, according to Articles 57 to 59 of the 1923 Hague 
Rules, 119 the destruction of such aircraft would be permissible if certain condi- 
tions are met beforehand. 120 



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Moreover, the San Remo Manual, in paragraph 128, obliges belligerents "to ad- 
here to safe procedures for intercepting civil aircraft as issued by the competent in- 
ternational organization," i.e., to the International Civil Aviation Organization's 
(ICAO) Manual concerning Interception of Civil Aircraft. 121 While it is true that 
"the ICAO manual contains detailed procedures for interception," 122 those provi- 
sions are designed for interception operations in times of peace. It is, therefore, far 
from settled whether and to what extent the detailed procedures laid down in the 
ICAO manual are operable in times of armed conflict. 

On the other hand, a further alternative to visit and search should be consid- 
ered. Modern armed forces possess multi-sensors enabling them to identify certain 
cargoes, like chemicals or explosives. 123 Therefore, as an alternative to visit and 
search conducted in the traditional way, a belligerent may very well be satisfied 
with verifying the innocent character of cargo on board neutral merchant vessels 
and civil aircraft by merely "scanning" the vessels or aircraft with such sensors. Of 
course, whether the use of sensors is practicable and sufficient will depend upon 
the circumstances of each case. 

Conclusion 

The 1994 San Remo Manual has contributed in an invaluable manner to a clarifica- 
tion of the law applicable to naval warfare and maritime neutrality. The vast major- 
ity of its provisions are a contemporary restatement of customary international 
law. Since those provisions almost perfectly balance the interests of belligerents 
and of neutrals alike everything feasible should be undertaken to safeguard its tre- 
mendous achievement in restating a body of law that had not been comprehen- 
sively addressed since the adoption of the Oxford Manual 124 in 1913. 

We do, however, live in a time of rapid technological development that certainly 
has a deep impact upon military doctrine and on the conduct of hostilities. Disre- 
garding that development and the way modern armed conflicts are fought would 
marginalize the San Remo Manual and could even make it obsolete. While thanks 
to Yoram Dinstein considerable efforts are being undertaken to fill the Manual's 
gaps with regard to the aerial issues involved, the other issues addressed here 
should be thoroughly scrutinized and ultimately solved. The best way of adapting 
the San Remo Manual to the said developments would be to reconvene, under the 
auspices of the International Institute of International Humanitarian Law and of 
the International Committee of the Red Cross, a group of experts with a view to 
adopt an informal declaration that would not substitute for but merely amend or 
clarify parts of the San Remo Manual. 



288 



Wolff Heintschel von Heinegg 



Notes 

1. International Institute of Humanitarian Law, San Remo Manual on 
International Law Applicable to Armed Conflicts at Sea (1994), available at http:// 
www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/966627225C719EDCC1256B6600598E01 
[hereinafter SAN REMO MANUAL]. An accompanying explanation is written in the form of a 
commentary and indicates the sources used by the drafters for each of the provisions of the 
Manual, and the discussion which led to their adoption. See EXPLANATION: SAN REMO MANUAL 
on International Law Applicable to Armed Conflicts at Sea (Louise Doswald-Beck ed., 
1995) [hereinafter EXPLANATION]. 

2. US Navy: The Commander's Handbook on the Law of Naval Operations, NWP 1-14M/ 
MCWP5-2.1./COMDTPUBP5800.1 (1997) [hereinafter NWP 1-14]; Royal Navy: UK Ministry 
of Defence, The Manual of the Law of Armed Conflict, chap. 13 (2004) [hereinafter UK 
Manual]; German Navy: Commander's Handbook (Kommandanten-Handbuch) (2002) 
[hereinafter GN Manual] . 

3. See, inter alia, the papers presented by Steven Haines and by Jane Dalton in 36 ISRAEL 
Yearbook on Human Rights (forthcoming 2006). 

4. See Wolff Heintschel von Heinegg, Current Legal Issues in Maritime Operations: Maritime 
Interception Operations in the Global War on Terrorism, Exclusion Zones, Hospital Ships and 
Maritime Neutrality, 34 ISRAEL YEARBOOK ON HUMAN RIGHTS 151 (2004). 

5. See Wolff Heintschel von Heinegg, The Proliferation Security Initiative - Security vs. Freedom 
of Navigation?, 35 ISRAEL YEARBOOK ON HUMAN RIGHTS 181 (2005). 

6. In that case, the legal basis is the Security Council's decision based on Chapter VII of the 
Charter. While some navies, in their rules of engagement, also refer to rules and principles of the 
law of naval warfare, this is due to the fact that there exists no specific rules on the conduct of 
enforcement measures authorized by the Security Council. Therefore, they rely on the law of 
naval warfare as a general guidance only. This practice does not give evidence of an opinio juris 
that the respective States consider the law of naval warfare to be applicable in a formal sense. 

7. See SAN REMO MANUAL, supra note 1, para. 1. Note, however, that this provision does not 
correctly reflect customary international law as rightly pointed out by Steven Haines, supra note 3. 

8. The issues of arming hospital ships and of the use of secure communications on board 
hospital ships is dealt with in the article by Jane Dalton, supra note 3, and by Heintschel von 
Heinegg, supra note 4. 

9. For corresponding definitions, see UK Manual, supra note 2, para. 13.5; NWP 1-14M, supra 
note 2, paras. 2.1.1, 2.1.3, 2.2.1; GN Manual, supra note 2, paras. 83 et seq. 

10. For a long time, the Royal Navy has used civilian personnel to provide ship's services 
including food service, cleaning, and laundry. The US Navy also experimented with the concept 
of augmenting warship crews with civilian mariners supplied by the Military Sealift Command 
(MSC). Three years ago, MSC identified fleet command and control ships as platforms that can 
be transferred to MSC and staffed with civilian mariners. The USS Coronado had been chosen as 
the "pilot program" for this initiative. In addition, there is very often a considerable number of 
private contractors on board warships who maintain and/or operate electronic and weapons 
systems. 

11. NWP 1-14M, supra note 2, paras. 2.1 and 7.6.1; UK Manual, supra note 2, paras. 13.5 and 
13.91; GN Manual, supra note 2, paras. 200 et seq. and 280. See also Federal Ministry of Defence, 
Humanitarian Law in Armed Conflicts - Manual, paras. 1002 and 1015 (1992) (hereafter 
German Manual). 

12. See, e.g., German Manual, supra note 11, para. 1016. 

289 



A Fresh Look at the San Remo Manual 



45. "The force maintaining the blockade may be stationed at a distance determined by military 
requirements." The term "force" is broad enough to also cover military aircraft. 

46. Supra, text accompanying note 42. 

47. See CASTREN, supra note 42, at 409 et seq. 

48. See also EXPLANATIONS, supra note 1, para. 97.1, at 178. 

49. SAN REMO MANUAL, supra note 1, para. 95. 

50. Frits Kalshoven, Commentary on the 1909 London Declaration, in THE LAW OF NAVAL 
WARFARE, supra note 24, at 274 maintains: "[Developments in the techniques of naval and 
aerial warfare have turned the establishment and maintenance of a naval blockade in the 
traditional sense into a virtual impossibility. It would seem, therefore, that the rules in the 
Declaration on blockade in time of war are now mainly of historical interest." This position is 
certainly not shared by those States having published manuals for their respective navies or by 
other authors. See JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 508 (1954): 
"The realities of the present century require the British long distance blockade to be viewed as a 
long term transformation of the traditional law of blockade, rather than as mere reprisals, or 
mere breach of the traditional law." See also OPPENHEIM'S, supra note 31, at 796 et seq. 

51. See NWP 1-14 M, supra note 2, para. 7.7.2.3; UK Manual, supra note 2, para. 13.67; GN 
Manual, supra note 2, para. 293 et seq. 

52. CASTREN, supra note 42, at 409. 

53. EXPLANATIONS, supra note 1, para. 95.2, at 177: "The Round Table considered whether the 
fact that aircraft could still land within the territory of the blockaded belligerent would affect the 
effectiveness of a sea blockade. This was found not to be the case, as, on the one hand, transport 
of cargo by air only constitutes a very small percentage of bulk traffic and, on the other hand, the 
fact that transport over land could take place without affecting this criterion." 

54. See supra text accompanying notes 42 et seq. 

55. EXPLANATIONS, supra note 1, para. 95.2, at 177. 

56. Those rules were codified in the Paris Declaration Respecting Maritime Law, Mar. 13, 1856, 
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 13, at 48. Moreover, they have been 
incorporated into military manuals. See NWP 1-14M, supra note 2, para. 7.7; UK Manual, supra 
note 2, para. 13.65 et seq.; GN Manual, supra note 2, para. 291 et seq. Moreover, they have been 
recognized by the International Law Association in paragraph 5.2.10 of the Helsinki Principles 
on the Law of Maritime Neutrality. See International Law Association Committee on Maritime 
Neutrality, Final Report: Helsinki Principles on Maritime Neutrality, in International Law 
Association, Report of the Sixty-Eighth Conference 496 (1998), reprinted in THE LAWS OF 
ARMED CONFLICTS, supra note 23, at 1425, 1430 (less Commentaries) [hereinafter Helsinki 
Principles]. While it is true that in post- WW II State practice blockades have only played a 
minor role, it is untenable to maintain that the law of blockade has been rendered obsolete by 
desuetude. 

57. San Remo Manual, supra note 1, paras. 105 et seq. 

58. UK Manual, supra note 2, para. 13.77 et seq.; NWP 1-14M, supra note 2, para. 7.9; GN 
Manual, supra note 2, para. 302 et seq. 

59. See Heintschel von Heinegg, supra note 4. 

60. Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), Dec. 12, 1977, 1125 
U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 13, at 422. 

6 1 . Henri Meyrowitz, Le protocole additionel I aux conventions de Geneve de 1 949 et le droit de la 
guerre maritime, 89 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 245, 254 et seq. (1985): 
"Cette difference, repetons-le, est fondamentale et absolue. Fondamentale, en ce qu'elle decoule 



292 



Wolff Heintschel von Heinegg 



de l'essence respective du droit de la guerre terrestre et du droit de la guerre maritime, cette 
difference decoulant elle-meme de la difference entre les donnees de la guerre sur terre et celles 
de la guerre maritime. Absolue, parce qu'elle interdit de transposer les regies de Tune a l'autre." 

62. Rauch maintains that the provisions of Part IV, Section I, Additional Protocol I apply to all 
measures of naval warfare directed against merchant vessels. ELMAR RAUCH, THE PROTOCOL 
additional to the geneva conventions for the protection of victims of 
International Armed Conflicts and the United Nations Convention on the Law of 

THE SEA: REPERCUSSIONS ON THE LAW OF NAVAL WARFARE 57 et seq. (1984); see also Elmar 
Rauch, Le droit contemporain de la guerre maritime, 89 REVUE GENERALE DE DROIT 
International Public 958 (1985). 

63. See, inter alia, Michael Bothe, Commentary on the 1977 Geneva Protocol I, in THE LAW OF 
NAVAL WARFARE, supra note 23, at 761; Sally V. Mallison & W. Thomas Mallison, Naval 
Targeting: Lawful Objects of Attack, in THE LAW OF NAVAL OPERATIONS 259 et seq. (Horace B. 
Robertson, Jr. ed., 1991) (Vol. 64, US Naval War College International Law Studies). 

64. GN Manual, supra note 2, para. 321, and UK Manual, supra note 2, para. 13.32, both repeat 
the wording of paragraph 46 of the San Remo Manual. However, in NWP 1-14M, supra note 2, 
there is no express reference to precautions in attack. 

65. SAN REMO MANUAL, supra note 1, para. 46 (a). 

66. For the details, see David Evans, Vincennes - A Case Study, 119 U.S. NAVAL INSTITUTE 
PROCEEDINGS 49 (Aug. 1993); Norman Friedman, The Vincennes Incident, 115 U.S. NAVAL 
Institute Proceedings 74 (May 1989). 

67. While this view is shared by most writers, O'Connell seems to take the position that naval 
bombardment is governed by both Hague Convention IX and Additional Protocol I. See II 
Daniel P. O'Connell, The International Law of the Sea 1130 et seq., 1139, (Ivan A. 
Shearer ed., 1984). 

68. Supra note 23. 

69. See, inter alia, EBERHARD SPETZLER, LUFTKRIEG UND MENSCHLICHKEIT [AIR WARFARE 

and Humanity] 127 et seq. (1956). 

70. Obviously, this is the position taken by SPAIGHT, supra note 28, at 221 et seq. For an early 
criticism, see MORTON W. ROYSE, AERIAL BOMBARDMENT 162 et seq. (1928). 

71. CASTREN, supra note 42, at 402. 

72. San Remo Manual, supra note 1, para. 1 10. 

73. See Mary T. Hall, False Colors and Dummy Ships: The Use of Ruse in Naval Warfare, 40 
Naval War College REVIEW 52 (1989). See also TUCKER, supra note 42, at 139, who, in 1957, 
still believed that flying a false flag was of most practical importance. 

74. UK Manual, supra note 2, para. 13.83; NWP 1-14M, supra note 2, para. 12.1; GN Manual, 
supra note 2, para. 406 et seq. 

75. Reprinted in 238 INTERNATIONAL REVIEW OF THE RED CROSS 58 et seq. (Jan.-Feb. 1984). 

76. William J. Fenrick, Introductory Report: Military Objectives in the Law of Naval Warfare, in 
The Military Objective and the Principle of Distinction in Naval Warfare 40 (Wolff 
Heintschel von Heinegg ed., 1991). 

77. SAN REMO MANUAL, supra note 1, para. 47 (i). 

78. UK Manual, supra note 2, para. 13.33; GN Manual, supra note 2, para. 324 et seq.; NWP 1- 
14M, supra note 2, para. 8.2.1. 

79. In NWP 1-14M, supra note 2, para. 8.2.1, it is emphasized: "Disabled enemy aircraft in air 
combat are frequently pursued to destruction because of the impossibility of verifying their true 
status and inability to enforce surrender. Although disabled, the aircraft may or may not have 
lost its means of combat. Moreover, it still may represent a valuable military asset. Accordingly, 



293 



A Fresh Look at the San Remo Manual 



surrender in air combat is not generally offered. However, if surrender is offered in good faith so 
that circumstances do not preclude enforcement, it must be respected." 

80. E.g., by Steven Haines, supra note 3. 

8 1 . CASTREN, supra note 42, at 500 et seq.; TUCKER, supra note 42, at 206 et seq.; OPPENHEIM'S, 
supra note 31, at 675 etseq.; Yoram Dinstein, Neutrality in Sea Warfare, in III ENCYCLOPEDIA OF 
PUBLIC INTERNATIONAL LAW 558 etseq. (Rudolf Bernhardt ed., 1997). 

82. Supra note 81. See also STEFAN OETER, NEUTRALITAT UND WAFFENHANDEL 129 et seq. 
(1992); Dietrich Schindler, Aspects contemporains de la neutrality 121 RECEUIL DE COURS 263 
(1967); Michael Bothe, Neutrality at Sea, in THE GULF WAR 1980-1988, at 205 et seq (Ige F. 
Dekker & Harry H.G. Post eds., 1992). 

