INTERNATIONAL LAW STUDIES

Volume 81

International Law Challenges:

Homeland Security and Combating Terrorism

Thomas McK. Sparks and Glenn M. Sulmasy

Editors

Naval War College

Newport, Rhode Island

2006

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INTERNATIONAL LAW STUDIES

Volume 81

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Library of Congress Cataloging-in-Publication Data

International law challenges : homeland security and combating terrori

Thomas McK. Sparks and Glenn M. Sulmasy.

p. cm. — (International law studies ; v. 81)

Includes index.

ISBN-13: 978-1-884733-38-3 (hardcover) 1. War (International law) 2

Maritime (International law) 3. International law—United States. 4. N

security—United States. 5. Courts-martial and courts of inquiry—Uni

6. Terrorism—Prevention. I. Sparks, Thomas McK. II. Sulmasy, Glenn 

KZ6355.I58 2006

341—dc22

2006028536

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Table of Contents

International Law Challenges:

Homeland Security and Combating Terrorism

FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

PART I: KEYNOTE ADDRESS

I The International Dimensions of Homeland Security

Ryan P. Stiles . . . . . . . . . . . . . . . . . . . . . . . . . 

PART II: COMPARATIVE APPROACHES TO SECURITY AND

MARITIME BORDER CONTROL

II Comparative Approaches to Security and Maritime Border C

Dale Stephens . . . . . . . . . . . . . . . . . . . . . . . . . 

III European and German Security Policy and International Terr

Torsten Stein . . . . . . . . . . . . . . . . . . . . . . . . . 

PART III: THE PROLIFERATION SECURITY INITIATIVE IN THE MARITIME 

IV The Proliferation Security Initiative: Security vs. Freedom of N

Wolff Heintschel von Heinegg. . . . . . . . . . . . . . . . . 

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

WMD Counter-Proliferation Initiatives

Craig H. Allen . . . . . . . . . . . . . . . . . . . . . . . . . 

VI The Proliferation Security Initiative in the Maritime Domain

Stuart Kaye . . . . . . . . . . . . . . . . . . . . . . . . . 

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PART IV: CURRENT ISSUES IN OCCUPATION LAW

VII Is There a “New” Law of Intervention and Occupation?

Leslie C. Green . . . . . . . . . . . . . . . . . . . . . . . . 

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

Fred Abrahams . . . . . . . . . . . . . . . . . . . . . . . 

IX Treatment and Interrogation of Detained Persons

David E. Graham . . . . . . . . . . . . . . . . . . . . . . 

X Liberation and Occupation: A Commander’s Perspective

Fabio Mini . . . . . . . . . . . . . . . . . . . . . . . . . . 

PART V: MILITARY COMMISSIONS

XI Military Commissions: Old Laws for New Wars

William K. Lietzau. . . . . . . . . . . . . . . . . . . . . . 

XII Military Commissions: Constitutional, Jurisdictional, and Du

Requirements

Jordan J. Paust . . . . . . . . . . . . . . . . . . . . . . . . 

XIII Military Commissions—Kangaroo Courts?

Charles H. B. Garraway . . . . . . . . . . . . . . . . . . . 

PART VI: THE RIGHT OF SELF-DEFENSE IN THE GLOBAL WAR ON TERR

XIV Using Force Lawfully in the 21st Century

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

XV The Gulf War: 1990–2004 (And Still Counting)

Yoram Dinstein . . . . . . . . . . . . . . . . . . . . . . . 

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

Christoph Müller. . . . . . . . . . . . . . . . . . . . . . . 

XVII The Legality of Operation Iraqi Freedom under International 

Michael N. Schmitt . . . . . . . . . . . . . . . . . . . . . 

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PART VII: TARGETING TERRORISTS

XVIII Debating the Issues

Kenneth Roth and Robert F. Turner. . . . . . . . . . . . . 

Appendix—Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . 

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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Foreword

The International Law Studies “Blue Book” series was initiated by 

War College in 1901 to publish learned essays, treatises, and ar

contribute to the broader understanding of international law. This vo

81st of the series, contains papers addressing the issues discussed and de

colloquium hosted here at the Naval War College from June 23 to 25, 200

International Law Challenges: Homeland Security and Combating Terror

This colloquium’s charter was to study and debate various internationa

affecting homeland security, homeland defense, and the combating of 

Renowned international law scholars and practitioners of all stripes—a

military officers, government officials, and those representing various po

suasions—participated in collegial but often spirited and always fruitful d

and examinations of these issues. A vastly increased understanding and ap

of the role of international law in the ever-changing 21st century resulted

This colloquium received generous support from the Israel Yearboo

man Rights; the Roger Williams University Ralph R. Papitto School of La

Rhode Island; the Lieber Society on the Law of Armed Conflict of the Am

ciety of International Law; the Pell Center for International Relations a

Policy of Salve Regina University, Newport, Rhode Island; and the Nava

lege Foundation. Without this much-appreciated support, this notew

highly productive event would not have been possible.

On behalf of the Secretary of the Navy, the Chief of Naval Operation

Commandant of the Marine Corps, I extend our sincere thanks and ap

to the participants, contributing authors, editors, and supporting organi

their contributions to this successful gathering and to the publication o

standing addition to the historic “Blue Book” series.

J. L. SHUFORD

Rear Admiral, U.S. Navy

President, Naval War College

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Introduction

In June 2004, the Naval War College hosted a colloquium entitled Int

Law Challenges: Homeland Security and Combating Terrorism. This c

was made possible with the support of the Israel Yearbook on Human R

Roger Williams University Ralph R. Papitto School of Law, Bristol, Rho

the Lieber Society on the Law of Armed Conflict of the American Societ

national Law; the Pell Center for International Relations and Public Poli

Regina University, Newport, Rhode Island; and the Naval War Colleg

tion. Without the support and assistance of these organizations, this ev

not have been the success that it was, and this volume would not be befo

is. I sincerely appreciate their support.

As noted in the Introduction to Volume 79 of the “Blue Book” series, 

of 9/11 brought home to the United States that, perhaps unlike any time i

the “tyranny of distance” could not be relied upon to protect its citi

harm. That volume, International Law and the War on Terror, containe

ceedings of a colloquium hosted by the Naval War College in June 2002

This colloquium, held two years later, examined actions taken since 

the Proliferation Security Initiative, a response to the growing challeng

the proliferation of weapons of mass destruction, their delivery system

lated materials worldwide; and measures initiated to increase the control 

rity of maritime borders. Additionally, with the growing insurgency and 

terrorist acts in Iraq, issues of occupation law, which the United States h

plied following World War II, played a prominent role in the discussions 

loquium participants.

I thank the editors—Captain Thomas Sparks, US Coast Guard a

mander Glenn Sulmasy, US Coast Guard—for their substantial efforts i

lication of this volume. I also would like to recognize two long-time sup

the Naval War College and the International Law Department, whom t

with completing “the lion’s share of the substantive editing of this volum

sor Emeritus Jack Grunawalt and Captain Ralph Thomas, JAGC, US N

Without question, their dedication, conscientiousness, and persever

principally responsible for the production of this volume. Additionally, I 

conference coordinator, Commander Glenn Sulmasy, US Coast Guard, 

perb efforts in organizing the event.

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Additionally, a special thank you is necessary to Rear Admiral Jacob 

President of the Naval War College; Dr. James F. Giblin, Jr., the College

and Dr. Kenneth Watman, Dean of the Center for Naval Warfare Studie

leadership and support in the planning and conduct of the conference an

lication of this volume.

The “Blue Book” series is published by the Naval War College and d

throughout the world to academic institutions, libraries, and both US an

tional military commands. This volume, International Law Challenges: 

Security and Combating Terrorism, is a fitting and necessary addition to th

the United States and its coalition partners continue to wage this “long 

DENNIS L. MANDSAGER

Professor of Law & Chairman

International Law Department

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Preface

In the summer of 2004, a sense of normalcy had returned to the home

United States. One could say the “sleeping giant” that had awakene

had fallen back “asleep.” Military victories in Afghanistan and in Iraq 

achieved. Operation Enduring Freedom (OEF) and Operation Iraqi 

(OIF) were officially declared as examples of military successes. Domes

USA PATRIOT Act had been passed and was implemented. The reorgan

the government had occurred and the National Security Strategy of 200

come part of US strategic culture. US Northern Command (NORTHC

been created. Establishment of the Department of Homeland Security 

the merging of 22 federal government agencies and a department staff

177,000 personnel. Bringing the war on terror to the enemy overseas w

necessary to protect the homeland. This new war, one that mixes law en

and armed conflict, was the challenge of the 21st century and the United 

preparing for a long-term struggle. The Bush Administration clearly arti

belief that in “taking the fight” to the terrorists overseas, our homeland 

more secure.

With this in mind, legal scholars, practitioners, judge advocates an

gathered in Newport, Rhode Island at the US Naval War College in late 

view, debate, and challenge the myriad legal issues surrounding the evolv

of the Global War on Terror.

The need for a reasoned, rational legal regime to enhance domestic se

came critical after 9/11. Jihadists, and the Global War on Terror itself, 

squarely into existing laws or custom. The predominant enemy we no

neither warrior nor criminal but a hybrid of both. In addition, the 

waged is at times against lawful combatants (e.g., the armed forces of Ir

times against entities deemed illegal combatants. Some of these “enem

ants” would have protections afforded by the law of armed conflict 

would not. A growing nexus between international law and the concept 

land security had emerged. Ambiguity as to this intersection of interna

and national security law (homeland security) provided a unique bac

two and a half days of intense debate and intellectual exchange on the s

gal issues of our times.

The Honorable Ryan Stiles, Associate Counsel to the President an

Counsel to the White House’s Homeland Security Council, initiated 

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with a discussion of the relationships between international law and hom

curity. He further articulated the need for the Global War on Terror to be 

warfare and one not suited for a law enforcement response—a different 

pre-9/11 approaches to combating terror. His talk set the stage for what t

to be a recurring, stimulating debate during the colloquium.

The case is made that it is critical for US (and Western) policy makers 

stand that the Global War on Terror is in fact a war and not a law enforc

tion. The events of 9/11 arguably displayed the manifest failure of emplo

law enforcement response to the threats of international terror. Some ha

far as to claim that the West’s previous law enforcement only responses 

large part, the bold actions taken by al-Qaeda at the end of the 20th centu

beginning of the 21st. The colloquium revealed, however, that consider

and cynicism remains regarding some of these assertions. Nonethe

agreed that the magnitude of the events of 9/11 and the repeated worl

tacks and attempted attacks of the jihadists (primarily al-Qaeda) hav

strated the relative weakness of past approaches and have fueled deman

policies and tactics that continue today.

In its response, the US government offered new, sometimes contro

proaches. The colloquium brought together military and civilian expert

ers in their respective fields, to assess and debate these approaches an

issues that dominated the military liberation of Iraq and the regime ch

was underway as the colloquium began, e.g.:

• Maritime border security issues;

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

• Application of the law of armed conflict to certain military opera

occupations;

• Lawfulness of the military commissions underway in Guantan

Cuba;

• The new strategy of “pre-emption” and anticipatory self-defense

• The lawfulness of targeting individual terrorists which was the su

spirited debate between Mr. Kenneth Roth, Executive Director of Hum

Watch and Professor Bob Turner of the Center for National Secur

University of Virginia School of Law.

A special highlight of the colloquium was an address by the Assistan

of Defense for Homeland Defense, the Honorable Paul McHale. His des

the coordination between the combatant commander (NORTHCOM

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Department of Homeland Security was most informative and apprecia

participants.

It was a privilege to have so many fine representatives from myriad pe

present to challenge these critical issues. Assembling this international g

the previous year was certainly not an easy task, but when our distinguis

ists from around the world were gathered together the fruits of that effort 

apparent. Exploring the nexus between homeland security and interna

made for an invigorating experience. Scholars and representatives from 

political spectrum made for lively discussions.

Sincere thanks must go to Professor Emeritus Jack Grunawalt an

Ralph Thomas, JAGC, US Navy (Ret.) for their tireless efforts on behalf 

val War College and this “Blue Book” in particular. Their knowledge of 

and editing skills were critical in making this book a reality. Also, a specia

Professor Dennis Mandsager for his foresight in directing an explorat

evolving area of the law.

Thomas McK. Sparks Glenn M. Sulmasy

Captain, US Coast Guard Commander, US Co

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PART I

KEYNOTE ADDRESS

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I

The International Dimensions of

Homeland Security

Ryan P. Stiles*

As I think we all know from the news and recent statements by both 

General Ashcroft and Secretary Ridge, we are entering an unpr

period of threat as we go into the summer; a threat that is projected to 

through this November’s elections. So what we’re doing here has practic

tions and will apply in the real world where terrorists routinely flout internat

My goal for this morning is not to overlap with the discussions of the p

will occupy much of the next three days of this conference. They will add

of the supporting issues regarding international implications of home

rity. My goal is to frame the debate: how, from a US Government persp

Bush Administration looks at homeland security and its objectives, an

look at some specific ideas and concepts about how homeland securit

with the international dimensions.

To frame the debate we must define homeland security. I think ma

unfortunately skip that first definitional issue. The United States de

homeland security is found in President Bush’s July 2002 National S

Homeland Security,

1 which was released as part of the Administration’

for creating a Department of Homeland Security. If you haven’t read it

age you to do so. The Strategy defines homeland security as “a concerte

* Deputy Counsel, Homeland Security Council, the White House.

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effort to prevent terrorist attacks within the United States, reduce Ame

nerability to terrorism and minimize the damage and recovery from attac

occur.”2 Each piece of this definition is attached to a specific concept th

additional analysis.

“Concerted national effort.” Obviously the federal government has a c

to play in homeland security. Yet the federal government alone canno

protect the United States from future terrorist attacks. The Administra

proach to homeland security is based on the principles of shared respons

partnership with Congress, state and local governments, the private sect

American people.

The concept of the first responder is one of the critical issues and one o

difficult concepts in homeland security because the federal governme

not the first responder. In many cases, it will never be the first respond

anywhere from 80 to 90 percent of our critical infrastructure is in the han

and local governments, and the private sector.3

The federal government depends not only on partnerships with state 

governments but additionally with the private sector. It is a daunting tas

dinate all of those things, including such challenges as incompatible co

tion equipment. Federal government entities must be able to commun

the first responders who inevitably have their own independent and diffe

munications systems.

“Prevent.” The first priority of homeland security is to prevent terror

Post-9/11, the Federal Bureau of Investigation (FBI) (and the Departm

tice (DOJ) as well) transformed itself from being a traditional law en

agency to making its number one goal the prevention of terrorist attack

cessitates a shift in concept and a shift in tactics for the FBI; that shift is a g

It also makes the Department of Justice and the FBI’s tasks significantly 

ficult. Furthermore, it makes it increasingly difficult when we respond and 

individual terrorists in the United States. In the past, most lawenforcemen

simply of investigation and response to terrorist attacks. If a terrorist attack 

the DOJ and FBI would investigate, identify the perpetrators, and put the

This responsive mode did have limited success and did produce some co

Now, however, the Department of Justice’s success in accomplishin

mission is challenged, if measured by a conviction rate, because now the

to prevent those attacks in the first place. By interrupting terrorist atta

they occur, the DOJ will not have that clear chain of evidence that prod

attack convictions. Now intent must be established before an attack oc

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means by necessity that the Department of Justice is probably going to 

more cases in the short-term since they don’t have the evidence trail they 

to produce during the post-attack trials because the plot has indeed been 

That’s not necessarily a bad thing, however. The Department of Justic

ulous about which cases they bring to trial and which they don’t. It is not 

made by the individual US Attorney offices. Each terrorism case is scruti

in those offices and by the Criminal Division at Main Justice in Washingt

“Terrorist attacks.” Homeland security is focused on terrorism in t

States. Terrorism is defined in the United States in a variety of ways but a 

that captures some of the core concepts of terrorism would be “any pre

unlawful act, danger to human life or public welfare that is intended to 

or coerce civilian populations or governments.”4

This definition captures the core concepts shared in the various iterat

United States Code. As I’m sure many of the international practitioners h

defining terrorism in the first instance is probably one of the most pres

lems facing the international community.

The United States has attempted to define the term at least for those 

out attacks in this country. I think one of the key challenges for the int

community is to develop an agreed upon definition of “terrorism.” It is 

possible to eradicate something without having a definitional basis of 

that’s to be eradicated.

“Reducing America’s Vulnerability.” The United States is an ever-evolv

changing target. As we shore up our defenses in one area, terrorists explo

bilities in other areas. A good example of that was a program called th

Without Visa Program that was shut down by the federal government in 

mer of 2003 because of some specific intelligence that terrorists may be 

that program as a way to enter the United States.5

An example of that program is an individual flying from South Ame

rope who stops over in the United States for a connecting flight. Traditio

person wasn’t required to have a visa to “transit” the airport in the Uni

However, that presented a seam for terrorists to exploit because they wou

to go through the screening process with the Department of State or Dep

Homeland Security. Thus, an individual could get on a plane in anoth

and, in some instances, land at an airport in the United States and simpl

challenged right out of the airport.

So you had a double vulnerability. One, terrorists would be on planes

know they like to use to attack the United States; and two, operationally 

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the country in a fairly easy fashion. The United States has now closed th

though I do think a more secure program is probably in the offering at som

Once that program was ended, the terrorists looked for new vulnerabi

is a constant challenge to make sure that when closing one gap or seam

and seams are not created. Avoiding new vulnerabilities is of great conce

in the White House. Accordingly, when conducting our policy evalu

work hard to ensure that the new, fresh policies do not inadvertently ope

seam when we close a smaller one.

“Minimizing the damage.” As I mentioned at the outset, the greatest ch

spond effectively and minimize loss of life resides with our first respond

ally not with federal government entities. We’re working with our state 

governments and the private sector to make sure they have their own hom

curity plans to deal with whatever event may occur.

“Recovery.” It is the intent of the United States Government to build and 

various financial, legal and social systems that will ensure recovery from 

of terrorism.

Responding to attacks on the homeland has been a vexing proble

United States for the last 40 or 50 years. The old thinking about what typ

would occur was focused primarily on nuclear strikes. Under that conc

tion, there would be the strike, the government would have to go so

emerge at some later date and then repopulate the institutions.

Of course with the nuclear strike it was assumed that there would be a

warning of an impending attack, so that continuity of government opera

were premised on having some period of time to make preparations for th

Now we have an entirely different model for attack and recovery: a “n

event potentially aimed at decapitating the United States Government, 

the President and his staff, the cabinet departments, Congress and ot

model also means that we must look at other methods of making sure th

stitutions survive because we’re not going to be able to have 24 hours or e

six hours to place those in key leadership positions in secure places.

Homeland security and national security are two obviously related con

there is a core distinction. National security looks towards guaranteeing 

eignty and independence of the United States with the values and instit

tact. This is slightly different from “homeland security.” To pr

overarching strategy to ensure our national security, President Bush issu

tional Security Strategy of the United States.

6 If read together with the 

6

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Strategy for Homeland Security, you

ll see they reflect an integrated con

that homeland security is a concept—not just a Department.

Within the concept of homeland security are the Continuity of Opera

mentioned earlier; Critical Infrastructure and Protection, which is prin

ercised within the United States, although some infrastructure is shared 

ada and Mexico, and defense against weapons of mass destruction (WM

obviously have to be dealt with if they enter the United States, but once t

on our shores we’re already in trouble. Thus, much of the WMD efforts a

overseas as we combat terrorism.

Another weapon of great concern is MANPADS (man-portable air d

tems). These short-range, ground-to-air missiles are one of the greatest 

aviation around the world today. They’re cheap, increasingly available on 

market, and exist in large numbers. Civil aircraft are virtual “sitting duc

rorists who possess MANPADS. The United States is working to streng

rity over existing stockpiles and to prevent their continued proliferatio

also working on measures to reduce the vulnerability of both military an

craft to these weapons.

Prior to the establishment of the Department of Homeland Security 

November 25, 2002, funding for what we today call homeland security w

throughout the government. But even in fiscal year 2003, the first year fol

Department’s establishment, only 51 percent of what the Office of Manag

Budget considers homeland security spending was spent at DHS.7 For 

2004, that figure is up to about 60 percent. In terms of actual total dollar

dramatically increased after September 11th, with about twice as many 

voted to homeland security in fiscal year 2003 as compared to the preced

One organization of which you may be unaware is the Homelan

Council (HSC). In October of 2001, the President created the Office of H

Security within the White House. Governor Tom Ridge became its head 

House–appointed official.8 Then when Congress created the Depa

Homeland Security, Governor Ridge became “Secretary” Ridge and left 

House to become a cabinet secretary.

At the same time, the Office of Homeland Security transformed into t

land Security Council. The HSC’s primary role is to serve as confidential 

the President on homeland security matters in much the same way as th

Security Council does on national security and foreign policy matters.

The Homeland Security Council’s member’s primary responsibility 

dinate interagency efforts to ensure that the homeland is safe. HSC mem

closely with the DHS staff, but also spend much of their time working 

leagues at the Department of State, Department of Justice, and th

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Intelligence Agency. The reason, of course, is that the Department of H

Security can’t do homeland security at the federal level by itself. It must c

its functions with those of other government agencies. Those function

based on funding priorities. I suspect I surprise no one when I say thos

often don’t agree on the best way forward. When that occurs a mediator 

and that’s generally the role of the HSC.

The Homeland Security Council was built on the concept of the Nati

rity Council,9 which was created in 1947 by the National Security Act

and HSC are parallel organizations and sit side by side; one coordinatin

security, the other homeland security. The NSC has no operational cap

ther does the HSC. We simply try to resolve disputes and push effici

decision-making to secure the homeland.

America must pursue a sustained, steadfast, and systematic int

agenda to counter the global terrorist threat and improve our homeland 

the United States is 100 percent effective in homeland security, we wil

failed because most of the threats will be emerging overseas. If we aren

cooperatively with our other States—our international partners—the

really no chance at preventing terrorists from reaching our borders. I

screen cargo before it gets here, if we can’t screen passengers before they s

plane, ultimately we will lose the fight because those individuals will fin

to attack us even if we’re secure within the borders. Thus the internation

for homeland security is extremely important. We have to win our “away

well as our “home” games.

The following table lists the major homeland security initiatives wit

tional dimensions.

8

Major Homeland Security Initiatives with International Dimen

• Create “Smart Borders”

• Combat fraudulent travel documents

• Increase security of international law enforcement cooperation

• Intensify international law enforcement cooperation

• Help foreign nations fight terrorism

• Expand protection of transnational critical infrastructure

• Amplify international cooperation on homeland security S&T

• Amplify international cooperation in response to attacks

• Review international obligations to international treaties and law

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Many of these initiatives don

t touch on the military components, 

more “overseas combating terrorism” than “homeland combating terror

this intentionally because I think our later panels will speak to those iss

I also wanted to emphasize the international dimensions in a lot of pr

probably don’t have a lot of visibility and are unknown to most people. 

the creation of Smart Borders. We have a 5,500-mile border with Canad

mile border with Mexico, and 95,000 miles of shoreline. According to 

census each and every year the United States admits 500 million people, 

330 million non-citizens through our borders.10

Our Smart Borders initiative must be able to deal with that flow of 

well as the 11.2 million trucks and 2.2 million rail cars that cross the bor

ally. The Department of Homeland Security is spearheading the effor

Smart Borders. America requires a border management system to keep 

its expanding trade, while protecting the United States and its territorie

from terrorist attacks, but also illegal immigration, illegal drugs 

contraband.

The future of Smart Borders must integrate actions abroad to screen 

people prior to their arrival in sovereign US territory. The border contro

of the federal government also must have seamless information chain sy

permit communication among and between themselves and federal, sta

cal law enforcement communities.

I want to address two specific programs within the Smart Borders 

One is the US-VISIT program that deals with land borders into the Uni

The law requires that an automated entry/exit program be implemente

busiest land ports of entry by December 31, 2004 and all ports of entry b

ber 31, 2005.

The 50 busiest land ports of entry process 94 percent of the foreign vi

enter and exit the United States through established border crossing. Th

of US-VISIT, which is being run by the Department of Homeland Sec

continuum of security measures that begin before an individual enters t

States and continue through arrival and departure from the United Stat

US-VISIT incorporates eligibility determinations made both by th

ment of Homeland Security and, of course, the Department of St

biometrics such as finger scans and digital photographs, DHS will 

whether the person applying for entry to the United States is the same p

is issued the visa by the Department of State.

Additionally, the biometric and biographical data are checked again

list, thereby improving DHS’s ability to make admissibility decisions, as 

Department of State’s ability to make visa determinations. US cit

9

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procedures are currently in place at 115 airports and 14 seaports. Thi

VISIT will be expanded to the 50 busiest land ports.

Since US-VISIT was launched in January 2004, it has already achie

successes—mostly in the non-terrorist area to include drug smugglers, 

and child molesters. Since the US Government stood up DHS, the Depa

State has intercepted more than 200 people with prior suspected crimina

gration violations. They include convicted rapists, drug traffickers, convic

robbers and numerous individuals committing visa fraud. The “non-ter

today are creating pathways for the entry of bona fide terrorists of tomo

Another important initiative to create smart, secure borders is addres

tion 343 of the Trade Act of 2002, as amended by section 108 of the 

Transportation Security Act, which requires that regulations be promul

viding for the transmission to US Customs and Border Protection throu

tronic data interchange system. The new system will provide in

concerning cargo that is brought into or taken out of the United States p

rival or departure. This helps target specific cargos for potential, especial

cal and chemical, weapons for inspection when they arrive at our b

course, we can’t have trucks backed up for miles on the Mexican borde

entry. If we wait until the cargo arrives at the point of entry to see wh

manifest, we will have failed. We also will have failed our international pa

cause we will not have helped them facilitate their own internal economic 

A second major initiative is combating fraudulent travel document

partment of Justice, in conjunction with the Department of State, is spe

this effort. They announced a new program that will contribute subst

travel document security and our ability to impugn the movement of ter

other criminals. During the processing of travelers at ports of entry, if a 

against the Interpol database, the hit will be verified with US authorities 

tion is taken against a bearer of such a passport. This is a significant step 

rection of curbing not only terrorism but also identity theft and othe

identity fraud. Travel document fraud, including the fraudulent applic

use of the US passport, represents a serious and growing threat to our n

curity. However, it is not the individual who has stolen them who is nece

terrorist or expected terrorist. Often they are middlemen who steal pas

passport numbers, create fraudulent documents and sell them to the te

So we can’t only concentrate on who we know or suspect of being int

terrorists. We have to go at the middlemen who are facilitating the prep

those fraudulent travel documents. Currently the Interpol database co

million records reported by 41 different participating member countr

1.6 million records, approximately 60 percent are passports while 40 p

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national identification documents. The United States has provided abo

documents to that Interpol database. Although this is a relatively new in

has had great success with the number of entries into the database 

rapidly.

Contained within the initiative to combat fraudulent travel documen

sue of biometric passports. The Administration has asked Congress to p

tion to extend for two years the October 26, 2004 deadline by which coun

produce biometric passports to participate in the Visa Waiver Program. 

lem is when Congress passed the law establishing the October 26, 2004 

didn’t have a complete understanding of what is required to produce a

biometric passport. Biometric passports address a key weakness in our 

identifying terrorists. There are really two concepts. First, is the person 

before me the person that is identified in the travel documents? Second, i

son a good guy or bad guy?

If you fail at either one of those ends, you aren’t going to catch know

pected terrorists. A person may have perfectly good travel documents 

on any watch list. But if that person is someone other than the individu

ports to be, the validity of the travel documents is meaningless. That i

biometric passports are trying to address.

It is estimated that 13 million visitors from visa waiver countries 

United States each year. Travelers from visa waiver countries are allowe

the United States for up to 90 days for business or pleasure using only a 

Our international partners tell us this is one of the key issues for them 

permits entry to citizens of those countries that the Department of Stat

partment of Homeland Security has determined as having secure docum

Visa Waiver Program allows citizens of those countries easier entry into t

States. They don’t have to go through the extended visa process. They ca

simply with their passport. We’re working hard with our international p

make sure this program continues in place while those countries come u

technology and the decision-making necessary to continue to particip

Visa Waiver Program.

The next issue I want to address is the increase in security of internati

ping containers through a program called Container Security Initiat

Containerized shipping is a critical component of global trade because 

percent of the world’s trade is transported in cargo containers.11

In the United States almost half of incoming trade by value arrives by 

on board ships. Nearly seven million cargo containers arrive on ship

offloaded in U.S. seaports every year. In post–September 11th America, 

Security Initiative programs are key components to our homeland defe

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on the idea that it makes sense to extend our zone of security outwa

American borders are the last line of defense and not the first.

Through CSI, maritime containers that pose a risk of compromise by 

are identified and examined at foreign ports before they are shipped to t

States. In so doing, the United States hopes to prevent terrorist attacks f

carried out by preventing the arrival of dangerous materials to the Unite

the first instance.

CSI consists of four core elements: (1) using intelligence to identify 

containers that pose a risk; (2) prescreening those containers that pose a 

port of departure rather than the port of arrival in the United States; (3) 

tection technology to screen containers that pose a risk; and, finally, 

smarter, tamper-resistant containers.

Obviously this would be an impossible initiative without our internat

ners. When we look to our international partners, despite what you m

occasion, we have tremendous cooperation on all levels in all these init

discussed. They’re brought into the decision-making process in the fir

and their considerations are taken into account. I think for the most 

done a good job in working both through multilateral and bilateral nego

make sure their concerns are addressed.

Intensifying international law enforcement cooperation occurs on m

Perhaps the most important area is terrorist financing; the ability to fre

The Patriot Act12 greatly assists our international efforts to freeze assets

ously law enforcement cooperation occurs at intelligence and other leve

I must again emphasize that the United States is committed to co

with our international partners to combat terrorism. As part of that coo

the United States provides specialized training and assistance to help bu

pability to combat terrorism. This occurs not only for military forces but 

civilian agencies. Additionally, the United States hosts seminars to help 

national partners draft their legislation, and to provide assistance regard

like MANPADS and bioweapons. The United States also provides equipm

time to time and science and technology advice on enhancing border se

We’re also expanding the protection of transnational critical infrastr

pecially with Canada and Mexico. As the events of August 2003, when 

the power grid caused blackouts in large areas of northeastern United 

Ontario, Canada bore out, if you have an event in the United States that c

our neighbors, that is a big problem.

But it is a greater problem if it were to be part of a terrorist attack preve

responders who rely on the power grid to respond and execute their initi

cause we share such a large border with our friends in Canada and Mexi

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our security, especially cybersecurity and obviously electrical security, c

border. So we work with them to help make sure that those systems ar

cure from terrorist attack.

We also amplify international cooperation on homeland security th

ence and technology, a key concept being biosensors and also sensors of n

dioactive material. We work on science and technology with our int

partners and once that technology is developed, we provide that to tho

nations as well so that we can assist them in combating terrorism on 

shores as well as here. Other countries which haven’t yet been targeted by 

still have an interest in ensuring that biological, chemical and nuclea

aren’t being transited through their country.

We also work on improved cooperation and response to attacks. Las

United States staged a massive terrorist attack simulation to test our new 

nadian officials were involved in role playing. The scenario provided for 

terrorist attacks in Seattle and Chicago. The hypothetical Chicago attack 

at a Chicago Bulls–Toronto Raptors basketball game.

After the game the Raptors and their supporting contingent got bac

plane and returned to Canada, only then to realize that an attack had be

out. So they had already spread the agent that was released in Chicago. Th

tion allowed for cross-national planning on how the two countries could 

a coordinated response, e.g., determining whether or not the border c

should be shut down.

The United States, at the federal government level, looks to make sure 

sitioned to deal with almost any imaginable scenario. We’ve gotten ve

doing “red cell” planning to hypothesize the full variety of attacks, althou

still considerable room for improvement. We’ll never know until the n

occurs, but the United States Government is very focused on making 

there are preparations made for any kind of attack.

Finally, reviewing international obligations, international treaties 

We also work on a bilateral basis to negotiate and renegotiate Mutual L

tance Treaties (MLATs). These assist US law enforcement agencies in 

and exchanging information and evidence with foreign authorities 

criminal trials.

We have many different international fora we can use to secure ou

tional objectives. Obviously the United Nations plays an important role

the Organization of American States and other regional groups, the G-

International Civil Aviation Organization (ICAO).

One of the great concerns of the G-8 is the MANPADS threat. ICA

biometric passport issues. I am too technically illiterate to assist the dete

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of whether there should be a 32

bit contactless chip embedded in a pass

do know we must have one uniform, worldwide readable document so 

have some countries developing a technical form of passport.

In conclusion, as President Bush states, “We will not achieve these g

night.... [But] we will prevail against all who believe they can stand in 

America’s commitment to freedom, liberty, and our way of life.”13 But a

to reach those goals a key component is our international efforts. We w

cure America if we only secure the homeland from within our hard bo

have to work with our international partners. We’ve had great success so 

continue to hope to have that kind of success in the future.

Now many critics have said that the war on terror is not a winnable w

same critics said that about the Cold War as well. We must eradicate terro

cepted tactic in warfare. Some people say again that’s impossible, but I 

compare other forms of warfare and tactics that were previously accep

widespread, but now, for the most part, have been eradicated or substa

duced as a tactic of war. Look at slavery, piracy, and genocide. Today 

among the universal crimes, but for hundreds, if not thousands, of years 

looked upon as acceptable methods of conducting war.

It’s going to take a long time to drive terrorism into the same dustbin, 

Government is giving its best to put an end to this evil. We again thank ou

tional partners for their help in making us secure in our homeland and w

tinue to work with them to secure theirs as well. Thank you.

Notes

1. Office of Homeland Security, National Strategy for Homeland Defense (July 200

at http://www.whitehouse.gov/homeland/book/.

2. Id. at 2.

3. Homeland Security Presidential Directive/Hspd-17, Critical Infrastructure Id

Prioritization, and Protection ¶ 3 (Dec. 17, 2003), available at http://www.whit

news/releases/2003/12/print/20031217-5.html.

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

5. The Transit Without Visa program was suspended on August 2, 2003. US De

Homeland Security, Press Release, Aug. 2, 2003 (“Recent specific intelligence in

terrorist groups have been planning to exploit these transit programs to gain access t

U.S. airspace without going through the consular screening process.”), availab

travel.state.gov/visa/visa_1248.html.

6. Various news organizations reported that the classified “Continuity of Operation

activated after 9/11. See, e.g., Barton Gellman & Susan Schmidt, Shadow Governmen

in Secret; After Attacks, Bush Ordered 100 Officials to Bunkers Away From Capital to En

Survival, WASHINGTON POST, Mar. 1, 2002, at A01.

14

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y gy 

States (Sept. 2002), reprinted in 2002 DIGEST OF UNITED STATES PRACTICE IN INTE

LAW 947, available at http://www.whitehouse.gov/nsc/nss.pdf.

8. Office of Management and Budget, 2003 Report to Congress on Combating 

(Sept. 2003), available at http://www.whitehouse.gov/omb/inforeg/2003_combat_t

9. Id.

10. Homeland Security Presidential Directive-1, Organization and Operation of th

Security Council (Oct. 29, 2001), available at http://www.whitehouse.gov/news/rel

10/20011030-1.html.

11. For information on the Bush Administration’s organization of the Nation

Council, see National Security Presidential Directive-1, Organization of the Natio

Council System (Feb 13, 2001), available at http://www.fas.org/irp/offdocs/nspd/ns

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

13. Id. at 12.

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

15. George W. Bush, The White House, July 16, 2002, in National Strategy for 

Defense, supra note 1.

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Thursday, September 14, 2006 3:16:15 PM
PART II

COMPARATIVE APPROACHES TO SECUR

AND

MARITIME BORDER CONTROL

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II

Comparative Approaches to Security a

Maritime Border Control

Dale Stephens*

Remarkably perhaps, the question of maritime border protection at

unprecedented level of political debate during the course of the 

federal election of November 2001, ultimately becoming a significant is

ciding the outcome of that contest. Indeed, the election became, in essen

endum on the Federal Government’s revised policy concerning strict 

border protection measures designed to prevent the influx of illegal migr

ing by sea into Australia. This issue was principally ignited by the Austr

ernment’s stance in denying the admission into Australia of 433 illega

rescued by the Norwegian container ship MV Tampa1 in August of tha

the subsequent passage by the Australian Parliament, on September 26

omnibus border protection legislation that provided for a robust lega

This new legislative scheme infused the Australian Defence Force (ADF

nificantly greater authority to intercept and remove suspected illegal en

from Australia’s maritime zones. There is no doubt that the reverberati

attacks of September 11, 2001 (hereinafter referred to as 9/11), which 

tensely felt within Australia at the time, also heavily influenced approac

* Commander, Royal Australian Navy. The views expressed in this article are those o

alone and do not necessarily represent the views of the Australian Government, th

Defence Force, or the Royal Australian Navy.

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issue of maritime border protection by both the Government and the 

population. Such reverberations, in conjunction with the emotions gen

the Bali bombings of October 2002,3 continue to largely influence app

maritime border protection issues within the Australian body politic, t

without criticism by significant segments of the Australian public.

The unprecedented level of political debate relating to maritime bord

tion at the time of the election has been matched by an equally intense 

debate as to the lawfulness of actions taken by the ADF in intercepting 

vessels carrying unlawful immigrants and denying them entry into Aus

lawfulness of the actions undertaken by the ADF in implementing th

ment’s stringent border protection policies were also the subject of dome

tion (which occurred while such operations were ongoing) within the 

Federal Court, as well as a fulsome and comprehensive Senate Inquiry 

the 2001 election.

The legal issues, which have been hotly debated with respect to these 

possibly familiar to an American audience. They concern questions o

tional capacity, especially the extent of executive power to direct milit

tions under the constitution in the face of potentially contrary legislative 

They also touch on issues of international law relating to law of the sea 

obligations and, of course, issues concerning the incorporation of int

law within domestic law and the priority of either domestic or internatio

operational decision making.

The Australian Defence Force and its Law Enforcement Role

The Australian Defence Force generally, and the Royal Australian Navy 

particular, have a solid tradition of exercising law enforcement powers o

the Commonwealth Government. Unlike restraints imposed upon parts 

military, there is no comparable Posse Comitatus Act4 limitation on the 

ADF or RAN to enforce federal law. To the contrary, provisions of 

Commonwealth law specifically authorize military members to exercise 

law enforcement powers. Indeed, when the issue was peripherally raised 

stitutional context in the 1970s, a justice of the High Court of Australi

dicta that he could not conceive of any inherent limitation on the use of t

enforce laws of the Commonwealth Government.5 Such a reflection is en

sistent with Australian constitutional interpretive methodology dati

1920s, which has traditionally given full effect to the terms of Comm

laws provided they are based upon a requisite head of constitutional po

comitantly, the courts have been slow to impose any implied persona

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obligations arising from the Constitution which might act to restrict AD

forcement capacity. Indeed, there is no equivalent of the Fifth or F

Amendments to the US Constitution in the Australian Constitution n

the same historical experience that led to the passage of the Posse Comit

the United States, namely post–Civil War Reconstruction and the fear 

excess.6

As a result of the broad constitutional capacity of the ADF to enforce C

wealth laws, there has developed a relatively large, though disparate, cor

that guides RAN maritime law enforcement operations, particularly that 

trol boat force operating off of northern Australia. In essence, the ADF h

sibility under Commonwealth legislation for such diverse areas as 

customs, migration, and quarantine control, and more generally for issu

anti-piracy. Notwithstanding this broad range of subject matter, the po

cisable by the ADF differ according to the particular subject, thus the spe

of legislation under which operations are being conducted will shape t

and responsibilities of ADF officers. Importantly, there exist significant d

between various applicable pieces of legislation.

Fisheries enforcement has traditionally occupied the central focus o

enforcement operations and has involved both major and minor RA

Thus, Australia routinely deploys a major fleet unit to its territories of H

McDonald Islands located in the Southern Indian Ocean (approximate

lometers southwest of Perth, Western Australia) to intercept major fore

vessels engaged in wide-scale commercial fishing activities. Such deploym

led to some dramatic enforcement actions including one in particular, w

lieved to be the longest hot pursuit in recorded history.7 More generally

enforcement largely occurs in the northern Australian Exclusive Econo

(EEZ) with respect to lower scale illegal fishing activity. For example, 

four months of 2004, there were 48 interceptions of foreign illegal fish

region.8 With respect to customs enforcement, the ADF usually acts in co

with the Australian Federal Police, typically focusing on maritime dru

tion operations. In 2003 for example, the RAN deployed a guided mis

with a contingent of Special Air Service (SAS) troops on board to succe

tercept a North Korean freighter that had landed 150 kilograms of her

southern Australian mainland.

MV Tampa and Border Protection

As previously mentioned, the Tampa incident generated considerab

within Australian political and legal circles. The timing of that incident, 

as it did with 9/11, witnessed a subtle revision of approach regarding th

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of illegal entry

from one of mere migration control to one with greate

security overtones. This in turn has influenced the nature of legal analysi

ternational and domestic legal rights that may be exercised in maritim

control actions and has influenced contemporary policy and legal choic

The MV Tampa Case

On August 26, 2001, the Norwegian container ship Tampa rescued 4

from a grossly overloaded and sinking Indonesian-flagged wooden-hulle

the Indian Ocean. That vessel had been attempting to reach Australia fr

nesia as part of a people-smuggling operation and, accordingly, the p

board did not possess lawful entry visas. Having rescued the crew and p

the Tampa’s Norwegian master intended to return them to an Indonesi

disembark them, when a decision was made to divert to Australian terr

master then sought to drop them at Christmas Island, an Australian terr

to Indonesia. Representatives of the Australian Government contacte

and informed the master that the ship did not have permission to enter 

waters and could not disembark the migrants. The master responded b

that some of the migrants on board were suffering from dire medical e

and thus relied upon the right of “distress” to demand entry into the por

Australian authorities countered by preparing medical teams to fly out to 

to address the alleged medical emergencies. During the course of plannin

vision of medical assistance, the ship steamed into the Australian territor

rounding Christmas Island and was then boarded by 45 SAS soldiers wh

by fast boat to the vessel. Through a dramatic standoff during the next few 

vessel was visited by the Norwegian Ambassador to Australia who recei

from the migrants outlining their assertions of refugee status. Proceedin

multaneously filed in the Federal Court by public interest lawyers seekin

of habeas corpus to compel the Australian Government to bring the mig

Australian jurisdiction. The Government sought to prevent such acces

grants appeared to be from a number of countries, including Afghani

Kuwait, Sri Lanka and Pakistan.

After several days, the illegal migrants were voluntarily transferred to 

lian naval vessel and transported to the island nation of Nauru where r

tives of Australia and the United Nations High Commissioner for 

(UNHCR) subsequently processed their applications. The Australian Go

was aware that this was the commencement of a wave of vessels carryin

seeking refugee status and ultimately implemented Operation Relex, w

designed to prevent entry into Australian internal waters by such craft.9 

mately a dozen vessels attempted to transport illegal migrants to 

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following the Tampa incident; the ADF/RAN successfully intercepted a

vessels.10

Legal Issues Raised

The ability to intercept vessels carrying unlawful migrants is addressed 

1982 United Nations Convention on the Law of the Sea (Law of the Se

tion) in Article 33, which permits a coastal State the authority to exercise 

trol necessary” within the contiguous zone to prevent infring

immigration laws. Accordingly, as a matter of international law there 

question of attracting state responsibility on the part of the coastal State 

terference with navigational rights of vessels infringing such laws. Ad

such authority exists, a fortiori, in the territorial sea where Article 19(g

notes that the loading/unloading of persons contrary to coastal State im

laws “is prejudicial to the peace, good order or security” of that State a

tutes passage which, under Article 25, a coastal State may “take the neces

to prevent.

The difficulty confronting the Australian action lay with the applicat

mestic law concerning ADF powers. The Australian Migration Act prov

highly formalized procedure with which “Commanders” of duly com

ships were required to comply in order to exercise powers relating to the 

of illegal immigrants. Moreover, the Act seemed to generally contemplat

sons detained would be conveyed into Australian Migration Act jurisdi

land territory) rather than removed from it. On the day SAS forces bo

Tampa, the SAS were not acting in accordance with powers pursuant to t

tion Act. They were neither duly appointed “Commanders” for the purp

Act nor were they in command of a commissioned ship as required by th

rather were acting pursuant to specific Government direction under the 

power of the Constitution. This executive power is exercisable in circum

inter alia, national security and is identical to the type of power Presiden

unsuccessfully sought to exercise in the Youngstown case.11 The difficulty 

Commonwealth in relying upon the executive power in the context of t

interception was that it was squarely the type of situation described by Just

in the Youngstown case as being one where the Legislature had passed spe

lation, which essentially directed an incompatible regime. As with 

reached in the Youngstown case, it seemed to be a very precarious basis u

to base military action. Indeed, a single Judge of the Australian Federal 

decided the Tampa case in the first instance determined the matter a

Commonwealth.12 Subsequently, however, the matter was decided in fa

federal Commonwealth Government on appeal by a 2-1 majority.13 The 

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one the majority Justices on appeal expressly acknowledged that the C

wealth possessed sufficient constitutional authority by use of the execu

to prohibit illegal entry in terms that seemed to correlate such denial wit

security goals. It was a remarkably wide reading of prerogative powers an

cantly, was handed down on September 16, 2001. It seems very plausib

events of 9/11 did influence judicial thinking, especially as the author of 

ion envisaging such a wide interpretation of prerogative powers was no

to have decided the matter in the way he did.14

The decision has been criticized by some academic commentators fo

properly have regard to implicit international obligations contained w

1951 Refugee Convention15 to which Australia is party.16 Indeed, the issu

have been discussed in the literature as highlighting new and possibly i

tensions between national security concerns arising from the “war on int

terrorism” and humanitarian obligations to accord basic procedural ri

unlawful migrants arriving by sea so as to properly determine who may h

fide claim to refugee status.

It is against this background that the border protection legislation 

passed in September 2001 may be better understood.17 Under the curren

legal regime outlined in the Migration Act, the ADF is empowered to in

vessels suspected of containing unlawful migrants entering the contigu

time zone and may remove such vessels either to a nominated third co

cessing center or simply to a “place” seaward of the contiguous zone. 

method of removal necessarily gives rise to potential objections under t

the Sea Convention with respect to the capacity to detain, and indeed tow

flagged vessels across international waters. There are a number of an

might be offered to such objections. First, while Australia has ratified the 

Sea Convention, there exists no mechanism of self-executing treaty im

tion within Australia such as exists within the United States. Accordin

some aspects of the Law of the Sea Convention have been incorporated 

tralian domestic law, it is certainly not a comprehensive incorporation a

no inconsistency with the amended Migration Act legislative powers 

such vessels. This does not, of course, answer potential questions of state 

bility that might arise from interfering with freedom of navigation rights 

State of the vessel, yet notwithstanding ADF actions there has yet to be a

claim raised by any nation State that has alleged breach of such obliga

ond, and in partial answer to the first issue, the practice to date has been t

those vessels with Indonesian nationality under the terms of a “letter 

provided to Indonesia advising of such intent to return Indonesian flag

carrying unlawful migrants. The return of such vessels to the 12nm e

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Indonesian coast under Operation Relex was observed by Indonesian a

without protest and Australian international lawyers have characterize

bearance as “constructive acquiescence.”

The issue of unlawful immigration and border control mechanisms 

sarily been brought into sharper relief in the context of the war against 

Notwithstanding the navigational regime contemplated in the Law of th

vention pertaining to the application of immigration laws in the contig

and territorial sea only, the general jurisdictional rules of internationa

cerning both territorial and prescriptive jurisdiction relating to nation

controls does admit to an extended reach of application beyond these 

zones. Under these principles it is entirely arguable to admit to the extra 

application of migration controls that might be exercised within interna

ters where this is deemed to be a necessary incident of preserving nation

interests. Indeed, the skein of authority emanating from a US Court of A

the US Supreme Court, respectively, in the Nippon Paper18 and Hart

cases would seem to lend support for such reach, at least in circumstan

the intent of foreign actors is to unlawfully interfere with domestic act

their conduct in fact produced or is likely to produce a substantial ef

trenchantly, the adoption of United Nations Security Council Resolut

on September 28, 2001 would seem to provide ample Chapter VII au

override objections of navigational interference reflected in the Law 

Convention. Resolution 1373 deals with international terrorism in the 

the post-9/11 environment. Article 2(g) thereof calls upon States, act

Chapter VII authority, to “prevent the movement of terrorists or terror

by effective border controls.” Pursuant to Articles 25 and 103 of the Char

demand compliance with such decisions and provide for the overriding 

sistent provisions contained in any international agreement, such a s

could readily displace navigational rights of vessels carrying unlawful m

circumstances where there is a suspicion of terrorist connection. The req

of suspicion of terrorist connection required to authorize action need 

sarily be high. The academic Derek Jinks has persuasively argued that i

text of international terrorism the rules of state responsibility have been 

virtue of both Resolution 1373 and international consensus to significa

the threshold of attribution between private actors and the State in circ

where the State merely harbors or supports such actors.21 Such a develop

ther dilutes the original tests promulgated by the International Court 

(IC) in the Nicaragua case22 and the International Criminal Court for t

Yugoslavia in the Tadic appeal23 regarding attribution criteria. While su

proach may be critiqued for being both under and over inclusive,24 it n

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grounded offensive military action in Afghanistan in 2002 and thus open

for consideration of lesser forms of control mechanisms. If such action 

able in the context of offensive military operations then surely it permit

tighten maritime border controls beyond the traditional limits of the c

zone and thus authorize preventative action within international waters 

is deemed necessary to preserve both national and international secu

such a proposition relies upon the authority of Resolution 1373, as it doe

revolutionary. As far back as 1949 in the ICJ’s Corfu Channel decision, 

respected Judge Alvarez pointedly acknowledged the capacity of th

Council to vary maritime navigational rights where this was necessary t

international peace and security and fully accepted the consequential d

of sovereign rights that such actions might entail.25 Indeed, as eviden

Certain Expenses26 and Namibia27 decisions of the ICJ, the challenge o

tional lawyers today seems not so much as deciding what the Security C

do, but rather determining the limits of what it may not do.28

The clash between national security measures as applied in the contex

control actions and humanitarian aspirations of those seeking asylum a

rights obligations of the coastal State does raise uncomfortable conundru

current environment of the war on terrorism, States such as Australia ar

to accord national security and the orderly processing and screening 

seekers within countries of origin (rather than on the shores of Australia

priority. While such a choice might be criticized on both legal a

grounds,29 it is not altogether unique within the domestic jurisprudence 

ber of countries who have faced similar issues. The US Supreme Cour

Haitian Centers Council,30 for example, in an 8-1 majority decision d

that high seas interdiction of Haitian asylum seekers did not attract oblig

der the Refugee Convention31 as the Court construed neither the Conve

supporting US domestic law as applying beyond territorial boundar

United States.32 Similarly, the UK Court of Appeal in the recent 2002 de

v. Secretary of State for the Home Department33 determined that measure

by the UK Government following 9/11 to detain and expel non-natio

gated from a host of international human rights guarantees (detention p

rights to a fair trial) but were nonetheless acceptable as derogations whic

justified in times of public emergency. What is intriguing in that instanc

the UK Government’s detention of non-nationals was directed more at 

such non-nationals posed to the United States than the United King

nonetheless such actions were unanimously upheld by the Court.

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Multilateral Cooperation

While invocation of national security measures to inform approaches to 

border control suggest a theme of arrogant unilateralism, this is not nece

case. The experience of maritime law enforcement by Australia within 

has been one of exceptionally constructive co-operation. This has been p

pronounced with Australia’s near neighbors such as Papua New Guinea 

nesia and more generally with countries situated in the South West Pac

the Nuie Treaty,34 but has also extended more broadly to countries situa

the Indian Ocean which was amply demonstrated by the South Tomi i

early 2001.35

In that instance, a Togolese registered vessel had engaged in illegal fish

ity at Heard and Macdonald Islands and was pursued from the EEZ of th

by an Australian Fisheries Authority vessel in a two-week hot pursuit tha

along the entire southern length of the Western Indian Ocean to the coa

Africa. During the course of the pursuit offers of warship assistance wer

from French authorities who occupied the French possession of Kergue

and, similarly, South African authorities who were exceptionally helpfu

sistance was requested. In the event, an Australian military boarding tea

patched to South Africa and transited through that country for deploym

South African warship that met South Tomi as it rounded the Cape of G

With hastily prepared complementary rules of engagement and mutua

understandings of the legal issues involved, Australian military mem

were also authorized fisheries officers under the relevant legislation) su

apprehended South Tomi from the flotilla of South African warship

steamed out into international waters to intercept the vessel. An Austral

ing party was placed onboard South Tomi and the vessel returned back t

Australia where the ship and catch were forfeited and the master prosecu

a Law of the Sea Convention perspective, the incident raised a number o

ing legal issues which included, in particular, the capacity of one natio

over hot pursuit to another nation while still maintaining law enforcem

diction upon apprehension. In that regard, the Convention merely m

ence to “government ships” without mentioning the nationality of such 

integral criteria for hot pursuit. Similarly, the question of whether the 

South Tomi through the territorial sea of Kerguelen Island would have 

the hot pursuit otiose even when the coastal State, in this case France, d

ject to the continued pursuit. In any event, this latter issue was not in 

while South Tomi seemed intent on entering the French territorial sea at 

Island it eventually diverted its track and did not do so.

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The international legal issues thrown up by the South Tomi incident w

tested within international legal or diplomatic fora as Togo made no r

tions on behalf of the vessel upon its arrest or subsequent prosecution. 

nonetheless demonstrated the unilateral nature of many of the rights 

within the Law of the Sea Convention. It seemed a very odd outcome tha

standing the co-operation of so many nations in seeking to apprehend 

that the terms of the Convention had, in theory at least, the capacity to 

intent.

Conclusion

The tightening of its maritime border control laws by the Australian Go

has generated considerable academic criticism by those who validly rue 

dination of humanitarian priorities. Such measures have nonetheless 

portable under a sheath of domestic and international legal auth

moreover, have proven to be extremely effective in stemming the tide o

unlawful migrants. Australian embassies in countries of origin apply the 

tests for refugee status in those countries as would apply to the haple

seeker washing up on Australian shores.

The events of 9/11 and the associated war on terrorism continue to r

approaches to maritime security issues and have permitted the ascenda

tional and international security measures which have the potential t

long standing navigational rights. The key in confronting international 

and ensuring adequate maritime border security is striving for multilater

ation rather than resolute reliance upon unilateral rights. The experien

ADF/RAN in undertaking law enforcement measures within our region 

with countries such as South Africa, France and Papua New Guinea h

demonstrated the magnificent ability to “force multiply” military mea

secure common ends. Such co-operation is of course key to ensuring effe

itime border security and more broadly to ensuring a durable victory in t

are fighting against the scourge of international terrorism.

Notes

1. See infra note 9 and accompanying text.

2. Border Protection (Validation and Enforcement Powers) Act 2001, availab

www.australianpolitics.com/parliament/legislation/01-08-29_border-protection-bi

3. The terrorist bombing occurred in Kuta, Indonesia on the Island of Bali on Octob

Among the 202 people killed in the attack were 88 Australian nationals. A descri

events of that tragic event is available at http://www.answers.com/topic/2002-bali-b

28

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Thursday, September 14, 2006 3:16:15 PM
(())

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

6. See generally Nathan Canestaro, Homeland Defense: Another Nail in the Coff

Comitatus, 12 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 99 (2003).

7. The Uruguayan long-liner fishing vesselViarsa Iwas sighted on August 7, 2003 f

Australian Exclusive Economic Zone. A 6300 kilometer pursuit followed, which en

Viaras I’s capture on August 28. See Illegal Boat Set to Dock, THE ADVERTISER 

Australia), Sept. 30, 2003, at 24. An earlier second extended pursuit involved the So

South African-registered, Spanish-owned trawler On March 29, 2001 the Sout

observed by an Australian Fisheries Management Authority vessel to be engaged 

fishing in the Australian Exclusive Economic Zone near Heard and McDonald Island

an order to proceed to Fremantle, a 4100 kilometer pursuit ensued, with the South 

being captured on April 12. See 8000 KM Sea Chase – Pirate Trawler Caught After 

THE DAILY TELEGRAPH (Sydney, Australia), Apr. 14, 2001, at 11; Fish Pirates Ch

Ocean SAS Troops Pounce Out of Africa, COURIER MAIL (Queensland, Australia), Ap

at 3. For a complete discussion of both events, see Erik Jaap Molenaar, Multilateral 

and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa I and the Sou

INTERNATIONAL JOURNAL OF MARINE & COASTAL LAW 19 (2004).

8. See generally Blitz On Illegal Fishing Boats Catches Nine Indonesian Vessel, Vol. 

22, WEEKLY DIAR.COM E-NEWSLETTER, available at http://www.diar.com/d

.htm#Anchor-May-59504.

9. For a description of the MV Tampa incident and of Operation Relex, see Pa

Australia: Select Committee Inquiry on a Certain Maritime Incident, Ch. 2, Oper

available at http://www.aph.gov.au/senate/committee/mar.time_incident_ctte/repo

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

_Relex.

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

12. Victorian Council for Civil Liberties Inc. v. Minister for Immigration & M

Affairs (2001) 110 FCR 452.

13. Ruddock v. Vardarlis (2001) 110 FCR 491.

14. See Penelope Mathew, Current Development: Australian Refugee Protection in the 

Tampa, 96 AMERICAN JOURNAL OF INTERNATIONAL LAW 661, 662 (2002).

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

16. See generally Penelope Mathew, International Association of Refugee Law Judges 

Address – Legal Issues Concerning Interception, 17 GEORGETOWN IMMIGRATION LA

221 (2003).

17. The border protection legislation of September 2001 is a package of three s

pertaining to border protection issues that were enacted by the Australian Parlia

wake of the terrorist attacks of 9/11. That package includes the Migration Legislatio

from Migration Zone) Act 2001, the Migration Amendment (Excision from Migr

(Consequential Provisions) Act 2001, and the Border Protection (Validation and E

Powers) Act 2001. See also supra note 2.

18. United States v. Nippon Paper Industries Co., Ltd., 109 F.3d 1 (1st Cir. 1997), 

522 U.S. 1044.

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

20. SC Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001), available at http://daccess

doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement.

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py fpp f g

Responsibility for the Acts of Private Armed Groups,4CHICAGO JOURNAL OF INTE

LAW 83 (2003).

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

23. Prosecutor v. Tadic, Case No. IT-94-1-A (ICTY 1999), available at http://www.

tadic/appeal/judgement/tad-aj990715e.pdf.

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

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

26. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charte

Opinion, 1962 I.C.J. 157 (July 20).

27. Legal Consequences for States of the Continued Presence of South Africa in Nam

West Africa) notwithstanding Security Council resolution 276 (1970), Advisory Op

I.C.J. 16 (June 21).

28. Jose E. Alvarez, Judging the Security Council, 90 AMERICAN JOURNAL OF INTE

LAW 1 (1996).

29. Mathew, supra note 14.

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

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

32. See Mathew, supra note 14, at 667–8, where the author criticizes the reasoning 

the majority in that instance.

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

34. Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement i

Pacific Region, July 9, 1992, 32 INTERNATIONAL LEGAL MATERIALS 136 (1993), 

http://fletcher.tufts.edu/multi/texts/niue.txt.

35. Supra note 7.

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III

European and German Security Poli

and International Terrorism

Torsten Stein*

German security policy cannot be separated from that of the Europe

especially when it comes to border controls as one of its principal 

Since the 1970s, the European Union (then the European Economic Co

(EEC)) has been engaged in harmonizing the Member States’ secur

which has, in the light of the ongoing European integration, become one 

mary goals, especially with regard to the enlargement of the European Un

took place on May 1, 2004. The importance of both European and transa

operation in this field cannot therefore be overemphasized, particularly 

events of September 11, 2001, which have confronted all States with a ne

The most prominent feature of the threat posed by international terro

changed profile of its perpetrators: Al Qaida, and the persons and organi

sociated with it, is not confined to nations, regarding either its members o

The offenders are recruited from various countries and together consti

ternationally organized structure of terrorism, of which all Western so

be victims, as witnessed last in Madrid. From a sociological point of vie

ternational terrorist structure differs from all known criminal gro

* Professor of International, European Union and Comparative Constitution

Director, Institute of European Studies (Law Department), University of Saarland, S

Germany.

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spectrum reaches from illiterate religious fanatics to highly educated bu

with international experience.2 The focus of this article shall therefore be 

velopment of border controls and their effectiveness in the fight again

tional terrorism.

Legal Regime for Security Policy and Border Controls in Europe and 

The ongoing European integration has brought Europe’s citizens not 

nomical, but also great personal freedom, a development which found it

the introduction of EU citizenship by the Maastricht Treaty on Europea

But by granting those freedoms, a need for coordinating justice and ho

became obvious. Starting with the Naples Agreement on the Cooperatio

toms Services in 1967,4 informal governmental cooperation in the area 

and home affairs has evolved. In this context, the TREVI Group,5 ma

combat terrorism, illegal immigration and organized crime, and compo

ecutives of the Member States’ respective authorities, was created. The 

ropean Act of 1986,6 which introduced the concept of the Single Marke

about the need to create a balance between market freedoms and security 

especially as far as controls of the EEC’s external borders and the creation 

mon European asylum and immigration policy were concerned.

The Schengen Regime

Due to the difficult and tedious process of reconciling policies in the are

and home affairs, France, Germany and the Benelux countries conclude

Schengen Agreement7 with a view to abolishing controls at the interna

harmonizing measures in the area of visas and asylum policy, and creat

and judicial cooperation. The 1990 Schengen Implementation Agreem

codified the abolishment of internal border controls, laid down the pro

controls at the external borders, and provided common rules for issu

term visas and for determining jurisdiction for asylum requests accord

Dublin Agreement.9 The SIA came into force in 1995. The most inter

tures of the SIA for the topic of this article are the introduction of cro

pursuit and shadowing and of the “Schengen Information System” (SIS

ter is a computerized network allowing the Member States’ police author

change data on wanted persons as well as stolen goods, e.g., cars. The wea

the SIS is that it is designed to serve only 18 Member States. Therefore, 

pean Community Council, at the urging of the Schengen Executive Cou

primary organ created by the Schengen Agreements), directed that a se

eration Schengen Information System (SIS II) be developed that would 

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account new developments in information technology and update the sy

new capacity criteria.11 However, SIS II has not yet been implemented, due 

cal difficulties. The foregoing agreements, as well as the legal instruments 

the Schengen organs, collectively constitute the Schengen Regime, which 

plicable in all EU Member States except the United Kingdom and Ireland

The Treaty of Amsterdam,13which first stipulated the creation of an a

dom, security and justice as one of the EU’s goals,14 incorporated the Sch

gime into the European Union.15 The provisions of the Schengen Re

transferred in 199916 to the respective legal bases of the Treaty Establishi

ropean Community (TEC)17 and the Treaty on European Union (TEU

Title IV on visa, asylum, immigration and other policies related to the f

ment of persons was inserted into the TEC. Since then, the statutory ba

and EU measures in the areas of justice and home affairs that was be

found in the Schengen Regime can now be found in the TEC and in the T

cordingly, the Schengen Regime forms part of the acquis communauta

the accession States must adopt. Exceptions apply only to the United Kin

Ireland as States that originally did not sign the Schengen Agreements

Denmark, who opted out of some parts of the Maastricht Treaty estab

European Union in 1992.

Since most of the measures adopted on the grounds of TEC/TEU prov

cept for regulations, need to be transformed into national law by th

States, both EC/EU measures and national laws coexist, but also i

Sparked by the innovations of the Amsterdam Treaty, the Council of the 

Union decided, while meeting in Tampere, Finland in 1999, that the crea

area of freedom, security and justice should be given the same importa

realization of the Single Market. The area of security thus should compri

cross-border crime, drug trafficking, illegal immigration and terrorism a

ative aspects resulting from the area of freedom. The European Comm

mandated to create a scorecard, which, at regular intervals, would show 

ress in creating an area of freedom, security and justice.

Europol-Agreement

Police cooperation between Member States was and is to date a significan

an area of security. Therefore, the European Drugs Unit was set up as ea

as part of the TEU’s police and judicial cooperation,20 enabling Membe

exchange and analyze information on criminal acts and assisting natio

authorities in combating crime. However, the Drugs Unit was subseque

dated with further competencies in the areas of drug trafficking, illegal 

radioactive and nuclear materials, illegal immigration, trafficking 

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beings, illegal moving of automobiles and money laundering. The excha

formation with the Drugs Unit was carried out via liaison officers in eac

State, who had to comply with the respective national laws protectin

data; therefore personal data could not be stored directly with the Drug

1999, the European Drugs Unit was replaced by the European Pol

(Europol), which was established on the basis of the 1995 Europol Ag

Europol has essentially the same competencies as its predecessor, the D

but it maintains a computerized information system, which is fed wit

rectly from the Member States. Furthermore, personal data can be st

Europol, on condition that it is only used to investigate serious crime f

Europol’s competencies. In addition, personal data fulfilling these cond

be processed to third countries and their authorities, subject to an int

agreement or in a situation affecting vital interests of a Member State o

nent danger must be averted.22 The agreement with the third country mu

provisions on the type of data to be transmitted, on its recipient and on th

for which it is required. Also, the question of liability in the case of unaut

wrongful processing of data needs to be regulated. Should these requir

met, the transfer of data is possible, but limited to law enforcement agen

ever, these agencies are obliged to delete the transferred data as soon as t

longer required for the specific purpose intended.23

Eurojust

Besides enhancing police cooperation, the Council of European Union, a

ing in Tampere in 1999, decided to expand judicial cooperation in or

prove the fight against organized crime and agreed on the creation of an 

which prosecutors, judges or police officers with comparable authority w

forces. To this end, Eurojust was established in 2002.24 Article 3 of the Co

cision states that the purpose of Eurojust is to coordinate and facilitate 

tions and law enforcement between the respective Member States’ a

Article 4, in turn, provides that Eurojust’s competence extends to the sa

of crime as that of Europol, but in addition Eurojust is mandated to dea

cial forms of crime such as computer crime, fraud and corruption, mone

ing as well as unlawful practices causing damage to the environment. 

authorizes Eurojust to process personal data, but mandates maintenance 

mum level of data protection as stipulated in the Council of Europe Agr

January 28, 1981.25 Furthermore, pursuant to Article 19 of the Council 

personal data must be deleted if it is wrong or incomplete. This also app

sonal data no longer required for the original purpose.

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In order to ensure the effectiveness of police and judicial cooperation

works closely with Europol and can exchange information to this end.26 

Eurojust is empowered to conclude cooperation agreements, including 

for the exchange of personal data, with third countries, competent instit

der the TEU/TEC, international organizations and law enforcement a

third countries, subject to approval by the Council.27

The coming years will determine if the judicial cooperation practice

Eurojust will stand the test of time. In the long run, a truly effective in

network between investigative and law enforcement agencies within the 

Union can only be achieved by concluding a formal cooperation agre

tween Eurojust and Europol, as envisaged in the Council Decision28 and 

those two agencies access to the SIS, as currently planned.29

Legal Instruments in the Fight against Terrorism

The danger posed by terrorist attacks carried out with nuclear, biol

chemical weapons, as well as conventional weapons, calls for determined 

all Western States; international terrorism can only be fought by extensi

timized international cooperation.

European Level

As early as 1995 the EU-US Action Plan30 was established to foster coop

the fight against the global threats of organized crime, terrorism and dru

ing. On a European level, the Council of the European Union, at its Vie

ing in December 1998, adopted an Action Plan for implementing the A

Treaty provisions on building an area of freedom, security and justice.

tion Plan underscored the fight against terrorism as one of the EU’s aim

emphasis was also placed on the central role of Europol as an importa

ment of enhanced cooperation between the Member States. However

sures foreseen in the EU Action Plan, as well as the existing measures in

realize an area of security, e.g., provisions of the Schengen Regime and th

Agreement, did not prove to be effective; a fact that was tragically affirm

attacks of September 11, the planning of which took place in German

mained undetected. The new security threat called for advanced counte

on the part of both the European Union and the European Community

at the national level in order to confer the necessary competencies upo

thorities responsible for protecting the population and fighting the late

Therefore, the Council of the European Union at its extraordinary m

September 21, 2001 agreed on an Action Plan specifically aimed at c

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terrorism, The Action Plan included enhanced police and judicial co

These were to be facilitated by the introduction of the European Arres

(the creation of which had already been anticipated at the 1999 Tampere 

a uniform definition of terrorism, and the creation of a list of terrorist 

tions, as well as the formation of joint investigation teams and of an anti

unit within Europol. In addition, it was decided that security measu

transportation and quality controls for security at airports should be en

In fulfilling both UN Security Council Resolution 1373 of Septembe

and the guidelines set out by the Action Plan of September 21, 2001, th

adopted two Common Positions on combating terrorism and on the app

certain measures to this end.32 According to an update of June 27, 2

Common Positions contain, in addition to a definition of “terrorist ac

52 persons and 34 groups that are subjected to enhanced police and jud

erative scrutiny and whose funds and assets are to be frozen. Based on 

mon Positions, the Council adopted a decision on police and judicial co

in criminal matters under Title VI of the TEU,33 which defines the scope 

istrative assistance in preventing and combating terrorist attacks. T

Member State has to establish a specialized authority within its police se

ing access to all information relating to terrorist offenses. These auth

then required to forward the information to Europol and Eurojust.

For the purpose of EC-wide implementation of the Common Pos

Council of the European Union issued a Regulation “on specific measur

against certain persons and organizations in combating terrorism.”34 T

tached to this Regulation names 26 persons and 23 organizations whose 

other assets are to be frozen. The Regulation was subsequently extended

ant to a Council of the European Union Common Position of May 27, 

specifically apply to persons and organizations connected to Osama bin 

Al Qaida network and the Taliban. Since the Member States’ nationa

measures were partially in need of improvement, the Council issued a d

November 200237 aimed at reassessing those laws in order to attain h

ciency in combating terrorism.

One legal instrument expected to show great effect in fighting terrorism 

ropean Arrest Warrant,38 which is designed to replace the political and adm

phases of the old extradition process with one single court procedure. It con

first palpable realization of the principle of mutual recognition in criminal la

which was agreed upon by the European Council in Tampere in 1999.