83. Schindler, supra note 82, at 261 et seq.; Krzysztof Skubiszewski, Use of Force by States. 
Collective Security: Law of War and Neutrality, in MANUAL OF PUBLIC INTERNATIONAL LAW 840 
et seq. (Max Sorensen ed., 1968); Philip C. Jessup, Should International Law Recognize an 
Intermediate Status Between War and Peace?, 48 AMERICAN JOURNAL OF INTERNATIONAL LAW 
98 et seq (1954); Quincy Wright, Rights and Duties Under International Law, 34 AMERICAN 
JOURNAL OF INTERNATIONAL LAW 238 etseq. (1940); Frederick R. Coudert, Non-Belligerency in 
International Law, 29 VIRGINIA LAW REVIEW 143 (1942); Andrea Gioia, Neutrality and Non- 
Belligerency, in International Economic Law and Armed Conflict 51 et seq. (Harry H.G. 
Post ed., 1994); Ove Bring, Comments, in THE GULF WAR 1980-1988, supra note 82, at 244. 

84. Supra note 83; see also OPPENHEIM'S, supra note 31, at 651. 

85. Paragraph 7: "Notwithstanding any rule in this document or elsewhere on the law of 
neutrality, where the Security Council, acting in accordance with its powers under Chapter VII 
of the Charter of the United Nations, has identified one or more parties to an armed conflict as 
responsible for resorting to force in violation of international law, neutral States: (a) are bound 
not to lend assistance other than humanitarian assistance to that State; and (b) may lend 
assistance to any State which has been the victim of a breach of the peace or an act of aggression 
by that State." Paragraph 8: "Where, in the course of an international armed conflict, the 
Security Council has taken preventive or enforcement action involving the application of 
economic measures under Chapter VII of the Charter, Member States of the United Nations 
may not rely upon the law of neutrality to justify conduct which would be incompatible with 
their obligations under the Charter or under decisions of the Security Council." 

86. See OETER, supra note 82, at 136. 

87. For example, the British Government, during the Iran-Iraq War (1980-1988), stated that it 
would not deliver "lethal equipment" to Iraq, but added that it would nevertheless "attempt to 
fulfill existing contracts and obligations." See 56 BRITISH YEARBOOK OF INTERNATIONAL LAW 
534(1985). 

88. It suffices here to mention the Iran-Contras affair. See Alan T. Leonhard, Introduction, in 
Neutrality - Changing Concepts and Practices 4 (Alan T. Leonhard ed., 1988). 

89. Bothe, supra note 82, at 207. 

90. NWP 1-14M, supra note 2, chap. 7; GN Manual, supra note 2, chap. 3; UK Manual, supra 
note 2, para. 13.9 (note that para. 13.9 has been supplemented by para. 13.9 A to E). 

91. Supra note 56. 

92. Supra note 23. 

93. See the references, supra note 81 et seq. 

94. Id. 

95. Hague Convention XIII, supra note 23, arts. 1, 2, and 5; UK Manual, supra note 2, para. 13.8 
etseq.; NWP 1-14M, supra note 2, paras. 7.3.2, 7.3.4; GN Manual, supra note 2, para. 236, 243; 



294 



Wolff Heintschel von Heinegg 



SAN REMO MANUAL, supra note 1, paras. 15-17; Helsinki Principles, supra note 56, paras. 1.4, 
2.1. 

96. Hague Convention XIII, supra note 23, art. 8; UK Manual, supra note 2, para. 13.9E; NWP 
1-14M, supra note 2, paras. 7.3 and 7.3.4.1; GN Manual, swpra note 2, para. 232; SAN REMO 
MANUAL, supra note 1, para. 22. 

97. The term "unneutral service" refers to a conduct of neutral merchant vessels which is in 
support of the enemy belligerent, e.g. the carriage of contraband. See Dinstein, supra note 81, at 
564 et seq. With regard to the prohibition of unneutral service, see Declaration Concerning the 
Laws of War arts. 45, 46, Feb. 26, 1909, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 
23, at 1 113; NWP 1-14M, supra note 2, para.7.4; UK Manual, supra note 2, para. 13.84 etseq.; GN 
Manual, supra note 2, para. 258 et seq.; SAN REMO MANUAL, supra note 1, paras. 112 et seq.; 
Helsinki Principles, supra note 56, paras. 5.2.1 etseq. 

98. See UK Manual, supra note 2, para. 13.4: "[T]he United Kingdom takes the view that the 
old rule which prohibited belligerent warships from remaining in neutral ports for more than 24 
hours except in unusual circumstances, is no longer applicable in view of modern state practice." 

99. The 24-hour rule is expressly recognized in Hague Convention XIII, supra note 23, art. 12; 
NWP 1-14M, supra note 2, para. 7.3.2.1; GN Manual, supra note 2, para. 236 etseq.; SAN REMO 
MANUAL, supra note 1, para. 21; Helsinki Principles, supra note 56, para. 2.2. See also Dinstein, 
supra note 81, at 559 et seq.; Paul Parfond, Le statut juridique des navires de guerre belligerants 
dans les ports neutres, REVUE MARITIME 867 (1952). 

100. Hague Convention XIII, supra note 23, art. 9; NWP 1-14M, supra note 2, paras. 7.3.2 and 
7.3.4; UK Manual, supra note 2, para. 1 13.9B; GN Manual, supra note 2, para. 245. See also Tucker, 
supra note 42, at 240; OPPENHEIM'S, supra note 31, at 727 etseq.; CASTREN, supra note 42, at 519 
et seq. 

101. See the references supra note 96. 

102. For an in-depth analysis of the Graf Spee incident, see DANIEL P. O'CONNELL, THE 
INFLUENCE OF LAW ON SEA POWER 27 et seq. (1975). 

103. See SAN REMO MANUAL, supra note 1, paras. 3 et seq. See also NWP 1-14M, supra note 2, 
para. 5.1; GN Manual, supra note 2, para. 218. 

104. For a detailed analysis of this principle, see HENRI MEYROWITZ, Le PRINCIPE DE L'EGALITE 
DES BELLIGERANTS DEVANT LA DROIT DE LA GUERRE (1970). See also YORAM DINSTEIN, THE 

Conduct of Hostilities under the Law of International Armed Conflict 4 (2004). 

105. SAN REMO MANUAL, supra note 1, paras. 6 etseq. 

106. The same approach underlies NWP 1- 14M, supra note 2, and the GN Manual, supra note 2. 

107. UK Manual, supra note 2, para. 13.3. 

108. Supra note 106. 

109. Evidence can be found in the practice of States during the Iran-Iraq War. The attacks on 
neutral merchant vessels were condemned by the UN Security Council (SC Res. 552, June 1, 
1984) and by the member States of the European Community. See Bulletin of the European 
Communities, Commission, No. 9, at 7 ( 1980); European Political Cooperation Documentation 
Bulletin, Vol. 3, No. 2, at 93 (1987) and Vol. 4, No. 1, at 173 etseq. (1988). 

110. For a detailed analysis of that practice, see William J. Fenrick, The Exclusion Zone Device in 
the Law of Naval Warfare, 24 CANADIAN YEARBOOK OF INTERNATIONAL LAW 91 (1986). See also 
Ronald P. Barston & Patricia Birnie, The Falkland Islands/Islas Malvinas Conflict- A Question of 
Zones, 7 MARINE POLICY 14 (1983); A. Vaughan Lowe, Commentary, in THE IRAN-IRAQ WAR 
(1980-1988) AND THE LAW OF NAVAL WARFARE 241 et seq. (Andrea de Guttry & Natalino 
Ronzitti eds., 1993). 

1 1 l."[T]he exclusion zone will apply not only to Argentine warships and naval auxiliaries but 
also to any other ship, whether naval or merchant vessel, which is operating in support of the 
illegal occupation of the Falkland Islands by Argentine forces. The zone will also apply to any 



295 



A Fresh Look at the San Remo Manual 



aircraft, whether military or civil, which is operating in support of the Argentine occupation. 
Any ship and any aircraft, whether military or civil, which is found within the zone without 
authority from the Ministry of Defence in London will be regarded as operating in support of the 
illegal occupation and will therefore be regarded as hostile and will be liable to be attacked by 
British forces." TIMES (London), Apr. 29, 1982, reprinted in 53 THE BRITISH YEARBOOK OF 
International Law 542 (1982). 

112. However, Fenrick, supra note 1 10, at 1 12 et seq., maintains that the British TEZ was legal in 
view of the fact that in was established in a remote sea area and that neutral ships were not 
attacked. 

113. Statement by the Minister of State, Foreign and Commonwealth Office, Jan. 28, 1986, 
House of Commons Debates, Vol. 90, col. 426, reprinted in 57 THE BRITISH YEARBOOK OF 
International Law 583 (1986). 

114. See YORAM DlNSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 80 et seq. (3d ed. 2001). 
115.UK Manual, supra note 2, para. 13.84 et seq. 

116.NWP 1-14M, supra note 2, para. 7.4; GN Manual, supra note 2, para. 258 et seq.; Helsinki 
Principles, supra note 56, paras. 5.2.1 et seq. See also Wolff Heintschel von Heinegg, Visit, Search, 
Diversion and Capture in Naval Warfare: Part I, The Traditional Law, 29 CANADIAN YEARBOOK 
OF INTERNATIONAL LAW 283 et seq. (1991); Part II, Developments since 1945, 30 Canadian 
Yearbook of International Law 89 et seq. (1992). 

117. Paul Reuter, ETUDE DE LA REGLE: 'TOUTE PRISE DOIT ETRE JUGEE' (1933). 

1 18. See the references supra note 1 16. See also Dinstein, supra note 81, at 566. 

119. Supra note 21. 

120. As already mentioned, these conditions are similar to those laid down in the San Remo 
Manual on the destruction of "prizes." Note that SPAIGHT, supra note 28, at 394 etseq. and 409 et 
seq., doubts whether the 1923 Hague Rules would be operable. 

121. See also Convention on International Civil Aviation, Annex 2, Dec. 7, 1944, 61 Stat. 1 180, 15 
U.N.T.S. 295. 

122. EXPLANATIONS, supra note 1, para. 128.1. 

123. For a most recent description of the capabilities of such sensors, see JANE'S DEFENCE 
WEEKLY, Apr. 14, 2004, at 23 etseq. 

124. Institute of international Law, The Laws of Naval War Governing the 
Relations between Belligerents (1913), reprinted in The Laws of Armed Conflict, supra 
note 23, at 1123. 



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XV 



Future Navies — Present Issues 



Jane G. Dalton* 



The US Navy is transforming to deal with a wider range of missions than the 
traditional blue- water, major combat operations which it has traditionally 
been equipped to handle. 1 That emerging transformation has resulted in a number 
of new programs, technologies, and strategies that raise interesting, and sometimes 
complex, legal issues. Lawyers advising the Navy's leadership through this 
transformational process are analyzing these legal issues now, in the present, to en- 
sure that the future US Navy is properly, and legally, organized, trained and 
equipped. This article will address five topics of interest for naval planners and legal 
advisors who are building the Navy of tomorrow. 

Civilian Mariners and Sea Basing 

The US Navy currently maintains a force of approximately 550,000 full-time per- 
sonnel, about 35% of whom are civilians. At any given time, 130-plus of the Navy's 
283 ships are underway. That constitutes about 45% of the total ship inventory. 2 In 
2004, former Chief of Naval Operations (CNO) Admiral Vern Clark directed the 



* Charles H. Stockton Professor of International Law at the United States Naval War College. 
The views expressed in this article are those of Professor Dalton and are not necessarily those of 
the Naval War College, the United States Navy, or the Department of Defense. This article was 
previously published in the Naval War College Review, Volume 59, No. 1 (Winter 2006) at page 
79. © 2006 by Jane G. Dalton. 



Future Navies — Present Issues 



Navy to maximize capabilities, minimize payroll, improve productivity and elimi- 
nate unnecessary billets. 3 One way to meet those goals is to remove sailors from bil- 
lets that have little to do with warfighting, and replace them with civilians. At sea, 
sailors cut hair, serve meals, maintain the engineering plant, chip paint — all tasks 
that civilians are equally capable of performing, and do perform, at commands 
ashore. Placing civilians on warships to perform those tasks is a logical extension of 
the CNO's guidance and would free sailors to engage in combat-related activities. 

The Navy's answer to the CNO's challenge is an experimental program to place 
federal civil service mariners onboard warships. These civilian mariners perform 
tasks sailors have traditionally performed onboard warships, but that civilian mari- 
ners have performed onboard auxiliary vessels for decades and onboard merchant 
vessels for centuries — navigation, engineering, and deck seamanship. For example, 
in early 2005, USS Mount Whitney (LCC/JCC-20) deployed to the European the- 
ater as the new US Sixth Fleet and North Atlantic Treaty Organization (NATO) 
command ship — one of the most sophisticated Command, Control, Communica- 
tions, Computer, and Intelligence (C4I) ships ever commissioned. 4 Mount Whitney 
is manned by a hybrid crew consisting of 157 US Navy sailors and 143 civilian mar- 
iners employed by the Military Sealift Command. These 300 personnel represent a 
reduction of 276 people from the previous all active-duty Navy crew. "By supple- 
menting the .crew with civilian mariners," the Sixth Fleet Public Affairs Office re- 
ports, "the Navy is operating the command ship at a reduced cost and employing 
captured uniformed personnel billets on forward combatant vessels." 5 Mount 
Whitney will be engaged in NATO exercises and Standing Naval Forces Mediterra- 
nean maritime operations and will be available as a command and control ship for 
future combat operations if required. 

In addition to placing civilian mariners on warships performing functions active- 
duty sailors have performed in the past, the Navy is simultaneously pursuing the 
concept of "sea basing" as a transformational initiative. Sea basing is the Navy's an- 
swer to the concern that access to bases in foreign territory will be less predictable 
and more ad hoc than in the past. This concern is not an idle or speculative one, as 
evidenced by Turkey's refusal during Operation Iraqi Freedom to permit the 4th 
Infantry Division to cross Turkish territory into Northern Iraq. 

The sea base is envisioned as a system of systems — a flotilla of ships that serves as 
a staging and sustainment area for ground forces to launch attacks ashore in a non- 
permissive environment — sometimes referred to as "forcible entry operations." 
Though no one knows exactly what the sea base will look like in any detail, it will 
probably consist of a "network of ships providing offshore artillery fire, air sup- 
port, supplies and a secure home for troops fighting on land." 6 The primary com- 
ponents of the sea base could include the Maritime Prepositioning Force Future 

298 



Jane G. Dalton 



(MPF-F) cargo ship, the next generation destroyer (DDX), the Littoral Combat 
Ship (LCS) and the Amphibious Assault Ship (LHA-R) in conjunction with exist- 
ing guided-missile cruisers and destroyers, aircraft carriers, and submarines. 7 

Of particular interest for this discussion is the role of the MPF-F cargo ship in 
sea basing operations. The MPF-F is designed as the replacement for today's 
prepositioning force cargo ships and would serve as a floating logistics center. One 
report notes that it would be "nearly as large as an aircraft carrier" and would "ac- 
commodate heavy-lift helicopters and perhaps cargo planes as large as the Air 
Force's C-130. It would be able to move supplies and equipment to those aircraft 
and other ships while at sea." 8 Another report, however, depicts a role directly in- 
volved in combat operations. It refers to the MPF-F as a replacement for the big- 
deck Tarawa-class ships and describes it as a "fighting logistics ship with a flight 
deck big enough to send hundreds of Marines ashore in rotorcraft and launch Joint 
Strike Fighters." 9 

If the MPF-F ship is manned similar to existing prepositioning ships, the crew 
will consist entirely of civilian mariners. There is no legal prohibition against man- 
ning naval auxiliaries such as oilers, ammunition ships, supply ships, and 
prepositioning ships with civilian mariners. In fact, these mariners have a recog- 
nized status under the Geneva Conventions as "civilians accompanying the force" 
and are entitled to prisoner of war status if captured. 10 Issues arise, however, if the 
MPF-F is indeed to become part of the "assault echelon" — if Marines or soldiers 
actually launch from the ship into combat operations ashore. Similar issues arise if 
Mount Whitney, with a hybrid crew of active-duty sailors and civilian mariners, is 
employed as a C4I ship in a future armed conflict. 

The issues that arise are twofold: First, under conventional and customary inter- 
national law, a warship is manned by a crew under regular armed forces discipline. 
Second, civilians who assist in operating and maintaining a warship engaged in in- 
ternational armed conflict could be viewed as participating actively or directly in 
hostilities, and thus as having lost their protected status as civilians accompanying 
the force. These two issues will be addressed in turn. 

Article 29 of the 1982 United Nations Convention on the Law of the Sea 11 and 
Article 8 of the 1958 Convention on the High Seas 12 identify warships by four char- 
acteristics: they belong to the armed forces of a State; they bear external marks dis- 
tinguishing warships of their nationality; they are commanded by officers duly 
commissioned by the government of the State and whose names appear in the ap- 
propriate service lists or equivalents; and they are manned by crews under regular 
armed forces discipline. These characteristics originated in the 1856 Declaration of 
Paris 13 which abolished privateering, and the 1907 Hague Convention VII 14 which 
established the conditions for converting merchant ships into warships. The rules 

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served to distinguish bona fide warships from privateers, which operated from 
motives of personal gain, by clearly establishing that the warships operated on be- 
half of a State. They also furthered the requirement in Hague VII that warships are 
to observe the laws and customs of war. These four characteristics are so univer- 
sally identified with warships throughout the world that they may be said to have 
attained the status of customary international law. 

Left undefined, however, is what the phrase "manned by a crew" actually 
means in practice. Many US Navy warships today have civilians onboard perform- 
ing a variety of functions — technical representatives, science advisors, contrac- 
tors. Under customary practice, warships have carried civilians onboard. In the 
War of 1812, for example, Commodore Stephen Decatur's ship, the frigate United 
States, embarked female contract nurses to care for the sick and wounded. 15 The 
mere presence of small numbers of civilians clearly does not deprive a warship of 
its status as a warship. But the issue takes on greater meaning if one-third or one- 
half of a warship's complement is composed of civilians who, though subject to a 
civilian disciplinary system, are not subject to the Uniform Code of Military Jus- 
tice. 16 Though there is no "bright line" rule that determines what percentage of a 
warship's crew should be active-duty sailors, it is fair to say that the greater the 
percentage of civilians onboard performing functions traditionally accomplished 
by sailors, the less likely the warship will be able to maintain swift and effective dis- 
cipline over its entire manning complement. The inability to effectively discipline 
a crew thus calls into question the ship's ability to "observe the laws and customs 
of war" as required by Hague VII. 

The first issue concerning civilian mariners, as just discussed, implicates the 
warship's ability to meet its international obligation to observe the laws and cus- 
toms of war and to meet the criteria established for warships in conventional and 
customary law. The second issue is related to the civilian mariners themselves and 
to their status if they are captured during an international armed conflict. One of 
the basic principles of the law of armed conflict is that of "distinction" — combat- 
ants and noncombatants must be distinguished so as to spare noncombatants as 
much as possible from the exigencies of war. 17 A corollary of the basic principle is 
that noncombatants (civilians) enjoy protections under the law of armed conflict 
unless and until they take a direct or active part in hostilities. 18 Civilians accompa- 
nying the force certainly assume the risk of becoming casualties of war due to their 
proximity to military operations. For example, civilian mariners manning oilers 
replenishing warships at sea are aware that the platforms on which they serve are 
legitimate military objectives. The mariners themselves, however, retain their status 
as "persons who accompany the armed forces without actually being members 



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thereof." They carry identification cards reflecting their authority to accompany 
the force, and are entitled to prisoner of war status if captured. 19 

If the civilian mariners are employed onboard a warship engaged in combat op- 
erations, however, it is possible that questions could be raised as to their status. Un- 
fortunately, there is no authoritative definition of "direct" or "active" participation 
in hostilities. 20 Purely collateral duties such as cutting hair, running the ship's store 
and performing housekeeping functions may contribute to the quality of life 
onboard the warship, but are not necessary to its combat effectiveness. On the 
other end of the spectrum, firing weapons, maintaining the weapons systems or 
serving as members of belligerent boarding parties are more akin to actual partici- 
pation. Running the engineering plant, navigating the ship and operating the small 
boats and cranes could be considered collateral functions or could be considered 
actual participation. 

A sailor who needs a haircut can nevertheless man the weapons systems or serve 
on a boarding party. A ship that is not within its assigned Tomahawk Land Attack 
Missile (T-LAM) launch basket or is not properly heading into the wind for the 
launch of fighter aircraft cannot perform its combat function. Further, the warship 
itself is a weapons system and the full crew complement is required for the weapons 
system to be effective. Civilian engineers running the propulsion plant, navigators 
plotting ship's movement, and technicians working on the missile system all con- 
tribute to the war fighting effectiveness of the ship. It is difficult to argue that any of 
these personnel are not actively and directly contributing to the combat functions 
of the ship. It is conceivable that an opposing belligerent could perceive civilian 
mariners serving onboard a warship engaged in international armed conflict, par- 
ticularly those engaged in engineering, navigation and deck seamanship, as having 
taken an active and direct part in hostilities. That same enemy belligerent would 
also be unlikely to grant the civilian mariners combatant immunity for such acts 
and could prosecute them for murder, arson and other violations of the belliger- 
ent's domestic law. 

The above discussion posits the most extreme examples. To date, the only war- 
ships manned with civilian mariners have been those warships designated as com- 
mand and control platforms such as Mount Whitney. The MPF-F ships are still in 
the planning stages and it is not determined exactly how they will be employed in 
the sea basing construct. As the Navy continues its transformational efforts, how- 
ever, there will no doubt be continued pressure to contract out or seek civilian sub- 
stitution for more and more administrative and support functions in order to free 
active-duty sailors for actual combat duties. 

To address both issues raised by the potential "civilianization" of warship crews, 
the Navy has proposed legislation 21 that would create a 5-year pilot program to 

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require civilian mariners employed by the Navy to affiliate with a special Navy Re- 
serve component. If the legislation is enacted, the mariners will remain civilian fed- 
eral employees unless the ship is ordered into combat operations in international 
armed conflict, at which time the mariners will be ordered to active duty. In their 
active duty status, the mariners will be subject to the Uniform Code of Military Jus- 
tice, thus ensuring that the entire crew is subject to armed forces discipline. Fur- 
ther, if captured, they will be members of the active duty force entitled not only to 
prisoner of war status, but also to combatant immunity for any belligerent acts in 
which the warship engaged. Though there may be other ways to approach the in- 
ternational law concerns raised by placing hybrid crews on warships, the proposed 
legislation is attractive in that it resolves both issues satisfactorily and provides the 
civilian mariners with the highest degree of protection under international law in 
the event they are captured during belligerent operations. 

Unmanned Aerial and Underwater Systems 

In April 2005, General John Jumper reported that there were over 750 unmanned 
aerial vehicles operating in Iraq. 23 At about the same time, the US Navy deployed 
its first operational unmanned undersea vehicle, a Remote Minehunting System 
(RMS), to identify and chart suspicious objects in Khwar Abd Allah channel at the 
Iraqi port of Umm Qasr. 24 Most readers are surely familiar with the use of the Pred- 
ator as a precision weapon in Iraq, Afghanistan and Yemen. 25 There is even talk of a 
future unmanned aerial system which would track and engage targets without a 
"man in the loop." 26 The relatively low cost, ease of transport, technological so- 
phistication, and lack of manned crew combine to make unmanned systems the 
surveillance platform and armed weapon of choice for the foreseeable future, 27 
even to the point of replacing F- 16 and KC- 135 aircraft in the current US Air Force 
inventory. 28 

The use of these unmanned systems, however, raises a primary legal issue: 
Should they be treated under international law like their manned counterparts — 
airplanes and submarines? For example, do the regimes of innocent passage, straits 
transit passage and archipelagic sea lanes passage apply? Are they required to com- 
ply with the International Regulations for the Prevention of Collisions at Sea 
(COLREGs)? Do they enjoy sovereign immunity? What is the legal framework for 
attacking an unmanned system? Unfortunately, developing a complete answer to 
most of these questions is beyond the scope of this article, and each could be the 
topic of a scholarly legal treatise. Some of the answers, however, are relatively intu- 
itive and will be addressed below. 



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Take, for example, a carrier strike group transiting the Strait of Hormuz and 
employing an unmanned Scan Eagle intelligence, surveillance and reconnaissance 
vehicle 29 for a "channel sweep" mission. The Strait of Hormuz, as an international 
strait connecting the Arabian Gulf with the Gulf of Oman and the Arabian Sea, is 
subject to the regime of straits transit passage throughout the strait and its ap- 
proaches. 30 Under that regime, all states enjoy the right of unimpeded navigation 
and overflight solely for the purpose of continuous and expeditious transit of the 
strait. 31 While exercising the right of transit passage, ships and aircraft "shall re- 
frain from any activities other than those incident to their normal modes of contin- 
uous and expeditious transit." 32 

Accordingly, in analyzing whether a carrier strike group may employ a recon- 
naissance vehicle during straits transit passage, the question is not whether the ve- 
hicle is manned or unmanned, 33 but whether it is consistent with the strike group's 
"continuous and expeditious transit" in its "normal mode" of operation. The Com- 
mander's Handbook on the Law of Naval Operations provides that the normal mode 
of operation for surface ships includes "transit in a manner consistent with sound 
navigational practices and the security of the force, including formation steaming 
and the launching and recovery of aircraft." 34 The San Remo Manual addresses 
straits transit passage during armed conflict and concludes that belligerents "are 
permitted to take defensive measures consistent with their security, including 
launching and recovery of aircraft, screen formation steaming, and acoustic and 
electronic surveillance." 35 

The Scan Eagle's "channel sweep" mission is a surveillance mission designed for 
force protection and navigational safety — normal operational concerns for all 
Navy vessels wherever they are transiting and whether the transit is in peacetime, in 
a period of heightened tensions, or during an armed conflict. The need for defen- 
sive, force protection measures is particularly acute when transiting in relatively 
close proximity to land, in high traffic areas such as the straits, where an asymmet- 
ric enemy such as a terrorist could strike without warning. 36 Accordingly, employ- 
ment of the Scan Eagle in a force protection and safety of navigation surveillance 
and reconnaissance mode is completely consistent with the regime of straits transit 
passage. It maybe launched from the aircraft carrier or other surface platform. If it 
were an unmanned undersea vehicle, it could operate submerged, if that is consis- 
tent with its normal mode of operation. The same would apply if the strike group 
were operating in archipelagic sea lanes transit through an archipelagic nation. 

It must be noted, however, that the Scan Eagle is also an intelligence-gathering 
platform. The rules concerning straits transit passage provide that passage must be 
"solely for the purpose of continuous and expeditious transit of the strait," 37 and 
States are to "refrain from any activities other than those incident to their normal 

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Future Navies — Present Issues 



modes of continuous and expeditious transit unless rendered necessary by force 
majeure or by distress." 38 States are also to refrain from "the threat or use of force 
against the sovereignty, territorial integrity or political independence of States 
bordering the strait, or in any other manner in violation of the principles of inter- 
national law embodied in the Charter of the United Nations." 39 Importantly, un- 
like the rules governing innocent passage through territorial seas, intelligence- 
gathering is not identified as inconsistent with straits transit passage. Indeed, some 
amount of photographic or electronic intelligence-gathering may inevitably occur 
incidental to the "channel sweep" mission. Such intelligence-gathering would not 
be inconsistent with the regime of transit passage since the "channel sweep" mis- 
sion is related to safety of navigation and security of the force. 40 

Compare the transit passage regime with that of innocent passage through terri- 
torial seas. When engaged in innocent passage, submarines are required to operate 
on the surface, ships may not launch or recover aircraft or any military device, and 
any act aimed at collecting information to the prejudice of the defense or security 
of the coastal State is considered inconsistent with the innocent passage regime. 41 
Accordingly, a carrier strike group engaged in innocent passage could not launch 
or recover the Scan Eagle or the RMS underwater vehicle. Since there is no right of 
innocent passage through a nation's territorial airspace, an unmanned aircraft 
launched outside the territorial sea would not be entitled to innocent passage over 
the territorial sea. 

Consider, though, whether an unmanned undersea vehicle launched prior to 
entry into the territorial sea is entitled to innocent passage on the surface as other 
submarines are. The 1982 LOS Convention provides that "ships of all States . . . en- 
joy the right of innocent passage through the territorial sea." 42 The Convention 
does not define "ship," but it does define "warship" as "a ship belonging to the 
armed forces of a State bearing the external marks distinguishing such ships of its 
nationality, under the command of an officer duly commissioned by the govern- 
ment of the State and whose name appears in the appropriate service list or its 
equivalent, and manned by a crew which is under regular armed forces disci- 
pline." 43 Arguably, the RMS vehicle fits this definition if one considers that the 
commanding officer of the ship from which it is launched is in "command" of the 
RMS and the crew operating it is "manning" the vehicle. In any event, the RMS 
does not have to be a warship to be entitled to innocent passage, since the right ap- 
plies to "ships" of all States. Webster's dictionary distinguishes between ships, 
rather large vessels adapted for deep-water navigation, and boats, rather small, 
usually open, craft. 44 But Webster's also notes that for legal purposes, a ship is "a 
vessel intended for marine transportation, without regard to form, rig or means of 
propulsion." 45 Arguably, then, an unmanned undersea vehicle, if it is considered a 

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Jane G. Dalton 



ship, could engage in continuous, expeditious innocent passage, provided it 
transited on the surface, showed its flag, and did not engage in intelligence collec- 
tion to the prejudice of the defense or security of the coastal state. 

A related issue is whether unmanned systems like the RMS are "vessels" which 
must comply with the Regulations for the Prevention of Collisions at Sea 
(COLREGs). The COLREGs apply to "all vessels on the high seas," and define a 
vessel to include "every description of watercraft, including non-displacement 
craft and seaplanes, used or capable of being used as a means of transportation on 
water." 46 The COLREGs definition is also found in US statutes 47 and is the gener- 
ally accepted definition in admiralty law. The US Supreme Court has ruled on this 
subject, and continues to expand the type of watercraft encompassed by the term 
"vessel." 48 Though the RMS system is incapable of transporting people, it does 
carry a payload of sensors, other instrumentation and equipment, has its own pro- 
pulsion system of up to 16 knots, and is able to operate as far as 14 nautical miles 
from the launch platform. 49 If the RMS and similar systems are "vessels," they must 
meet a number of design and operational requirements, such as being equipped 
with lookouts, sound, lighting, and dayshapes. 50 

Regardless whether the RMS is required to comply with the COLREGs require- 
ments, those in command of the launching platform and the unmanned system 
have a duty to act with due regard for the safety of others on the high seas — a duty 
imposed by both the COLREGs 51 and the Law of the Sea. 52 The RMS system is cur- 
rently equipped with a mast-mounted camera that allows the operator to safely 
avoid surface objects; forward-looking sonar to alert the operator to submerged 
objects; and a mast-mounted strobe light to advise nearby vessels of its presence. A 
radar reflector may also be mounted on the mast. 53 Given the unsettled state of the 
law on the status of unmanned undersea systems, 54 the prudent course of action for 
the US Navy is to ensure these systems comply with all applicable COLREGs re- 
quirements or obtain appropriate exemptions. 