As regards criminal law, a 2002 Council Framework Decision39 on c

terrorism is of vital importance, since for the first time a move towards h

ing the Member States’ criminal laws was made in the sense that 

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standards for terrorist offenses and their elements, and for law enforcem

defined. The need for such a decision becomes obvious when it is consi

as late as 2001, only six EU Member States had incorporated provisions o

offenses into their criminal laws.40 With this Framework Decision, the 

Union has laid a foundation for a comprehensive system of combating 

whereby the Member States’ law enforcement agencies, assisted by 

Eurojust and the SIS, can improve the effectiveness of their investigation

ever, the Framework Decision has not been fully implemented into al

States’ national laws. As of March 2004, only eight Member States h

mented it, although Article 11 of the Framework Decision had set a dead

cember 21, 2002. This puts the events of March 11, 2004 in Madrid in

more tragic light.

National Level

Measures to combat the terrorist threat have also been taken on the nati

principally through the implementation of EU decisions. This article wi

Germany as an example. The German Law on Combating Terrorism, w

into force on January 1, 2002, created a statutory basis for further measu

enhanced cooperation between the various existing German security aut

The Federal Office for the Protection of the Constitution 

verfassungsschutz), as one of Germany’s principal security agencies, wa

investigate cases involving organizations opposed to the idea of internatio

standing and peaceful coexistence of peoples. That agency now has the po

mand information on bank accounts and their holders from banks or othe

service providers. Thus, financial transactions to and from organization

tremist or suspicious attitudes can be disclosed and further support for t

nizations cut off. In addition, further competencies for disclosure of in

by telecommunication and mail service providers as well as airlines we

some of which were transferred to the Federal Intelligence Service 

nachrichtendienst) and to the Naval Intelligence Service (Marine

dienst).43 At the same time, all the measures just mentioned are subject 

control regime by impartial bodies.44

Another agency endowed with new investigative and executive autho

Federal Office of Criminal Investigation (Bundeskriminalamt). That a

now directly intervene in cases of information technology (IT) sabotage

the potential fields of future terrorist attacks, without further consult

other agencies. If it has an initial suspicion of an offense, it can now initi

investigations and use its own resources for gathering information, es

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the areas of terrorism and IT sabotage, while working together closely 

security agencies.

The Federal Border Police (Bundesgrenzschutz) has been granted 

training and deploying armed sky marshals.45 Furthermore, in the inte

security, the provisions of the air transportation law were altered to allow 

forcing of controls and quality standards at and around airports, as well 

of military aircraft to shoot down hijacked airplanes as a last resort. The 

vision permits for the first time the deployment of the Federal Army (Bu

within Germany in other than disaster operations. It was passed against 

position. The need for such a competence became all too obvious on 

2003 when a deranged man commandeered a motorized glider, circled over 

Main for several hours and threatened to crash the plane into the build

European Central Bank. Fortunately, the plane did not have to be shot do

summoned F-4 pursuit planes—no legal basis existed for such an action 

since the perpetrator gave up after three hours and safely landed the plan

inforced control standards at airports now include checking the reliability 

employees. To this end, the air security authorities can obtain unlimited 

of information from the Federal Central Register (Bundeszentralregister)

Similarly, the Law on the Review of Security Measures introduced str

and security measures in order to prevent sabotage of other vital or mil

portant installations. In the future it will be possible to explore the per

economic background of employees in nuclear plants and other focal 

critical infrastructure. The Federal Office of Criminal Investigation there

in close contact with the respective operators of the relevant facilities i

update the security assessment and optimize both protective measure

flow of information.48

This new and intensified investigative work resulted in 182 criminal 

tions of individuals with Islamic backgrounds between September 2001 a

ary 2004. Seventy of those were led by the Federal Office of Criminal Inv

and 112 by the regional police (Landespolizeien), the latter maintaining 

operation with the competent federal authorities. The Federal Office o

Investigation alone investigated 25,600 hints and traces, taking advant

changed provisions in the Code of Criminal Procedure (Strafprozess

which allow a simplified procedure and advanced competencies for in

correspondence, including telephone, cell phone, and e-mail contacts. 

the Federal Constitutional Court (Bundesverfassungsgericht)49 decla

portions of the latter competencies unconstitutional.

In order to guarantee an adequate and constitutionally sound crimin

tion, the German Criminal Code (Strafgesetzbuch) had to be adapted t

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circumstances, therefore new provisions were inserted into the code. 

only membership in a terrorist group constituted an offense, so that 

could not adequately react to terrorism in its new, international dimen

insertion of the new provisions into the Criminal Code it is now possible 

foreign offenders—especially members of Al Qaida.50

The investigations initiated between 2001 and 2004 led to several s

tences and some criminal proceedings are still under way. The weakne

new provisions and the difficulty of their latent infringement of the ru

which is highly protected in Germany, becomes especially apparent in 

Mounir al Motassadeq (a member of the Hamburg group of Al Qaida 

who prepared and carried out the attacks of September 11), whose v

overruled and remanded due to insufficient evidence.51 Cases lik

Motassadeq demonstrate that all States have to join in a closer cooperati

case it was alleged that the United States had evidence it did not make a

the German court) so that the efforts of the single nation State in buildin

sure against terrorist organizations through criminal convictions and 

court sentences will produce the intended effect.

Before repression of crimes committed, however, comes prevention o

attacks. Preventive measures on the federal level in Germany were taken

in the field of financing of terrorist groups. Identifying the financial sou

ing terrorists and preventing financial transactions are critical aspects o

ing terrorism. Also in this area, the complexity and diversity of transac

call for coordinated cooperation of security agencies and the financial 

both national and international levels. On the multinational level, the 

Action Task Force (FATF),52 of which 30 States besides Germany are me

adopted a total of eight special recommendations on combating the fin

terrorism. In August 2002, Germany became the first State within Euro

implement the guidelines of the FATF, as well as the corresponding pro

EU directives on money laundering, into its national law.53 That legislati

special importance to the role of the Financial Intelligence Unit (FIU) 

Federal Office of Criminal Investigation.54 The FIU functions as a centra

investigative leads, for matching of international measures and for inform

national or European authorities about methods of fighting money laun

other means of support for Islamic organizations. Nonetheless, finding e

planned financial support of terrorist attacks remains a very difficult ta

new competencies enabling authorities to acquire information on accou

and transactions from financial institutions. Still, principal features of t

methods were successfully identified and cut off. Given the complex and 

paths of monetary transactions, further isolation of international t

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financial sources requires intensive international cooperation among 

exchange of information between their respective counterterrorism aut

Border Controls

In addition to breaking up terrorist groups already existing within the 

Union, preventing the entry of terrorists into the territory of EU Memb

another point of focus, and shall be the main one under scrutiny here. In 

text, one needs to consider the fact that in a territory without internal cu

immigration borders, such as the greater part of the European Union 

Schengen Regime, the State penetrated by a terrorist organization is not n

the State that is the target of attack.

The European Council is responsible for the adoption of uniform me

control of the EU’s external borders.55 The Schengen Implementation A

(SIA) defines the external borders of the European Union as all land, s

borders of Member States that are not internal borders.56 However, Mem

are not precluded from concluding separate arrangements with third n

long as those agreements are in accordance with Community Law.57

Specific measures for the control of the EU’s external borders are deta

SIA.58 A Member State confronted with the entry of a third country nati

comply with the SIA mandate that the security interests of all other Mem

have to be taken into account pursuant to Community Law.59 There

country nationals can be denied entry if they constitute a danger to the 

der, national security or international relations of any Member State. T

the Member States have drawn up a common list of wanted persons, fr

the names of individuals to be denied entry are transferred to the SIS an

made available to all Member States. In order to be put on this commo

sons have to fulfill the criteria set out in the SIA (prison sentence of a

year, suspicion of having committed a serious crime, severe breach of en

exit regulations),60 and there has been compliance with national procedu

All persons are subject to controls regarding their entry/exit, stay 

documents.61 In every case, their identity must be verified.62 Third co

tionals are subject to a stricter control than EU citizens,63 they genera

submit to separate customs clearance procedures. In exceptional cases, i

manitarian reasons, if national interests or international commitment

cerned an individual Member State can grant entry to third country 

irrespective of fulfillment of the requirements just mentioned. However

in those cases is limited to the sovereign territory of the Member State co

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External borders may only be crossed at border checkpoints and durin

spective designated passing hours.65

In order to comply with the foregoing provisions, the Member States 

must monitor the boundaries of the external border and deploy specia

border patrols to this end.66 The latter is quite a problem regarding the 

Eastern border, since border fortification and patrol are largely inadequ

What is more, all available technical resources must be applied in i

terrorists in order to achieve effective detection and defense against ter

particular, the identity of visa applicants and other persons entering the t

a Member State of the European Union must be effectively assessed, sin

identification is the basis for all further measures. As far as passport and 

trols are concerned, responsibility is divided between the Council of the 

Union and the Member States. The Council is responsible for establishi

rules governing short-term visas (up to three months).67 Competence 

term visas remains with the individual Member State. The Council has 

those third countries whose nationals must be in possession of a visa in o

ter the European Union, as well as those countries that are exempt from 

gations. In order to qualify for a visa waiver, third countries must ful

criteria regarding illegal immigration, public order and security, especia

of terrorist attacks. The EU’s external relations do, of course, also play 

tant role in assessing whether a visa waiver will be granted. In certain ca

ber States can permit exemptions from visa obligations.69

The Council is also responsible for laying down procedural rules for t

of short term visas, particularly with regard to subject matter, jurisdictio

suing authority, and material requirements.70 Jurisdiction for visa iss

with the diplomatic or consular representative of the Member State o

tion.71 Details can be found in the Common Consular Instruction (Ge

Konsularische Instruktion) of the Common Handbook of the Schengen 

The Council also made provisions for the design of short-term visas.73 

pean Commission proposes the details of visa design. The security c

short-term visas include the appearance of an unforgeable visa and the 

tion to be entered on it.74

In the area of seafaring, a Council of the European Union directive 

registration formalities for ships entering and leaving ports of the Memb

(largely based upon an International Maritime Organization Agre

196576), and on the issuance of visas at the border, including those for 

transit.77 The latter prescribes reporting requirements of Member State

ties responsible for visas in the case of signing in and signing off of shi

ports of the Schengen area. Additional qualifications for entry into the 

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area must be fulfilled between the competent authority and the shipping 

shipping agent in order to obtain a visa at the border. These procedures 

the exchange of security-relevant information, in particular through th

tween the Member States.78

In the area of identification, special attention is accorded to biometric

istration of biometrical data (fingerprints, face, hand and iris screening

inclusion in passports or visas can allow for positive identification of not

rorists and violent enemies of Western societies, and therefore pave the w

propriate countermeasures. Moreover, they constitute an effective 

allocating documents to their owner. On the EU level, the European Co

proposed introducing digitalized photographs into EU Member States’ p

Germany envisages the use of biometrics in three important fields: bo

trols for entry, in visas and other residence permits, and in passports an

identification documents. The necessary amendments to the relevant l

und Personalausweisgesetz) have already been enacted. Together with 

biometrics, entry procedures can be extensively facilitated and accelera

troducing an automated, computer-assisted border control process.7

sponding pilot project began operation at Frankfurt airport at the be

2004. However, the introduction of biometrical passports prescribed by t

States for maintaining the visa waiver program vis-à-vis EU citizens, is tak

than expected. The initial deadline of October 26, 2004 was extended to O

2005, and has now been extended for a second time. The current deadlin

ber 26, 2006. It is therefore undecided whether the former visa require

entry into the United States are going to be reintroduced.

Considering this development, the essential need for harmonizing th

ternal border controls on a high standard becomes all too obvious. It ca

the interest of the European Union to have terrorists circumvent the 

border controls of one Member State by entering a neighboring State no

the same technical standards for border controls. What is more, the coo

among the States must include harmonizing the applied biometrical met

but not least, biometrics is a relatively new technology subject to uncerta

avoidable errors, which could be eliminated by joint efforts in exchang

mation and experience between the States involved in the interest of an 

outward protection. Germany, therefore, strives for greater cooperati

area within the European Union, and with its G8 partners.80

Within the context of this cooperation, the forwarding of personal da

sengers embarked on transatlantic flights is a matter of current impor

needs to be mentioned here. As of February 5, 2003, and pursuant to th

tion Transportation and Security Act of 2001, the US Bureau of Cus

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Border Protection and the US Transportation Security Administration r

lines to provide access to so-called “PNR” (Passenger Name Record) dat

national flights. Provision of this data by European Union airlines con

European Union laws and regulations,81 both because no specific author

allows for such transfer and because it has not been determined that the d

“adequately protected” by the receiving authority as defined by Europ

munity law.82 What is more, US authorities, by accessing the personal d

citizens, encroach upon the sovereignty of EU Member States without 

thorized to do so under public international law.

In order to both create a legal basis for the justified security inter

United States and to ensure adequate data protection to which the EU c

entitled, the European Commission has proposed that an agreement b

into between the European Community and the United States.83 Such 

ment would meet the legal requirements of the European Community 

to data transfer and would justify the encroachment upon the Member S

ereignty. Furthermore, the Commission has determined that the propo

ment would guarantee adequate protection of personal data as manda

applicable European Parliament Directive.84 The Council signed this agr

the end of May 2004 over the protests of the European Parliament. The 

Parliament argues that the agreement violates the Treaty Establishing 

pean Community,85 since it purports to amend the relevant Directive86 w

legal instrument adopted according to the procedure set forth in Article 

treaty, requires European Parliament approval for amendment. Accord

European Parliament has decided to bring the matter before the Europea

Justice. A majority of members of the European Parliament deems the righ

to PNR-data granted to US authorities to be too broad, since the agreem

no reference to the extent of data protection mandated by European Co

law,87 especially with regard to a potential transfer of the data to third c

Although the basic criticism of granting a right of transferring perso

the US authorities as being too far reaching may be justified, one needs t

account the fact that the European Commission has obtained guarantee

US Bureau of Customs and Border Protection in the form of a self-com

for appropriate use of the data and that the current state of affairs—trans

sonal data without any legal basis—is simply unacceptable.

Intrastate Countermeasures in Case of a Terrorist Threat

As soon as terrorists have been identified, either on the basis of European 

national cooperation or as a result of the extended national competenci

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procedures become the responsibility of the Member State concerned. 

the authority to deny German visa and residence permits in a simplified 

was enhanced by adapting the provisions of the 1990 Aliens 

ländergesetz)89 to accord with the Law against Terrorism (Terrorismus

fungsgesetze).90 Enemies of society and its democratic foundations who 

to use or appeal for violence in pursuing their goals are now explicitly p

from obtaining a visa. In addition, the use of unforgeable features i

identification documents and residence permits has been enhanced by le

Since the provisions of the Asylum Procedure Act (Asylverfahrensges

been amended so as to include registering fingerprints, photographs, a

future, biometrical data of asylum seekers, it is now possible to save voi

ings of asylum seekers, thus providing information on their country of o

thermore, these data can now be stored for up to ten years after irrevocab

asylum decision and can be processed by the police and security auth

identification purposes in a simplified procedure. The main aim in thi

standardize and simplify the procedure, as well as to make it more autom

maintaining an adequate level of data protection.

Pursuant to the new Immigration Act, which was finally agreed on in 

after the first version had been declared unconstitutional by the German 

Court (Bundesverfassungsgericht) on formal grounds, an admitted asyl

who is a member of a terrorist organization or an organization support

ists can be deported in a simplified procedure. The new Immigration Ac

into force on January 1, 2005, and contains stricter rules on arrest and e

of foreign terrorists or extremists endangering Germany’s internal secu

tradition is impossible due to the potential of torture or implementat

death penalty by the country of destination, notification requirements 

straints on the freedom of movement can be applied in order to mainta

over the potential danger.

Apart from the measures already taken on the basis of the EU Action 

many continues to campaign for further initiatives to enhance transna

operation within the Council of the European Union, especially on i

information flows, identification systems and searches for wanted terro

file search). In this context, it needs to be mentioned that the success in c

cross-border terrorist networks depends on concerted and determined 

the international community. The cooperation within international org

and fora, such as the United Nations, G8,93 NATO or OSCE (Organi

Security and Co-operation in Europe)94 is therefore of paramount im

The Council Recommendation on joining the G8 network of contact p

24-hour service for combating high-tech crime 95 is just one examp

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cooperation. In addition, bilateral agreements and informal cooperatio

tifying, arresting, prosecuting and sentencing terrorists continue to be 

on the international level. A further aim of the German Law against Te

to protect the population as well as possible and to minimize the vulne

key points of infrastructure. However, the competencies created need 

continuously and with determination. Particularly in the areas of air se

infrastructure protection, measures taken to date have brought about an 

tension. Close cooperation between the Department of the Interior, oth

authorities and the operators of key infrastructure facilities, as well a

warrant both continuous updating on the threats faced and the develo

suitable strategies for countermeasures.

While terrorist act prevention is the main focus of the measures ad

this article, optimizing crisis management after a terrorist attack require

much attention. Civil protection plays a central role in this context. Ac

an Action Plan of the German Department of the Interior, key infrastruc

ties, i.e., all organizations and institutions of vital importance for the pop

especially energy and water facilities, the breakdown of which can cause a 

ing shortage of supply, material disturbance of public security and othe

consequences for the population and the State’s structures—are the ce

tention in this context. In the event of extensive catastrophes, attacks or o

situations, federal and regional (Länder) civil protection resources need t

bined. For this purpose, the new federal Bureau for Civil Protection (B

für Bevölkerungsschutz und Katastrophenhilfe) was created as a furthe

national security. The new bureau began its work in May of 2004. It can 

of the Joint Information Center of the German Federal State and th

(Gemeinsames Melde-und Lagezentrum des Bundes und der Länder, 

which began operations in the autumn of 2002 and which can coordi

management (both information and countermeasures) in the scena

tioned above.96

For information and warning purposes, the GMLZ can utilize the Germ

gency Information System (Deutsches Notfallvorsorge-Informatio

which provides the public with precautionary information about rescue, e

and supply via the Internet and telephone hotlines. In the case of an ext

emergency situation (e.g., an attack on a nuclear plant), a satellite based w

tem, in place since October 2001, can, within seconds, issue public warn

broadcast on all public television and radio stations. The Department o

rior is currently engaged in the development of other possible warnin

such as alerting phones or clocks, and coordinating protection measures

with its European neighbors, Germany is developing defense con

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participates in joint exercises that form part of the program on the impro

cooperation in preventing and fighting terrorist threats of a chemical, 

radiological or nuclear nature (e.g., EURATOX 2002, a simulation exerc

ing radiological and chemical fallout resulting from a terrorist attack).

More attention is increasingly being paid to computer network attack

tively new form of information technology terrorism. Since most of the v

ties of infrastructure—from traffic lights to nuclear plants—are com

defense against attacks on these systems, the consequences of which ca

strophic, must have utmost priority. In Germany, the Federal Bureau fo

in Information Technology (Bundesamt für Sicherheit in der Informa

nik) examines the potential sensitivity of critical infrastructure and prep

systems for defense against terrorist interference by creating framework p

directly cooperating with the systems’ operators.

The last element of the Department of the Interior’s Action Plan is fig

rorism at its roots. Defense against Islamic terrorism is most effective a

cial and ideological source. Isolating terrorists from their ideological and 

support should be not the last, but the foremost goal of both national an

tional measures in fighting terrorism.

Conclusion

The Coalition against Terror must cooperate closely in order to respond 

to the new “asymmetric” threats our nations face today. But it needs als

cate respect for and advancement of human rights in the countries tha

cultural base for international terrorism and to build up political pressu

oppressive regimes. By fostering democratic reforms and the developm

rule of law, as well as by handing over power to the oppressed peoples th

terrorist structures can more often than not be destroyed at the root, an

natics can be cut off from their sources. It is beyond doubt that internatio

eration at its highest level in this area is of paramount importance. The 

Union and its Member States take their international responsibilities ser

are therefore involved in Operation Enduring Freedom in Africa and in t

Oman, are part of the Coalition against Terror in Afghanistan, and de

great material and personnel commitment to the International Security 

Force for a sustainable pacification of Afghanistan.

The fact that the European Union is not the “United States of Europ

fore having to share competencies and jurisdiction not with federated 

eign States, creates some difficulties and sometimes delay in ach

necessary measures. But there can be no doubt that the European Uni

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Member States will live up to their international responsibilities in the 

will remain a true and reliable partner of the Free World.

Notes

1. Oliver Lepsius, Liberty, Security and Terrorism: The Legal Position in Germany,

LAW JOURNAL 436 (2004).

2. Otto Schily, German Secretary of the Interior, address at the opening of the 7t

Police Congress entitled “Fighting Terrorism and Protecting the 

(Terrorismusbekämpfung und Bevölkerungsschutz), Bonn, Feb. 16, 2004.

3. Treaty on European Union, Maastricht, Feb. 7, 1992, Official Journal of the Euro

(OJ 1992, C 191), Jul 29, 1992, full text available at http://Europa.eu.int/en

title7.html.

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

5. See European Parliament Fact Sheet 4.11.3, Police and Customs Cooperation, 

that:

Formal police cooperation between the Member States’ representatives began 

with the creation of working parties known as ‘Trevi groups.’ Its main subjec

terrorism and the organization and training problems of police departments. B

there were four working parties, on terrorism, police cooperation, organized cri

the free movement of persons, headed by a group of senior civil servants respons

preparing decisions for the Council of Ministers. This system prefigur

intergovernmental structure set up by the Schengen agreements and the Tr

Maastricht.

Fact Sheet 4.11.3 is available at http://www.europarl.eu.int/factsheet/4_11_3en.htm

6. Single European Act, Sep. 9, 1985, Official Journal of the European Union (OJ 1

Jun. 29, 1987, available at http://europa.eu.int/abc/obj/treaties/en/entr14a.html.

7. Agreement between the Governments of the Benelux Economic Union, the Fede

of Germany and the French Republic on the Gradual Abolition of Checks at the

Borders, June 14, 1985, Joint Ministerial Gazette, 1986, at 77.

8. Convention Applying the Schengen Agreement of 14 June 1985 Between the S

Benelux Economic Union, the Federal Republic of Germany and the French Repu

Gradual Abolition of Checks at their Common Borders, June 19, 1990, availab

www.privacy.org/pi/intl_orgs/schenen_agreement.txt.

9. Convention Determining the State Responsible for Examining Applications 

Lodged in One of the Member States of the European Communities, Jun. 15, 19

Journal of the European Union (OJ 1997, C 254/1), Aug. 19, 1997.

10. Schengen Convention Executive Committee Decision (SCH/Com-ex (97)) 

Journal of the European Communities (OJ 2000, L 239/442), Sep. 22, 2000.

11. Council of the European Union Regulation No. 2424/2001 On the Develop

Second Generation Schengen Information System (SIS II), Official Journal of th

Communities (OJ 2001, L 328/4), Dec. 13, 2001.

12. Italy joined the Schengen Agreements in 1990, Spain and Portugal in 1991, Gre

Austria in 1995, and Denmark, Finland and Sweden in 1996.

13. Treaty of Amsterdam Amending the Treaty of European Union, the Treaties 

the European Communities and Related Acts, Mar. 29, 1996, Official Journal of th

47

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pp

pdf/amst.en.pdf.

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

15. See Treaty of Amsterdam, supra note 13, Protocol on the Incorporation of th

acquis into the EU framework.

16. See Official Journal of the European Communities (OJ 1999, L 176), Oct. 10, 199

(OJ 2000, L9/32), Jan. 13, 2000.

17. Treaty Establishing the European Community, Mar. 25, 1957, full text of th

amended, available at http://europa.eu.int/abc/obj/treaties/en/entoc05.htm.

18. Supra note 3.

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

20. Council of the European Union Joint Action, Mar. 10, 1995, Official Jou

European Union (OJ 1995, L 62), Mar. 20, 1995.

21. Council of the European Union Act Drawing Up the Convention on the Establ

European Police Office, Jul. 26, 1995, Official Journal of the European Communities 

316), Nov. 27, 1995.

22. Council of the European Union Act Adopting Rules Governing Transmission 

Data by Europol to Third States and Third Bodies, Mar. 12, 1999, Official Jou

European Communities (OJ 1999, C 88), Mar. 30, 1999.

23. Jan Ellerman, EUROPOL auf dem Weg zu einem, europäische FBI”?, in ZEITS

EUROPÄISCHE STUDIEN 561 (2002).

24. Council of the European Union Decision Setting Up Eurojust With a View to 

the Fight Against Serious Crime, Feb. 28, 2002, Official Journal of the European C

(OJ 2002, L 63), Mar. 6, 2002.

25. Council of Europe Convention for the Protection of Individuals with Regard to 

Processing of Personal Data, Jan. 28, 1981, European Treaty Series No. 108.

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

27. Id., art 27(3).

28. Id., art 26(1).

29. Council of the European Union Regulation No. 871/2004 Concerning the Intr

Some New Functions for the Schengen Information System Including in the Fi

Terrorism, Apr. 29, 2004, Official Journal of the European Union (OJ 2004, l 162/2

2004.

30. Joint EU-US Action Plan, Dec. 3, 1995, available at http://www.eurunion.o

actplan.htm.

31. Action Plan of the Council and the Commission on How Best to Implement th

of the Treaty of Amsterdam on an Area of Freedom, Security and Justice, Dec. 3, 1

Journal of the European Communities (OJ 1999, C 19), Jan. 23, 1999.

32. Council of the European Union Common Position on Combating Terrorism, D

Official Journal of the European Communities (OJ 2001, l 344/90, 2001/930/CFS

2001, and Council of the European Union Common Position on the Application 

Measures to Combat Terrorism, Dec. 27, 2001, Official Journal of the European C

(OJ 2001, L 344/93, 2001/931/CFSP), Dec. 28, 2001.

33. Council of the European Union Decision on the Implementation of Specific M

Police and Judicial Cooperation to Combat Terrorism in Accordance with Article 4 

Position 2001/931/CFSP, Dec. 19, 2002, Official Journal of the European Comm

2003, L 16), Jan. 22, 2003.

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pgp

Directed Against Certain Persons and Entities With a View to Combating Terroris

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

35. Council of the European Union Regulation No. 881/2002 Imposing Specific 

Measures Directed Against Certain Persons and Entities Associated With Usama bin 

Al-Qaida Network and the Taliban . . . , May 27, 2002, Official Journal of th

Communities (OJ 2002, L 139/9), May 29, 2002.

36. Council of the European Union Common Position Concerning Restrictiv

Against Usama bin Laden, Members of the Al-Qaida Organisation and the Taliban 

2002, Official Journal of the European Communities (OJ 2002, L 139/4), May 29, 2

37. Council of the European Union Decision Establishing a Mechanism for Evaluati

Systems and their Implementation at National Level in the Fight Against Terroris

2002, Official Journal of the European Communities (OJ 2002, L 349/1), Dec. 24, 2

38. Council of the European Union Framework Decision on the European Arrest W

the Surrender Procedures Between Member States, Jun. 13, 2002, Official Jou

European Communities (OJ 2002, L 190/1), Jul. 18, 2002.

39. Council of the European Union Framework Decision on Combating Terrori

2002, Official Journal of the European Communities (OJ 2002, L 164/3), Jun. 22, 2

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

41. See Eugenia Dumitriu, The E.U.’s Definition of Terrorism: The Council Framew

on Combating Terrorism, 5 GERMAN LAW JOURNAL 585 (2004).

42. Law on Combating Terrorism (Terrorismusbekampfungsgesetz), Jan. 9, 2002, 

Gazette (BGBl. I 2002) 361–363.

43. Id. at 363, 364.

44. Lepsius, supra note 1.

45. Supra note 42, art. 6.

46. On June 18, 2004, the German Parliament adopted the Law on Adjustment of 

Tasks (Gesetz zur Neuregelung von Luftsicherheitsaufgaben – Luftsicherheitsgese

Gazette (BGB.L I 2005) 78, which, in part, amended the Air Transpo

(Luftverkehrsgesetz), Federal Gazette (BGBI. I 1999) 550. In addition, in Article 14, 

it provided authority to shoot down aircraft as a last resort. The Federal Constitut

(Bundesverfassungsgericht), however, annulled that provision on February 15, 2006 

BvR 357/05, not yet published) for lack of constitutional competence and for 

Article 2 (right to life) and Article 1 (human dignity) of the Constitution.

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

48. For a critical view on the adopted measures, see Verena Zöllner, Liberty Die

German Counter-Terrorism Measures and Human Rights, 5 GERMAN LAW JOURNAL 4

49. BVerfG first senate, judgement of Mar. 3, 2004, re.:1 BvR 2378/98, 1 BvR 1084/9

in NEUE JURISTISCHE WOCHENSCHRIFT 999–1022 (2004).

50. Lepsius, supra note 1.

51. Christoph Safferling, Terror and Law—Is the German Legal System Able t

Terrorism?—The Bundesgerichtshof (Federal Court of Justice) Decision in the Cas

Motassadeq, 5 GERMAN LAW JOURNAL 515 (2004).

52. Established in 1989, the Financial Action Task Force (FATF) is an intergovernm

whose purpose is the development and promotion of policies, both at the n

international levels, to combat money laundering and terrorist financing. FATF 

source is available at http://www.fatf-gafi.org/pages/0,2987,en_32250379_32

_1_1_1,00.html.

49

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g y g (g)g

54. Id., para. 5.

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

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

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

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

59. Id., art. 6(2).

60. Id., art. 96(2).

61. Id., art. 6(a).

62. Id., art. 69(2)(b).

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

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

65. Id., art. 3.

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

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

68. Council of the European Union Regulation No. 539/2001 Listing Third Coun

Nationals Must be in Possession of Visas When Crossing External Borders and T

Nationals are Exempt, Mar. 15, 2001, Official Journal of the European Communities 

81/1), Mar. 21, 2001.

69. Id., art. 4.

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

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

72. Decision of the Schengen Executive Committee on the Compilation of a 

Documents to Which a Visa May be Affixed, Apr. 28, 1999 (SCH/Com-ex(99)

Journal of the European Communities (OJ 2000, L 239/298), Aug. 22, 2000, as a

Council of the European Union Regulation No. 539/2001, supra note 68, art. 7.

73. Council of the European Union Regulation No. 1683/95 Laying Down a Unif

for Visas, May 29, 1995, Official Journal of the European Union (OJ 1995, L 164), Ju

as amended by Council of the European Union Regulation No. 334/2002 Amending 

No. 1683/95 Laying Down a Uniform Format for Visas, Feb. 18, 2002, Official Jo

European Communities (OJ 2002, L 53/7), Feb. 23, 2002; last amended by European 

Concerning the Conditions of Accession of the Czech Republic, et al, and the Adjust

Treaties on which the European Union is Founded, Official Journal of th

Communities (OJ 2003, L 236/33), Sep. 23, 2003, at 718–725.

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

75. European Parliament/Council of the European Union Directive No. 200

Reporting Formalities for Ships Arriving In and/or Departing From Ports of the C

Feb. 18, 2002, Official Journal of the European Communities (OJ 2002, L 67/31), S

76. Convention on Facilitation of International Maritime Traffic, Apr. 9, 1965, 18 

T.I.A.S. 6251.

77. Council of the European Union Regulation No. 415/2003 On the Issue of 

Border, Including the Issue of Such Visas to Seamen in Transit, Feb. 27, 2003, Offici

the European Union (OJ 2003, L 64/1), Mar. 7, 2003.

78. For more detailed information on port security, see Hans-Werner Rengeling, Z

der Seehäfen gegen terroristische Anschläge aufgrund neuer internationaler europ

deutscher Regelungen, DEUTSCHES VERWALTUNGSBLATT 589 (2004).

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

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yyp

the United States.

81. See European Parliament/Council of the European Union Directive No. 95

Protection of Individuals with regard to the Processing of Personal Data and 

Movement of Such Data, Oct. 24, 1995, Official Journal of the European Communiti

L 281/31), Nov. 23, 1995, and Council of the European Union Regulation No. 22

Code of Conduct for Computerized Reservation Systems, July 24, 1989, Officia

European Communities (OJ 1989, L 220/1), July 29, 1989.

82. European Parliament/Council of the European Union Directive No. 95/46, su

art. 25(1) and (2).

83. European Commission Staff Working Paper, An EC-U.S. Agreement on Pass

Record (PNR), SEC(2004)81.

84. E.g., European Parliament/Council of the European Union Directive No. 95/46

81, art. 25 (1) and (2).

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

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

81.

87. Particularly Article 8 of the European Convention on Human Rights, Nov. 4, 19

at http://www.hri.org/docs/ECHR50.htm; Article 6 (2) of the Treaty on European U

note 3; and Article 286 of the Treaty Establishing the European Community, supra 

88. See Undertakings of the Department of Homeland Security Bureau of Customs 

Protection (CBP), available at http://www.statewatch.org/news/2004/feb/08eu-C

.htm.

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

90. Supra note 42.

91. Asylum Procedure Act (Rev.), Bundesgesetzblatt (Federal Law Digest) BGBI. I

27, 2002, available at http://www.1uscomp.org/gla/statutes/AsylVFG.htm.

92. Immigration Act (Auswartigesetz), Bundesgesetzblatt (Federal Law Digest)(BG

2005.

93. Supra note 80.

94. The OSCE currently has 55 participating States.

95. Council of the European Union Recommendation On Contact Points Maint

Hour Service for Combating High-Tech Crime, June 25, 2001, Official Journal of th

Communities (OJ 2001, C 187/5), July 3, 2001.

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

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PART III

THE PROLIFERATION SECURITY INITIA

IN THE MARITIME DOMAIN

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IV

The Proliferation Security Initiative

Security vs. Freedom of Navigation

Wolff Heintschel von Heinegg*

Introduction: Object and Purpose of the Proliferation Security Ini

The Proliferation Security Initiative (PSI) was announced by Presi

in Krakow, Poland, on May 31, 2003.1 It is generally conceived of 

action to the So San incident that occurred in December 2002 and that 

Cambodian-registered vessel en route to Yemen suspected of illicitly tra

weapons of mass destruction (WMD) components that were ultimatel

for Iraq.2 As a matter of fact, the intercepting Spanish frigates, upon boa

searching, discovered SCUD missile parts on board the vessel. However, 

was released after it had become clear that the missiles, though coming fr

Korea, were destined for Yemen.

The announcement by President Bush triggered a series of meeti

(originally eleven and now fifteen3) States participating in the initiative. D

Brisbane meeting they seemed to be prepared to follow a proactive cours

with the aim to effectively impede and stop shipments of WMD, deliver

and related materials.4 However, a far more cautious approach was cho

the Paris meeting in September 2003. There the participating States ag

the so-called “Interdiction Principles” which, in general terms, provide 

cal basis for unilateral or concerted activities aimed at the prevention 

proliferation.5 It needs to be emphasized here that PSI is neither a treaty 

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

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form of an international body, least of all an international organization

seen as a concerted effort by the participating States to supplement, not 

tute, existing treaties and regimes dealing with the problem of WMD 

tion.6

PSI’s ultimate goal is to effectively “interdict the transfer or transport 

their delivery systems, and related materials to and from states and non-s

of proliferation concern.” The term “states and non-state actors of pr

concern” refers to

[T]hose countries or entities that the PSI participants involved establish sh

subject to interdiction activities because they are engaged in proliferation thro

efforts to develop or acquire chemical, biological, or nuclear weapons and as

delivery systems; or (2) transfers (either selling, receiving, or facilitating) o

their delivery systems, or related materials.7

As regards “states of proliferation concern” it is more or less eviden

term refers to Iran and North Korea and to other States striving to acqu

and their delivery systems.8 At first glance, the term “non-state actors of 

tion concern” seems to cover transnational terrorists and their orga

structures. However, in view of the fact that transnational terrorism is s

special international regime the correct understanding is that it relates 

vate persons, like the notorious Pakistani Dr. Khan,9 and entities in

clandestine proliferation activities, regardless of a terrorist backgroun

fore, PSI is not to be mistaken for an exclusively counter-terrorism activ

the Initiative may trigger concerted actions of the participating States i

reasonable grounds to suspect that, e.g., WMD transported on board a 

ultimately destined to a terrorist group, its scope is certainly not limit

scenarios.