Hospital Ships 

Military hospital ships are granted extraordinary protection under the Second 
Geneva Convention. Current technology and the threat of global terrorism, how- 
ever, are posing two vexing problems for navies of the future. 

Military hospital ships are those ships built and equipped solely to assist, treat 
and transport the wounded, sick and shipwrecked. 55 They may "in no circum- 
stances" be attacked or captured, but shall "at all times be respected and pro- 
tected," provided that the parties to the conflict are notified of their names and 
descriptions ten days before the ships are employed. 56 Hospital ships are entitled to 

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Future Navies — Present Issues 



the aforementioned protections "unless they are used to commit . . . acts harmful to 
the enemy." 57 The presence on board hospital ships of "apparatus exclusively in- 
tended to facilitate navigation or communication" does not deprive the ships of the 
protections due them. 58 Somewhat in contradiction, however, it is expressly for- 
bidden for hospital ships to "possess or use a secret code for their wireless or other 
means of communication." 59 It is this prohibition that proves difficult to imple- 
ment in this day and age. 

Professor Richard Grunawalt has conducted an in-depth analysis of the origins 
of this prohibition, 60 which derived from a desire to conclusively prevent any fur- 
ther instances of hospital ships being used to signal and provide non-medical ser- 
vices to combatants, as occurred during the Russo-Japanese War of 1 904-1 905 61 
and again during World War I. 62 Even as the Second Geneva Convention was being 
negotiated, it was recognized that a prohibition on the use of secret codes by hospi- 
tal ships would be difficult to implement in practice. So the Diplomatic Conference 
recommended that the High Contracting Parties draw up an international code 
providing regulations for the use of "modern means of communication" between 
hospital ships and warships and military aircraft. 63 Unfortunately, that code never 
came into being, and the High Contracting Parties are left with the prohibition as it 
was drafted in 1949. 

Interestingly, the equally authentic French text of the Convention contains a 
prohibition only on the use of a secret code to transmit 64 traffic, not to receive it. In 
addition, Article 28(2) of Additional Protocol I of 1977, concerning medical air- 
craft provides that such aircraft "shall not be used to collect or transmit intelligence 
data and shall not carry any equipment intended for such purposes," but does not 
prohibit the use of a secret code or encrypted communications to further the hu- 
manitarian mission of the aircraft. 65 Additional Protocol I clearly takes a more real- 
istic approach that recognizes the developments in communications technology 
since 1949. The French text of the 1949 Geneva Convention also appears to recog- 
nize the necessity for hospital ships to receive encrypted communications, at a 
minimum. 

Professor Grunawalt's article provides ample discussion of the problems in- 
herent in the use of unencrypted communications by hospital ships, not the least 
of which is that US federal privacy standards require that patient medical infor- 
mation be transmitted over secure circuits if it is reasonable and appropriate to 
do so. 66 There are also practical security issues with transmitting patient informa- 
tion, such as social security numbers, in the clear. With identity theft an ever- 
growing concern, it would be unfortunate if wounded and injured personnel 
were exposed to yet an additional risk as a consequence of being treated onboard 
a hospital ship. Further, it has been reported that when USNS Mercy (T-AH 19) 

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Jane G. Dalton 



deployed in support of Operation Iraqi Freedom in January 2003, it in fact was 
equipped with encrypted communications systems. 67 There is no need in this ar- 
ticle to further belabor the point that the prohibition on use of a "secret code" by 
hospital ships is anachronistic, unrealistic, and unworkable in today's high tech- 
nology environment where satellite communications are both routinely en- 
crypted and routinely employed by military systems. Accordingly, this author 
joins with Professor Grunawalt 68 in recommending that the US Navy formally 
abandon adherence to this requirement, while reaffirming adherence to the un- 
derlying mandate that hospital ships may not be used for military purposes harm- 
ful to an adversary. 

The second vexation facing hospital ships is the need to arm them for force pro- 
tection against USS Cole-type attacks. Again, the Second Geneva Convention pro- 
vides the baseline legal requirement — and in this instance the basic rule is far more 
realistic than the one just discussed prohibiting the use of a secret code. Article 
35(1) provides that arming the crews of hospital ships for the maintenance of or- 
der, or for their own defense or the defense of the sick and wounded, does not de- 
prive the ships of their protected status. 69 In this author's opinion, that should end 
all debate, and the Navy should not hesitate to man its hospital ships with security 
teams armed with crew-served weapons — such as machine guns and grenade 
launchers for close-in defense against attacks by terrorists or others who do not 
comply with the law of armed conflict. Professor Grunawalt, however, aptly points 
out the very legitimate reasons one should be cautious about deploying hospital 
ships bristling with defensive armaments. 70 And on this topic, the San Remo Manual 
has taken a decidedly anachronistic viewpoint by opining that hospital ships may be 
armed "only" with "deflective" means of defense (such as chaff and flares) and "not 
with means that could be used in offensive fashion, such as anti-aircraft guns." 71 

Not only are chaff and flares ineffective against a determined suicide attack like 
that launched against Cole, but the requirement as stated in the San Remo Manual 
is nowhere found in the Geneva Conventions and is an unnecessary and untimely 
restriction of the plain letter of the law. Accordingly, this author concurs with Pro- 
fessor Grunawalt that in addition to crew-served weapons like .50 caliber machine 
guns, hospital ships should be equipped with the Phalanx Close-in Weapons Sys- 
tem or other state-of-the art defensive anti-air and anti-surface weapons systems. 72 
While the Royal Navy concurs that encryption equipment may be fitted in hospital 
ships "to assist with the humanitarian mission," they are not as supportive on the 
arming issue. A Royal Navy official told Jane's Defence Weekly that any armaments 
beyond small sidearms "would compromise the protected status of the vessels" un- 
der current international law. 73 The Royal Navy approach at present, apparently 
due to budgetary rather than legal considerations 74 — to develop more versatile 

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Future Navies — Present Issues 



platforms that can accomplish other missions in addition to caring for the 
wounded and sick — may be more in line with the US Navy's plans for sea basing. 
As Dr. Arthur M. Smith pointed out in a recent edition of the Naval War College 
Review, "plans for afloat casualty care and strategic evacuation may be dramatically 
altered" under the Navy's sea basing concept. 75 He suggests that commercially 
chartered cruise ships or Military Sealift Command logistics ships might deliver 
troops and equipment to the sea base, and then be converted to casualty care. Fur- 
ther, given the terrorist threat worldwide, aeromedical evacuation could provide a 
more practical method to care for and evacuate the wounded than evacuation by 
hospital ships. Given that potential terrorists could view white ships with large red 
crosses as attractive targets rather than as specially protected vessels, force protec- 
tion considerations alone could dictate developing flexible, multi-mission plat- 
forms as substitutes for traditional white-hulled hospital ships. As Dr. Smith points 
out, combatant commanders will define their casualty care and evacuation re- 
quirements in the future, and those requirements might not include ships like 
USNS Comfort and USNS Mercy. 76 

The Law of the Sea Convention and the Future of Naval Warfare 

As the Navy looks to sea basing and the future, some have questioned whether 
Navy leadership's long-standing support for United States accession to the Law of 
the Sea Convention continues to be in the best interests of the Navy and the United 
States. Some have asked whether the Convention helps or hinders the Navy's vision 
of sea basing. Throughout his term as Chief of Naval Operations, Admiral Clark 
never wavered from his strong position in favor of the Convention. He testified be- 
fore Senate committees on more than one occasion that the Convention supports 
sea basing and "provides the stable and predictable legal regime with which to con- 
duct our operations today and in the future. Joining the Convention will support 
ongoing U.S. military operations, including continued prosecution of the Global 
War on Terrorism." 77 Likewise, the current Chief of Naval Operations, Admiral 
Michael Mullen, follows a long line of distinguished predecessors in his support of 
United States accession to the Convention. 78 It is this author's opinion that the Law 
of the Sea Convention preserves our ability to fully leverage use of the world's 
oceans by providing a body of widely accepted and recognized law that protects 
navigational freedoms and our ability to operate on the high seas. 

First, the Convention does not impair or inhibit the inherent right of self-defense. 
The Convention was negotiated under the auspices of the United Nations and the 
precepts of the Charter, Article 5 1 of which clearly recognizes and reflects the in- 
herent right of self-defense. Second, the stipulation in the Convention that "The 

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Jane G. Dalton 



high seas shall be reserved for peaceful purposes" 79 must be read in light of Article 
58, which specifically reserves freedom of navigation and overflight and "other in- 
ternationally lawful uses of the sea related to these freedoms" to be enjoyed by all 
States. 80 State practice over hundreds of years, by which the navies of the world 
have operated and trained in waters seaward of other nations' territorial seas — in- 
cluding what is now recognized as their contiguous and exclusive economic 
zones — confirms that military uses of the seas that do not violate Article 2(4) of the 
United Nations Charter 81 are lawful under customary international law. 

The Law of the Sea Convention reaffirms this position by limiting military activi- 
ties in only a few narrow circumstances, such as Article 19 regarding innocent pas- 
sage through the territorial sea. Moreover, the Resolution of Advice and Consent to 
Ratification approved by the Senate Foreign Relations Committee specifically pro- 
vides that "The advice and consent of the Senate ... is subject to the following . . . un- 
derstandings: (1) The United States understands that nothing in the Convention, 
including any provisions referring to 'peaceful uses' or 'peaceful purposes' impairs 
the inherent right of individual or collective self-defense or rights during armed con- 
flict." 82 The "peaceful purposes" provision of the Law of the Sea Convention creates 
no new rights or obligations and imposes no restraints on military operations or tra- 
ditional uses of the seas any more than does the equivalent provision in the Outer 
Space Treaty, which provides that the moon and other celestial bodies shall be used 
"exclusively for peaceful purposes." 83 It has long been the position of the United 
States that "peaceful purposes" means "nonaggressive" purposes. Consequently, 
military activity not constituting the use of armed force against the sovereignty, terri- 
torial integrity or political independence of another nation, and not otherwise in- 
consistent with the United Nations Charter, is permissible. 84 

Third, a word about innocent passage. Some have argued that the Law of the Sea 
Convention would negatively impact national security because the innocent pas- 
sage regime "prohibits" or makes "illegal" intelligence gathering or submerged 
submarine operations within a coastal nation's 12 nautical mile territorial sea. 
What the critics do not recognize or acknowledge is that the United States has been 
complying with the navigational provisions of the Convention since 1983. In his 
Ocean Policy Statement of March 10, 1983, President Reagan announced that the 
Law of the Sea Convention "contains provisions with respect to traditional uses of 
the oceans which generally confirm existing maritime law and practice and fairly 
balance the interests of all States," and that the United States would "accept and 
act" in accordance with those provisions. 85 Further, the United States is a party to 
the 1958 Convention on the Territorial Sea and Contiguous Zone, which contains 
innocent passage provisions similar to those in the Law of the Sea Convention, 



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Future Navies— Present Issues 



including that submarines in innocent passage are "required to navigate on the 
surface and to show their flag." 86 

Like the Territorial Sea Convention, the Law of the Sea Convention requires 
that submarines engaged in innocent passage navigate on the surface and show 
their flag. 87 The Law of the Sea Convention, however, is an improvement over the 
Territorial Sea Convention, in that it specifically delineates those activities that 
may be considered prejudicial to the peace, good order, or security of the coastal 
State — thus shielding the United States and other sea-going nations from efforts by 
coastal States to regulate other types of conduct in the territorial sea. It denotes 
"any act aimed at collecting information to the prejudice of the defence or security 
of the coastal State" as inconsistent with innocent passage and prejudicial to the 
peace, good order or security of the coastal State. 88 Such activities are not deemed 
"illegal," nor are they forbidden. The coastal State may have national laws prohibit- 
ing such activities, may take necessary steps to prevent passage which is not inno- 
cent, 89 and may require a warship to leave the territorial sea "immediately" if the 
warship disregards requests by the coastal State to comply with its national laws and 
regulations concerning passage through the territorial sea. 90 These provisions reflect 
the carefully crafted balance the United States sought to protect its own interests as 
both a coastal State and a flag State. Thus, if a warship or submarine transits through 
the territorial sea in innocent passage, it must comply with the requirements for in- 
nocent passage. If it does not do so, the coastal State that becomes aware of such non- 
innocent passage may require the warship to depart the territorial sea immediately, 
and may then address the matter through diplomatic channels. 

Fourth, accession to the Law of the Sea Convention would in no way negatively 
affect the President's Proliferation Security Initiative (PSI). The PSI is a global ef- 
fort to stop trafficking of weapons of mass destruction (WMD) and their delivery 
systems to and from States of proliferation concern. It is not a treaty or a formal or- 
ganization. It is a cooperative effort to apply all the tools at the disposal of the PSI 
partner nations — intelligence, diplomacy, law enforcement, military, customs au- 
thorities, financial — to prevent transfers of WMD-related items at sea, in the air, 
and on land. More than 60 countries around the world have indicated their sup- 
port for PSI — most, if not all, of which are parties to the Law of the Sea Conven- 
tion. While the goal is "to create a more dynamic, creative, and proactive 
approach" to preventing proliferation, "actions taken in support of the PSI will be 
consistent with national legal authorities and relevant international law and frame- 
works." 91 Certainly the goal is to strengthen existing authorities where they are 
weak or inefficient, but only within the bounds of national and international law, 
which includes the Law of the Sea Convention. Numerous multilateral exercises 
have taken place, and the initiative had one publicly announced success, in the fall of 

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Jane G. Dalton 



2003, when four nations (the United States, the United Kingdom, Italy and Ger- 
many) cooperated to interdict and prevent a shipment of centrifuge parts to Libya. 92 

Conflict Resolution in the Exclusive Economic Zone 

There is no doubt that the Navy's plans for sea basing could give pause to allies and 
potential competitors alike. After all, it is based on the notion that "America will 
never seek a permission slip to defend the security of our country." 93 Lieutenant 
General James Mattis, head of the Marine Corps Combat Development Com- 
mand, says the idea is to minimize the need for the United States military to rely on 
allies to supply territory from which United States forces can operate abroad. 94 One 
hears phrases like "using the sea as maneuver space," exploiting the United States' 
"control of the seas," and, from a large display in the Pentagon in June 2005, the 
"command of the commons." 95 Carried to its logical conclusion, it will inevitably 
involve the staging of large, floating military bases off the coasts of other nations, 
probably in their contiguous or exclusive economic zones, from which joint forces 
and weapons could be projected ashore in a future conflict. Sea basing also has a 
more benign side. Former Naval Sea System Commander Vice Admiral Phillip 
Balisle pointed to the Navy's tsunami relief efforts in Indonesia as an example of 
sea basing in action. Relief efforts were launched and directed from a collection of 
ships stationed off-shore. "We have always had a sea base, or at least for many 
years. What we're talking about now is the shaping of that sea base for [a] 21st- 
century environment." 96 

Will the sea base impact the sovereignly of other nations, threaten their security 
or convert the oceans to "non-peaceful" purposes? The answer is no. Each sea base 
will be established consistent with principles of law applicable to the operation in 
question — whether it be humanitarian relief operations, international armed con- 
flict, or United Nations sanctions enforcement. Is it possible that other nations 
may disagree with the United States over the applicable legal principles? Of course. 
Conflicts and disagreements will arise in the future, as they have in the past. One 
has only to recall the P-3 incident off Hainan Island in the People's Republic of 
China and the difference of opinion between the United States and China over the 
propriety of military activities conducted in a coastal State's exclusive economic zone 
to realize that there will often be differing interpretations of the applicable law. 97 

Because of these differing interpretations, particularly as between the United 
States and the People's Republic of China, one might ask whether it would be advis- 
able for the United States to attempt to negotiate an agreement with China similar to 
the 1972 Incidents at Sea Agreement 98 or the 1989 Dangerous Military Activities 
Agreement 99 with the former Soviet Union. At the time of those agreements, both 

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Future Navies — Present Issues 



the United States and the former Soviet Union had substantial blue-water navies. 
Several dangerous incidents had occurred between units of the two nations and the 
potential for unpredictable future confrontations existed around the world. 

With China, the potential for confrontation exists primarily within China's ex- 
clusive economic zone due to China's objections to US military activities there 
such as surveillance and military surveys. An existing mechanism, the Military 
Maritime Consultative Agreement, 100 is available and is probably sufficient, given 
the limited area and scope of potential confrontations, to address these issues con- 
cerning military activities in areas where high seas freedoms apply. In fact, it was 
presumably under the auspices of this agreement that Ambassador Prueher pro- 
posed a meeting to discuss the EP-3 incident, and suggested that the agenda in- 
clude a "discussion of causes of the accident and possible recommendations 
whereby such collisions could be avoided in the future." 101 However, this author 
would not rule out the value of a more comprehensive agreement, embodying spe- 
cial signals like those in the Incidents at Sea Agreement, for indicating one's inten- 
tions and operations, if the consultative mechanism proves unsuccessful in 
preventing future dangerous encounters. 

It is certainly appropriate that the United States continue to communicate with 
our allies and potential competitors alike concerning plans for the Navy of the fu- 
ture. Concerning all five of the issues discussed in this article, it would be advisable 
to inform other nations of United States intentions and engage in a dialogue with 
them concerning the legal bases for our actions. A cooperative, consultative ap- 
proach would be useful in obtaining the support and understanding of potential 
coalition partners, as well as alleviating the concerns of potential competitors. In a 
recent speech to the US Naval War College, Chief of Naval Operations Admiral 
Mullen stressed how important coalition partners will be to future naval opera- 
tions. 102 And while President Bush has made it clear that the United States will not 
jeopardize its national security by acquiescing to "the objections of the few," 103 the 
preferred modus operandi is to seek international support and international part- 
nerships. The Proliferation Security Initiative, for example, is evidence that the 
President wants to work with multi-national partners to the maximum extent pos- 
sible. The issues discussed in this article provide ample opportunities for collabora- 
tion and cooperation on the international level. 

Notes 

1. See, e.g., Jason Sherman, Changing Vision, SEA POWER (Mar. 2005), available at http:// 
www.navyleague.org/sea_power/mar_05_10.php, quoting former Chief of Naval Operations 
Admiral Vern Clark that the Navy is not "correctly balanced and optimized for the future we're 



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]ane G. Dalton 



facing. . . . The Navy that we possess today must be reshaped to deal with the challenges that we 
[will] have in the future." 

2. Status of the Navy, Sept. 2, 2005, available at http://www.navy.mil. 

3. Admiral Vern Clark, Chief of Naval Operations Guidance 2004, Guidance for Leaders: 
Manpower, Jan. 4, 2004 (on file with author). 

4. Commander, Naval Forces Europe/Commander, U.S. 6th Fleet Public Affairs, USS Mount 
Whitney Underway for NATO's Allied Action, Chinfo News Clips, May 18, 2005, available at 
www.navy.rniL 

5. Id. These savings are accomplished in a number of ways: some civilian mariner billets 
onboard ship are manned (and paid) only when the ship is underway, while sailors fill their 
billets both at sea and in port; sailors frequently have collateral duties, training requirements and 
temporary additional duty assignments that civilian mariners are not required to perform, thus 
civilian billets are matched only to the at-sea requirement while there must be sufficient active- 
duty billets to account for the absence/unavailability of a percentage of the crew at all times; and 
civilian mariners are trained to do one job proficiently — a mariner may serve as a deck seaman 
for 30 years — whereas active duty sailors are in an "up-or-out" system; as each sailor moves up in 
the ranks a new sailor must be trained to take his or her place. 

6. Dale Eisman, Sea Base: The Navy's New Way to Fight, THE VIRGINIAN- PILOT, Mar. 8, 2005, 
available at http://home.hamptonroads.com/stories/print.cfmTsto ry=101429&ran= 138749. 

7. Id. For additional information on sea basing, see Sherman, supra note 1; Dale Eisman, The 
Navy's Changing Tide: Service Floats "Sea Base" Concept, THE VIRGINIAN-PILOT, Mar. 8, 2005, 
available at http://home.hamptonroads.com/stories/story.cfm?story=101390&ran=75707; US 
Congress, Congressional Budget Office, The Future of the Navy's Amphibious and Maritime 
Prepositioning Forces, ix-xiii (Nov. 2004). 

8. Eisman, supra note 6. 

9. Sherman, supra note 1; Congressional Budget Office, supra note 7, at xiii (follow-on assault 
echelons would assemble and deploy on the ships comprising the sea base, of which the MPF-F is 
the "linchpin"). 

10. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 
art.4.A.(4), 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR 243, 246 (Adam 
Roberts & Richard Guelff eds., 3d ed. 2000), "Prisoners of war ... are persons belonging to one of 
the following categories, who have fallen into the power of the enemy: (4) Persons who 
accompany the armed forces without actually being members thereof. . . ." 

11. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 
[hereinafter 1982 LOS Convention]. 

12. Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82, reprinted in 
NATIONAL SECURITY DOCUMENTS 570, 571 (John Norton Moore, Guy B. Roberts, & Robert F. 
Turner eds., 1995). 

13. Declaration Respecting Maritime Law, Apr. 16, 1856, reprinted in DOCUMENTS ON THE 
LAWS OF WAR, supra note 10, at 48. 

14. Convention (VII) Relating to the Conversion of Merchant Ships into Warships, Oct. 18, 
1907, arts. 1-4, reprinted in NATIONAL SECURITY DOCUMENTS, supra note 12, at 95, 97. 

15. Women in Military Service for America Memorial, Highlights of Women in the Military, 
available at curators@womensmemorial.org; The United States Navy, Women in the Navy (on 
file with author). 

16. Some might suggest that the most obvious solution to this dilemma is simply to subject the 
civilian mariners to the Uniform Code of Military Justice (UCMJ). As currently written, the 
Code only provides for jurisdiction over persons serving with or accompanying armed forces in 



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Future Navies — Present Issues 



the field "in time of war." 10 U.S.C. 802(a)( 10) (2003). Courts have held that the phrase "in time 
of war" should be construed narrowly and only includes declared wars. United States v. Averette, 
41 C.M.R. 363 (U.S.C.M.A. 1970). Although it is possible the law could be amended, that 
solution would address only one of the two issues related to civilian mariners onboard warships. 
The second issue, whether the civilian mariners would be afforded status as prisoners of war if 
they were to be captured, would be unaffected by an amendment to the UCMJ. 

17. Annotated Supplement to The Commander's Handbook on The Law of Naval 
OPERATIONS para. 8.1, at 401 (A. R. Thomas 8c James C. Duncan eds., 1999) (Vol. 73, US Naval 
War College International Law Studies) [hereinafter ANNOTATED SUPPLEMENT]. 

18. See, e.g., Articles 50 and 51, Protocol Additional to the Geneva Conventions of 12 August 
1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional 
Protocol I), June 8, 1977, 1125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, 
supra note 10, at 419, 448. The United States is not a party to Additional Protocol I. 

19. Supra note 10. 

20. See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 232 (Dieter Fleck ed., 
1995) ("[Activities . . . must be . . . directly related to hostilities or, in other words, to represent a 
direct threat to the enemy"). The International Committee of the Red Cross (ICRC) has 
embarked on a project to further define the phrase, but to date has not proposed a 
comprehensive description. 

21. Pilot Program for the Employment, Use, and Status of Reserve Civilian Mariners, (on file 
with author). The legislation was proposed for the Fiscal Year 2006 National Defense 
Authorization Act, but was not included in the Act considered by Congress. It is anticipated the 
proposal will be submitted in future years. 

22. A recent news article announced that the Pentagon has begun informally referring to 
unmanned aircraft as "unmanned aerial systems" rather than "unmanned aerial vehicles" — and 
that the change may soon become official. The reason for the shift in terminology is to connote 
that the aircraft are only one part of a "complex network of systems" rather than independently 
operated units. Vince Crawley, Pentagon: Don't Call Them UAVs Anymore, www.DefenseNews 
.com, Aug. 17, 2005. 

23. Nathan Hodge, Jumper: Military Must Reorganize UAV Efforts, DEFENSE DAILY, at 7, Apr. 
29, 2005. 

24. Rowan Scarborough, Special Report - Unmanned Warfare, WASHINGTON TIMES, May 8, 
2005, at AOL 

25. Id.; Eric Schmitt, U.S. Drones Crowding The Skies To Help Fight Insurgents In Iraq, NEW 
YORK TIMES, Apr. 5, 2005, at A9. For a description of the synergy developed between manned 
and unmanned aircraft and between coalition partners to destroy a surface-to-air missile site 
during Operation Iraqi Freedom, see Ministry of Defence, Operations in Iraq: Lessons for the 
Future 33 (Dec. 2003) 33, available at http://www.mod.uk/DefenceInternet/AboutDefence/ 
CorporatePublications/Reports/ReportsForResearchers/ 
OperationsInIraqLessonsForTheFuture.htm. 

26. Peter A. Buxbaum, Shedding Ships and Sailors, ARMED FORCES JOURNAL, Apr. 2005, at 20, 
22 (citing Rear Admiral (select) William Rodriguez, Space and Naval Warfare Systems 
Command, San Diego, who predicts that unmanned aerial vehicles may soon have the 
"cognitive ability" to detect hostile platforms and vector weapons against them, apparently 
without relying on commands from a human being controlling the unmanned system. This 
capability, of course, raises significant legal issues that are beyond the scope of this article.) 

27. Katie Fairbank, Unmanned Aircraft are Wowing Defense Industry, DALLAS MORNING NEWS, 
June 14, 2005; Scarborough, supra, note 24. 



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Jane G. Dalton 



28. Air Force to Add Spy Plane Squadron, LAS VEGAS REVIEW- JOURNAL, June 4, 2005, at IB. 

29. Scan Eagle was developed by Boeing and The Insitu Group as an affordable, runway- 
independent, long endurance, autonomous, unmanned vehicle and is designed to provide real- 
time intelligence, surveillance and reconnaissance. Scan Eagle carries either an inertially 
stabilized electro-optical or infrared camera. It is 4 feet long with a wingspan of 10 feet. Scan 
Eagle can remain on station for more than 15 hours and is capable of providing intelligence from 
high (above 16,000 feet) or low altitude. See US Air Force, Innovative Solutions for the 
Warfighter, Scan Eagle, available at http://www.nellis.af.mil/UAVB/uavbspotlight.asp; Boeing 
Integrated Defense Systems, Unmanned Systems, ScanEagle UAV, available at http://www 
.boeing.com/defense-space/military/unmanned/scaneagle.html. 

30. Article 37 of the 1982 LOS Convention provides that the transit passage regime applies to 
"straits which are used for international navigation between one part of the high seas or an 
exclusive economic zone and another part of the high seas or an exclusive economic zone." 1982 
LOS Convention, supra note 11. The United States is not a party to the Convention. President 
Reagan announced, however, that the Convention "contains provisions with respect to 
traditional uses of the oceans which generally confirm existing maritime law and practice" and 
declared that the United States would act "in accordance with the balance of interests relating to 
traditional uses of the oceans — such as navigation and overflight." White House Press Release, 
Statement of the President (on the 1982 LOS Convention), Mar. 10, 1983, reprinted in 
National Security Documents, supra note 12, at 591. 

31. 1982 LOS Convention, supra note 1 1, art 39. 

32. Id. 

33. Most definitions of ships and aircraft assume, if they do not explicitly state, that the vehicles 
are "manned by a crew," the assumption being that the crew is actually located within the 
vehicle. See, e.g., ANNOTATED SUPPLEMENT, supra, note 17, para. 2.1.1, at 109 (". . . a warship [is] 
. . . manned by a crew which is under regular armed forces discipline") and para. 2.2.1, at 114 
(". . . military aircraft . . . include . . . aircraft . . . manned by a crew subject to regular armed forces 
discipline"). That the existence and employment of unmanned systems may not have been fully 
appreciated or contemplated when these definitions were developed does not prevent the 
incorporation of such systems into existing legal regimes. The definitions may, however, need to 
be updated to reflect current technology. 

34. Annotated Supplement, supra note 17, para. 2.3.3.1, at 125. 

35. San Remo Manual on International Law Applicable to Armed Conflicts at Sea 
para. 30, at 106 (Louise Doswald-Beck ed., 1995). The San Remo Manual was prepared by a 
group of international legal and naval experts participating in their personal capacity in a series 
of Round Tables convened by the International Institute of Humanitarian Law. The Manual was 
intended to provide a contemporary restatement of international law applicable to armed 
conflicts at sea. As such, it is a useful document for analyzing general legal principles on various 
issues, though it is not dispositive as to the law on any particular subject. 

36. International and Operational Law Division, Office of the Judge Advocate General of the 
Navy, Point Paper on the Use of Unmanned Aerial Vehicles (UAVs) while Transiting the Strait 
of Hormuz, Apr. 15, 2000 (on file with author). 

37. 1982 LOS Convention, supra note 11, art. 38. 

38. Id., art. 39. 

39. Id. 

40. A recent note in DEFENSETECH reported that the Central Intelligence Agency was operating 
unmanned aerial vehicles — the IGnat and Predator — in Iranian airspace searching for dispersed 
nuclear weapons development sites. Available at http://www.defensetech.org/archives of March 



315 



Future Navies — Present Issues 



1, 2005. If the article is correct, the legal rationale for such activity would have to be that, while 
"spying" may be a violation of the domestic law of the over-flown State, intelligence gathering is 
not forbidden by international law and has long been an accepted State practice. The cited article 
was rather cryptic and does not provide enough information to conduct a complete legal 
analysis. 

41. 1982 LOS Convention, supra note 11, art. 19. 

42. Id., art. 17. 

43. Id., art. 29. 

44. Webster's II New Riverside University Dictionary 1075, 186 (2d ed. 1988). 

45. Mat 1075. 

46. US Department of Transportation, US Coast Guard, "Navigation Rules, International - 
Inland," COMMANDANT INSTRUCTION M16672.2D, Mar. 25, 1999 (containing the 
International Regulations for Prevention of Collision at Sea, 1972, also known as COLREGs 72), 
Rules la and Rule 3a. 