The means by which the participating States intend to reach the Initia

comprise: exchange of information; if necessary, modification of the resp

mestic law and of international law; and “specific action.”

Of course, exchange of information is subject to the protection “of 

dential character of classified information.” Still, the principal readiness 

ticipating States to rapidly exchange information should not be under

because the information concerned is usually classified and not too ea

with other States even if they are close allies. Equally important, and far f

a matter of course, is the willingness of the participating States to modif

mestic law in order to enable them to fulfill their commitments under 

tive. If the modification of domestic rules does not suffice because 

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principles of international law prove either insufficient or an obstacle for 

tive’s objectives, the participating States have to be prepared to take the 

steps on the international level. First efforts in that respect have been in

the United States and may eventually result in an amendment of the 198

tion for the Suppression of Unlawful Acts Against the Safety of 

Navigation10 at the end of 2005.11

The Initiative’s core commitments, however, are laid down in Interdic

ciple 4 on “specific action,” i.e., the participating States will:

Not transport or assist in the transport of WMD;

Board their own vessels in their respective internal waters and territorial sea 

well as on the high seas, if there is reasonable ground for suspicion that 

engaged in proliferation activities;

Consider to provide consent to boarding of their vessels by the authorities 

participating States;

Take measures against foreign vessels in the sea areas covered by their te

sovereignty and in their respective contiguous zone; and

Take measures against foreign aircraft in their respective national airspace.

At first glance, none of these commitments seems to imply insurmoun

problems—the more so because the participating States have stressed th

terdiction activities will be “consistent with... relevant internationa

frameworks, including the UN Security Council.” Indeed, internation

seem to widely agree that in view of its rather limited scope PSI finds a 

basis in the existing law.12 This is certainly correct insofar as interdiction 

are taken against vessels and aircraft belonging to one of the participat

Vessels flying a State’s flag and aircraft bearing a State’s markings are 

that State’s sovereignty.13 Accordingly, they may be visited and search

State’s organs in sea areas and in airspace not covered by the territorial s

of another State. The said position is also correct if the flag or home Stat

sented to interdiction measures by another State14 or if the foreign ves

craft is traveling in the internal waters or national airspace of a pa

State.15 However, some doubts remain with regard to interdiction meas

against foreign vessels within the territorial sea because the rules of the 

sea on enforcement measures by the coastal State are less clear than th

be. These questions will be addressed in the second part of this article. 

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the question arises whether States participating in PSI are excluded from 

ing foreign vessels and aircraft in high seas areas and in international air

true that, according to the wording of the Interdiction Principles agree

Paris, there is no indication that they are prepared to interdict the tr

WMD and related material in those areas if on board a vessel or aircra

longing to one of them. Still, this does not necessarily mean that the pa

States have for once and for all excluded that possibility. Therefore, the 

of this paper will deal with the legality of interdiction measures on the 

and in international airspace. However, before dealing with these legal p

is important to first establish the relationship of PSI and the internati

proliferation regime. As will be shown in the first part, the Initiative is fa

ing a fundamentally novel approach by States sharing a common concer

gard to the threat posed by the proliferation of WMD and their deliver

Some of the voices raising (legal) concerns with regard to PSI seem to 

fact that a comparatively small group of States has a long history of clos

tion with the aim of preventing the proliferation of WMD and their de

tems. PSI is but a small tessera in the mosaic that is the internati

proliferation regime.

The International Anti-Proliferation Regime

It is a fact all too often ignored that there already exists a rather sophistic

national regime aimed at the prevention of the proliferation of WMD. T

covers not only nuclear weapons and nuclear material but also chemica

logical weapons, including their components, as well as delivery system

related technology. It consists of “hard law obligations” and of a number 

menting agreements of a merely political character. Most of those form

formal agreements pertain to specific weapons and materials. It 

mentioned, however, that there are three further instruments that are b

comprehensive approach but that will not be dealt with here because th

directly contribute to counter-proliferation of WMD: the Internationa

Port Facility Code (ISPS Code),16 the Container Security Initiative (CSI)

“Customs-Trade Partnership Against Terrorism” (C-TPAT) Program.1

Nuclear Weapons and Nuclear Material

According to the 1968 Treaty on the Non-Proliferation of Nuclear 

(NPT),19 nuclear-weapon States are prohibited from making available, 

rectly or indirectly, to non-nuclear-weapon States “nuclear weapons or 

clear explosive devices” (Article I). Non-nuclear-weapon States, in turn, 

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an obligation not to 

manufacture or to otherwise acquire such weap

vices” (Article II). According to Article III, paragraph 1, a non-nuclea

State is obliged to “accept safeguards, as set forth in an agreement to be 

and concluded with the International Atomic Energy Agency (IAEA) 

dance with the Statute of the International Atomic Energy Agency 

Agency’s safeguards system, for the exclusive purpose of verification of 

ment of its obligations assumed under” the NPT. The IAEA has safegua

ments in force with more than 145 States around the world. Most of 

comprehensive safeguards agreements concluded pursuant to the N

types of agreements are known as item or facility safeguards agreement

untary offer agreements. Also in place is a Model Additional Protocol to 

agreements that grants the IAEA complementary verification authority

The NPT-IAEA system is supplemented by the Zangger Committee 

Nuclear Suppliers Group (NSG), both informal groups of States th

strengthening the counter-proliferation efforts. The Zangger Comm

formed in 1971 and consists of 35 States. Its main task is to harmonize th

tation of nuclear export control policies by specifying the meaning of 

paragraph 2, of the NPT. Accordingly, the so-called “trigger list”22 relate

or special fissionable materials and to equipment or materials especially 

or prepared for the processing, use, or production of special fissionable 

By interpreting and implementing Article III, paragraph 2, the “trigger 

to prevent the diversion of exported nuclear items from peaceful purpo

clear weapons or other nuclear explosive devices. Such material may o

ported by one of the participating States if three conditions are met

explosive use assurance, (2) observance of the IAEA safeguards require

(3) commitment to re-transfer. The Nuclear Suppliers Group23 compri

clear supplier countries. It seeks to contribute to the non-proliferation 

weapons through the implementation of guidelines for nuclear exports. 

NSG’s informal character the guidelines are not legally binding; they are

implemented by the participating governments that take the necessary d

the national level according to their respective domestic law.

Finally, there are two draft conventions that, if ever accepted by a repr

number of States, will certainly contribute to strengthening the intern

gime against the proliferation of nuclear weapons and of nuclear ma

Draft Convention for Suppression of Nuclear Terrorism (CNT)24 and 

Fissile Material Cut-Off Treaty (FMCT).25

The Draft CNT would exclusively address acts by individuals. The

scope would not include the issue of the non-proliferation of nuclear w

nuclear threats posed by States or intergovernmental organizations. Sta

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would be obliged to cooperate in preventing or prosecuting acts of nucl

ism by, inter alia, adopting necessary legislative and technical measures 

nuclear material, installations and devices, and to forestall unauthorize

them by third parties. It would supplement the 1980 Convention on th

Protection of Nuclear Material.26

Fissile material, e.g., enriched uranium, is a key component in the dev

of nuclear warheads. After the General Assembly of the United Nations h

a resolution on the prohibition of fissile material for nuclear weapons o

plosive devices27 an ad hoc committee was established by the Conference 

mament in 1998, with a view to negotiating a treaty banning the prod

fissile material for nuclear weapons. While it is unclear whether the wo

FMCT will produce results, the FMCT would cap the amount of fissile m

nuclear weapons States and non-parties to the NPT. However, it would 

to plutonium and Highly Enriched Uranium for non-explosive purpo

non-fissile material (e.g., Tritium). It would not address existing stockp

Chemical and Biological Weapons

Chemical weapons and biological weapons are governed by the

1925 Geneva Protocol for the Prohibition of the Use in War of Asphy

Poisonous or Other Gases, and of Bacteriological Methods of Warfa

1925),28

1972 Convention on the Prohibition of the Development, Producti

Stockpiling of Bacteriological (Biological) and Toxin Weapons and o

Destruction (BTWC),29 and

1993 Convention on the Prohibition of the Development, Prod

Stockpiling and Use of Chemical Weapons and on Their Destructio

CWC).30

The Australia Group (AG)31 is an informal arrangement of 39 States and 

pean Commission which aims to allow exporting or transshipping co

minimize the risk of assisting chemical and biological weapon (CBW) 

tion. Its task is to ensure, through licensing measures on the export 

chemicals, biological agents, and dual-use chemical and biological man

facilities and equipment, that exports of these items from their countr

contribute to the spread of CBW.

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Delivery Systems

With regard to WMD delivery systems, there is no treaty or other legal

instrument either prohibiting or restricting the transfer of such delivery 

of related technologies. However, there are three informal arrangements 

the prevention of their proliferation.

The Missile Technology Control Regime (MTCR)32 is an informal n

association of 34 States that have agreed on the prevention of the proli

missiles, unmanned aerial vehicles (UAVs) and of related technologies. 

the Zangger Committee and the NSG, the MTCR is functioning on th

guidelines that are amended by an Equipment and Technology Annex. In 

the Hague Code of Conduct against the Proliferation of Ballistic Missile

was adopted in November 2002.33 The object and purpose of the HCOC 

the proliferation of WMD-capable ballistic missiles and to exercise max

straint in developing, testing, and deploying such missiles.34

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

At the end of this overview of the international regime it needs to be em

that proliferation of WMD and their delivery systems has been identifie

jor security threat in NATO’s new Strategic Concept of April 1999,35 in t

tional Security Strategy of September 2002,36 and in the European Securi

of December 12, 2003.37 The US National Strategy to Combat Weapon

Destruction of December 2003 provides that: “U.S. military and approp

ian agencies must possess the full range of operational capabilities to c

threat and use of WMD by states and terrorists against the United States

tary forces, and friends and allies.” The EU member States, according to 

pean Security Strategy, have recognized that “[a]ctive policies are 

counter the new dynamic threats. We need to develop a strategic cultur

ters early, rapid, and when necessary, robust intervention.”

Moreover, the European Union has adopted the EU Strategy Against 

tion of Weapons of Mass Destruction which provides for a strengthened 

tion, control and interception of illegal trafficking in WMD. Hence, the 

Union is prepared to adopt “common policies related to criminal sanctio

gal export, brokering and smuggling of WMD-related material”; to cons

sures aimed at controlling the transit and transshipment of sensitive m

and to support “international initiatives aimed at the identification, co

interception of illegal shipments.”38

The EU approach towards the proliferation issue may be less proactiv

US approach. Still, both EU strategies clearly indicate that the European U

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not restrict itself to diplomatic means but that it is prepared to also m

armed force whenever this may prove necessary.

PSI as a further Cornerstone of the International Counter-Proliferati

Regime

It has been shown that PSI is a common effort of a group of States that fit

the already existing counter-proliferation regime.39 Subject to the final d

tion of its legality under international law, PSI is without doubt to be con

additional step towards an effective prevention of the proliferation of W

their delivery systems. Its informal character enhances the participat

ability to flexibly react to proliferation activities by States and individu

cern and thus contributes to an effective implementation of their nation

ternational security strategies.

Interdicting the Transport of WMD in the Territorial Sea

The success of PSI is, of course, dependent on the firm political will of t

pating States. However, some of them, e.g., Russia and Germany, hav

ously stressed that their active participation in the Initiative presup

legality of the measures taken under international law. As long as interdic

sures are taken in the respective territories, national airspaces, and inter

they are in conformity with international law.40 The same holds true if 

62

Figure 1: PSI as Part of the International Counter-Proliferation Regime

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aircraft are intercepted in international sea areas and in international a

ther by, or with the consent of, their respective flag or home State.41

However, when it comes to intercepting foreign vessels within the terr

the question arises whether the law of the sea provides a sufficient leg

needs to be emphasized that interference with foreign shipping, even if i

the territorial sea of the intercepting State, will always have to be measur

the freedom of navigation, especially against the well-established right o

passage. Since all States participating in PSI are heavily dependent upo

lanes and unimpeded maritime commerce, they will certainly not too 

fringe upon those freedoms and rights. The precedent they set may be 

other States and could contribute to a new form of “creeping jurisdiction

ultimately prove counterproductive. It is, therefore, vital for PSI that in

measures are in compliance with the regime of the territorial sea as set f

1982 United Nations Convention on the Law of the Sea42 (1982 LOS Co

and in the corresponding customary law.43

Without prejudice to the inherent right of self-defense, the right of coa

to interfere with foreign vessels in their territorial sea is regulated in Artic

27 of the 1982 LOS Convention.44 According to the latter provision, t

State may exercise its criminal jurisdiction on board a foreign ship, i.e., 

rest persons, conduct investigations, and temporarily detain the vessel

have been committed on board during passage that impact upon the co

In view of the fact that coastal States are entitled to prevent infringeme

alia, their customs, fiscal, immigration and sanitary laws and regulatio

21, paragraph 1), enforcement measures taken against vessels suspect of 

ing WMD, WMD components or delivery systems, do not seem to pose 

lems. If the States participating in PSI enact legislation prohibiting the tr

such material they would be in a position to enforce these regulations a

pect vessels. It may, however, not be left out of consideration that the m

of the domestic (criminal) law of the coastal State will justify the exe

criminal jurisdiction only in cases where the crime has been committed o

ship passing through the territorial sea after leaving the coastal State’s in

ters (Article 27, paragraph 2). If the vessel concerned has not left a p

coastal State the exercise of criminal jurisdiction, according to Article 

graph 1, is limited to one of the following cases:

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

(b) if the crime is of a kind to disturb the peace of the country or th

order of the territorial sea;

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(c) if the assistance of the local authorities has been requested by the 

of the ship or by a diplomatic agent or consular officer of the flag S

(d) if such measures are necessary for the suppression of illicit tr

narcotic drugs or psychotropic substances.

In the context of PSI, the coastal State will therefore be obliged to prov

prohibited transport of WMD and related material meets the condition

subparagraph (a) or (b). An analogy to subparagraph (d) is not justified 

the restricted scope of that exception. In view of the fact that the coastal 

forcement jurisdiction in the territorial sea is in principle complete,45 a

of the dangerous character of such cargoes, the coastal State will in most 

a position to provide sufficient evidence that the said conditions are m

should not be left out of consideration that there is no general and comp

bition of the transport of such material. Therefore, the coastal State tha

interdict the transport of WMD through its territorial sea should give pr

cation of its domestic legal rules prohibiting such transports.46

If the crime has been committed before entry into the territorial sea 

ship, proceeding from a foreign port, is only passing through the terr

without entering internal waters, the coastal State may not take any step

the ship.47 However, this rule will in most cases not be an obstacle for in

measures because the transport of WMD or of delivery systems constit

manent crime, i.e., the perpetration continues during passage.

Finally, the question remains whether the coastal State would be entit

enforcement measures against foreign vessels by referring to a “non-

passage if there is no domestic law or regulation prohibiting the transp

items in question. According to Article 25, paragraph 1, of the 1982 LO

tion, the coastal State “may take the necessary steps in its territorial sea 

passage which is not innocent.” Article 19 of the Convention provides th

is not innocent if it is “prejudicial to the peace, good order or security of 

State” (paragraph 1) or if the vessel is engaged in one of the activities list

cle 19, paragraph 2. Transporting missiles or WMD is not mentioned in 

2 which, e.g., the United States considers “an exhaustive list of activities t

render passage not innocent.”48 Accordingly, some authors have serious 

to whether interdiction measures may be based upon the assumption o

innocent character of the transport of WMD.49 However, this position 

convincing. According to UN Security Council Resolution 154050 “proli

nuclear, chemical and biological weapons, as well as their means of deli

stitutes a threat to international peace and security.” Daniel Joyn

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therefore, that it 

should be relatively unproblematic . . . for coastal state

overcoming seagoing vessels’ right of innocent passage through their 

waters when there is a reasonable basis for suspicion that they are involv

liferation.”51 Although the coastal State’s reaction, according to Article 

graph 1, will be limited to “preventing” such innocent passage, this does 

that the suspect vessel may only be ordered to immediately leave the terr

Such a restriction merely applies in cases of warships not complying 

coastal State’s laws and regulations because warships, even if within a for

torial sea, enjoy sovereign immunity.52 With regard to merchant vessels t

enjoy sovereign immunity, the coastal State will therefore be entitled 

necessary steps, including the arrest of the vessel and seizure of its cargo

Interference with Foreign Vessels and Aircraft in High Seas Ar

As seen, the interdiction measures agreed upon in the Paris In

Principles54 are consistent with existing international law.55 The pa

States do not yet envisage interdiction activities in high seas areas or i

tional airspace unless their own vessels and aircraft are concerned or unl

or home State has consented in a boarding or interception by another pa

State. As a matter of fact, such consent was the legal basis for the interc

BBC China in September 2003.56 Consent, including presumed consen

be the decisive legal argument for the interception, boarding, search, 

and arrest of Liberian- and Panamanian-flagged vessels according t

agreements concluded by the United States with the two States.57 The s

true for an amendment of the 1988 Convention for the Suppression of 

Acts Against the Safety of Maritime Navigation (SUA Convention)58 

pected to be agreed upon in the end of 2005.

It needs to be emphasized here that no considerable legal problems ar

if there are reasonable grounds for suspicion that a vessel encountered o

seas (or a civil aircraft in international airspace) is engaged in the tr

WMD and their delivery systems and that the cargo is destined to transna

rorists. There is today widespread agreement that in case of a terrorist ba

interception, boarding, search, or arrest of vessels and aircraft finds its 

either in the (inherent) right of self-defense or in the international law o

measures (in combination with United Nations Security Council Resolu

(2001)59).

However, it remains to be seen whether the PSI States would be entit

interdict the transport of WMD on the high seas or in international 

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there is neither a terrorist background nor a (presumed) consent by t

home State.

Law of the Sea

Merchant vessels on the high seas are subject to the sovereignty of their 

flag State.60 The same holds true with regard to civil aircraft in interna

space.61 Therefore, third States are not entitled to interfere with such v

aircraft unless such interference is justified by the consent of the flag or h

or by a special agreement.62 There is, as yet, no express treaty prohibit

transport of WMD and their delivery systems.63 Moreover, such activitie

be equated with piracy.64 Therefore, the only provision of the 1982 LO

tion serving as a basis for interdicting such transports in high seas area

110, paragraph 1 (d) and (e). Hence, as was the case in the So San inci

vessel must be without nationality or, though flying a foreign flag or r

show its flag, it must, in reality, be of the same nationality as the interce

ship. It remains to be seen whether the proposed amendments of 

Convention66 will also result in a modification of the LOS Convention o

ute to the emergence of a new rule of customary international law. A

however, the international law of the sea does not provide a legal basis b

scope of Article 110 of the 1982 LOS Convention.

Self-Defense

As in cases with a terrorist background, the right of self-defense will serv

basis if the conditions triggering that right are met. Hence, if the tra

WMD is sufficiently linked to a given threat of an armed attack its interd

be justified, because there will be a “necessity of self-defense, instant, ov

ing, leaving no choice of means, and no moment of deliberation.”67 This 

case if a merchant vessel is sailing in the immediate vicinity of the outer 

State’s territorial sea and if there are reasonable grounds for suspicion th

a nuclear weapon on board. Under the right of self-defense the coasta

certainly be entitled to take all necessary measures, including the capture 

sel, in order to effectively counter the threat.68 The same holds true if t

vessel is destined to a third State whose government has shown an aggr

tude and has given sufficient evidence that it would make use (or would 

the use) of WMD as soon as it disposes of such weapons. Accordingly, 

Quarantine could have been justified as a necessary measure of pr

interceptive69—not preventive—self-defense.70 It may well be that in som

distant future the customary right of self-defense will also apply to less im

threatening circumstances. The US National Security Strategy may 

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characterized as the first precedent contributing to a progressive devel

international law. For the time being, however, coercive measures of a p

ventive character are not in compliance with the right of self-defense. 

shipment of WMD and their delivery systems will in most cases not meet 

fold test of immediacy, necessity and proportionality.71 Hence, except fo

dinary circumstances, an extension of PSI to interdictions of foreign v

aircraft in the high sea and in international airspace cannot be based upo

of self-defense.72 It needs to be emphasized that any extensive interpretat

or application of the right of self-defense to situations traditionally not c

that right may serve as a welcome precedent for other States. Even if the

certain conduct that the PSI States are unwilling to tolerate, the latter w

most unpleasant and difficult situation because they will certainly be re

their prior conduct. Moreover, all States, including the PSI States, shoul

of the tremendous achievements of the past three years. Prior to Sept

2001 most international lawyers and governments would have agreed tha

of self-defense does not apply to attacks by a group of private persons. 

body would doubt that this is the case. A further extension of the right 

fense to situations not meeting the test of imminence would not only be 

but, ultimately, counterproductive.

Counter-Measures Short of Self-Defense

However, the above findings do not rule out the possibility of a further 

justifying the interdiction of WMD transports on the high seas and in int

airspace that is all too often left out of consideration: counter-measur

self-defense.

Admittedly, in its Resolution 1540 the UN Security Council has not a

the boarding or capture of vessels and aircraft suspected of transporting W

their delivery systems.73 Had the Security Council provided such an 

tion—either in general terms or with regard to vessels and aircraft of a 

tionality—the resolution would be a perfect legal basis.74 However, the c

plea for an express authorization by the Security Council whenever secu

are at stake is unrealistic. It is based upon an erroneous perception of th

tem of collective security. Of course, a functioning institutionalization o

force, including measures short of self-defense, may be an ideal worth wo

However, at present the system is far from perfect. It would amount 

thinking to believe that, e.g., the People’s Republic of China will ever vo

of a Security Council resolution aimed at the proliferation activities by N

rea and authorizing the interdiction of North Korean ships and aircraft 

of being engaged in such transports. Moreover, the present system of int

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law is far from excluding unilateral or multilateral action outside the UN 

collective security.

Be that as it may, with Resolution 1540 there now exists a legally bind

ment that unambiguously specifies the obligations of all States with reg

prevention of the proliferation of WMD by non-State actors. Contrary to 

expressed by some politicians75 and international lawyers76 the Security 

not limited in making use of its powers under Chapter VII of the UN Cha

uations in which a specific State threatens the peace. In other words, th

Council may, in view of its primary responsibility for peace and internati

rity, act as a quasi-legislator if the only means to counter a threat to the 

general and abstract resolution. The international community has not 

against either Resolution 1373 or Resolution 1540, thus acquiescing in t

mance of such powers.

It may be recalled that, in Resolution 1540, the Security Council, act

Chapter VII, has identified a series of obligations with regard to the pre

WMD proliferation by non-State actors77:

1. [A]ll States shall refrain from providing any form of support to no

actors that attempt to develop, acquire, manufacture, possess, tra

transfer or use nuclear, chemical or biological weapons and their 

of delivery;

2. . . . all States, in accordance with their national procedures, shal

and enforce appropriate effective laws which prohibit any no

actor to manufacture, acquire, possess, develop, transport, tran

use nuclear, chemical or biological weapons and their means of d

in particular for terrorist purposes, as well as attempts to engage in 

the foregoing activities, participate in them as an accomplice, a

finance them;

3. . . . all States shall take and enforce effective measures to e

domestic controls to prevent the proliferation of nuclear, chem

biological weapons and their means of delivery, including by estab

appropriate controls over related materials and to this end shall:

(a) Develop and maintain appropriate effective measures to acco

and secure such items in production, use, storage or transpo

(b) Develop and maintain appropriate effective physical pro

measures;

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(c) Develop and maintain appropriate effective border controls a

enforcement efforts to detect, deter, prevent and combat, in

through international cooperation when necessary, the 

trafficking and brokering in such items in accordance wit

national legal authorities and legislation and consisten

international law;

(d) Establish, develop, review and maintain appropriate e

national export and trans-shipment controls over such 

including appropriate laws and regulations to control export, 

trans-shipment and re-export and controls on providing fun

services related to such export and trans-shipment such as fin

and transporting that would contribute to proliferation, as 

establishing end-user controls; and establishing and en

appropriate criminal or civil penalties for violations of such 

control laws and regulations . . . .

Accordingly, every State that either allows or otherwise—actively or pass

sists in the transport of WMD and their delivery systems by non-State 

violate its international obligations under Resolution 1540. A justifica

on an assertion that the State in question does not possess the necessary 

comply with its duties is immaterial because Resolution 1540, in pa

specifically:

Recognizes that some States may require assistance in implementing the prov

this resolution within their territories and invites States in a position to do so 

assistance as appropriate in response to specific requests to the States lacking 

and regulatory infrastructure, implementation experience and/or resou

fulfilling the above provisions.

Therefore, a State that knowingly allows the transport of WMD and of t

ery systems or that does not intervene by preventing such transports on 

sels flying its flag or on board aircraft bearing its markings co

internationally wrongful act. According to the well-established princip

law of State responsibility,78 as codified in the 2002 rules prepared by th

tional Law Commission (ILC),79 the State injured by a violation of int

law is entitled to take the necessary countermeasures in order to either 

wrongdoer to comply with its obligations or to reestablish the legal statu

instead of the delinquent State.80 Since all forms of WMD proliferation a

non-State actors are to be considered a threat to peace and internation

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and since the vast majority of States, including the People

s Republic 

agrees that such activities pose a considerable danger, the category o

State” is not limited to potential target States. Consequently, counterme

reprisals involving visit, search and capture may be taken against vesse

craft for the mere reason that they are flying the delinquent State’s flag o

are bearing that State’s markings (genuine link). However, in view of t

tance of the freedom of navigation and overflight such measures must be 

and strictly proportionate. That will only be the case if there are r

grounds for suspicion that the vessels or aircraft concerned are indeed e

illicit activities of WMD transportation, i.e., that they are acting withou

authority of any State.81

Conclusions

There are some who are skeptical about the Proliferation Security Initiat

they consider a too proactive and, thus, dangerous undertaking.82 How

also agree that proliferation of WMD and their delivery systems constitu

crete threat to international security. Still, they are not prepared to adm

Initiative has been built on a sound legal basis. PSI, as it now stands, is 

conformity with both the international law of the sea and, though in e

cases only, the right of self-defense. Its legal basis has further been streng

UNSC Resolution 1540, thus enabling the participating States to extend t

diction activities to the high seas and to international airspace. A fortiori

interdict transports of WMD and their delivery systems in areas covere

respective territorial sovereignty, i.e. in their national airspace and in th

rial sea areas. Such interdictions—wherever conducted—presuppose 

are reasonable grounds for suspicion that the vessel or aircraft is engaged 

eration activities not legally authorized by any State. The freedom of nav

principle far too important and vital for the national economies and fo

and multilateral security interests to be interfered with easily.

Of course, the silver bullet is a treaty based approach. As seen, the Un

has succeeded in concluding bilateral agreements with the two most imp

of convenience States—Liberia and Panama.83 It is to be expected that 

lateral agreements will follow, thus enabling the US Coast Guard to effe

terdict the transport of WMD and of WMD-related cargoes by non-Stat

the IMO member States succeed in amending the 1988 SUA Convention 

be a multilateral treaty serving as a further legal basis. However, the St

highest proliferation concern, e.g., North Korea and Iran, will hardly be 

to conclude or accede to such treaties. For an indefinite period 

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interdictions involving those States and their shipping and aviation will 

based upon the rules and principles identified in this article. In view of th

delicate character they should, however, be conducted in a most cautio

stricted manner.

Notes

1. US DEPARTMENT OF STATE, PROLIFERATION SECURITY INITIATIVE, Sept. 15, 20

at http://www.state.gov/r/pa/ei/rls/24134.htm. See also Contemporary Practice of 

States, Proliferation Security Initiative for Searching Potential WMD Vessels, 98 

JOURNAL OF INTERNATIONAL LAW 355 (2004).

2. For a discussion of the facts surrounding the So San incident, see Threats and Resp

Smuggling; Scud Missiles Found on Ship of North Korea, NEW YORK TIMES, Dec. 11, 

P. Kerr, U.S. Stops Then Releases Shipment of N. Korean Missiles, http://www.arms

act/2003_01-02/yemen_janfeb03.asp (last visited Feb. 8, 2005).

3. The original eleven PSI participating States are: Australia, France, Germany, Italy

Netherlands, Poland, Portugal, Spain, the United Kingdom, and the United Stat

Norway, Russia, and Singapore now also belong to the core group. Denmark 

participated only in some of the meetings. 60 additional States have reportedl

cooperate on an ad hoc basis.

4. At the Brisbane meeting (July 2003) the participants agreed on (a) a global in

global reach, (b) direct, practical measures to impede the trafficking in WMD, m

related items, (c) interdicting shipments of these items at sea, in the air or on la

robust and creative steps to prevent trafficking in such items. See Special Pres

Proliferation Security Initiative Meeting, available at http://www.vic-info.org/Regi

0/f5d0af10159ebd530a256d65000a5571?OpenDocument (last visited Feb. 8, 2005)

5. US DEPARTMENT OF STATE, PROLIFERATION SECURITY INITIATIVE: STAT

INTERDICTION PRINCIPLES, http://www.state.gov/t/np/rls/fs/23764.htm (last visi

2005) [hereinafter Interdiction Principles].

6. This has been repeatedly emphasized by former Undersecretary of State, John Bol

New Proliferation Security Initiative—an Interview with John Bolton, http://www.

.org/aca/midmonth/November/Bolton.asp (last visited Feb. 6, 2005).

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

8. For an assessment of the North Korean weapons program, see John Chipmann, In

Institute for Strategic Studies (IISS) Director, available at http://www.iiss.org/sho

.php?docID=324. On February 11, 2005 North Korea announced that it posse

weapons. For an overview of the Iranian nuclear program, see http://www.iaea.org/N

Focus/IaeaIran/index.shtml (last visited Feb. 12, 2005). Libya was a “State of p

concern” until Muammar el-Qaddafi abandoned the WMD program in late 2003.

9. Dr. Abdul Qadeer Khan is known as the father of Pakistan’s nuclear weapon

However, he also was involved in an extensive international network for the pro

nuclear technology and know-how. The network sold centrifuges to enrich uraniu

hexafluoride, and technological know-how to Iran, Libya and North Korea.

10. Mar. 10, 1988, 1678 U.N.T.S. 221, reprinted in 27 INTERNATIONAL LEGAL MA

(1988).

11. See infra p. 65 and note 58.

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yfy pf 

Interdiction on the High Sea, 13 NATIONAL STRATEGY FORUM REVIEW 5 (Fall 2003), 

25 NATIONAL SECURITY LAW REPORT 5, 5–8 (Oct. 2003); Erin Harbaugh, The P

Security Initiative: Counterproliferation at the Cross Roads, III STRATEGIC INSIGHTS, 

2004), available at http://www.ccc.nps.navy.mil/si/2004/jul/harbaughJul04.asp (last 

8, 2005); Daniel H. Joyner, The PSI and International Law, 10 THE MONITOR 7 (Sp

available at http://www.uga.edu/cits/documents/pdf/monitor-sp-2004.pdf; Mic

Policing the High Seas: The Proliferation Security Initiative, 98 AMERICAN JO

INTERNATIONAL LAW 526–545 (2004); Christian Schaller, Die Unterbindung des S

von Massenvernichtungswaffen, SWP-STUDIE (May 2004). Doubts as to the Initiat

are raised by Benjamin Friedman, The Proliferation Security Initiative: The Lega

Bipartisan Security Group, Global Security Institute (September 2003), availab

www.nautilus.org/DPRKBrifingBook/terrorism/PSI-brief.html#top.

13. Schaller, supra note 12, at 9. The flag State principle was characterized as 

venerable and universal rule of maritime law” by the US Supreme Court in Lauritz

345 U.S. 571 (1953) . See also S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 1

14. See, inter alia, Byers, supra note 12, at 529; Chesney, supra note 12, at 6. It shou

however, that there is no general agreement whether the consent of the flag State is 

whether the master’s consent would suffice.

15. Joyner, supra note 12, at 8.

16. The International Maritime Organization’s (IMO) Diplomatic Conference o

2002 adopted the ISPS Code by amendments to Chapters V and XI of the In

Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47, T.I.A.S. 9700. Th

the ISPS Code, formally entitled the International Code for the Security of Ships 

Facilities, is available at http://www.turkloydu.org/EN/SEA/ISPS-Code-en.pdf.

17. CSI was announced by the US Commissioner of Customs and Border Protectio

2002 as a means to extend the US zone of security outward so US borders are the 

defense, not the first. Through CSI, US customs authorities may examine suspect c

the port of origin of participating States. At present, CSI has been impleme

international ports. For a discussion of CSI and a current listing of participatin

Homeland Security, Container Security Initiative (CSI), available at http://www.gl

.org/security/systems/carg-inspect.htm. See also John F. Frittelli, Maritime Security: 

Issues 5 (2003), Congressional Research Service Report RS21079, available at http://

crs/RS21079.pdf (last visited Feb. 8, 2005).

18. C-TPAT allows for better cooperation between US customs authorities 

enterprises. See US GENERAL ACCOUNTING OFFICE, GAO-03-770, CONTAINER 

EXPANSION OF KEY CUSTOMS WILL REQUIRE GREATER ATTENTION TO CRITIC

FACTORS (2003), available at http://www.gao.gov/new.items/d03770.pdf (last vis

2005). See also J. Ashley Roach, Container and Port Security: A Bilateral Perspect

INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW 341 (2003).

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

20. The texts of the safeguards agreements and additional protocol are available at 

.iaea.org/Publications/Documents/Infcircs/Others/inf153.shtml (last visited Feb. 10

21. For an overview of the Zangger Committee, see http://www.zanggercommittee

22. The term means that the export of listed items “triggers” IAEA safeguards as a c

supply. The “trigger list” and the Zangger Committee’s understandings are publi

IAEA in its Information Circular 209 (INFCIRC/209) entitled “Communication Re

members regarding the Export of nuclear material and of Certain Categories of Equ

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pg

inf209.shtml.

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

24. The text of the CNT is available at http://www.fas.org/nuke/control/nt/docs/ 

Feb. 8, 2005).

25. For an overview and assessment of the FMCT, see http://www.fas.org/nuke/co

(last visited Feb. 8, 2005).

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

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

a48r075htm.

28. June 17, 1925, 26 U.S.T. 571, T.I.A.S. No. 8061; reprinted in DOCUMENTS ON T

WAR 158 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).

29. Apr. 10, 1972, 1015 U.N.T.S. 164; T.I.A.S. No. 8062, reprinted in THE LAWS 

CONFLICTS 137 (Dietrich Schindler & Jiri Toman eds., 3d. ed. 1988) (entered into fo

26, 1975).

30. Jan. 13, 1993, 1975 U.N.T.S. 469, reprinted in 32 INTERNATIONAL LEGAL MA

(1993). For an overview of the work of the Organisation for the Prohibition o

Weapons, see http://www.opcw.nl/.

31. An overview of the AG and a listing of its members is available at http://www.au

.net/en/intro.htm.

32. A discussion of the MTCR and a current listing of its members are availab

www.mtcr.info.

33. The text of the HCOC is available at http://projects.sipri.se/expcon/hcocfinal.ht

www.minbuza.nl/default.asp?CMS_ITEM=MBZ460871 (last visited Feb. 8, 2005). 