47. 1 U.S.C. 3 (2005) ("The word "vessel" includes every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of transportation on water."). 

48. Stewart v. Dutra Construction Co., 543 U.S. 481 (2005), holding that a dredge is a "vessel" 
under the Longshore and Harbor Workers Compensation Act. 

49. International and Operational Law Division, Office of the Judge Advocate General of the 
Navy, Legal Review of the Remote Minehunting System AN/WLD-1(V), June 10, 2005 (on file 
with author). 

50. Given the characteristics of the system, the COLREGs requirements might not be onerous. 
For example, it is possible the light requirements could be satisfied by the presence of a white all- 
round light with visibility of 3 nautical miles as required by Rule 22(d) for inconspicuous, partly 
submerged vessels. It is also possible, under Rule 1(e), to obtain a US Navy certificate of 
alternative compliance for some or all of the requirements under special circumstances where 
strict compliance is impossible. 

51. COLREGs, supra note 46, Rule 2. 

52. 1982 LOS Convention, supra note 11, art. 87. 

53. Legal Review, supra note 49. 

54. See, e.g., Stephanie Showalter, The Legal Status of Autonomous Underwater Vehicles, 38 
Marine Technology Society Journal, Spring 2004, at 80, 81 (". . . it is unclear whether 
[autonomous underwater vehicles] are subject to the maritime regulations for vessels ....); 
Michael R. Benjamin 8c Joseph A. Curcio, COLREGs-Based Navigation of Autonomous Marine 
Vehicles, Proceedings of the Institute of Electrical and Electronics Engineers (IEEE) Conference 
on Autonomous Unmanned Vehicles 2004, at 32, 34 (on file with author), (concluding that 
autonomous marine vehicles "very likely" qualify as vessels and are subject to the COLREGs 
rules, though this conclusion has not been "clearly determined" through the judicial process). 

55. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and 
Shipwrecked Members of Armed Forces at Sea, art. 22, Aug. 12, 1949, 75 U.N.T.S. 85, reprinted 
in DOCUMENTS ON THE LAWS OF WAR, supra note 10, 221, 230 (hereinafter Geneva II). 

56. Id. 

57. Id., art. 34, at 233. 

58. Id., art. 35(2), at 233. 

59. Id., art. 34, at 233. 

60. Richard J. Grunawalt, Hospital Ships in the War on Terror - Sanctuaries or Targets?, 58 
Naval War College Review, Winter 2005, at 89. 



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Jane G. Dalton 



61. In 1905, the Russian hospital ship Orel was captured and condemned by a Japanese prize 
court for "signaling" to the Russian fleet "in ways that amounted to use for military purposes." 
Mat 91. 

62. In 1914, the German hospital ship Ophelia was captured and condemned by a British prize 
court for being "adapted and used as a signaling ship for military purposes." Id. at 93. 

63. Mat 98. 

64. The French text reads, "En particulier, les navires-hopitaux ne pourrant posseder ni utiliser 
de code secret pour leurs emissions par T.S.F. [wireless] ou par tout autre moyen de 
communication." Available at www.icrc.org/dih.nsf. 

65. Additional Protocol I, supra note 18, at 436. 

66. Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, 
implementing regulations "Health Insurance Reform, Security Standards - Final Rule," 
published in Federal Register, Vol. 68, No. 34, Feb. 20, 2003, sec. 164.312. Granted, treaties to 
which the United States is a party are part of the supreme law of the land. Domestic law cannot 
serve to invalidate or override treaty obligations. Nonetheless, domestic law that is inconsistent 
with international treaty obligations presents problems of compliance that are not easy to 
resolve in practice. In this case, the implementing regulations permit the use of equivalent 
alternative measures if it is not "reasonable and appropriate" to encrypt medical information. 

67. Michael Sirak, U.S. Navy Seeks to Revise Laws of War on Hospital Ships, JANE'S DEFENCE 
WEEKLY, Aug. 27, 2003, at 29. 

68. Grunawalt, supra note 60, at 109. It should be noted that the drafters of the San Remo 
Manual also concluded that the prohibition in Article 34 is unworkable, and recommended that 
hospital ships "should be permitted to use cryptographic equipment." SAN REMO MANUAL, 
supra note 35, para. 171, at 236-237. 

69. Geneva II, supra note 55, at 233. 

70. Grunawalt, supra note 60, at 109-111 (discussing the traditional view that hospital ships 
found "safety in vulnerability"). 

71. SAN REMO MANUAL, supra note 35, para. 170.3, at 235. 

72. Grunawalt, supra note 60, at 1 12. 

73. Sirak, supra note 67. 

74. Richard Scott, UK casualty ship project faces major surgery, JANE'S DEFENCE WEEKLY, May 
11, 2005, at 14. ("[B]udget pressures have forced the [Minister of Defence] to reconsider the 
scope of its current requirement and look instead at a cheaper option" which involves equipping 
a medical facility onboard an auxiliary vessel with additional combat-related missions.) 

75. Arthur M. Smith, Has the Red Cross-Adorned Hospital Ship Become Obsolete? 58 NAVAL 
WAR COLLEGE REVIEW, Summer 2005, at 120, 130 ("Hospital ships, as we have come to know 
them, may no longer play a role in a military structured for rapid flexible response in asymmetric 
warfare"). 

76. Id. at 131. A recent news article reported that non-governmental organizations are 
operating white-hulled "Mercy Ships" which operate in the waters off developing countries 
providing medical care to those in need. The ships do not bear red crosses, but in other respects 
appear similar to military medical ships. Mercy Mission, WALL STREET JOURNAL, Aug. 26, 2005, 
at W2. Professor George K. Walker has raised a number of very good questions concerning how 
those vessels should be treated in the event of an international armed conflict. George K. Walker, 
e-mail to Naval War College, Aug. 29, 2005 (on file with author). The Second Geneva 
Convention and Additional Protocol I actually foresee and make provisions for hospital ships 
owned or operated by neutral States, private citizens, officially recognized relief societies, and 
impartial international humanitarian organizations. Geneva II, supra note 55, arts. 24-25, at 



317 



Future Navies — Present Issues 



231, and Additional Protocol I, supra note 18, art. 22(2), at 434. One of the primary conditions 
for such ships to receive the same protections as military hospital ships is that they have to be 
made available to or under the control of a State party to the conflict. The presence of hospital 
ships not under the control of a party to the conflict would certainly complicate the targeting 
solution if they operate in waters near belligerent activities. 

77. Admiral Vern Clark, Posture Statement, Testimony Before the Defense Subcommittee of 
the Senate Appropriations Committee 4-5 (Mar. 16, 2005), available afwww.navy.mil. 

78. See, e.g., "Advance Questions for Admiral Michael G. Mullen, USN, Nominee for the 
Position of Chief of Naval Operations," 10-11, available at www.navytimes.com/content/ 
editorial, (the Convention "codifies fundamental benefits important to our operating forces as 
they train and fight . . . codifies essential navigational freedoms . . . supports the operational 
maneuver space . . . enhances our own maritime interests"). 

79. 1982 LOS Convention, supra note 11, art. 88. 

80. Id., art. 58. 

81. Charter of the United Nations, reprinted in NATIONAL SECURITY DOCUMENTS, supra note 
12, at 89, 90. (Article 2(4) provides that "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.") 

82. S. EXEC. RPT. NO. 108-10, at 17-18 (2004). 

83. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer 
Space, Including the Moon and Other Celestial Bodies, art. IV, Jan. 27, 1967, 18 U.S.T. 2410, 610 
U.N.T.S 205, reprinted in NATIONAL SECURITY DOCUMENTS, supra note 12, at 332, 333. By 
specific terms of the treaty other than the "peaceful purposes" provision, the United States 
agreed not to establish military installations, test weapons, or conduct military maneuvers on 
celestial bodies and not to station in outer space or place in orbit nuclear weapons or other 
weapons of mass destruction (Article IV). Importantly, these sorts of prohibitions do not appear 
in the Law of the Sea Convention. 

84. Commander's Handbook, supra note 17, at 149 n.114. See also, San Remo Manual, 
supra note 35, at 82. ("With respect to the high seas, the Round Table wished to emphasize that it 
did not accept the interpretations of some publicists that the LOS Convention's Articles 88 and 
301, reserving the high seas for peaceful purposes, prohibit naval warfare on the high seas.") 

85. Statement of the President, supra note 30. 

86. Convention on the Territorial Sea and the Contiguous Zone, art. 14, Oct. 31, 1958, 15 U.S.T. 
1606, reprinted in NATIONAL SECURITY DOCUMENTS, supra note 12, at 565. 

87. 1982 LOS Convention, supra note 1 1, art. 20. 

88. Id., art. 19. 

89. Id., art. 25. 

90. Id., art. 30. 

91. US Department of State, The Proliferation Security Initiative (PSI) (May 26, 2005), 
available at http://www.state.gOv/t/np/rls/other/46858.html. 

92. Andrew C. Winner, The Proliferation Security Initiative: The New Face of Interdiction, THE 
WASHINGTON QUARTERLY, Spring 2005, at 129. 

93. President George W. Bush, State of the Union Address, Jan. 20, 2004, available at 
www.whitehouse.gov. 

94. Naval Officials Focus on Broader Missions, Seabasing and Sea Shield, Inside the Navy, INSIDE 
WASHINGTON PUBLISHERS, Jan. 17, 2005, available at InsideDefense.com. 

95. See also, Barry R. Posen, Command of the Commons, 28 INTERNATIONAL SECURITY, 
Summer 2003, at 5 (arguing that the United States enjoys command of the commons — that is, 



318 



]ane G. Dalton 



command of the sea, space and air — which is a key military enabler of the US global power 
position). 

96. John T. Bennett, Notes from the Surface Navy Association s 2005 Annual Symposium, Inside 
the Pentagon, INSIDE WASHINGTON PUBLISHERS, Jan. 20, 2005, available at InsideDefense.com. 

97. On April 1, 2001, a United States EP-3 was conducting routine surveillance 80 nautical 
miles southeast of Hainan Island in the South China Sea. A Chinese fighter intercepted the EP-3, 
maneuvered close aboard and impacted the EP-3. The fighter broke up and ditched into the 
ocean; the pilot was not recovered. The EP-3's nose cone was sheared off, but the EP-3 pilot 
managed to land the aircraft safely at Langhui Airport. The Chinese held the 24-person 
American crew in "protective custody" for 1 1 days before releasing them. The United States 
position was that the EP-3 was operating in international airspace in full accordance with all laws 
and regulations and did nothing to cause the accident. The Chinese claimed the EP-3 (which was 
flying on autopilot) "veered" into the Chinese fighter. The Chinese also took the position that 
surveillance is a threat or use of force against the coastal State and that the exclusive economic 
zone is sovereign air and sea space. This position is entirely inconsistent with Article 58 of the 
1982 LOS Convention, which reserves to all States the freedom of overflight above the exclusive 
economic zone. 1982 LOS Convention, supra note 11. For additional information on the 
incident, see generally, USCINCPAC Virtual Information Center, Special Press Summary: 
China-US EP3 and J-8 Mid-Air Collision, Apr. 12, 2001, available afwww.vic-info.org; and 
Margaret K. Lewis, Note: An Analysis of State Responsibility for the Chinese-American Airplane 
Collision Incident, 77 NEW YORK UNIVERSITY LAW REVIEW 1404 (2002). 

98. Agreement Between the Government of the United States of America and the Union of 
Soviet Socialist Republics on the Prevention of Incidents On and Over the High Seas, May 25, 
1972, reprinted in 1 1 INTERNATIONAL LEGAL MATERIALS 778. 

99. Agreement Between the Government of the United States of America and the Government 
of the Union of Soviet Socialist Republics on the Prevention of Dangerous Military Activities, 
Sept. 23, 1989, reprinted in 28 INTERNATIONAL LEGAL MATERIALS 877. 

100. Agreement on Establishing a Consultative Mechanism to Strengthen Military Maritime 
Safety Between the Department of Defense of the United States and the Ministry of National 
Defense of the People's Republic of China, Jan. 1998. See generally, William S. Cohen, Working 
Together is Best Avenue for U.S. and China, 13 DEFENSE ISSUES, No. 12, Jan. 19, 1998. 

101. Letter from Ambassador Prueher to Chinese Minister of Foreign Affairs Tang, Apr. 11, 
2001, available at www.whitehouse.gov. 

102. Admiral Michael Mullen, Remarks at the US Naval War College, Newport, R.I. Aug. 31, 
2005, available at http://www.navy.mil ("Our vision is and ought to be to extend the peace 
through an inter-connected community of maritime nations working together. The enemy goes 
global. So should we."). 

103. State of the Union Address, supra note 93. "From the beginning, America has sought 
international support for our operations in Afghanistan and Iraq, and we have gained much 
support. There is a difference, however, between leading a coalition of many nations, and 
submitting to the objections of a few." 



319 



APPENDIX 



CONTRIBUTORS 



Contributors 



Editor's Note: In order to most accurately portray the events of the conference, the bio- 
graphical data in this appendix reflects the position in which the authors were serving 
at the time of the conference, as set forth in the conference brochures and materials. 

Ms. Lucy Brown is Senior Advisor, International Humanitarian Law for the Amer- 
ican Red Cross. Her responsibilities within the International Policy and Relations 
unit include building cooperative relationships with external organizations and 
working closely with partners in the International Red Cross and Red Crescent 
Movement. As a senior level advisor on issues relating to international humanitar- 
ian law application, policy and training, she serves as the primary liaison on these 
matters between the American Red Cross and nongovernmental organizations 
working in international relief and development. Ms. Brown has been actively in- 
volved in the American Red Cross international humanitarian law dissemination 
program since the early 1990s as a technical advisor and trainer of trainers. 

Captain Jane Dalton, JAGC, US Navy, is the Assistant Judge Advocate General 
(Civil Law), Office of the Judge Advocate General and Commanding Officer, Naval 
Civil Law Support Activity. Her previous major duty assignments include Legal 
Counsel to the Chairman of the Joint Chiefs of Staff, Washington, D.C.; Com- 
manding Officer, Naval Legal Service Office North Central, Washington, D.C.; 
Deputy Legal Counsel to the Chairman of the Joint Chiefs of Staff, Washington, 
D.C.; and Staff Judge Advocate, Commander Third Fleet, San Diego, California. 
Captain Dalton has a Juris Doctor (J.D.) degree from Georgetown University Law 
Center and a Master of Laws (LL.M.) degree from the University of Virginia School 
of Law. 

Professor Yoram Dinstein is the Yanowicz Professor of Human Rights at Tel Aviv 
University (Israel), where he is the immediate past President. Professor Dinstein 
served two appointments (1999/2000, 2002/2003) as the Charles H. Stockton Pro- 
fessor of International Law at the US Naval War College. He was also a Humboldt 
Fellow at the Max Planck Institute for International Law at Heidelberg (Germany), 
2000/2001. Professor Dinstein is a Member of the Institute of International Law. 
He has written extensively on subjects relating to international law, human rights 
and the law of armed conflict. He is the founder and Editor of the Israel Yearbook 



Contributors 



on Human Rights. He is the author of War, Aggression and Self-Defence, now in its 
4th edition. His latest book is The Conduct of Hostilities under the Law of Interna- 
tional Armed Conflict. 

Brigadier General Charles J. Dunlap Jr., JAGC, US Air Force, is the Staff Judge Ad- 
vocate, Headquarters Air Combat Command, Langley Air Force Base, Virginia. 
General Dunlap entered the Air Force in 1972 as a graduate of the Air Force ROTC 
program at St. Joseph's University, Philadelphia, Pennsylvania. He has deployed to 
support various operations in the Middle East and Africa, to include Operations 
Provide Relief, Restore Hope, Vigilant Warrior, Desert Fox, Bright Star and En- 
during Freedom. He has led military-to-military delegations to Uruguay, the 
Czech Republic, South Africa and Colombia. General Dunlap speaks widely on legal 
and national security issues, and is published in Aerospace Power Journal, Peace- 
keeping & International Relations, Parameters, Proceedings, the Fletcher Forum of 
World Affairs, the Air Force Times, the Wake Forest Law Review, the Air Force Law 
Review, the Tennessee Law Review and the Strategic Review, among others. 

Colonel Charles H. B. Garraway, CBE, is the Charles H. Stockton Professor of In- 
ternational Law at the US Naval War College. Colonel Garraway's tours of active 
duty with the British Army have included assignments in Cyprus, Germany, Bel- 
gium (SHAPE) and Hong Kong, and various tours in the United Kingdom. He is a 
former Visiting Fellow at the Research Centre for International Law, Cambridge 
University (now the Lauterpacht Centre) and a Member of the International Insti- 
tute of Humanitarian Law at San Remo. Colonel Garraway is also a member of the 
Board of Directors of the International Society for Military Law and the Law of 
War and was one of the General Rapporteurs for the 2003 Congress in Rome and 
served as Chairman of the General Affairs Committee. He has represented the 
United Kingdom at various international conferences, including the Preparatory 
Committee for Amended Protocol II to the Conventional Weapons Convention, 
the Diplomatic Conference on the Second Protocol to the Hague Cultural Property 
Convention and negotiations on the establishment of an International Criminal 
Court. During the 1990-91 Gulf War, he served as senior Army Legal Services Offi- 
cer where he was involved, in particular, with prisoner of war handling. In De- 
cember of 2002, Colonel Garraway was appointed a Commander of the Most 
Excellent Order of the British Empire by Her Majesty The Queen. 

Rear Admiral Raydon Gates, Royal Australian Navy, is the Head, Australian De- 
fence Staff (Washington) and Australian Defense Attache. He graduated from the 
Royal Australian Naval College in 1974. His early career was spent mainly at sea 

324 



Contributors 



serving in over 15 ships. His sea service culminated with the command of the 
guided missile frigates HMAS Canberra from 1991-93 and HMAS Adelaide from 
1995-97. Admiral Gates' shore postings have included operational and personnel 
positions in Sydney and Canberra in various headquarters. He was promoted to 
Rear Admiral in January 2001 and appointed the inaugural Commander of the 
Australian Defence College in Canberra responsible for joint staff training for offi- 
cers from O- 1 to the 0-6 rank levels. He was Maritime Commander Australia, July 
2002 to June 2004, responsible for the entire Australian Fleet. He commanded the 
Fleet during the Iraq War and the continuing Global War on Terror. Admiral 
Gates has been awarded a Master Degree in Business Administration, a Graduate 
Diploma in Strategic Studies, and a Diploma of Company Directorship. 

Professor Wolff Heintschel Von Heinegg is a Professor of International Law at the 
University of Frankfurt-Oder and the University of Augsburg, Germany, having 
returned to that position following a year-long appointment as the Charles H. 
Stockton Chair of International Law at the US Naval War College. He was the Rap- 
porteur of the International Law Association Committee on Maritime Neutrality 
and is currently the Vice-President of the German Society of Military Law and the 
Law of War. Professor Heintschel von Heinegg was among a group of international 
lawyers and naval experts who produced the San Remo Manual on International 
Law Applicable to Armed Conflicts at Sea. He is a widely published author of articles 
and books on the law of sea and naval warfare. 

Mr. Jean-Marie Henckaerts is a legal adviser in the Legal Division of the Interna- 
tional Committee of the Red Cross (ICRC). Mr. Henckaerts coauthored the 
ICRC's two-volume Customary International Humanitarian Law study. He was a 
member of the ICRC delegation to the 1999 Diplomatic Conference on a Second 
Protocol to the 1954 Hague Convention for the Protection of Cultural Property in 
the Event of Armed Conflict (The Hague, 1999). Mr. Henckaerts has a Bachelor of 
Laws (LL.B.) degree from the University of Brussels, a Master of Laws (LL.M.) de- 
gree from the University of Georgia School of Law and a Doctor of Juridical Sci- 
ence (S.J.D.) degree from The George Washington University Law School. Mr. 
Henckaerts is a member of the International Law Association, European Society of 
International Law, American Society of International Law, Academic Council of 
the United Nations System and the United Nations Association. He has published 
four books and numerous articles on international law, international humanitar- 
ian law and human rights law. 



325 



Contributors 



Doctor Marie Jacobsson is the Principal Legal Adviser on International Law to the 
Swedish Ministry for Foreign Affairs. Doctor Jacobsson holds a Doctor of Law de- 
gree from the University of Lund, Sweden. She has participated as a representative 
of the Swedish Ministry for Foreign Affairs in numerous international negotia- 
tions, conferences and meetings on issues relating to the laws of warfare. She is a 
member of the Swedish Government's Delegation for International Humanitarian 
Law Monitoring of Arms and the Swedish Humanitarian Law Delegation. Doctor 
Jacobsson is a frequent lecturer at Swedish and foreign universities. Her publica- 
tions can be found primarily in the areas of international law and security policy, 
the laws of warfare and law of the sea. 

Professor David Kennedy is the Manley O. Hudson Professor of Law at Harvard 
Law School and Director of the European Law Research Center. He teaches inter- 
national law, international economic policy, European law, American legal theory, 
and law and development. Professor Kennedy holds a Doctor of Philosophy 
(Ph.D.) degree in international affairs from the Fletcher School at Tufts University 
and a Juris Doctor (J.D.) degree from Harvard Law School. He has practiced law 
with various international institutions, including the United Nations High Com- 
missioner for Refugees and the Commission of the European Union, and with the 
private firm of Geary, Gottlieb, Steen and Hamilton in Brussels. He has worked as 
a special consultant for the United Nations, as a legal advisor in the Legal Services 
of the Commission of the European Communities, and consulted for a range of 
projects involving European and international law. Professor Kennedy has lec- 
tured at numerous universities and institutes, and has been a Visiting Professor at 
New York University, at the University of Paris - Nanterre, at the University of To- 
ronto and at the University of Paris (II). He was a Visiting Scholar at the School of 
Oriental and African Studies, University of London. He is the author of various ar- 
ticles and books on international law and legal theory, and founder of the New Ap- 
proaches to International Law project. He is the author of the recently published Of 
War and Law. 

Professor Tim McCormack is on the faculty of the University of Melbourne Law 
School where he serves as the Foundation Australian Red Cross Professor of Inter- 
national Humanitarian Law and also the Foundation Director of the Asia-Pacific 
Centre for Military Law, a collaborative training and research venture between the 
Law School and the Australian Defence Force Legal Service. Professor McCormack 
acted as amicus curiae on international law matters to the judges of Trial Chamber 
III at the International Criminal Tribunal for the former Yugoslavia in The Hague 
for the trial of Slobodan Milosevic. He was a Vice-President of the Australian Red 



326 



Contributors 



Cross and chaired the Australian Red Cross National Advisory Committee on In- 
ternational Humanitarian Law until 2002. Professor McCormack has a Bachelor of 
Laws (LL.B.) degree from the University of Tasmania (LL.B.) and a Doctor of Phi- 
losophy (Ph.D.) degree from Monash University. He has special research interests 
in the fields of international humanitarian law, international criminal law, arms 
control and disarmament, and the law of international institutions. 

Lieutenant Colonel David Lloyd Roberts, MBE, is a retired officer of the British 
Army. He graduated from the Royal Military Academy, Sandhurst in 1966 and was 
commissioned into the Parachute Regiment. Lieutenant Colonel Roberts' army ca- 
reer took him to various conflict zones, including the Former Yugoslavia, the Per- 
sian Gulf, Lebanon, Northern Ireland and South Arabia. On leaving the Army in 
1993, he joined the International Committee of the Red Cross (ICRC) as its opera- 
tional security adviser and two years later moved to the department responsible for 
dissemination of international humanitarian law to armed forces. He has con- 
ducted ICRC missions to nearly 30 countries. He holds a Master of Laws (LL.M.) 
degree in International Human Rights Law from the University of Essex. His 
humanitarian work includes a consultancy mission for the Office of the United 
Nations High Commissioner for Human Rights to investigate allegations of mass 
killings in Northern and Central Afghanistan in 1997-98. He retired from the 
ICRC in 2003 and is now a consultant and lecturer on international humanitarian 
law, human rights and security issues. His published works include The Law of 
Armed Conflict, a training manual for armed and security forces that were pub- 
lished by the ICRC and is now translated into six languages. 

Professor Michael N. Schmitt is Professor of International Law at the George C. 
Marshall European Center for Security Studies in Garmisch-Partenkirchen, Ger- 
many and also serves as Director of the Program in Advanced Security Studies. 
Professor Schmitt served in the United States Air Force for 20 years before joining 
the Marshall Center faculty. During his military career, he specialized in opera- 
tional and international law and was senior legal adviser to multiple Air Force 
units, including units conducting combat operations over Northern Iraq. For- 
merly on the faculties of the United States Air Force Academy and Naval War 
College, he also has been a Visiting Scholar at Yale Law School and lectures regu- 
larly at the International Institute of Humanitarian Law and the NATO School. 
The author of many scholarly articles on law and military affairs and contributing 
editor for multiple volumes of the US Naval War College's International Law 
Studies (the "Blue Book") series, his works have been published in Belgium, Chile, 
Germany, Israel, Peru, the United Kingdom and the United States. Professor 

327 



Contributors 



Schmitt is a member of the American Society of International Law and the Interna- 
tional Law Association (British Branch). He serves on the Editorial Board of the In- 
ternational Review of the Red Cross, the Executive Committee of the American 
Society of International Law's Lieber Society, the Steering Committee for Harvard 
University's International Humanitarian Law Research Initiative, and Office of the 
High Commissioner for Human Right's Advisory Board on Human Rights 
Training for National Armed Forces. 

Commander Dale Stephens, Royal Australian Navy (RAN), is on the faculty of the 
US Naval War College's International Law Department. He joined the faculty 
following a year in residence at Harvard University School of Law from which he 
received a Master of Laws (LL.M.) degree. His previous assignments have included 
Fleet Legal Officer, Maritime Headquarters Australia (Sydney); Deputy Director 
Operations Law, Strategic Operations Division (Canberra) and Chief Legal Offi- 
cer, UN Transitional Administration in East Timor Peacekeeping Force Head- 
quarters. Commander Stephens has served as a Legal Officer in the RAN since 
being admitted to practice in 1989 and has had considerable experience in matters 
of operational and international law, especially in the context of combined opera- 
tions. He is the author of several articles dealing with, inter alia, the law of naval 
mine warfare, navigational rights under the 1982 United Nations Convention on the 
Law of the Sea and the intersection of the law of armed conflict and human rights. 

Colonel Kenneth W. Watkin, Canadian Forces, is the Deputy Judge Advocate 
General/Operations where he is responsible for the provision of operational and 
international legal advice regarding deployments of the Canadian Forces. During 
his more than 20 years as a military legal officer, Colonel Watkin has served as the 
Special Assistant to the Judge Advocate General, the Assistant Judge Advocate 
General/ Atlantic Region, and the Deputy Judge Advocate at a major army base in 
Petawawa, Ontario. Colonel Watkin has also been the Director of offices dealing 
with human rights and information law, operational law, claims and civil litiga- 
tion, and training. His operational law experience has included service as a legal ad- 
viser to the Canadian Navy, advising Canadian commanders in Bosnia and as the 
Deputy Judge Advocate General/Operations at the time of the terrorist attacks on 
September 11, 2001. He was the legal advisor to a 1993 military/civilian Board of 
Inquiry that investigated the Canadian Airborne Regiment Battle Group in Soma- 
lia. Colonel Watkin has Bachelor of Laws (LL.B.) and Master of Laws (LL.M.) de- 
grees from the Queen's University Law School, Kingston, Ontario. He is a widely 
published author on a variety of operational law topics, including the law of armed 
conflict. 



328 



Index 



Abu Ghraib 11, 15, 127, 225, 243 

Additional Protocols of 8 June 1977 to the 1949 Geneva Conventions 39, 45, 48, 50-52, 100- 

101,122,183-184,230 
Additional Protocol I 39-40, 45, 49-52, 55, 61-62, 74, 85, 100-101, 103, 105-108, 110- 

112, 122, 133-134, 139, 141, 152-153, 155, 168-170, 175-179, 181, 183-184, 186, 190, 

193, 197, 200, 210-211, 214, 217, 229-230, 234-238, 242, 243, 247-250, 254-255, 278- 

280, 287, 293, 306, 314, 317-318 
Additional Protocol II 38-40, 45, 48-52, 61-62, 101, 110, 183-184, 186, 190, 193, 198, 

200-201, 213-215, 229-230, 236 
Afghanistan 10, 24, 59, 83, 93, 115, 131-132, 145, 147, 150, 164, 174-175, 203-204, 215, 217, 

226,247,302,319 
African Union 46 
Albania 17, 158, 160, 180 

American Convention on Human Rights 240, 244 
Arabian Gulf 303 (see also Persian Gulf) 
asymmetry 16, 149-150, 156-157, 160, 174 
Australia 59-60, 81-86, 95-96, 171, 205-206, 212-213, 217, 233, 238, 243, 245-246, 253-255, 

259-266 
auxiliary vessel 271,298,317 

B 

Baghdad 19, 153, 174, 178 

balance of power 4 

battlespace 18, 22, 24, 149, 161-162, 164, 173, 181, 263 

Belgrade 15, 164, 181 

belligerent 8-9, 12, 15, 77-78, 126, 130, 137, 139, 154-155, 157, 159, 163-164, 170, 247, 253, 

271-276, 278, 282-288, 291-292, 295, 301-303, 318 
Biological Weapons Convention 39, 167, 170 
blockade 23, 269-271, 274, 276-278, 291-292 
Boot, Max 203,215-216 
Bush, President George W. 28-29, 178, 244, 312, 318 



calmatives 197, 213 

Canada 59-60, 193, 198-199, 204, 214, 246, 253-255 

chemical agents 195-197, 199, 201-202, 204-207, 209-210 

chemical weapons 54, 61, 71, 141, 156, 167, 170, 196-197, 207, 211-212 

Chemical Weapons Convention 39-40, 170, 196-197, 202, 211-212, 215, 217 

Cicero 124, 132, 134 

Civil War 7, 10, 13 



329 



Index 



civilian mariners 271, 289, 297-302, 313-314 

civilian objects 48, 52, 54, 61, 64-66, 71-72, 139-142, 144, 148, 150, 152-153, 156, 160-161, 

163,169, 177,179,256,279 
civilians 29, 63, 72, 139, 176, 300 
Clark, Admiral Vern 297, 308, 312-313, 318 
Clausewitz, Carl von 6-7, 9, 26, 33, 154, 193, 210 
CNN effect 24, 256 
coalition 16-18, 20, 25, 29-30, 131, 154, 221-229, 233-234, 238, 242, 245-252, 259-260, 262- 