DEPARTMENT OF STATE, FACT SHEET, INTERNATIONAL CODE OF CONDUCT AGAINS

MISSILE PROLIFERATION (2004), available at http://www.state.gov/t/np/rls/fs/2779

visited Feb. 9, 2005).

34. Christer Ahlström, Non-Proliferation of Ballistic Missiles: The 2002 Code 

STOCKHOLM INTERNATIONAL AND PEACE INSTITUTE YEARBOOK 749 (2003).

35. The Strategic Concept is the product of NATO Alliance’s Strategic Concept

approved by the Heads of State and Government participating in the meeting o

Atlantic Council in Washington, D.C., on April 23 and 24, 1999. Paragraph 22 prov

The proliferation of NBC weapons and their means of delivery remains a m

serious concern. In spite of welcome progress in strengthening internation

proliferation regimes, major challenges with respect to proliferation rema

Alliance recognises that proliferation can occur despite efforts to prevent it a

pose a direct military threat to the Allies’ populations, territory, and forces. Som

including on NATO’s periphery and in other regions, sell or acquire or try to 

NBC weapons and delivery means. Commodities and technology that could be 

build these weapons of mass destruction and their delivery means are becomin

common, while detection and prevention of illicit trade in these materials and 

how continues to be difficult. Non-state actors have shown the potential to cre

use some of these weapons.

36. According to the National Security Strategy of the United States, the com

approach to combat WMD includes “proactive counterproliferation efforts,” “s

nonproliferation efforts to prevent rogue states and terrorists from acquiring th

technologies, and expertise necessary for weapons of mass destruction,” an

consequence management to respond to the effects of WMD use, whether by terrori

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OF THE UNITED STATES 14 (2002).

37. The text of the European Security Strategy is available at http://ue.eu

cmsUpload/78367.pdf (last visited Feb. 8, 2005). The EU Strategy reads, in pertin

follows: “Proliferation of Weapons of Mass Destruction is potentially the greatest t

security. . . . The most frightening scenario is one in which terrorist groups acquire 

mass destruction. In this event, a small group would be able to inflict damage 

previously possible only for States and armies.”

38. The text of the Strategy Against Proliferation is available at http://www.sipri.o

expcon/eu_wmdsrrategy.pdf.

39. Seema Gahlaut, The PSI Will Parallel the Multilateral Export Control Regim

MONITOR 12 (Spring 2004).

40. See supra notes 12 and 13.

41. See Joyner, supra note 14.

42. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 833 U.N.T.S. 3

in 21 INTERNATIONAL LEGAL MATERIALS 1261 (entered into force Nov. 16, 1994) 

1982 LOS Convention]. See also the Agreement Relating to the Implementation of P

United Nations Convention on the Law of the Sea of 10 December 1982 , UN Doc. A/

of Aug. 17, 1994, available at http://www.un.org/Depts/los/convention_agreem

unclos/closindxAgree.htm (entered into force July 28, 1996).

43. The rules of the 1982 LOS Convention on the territorial sea and on innocent 

generally considered to be customary in character. Hence they are binding on all St

appraisal of the customary character, see especially the Joint Statement by the Uni

America and the Union of Soviet Socialist Republics, Jackson Hole, Wyoming, Se

reprinted in 28 INTERNATIONAL LEGAL MATERIALS 1444 (1989) [hereinafter US-

Statement].

44. In the context of PSI, Article 28 of the 1982 LOS Convention on civil jurisdictio

of only minor relevance.

45. ROBIN R. CHURCHILL & ALAN V. LOWE, THE LAW OF THE SEA 98 (3d ed. 199

supra note 12, at 11.

46. This will regularly be achieved by making use of a Notice to Mariners and by 

Aviators. The obligation to notify is based on the assumption that interference w

shipping will, a priori, constitute an infringement upon the flag State principle and 

innocent passage. For a general duty to warn third States’ shipping of dangers 

territorial sea, see Corfu Channel (UK v. Albania), Merits, 1949 I.C.J. 4, 22 (Apr. 9)

47. 1982 LOS Convention, supra note 42, art. 27 (5). Note, however, that this rest

not apply to cases provided for in Part XII of the Convention pertaining to the prote

marine environment or with respect to violations of laws and regulations adopted in 

with Part V (the EEZ).

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

49. Friedman, supra note 12, at 3.

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

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

52. 1982 LOS Convention, supra note 42, art. 30. Sovereign immunity of warships i

recognized in Article 236. See also The Schooner Exchange v. McFadden & Others, 

(1812).

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

at 12.

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p

55. The same view is taken by Byers, supra note 12, at 529; Joyner, supra note 1

Schaller, supra note 12, at 19.

56. For the facts surrounding the interception and boarding of the BBC China, see 

& Charles Allen, The PSI: Taking Action Against WMD Proliferation, 10 THE MO

(Spring 2004).

57. Agreement between the Government of the United States of America and the G

of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of 

Mass Destruction, Their Delivery Systems, and Related Materials by Sea, Feb. 11, 20

at http://www.state.gov/t/np/trty/32403.htm. Amendment to the Supplementary A

between the Government of the United States of America and the Government of Pa

Arrangement between the Government of the United States of America and the Gov

Panama for Support and Assistance from the United States Coast Guard for Nation

Service of the Ministry of Government and Justice, May 12, 2004, availabl

www.state.gov/t/np/trty/32858.htm.

58. 1678 U.N.T.S. 221, reprinted in 27 INTERNATIONAL LEGAL MATERIALS 668 

proposed amendment will include a criminalization of the transport of WMD 

components and rules on (a presumed) consent by the flag State to interception 

there are reasonable grounds of suspicion that the vessel is engaged in such activitie

59. Rudger Wolfrum, Fighting Terrorism at Sea: Options and Limitations under I

Law, in NEGOTIATING FOR PEACE. LIBER AMICORUM TONO EITEL 649–668 (Jochen 

et al. eds., 2003); Wolff Heintschel von Heinegg, Current Legal Issues in Maritime 

Maritime Interception Operations in the Global War on Terrorism, Exclusion Zones, H

and Maritime Neutrality, 34 ISRAEL YEARBOOK ON HUMAN RIGHTS 151 (2004).

60. See the references supra note 12.

61. Bin Cheng, Air Law, in I ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 66

Bernhardt ed., 1992).

62. E.g., according to the bilateral agreements between the United States on the o

Liberia and Panama on the other side (supra note 57).

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

64. Transport of WMD even if performed for private ends will not meet the con

down in Article 101 of the LOS Convention. Moreover, there is no indication—eit

practice or in the literature—of an emerging consensus to that effect.

65. See the references supra note 2.

66. Supra note 58.

67. Robert Y. Jennings, The Caroline and McLeod Cases, 32 AMERICAN JO

INTERNATIONAL LAW 82, 91 (1938). For an appraisal of the Caroline formula, 

DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 169 (3d ed. 2001).

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

69. For the concept of interceptive self-defense, see DINSTEIN, supra note 67, at 21

70. Carl Q. Christol & Charles R. Davis, Maritime Quarantine: The Naval In

Offensive Weapons and Associated Matériel to Cuba, 1962, 57 AMERICAN JO

INTERNATIONAL LAW 525 (1963).

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

72. Friedman, supra note 12, at 5; Byers, supra note 12, at 532, 540; Schaller, supra n

Joyner, supra note 12, at 7; Harbaugh, supra note 12, at 5; Chesney, supra note12 at 

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

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

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gppp

Micheline Calmy-Rey, criticized the Security Council for gradually usurping the role 

legislator” in referring to UNSC Resolution 1373.

76. E.g., Klaus Dicke, Weltgesetzgeber Sicherheitsrat (Kommentar), in 49 VEREINTE 

163, 168 (2001).

77. In a footnote to the Resolution, the term “non-State actor” is defined as an “in

entity, not acting under the lawful authority of any State in conducting activities 

within the scope of this resolution.”

78. For an assessment of the customary character of the rules and princip

responsibility it suffices here to refer to IAN BROWNLIE, PRINCIPLES OF PUBLIC INTE

LAW 419 (6th ed. 2003); Karl Zemanek, Responsibility of States: General Princ

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 219, 221 (Rudolf Bernhardt ed., 2

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

wrongful acts.

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

1. An injured State may only take countermeasures against a State w

responsible for an internationally wrongful act in order to induce that State to 

with its obligations under part two.

2. Countermeasures are limited to the non-performance for the time b

international obligations of the State taking the measures towards the responsibl

3. Countermeasures shall, as far as possible, be taken in such a way as to per

resumption of performance of the obligations in question.

Note, however, that the restriction in paragraph 1 is not part of customary intern

because States have continuously claimed a right to resort to counter-measures 

reestablish the legal status quo ante in cases in which the obliged State has been eith

or unable to comply with its international obligations.

81. For a similar argument in the context of counter-terrorism, see Heintschel vo

supra note 59.

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

83. See supra note 59.

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V

Limits on the Use of Force in Maritim

Operations in Support of WMD

Counter-Proliferation Initiatives

Craig H. Allen*

We could have other missile crises in the future—different kinds, no doubt, 

different circumstances. But if we are to be successful then, if we are going to p

own national security, we will need friends, we will need supporters, we will 

tries that believe and respect us and will follow our leadership.

Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Mi

Introduction

On May 31, 2003, President Bush invited a number of like-minde

join in a Proliferation Security Initiative (PSI) to counter the pr

of weapons of mass destruction (WMD) and prevent them from fallin

hands of rogue regimes and terrorist organizations.2 In the following 

United States, together with eight NATO allies3 and Australia, Japan, a

pore, participated in a series of PSI planning sessions, experts’ meetings

and operations to develop and refine the initiative. On September 4, 200

participating States adopted a Statement of Interdiction Principles (repr

* Judson Falknor Professor of Law, University of Washington School of L

Washington. After the paper was submitted, the Chairman of the Joint Chiefs of S

new instruction which superseded CJCS Inst. 3121.01A on which this article was ba

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Appendix I), in which they agreed to 

take specific actions in support o

tion efforts regarding cargoes of WMD, their delivery systems, or relat

als.”4 The “specific actions” are to include vessel boardings at sea and i

such boardings are to be conducted in compliance with applicable int

and national laws.5 Soon after the PSI was released, three open registr

Panama, Liberia and the Marshall Islands, which collectively represent 

half of the world’s shipping capacity by tonnage, entered into bilateral a

with the United States that will allow the United States to conduct PSI bo

vessels flagged in those States while in international waters.6 Cyprus, C

Belize soon entered into similar agreements. By the time of the first a

meeting of the PSI States in Krakow, Poland on May 31 2004, sixty-two 

signaled their support for the PSI and the Russian Federation had joined 

nal group of core participants.7 The 9/11 Commission embraced the PS

ommended that it be extended.8 In addition, the United Nations Securi

legitimated the core principles of the PSI by unanimously passing Resolu

(reproduced in Appendix II), calling on all States to criminalize pos

WMD by, or the transfer or transport of WMD to, non-State actors.9 T

tion stopped short of conferring on non-flag-States any new interdiction 

over vessels engaged in transporting WMD and delivery systems on the h

A proposal to add WMD interdiction authority to the 1988 Conventi

Suppression of Unlawful Acts Against the Safety of Maritime Navigatio

is presently under consideration.12

As the PSI matures, maritime boardings under the Statement of In

Principles may present a number of practical and legal issues. The first, 

tant but non-legal issue, is the safety of the boarding teams, who will b

not only to the risks associated with boarding potentially noncomplian

sea (rather than in the comparative safety of a port), but might now al

risk of exposure to radiological, biological or chemical materials and exp

vices. The second issue, which is related to the first, concerns the ad

boarding platforms, equipment and trained personnel to conduct the 

detection, surveillance, screening, boarding, searching and seizure of v

goes and crews, while also carrying out the multitudinous other missio

imposed on the armed forces.13 The third issue that could be presente

cases concerns the scope of a State’s authority to board and search foreign 

its ports and coastal waters, or to permit other States to conduct boardin

coastal waters, and the authority of States other than the flag State to int

terrogate, board and seize vessels on the high seas, with or without con

flag State or master of the vessel or the authority of a UN Security Coun

tion. The fourth area requiring examination will arise in cases where ill

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or missile delivery materials are discovered during a boarding, and co

handling and disposition of those materials and the possible actions to 

against the vessel and the owner and crew found to be involved in tra

WMD. The final issue—and the subject of this paper—concerns the lega

the use of force in carrying out WMD interception operations. Analysis 

these questions has taken on added urgency in light of the fact that some 

of the 1982 UN Convention on the Law of the Sea14 have urged the US Sen

consent to accession to the treaty, in part because in the critics’ opinion 

of the treaty would undermine the PSI.15

Depending on the vessel’s location, flag and type, the threat level pres

the goals of the mission, maritime detection, interception and enforcem

tions in support of the PSI may involve a variety of Department of Defen

and/or Department of Homeland Security (DHS) platforms and person

measures to intercept vessels suspected of transporting WMD by DoD 

could potentially be carried out under one or more of the following fra

(1) boardings conducted pursuant to consent by the vessel’s flag State, 

State or vessel master; (2) maritime interception operations (MIO) to en

bargoes imposed under the operative terms of a resolution by the UN 

Council or similar authority;16 (3) “expanded” maritime interception o

(E-MIO);17 (4) maritime law enforcement operations (MLE);18 (5) the 

right of approach and visit;19 (6) the customary law of countermeas

help);20 (7) the right of individual or collective self-defense; or (8) the be

right of visit and search for contraband under the law of neutrality.

Vessel interceptions and boardings by naval vessels are generally carr

visit, board, search and seizure (VBSS) teams drawn from the US 

Forces.21 Boarding teams from US Navy platforms may include Nav

Corps and Coast Guard personnel. Coast Guard interception and board

may also operate from Coast Guard boats or cutters or from allied naval 

most cases, Coast Guard law enforcement detachments (LEDETs) on na

serve under the operational or tactical control of the cognizant Coast G

mand authority when conducting boardings.22 In cases not calling for law 

ment measures, however, the LEDET may operate under DoD control, 

Coast Guard’s statutory authority to provide assistance to other agencie

Experience has shown that interceptions and boardings by Navy 

Guard units occasionally require the use of force to overcome noncom

in self-defense. A number of standing and situation-specific document

gated by competent authorities establish doctrine and provide guidanc

ble in situations involving the use of force during interception and 

operations by DoD and Coast Guard units.24 At the same time, interna

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and US municipal law impose limits on the use of force. Which laws and 

apply will depend on the particular situation, though some principles ap

tually all situations. This article examines the legal limits on the use o

maritime interception and law enforcement operations. It first provides 

with an introduction to the nature of maritime interception and board

tions, before turning to an examination of the international and US auth

garding the use of force at sea. It then applies those authorities to situa

might arise in the course of WMD maritime interception operations.

Nature of Maritime Interception and Boarding Operations

WMD maritime interception operations by the United States can be trac

least as far as the 1962 quarantine proclaimed by President Kennedy and 

by the US Navy to halt the shipment of Soviet offensive missiles to Cu

doctrine notes that the term “quarantine” was later dropped from the pla

minology in favor of maritime interception operations.26 Contemporary 

interception operations by the Navy are characterized by: (1) the source 

gal authority (usually a UN Security Council resolution); (2) the princip

portionality between means and ends; (3) the principle of impartiality;2

commitment to effectiveness.28 Only the National Command A

(“NCA”) (the President or Secretary of Defense) can authorize US forc

duct MIO.29 Once the NCA approves US participation, the Chairman o

Chiefs of Staff designates the combatant commander for the relevant g

area to carry out the MIO.30 The authorization will address the level of 

may be used to carry out the MIO, the cargo or ships within the MIO pr

the geographic limits of the operation and the disposition of any carg

found to be in violation of the governing resolution. Planning such op

inevitably influenced by political constraints and resource limits.

Typically, the interception of a vessel suspected of transporting WMD 

ery systems will be based on an intelligence finding which is later 

through surveillance and reconnaissance, before moving to the “stop-an

phase of MIO.31 For example, a vessel observed loading suspicious carg

might later be tracked by satellite, aircraft, radar, surface ship, submari

bed sensors. When the vessel is encountered by an intercepting vessel or 

will be visually inspected for evidence of identity and flag. Visual su

might be followed by a radio inquiry, to determine or confirm its nam

homeport, last port, next port, cargo and passengers.32 The information 

can then be checked against available information and intelligence data

vessel’s registry might also be confirmed with the flag State (if cooperativ

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claimed next port of call might be contacted to determine whether the 

filed an advance notice of arrival and a copy of its cargo manifest. If susp

main, the vessel may be ordered to heave to and stand by for a boarding

A VBSS team33 consisting of Navy and perhaps Marine Corps and Co

LEDET personnel may be sent over by small boat or helicopter. If th

scene commander concludes the boarding will be opposed or non-co

the VBSS team may be augmented by special operations forces.35 SEAL a

Corps Maritime Special Purpose Force (MSPF) members assigned to 

assault force teams are trained to fast-rope from helicopters to the d

ship (vertical take-downs), engage and neutralize any hostile forces ab

gain control of the vessel.36 Throughout the boarding, supporting h

hover overhead, with snipers stationed to provide cover to the board

Alternatively, special operations personnel may “breach” the suspect 

small boat.37

When the suspect ship is under control, a chemical, biological and ra

(CBR) team and/or explosive ordnance disposal (EOD) team might 

aboard to sweep the vessel before the VBSS boarding begins. Once the VB

aboard, all personnel on the boarded vessel are accounted for by the VBS

team, and the sweep team conducts an initial safety inspection (ISI) to co

boarding can be conducted safely.38 The VBSS team members then ex

vessel’s registry and cargo documents. Under some circumstances, the 

may extend to a search of all man-sized spaces, and an inspection of th

rare cases, the vessel may be diverted to a port or other sheltered loca

more detailed examination.39 Diversion may be necessary to search a ve

porting containerized cargo since at-sea container inspections are at 

cult.40 If the boarding team has grounds for inspecting such cargo, the b

native is often to divert the vessel to a port. Diversion may also be ordered 

band is discovered. If evidence of a crime is discovered in the course 

boarding or search personnel with law enforcement authority (the Co

LEDET or foreign law enforcement agents) may be called on to arrest the 

and seize the vessel and cargo.

Authority for and Limits on the Use of Force in

Maritime Interceptions and Boardings

Any given approach and boarding operation on a vessel to intercept WM

livery systems could combine elements of the maritime interception and 

law enforcement doctrines. Depending on the response by the master a

the suspect vessel, such operations can also raise questions regarding the 

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the applicable rules on any use of force by the Navy, Marine Corps 

Guard members of the team.41 The authority to conduct an interce

boarding42 must be distinguished from the authority for using force in su

tions. The authority to use force in an interception, boarding, search a

may derive from (1) a State’s right under customary international la

State’s municipal law to use force as necessary to carry out law enforc

tions; (2) a UN Security Council resolution providing such authority

State’s inherent right of self-defense recognized in Article 51 of the UN 

or (4) the unit’s or individual’s right of self-defense. Depending on th

stances, the exercise of force may be governed by international law, the l

boarding State (the constitution, statutes and regulations) and any do

guidance promulgated by the service or services carrying out the oper

common denominator running through all those authorities is the ma

any action taken must be necessary to achieve a legitimate end and is r

under the circumstances. As Chief Justice John Marshall opined in a Ho

case two centuries ago, other States will oppose measures that are unr

but if a State’s enforcement measures are “reasonable and necessary to se

laws from violation, they will be submitted to.”45

US Doctrines on Use of Armed and Police Force

In addition to limits on the use of force under international law and the 

tion and statutes of the United States (discussed below), members of the 

DHS must comply with applicable directives regarding the use of force 

their command authorities.46 At the outset, a distinction must be mad

rules of engagement (ROE) and rules and policies on the use of force.4

fully explained below, ROE are generally established by appropriate na

subordinate command authorities to guide the armed forces in the use 

carrying out the national and homeland defense missions. The rules on 

force (RUF) for DoD elements and the Coast Guard Use of Force Policy 

are established by competent authorities to provide guidance on the use 

carrying out law enforcement and other civil support missions in suppor

land security that do not call for the traditional use of armed force. It is a

tant to recognize that not every use of force by a member of the arm

constitutes an application of “armed force” under the UN Charter and 

armed conflict.48 The focus of this article is on “police” force directed a

vate vessels or individuals who may be involved in transporting W

“armed” force against the territorial integrity or political independence o

The article takes the position that it is the mission, not the uniform w

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actor, that determines how the force should be classified and which doc

trols that use of force.

Rules of Engagement (ROE)

Rules of engagement are “directives that a government may establish to 

the circumstances and limitations under which its own naval, groun

forces will initiate and/or continue combat engagement with enemy forc

quate ROE appropriate to the situation are vital to mission success and 

of United States and allied assets. Even so, readiness, training and imple

deficiencies can prove devastating, as was learned in the 1983 terrorist b

the Marine barracks in Beirut, Lebanon,51 and re-learned following th

attack on USS Cole in 2000.52 Members of the armed forces are well awa

failure to obey controlling ROE is punishable as an orders violation unde

form Code of Military Justice (UCMJ).53 Additionally, a service membe

lates the applicable ROE may lose affirmative defenses to assault or 

charges under the UCMJ.54 However, the fact that official conduct may 

lated an internal agency directive does not mean the conduct was unreaso

der the Fourth Amendment or a violation of international law.55

Although much of the ROE doctrine and guidance is classified, a fe

comments can be made. The ROE applicable to a given situation is typic

from national and subordinate command authorities, and may include 

mulgated by joint or combined command authorities. The three comm

bases for ROE are national policy objectives, operational requirements a

evant law. The ROE include the Standing Rules of Engagement (SROE), 

cludes both self-defense and mission accomplishment rules, and any sup

rules of engagement for specific operations, missions or projects.56 The 

ply to military operations outside the territorial jurisdiction of the Uni

even during peacetime.57 The ROE also govern actions to be taken by 

during military homeland defense (HD) operations in the territorial juri

the United States.58 ROE do not apply to members of the armed forces w

ducting military assistance to civil authorities missions, including missio

port of civil law enforcement agencies (discussed below).59 Un

circumstances the SROE are also applicable to Coast Guard units.60

Naval units participating in multinational operations might find them

erating under limitations imposed by the UN Security Council,61 the NA

of Engagement62 or some other form of combined ROE.63 Like other 

rules for naval units participating in multinational operations will includ

accomplishment and self-defense ROE.64 The need for common ROE d

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such operations has long been recognized;

however, the challenges of d

ROE for multinational forces can be daunting.66

ROE must conform to the relevant international and national law.67 

tional law” includes applicable international human rights laws in peac

international humanitarian law during an armed conflict. In should be 

for strategic, operational and policy reasons the applicable ROE may w

frequently are, more restrictive than international or national law wou

In most cases, compliance with the ROE should constitute compliance w

plicable law. An exception to that rule of thumb might arise in operation

by ROE prepared at a multinational level. Such combined ROE must 

comply with all relevant international law; however, the national laws of 

participant might be more restrictive. Potentially, a service member’s act

be found to have been in compliance with the combined ROE, but no

member’s more restrictive national laws. Such disparities are best avoide

careful ROE drafting and implementation training.68

The SROE make it clear that they do not limit a commander’s inhere

ity and obligation69 to use all necessary means available and to take appro

tion in self-defense of the commander’s unit and other US forces in the 

Self-defense is limited by the principles of necessity and proportionality.

rent ROE provisions on self-defense direct that:

When the use of force in self-defense is necessary, the nature, duration, and 

the engagement should not exceed that which is required to decisively cou

hostile act or demonstrated hostile intent and to ensure the continued protecti

forces or other protected personnel or property.72

Program-specific doctrine may supplement or amplify the rules set 

SROE.73 For example, to address the need for naval security personne

mine whether approaching vessels possess a hostile intent in the post-

ronment, the Secretary of Defense and Chief of Naval Operat

promulgated directives authorizing the use of warning shots against such 

DoD Rules for the Use of Force (RUF)

In addition to its principal national security mission, the Department o

has long provided support to civilian law enforcement agencies and to civ

ities.75 However, in part because the Posse Comitatus Act of 1879 (PCA) 

with some exceptions, the direct use of the armed forces (other than 

Guard) to enforce US laws,76 the use of force by members of the arm

within the territory of the United States is restricted.

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Under the Joint Doctrine for Homeland Security (under developm

time this was written), DoD identifies two homeland security (HS) mis

homeland defense (HD), with air, land and maritime components, and 

port (CS).77 CS includes military assistance to civil authorities (MACA

further broken down into military assistance for civil disturbances (M

military support to civil authorities (MSCA) and military support to ci

forcement agencies (MSCLEA).

The SROE recognize that not all situations involving the use of force 

conflicts under international law.78 DoD has now promulgated Rules for 

Force (RUF) that address selected DoD mission areas not calling for the t

use of armed force. RUF refer to directives issued to guide US forces on 

force during CS operations in the territorial jurisdiction of the United 

support of the HS mission area. The use of force by US military forces de

CS missions within the territorial jurisdiction of the United States is not 

by ROE. DoD forces deployed on CS missions are instead bound to adh

RUF.79 RUF directives applicable in MACA operations may take the for

sion execute orders, deployment orders, memoranda of agreement, o

Those RUF may be established by the deployment order or memor

agreement, or by the Chairman of the Joint Chiefs of Staff instruction on 

on the Use of Force by DoD Personnel Providing Support to Law En

Agencies Conducting Counterdrug Operations in the United States.”81 R

strictive, detailed and sensitive to political concerns, in recognition of th

the CS mission area is characterized by restraints on weapons, tactics an

force. RUF are subject to change during operations. As a result, DoD pol

military commanders to consult with their judge advocates to draft wr

guidance and design and implement an appropriate RUF training progr

sure military forces under their command understand the RUF procedu

USCG Use of Force Policy (CGUFP)

Congress has long recognized that effective maritime enforcement of 

treaties requires that the Coast Guard be authorized to use force when n

carry out its enforcement of laws and treaties mission. Two federal st

pressly address the use of force by the Coast Guard. The first, 14 U.S

which was amended in 2004, addresses the use of force to stop a vessel “li

zure or examination” by the Coast Guard.83 The second, 14 U.S.C. § 89, 

the general law enforcement authority of Coast Guard boarding office

thorizes such officers to “use all necessary force to compel compliance.” 

ing the authority conferred by either statute, Coast Guard personnel an

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situations, supporting DoD platforms and personnel, must comply with 

Guard’s Use of Force Policy (CGUFP).

The CGUFP is set out in the agency’s Maritime Law Enforcemen

which is designated “for official use only.”84 The CGUFP must be adhere

of the following while conducting Coast Guard missions, exercising the r

dividual self-defense, and in situations where the SROE do not apply: (1

Guard personnel (military, civilian and contract security), (2) all Coast G

sels and Coast Guard aircraft specifically authorized by the Command

Coast Guard to use force, (3) all non–Coast Guard personnel onboar

Guard unit, (4) all non–Coast Guard units or personnel operating un

Guard tactical control (TACON) or operational control (OPCON).85 Co

personnel follow the CGUFP even when the Coast Guard is not the le

agency.86 Coast Guard personnel do not, under any circumstances, app

use of force policies.87 US Navy units operating under Coast Guard O

TACON conducting law enforcement support operations follow the C

employing warning shots and disabling fire. Under those circumstances, 

sions of 14 U.S.C. § 637 (discussed below) extend to the naval unit.88 N

follow the SROE and/or mission specific ROE or RUF for all other purp

The CGUFP includes provisions for the use of force against noncom

sels and against individuals. The provisions applicable to the use of for

individuals take the form of a “use of force continuum” that distinguishe

non-deadly force and deadly force. Deadly force is defined as any force th

to cause death or serious physical injury.90 Only that force reasonably 

under the circumstances may be used. Force shall not be used where as

ties can be discharged without the use of force. However, there is no duty 

to avoid law enforcement situations justifying the use of force, includ

force. Like the SROE, the CGUFP emphasizes that covered personnel al

the inherent right to use all available means necessary to defend themse

other from physical harm.91

The CGUFP provisions applicable to the use of force against non

vessels92 address both the conditions for, and modalities of, using forc

vessel in a law enforcement situation. The provisions do not apply to 

vessel use of force in self-defense.93 In applying the CGUFP it is importan

nize that US practice differs in some respects from the practices of othe

Some States categorically reject the use of force to stop noncompliant 

minor offenses or for offenses not involving public safety, such as fishe

tions. Other States apply the twin principles of necessity and proportion

termining whether the use of force is appropriate to overcome a ves

compliance. It is also important to recognize that in the United States 

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force, other than in self

defense, generally requires casespecific appro

operational or tactical commander, who might well decline to approve 

force even in situations where it would be permitted under the CGUFP

Under the CGUFP and 14 U.S.C. § 637, warning shots are considered 

to a vessel to stop, not a use of force.94 Warning shots are only used after 

naling methods have been tried without success. Warning shots are 

against aircraft or under circumstances where their use might endanger a

or property. Generally, warning shots are not used unless the enforcem

have the capability to deliver disabling fire if the warning shots are ign

abling fire is the firing of ordnance at a vessel with the intent to disable it, 

imum injury to personnel or damage to the vessel. Under the CGUFP

fire is to be discontinued when the vessel stops, is disabled, enters the ter

of another State, or the situation changes in a manner that introduces s

risk to those aboard the noncompliant vessel.95

14 U.S.C. § 637 (reproduced, with 2004 amendments, in Append

pressly authorizes disabling fire under limited circumstances and provi

indemnity of vessel commanding officers called on to use disabling f

abling fire may be used against vessels subject to “examination” or “seiz

ing the so-called “Rum War” of the Prohibition era, the Coast Guard use

shots and disabling fire on numerous occasions to interdict vessels atte

smuggle alcohol into the United States.97 The need for forcible interdic

sures arose again in the late 1970s, as Coast Guard and Navy units rang

from 82-foot patrol boats to 530-foot cruisers responded to a surge in 

drug smuggling operations.98 Air and surface assets trained and equipp

signment to the Coast Guard’s Operation New Frontier99 employ relati

means of stopping noncompliant vessels. The operation, which emplo

deployable, specially equipped high-speed over-the-horizon (OTH) 

Coast Guard Helicopter Interdiction Tactical Squadron (HITRON) 

(“Sting Ray”) helicopters, establishes a coordinated method to chase do

necessary, forcibly disable “go-fast” vessels engaged in unlawful activity

US Constitutional and Statutory Limits on the Use of Force

Enforcement actions within the United States, including its territor

those involving US vessels beyond the territorial sea, or involving US na

foreign vessels beyond the territorial sea, are constrained by the US 

tion.100 When the Constitution applies, it is clear that Congress cannot 

(e.g., 14 U.S.C. § 637 or 14 U.S.C. § 89) authorize what the Constitution 

Nevertheless, the US Supreme Court has recognized that application of t

tutional standards to maritime searches and seizures authorized by 

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might vary from applications to similar actions carried out under the diff

ditions prevailing on land.102 The Fourth Amendment to the Constitu

vides that the right of the people to be secure in their persons, houses, p

effects against unreasonable searches and seizures shall not be violated a

warrant authorizing such a search or seizure shall be issued in the absenc

able cause.103 The Fifth Amendment further provides that the governmen

deprive any person of their life, liberty or property without due proces

Both amendments potentially play a role in maritime interdiction an

ment actions.105 Constitutional violations may lead to suppression of 

dismissal of charges and even suits for damages against the officers respo

the violations. To ensure compliance with the constitutional limits, the 

Court has repeatedly emphasized the duty of law enforcement agencies 

their officers with use of force training.106

The Fourth Amendment seizure provision may be triggered by the s

person, a vessel or property or papers on the vessel. Plainly, the Fourt

ment applies to the actual arrest of a person by a law enforcement officer

must be based on probable cause and it must be conducted in a reasonabl

“Excessive” force is by definition unreasonable. Allegations of excessive 

ing a detention or arrest typically arise in suits for damages against an en

officer,107 or the officer’s employing agency. On occasion, a defendan

with assaulting a law enforcement officer will assert in defense an argu

excessive force by the enforcement officer justified self-defense measu

sponse.108 Where a defendant was subjected to “torture, brutality, and si

rageous conduct” rising to the level that violates due process the court m

dismiss the charges against the defendant.109

Actions by law enforcement officers that fall short of an actual arrest m

theless rise to the level of a “seizure” implicating the Fourth Amendment

ample, the Supreme Court has held that an “investigatory stop,” althou

arrest, is a seizure subject to the Fourth Amendment’s reasonablenes

ment. However, such stops may be justified by a “reasonable suspicio

short of the probable cause that would be needed for an arrest.111 An o

ducting a so-called “Terry stop” may forcibly detain the individual if ne

The Supreme Court has made it clear, however, that any use of force by th

ment to effect a seizure must be reasonable under the Fourth Amendme

result, the reasonableness test is the standard by which a claim of excessi

any seizure (including mere investigatory stops) will be measured.114 I

the contours of the reasonableness test the Supreme Court recognized: “p

cers are often forced to make split-second judgments—in circumstanc

tense, uncertain, and rapidly evolving—about the amount of force that is 

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in a particular situation.

Accordingly, the Court held, the reasonable

officer’s belief as to the appropriate level of force should be judged by tha

perspective.116 The Court has articulated a three-part balancing test tha

the severity of the crime at issue, whether the suspect posed an immediat

others and whether the suspect was actively resisting arrest or attemptin

arrest by flight.117 If an officer reasonably, but mistakenly, believes that a 

likely to fight back, the officer is justified in using more force than migh

needed.118

The Supreme Court has held that the reasonableness requirement fo

under the Fourth Amendment does not apply to actions by US law en

personnel acting outside US territory, when the action is taken again

national of the United States. 119 Moreover, the reasonableness of foreig

involving US nationals or vessels is judged by reference to the law of 

where it was conducted.120 Some writers argue that the Fourth Amendm

still apply extraterritorially to a case alleging excessive force in the seizur

national.121 Extraterritorial conduct by law enforcement officers amo

“deliberate and unnecessary lawlessness” has on one occasion led the co

miss the charges against the defendant.122 Alternatively (or additionally), 

duct may be analyzed under the applicable international human r

discussed below and the principles of State responsibility.

International Law Limits on the Use of Force

Earlier, this article highlighted the distinction between the two common 

the term “force.” It was suggested that when the UN Charter speaks of 

Articles 2(4) and 41,123 it is referring to military force (aggressive and def

dividual and collective) by one State or its proxies against another State

is also used, in a very different context, to refer to the means used by a

government vessels and their agents to compel individuals to comply wit

ment actions.124 Such “police force” is not directed against a State and 

constitute “armed force,” nor does it violate the LOS Convention prov

serving the seas for “peaceful purposes”125 and requiring States to refrai

use of force in any manner inconsistent with the UN Charter.126 Noneth

possible that some acts conducted in the course of a law enforcement acti

a vessel might be construed as an act of aggression;127 perhaps even a ca

former times.128 It is also important to bear in mind that international la

stricter limits on the use of force against aircraft than against vessels. U

against civil aircraft while in flight would likely violate the Montreal C

protocol and federal law.129

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The exercise of law enforcement authority outside the territorial lim

State is limited under international law.130 Under international law, the u

in actions not amounting to armed conflict may be authorized or l

treaty,131 such as a bilateral boarding agreement132 or the 2005 Protocol t

Convention,133 customary international law and general principles of la

most part, international law is directly implicated only in incidents invo

duct directed against the nationals, vessels or aircraft of another State.1

tional human rights law, including the International Covenant on 

Political Rights (ICCPR),135 may apply even to conduct by a State directe

its own nationals.136 Article 7 of the ICCPR, in language closely para

Eighth Amendment of the US Constitution, prohibits torture and cruel

or degrading treatment or punishment. Article 9, echoing the Fifth Am

provides that no one shall be subjected to “arbitrary” arrest or detention

the State deprive them of their liberty except on such grounds and in a

with such procedures as are established by law.