263,266,312,314,319 
coalition partners 221-226, 229, 245-246, 250-252, 260, 263, 312, 314 
coalition warfare 222, 224-225, 229, 234, 245 
collateral damage 25, 131-132, 140-141, 144, 146, 148, 150, 152, 155, 159-165, 178, 199,208, 

228, 250, 256, 266 (see also incidental injury) 
combatant immunity 151,301-302 
combatants 9, 11, 15, 23-24, 38, 48, 50, 61, 63, 85, 105-106, 117, 125, 132, 138-141, 144, 150- 

151, 154, 157, 159, 165, 176, 188-189, 199, 205-206, 210, 255-256, 261-262, 265-266, 

271, 280, 300, 306 
command responsibility 6, 21, 32, 130 
Common Article 3 39-40, 48, 60, 198, 200, 238 
Continental Shelf 40, 42, 44-45, 58-59, 107, 109, 112, 167 
conventional weapons 93, 156 
Council of Europe 46 

Cultural Property Convention of 1954 39-40, 48, 53, 78 
customary international law 14, 39-45, 47-54, 56-57, 59, 61, 85, 88-91, 94-95, 100-103, 105- 

107, 109-110, 137, 167, 180, 194-195, 222, 229-230, 236-239, 246-247, 251, 253, 271, 

273, 276, 278-279, 281, 283-284, 286-289, 299-300, 309 

D 

Dangerous Military Activities Agreement 311 

Defense Advanced Research Projects Agency (DARPA) 142-145, 147-149, 155, 159, 171-173 

Dinstein, Yoram 60, 99, 110-112, 168, 178, 207, 217-218, 288, 294-296 

distinction (see principle of distinction) 

domestic law 50, 109, 131, 199, 204, 207-208, 222, 224-226, 229, 245, 251-252, 301, 316-317 

Dunlap, Major General Charles J. 23, 166, 180, 221, 231 



East Timor 83, 247, 263 

Egypt 31,59,225 

embargo 270 

encrypted communication 306-307 

European Convention for the Protection of Human Rights 239, 244 

exclusion zone 265, 286, 289, 291 

exclusive economic zones 59, 272, 309, 311-312, 315, 319 

expanding bullets 109, 138, 141, 198, 208 



330 



Index 



Falklands War 286 

Falluja 16, 24, 150, 153, 178, 206-207, 218 

feigned surrender 153,228 

Franck, Thomas M. 96,210,218 

friendly fire 226 



Geneva Conventions of 1949 37, 39-40, 48, 60-61, 66, 70, 77-78, 106, 116-120, 122, 124, 126, 
131, 139, 170, 183-184, 200, 223, 229-230, 299, 303 (see also Common Article 3) 

Geneva Convention I 133-134, 170, 175-176, 213, 229 

Geneva Convention II 133-134, 170, 175-176, 213, 229, 306-307, 317 

Geneva Convention III 133-134, 151, 170, 175-176, 213, 229 

Geneva Convention IV 133-134, 170, 175-176, 213, 229 
Geneva Gas Protocol of 1925 39, 167, 170, 196-197, 212 (see also chemical weapons) 
genocide 11,26 

Great Schism 100,105-106,110 
Greece 31, 60 

Grunawalt, Richard J. 306-307, 316-317 
Gulf Cooperation Council 46 
Gulf of Aqaba 260 
Gulf of Oman 303 



H 

Hague Regulations 39, 52-53, 106, 139, 168-170, 175-176, 178, 216, 229 

Hainan Island 311,319 

Hammarskjold, Dag 27, 33, 256 

Henckaerts, Jean-Marie 37, 58, 60-62, 95-97, 110-112, 134, 167, 169, 190, 211, 213-214, 218 

high seas 161, 180, 272, 286, 291, 305, 308-309, 312, 315, 318 

hospital ships 289,305-308,316-318 

hostile intent 224 

human rights law 22, 24, 55-56, 116, 121-123, 131, 183, 185, 187, 214, 235, 239-242 

Human Rights Watch 165, 168, 175, 177, 181, 207, 210, 218, 230 

human shields 16, 62, 73, 176-177, 206-207 

humanitarian law 5-6, 12, 15, 17, 19, 21-23, 26, 30, 37-39, 41-47, 49, 52, 54-58, 63-64, 66, 

70, 72, 77-79, 82-84, 86, 88, 92, 94-95, 115-117, 123, 133, 156, 160, 165, 183-185, 

187-188, 190, 193-195, 198, 202, 210, 214-215, 241 
humanitarianism 5-6, 28-29, 32 
Hussein, Saddam, 30, 176-177, 196 



331 



Index 



improvised explosive devices 144, 189 

incidental injury 140-141, 146, 148, 152, 155, 159-165, 177-178, 250, 256, 266 (see also 

collateral damage) 
Incidents at Sea Agreement 311-312 
innocent passage 290, 302, 304-305, 309-310 
insurgency 16, 23-24, 201, 207 

Intergovernmental Group of Experts for the Protection of War Victims 38, 58 
international armed conflict 48,61,95, 110-111, 133-134, 168, 190,210,213,215,218,229, 

236, 243, 252, 292-293, 295, 314 
International Court of Justice (ICJ) 11, 40, 42-45, 52, 55-56, 58, 88-89, 101-102, 109, 111, 

138, 156, 167, 170, 180, 238, 241 
International Criminal Court (ICC) 39-40, 52, 61, 91, 96, 107, 112, 126, 177, 196, 198-199, 

211,214,223,230,246 
International Criminal Tribunal for the Former Yugoslavia (ICTY) 90-91, 182, 196, 201, 211, 

327 
International Law Association 43, 58, 112, 283, 292 
Iraq 5, 10-11, 16, 20-22, 24, 28-31, 33, 59-60, 83, 115, 130-132, 140, 143-145, 147-154, 159, 

161, 163-165, 170-178, 181-182, 193, 203-207, 211, 217, 223, 227-228, 231, 235-236, 

239, 247, 261, 286, 294-295, 298, 302, 307, 314, 319 
Iraq war 20-21,30 
Israel 31, 59-60, 93, 99-100, 103-104, 106-107, 109, 139-140, 154, 177-180, 256, 289 



Jordan 31,59-60 

Jumper, General John 302, 314 

jus ad bellum 282, 284, 286 

jus cogens 43 

just war 9, 13 



K 

Kosovo 10, 15, 19-20, 22, 25, 131, 180, 182, 223, 254 



land mines 54, 72, 170, 184, 246, 249 

law enforcement 22-23, 154, 194-195, 197-210, 212, 216, 218, 261, 310 

law of armed conflict 14, 18, 24-26, 32, 81, 101, 104, 121-122, 138-141, 150-153, 155-156, 

158, 160, 163, 166, 170-171, 193-195, 197-198, 200-202, 205, 209, 222, 242, 249-250, 

274, 280-281, 300 (see also law of war) 
law of naval warfare 157, 269, 290, 292-293, 295 
law of war 9, 26-27, 29-30, 116, 118, 123, 125-127, 129-132, 169, 194, 199-200, 205, 210, 

218, 230, 236, 239-240 (see also law of armed conflict) 



332 



Index 



lawfare 23, 227-229 
League of Arab States 46 
League of Nations 27 
lexspecialis 200,241 
Libya 58-59, 167,311 
LieberCode 13, 176, 178, 182 
Lincoln, President Abraham 7, 33 



M 



malodorants 197,213 

Mandsager, Dennis 3, 81 

maritime interception operations (MIO) 204, 260, 269-270, 289 

Martens Clause 141,170,190 

Matheson, Michael J. 168, 210, 230, 236-239, 243-244 

Mattis, Lieutenant General James 16, 311 

mercenaries 8, 105 

method of warfare 54, 69, 71, 141, 190, 196-197, 202, 205-206, 209, 237 

microwaves 189 

Military Manuals 41, 44, 46, 57, 86-87, 103, 196, 198, 208, 236, 248, 283-284, 292 

Australia 84-85 

Canada 14 

Germany 176 

Israel 103 

Netherlands 212 

United States 169, 176,237 
military advantage 51-52, 61, 64-65, 68, 71, 85, 140-141, 152, 156, 159, 162-163, 165, 180- 

181, 207, 248-250, 254-256, 280 
military necessity 15, 19-20, 23, 52-53, 67-69, 128, 130, 166, 208, 210, 270 
military objective 48, 51-53, 61, 64-65, 67-68, 71, 117, 139-142, 150, 152-155, 157-165, 169, 

177-179, 181, 238, 250, 253, 256, 260, 274-275, 279, 281, 293, 300 
millimeter waves 189 
Milosevic, Slobodan 15, 158, 181 
mine warfare 274, 276 
Moir, Lindsay 209,211,218 
Morocco 31 

MuUen, Admiral Michael G. 308, 312, 318-319 
My Lai 19 

N 

national sovereignty 7 

NATO 15, 158, 165, 171, 177, 180-182, 223, 230, 234, 236-238, 242, 253-254, 298, 313 

network centric warfare 147, 259, 263 

neutral State 273 

neutrality 116, 188, 282-285, 288, 294 

Nicaragua case 44, 88-89, 91, 96 

333 



Index 



noncombatants 9, 261-262, 265-266, 300 

non-international armed conflict 38-40, 42, 48-55, 57, 63, 75-76, 78-79, 94, 101, 104, 110, 

194-196, 198, 200-201, 203, 208, 238 
non-lethal weapons 138, 148, 173, 189, 207, 213 
North Sea Continental Shelf case 40, 42, 44, 107, 109 
nuclear weapons 52, 55, 62, 108-109, 156-160, 168, 180, 315, 318 
Nuclear Weapons case 1 1, 33, 52, 55, 58, 60-61, 102, 1 1 1, 138, 156, 167-170, 179-180, 214, 

240-241, 244 
Nuremberg 15, 61, 127, 170, 286 

O 

Ocean Policy Statement 309 

opinio juris 40, 43-44, 83-84, 89, 93, 102, 167, 283, 289 

Organization of American States 46 

Organization of the Islamic Conference 47 

Ottawa Convention 39-40, 54, 61, 167, 223, 230, 249, 253 (see also land mines) 

overflight 262,303,309,315,319 



pacifism 9, 12, 24 

Pakistan 31,59-60, 180 

Palestine 31 

Paris Declaration 8, 33, 292 

Parks, W. Hays 93-94, 96, 175, 177, 237, 243 

peacekeeping 17, 22, 52-53, 66, 130-131, 142, 189, 202, 204-205, 213 

pepper spray 11, 186-187, 197, 206 

perfidy 16, 49, 70, 103, 123, 141-142, 153-154, 168-169, 176, 228, 281 

Persian Gulf 5, 175, 228, 235, 243, 279 (see also Arabian Gulf) 

pillage 52-53, 67, 74, 104, 111 

police 10, 21, 24, 30, 90, 116, 123, 131, 180, 186-187, 189, 203-205, 208, 212, 214, 216, 261 

political intercourse 6-7, 31, 33 

Portugal 31,212 

principle of distinction 5, 15, 46, 48, 59, 63, 106, 118, 130, 138-140, 154-169, 255, 261, 293, 

300 
private contractors 22, 271, 289 
privateers 8, 300 
prize 274, 284, 287, 296, 317 

Proliferation Security Initiative (PSI) 289, 310, 312, 318 
proportionality 11, 15, 19-20, 23, 48-49, 51-52, 58, 61, 84-85, 130, 140, 142, 152-153, 155- 

157, 159, 161, 177-178, 207, 248-251, 254, 256 
Prueher, Ambassador 312, 319 



334 



Index 



R 

Red Crescent 37-38, 58, 99, 117, 120, 133, 152-153, 185, 187 

Red Cross 12-13, 37-38, 58, 61-62, 81-82, 99, 115-121, 125, 133-134, 141, 152, 167, 169, 

179, 181, 183, 185, 187, 191, 195, 210, 214, 253, 288, 293, 314, 317 
Red Sea 260 

riot control agents (RCAs) 54, 71, 141, 196-197, 202, 204-209, 212, 215, 217, 218 
Royal Australian Navy 245, 259 

rules of engagement 14, 18-19, 22, 211, 224, 245, 260, 265, 289 
Rumsfeld, Donald 16-17, 230 
Russo-Japanese War 306 
Rwanda 59,91, 127 



San Remo Manual 247, 253, 269-270, 272-284, 287-293, 295-296, 303, 307, 315, 317-318 

Schachter, Oscar 27, 33, 256 

Schmitt, Michael N. 167, 171, 176, 179-182, 249-250, 253, 256, 314 

Sea Basing 297 

Senegal 17,20,59-60 

Solomon Islands 83, 261 

sovereignty 7, 13, 24, 27, 30-31, 201, 215, 259, 304, 309, 311 

Spaight, James M. 274-275, 291, 293, 296 

Spain 31,59,255 

State practice 40-42, 44-47, 49, 52-54, 56-57, 83-86, 89, 92-96, 101-104, 141, 195, 197, 207- 

208, 270-271, 283, 287, 292, 309, 316 
Strait of Hormuz 303, 315 
Straits of Tiran 260 

superfluous injury 15, 25, 54, 70, 84-85, 139, 141, 168, 184, 187, 190, 197, 207-208, 218 
superior orders 94, 127 
surrender 22, 69, 124, 128, 141, 153, 169, 178, 228, 231, 281-282, 293-294 



Tadic case 196, 198,201,211,214-215 

targeting 15, 25, 30, 131, 143, 152-154, 158, 176, 181, 183, 226, 238, 260, 266 (see also civilian 

objects, collateral damage, incidental injury, military objective, principle of distinction) 
Tarnak Farms 226 
technology 22, 137-138, 142, 146, 148-151, 154-163, 165-167, 173, 185-186, 188, 227, 262- 

263,277,305-307,315 
terrorists 25, 109, 125, 155, 178, 197, 205-206, 214, 216, 218, 237, 261, 291, 303, 307-308 
thermobaric devices 1 89 
three block war 203, 209 
Tokyo 127 

Total Exclusion Zone (see exclusion zone) 
transformation 6, 20, 30, 292, 297-298, 301 



335 



Index 



transnational armed conflict 201 
transnational crime 261 
Turkey 31,60,243,298 



U 



Uniform Code of Military Justice (UCMJ) 265, 300, 302, 313-314 

UN Charter 27-28, 30, 202, 235, 282, 285-286 

UN Security Council 90, 96, 202, 269-270, 285, 295 

United Kingdom 59-60, 108-109, 170-171, 197, 199, 206, 212, 235-236, 238-239, 243, 246, 

253-255,284,287,295,311 
unmanned vehicle 262, 272, 315 
unnecessary suffering 15, 25, 54, 70, 84-85, 138-139, 141, 184-187, 190, 197, 202, 207-208, 

212,218 
urbanization 262 

US Navy 169, 205, 289-290, 297-298, 300, 302, 305, 307-308, 316 
USNS Mercy 306 
USSCole 275,291,307 
USS Vincennes 279 



visit and search 204, 271, 285, 287-288 

W 

Walzer, Michael 199,214 

warship 265, 271-272, 274-277, 279-282, 284, 287, 289-290, 295, 298-302, 304, 306, 310, 

313-315 
weapons of mass destruction (WMD) 144, 155-156, 270, 310, 318 (see also biological 

weapons, chemical weapons, nuclear weapons) 



Zimbabwe 17, 59 



336