When an interception and boarding is carried out under authority of 

eral or bilateral agreement, the agreement itself may authorize or limit 

force. Such is the case with the PSI boarding agreements entered into by t

States.137 Similarly, the draft SUA Protocol includes an express provision 

of force during any action authorized within its framework.138 Any u

other than in self-defense is therefore restricted to measures authoriz

treaty, as modified by any later case-specific verbal agreements.139 The in

conventional and customary law on the use of force in maritime law en

operations is demonstrated by three leading cases. The first case, conc

I’m Alone, arose under a bilateral boarding treaty, but also briefly examin

of force under customary law.

The I’m Alone (1929)

The starting point for examining the international law limits on the u

against a foreign vessel by maritime law enforcement authorities is the a

commission decision in the dispute arising out of the sinking of the auxil

ered schooner I’m Alone on March 22, 1929.140 The dispute arose after 

Guard cutter USCGC Wolcott intercepted the British flag (Canadian r

vessel I’m Alone on March 20, 1929, anchored between 8 and 15 miles of

of Louisiana (the distance offshore was disputed by the parties). A 1924 

tween the United States and Great Britain authorized the United State

British flag vessels suspected of liquor smuggling while in close proximity 

coast. 141 Both governments agreed that the I’m Alone was “unquestiona

torious smuggling vessel, which transported liquor from Belize and the 

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for delivery to contact boats off the US coast, while staying just outside th

torial sea.142 The contact boats then ran the liquor ashore, in violation 

tional Prohibition Act. When the cutter Wolcott approached, the mas

Alone, asserting the US Coast Guard had no jurisdiction over his vesse

anchor and began to flee southwest toward Mexico. The Wolcott fired 

vessel’s bow and into the rigging, but the I’m Alone continued to flee. Ov

two days, the Wolcott followed the vessel in hot pursuit, eventually enlist

sistance of two other Coast Guard cutters, the Dexter and the Hamilton. 

22, 1929, after the chase had taken the vessels more than 200 miles fro

coast, the cutter Dexter closed in on the I’m Alone and once again ordered 

to heave to for boarding. After the master refused, the Dexter fired acro

sel’s bow then into the sails and rigging. The Dexter then ceased fire and 

ordered the vessel to stop or it would be sunk. According to the Coast G

master of the I’m Alone then brandished a pistol and told the Dexter tha

forcibly resist any attempt to board his vessel. The Dexter then resume

time into the hull of the I’m Alone, sinking the vessel about thirty min

The master and crew of the I’m Alonejumped into the water as the vessel 

Coast Guard recovered all but one of the crewmen. That crewman, a F

tional, drowned before he could be recovered.

The arbitration panel appointed by the United States and Canada 

that, assuming the United States had jurisdiction over the I’m Alone unde

treaty; the Coast Guard was justified in using “necessary and reasonabl

the purpose of effecting the objects of boarding, searching, seizing and 

into port the suspected vessel; and if sinking should occur incidentally, as 

the exercise of necessary and reasonable force for such purpose, the pursu

might be entirely blameless.”143 The commissioners went on to conclud

cutter’s act of intentionally sinking the I’m Alone was not justified under 

1924 treaty or any other principle of international law.144 Three observat

order. First, the commission resolved the case under what they unders

the prevailing international law standard. Second, the “reasonable and 

force” standard articulated by the commissioners applied to all phases o

ception, from boarding through seizure.145 Finally, the commission d

tempt to flesh out its “reasonable and necessary” standard, other tha

distinction between a sinking that was incidental and one that was inten

did it explain whether the nature of the suspected offense (suspicion 

smuggling) was a factor to be considered in weighing the necessity or pr

ality of the force used. It was sufficient for the commissioners to determi

Coast Guard’s decision to intentionally sink the I’m Alone under the circ

exceeded that standard.

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The Red Crusader (1961)

Another commonly cited use of force case arose out of a 1961 enforcem

against the British fishing vessel Red Crusader by the Danish fri

Ebbesen.

146 On May 21, 1961, the trawler Red Crusader and several oth

vessels were sighted near the Danish Faeroe Islands. The parties disput

Crusader’s exact position and whether it was engaged in fishing. Upon si

Red Crusader, the Niels Ebbesen signaled it to stop by signal searchlight 

When those signals went unheeded, the Dane fired a blank 40 mm wa

across the Red Crusader’s bow. The Red Crusader then stopped, and 

Ebbesen sent over a boarding party. The master of Red Crusader was no

his vessel was under arrest and that he was to follow Niels Ebbesen into po

man custody crew was placed aboard Red Crusader. After initially comp

the Danish frigate’s instructions, the master of the Red Crusader changed 

locked up the custody crew and attempted to flee with its embarrassed 

When the Red Crusader’s attempted flight became apparent to the com

officer of the Niels Ebbesen, the frigate fired two 127 mm warning shots (

and one to starboard), accompanied almost immediately by a sound sign

Code “K”) to stop. Two minutes later, it fired warning shots ahead of and 

the Red Crusader, again closely followed by a whistle signal to stop. Fiftee

later, while Red Crusader continued to flee, the Niels Ebbesen fired solid 

plosive) shots at the vessel’s scanner, mast, masthead light, hull and stem

terspersing further warnings by loudhailer to stop. The vessel was dam

not sunk, and no one was injured. Britain protested the Danish action. 

mission of Enquiry later appointed by the two governments to investigat

ter determined that:

In opening fire at 03.22 hours up to 03.53 hours, the Commanding Officer of 

Ebbesen exceeded legitimate use of armed force on two counts: (a) firing 

warning of solid gun-shot; (b) creating danger to human life on board 

Crusader without proved necessity, by the effective firing at the Red Crusa

03.40.

The escape of the Red Crusader in flagrant violation of the order received and 

the seclusion on board the trawler of an officer and rating of Niels Ebbesen, and 

Wood’s refusal to stop may explain some resentment on the part of Captain 

Those circumstances, however, cannot justify such violent action.

The Commission is of the opinion that other means should have been att

which, if duly persisted in, might have finally persuaded Skipper Wood to s

revert to the normal procedure which he himself had previously followed.147

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The commission did not specify what 

other,nondeadly means would 

appropriate in this fisheries enforcement action. Nor did it categorical

the use of force that might create a danger to human life in cases of “pro

sity.”148

Interestingly, the commission was also called upon to examine the pr

the conduct of the British naval vessel HMS Troubridge, which interve

confrontation. The Danish government initially protested that Troubrid

terfered with legitimate law enforcement measures by Denmark when T

interposed herself between the other two vessels. Although Denmark 

parts of the question from the commission, the commission neverthel

its opinion that Troubridge “made every effort to avoid any recourse to vi

tween Niels Ebbesen and Red Crusader.”149 The commission went on to 

“[s]uch an attitude and conduct were impeccable.”150 The two governm

agreed to mutually waive all claims and charges arising out of the incide

The M/V Saiga (1997)

The most recent decision to examine the international law limits on 

force in a maritime law enforcement boarding was issued in 1999 by th

tional Tribunal for the Law of the Sea (ITLOS) in the “M/V Saiga” (No. 

The suit—the first case brought before the new ITLOS—was initiated 

State, Saint Vincent and the Grenadines (“St. Vincent”), against the co

the Republic of Guinea. The dispute arose out the forcible arrest by Gu

St. Vincent flag vessel Saiga. Saiga was a coastal tanker that refueled fish

at sea. On the day before the incident Saiga had delivered gas oil to th

vessels in waters 22 miles offshore from Guinea. Saiga then moved to 

just outside the Guinean exclusive economic zone to await the arrival 

more vessels. At about 0800 on October 28, 1997, Saiga was, in the wo

Tribunal, “attacked” by Guinean patrol boat P35 for an alleged violati

toms laws. Armed officers from P35 then boarded the Saiga, seized the 

arrested the master and crew, firing their weapons at various times in th

Saiga was taken to Conakry where the master was detained and the crew

travel documents were confiscated. Two crewmen who were injured 

during the boarding were later allowed to travel to Dakar for medical tr

The Tribunal’s first ruling in the matter concerned St. Vincent’s appl

prompt release of the Saiga and its crew upon the posting of reasonable s

The second decision concerned the merits and addressed a number of 

cluding the use of force by the Guinean enforcement vessel. St. Vincent a

Guinea’s use of force in stopping and boarding the vessel was excessive a

sonable.154 St. Vincent pointed out that the Saiga was an unarmed tanke

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almost fully laden with gas oil. The vessel was riding low in the water (and 

easily boarded) and was capable of a speed of no more than ten knots. Th

fered no resistance. St. Vincent also called the Tribunal’s attention to th

P35 fired live ammunition, using solid shots from large-caliber autom

ons. In response, Guinea asserted that the P35 crew’s actions were neith

sonable nor unnecessary because the Saiga refused all visual, auditory 

signals to stop. In its ruling, the Tribunal explained that:

Although the Convention does not contain express provisions on the use of for

arrest of ships, international law, which is applicable by virtue of article 29

[LOS] Convention, requires that the use of force must be avoided as far as poss

where force is unavoidable, it must not go beyond what is reasonable and nec

the circumstances. Considerations of humanity must apply in the law of the se

they do in other areas of international law.155

The Tribunal concluded that the Guinean patrol vessel fired live amm

the Saiga without first issuing any of the signals and warnings required b

tional law and practice. Once aboard the Saiga, Guinean enforcement 

fired their weapons indiscriminately, despite the fact that the crew of th

fered no resistance and did not threaten the boarding team. In the proc

the Saiga crewmembers were seriously injured and vital equipment in t

radio room and engine room was damaged. The tribunal ordered the go

of Guinea to make reparations to the vessel’s flag State. It relied in part 

Alone and Red Crusader cases as the basis for its ruling and held that Guin

force before and after the boarding was excessive and endangered huma

In ruling against Guinea, the Tribunal also cited the enforcement pro

the 1995 Straddling Fish Stocks Agreement,157which was not in effect at t

the decision, and in any event would not have been controlling in this di

ticle 21 of the Straddling Fish Stocks Agreement provides a mechanism 

other than the flag State to exercise fisheries enforcement authority ov

vessels on the high seas. Article 22 calls on parties conducting enforcem

sures under Article 21 to ensure that their duly authorized fisheries 

“avoid the use of force except when and to the degree necessary to ensure 

of the inspectors and where the inspectors are obstructed in the executi

duties.”158 The Tribunal concluded that Article 22 “reaffirmed” the “ba

ple concerning the use of force in the arrest of a ship at sea.”159 Because 

quoted Article 22 provision was later incorporated into the bilateral WM

ing agreements with Liberia and the Marshall Islands (discussed below), 

nal’s construction of Article 22 could prove relevant in construing t

boarding agreements.

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UN Guidance Documents

Dire warnings on the continued use of deadly force in maritime interd

enforcement actions demonstrate a need for further development and cl

on the international limits on such actions.160 It is clear that customary la

its firing into a vessel without warning. Additionally, using gunfire to int

sink a fleeing vessel suspected of smuggling illegal liquor, at least witho

tempting to disable it, violates the established rule that force must be nec

reasonable. Such gunfire would almost certainly pose a threat to the liv

aboard.161 But the full contours of the legal limits on the use of police f

remain unclear.162 In contrast to US law, international law has so far fai

ognize explicitly that the level of force that is reasonable and appropriate 

circumstances will vary according to the nature of the violation and the 

ternative enforcement approaches will have on the legal regime’s effect

Force levels appropriate in interdicting a vessel engaged in narcotics 

might well be inappropriate to one suspected of violating fisheries laws i

State’s EEZ.164 And the community interest in interdicting a WMD ship

der circumstances that threaten international peace and security could ju

levels that would be deemed excessive in response to a minor pollution 

To be accurate, any contemporary statement of customary law must als

for a significant amount of State practice that is not easily reconciled with 

statements made by the ITLOS in the M/V Saiga case. Finally, maritime u

norms should be reexamined periodically in light of the progressive dev

in the law of State responsibility.

In their text on the Law of the Sea, Professors Churchill and Lowe tak

tion that international law, as articulated by the arbitral tribunal in the 

Case, permits States to use only the “minimum force” necessary to comp

ance.165 That position is generally consistent with the Basic Principles on 

Force and Firearms by Law Enforcement Officials adopted by th

Nations166 for enforcement operations ashore. Drawing on Article 3 

Code of Conduct for Law Enforcement Officials,167 the Basic Principles 

“law enforcement officials may use force only when strictly necessary and 

tent required for the performance of their duty.” It generally argues agai

of firearms and asserts:

Governments and law enforcement agencies should develop a range of means 

as possible and equip law enforcement officials with various types of weap

ammunition that would allow for a differentiated use of force and firearm

would include the development of non-lethal incapacitating weapons fo

appropriate situations, with a view to increasingly restraining the application o

capable of causing death or injury to persons. For the same purpose, it should 

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p

qppq

such as shields, helmets, bullet-proof vests and bullet-proof means of transpo

in order to decrease the need to use weapons of any kind.168

The commentary accompanying the Code of Conduct “emphasizes that 

force by law enforcement officials should be exceptional.” Although the B

ciples are not binding in themselves, an argument can be made that wh

Security Council authorizes enforcement measures under Article 41, wit

viso that such measures shall be carried out “in conformity with internat

dards,” the applicable standards might be construed to include the Basic 

and Code of Conduct documents if the measures taken are in the nature 

forcement actions.

Use of Force in Maritime PSI Interception Operations

The law applicable to the use of force in maritime operations to interc

and their delivery systems will vary according to the legal basis for the a

limits on the use of force to interdict the shipment of an operational WM

circumstances amounting to an imminent act of “armed aggression” 

meaning of Article 51 of the UN Charter, or the belligerent’s right of b

visit and search under the laws of armed conflict and neutrality, will d

those for enforcing a UN Security Council embargo, exercising a peacetim

visit, conducting maritime law enforcement operations with respect t

within the enforcing State’s jurisdiction, or while acting with the consent 

State, coastal State or vessel master. The use of force without legal justific

a manner that is unreasonable may lead to State responsibility under int

law or liability under the State’s municipal laws.169 And, of course, any 

peacetime to assert jurisdiction or control over a warship or governme

vessel used only on government non-commercial service would constit

ous breach of international law.170

The starting point in any examination of the use of force by US Mariti

during MIO and E-MIO operations is the applicable ROE.171 Howeve

most ROE doctrine is classified, this analysis will focus on the relevan

tional and US laws and to some extent the Navy MIO Doctrine and CG

of which are unclassified. The authority to use force other than in self

derivative. Force may only be legitimately employed under circumstan

the interdicting vessel (or aircraft) has the lawful authority to compel 

submit to its jurisdiction or control. If the vessel or aircraft has jurisdict

force applicable laws or a right to exercise some measure of control over 

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in an exercise of the right of approach and visit, the vessel or aircraft al

right to use reasonable force if necessary to compel compliance. For e

warship justified in exercising a right of visit (an “examination” under 1

637) has the correlative right to use the necessary and reasonable force 

compliance.172

If the WMD interception operation is carried out pursuant to a resolu

Security Council, the measures available for enforcement derive from t

tion itself and any other applicable basis for asserting jurisdiction an

along with the relevant mission accomplishment ROE. It is not uncomm

ever, for Security Council resolutions to omit specific provisions on the u

to enforce them. In construing and implementing the enforcement prov

Security Council resolution, it may be helpful to refer to the provisions 

enna Convention on the Law of Treaties (VCLT) for guidance, even th

are not directly applicable to Security Council resolutions.173 Article 

VCLT instructs that a treaty shall be interpreted in good faith in accord

the ordinary meaning to be given to its terms in their context and in ligh

ject and purpose. The ordinary meaning of the terms used in a Chapter V

tion by the Security Council may in some cases be determined by r

earlier resolutions by the Council,174 analogous treaties, and any stat

States regarding their understanding of those terms. It should also be 

mind that the primary object and purpose of any resolution issued unde

VII is to maintain or restore international peace and security.175 Accord

interpretation of the resolution should serve those ends. All members 

have an obligation to “accept and carry out” the decisions of the Counci

dance with the Charter, giving such resolutions universal force.176 Articl

VCLT permits recourse to “supplementary” means of interpretation an

cumstances of the treaty’s conclusion to confirm the meaning determin

plying Article 31 or to determine the meaning if application of Article 31 

meaning ambiguous or obscure or leads to a result which is manifestly 

unreasonable. In some cases, an Article 32 approach to interpreting r

might justify resort to the record of any debate within the Security Coun

ing the content and meaning of the resolution. In cases where the Cou

cated in the resolution that it remains seized of the matter, recourse may 

made to the Council for clarification or supplementary guidance.

In consensual boardings the use of force other than in self-defense m

ally be authorized by the consenting State. Operations conducted under 

of a bilateral boarding agreement with either the flag State or a coast

whose waters the vessel is located must comply with any limitations impo

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agreement.

The boarding agreements with Liberia and the Marshall 

clude the following provisions on the use of force:

Article 9

Use of Force

1. All uses of force pursuant to this Agreement shall be in strict accordance 

applicable laws and policies of the Party conducting the boarding and ap

international law.

2. Each Party shall avoid the use of force except when and to the degree nec

ensure the safety of Security Force Officials and vessels or where Securi

Officials are obstructed in the execution of their duties.

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

4. Boarding and search teams and Security Force vessels have the inherent 

use all available means to apply that force reasonably necessary to defend the

or others from physical harm.

5. Whenever any vessel subject to boarding under this Agreement does not 

being ordered to do so, the Security Force vessel should give an auditory o

signal to the suspect vessel to stop, using internationally recognized signa

suspect vessel does not stop upon being signaled, Security Force vessels m

other appropriate actions to stop the suspect vessel.178

As noted earlier, paragraph 2 of this article mirrors the use of force provi

Straddling Fish Stocks Agreement, which the International Tribunal for 

the Sea concluded “reaffirmed” the “basic principle on the use of force in 

of a ship at sea.”179 However, one important feature distinguishes board

the WMD boarding agreements with Liberia and the Marshall Island f

conducted under the Straddling Fish Stocks Agreement. The WMD 

agreements expressly provide that the “authorization to board, search a

includes the authority to use force in accordance with Article 9 of t

ment.”180 No such authority is included in the Straddling Fish Stocks A

Article 9 of the Liberia and Marshall Islands agreements applies by its o

only to operations carried out under authority of the agreement. Article 

control in boardings carried out under an alternative basis of authority

right of approach and visit, or boardings conducted while the vessel is 

waters over which a coastal State has jurisdiction.181

The WMD boarding agreement with Panama takes the form of an am

to an existing arrangement providing for cooperation in counter-narco

tion and interdiction. The Panama agreement differs in several respects fr

beria and Marshall Islands agreements. Like parallel provisions in the a

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with Liberia and the Marshall Islands, Article X of the agreement with Pa

vides that the “authorization to board, search and detain includes the au

use force.”182 However, Article XVII of the Panama agreement, which d

limits on the use of force, differs in several respects. Article XVII draws on 

common to bilateral counter-narcotics cooperative agreements (rathe

Straddling Fish Stocks Agreement), and adopts the prevailing internation

tional law standard:

Article XVII

1. All uses of force by a Party pursuant to this Supplementary Arrangement 

in strict accordance with applicable laws and policies of that Party and sh

cases be the minimum reasonably necessary under the circumstances, exc

neither Party shall use force against civil aircraft in flight.

2. Nothing in this Supplementary Arrangement shall impair the exercis

inherent right of self-defense by law enforcement or other officials of the Pa

Article XVII does not include the paragraph common to Article 22 of 

dling Fish Stocks Agreement and Article 9 of the Liberia and Marsh

WMD boarding agreements. It is also noteworthy that the agreements t

States concluded with Liberia and the Marshall Islands expressly include 

for boardings to be conducted by the US Navy, while the Panama WMD 

agreement contemplates that, except in emergencies, boardings will be c

only by “law enforcement” officials.184

Non-Forcible Measures to Stop and Board

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

As mentioned earlier, when a PSI interception and boarding is underta

authority of a Security Council resolution, questions regarding the us

must begin with the authorizing resolution (see discussion above). The 

will serve as the foundation for the National Command Authorities’ MIO 

zation and the vessels’ operational tasking directives and ROE. Those d

should provide clear directions on the use of warning shots and disablin

perhaps vertical take-down procedures if such a capability exists.186 All 

ance must conform to the relevant principles of international and natio

It is well established that under international law force may be used 

necessary. The necessity for using force can only be established by dem

that lesser means were attempted and failed to produce the needed co

or that those lesser means would have been impossible or futile under th

stances. The sequence of measures short of actual force must begi

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identification of the enforcing vessel and its intentions.

In the M/V S

the International Tribunal for the Law of the Sea identified at least tw

enforcing vessel must take before using force against a noncomplian

First, the vessel must be given an auditory or visual signal to stop usin

tionally recognized signals.189 If the signal is not heeded, the enforcin

justified in firing one or more warning shots across the bow of the v

manner likely to attract attention. Only if the signals and warning sh

heeded is the enforcing vessel justified, as a last resort and after furthe

the noncompliant vessel, in using disabling fire.190 Given the history o

imposing on the enforcing State the burden of proving any use of forc

essary and reasonable, warnings given before firing warning shots or dis

should be recorded by videotape and audiotape when practicable. Pru

manding officers will also require their crew to document the legal bas

ing interdiction or enforcement action against the suspect vessel be

force against the vessel.

When it applies, 14 U.S.C. § 637 requires the enforcing vessel to disp

scribed ensign, pennant or other identifying insignia.191 The suspect ve

naled by visual, auditory and electronic means. Traditional “visual” mea

flag hoist and Morse Code flashing light signals taken from the Internati

of Signals, such as the SQ3 signal quoted above.192 Auditory signals may b

loudhailer or megaphone and supplemented by siren or whistle signals 

the attention of those on board the suspect vessel. If necessary, the enfo

sel’s intent may also be demonstrated by uncovering, readying and ma

ship’s weapons (without training them on the suspect vessel). Througho

counter, the enforcing vessel transmits radiotelephone calls to the susp

over frequencies all vessels are required to monitor. The calls, which are c

transmitted in English and any other language commonly used by ves

area or using internationally recognized signals for the Internatio

informs the suspect vessel of the enforcing vessel’s intent to board.

If the signals and radio calls are ignored or the suspect vessel otherwise 

stop to permit boarding, the enforcing vessel may pursue one or more o

progressive sequence. The Coast Guard MLEM prescribes a four-step ap

stopping noncompliant vessels. The sequence begins with “command 

progresses to “low-level” and then “higher-level” tactics, and finishes, if 

with “disabling fire.”193 The Navy MIO Doctrine adopts a similar approa

scribes—subject to the applicable ROE and tasking orders—an ordered 

of levels of force to be used against noncompliant vessels that escalates, if 

from “nonviolent” signals and maneuvers, to “deterrence” measures 

shots), to a “show of force” (including disabling fire), and finally to “full f

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A variety of low

level force tactics designed to compel a fleeing ves

have been tried over the years, including low level passes by aircraft; 

blocking or even “shouldering” the fleeing vessel; directing fire hose str

the fleeing vessel’s exhaust stack to flood the engine; deploying nets, lines 

devices designed to entangle the vessel’s propellers; and severing the v

line. Low-level tactics are seldom successful in persuading a d

noncompliant suspect, particularly on merchant vessels of the size li

transporting WMD. Moreover, some of the tactics might even expose th

vessel or a nearby support vessel to added risks. For example, if the fle

circles or doubles back, any nets and lines deployed in the water earlier t

the fleeing vessel might endanger the pursuing vessel as it turns to co

pursuit.

If low-level tactics fail to induce the suspect vessel to comply, they m

lowed by warning shots. Until recently, the federal statute governing 

Guard’s use of force against noncompliant vessels expressly required tha

shots always be fired before the enforcing vessel employed disabling fire

ure to first fire warning shots might have stripped the commanding off

indemnity provided by the statute. However, a 2004 amendment to 14 U

introduced an exception to the requirement. The amended statute no 

quires that warning shots be given before disabling fire if the person in 

of the enforcing vessel “determines that the firing of a warning signal wo

sonably endanger persons or property in the vicinity of the vessel to be st

It is important not to read too much into the 2004 amendment. To mee

dards set by international law for the use of force in maritime enforceme

the use of disabling fire without prior warning shots would still have to b

by an effective means of warning the fleeing vessel that force will be used 

vessel if it fails to comply with the enforcing vessel’s orders.196

The United States has long taken the position that a warning shot 

Warning shots are not directed against the vessel or any person on boa

not constitute a use of force. Although international law is largely sile

manner for firing warning shots, the CGUFP provides detailed guidance 

Guard platforms (and DoD platforms under Coast Guard TACON or 

The CGUFP specifies the need for prior authorization from the operatio

tical commander, the visual, auditory and electronic warnings to be gi

vessel before firing the warning shot, the position and posture of the cr

enforcing vessel, the choice of weapon and ammunition and the direct

relative to the suspect vessel.197 Like the CGUFP, the Navy MIO Doctrin

specific direction on pre-fire warnings, the choice of weapon and am

and the weapon targeting method.198 The general directions set out in 

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Doctrine must be applied consistently with the mission accomplishmen

operational tasking directives.

The use of warning shots to stop a vessel for boarding constitutes a “

the vessel in the constitutional sense and must therefore comply with t

Amendment standard of reasonableness. The Court of Appeals for the Se

cuit applied the reasonableness standard to a case involving the Coast G

of warning shots against a Panamanian drug trafficking vessel on the high 

USCGC Tamaroa intercepted the 210-foot Panamanian mothership Roo

miles off Cape Cod and, with the consent of Panamanian authorities, o

vessel to heave to for boarding.199 The Roondiep refused, and after twic

the vessel by radio, Tamaroa fired warning shots across the vessel’s bow 

caliber machine-gun. The Roondiep eventually stopped and in the boa

followed the team discovered a large quantity of marijuana in the hold. T

dants appealed their convictions on grounds that the boarding and seizu

the Fourth Amendment. After first rejecting the Government’s argumen

ama’s consent provided an independent constitutional basis for the boa

Court of Appeals concluded that the interception was a reasonable inv

stop and therefore did not violate the Fourth Amendment.200 The C

turned to the warning shots:

The firing of warning shots to stop the Roondiep was not unreasonab

reasonable force may be used if needed. The Roondiep had for some twenty 

refused to stop upon request. The Coast Guard’ firing of warning shots into t

in front of the ship appears to have been the least drastic way to force the ship 

and the shots were directly attributable to the Roondiep’s refusal to subm

authorized request to stop.201

It is not clear whether the court considered the warning shots a use of fo

than just one of several acts to consider in determining whether the Coa

seizure was reasonable under the circumstances. However, the court w

hold that “the firing of warning shots appears to have been no more intr

the circumstances required to get the Roondiep to stop.”202 Accordingly

Guard’s actions were held to be reasonable.

Use of Force to Stop and Board

SQ1: “You should stop or heave to; otherwise I shall open fire on 

The effectiveness of maritime legal regimes has long been a matter of c

Even the most carefully crafted regime will fail to produce the desired pu

if compliance is poor. Compliance is best achieved by a coordinated sys

forcement that detects, interdicts and punishes violators, thereby deterr

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violations. Any regime that allowed a violator to escape interdiction an

ment by simply registering the vessel with a closed or uncooperative flag 

refuses all requests to board is unlikely to be effective against a determin

sary. As one experienced commentator observed, MIO patrols would be 

if the patrol vessels lack the right to use force if necessary to stop ships.2

Professor Myres McDougal observed:

The authority to prescribe law, to make law, if it is to have any meaning must ca

it the authority to apply the law, decide what it is in particular instances, and to 

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

our conclusion that you can be reasonably sure that states are author

international law to employ force when it is necessary to apply any law which 

authorized to make for the protection of their various exclusive inte

comparable competence is established for the protection of the inclusive inte

The principal point . . . is that, by and large, the maintenance of order upon th

is a function of the application of force by the ships of nation-states.206

It has been shown that the legitimacy of using force to stop a vessel sub

enforcing State’s jurisdiction or control is well established under int

practice, treaty law and US law.207 Although some condemn the use of fo

eries and pollution enforcement actions as unreasonable and anachro

need to preserve the authority to use force to compel compliance with 

non-proliferation regime is not so easily dismissed. Accordingly, at th

tional level a balance must be struck between the common interest in 

freedom of navigation and limiting the use of force against vessels and t

on the one hand, and the need to address the threat to international pea

curity posed by the proliferation of WMD and delivery systems into th

rogue regimes and renegade non-State actors. As Professor Shearer r

when he put the I’m Alone decision in perspective in an earlier Blue B

article:

[T]he proportionality principle requires the enforcing State to weigh the gravi

offense against the value of human life. Rum-running . . . did not strike t

Alone”] commissioners as sufficient to warrant such drastic action. They did 

to consider other cases. It is suggested that fisheries, revenue, immigration an

regulatory offenses would fall into the same category. So might pollution offen

is not only because sending a vessel with dangerous cargoes or wastes on boa

bottom might only compound the danger, but because of the Convention sch

under which the flag State can be required to take enforcement action aga

delinquent vessel escaping immediate arrest. Other cases might justify the use 

vigorous, and perhaps ultimately deadly, force, such as piratical vessels, vessels 

arms to dissidents in the enforcing State, or craft carrying large quantities of da

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ggg

preservation more than of enforcement of regulatory laws.208

At the same time, any decision to use force at this early stage—to get abo

picious vessel—must take into account that in most such cases the enfor

will not yet have probable cause to believe the vessel is engaged in illega

or activities that give rise to a right of self-defense or self-help.

It has also been shown that use of force in MLE boardings may raise 

tional and statutory questions under US law. As with the firing of warn

the use of disabling fire by the Coast Guard to seize a vessel at sea must co

the Fourth Amendment reasonableness standard. As the US Supreme 

plained in Graham v. Connor, a case involving the use of force against a

ual, not a vessel, the court will consider the severity of the crime at issu

the suspect poses an immediate threat to others, and whether the suspect 

resisting arrest or attempting to evade arrest by flight.209 The reasonable

dard, along with the governing international law standards, was applied 

dent involving the use of disabling fire in a joint Navy-Coast Guard 

narcotics boarding off the Bahamas. In the interdiction, the USS Kidd (D

operating with a deployed Coast Guard LEDET, fired warning shots the

ber machine-gun disabling fire to stop a stateless vessel on the high seas 

dent was the first use of disabling fire by a Navy ship in a counter

operation). Once aboard, the boarding team discovered over 57,000 

marijuana on the vessel.210 On an appeal by the defendants of their con

drug trafficking charges, the court concluded that “the boarding and t

were not in conflict with United States statutes, international treaties o

tions, or the Constitution.”211 Nothing in the court’s decision suggests th

of disabling fire to stop a fleeing vessel under those circumstances v

Fourth Amendment.

When the on scene commander or commanding officer has determi

suspect vessel will present either an opposed boarding or a noncomplia

ing the full range of use of force options described above may come in

Those options may include the Coast Guard’s “higher level” tactics21

abling fire. “Disabling fire” refers to use of weapons to disable the shi

risk to the crew. The use of disabling fire by Navy and Coast Guard ve

ducting MLE operations is constrained by a variety of sources, including 

§ 637, as amended in 2004, the CGUFP set out in the MLEM, any applic

eral boarding agreement and tasking directives by OPCON or TACO

abling fire is used, the enforcing vessel’s method and choice of ammu

limited by both service doctrine and international law. In the M/V Saig

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example, the International Tribunal for the Law of the Sea held that in 

disabling fire the enforcement vessel should make every effort to ensure 

not endangered.214 Service doctrines typically require that the enforcing 

tempt to disable the noncompliant vessel with smaller caliber weapons. 

quence was followed by the Coast Guard cutter USCGC Boutwell in 19

encountered the converted Panamanian supply ship Encounter Bay 600 

the coast of Washington. Boutwell first fired sixty .50 caliber machine-g

into the drug trafficking vessel without any immediate effect. The Enco

crew decided to comply with the boarding demand when Boutwell thr

switch to the vessel’s deck gun.215

Despite the general acceptance accorded to the use of disabling fire a

sels trafficking in drugs, as a practical matter few commanding officer

mand authorities are likely to be anxious to shoot at vessels sus

transporting nuclear, biological or chemical weapons or precursors. 

they will recognize that the typical merchant ship is often able to survive 

longed disabling fire by the weapons and ammunition allowed by the u

doctrines. For example, in a 1990 interception of the 250-foot Pa

freighter M/V Hermann suspected of transporting drugs, the Coast Gu

USCGC Chincoteague, with the consent of the flag State, fired over 1

from the vessel’s 20 mm gun and 600 rounds from an M-60 machine-gu

vessel’s engine spaces and rudder post.216 Despite the two-hour 

Chincoteague, they were unable to disable the vessel before it entered the 

sea of Mexico, at which point the Chincoteague was legally bound to d

the pursuit.

An effective alternative means of overcoming the suspect vessel’s n

ance or even opposition—often without endangering the crew or poten

gerous cargo on the suspect vessel—is available if the enforcing vess

capability of deploying a helicopter-borne special operations force 

team.217 A vertical take-down may obviate the need for disabling fire 

noncompliant vessel and may therefore best meet the “reasonable and 

force” test.

The efficacy of the vertical take-down alternative was demonstrated i

interdiction of the M/V So San by Spanish naval forces acting under the 

of Spain’s former Prime Minister Aznar. In response to United States a

intelligence, the Spanish frigate Navarra, operating in support of Ope

during Freedom and seeking to prevent the escape of al Qaeda and Tali

from Afghanistan, intercepted the So San in the Indian Ocean approxim

miles from the Horn of Africa. 218 No ship named So San appeared in any 

sel registries. The vessel was flying no flag at the time of approach and di

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indication of its State of registry or homeport. In fact, a North Korean 

funnel had been painted over, as were the Korean characters for So San. T

of the vessel provided only cursory answers to radio questions from th

He indicated that his vessel was registered in Cambodia and was carrying 

cement to Yemen. The government of Cambodia could only confirm th

matched the description of a vessel registered in Cambodia under a 

name.219 Concluding that the failure to fly a flag or display a name, tog

the unverifiable claim of Cambodian registry, constituted reasonable gr

suspecting that the ship was without a nationality (i.e., stateless), the Sp

ate chose to exercise the internationally recognized right of a warship t

vessel on the high seas.220 The right of visit entitles a warship to send ove

aircraft to verify the ship’s right to fly its flag.221 The So San captain refus

down or to allow Navarra to board. Navarra then fired warning shots in a

to stop the So San, but the warnings were ignored. In fact, the So San in

speed, making it impossible to board the ship by small boat. After a six-h

off, Navarra prepared a special operations team of Spanish Marines to 

non-compliant boarding. To facilitate a vertical takedown, snipers on th

first shot away the guy wires on the So San’s main mast that would ha

gered the team when they fast-roped from the helicopter to the deck o

Their path cleared, the Spanish team was able to get aboard and secure 

for the right of visit boarding. Most legal experts agree that the circumsta

fied a right of visit boarding.222 And none of those who concluded the boa

legitimate questioned the Spanish decision to shoot out the vessel’s obstruc

Had the Spanish lacked a vertical take-down capability, and therefore b

to choose between resorting to disabling fire or forgoing the boarding, it 

whether the command authorities would have authorized disabling fire

Use of Force to Divert, Arrest and/or Seize

It bears repeating that each progressive step in an interdiction from ap

seizure must be grounded in lawful authority. The authority to order a v

vert must be distinguished from a detention or formal seizure of the vess

larly, the mustering or temporary detention of persons aboard a vessel t

a boarding must be distinguished from the arrest of persons whom a law 

ment officer has probable cause to believe committed a crime within the 

State’s jurisdiction. The amount of force that may be “reasonable” for o

seizure might be seen as unreasonable if used in another context.

Even a cursory inspection of the international and national legal regi

cable to WMD, their precursors and delivery systems will reveal they a

with gaps (the UN Security Council recognized as much when it passed R

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1540). As a result, a boarding team could find that the presence or tr

WMD components or delivery systems turned up by their laborious sea

violate any laws enforceable by the boarding State.224 For example, once a

M/V So San, the Spanish boarding team uncovered fifteen SCUD miss

conventional (high explosive) warheads, along with parts to make eight 

siles and 23 barrels of chemicals (nitric acid) buried beneath tons of b

ment. The missiles, which were sold by the government of North Korea 

were not listed in the vessel’s cargo manifest. Yet the legal analysts ultim

cluded that no applicable international law prohibited the sale or sh

SCUD missiles from North Korea to Yemen.226 Accordingly, there was n

sis for seizing the missiles, or taking further actions against the vessel or 

So San was released, to deliver its cargo to Yemen.

In circumstances where neither the vessel nor any of its crew has viola

possession or transportation laws enforceable directly by the boarding 

boarding State may nevertheless find that one or more individuals aboa

sel are suspected of having committed an offense that falls within the ex

prosecute provision of an applicable international treaty. Such clauses 

mon in multinational terrorism conventions. Boarding teams and t

manders must recognize that their power (and duty) to detain such 

limited. The treaty obligation to prosecute or extradite is generally trig

when a person suspected of committing an offense under the treaty is 

“territory” of a contracting party.227 Such a provision would not justify 

sion of a person on a foreign vessel for extradition to a third State.228 On 

hand, the flag State may be under such an obligation if it is a party to a tre

ing extradition.229 Such cases—like those involving asylum requests—ca

ful handling by the enforcing vessel’s chain of command within the 

established interagency consultation procedures.

Assuming the authority to divert, detain arrest or seize exists, the ques

regarding what force may be used to carry out those actions. Vessels em

MIO or E-MIO operations must consult their mission accomplishment 

operational tasking directives. The reader will also recall that the I’m A

missioners articulated an international law “necessary and reasonable fo

dard that applies to all steps in the encounter, including the boarding, s

seizure and bringing the vessel into port.230 For Coast Guard boarding o

gaged in maritime law enforcement operations, 14 U.S.C. § 89 authorizes 

cers to use all force necessary to compel compliance. That statutory auth

be applied within the limitations imposed by the constitutional prov

cussed above and the CGUFP. The CGUFP imposes limitations on 

deadly force that are similar to, but more restrictive than, those in the M

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Code. Section 3.07 of the MPC begins by addressing the use of any force 

non-deadly) in making an arrest. It provides that force is justifiable if th

officer believes its use is immediately necessary to effect the arrest. The 

imposes limits on the use of deadly force, providing that deadly force is n

able unless: (1) the arrest is for a felony; (2) the arresting officer believ

force employed creates no substantial risk of injury to innocent person

the arresting officer believes that the crime for which the arrest is mad

conduct including the use or threatened use of deadly force or the offic

there is a substantial risk that the person to be arrested will cause death 

bodily injury if his apprehension is delayed.231

The CGUFP is more restrictive than the MPC and better comport

1985 Tennessee v. Garner test described above.232 While the MPC is cast 

junctive, requiring only that the felony for which the arrest is being ma

the threat or use of deadly force or that there be a substantial risk that t

being arrested will cause death or serious bodily injury if apprehension 

the CGUFP only authorizes the use of deadly force to effect an arrest 

probable cause to believe that “the suspect has committed a felony inv

use or threatened use of deadly force” and the “suspect is armed, or other

an imminent threat of death or serious physical injury to any person.”233 

provision of the CGUFP authorizes the use of force, including deadly fo

necessary to protect hazardous materials or deadly weapons from theft, s

unauthorized control.234 In addition, the boarding team has the inhere

use force when necessary in self-defense.

Use of Force in Self-Defense

Throughout the approach and boarding it is important to distinguish 

force to carry out the boarding, search and seizure from the use of for

defense. Regardless of the stage of the approach and boarding, the in

forces may be faced with actions requiring the use of force in self-defense

identify four levels of self-defense: individual self-defense (which includ

of others), unit self-defense, national self-defense, and collective self-

Individual self-defense is the act of defending oneself or another perso

force. Unit self-defense is the act of defending a particular unit of US 

other US forces in the vicinity, against a hostile act or demonstrated hos

Responses to a ramming or attempted ramming of a Coast Guard or DoD 

vessel under Coast Guard TACON, would be governed by the SROE on 

defense.236 National self-defense is the act of defending the United Sta

some circumstances, US citizens and their property, and/or US commer

Collective self-defense refers to the act of defending designated non-US 

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designated foreign nationals and their property from a hostile act or dem

hostile intent.

The SROE and CGUFP recognize the inherent right of an individual 

to act in self-defense, subject to the twin constraints of necessity and pro

ity.237 The definitions of necessity and proportionality in the self-defen

differ from parallel provisions in mission accomplishment ROE. “Nec

the use of force in self-defense exists when a hostile act occurs or when 

terrorist exhibits hostile intent.238 “Proportionality” in the self-defense c

fers to measures that are reasonable in intensity, duration and magnit

perceived or demonstrated threat, based on all the facts known to the co

at the time.239 The SROE make it clear that “all necessary means availab

used in self-defense.240 Although the meaning of that phrase is classified

said that when the hostile force no longer represents an imminent threa

to self-defense ends. Mission accomplishment ROE written to suppl

SROE do not limit the commander’s inherent authority and obligatio

self-defense.241 Intentionally sinking the I’m Alone(discussed above) was 

excessive as an enforcement measure for a non-violent crime (smugglin

For those familiar with the ruthless determination of some modern tra

narcotics and illegal arms it is easy to imagine a circumstance in which i

necessary to intentionally sink a trafficking vessel in self-defense.

The authority to exercise national or collective self-defense is generall

strictive.242 The doctrine of unit self-defense is well established. In the 

Flora, the Supreme Court recognized that a warship has no duty to flee or 

she is crippled before defending herself with force. Writing for the Cou

Story held that the warship commander’s duty under such circumstanc

it is to “oppose force to force, to attack and to subdue the vessel.”243 Ju

went on to explain that the commander:

had the flag of his vessel to maintain, and the rights of his cruiser to vindicate. 

hesitated in what was his duty to his government called for on such an occasion

have been to betray (what no honourable officer could be supposed to ind

indifference to its dignity and sovereignty.244

The Court then upheld the boarding and seizure of the approached vess

piracy but for the very act of firing on a US warship without legal justif

The Court of Appeals for the Ninth Circuit recently extended that princ

ing that a threat to open fire on the Coast Guard if its agents attempte

provided independent grounds for seizing the vessel.246

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The 

nodutytoretreatrule has been incorporated into Coast G

trine, though it also acknowledges that under some circumstances tempo

drawal might prove to be the wiser alternative, to provide time for the 

additional assets or personnel or to reduce tensions.247 Similarly, under 

guidelines on “de-escalating the situation,” when time and circumstance

hostile force should be warned and given an opportunity to withdraw or 

threatening activities.248

Conclusion

UN Security Council Resolutions 1373 and 1540 provide stark warning o

threat to international security posed by global terrorism and the proli

WMD and their delivery systems. For some, the resolutions also demon

the presumption in the 1945 UN Charter that nation-States will hold a 

on the large-scale use of force must be reevaluated. It is too soon to predi

those resolutions will eventually serve as the basis for new crimes of univ

diction or progressive development of the right of approach and visit und

of the sea. In the meantime, while the Security Council monitors progr

implementation of its terrorism and counter-proliferation resolution

participating in the PSI and those cooperating with them will move forw

pragmatic and adaptive program to counter the growing threat posed b

junction of global terrorism and WMD proliferation. Given the physica

most WMD and delivery systems of concern and the likely routes they 

from their sources to intended users, the PSI must include a maritime in

component if it is to succeed. To be effective, maritime interception mu

provisions for using reasonable force when necessary to overcome no

ance. As both a legal and practical matter, the enforcing vessel cannot si

tinue a pursuit indefinitely.249 Even an enforcing vessel with unlimite

patience—and no other pressing mission—must terminate its pursuit 

sued vessel enters the territorial sea of a third State, unless that State con

enforcement action in its waters or such action is authorized by an applic

lution of the UN Security Council.250

International law and the national laws of the States participating in 

time operations impose limits on the use of force. Through the Statemen

diction Principles, the PSI participants have pledged to conform their o

to international and national law. The exact contours of that law have yet 

defined. For example, customary law has yet to expressly acknowledge 

threat to international or national security increases higher levels of fo

forcement measures may be justified. Cases involving the use of force i

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enforcement are inapposite where the danger of ineffective enforcem

merely over-fishing, but rather permitting nuclear, biological or chemica

to come into the possession of a rogue regime or terrorist group. Even 

were fully developed, it would not lessen the need for use of force policie

by-case decision-making grounded in informed risk assessment and ma

principles. The risk of using disabling fire against a vessel carrying WM

ponent materials, and the low probability of success, cast serious doubt o

such measures are likely to be employed. Accordingly, innovative metho

vertical take-downs or breaches of non-compliant vessels by small boa

come an increasingly common feature of maritime interception operat

options expose the boarding team members to greater risk from the na

operation and potential opposition by the boarded vessel; however, t

global security posed by a course of passive inaction is likely to be even 

A given PSI interception may implicate national defense, homelan

and/or law enforcement mission responsibilities. Accordingly, US marit

and their legal advisers must be prepared to apply what are often subtle d

among three distinct but sometimes overlapping systems of rules govern

of force at sea. Policy makers and planners for PSI participating States m

mind that in framing a use of force approach for what will often be a com

eration they must strive to fashion an approach that recognizes that nat

tudes on the use of force in maritime boardings may differ, even whe

grounded in universally applicable Security Council resolutions. The ex

those use of force policies will also shape and influence customary law on 

force and on State responsibility in the years to come.

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Appendix I

Interdiction Principles for the Proliferation Security Initiative

PSI participants are committed to the following interdiction principles t

a more coordinated and effective basis through which to impede and 

ments of WMD, delivery systems, and related materials flowing to and f

and non-state actors of proliferation concern, consistent with nationa

thorities and relevant international law and frameworks, including the 

rity Council. They call on all states concerned with this threat to int

peace and security to join in similarly committing to:

1. Undertake effective measures, either alone or in concert with 

states, for interdicting the transfer or transport of WMD, their d

systems, and related materials to and from states and non-state a

proliferation concern. “States or non-state actors of prolif

concern” generally refers to those countries or entities that t

participants involved establish should be subject to interdiction a

because they are engaged in proliferation through: (1) efforts to d

or acquire chemical, biological, or nuclear weapons and ass

delivery systems; or (2) transfers (either selling, receiving, or facil

of WMD, their delivery systems, or related materials.

2. Adopt streamlined procedures for rapid exchange of r

information concerning suspected proliferation activity, protect

confidential character of classified information provided by othe

as part of this initiative, dedicate appropriate resources and ef

interdiction operations and capabilities, and maximize coord

among participants in interdiction efforts.

3. Review and work to strengthen their relevant national legal aut

where necessary to accomplish these objectives, and work to stre

when necessary relevant international law and framewo

appropriate ways to support these commitments.

4. Take specific actions in support of interdiction efforts regarding 

of WMD, their delivery systems, or related materials, to the exte

national legal authorities permit and consistent with their obli

under international law and frameworks, to include:

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a. Not to transport or assist in the transport of any such cargo

from states or non-state actors of proliferation concern, and 

allow any persons subject to their jurisdiction to do so.

b. At their own initiative, or at the request and good cause sh

another state, to take action to board and search any vesse

their flag in their internal waters or territorial seas, or areas 

the territorial seas of any other state, that is reasonably suspe

transporting such cargoes to or from states or non-state ac

proliferation concern, and to seize such cargoes that are iden

c. To seriously consider providing consent under the appr

circumstances to the boarding and searching of its own flag ve

other states, and to the seizure of such WMD-related cargoes 

vessels that may be identified by such states.

d. To take appropriate actions to (1) stop and/or search in their i

waters, territorial seas, or contiguous zones (when declared) 

that are reasonably suspected of carrying such cargoes to o

states or non-state actors of proliferation concern and to sei

cargoes that are identified; and (2) to enforce conditions on 

entering or leaving their ports, internal waters or territorial s

are reasonably suspected of carrying such cargoes, such as re

that such vessels be subject to boarding, search, and seizure 

cargoes prior to entry.

e. At their own initiative or upon the request and good cause sh

another state, to (a) require aircraft that are reasonably suspe

carrying such cargoes to or from states or non-state ac

proliferation concern and that are transiting their airspace to l

inspection and seize any such cargoes that are identified; and

deny aircraft reasonably suspected of carrying such cargoes 

rights through their airspace in advance of such flights.

f. If their ports, airfields, or other facilities are used as transsh

points for shipment of such cargoes to or from states or no

actors of proliferation concern, to inspect vessels, aircraft, o

modes of transport reasonably suspected of carrying such c

and to seize such cargoes that are identified.

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Appendix II

United Nations Security Council Resolution 1540 (2004) 252

Security Council

4956th Meeting (PM)*

The Security Council,

Affirming that proliferation of nuclear, chemical and biological weapons

their means of delivery,** constitutes a threat to international peace an

Reaffirming, in this context, the Statement of its President adopted at the 

meeting at the level of Heads of State and Government on 31 Januar

23500), including the need for all Member States to fulfil their obligatio

tion to arms control and disarmament and to prevent proliferation in all 

of all weapons of mass destruction,4

Recalling also that the Statement underlined the need for all Member St

solve peacefully in accordance with the Charter any problems in th

threatening or disrupting the maintenance of regional and global stabil

Affirming its resolve to take appropriate and effective actions against an

international peace and security caused by the proliferation of nuclear

and biological weapons and their means of delivery, in conformity with i

responsibilities, as provided for in the United Nations Charter,

Affirming its support for the multilateral treaties whose aim is to elimin

vent the proliferation of nuclear, chemical or biological weapons and t

tance for all States parties to these treaties to implement them fully i

promote international stability,

Welcoming efforts in this context by multilateral arrangements which con

non-proliferation,

Affirming that prevention of proliferation of nuclear, chemical and 

weapons should not hamper international cooperation in materials, e

and technology for peaceful purposes while goals of peaceful utilization s

be used as a cover for proliferation,

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Gravely concerned by the threat of terrorism and the risk that non

Stat

such as those identified in the United Nations list established and main

the Committee established under Security Council resolution 1267 an

whom resolution 1373 applies, may acquire, develop, traffic in or us

chemical and biological weapons and their means of delivery,

Gravely concerned by the threat of illicit trafficking in nuclear, chemical, 

cal weapons and their means of delivery, and related materials,** which a

dimension to the issue of proliferation of such weapons and also poses 

international peace and security,

Recognizing the need to enhance coordination of efforts on national, su

regional and international levels in order to strengthen a global response 

rious challenge and threat to international security,

Recognizing that most States have undertaken binding legal obligations u

ties to which they are parties, or have made other commitments aimed a

ing the proliferation of nuclear, chemical or biological weapons, and h

effective measures to account for, secure and physically protect sensitive 

such as those required by the Convention on the Physical Protection o

Materials and those recommended by the IAEA Code of Conduct on the 

Security of Radioactive Sources,

Recognizing further the urgent need for all States to take additional effe

sures to prevent the proliferation of nuclear, chemical or biological we

their means of delivery,

Encouraging all Member States to implement fully the disarmament tr

agreements to which they are party,

Reaffirming the need to combat by all means, in accordance with the Cha

United Nations, threats to international peace and security caused by ter

Determined to facilitate henceforth an effective response to global thr

area of non-proliferation,

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

1. Decides that all States shall refrain from providing any form of suppo

State actors that attempt to develop, acquire, manufacture, possess, 

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transfer or use nuclear, chemical or biological weapons and their 

delivery;

2. Decides also that all States, in accordance with their national proced

adopt and enforce appropriate effective laws which prohibit any non-Sta

manufacture, acquire, possess, develop, transport, transfer or use 

chemical or biological weapons and their means of delivery, in par

terrorist purposes, as well as attempts to engage in any of the foregoing 

participate in them as an accomplice, assist or finance them;

3. Decides also that all States shall take and enforce effective measures t

domestic controls to prevent the proliferation of nuclear, chemical, or 

weapons and their means of delivery, including by establishing ap

controls over related materials and to this end shall:

(a) Develop and maintain appropriate effective measures to accou

secure such items in production, use, storage or transport;

(b) Develop and maintain appropriate effective physical 

measures;

(c) Develop and maintain appropriate effective border control

enforcement efforts to detect, deter, prevent and combat, includin

international cooperation when necessary, the illicit trafficking and 

in such items in accordance with their national legal authorities and 

and consistent with international law;

(d) Establish, develop, review and maintain appropriate effectiv

export and trans-shipment controls over such items, including ap

laws and regulations to control export, transit, trans-shipment and 

and controls on providing funds and services related to such export 

shipment such as financing, and transporting that would con

proliferation, as well as establishing end-user controls; and establi

enforcing appropriate criminal or civil penalties for violations of su

control laws and regulations;

4. Decides to establish, in accordance with rule 28 of its provisiona

procedure, for a period of no longer than two years, a Committee of th

Council, consisting of all members of the Council, which will, 

appropriate on other expertise, report to the Security Council for its exa

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on the implementation of this resolution, and to this end calls upon 

present a first report no later than six months from the adoption of this 

to the Committee on steps they have taken or intend to take to imple

resolution;

5. Decides that none of the obligations set forth in this resolution 

interpreted so as to conflict with or alter the rights and obligations of St

to the Nuclear Non-Proliferation Treaty, the Chemical Weapons Conve

the Biological and Toxin Weapons Convention or alter the responsibil

International Atomic Energy Agency or the Organization for the Proh

Chemical Weapons;

6. Recognizes the utility in implementing this resolution of effectiv

control lists and calls upon all Member States, when necessary, to pur

earliest opportunity the development of such lists;

7. Recognizes that some States may require assistance in impleme

provisions of this resolution within their territories and invites States in 

to do so to offer assistance as appropriate in response to specific requ

States lacking the legal and regulatory infrastructure, implementation e

and/or resources for fulfilling the above provisions;

8. Calls upon all States:

(a) To promote the universal adoption and full implementation, a

necessary, strengthening of multilateral treaties to which they a

whose aim is to prevent the proliferation of nuclear, biological or 

weapons;

(b) To adopt national rules and regulations, where it has not yet b

to ensure compliance with their commitments under the key multila

proliferation treaties;

(c) To renew and fulfil their commitment to multilateral coope

particular within the framework of the International Atomic Energ

the Organization for the Prohibition of Chemical Weapons and the 

and Toxin Weapons Convention, as important means of pur

achieving their common objectives in the area of non-proliferati

promoting international cooperation for peaceful purposes;

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(d) To develop appropriate ways to work with and inform indust

public regarding their obligations under such laws;

9. Calls upon all States to promote dialogue and cooperation 

proliferation so as to address the threat posed by proliferation of nuclear

or biological weapons, and their means of delivery;

10. Further to counter that threat, calls upon all States, in accordance 

national legal authorities and legislation and consistent with internatio

take cooperative action to prevent illicit trafficking in nuclear, ch

biological weapons, their means of delivery, and related materials;

11. Expresses its intention to monitor closely the implementatio

resolution and, at the appropriate level, to take further decisions whi

required to this end;

12. Decides to remain seized of the matter.

_____________________________

* The 4955th Meeting was closed.

** Definitions for the purpose of this resolution only:

Means of delivery: missiles, rockets and other unmanned systems capabl

ering nuclear, chemical, or biological weapons, that are specially designe

use.

Non-State actor: individual or entity, not acting under the lawful autho

State in conducting activities which come within the scope of this resol

Related materials: materials, equipment and technology covered by relev

lateral treaties and arrangements, or included on national control li

could be used for the design, development, production or use of nuclear

and biological weapons and their means of delivery.

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Appendix III

14 U.S.C. § 637

Stopping vessels; immunity indemnity for firing at or into vess

(a) (1) Whenever any vessel liable to seizure or examination does no

being ordered to do so or on being pursued by an authorized vessel or a

aircraft which has displayed the ensign, pennant, or other identifyin

prescribed for an authorized vessel or authorized aircraft, the person in 

or in charge of the authorized vessel or authorized aircraft may, after 

been fired by the authorized vessel or authorized aircraft as a warning si

or into the vessel which does not stop.

(2) Before firing at or into a vessel as authorized in paragraph (1), the 

command or in charge of the authorized vessel or authorized aircraft 

gun as a warning signal, except that the prior firing of a gun as a warnin

not required if that person determines that the firing of a warning sig

unreasonably endanger persons or property in the vicinity of the ve

stopped.

(b) The person in command of an authorized vessel or authorized aircr

persons acting under that person’s direction shall be indemnified 

penalties or actions for damages for firing at or into a vessel pursuant to s

(a). If any person is killed or wounded by the firing, and the person in co

the authorized vessel or authorized aircraft or any person acting pursua

orders is prosecuted or arrested therefor, they shall be forthwith admitt

(c) A vessel or aircraft is an authorized vessel or authorized aircraft for p

this section if—

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

(2) it is a surface naval vessel or military aircraft on which on

members of the Coast Guard are assigned pursuant to section 379 

or.

119

* As amended in 2004 by PUB. L. No. 108–293, § 205 (2004). Underlined sections w

2004. Strikeouts indicate sections deleted in 2004.

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(3) subject to subsection (d), it is a naval aircraft that has one 

members of the Coast Guard on board and is operating from a sur

vessel described in paragraph (2).

(d) (1) The inclusion of naval aircraft as an authorized aircraft for purpo

section shall be effective only after the end of the 30-day period beginn

date the report required by paragraph (2) is submitted through Sept

2001.

(2) Not later than August 1, 2000, the Secretary of Defense shall sub

Committee on Armed Services of the House of Representative

Committee on Armed Services of the Senate a report containing

(A) an analysis of the benefits and risks associated with using 

craft to perform the law enforcement activities authorized by s

(a);

(B) an estimate of the extent to which the Secretary expects 

ment the authority provided by this section; and

(C) an analysis of the effectiveness and applicability to the D

of Defense of the Coast Guard program known as the “New 

program.

(d) Report- The Commandant of the Coast Guard shall transmit a repor

to the Committee on Commerce, Science, and Transportation of the S

the Committee on Transportation and Infrastructure of the 

Representatives describing the location, vessels or aircraft, circumsta

consequences of each incident in the 12-month period covered by the 

which the person in command or in charge of an authorized ves

authorized aircraft (as those terms are used in section 637 of title 14, Un

Code) fired at or into a vessel without prior use of the warning signal as a

by that section.

Notes

1. ROBERT F. KENNEDY, THIRTEEN DAYS:AMEMOIR OF THECUBAN MISSILECRISIS 

2. See 2004 Report of the Secretary-General, Oceans and the Law of the Sea, at 40–4

U.N. Doc. A/59/62 (2004).

3. NATO members participating in the PSI since its inception include France, Ger

the Netherlands, Poland, Portugal, Spain and the United Kingdom. Canada and No

several months later.

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py pp

at http://www.state.gov/t/np/rls/fs/23764.htm.

5. Id. para. 4.

6. See Agreement Between the Government of the United States of Ameri

Government of the Republic of Liberia Concerning Cooperation to Suppress the Pro

Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By S

2004 [hereinafter United States-Liberia Bilateral WMD Boarding Agreement]

www.state.gov/t/np/trty/32403.htm; Amendment to the Supplementary Arrangem

the Government of the United States of America and the Government of the Republi

to the Arrangement Between the Government of the United States of Amer

Government of the Republic of Panama for Support and Assistance from the United 

Guard for the National Maritime Service of the Ministry of Government and Just

2004 [hereinafter United States-Panama Bilateral WMD Boarding Agreement], at 

.state.gov/t/np/trty/32858.htm; Agreement Between the Government of the Unit

America and the Government of the Republic of the Marshall Islands Concerning C

to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery S

Related Materials by Sea, Aug. 13, 2004, [hereinafter United States-Marshall Islan

WMD Boarding Agreement], at http://www.state.gov/t/np/trty/35237.htm.

7. Wojciech Moskwa, Bush Seeks to Broaden Fight Against Spread of WMD, REUT

2004, available at http://www.reuters.com/newsArticle.jhtml?type=politicsNe

=5309821&src=rss/ElectionCoverage§ion=news.

8. FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON T

STATES 381 (2004). The commission concluded the “PSI can be more effectiv

intelligence and planning resources of the NATO alliance. Moreover, PSI membersh

open to non-NATO countries. Russia and China should be encouraged to participa

was always open to non-NATO States. And well before the commission entered its 

Russia had already joined the PSI and China appeared to have no interest in joinin

9. U.N. Security Council Res. 1540, U.N. Doc. No. S/RES/1540 (2004). In Resoluti

Council had earlier called on all States to, inter alia, act to eliminate the supply of 

terrorists. U.N. Security Council Res. 1373, para. 2(a), U.N. Doc. No. S/RES/1373 (

10. Reportedly China agreed to support the resolution only after a provision that 

permitted interdiction at sea was removed. Warren Hodge, Ban on Weapons of Doom 

to Qaeda-Style Groups, NEW YORK TIMES, Apr. 29, 2004.

11. Convention for the Suppression of Unlawful Acts against the Safety o

Navigation, Mar. 10, 1988, 1678 U.N.T.S. 221, S. TREATY DOC. NO. 101–1 (1989),rep

INTERNATIONAL LEGAL MATERIALS 672 (1988).

12. Calvin M. Lederer, Developments Involving the Convention on the Sup

Unlawful Acts Affecting Maritime Navigation, 2004 YEARBOOK OF THE COMITÉ 

INTERNATIONAL 45, 50. See also Counter-Proliferation: Practising to Provoke, THE E

Sept. 20, 2003, at 41.

13. The commanding officer of a US Navy cruiser described the typical MIO 

operations in the Persian Gulf this way: “During MIO, a single Navy ship can expect 

ops 15 to 18 hours a day, provide three to four six-man security teams, two 12-m

teams, and in general ride herd on an average of 10 to 15 merchant ships daily.” Ch

SWO Life: Operation Enduring Freedom and Philippine Sea (CG-58), SHIPMATE, 

available at http://www.usna.com/News_Pubs/Publications/Shipmate/2002/03/SW

14. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A

122 (1982), 1833 U.N.T.S. 3; S. TREATY DOC. 103–39 (1994), reprinted in 21 INTE

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() 

party.

15. For testimony rebutting those claims, see Senate Foreign Relations Committee

the United Nations Convention on the Law of the Sea, S. EXEC. REP. NO. 108-10, a

103 & 111–12 (Mar. 11, 2004).

16. The term “maritime interception operations” has taken on a variety of meaning

It was originally used in a narrow sense to refer only to naval operations taken to enf

Security Council resolutions imposing embargoes. The Navy now defines MIO as the 

action of denying suspect vessels access to specific ports for import or export of proh

to or from a specified nation or nations, for purposes of peacekeeping or to enfor

sanctions.” See US Navy, Maritime Interception Operations, ¶ 1.5.12, NTTP 3-07

07.11 (2003) [hereinafter Navy MIO Doctrine]. The Navy MIO doctrine does not ap

blockades in time of war. Id. ¶ 1.3. In fact, Navy doctrine acknowledges there 

differences between MIOs and belligerent acts of interdiction such as blockade a

search during international armed conflict.” See US Navy, Naval Doctrine f

Operations Other-Than-War, ¶ 3.2.2.1, NWP 3-07 (1998) [hereinafter Navy 

Doctrine].

17. “Expanded MIO,” when authorized by the Secretary of Defense, are designed 

targeted personnel or material that pose an imminent threat to the United States. 

involve multinational forces and may be implemented even when sanctions hav

imposed. See Navy MIO Doctrine, supra note 16, ¶ 1.5.6.

18. The Coast Guard defines “law enforcement” as “all Coast Guard functions or act

out pursuant to the legal authorities described in” the Maritime Law Enforcement 

US Coast Guard, Maritime Law Enforcement Manual, ¶ 4.A.2, COMDTINST 

(2003) [hereinafter Coast Guard MLEM].

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

20. “Countermeasures” are directed at another State to coerce the State to c

international law. Historically, they included both non-forcible and forcible counte

Forcible countermeasures are now limited by the United Nations Charter. See RE

(THIRD) FOREIGN RELATIONS LAW OF the United States § 904(2) (1987) 

RESTATEMENT]; Corfu Channel (U.K. v. Alb.) 1949 I.C.J. 4, 35 (Apr. 9) (rejecti

argument that it had a right to intervene and clear mines in the Albanian territ

facilitate innocent passage of U.K. warships). See also Professor Heintschel von Hein

The Proliferation Security Initiative: Security vs. Freedom of Navigation, which is Ch

this volume, at 56. As Professor McDougal pointed out in an earlier Blue Book volum

force in law enforcement activities does not constitute forcible self-help. See Myres S

Authority to Use Force on the High Seas, in READINGS IN INTERNATIONAL LAW FROM 

WAR COLLEGE REVIEW 1947–1977, at 551, 557–58 (Richard B. Lillich & John No

eds., 1980) (Vol. 61, US Naval War College International Law Studies).

21. The term “US Maritime Forces” includes the Navy, Marine Corps and Coast 

Navy MOOTW Doctrine, supra note 16, at 1-1.

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

23. The fact that a given boarding is conducted under the MIO/VBSS framewo

indicate the nature or scope of the boarding or the legal authority on which it relie

the fact that a Coast Guard LEDET accompanies a Navy VBSS team does not necessa

the boarding falls within the maritime law enforcement rubric. See Navy MIO Doc

note 16, ¶ 2.2.4. The Memorandum of Understanding Between the Department of 

Department of Transportation [now Homeland Security] on the Use of USCG Cap

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Coast Guard that may be made available to support the National Military Strategy

inter alia, maritime interception operations, peacetime military engagement and 

control.

24. The actions may also trigger an operational report (OPREP) or situation repo

message reporting requirement. See Chairman of the Joint Chiefs of Staff Man

(series); Chairman of the Joint Chiefs of Staff Manual 3150.3 (series); Office of the Ch

Operations Instruction 3100.6 (series).

25. Proclamation No. 3504, 27 FEDERAL REGISTER 10,401 (Oct. 23, 1962). The P

authorized the use of force only in cases of failure or refusal to comply, after reason

had been made to communicate directly with the vessels, or in cases of self-defen

only to the extent necessary.

26. See Navy MOOTW Doctrine, supra note 16, at 3-2 n.4. NATO prefers the phra

Interdiction Operations (MIOPs). In the United States “interdiction” is defined 

designed to “divert, disrupt, delay or destroy” the adversary’s potential to inflict ha

can be used effectively against friendly forces. See Joint Chiefs of Staff, Joint Pub 

Interdiction Operations (1997).

27. The principle of impartiality is also manifested in the 1982 LOS Conventi

banning discrimination. See, e.g., LOS Convention, supra note 14, arts. 24(1)(b), 2

52(2) & 227.

28. Navy MIO Doctrine, supra note 16, at 3-3. The principle of impartiality does 

that all vessels be stopped. Effectiveness is measured by the extent to which M

compliance with the sanctions.

29. Id. at 3-4.

30. Id.

31. Intelligence, surveillance and reconnaissance are part of the larger integra

approach, which also includes joint command, control, communications and com

Joint Chiefs of Staff, Joint Publication 3-32, Command and Control of Joi

Operations, at App. A (Second Draft, 25 June 2003), available at http://www.dtic.m

jel/ddrraafftt_pubs/3_22sd.pdf.

32. Enforcement vessels will no doubt recognize the security risks posed by requiri

transmit sensitive information by radio transmissions that are easily intercepted by o

or shore stations.

33. VBSS team members attend individual and team training to learn boarding 

vessel control tactics, levels of force, take-down procedures and search techni

members are trained in non-lethal and lethal use of force techniques. See generally 

Doctrine, supra note 16, ¶ 4.3.1 & App. H.

34. The Navy distinguishes between “opposed” boardings and “noncompliant” bo

former of which present a higher risk. See id. ¶ 1.5. Special operations forces are alw

opposed boardings, and may be used in noncompliant boardings. Ship’s force VBS

not authorized to conduct opposed boardings, id. ¶ 6.1, or noncompliant boarding

with high freeboard. Id. ¶ 6.6.

35. Special operations forces may be drawn from a SEAL or MSPF team. The MS

within Marine expeditionary units (special operations capable) provides the d

capability and carries out the VBSS mission in support of maritime interception op

Navy MOOTW Doctrine, supra note 16, ¶ 3.2.2.5. On naval vessels without an emb

similar support may be available from a Marine security force battalion or one 

antiterrorism security teams (FAST).

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that conducted a vertical take-down in the widely-studied interdiction of the Iraqi ca

Khaldun in the northern Arabian Sea in 1990. See Lois E. Fielding, Maritime I

Centerpiece of Economic Sanctions in the New World Order, 53 LOUISIANA LAW RE

1192 (1993); see also Robert E. Marabito, Maritime Interdiction: Evolution of a 

OCEAN DEVELOPMENT AND INTERNATIONAL LAW 301 (1991).

37. Navy MIO Doctrine, supra note 16, ¶ 6.6.2. “Breaching” refers to boarding by 

without the cooperation of the boarded vessel, and may require overcoming passive 

obstruct the boarding. It is considered “extremely dangerous.” Id.

38. Id. ¶ 5.6.2.2.

39. Diversions have been directly addressed in the context of the belligerents’ right 

search. See SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED CO

SEA 32, ¶ 121 (Louise Doswald-Beck, ed. 1995). At the time the Manual was wr

concluded that a right to compel diversion had not yet ripened into a rule of custom

Louise Doswald-Beck, Current Developments: The San Remo Manual on Intern

Applicable to Armed Conflicts at Sea, 89 AMERICAN JOURNAL OF INTERNATIONAL LA

(1995).

40. Navy VBSS and Coast Guard LEDET teams have implemented a number of inn

overcome the difficulties of at-sea container inspections, including the use of s

climbing equipment and techniques. See Navy MIO Doctrine, supra note 16, Anne

41. The choice of rules can be even more complex if the operation includes mil

enforcement personnel from other nations. See Navy MIO Doctrine, supra note 16, ¶

42. The legal authorities on which WMD interception operations may be founded 

the scope of this article.

43. See Alfred H.A. Soons, Enforcing the Economic Embargo at Sea, in UNITE

SANCTIONS AND INTERNATIONAL LAW 307–24 (Vera Gowlland-Debbas et al. eds., 

44. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 993. See 

Fleck, Rules of Engagement for Maritime Forces and the Limitation of the Use of For

UN Charter, 31 GERMAN YEARBOOK OF INTERNATIONAL LAW 165 (1988). For an an

self-defense arguments, see Michael Byers, Comment, Policing the High Seas: The P

Security Initiative, 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 526–45 (2004). 

commentators Dupuy and Vignes and their Iranian contributor Djamchid Mo

against a right of self-defense on the high seas. RENÉ-JEAN DUPUY & DANIEL 

HANDBOOK ON THE NEW LAW OF THE SEA 412–14 (1991).

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

46. See, e.g., US Navy Regulations (1990), arts. 0915 (use of force against another S

(violations of international law and treaties).

47. It is sometimes said, even in introductory use of force training sessions, that the

no meaningful difference between the SROE, the RUF and the CGUFP. Staff judge ad

law specialists must be alert to correct such simplistic assertions and their tendency 

distinctions between the doctrines. The more difficult challenge will be to justify t

multiple doctrines and the potential to inject confusion into one of the comma

important planning and operational decisions.

48. The distinction is implicit in the UN Security Council’s Resolution 221 i

embargo on the former Rhodesia. Although not explicitly stated, the resolution was i

Article 41 of the UN Charter, which is limited to measures not including the use of a

Nevertheless, the Council authorized the enforcing State to use force to compel com

the embargo. See U.N. Security Council Resolution 221, para. 5, U.N. Doc. S/RES

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(

g gpy y

tankers in (Portuguese controlled) Beira). By Resolution 217 issued the year before, 

had imposed an “embargo on oil and petroleum products” to Rhodesia. See U.N. D

217 (1965), para. 8.

49. See PHILIP C. JESSUP,AMODERN LAW OF NATIONS 162 (1952). Judge Jess

position that a use of armed force violates Article 2(4) of the Charter only if it is dire

the territorial integrity or political independence of a State.

50. See Joint Chiefs of Staff, Joint Publication 1-02, Department of Defense D

Military and Associated Terms, (Apr. 12, 2001, as amended through June 9, 2004

added) [hereinafter DoD Dictionary].

51. Despite the fact that the US embassy in Beirut had been bombed just six month

United States had not taken any additional precautions at the Beirut barracks, nor

had the on scene commander requested an ROE review or revision. The incident ra

questions about why, in such a high-risk environment, the sentries’ weapons were 

52. BRUCE BERKOWITZ, THE NEW FACE OF WAR: HOW WAR WILL BE FOUGHT I

CENTURY 117 (2003) (reporting that the safety of the Cole “depended totally on a 

twenty-year-old sailors armed with unloaded M-16s, squinting into the noonday su

to figure out why two guys in a skiff were waving at them as they approached”).

53. Perhaps the best known case concerned General John LaVelle, USAF, comma

Seventh Air Force in Viet Nam in 1971, who was relieved of command and demoted 

relating to violations of applicable ROE and reporting requirements. See BERKOWIT

More recently, an Illinois Air National Guard pilot received non-judicial punish

Article 15 of the Uniform Code of Military Justice for, inter alia, violating t

engagement during Operation Enduring Freedom in Afghanistan. The flag officer w

the punishment found that the pilot “blatantly ignored the applicable rules of enga

special instructions.” See U.S. Pilot Found Guilty in ‘Friendly Fire” Incident, CNN.

July 6, 2004, at http://www.cnn.com/2004/LAW/07/06/pilot.friendly.fire/.

54. Self-defense is an affirmative defense under the Uniform Code of Justice. Rule 

Martial (R.C.M.) 916(e), Manual for Courts Martial (2002). A similar rule app

brought before the International Criminal Court (ICC). To prevail on a defense of 

before the ICC, the conduct must have been a “reasonable” response to an im

unlawful use of force. Rome Statute of the International Criminal Court, July 1

31(1)(c), U.N. Doc. A/CONF.183/9, reprinted in 37 INTERNATIONAL LEGAL MAT

(1998) (the United States is not a party). The Rome Statute also limits the defense of o

orders. Responsibility for crimes falling within the Rome Statute is excluded only i

acting under a legal obligation to obey orders (1) did not know the order was unlaw

the order was not manifestly unlawful. Id. art. 33.

55. See United States v. Hensel, 699 F.2d 18, 28, 29 (1st Cir.),cert. denied, 461 U.S. 95

56. See Chairman, Joint Chiefs of Staff, Standing Rules of Engagement for U.S. F

Inst. 3121.01 (series). The SROE replaced what were known as the “Peacetim

Engagement.” Most of the 2000 version (CJCS Inst. 3121.01A) is classified, with the 

Enclosure A, which sets out the SROE for self-defense [hereinafter CJCS 3121.01A

ROE for joint operations are included in Appendix 8 (Rules of Engagement) t

(Operations) of the applicable operation plan or operation order.

57. See CJCSI 3121.01A, supra note 56, Encl. A, ¶ 1(a) (SROE are applicable during 

operations, contingencies, terrorist attacks, or prolonged conflicts outside th

jurisdiction of the United States”). An exception is made for US forces under the 

control of a multinational force. Id. ¶ 1(c).

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(Mar. 26, 2004 draft) [hereinafter Joint Doctrine for Homeland Security].

59. Id. at IV-17. See also William J. Fenrick, Legal Limits on the Use of Force b

Warships Engaged in Law Enforcement, 18 CANADIAN YEARBOOK OF INTERNATIONA

45 (1980).

60. See Coast Guard MLEM, supra note 18, ¶ 4.E.1, which provides that Coast Guar

adhere to the SROE under the following conditions: (1) when the unit (wherever 

even if conducting a Coast Guard mission at the time) determines that it must ta

defense of itself or other US forces in the vicinity; (2) when the unit is under the tac

of the DoD (for any purpose) when operating outside US territory (seaward of 

territorial sea); or (3) when engaged in national self-defense, as authorized by a

designated in the SROE. The SROE authority to exercise “national self-defense” in th

express authorization does not currently extend to the Coast Guard. Id. at 4-3.

61. See Navy MIO Doctrine, supra note 16, ¶ 2.6.1. Naval doctrine acknowled

sanctioning body’s resolution prescribes the level of force authorized in condu

However, “the wording is often ambiguous.” Id. Accordingly, MIO units must 

national interpretations of the resolution and the ROE.

62. North Atlantic Treaty Organization, NATO Rules of Engagement, MC362 (19

63. US forces operating under the OPCON or TACON of a multinational force 

follow the mission accomplishment ROE of the multinational force if authorized by t

Command Authorities; however, they always retain the right to use necessary and p

force for unit and individual self-defense in response to a hostile act or demonstr

intent, just as they do when under Coast Guard OPCON or TACON. See CJCS Ins

supra note 56, Encl. A, ¶¶ 1.c & 1.f.

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

65. Richard Zeigler, Ubi Sumus? Quo Vadimus? Charting the Course of Maritime 

Operations, 43 NAVAL LAW REVIEW 1 (1996).

66. Mike Spence, Lessons for Combined Rules of Engagement, U.S. NAVAL 

PROCEEDINGS, Oct. 2000, at 56–60 (observing that dealing with ROE is difficult en

only one nation’s armed forces are engaged; however, problems multiply ra

consistent ROE must be developed for multinational forces).

67. It is the policy of the United States that the armed forces of the United States 

with the “law of war” during all armed conflicts, however, such conflicts may be ch

The “law of war” encompasses all international law for the conduct of hostilities tha

on the United States or its individual citizens. See Secretary of Defense, DOD Direct

DoD Law of War Program, Dec. 9, 1998; Chairman, Joint Chiefs of Staff, Implemen

DOD Law of War Program, CJCS Instruction 5810.01B, Mar. 25, 2002.

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

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

On occasions when injury to the United States or to citizens thereof is comm

threatened in violation of the principles of international law or in violation o

existing under a treaty or other international agreement, the senior officer pre

shall take such action as is demanded by the gravity of the situation. In time o

action involving the use of force shall be taken only in consonance with the pro

of [Article 0915].

Article 0915 limits the use of force against another State to cases of self-defense ag

acts or hostile intent directed against the unit and, when appropriate, in defense of 

their property and US commercial assets in the vicinity.

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intent” are defined at A-5. See generally Richard J. Grunawalt, The JCS Stand

Engagement: A Judge Advocate’s Primer, 42 AIR FORCE LAW REVIEW 245 (1997). S

Palmer, Unwrapping the ROE Axle, U.S. NAVAL INSTITUTE PROCEEDINGS, May 

(highlighting the inherent and independent force of self-defense ROE fro

accomplishment ROE).

71. CJCSI 3121.01A, supra note 56, Encl. A, at ¶ 5.f.

72. Id. Encl. A, at ¶ 8(2).

73. See, e.g., Navy MIO Doctrine, supra note 16, Annex D, ¶ D.3.1 (“boarding 

standing rules of engagement” for MIO boardings).

74. See Secretary of Defense Directive of 16 May 2003; Chief of Naval Operatio

311903Z July 2003. DoD considers warning shots a signal to an approaching vessel 

do not constitute a use of force.

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

76. 18 U.S.C.A. § 1385 (West 2005). See also Annotation, Construction and Applica

Comitatus Act (18 U.S.C.A. § 1385), and Similar Predecessor Provisions, Restricting U

States Army and Air Force to Executive Laws, 141 AMERICAN LAW REPORTS, FEDERAL 

Although the PCA directly addresses only the Army (and later the Air Force), Congr

the Secretary of Defense to promulgate regulations prohibiting the Navy and Marine 

directly participating in civilian law enforcement activities. 10 U.S.C.A. §§ 371–382 (

77. Joint Doctrine for Homeland Security, supra note 58, at I-13 to I-15. Navy c

missions include measures to combat terrorism, counter-narcotics operations, natio

special events, critical infrastructure and key asset protection, support for natural an

disasters response operations and for chemical, biological, radiological, nuclear an

explosive (CBRNE) consequence management.

78. CJCSI 3121.01A, supra note 56, Encl. A, ¶ 1(i). The Naval Doctrine for Military 

Other-Than-War distinguishes MOOTW involving the use/threat of force (co

MOOTW not involving the use/threat of force (noncombat). See Navy MOOTW 

supra note 16, at 1-2. Such operations often overlap with what are now referred to as 

Stability Operations (SASO). MIO and counter-proliferation measures are cat

MOOTW. Id. at 1-3 & ¶ 3.2.2.

79. Id. at IV-17 to IV-18.

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

81. Id. at IV-18. The applicable instruction is CJCSI 3121.02A, May 31, 2000. The 

does not apply to US military units or personnel while under OPCON or TACON 

Guard in support of counter-narcotics operations. Such units instead follow th

CGUFP. See CJCSI 3121.02A, supra note 56, ¶¶ 3.c & 3.e.

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

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

84. Coast Guard MLEM, supra note 18, at 1-6. Portions of the MLEM are not r

foreign governments. Id. Chapter 4 is titled “Use of Force Policy and the Standi

Engagement.” Additional guidance is contained in the U.S. Coast Guard, Maritim

Drug and Alien Migrant Interdiction Operations (AMIO), COMDINST M16247.4/N

(2000).

85. “Operational control” is the authority to direct all aspects of military ope

training necessary to accomplish the mission. “Tactical control” is mission-spec

specific. It is defined as the command authority over assigned or attached units ma

for tasking that is limited to the detailed direction and control of movement or 

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control includes tactical control. See DoD Dictionary, supra note 50.

86. Coast Guard MLEM, supra note 18, ¶ 3.C.1.a.1.

87. Id. ¶ 4.B.1.a.

88. 14 U.S.C.A. § 637(c) (West 2005). By the terms of the statute, it applies to n

vessels (or aircraft) on which one or more members of the Coast Guard are assigned 

10 U.S.C. § 379.

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

90. Id. ¶ 4.B.3.b. See also MODEL PENAL CODE § 3.11(2) (1985) [hereinafter MPC]

Penal Code serves as a template for defining the elements of crimes and defens

jurisdictions and sets out several defenses to what would otherwise be crimes involvi

force. The Code is not legally binding.

91. Coast Guard MLEM, supra note 18, at 4-4.

92. The CGUFP does not distinguish between “opposed” boardings and “non

boardings. See Coast Guard MLEM, supra note 18, ¶ 4.A.3.

93. See id. ¶ 4.B.3.b.5.

94. The CGUFP prohibits warning shots other than against noncompliant vessels.Id

95. Id. at 4-14. Note that disabling fire is permitted even when there is a risk of “

injury, but it will be discontinued if there is a “substantial” risk of injury. As p

“substantiality” qualification apparently refers to the probability of risk, not its ma

96. Note that the statute provides for an indemnity, not immunity. The indemnity 

to those acting under that commanding officer’s direction for any penalties or 

damages arising out of the action. 14 U.S.C.A. § 637(b) (West 2005).

97. See, e.g., The I’m Alone Arbitration (Can. v. U.S.), 3 UNITED NATIONS R

INTERNATIONAL ARBITRAL AWARDS 1609 (1933) (use of disabling fire); Ford v. U

272 U.S. 593 (1924) (warning shots); United States v. 63 Kegs of Malt, 27 F.2d 741 (2

(warning shots); The Vinces, 20 F.2d 164 (E.D.S.C. 1927) (warning shots and disab

98. See CHARLES M. FUSS, SEA OF GRASS: THE MARITIME DRUG WAR 1970–1990, a

159, 193 & 248 (1996). On October 10, 1980, the USCGC Point Francis became the fi

to use disabling fire against a drug smuggling vessel.

99. See U.S. Coast Guard, Operation New Frontier Procedures Manual, CO

M3120.2 (2003) (public access is restricted because the manual is designated for 

only).

100. See RESTATEMENT, supra note 20, § 721, comment c & note 2.

101. In United States v. Hensel, 699 F.2d 18 (1st Cir. 1983), the court construed 14 

and its legislative history and concluded that Congress did not intend that the st

authorize the Coast Guard to conduct searches that would violate international law

102. See United States v. Villamonte-Marquez, 462 U.S. 579 (1983) (holding 

Amendment was not violated when customs officers boarded a US vessel, pursu

authority under 19 U.S.C. § 1581(a) to go on board any vessel at any place in the U

and examine the vessel’s documents without any suspicion of wrongdoing); see 

States v. Flores-Montano, 542 U.S. 149 (2004) (holding that Fourth Amendme

require Customs officer to have “reasonable suspicion” to conduct a non-destructiv

vehicle’s fuel tank when vehicle crossed US border).

103. U.S. CONST. amend. IV.

104. U.S. CONST. amend. V.

105. The Constitutional safeguards apply to interceptions and boardings even 

boarding does not have a law enforcement purpose.

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(1992).

107. See, e.g., Saucier v. Katz, 533 U.S. 194 (2001) (holding that officer had qualifie

to suit for alleged excessive force); Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003

108. For example, a defendant charged with violating 18 U.S.C. § 111 (forcibly 

resisting or impeding certain federal officers designated in 18 U.S.C. § 1114) mig

defense that the defendant’s use of force against the officer was justified by the off

excessive force against the defendant. A person is not justified in resisting arrest by 

ground that the arrest is unlawful. See MPC, supra note 90, § 3.04(2)(a)(i).

109. See, e.g., United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. deni

1001 (1975). The Supreme Court has ruled that the illegality of a defendant’s deten

deprive the government of the opportunity to prove his guilt. United States v. Cre

453, 474 (1980).

110. See Terry v. Ohio, 392 U.S. 1 (1968). But see United States v. Draper, 536 U.S

(holding that, under the circumstances presented, the presence of three police offic

that was stopped did not constitute a seizure of the persons on the bus).

111. Whenever a law enforcement officer has acted in a way that denies a person the 

walk away, a Fourth Amendment “seizure” has occurred. Terry, 392 U.S. 

reasonableness of the officer’s suspicion is determined by a “totality of the circums

United States v. Arvizu, 534 U.S. 266 (2002). The Fifth Circuit has held that the 

grounds” standard applicable to a right of approach boarding (under Article 110 of th

Convention) satisfies the “reasonableness” test under the Fourth Amendment. See U

v. Williams, 617 F.2d 1063, 1083 (5th Cir. 1980) (applying Article 22 of the f

Convention on the High Seas).

112. United States v. Gomez, 633 F.2d 999, 1006 (2d Cir. 1980).

113. Tennessee v. Garner, 471 U.S. 1, 7–12 (1985) (holding that the use of deadly fo

fleeing suspect is only reasonable if the officer has probable cause to believe that the s

a significant threat of death or physical injury to the officer or others). See also MPC

90, § 3.07(b).

114. Graham v. Connor, 490 U.S. 386, 388 (1989).

115. Id. at 397.

116. Id. at 396.

117. Id.

118. Saucier v. Katz, 533 U.S. 194, 205 (2001).

119. United States v. Verdugo-Uriquidez, 494 U.S. 259, 274–75 (1990); see also 

Davis, 533 U.S. 678, 693 (2001) (confirming it is “well established that certain co

protections available to persons inside the United States are unavailable to aliens ou

geographic borders”). Some treaties of friendship, commerce and navigation (F

“national treatment” to nationals of the other State. Such treaties have been held 

executing. Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) (holding that the 

between the United States and Japan “operates of itself without the aid of any legisl

120. United States v. Peterson, 812 F.2d 486, 491 (9th Cir. 1987) (holding that a fore

reasonable if it conforms to the requirements of foreign law). But see United States v

132 F. Supp.2d 168, 186–87 (S.D.N.Y. 2001) (holding that Fifth Amendment 

relating to self-incrimination apply to the use, in a US court, of a statement obtained 

custodial interrogation by US government agents because the Fifth Amendment 

occurs when the statement is used at trial, not when it was obtained).

121. See RESTATEMENT, supra note 20, § 722, comment m & note 16. In Rasul v. Bu

466 (2004), the Court held that the Guantanamo Bay Navy Base in Cuba, over which 

States exercises “complete jurisdiction and control” under the lease, falls within th

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2241. Accordingly, a federal court with venue may determine whether the detaine

held in custody in violation of the Constitution or the laws or treaties of the United 

Supreme Court’s holding so far does not extend to detentions at other overseas locat

not under the “plenary and exclusive jurisdiction” of the United States.

122. United States v. Toscanino, 500 F.2d 267, 274–75 (2d Cir. 1974). In Ker v. Illin

436 (1886), however, the Court held that a defendant who was forcibly abducted in P

in the U.S. was not entitled to have the charges dismissed on grounds that his right to 

was violated. See also Frisbie v. Collins, 342 U.S. 519 (1952); RESTATEMENT, supra no

123. Acting under Article 41 of the Charter, the Council cannot authorize “armed fo

force may only be authorized under Article 42. For some, that raises the question wh

force can be used to enforce council resolutions adopted under Article 41; however, 

Council appears to have answered the question in the affirmative in its embargo 

against the former Rhodesia. See Soons, supra note 43, at 321.

124. See Louis Sohn, Peacetime Use of Force on the High Seas, in THE LAW 

OPERATIONS 38 (Horace B. Robertson, Jr. ed., 1991) (Vol. 64, US Naval W

International Law Studies).

125. LOS Convention, supra note 14, art. 88.

126. Id. art. 301.

127. In 1974 the United Nations General Assembly attempted to define “agg

resolution. According to the Assembly’s resolution, aggression is the use of arme

State against the sovereignty, territorial integrity or political independence of anothe

any other manner inconsistent with the Charter of the United Nations, as def

resolution. U.N. General Assembly, Resolution 3314 (XXIX) of Dec. 14, 1974, G.

Sess., Supp. No. 31 (A/9631), at 142 [hereinafter Aggression Resolution]. For a discu

US position on defining “aggression” under the Rome Statute of the Internation

Court, see UNITED STATES DEPARTMENT OF STATE, DIGEST OF UNITED STATES P

INTERNATIONAL LAW 2000, at 286–91 (2001).

128. Britain’s seizure of US merchant vessels was a principal cause of the War of 181

President Wilson sought a declaration of war after German submarines sank U

vessels at a time when the United States had declared its neutrality in World W

however, any response must be consistent with Articles 2(4) and 51 of the UN 

construed by the International Court of Justice in the Military and Paramilitary Acti

against Nicaragua decision and the Oil Platforms case. Military and Paramilitar

(Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) (merits), reprinted in 25 INTERNATIO

MATERIALS 1023 (1986); Oil Platforms (Iran v. U.S.), 2003 I.C.J. ___ (Nov. 6) (merit

at http://www.icj-cij.org/icjwww/idocket/iop/iopframe.htm. See also William H. T

Defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 

(criticizing the court for its excursion into obiter dictum and criticizing the court’s t

the armed attack and self-defense issues). Under the General Assembly definition, a

the armed forces of a State on the land, sea or air forces, or marine or air fleets of an

constitutes aggression. Aggression Resolution, supra note 127, art. 3(d). The definit

to be limited to attacks on warships and naval auxiliaries. However, in its dispute w

over Canada’s seizure of the F/V Estai on the high seas in 1995, Spain argued that Can

warning shots to stop the vessel constituted a use of force in violation of Article 

Charter. Fisheries Jurisdiction (Sp. v. Can.), 1998 I.C.J. 432, 465 (Dec. 4) 

jurisdiction). See also D. P. O’CONNELL, II, THE INTERNATIONAL LAW OF THE SEA 

Shearer ed., 1984). However, nothing in the decision by the International Court of Ju

case or by the International Tribunal on the Law of the Sea in the M/V Saiga case disc

suggests that either tribunal considered the use of military weapons in stopping and 

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the UN Charter or a violation of Article 301 of the LOS Convention.

129. See Convention for the Suppression of Unlawful Acts Against the Safety of Civ

Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570 (“Montreal Convention”); Protoco

an Amendment to the Convention on International Civil Aviation, Montreal, M

reprinted in 23 INTERNATIONAL LEGAL MATERIALS 705 (1984). The United States is 

to the 1984 protocol, presumably out of concern over its provisions for com

jurisdiction. Article 3 bis of the protocol requires States to refrain from using weap

civil aircraft in flight. See also Aircraft Sabotage Act of 1984, codified in part at 18 

(criminalizing attacks on civil aircraft). Congress later made provisions for immu

involving US assistance to foreign enforcement officials. See 22 U.S.C.A. § 2291

Phillip A. Johnson, Shooting Down Drug Traffickers, in LIBER AMICORUM PROF

GRUNAWALT 79 (Michael N. Schmitt ed., 1998) (Vol. 72, US Naval War College In

Law Studies).

130. See, e.g., LOS Convention, supra note 14, art. 73 (limiting enforcement measu

to coastal States in the EEZ). See also Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 1

24) (Oda, J. dissenting) (predicting that disputes arising out of Article 73 enforceme

will likely be excluded from the LOS Convention’s compulsory dispute settlement p

virtue of Article 298 of the convention).

131. See Agreement for the Implementation of the Provisions of the United Nations 

on the Law of the Sea of 10 December 1982 Relating to the Conservation and Man

Straddling Fish Stocks and Highly Migratory Fish Stocks, Dec. 4, 1995, U.N. Doc. A/

37 (1995), S. TREATY DOC. NO. 104-24 (1996), reprinted in 34 INTERNATIO

MATERIALS 1542 (1995) [hereinafter the Straddling Fish Stocks Agreement]. Artic

agreement limits the use of force in fisheries enforcement actions.

132. See, e.g., United States-Liberia Bilateral WMD Boarding Agreement, supra not

& art. 9.

133. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts again

of Maritime Navigation, art. 8, para. 2 (adding Article 8bis to the SUA Convention), a

17, 2005, IMO Doc. LEG/CONF.15/DC/1 [hereinafter 2005 Protocol to the SUA Co

The new 2005 Protocol article provides that:

When carrying out the authorized actions under this article, the use of force 

avoided except when necessary to ensure the safety of its officials and persons on 

or where the officials are obstructed in the execution of the authorized actions. A

of force pursuant to this article shall not exceed the minimum degree of force w

necessary and reasonable in the circumstances.

134. See United States v. Postal, 589 F.2d 862, 870 (5th Cir.) (“the boarding of a v

high seas by its flag state is not an international event. The consequences are solely 

matter. The boarding of a foreign vessel is, of course, a matter of international c

might call for more restraint on the part of the boarding state.”), cert. denied, 4

(1979).

135. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U

[hereinafter ICCPR]; see also Convention Against Torture and Other Cruel, In

Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The U

ratified the ICCPR in 1992 subject to five reservations, four understanding

declarations. See S. REP. 102–123 (1992); 138 CONG. REC. 8070 (1992).

136. SeeICCPR, supra note 135, art. 2(1) (requiring States-parties to protect the defin

all individuals “within its territory and subject to its jurisdiction”); see also RESTATEM

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which the convention is deemed to be self-executing.

137. See, e.g., United States-Liberia WMD Boarding Agreement, supra note 6, art. 4(5

138.2005 Protocol to the SUA Convention, supra note 133, art. 8bis, para. 7.

139. It is beyond the scope of this article whether an individual would have stand

court to object to enforcement actions by the United States that went beyond 

contravention of an applicable bilateral boarding agreement with the flag State.

140. The diplomatic correspondence, claims and briefs exchanged betwee

governments are reprinted in DEPARTMENT OF STATE, ARBITRATION SERIES NO. 2 

I’m Alone Case (1931–1935) [hereinafter I’m Alone Case]. The interim decision is a

in the “I’m Alone” Arbitration (Can. v. U.S.).

141. Convention for the Prevention of Smuggling of Intoxicating Liquors (United S

Britain), Jan. 23, 1924, reprinted in I’m Alone Case, supra note 140, vol. I, annex B. 

the Convention provided the US jurisdiction to board British vessels beyond US w

within a distance from the coast the target vessel could traverse in one hour. Article 

for arbitration of disputes.

142. Under customary law, by acting as a “mothership” supplying contraband to c

in violation of US laws, the I’m Alone might be said to be “constructively present” in 

The constructive presence doctrine is implicit in Article 111 of the 1982 LOS Con

Article 23 of the 1958 Convention on the High Seas, both of which in describing the 

pursuit recognize that pursuit may be commenced if the pursued vessel “or one of it

the pursuing State’s territorial sea or internal waters. See also MYRES S. MCDOUGAL 

T. BURKE, PUBLIC ORDER OF THE OCEANS 909–11 (1962, rev. 1987). Under the nar

the doctrine, a vessel is only constructively present when it works with its own boa

coastal State law. Under the broader view, the contact boats used to shuttle the ill

shore need not be from the mothership. See ROBIN R. CHURCHILL & A. VAUGHAN 

LAW OF THE SEA 215–16 (3d ed. 1999).

143. Joint Interim Report of the Commissioners, the I’m Alone Case (1933), supra n

6, at 5.

144. Id. Initially, the Commission concluded only that the intentional sinking was 

by any provision of the 1924 treaty. Later, in their final report, they added that the 

not justified “by any principle of international law.” Ultimately, compensation was d

owners on the ground that they were US nationals, but the arbitrators ordered the U

to apologize and pay $25,000 in compensation to the United Kingdom for its insu

flag. Joint Final Report of the Commissioners, the I’m Alone Case (1935), supra not

at 3–4.

145. Part V of the LOS Convention, which governs enforcement of marine resourc

EEZ, similarly limits “enforcement measures” available to the coastal State to those 

but it appears to take a broad view of necessity. Article 73 provides that the coa

authorized to “take such measures, including boarding, inspection and judicial pro

may be necessary to ensure compliance with the laws and regulations adopted in conf

this Convention.” LOS Convention, supra note 14, art. 73 (emphasis added). This is 

equivalent to the standard in 14 U.S.C. § 89 (“All necessary force to compel complia

took a narrower view of Article 73 in its dispute with Canada over the 1995 seizur

Estai. Spain’s counsel suggested in oral argument that because Article 73 does n

authorize the use of force, any use of force would violate international law. Fisheries 

(Sp. v. Can.) (Oral argument for Spain by Counsel Sanchez on June 9, 1998), at http

cij.org/icjwww/idocket/iec/iecframe.htm.

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INTERNATIONAL LAW REPORTS 485 (1962). The two governments agreed to 

commission of enquiry to determine the vessel’s location at the time of interceptio

147. Id. at 499 (emphasis added).

148. The use of the phrase “proved necessity” suggests that the burden of pr

Denmark.

149. This conclusion may mean nothing more than that if the fleeing vessel’

intervenes and persuades the vessel to stop, the use of force is no longer necessa

British intervention permitted Red Crusader to escape, it is not clear the British i

would have been excused.

150. Id. at 500.

151. Id.

152. The M/V “Saiga” (No. 2) Case (St. Vincent and the Grenadines v. Guinea) (In

of the Sea 1999) (merits), 120 INTERNATIONAL LAW REPORTS 143, repri

INTERNATIONAL LEGAL MATERIALS 1323 (1999) [hereinafter The M/V Saiga].

153. Prompt release actions may be brought under Article 292 of the LOS Conventi

the release of a vessel and crew upon payment of reasonable security.

154. The M/V Saiga, supra note 152, ¶ 153.

155. Id. ¶ 155.

156. Id. ¶ 153.

157. Straddling Fish Stocks Agreement, supra note 131, art. 22.

158. Id. art. 22(1)(f). Before extending the Article 22 limits outside the fisheries e

context it might be useful to consider that some fisheries enforcement regimes d

permit boarding officers to be armed while conducting boardings. See, e.g., Northw

Fisheries Organization (NAFO), Conservation and Enforcement Measures, 

NAFO FC Doc. 04/1 Serial No. N4936, available at http://www.nafo.ca/activitie

AcFrFish.html. Unarmed boardings would be unrealistic for vessels that might be 

trafficking in narcotics, weapons or humans, and any use of force policy must re

differing risk levels presented in the various contexts.

159. The M/V Saiga, supra note 152, ¶ 156.

160. See Tim Zimmermann, If World War III Comes, Blame Fish, U.S. NEWS & WOR

Oct. 21, 1996, at 59–60. The article reports that “fish are the reason that Russians are 

Japanese, Tunisians are shooting at Italians, and a lot of people are shooting at Sp

goes on to report that three Thai fishermen were shot dead by Vietnamese maritime 

two Spaniards were injured by gunfire from a Portuguese patrol boat, Iceland author

of force to exclude Danish fishermen from its waters, and a Malaysian naval vessel fir

fishing boat, killing the master and his 14-year-old son. The United Kingdom dispa

frigates to protect British fishing boats during the several “cod wars” with Iceland f

1976. See also O’CONNELL, supra note 128, at 1071-72 n.67 (collecting cases a

involving the use of force against US vessels and those of other States).

161. The use of force to intentionally sink a vessel with persons aboard would consti

force” (force that is likely to cause death or serious physical injury). The standards f

deadly force are much more stringent than those applicable to stopping a noncompli

162. Recent decisions by the International Court of Justice highlight the importance 

the burden and quantum of proof in such cases. See Oil Platforms, supra note 128 

Separate Opinion, ¶¶ 30–39), reprinted in 42 INTERNATIONAL LEGAL MATERIALS 133

the S.S. Lotus case, the tribunal ruled that France, as the State challenging Turkey’

jurisdiction, had the burden of proving that Turkey’s action violated an applic

international law. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9 (Sept. 7).

133

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Convention, supra note 14, art. 94(1) (establishing flag State’s duty to “effectively” 

jurisdiction and control).

164. For example, in 1964, the United States protested an incident that occurred 16 

Soviet coast in which a Soviet vessel fired on the unarmed American merchant 

Katingo, apparently because the American vessel failed to clear customs before d

Soviet port. The United States also protested a 1969 incident in which a Peruvian gu

on an unarmed US tuna boat located 40 miles off the Peruvian coast, breaking the 

mast and radio antenna. The United States argued there was no justification under in

law for firing on an unarmed fishing vessel. See O’CONNELL, supra note 128, at 107

165. CHURCHILL & LOWE, supra note 142, at 461; see also O’CONNELL, supra note 1

74 (also relying on the I’m Alone case).

166. Basic Principles on the Use of Force and Firearms by Law Enforcement Official

E/CN.15/1996/16/Add.2 [hereinafter Basic Principles]. The Basic Principles declare 

to be non-derogable, even in times of public emergency. Id. para. 8. Althoug

Principles developed by the UN Economic and Social Council are not legally b

European Court of Human Rights treats them as if they were. See, e.g., Öcalan v Tu

Eur. Ct. H.R. 46221/99, ¶ 196.

167. UN Code of Conduct for Law Enforcement Officials, adopted by the UN Gener

Resolution 34/169, Dec. 17, 1997, U.N. Doc. A/RES/34/169 (1997) [hereinaft

Conduct].

168. Basic Principles, supra note 166, para. 2. The European Court of Human Righ

the Government of Turkey bore responsibility for failing to equip its security force

lethal force equipment when they responded to a large internal civil disturbance, 

forces no alternative to the use of deadly force. Güleç v. Turkey, [1998] Eur. Ct. H.R. 

71, 73, 83.

169. As noted above, under Articles 297 and 298 of the LOS Convention certa

concerning law enforcement or military activities may be exempt from the C

compulsory dispute settlement procedures. See LOS Convention, supra note 14, arts

Private suits for damages may be subject to the defenses of sovereign immunity or th

doctrine. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 

(dismissing suit by tanker owner for damage to vessel by Argentine naval gunfire)

State doctrine applies only to the State’s acts within its territory, not to those occu

high seas.

170. See LOS Convention, supra note 14, arts. 95 & 96.

171. Navy MIO Doctrine, supra note 16, ¶¶ 2.4 & 2.5.

172. See, e.g., HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 180 n.89 

Dana ed, 8th ed. 1866) (George G. Wilson rev. ed. 1936) (the “right to stop a foreig

visit her must carry the right to use the requisite force, if the exercise of the right is res

it is not a right in any sense worth disputing”).

173. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, r

INTERNATIONAL LEGAL MATERIALS 679 (1969). The United States is not a party.

174. For example, a WMD shipment to a suspected terrorist organization being tra

sea in the Persian Gulf area might implicate one or more resolutions on WMD p

global terrorism and State-specific embargoes.

175. See U.N. Charter, supra note 44, arts. 24(1), 39 & 1(1).

176. Id. art. 25. The means by which a decision of the Council is to be “carried o

defined; however, they must be “in accordance with” the Charter, including the p

principles articulated in Articles 1 and 2.

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the parties. However, such agreements must be compatible with the LOS Conventi

Convention, supra note 14, art. 293(1).

178. See United States-Liberia Bilateral WMD Boarding Agreement, supra note 6, a

States-Marshall Islands Bilateral WMD Boarding Agreement, supra note 6, art. 9.

179. The “M/V Saiga,” supra note 152, ¶ 156.

180. See United States-Liberia Bilateral WMD Boarding Agreement, supra note 6, a

181. The boarding agreement expressly preserves the right of the parties to exercise 

approach and visit under international law. See id, art. 4(4).

182. Supplementary Arrangement Between the Government of the United States 

and the Government of the Republic of Panama to the Arrangement Between the G

of the United States of America and the Government of the Republic of Panama for S

Assistance from the United States Coast Guard for the National Maritime Service of 

of Government and Justice, Feb. 5, 2002, art. X, 2002 U.S.T. Lexis 51, availab

www.state.gov/t/np/trty/32859.htm. Any use of force must comply with Article 

agreement.

183. Id. art. XVII.

184. See id. art. 1(6)(a). The Panama Agreement permits WMD boardings b

personnel” only when law enforcement personnel are not available. See United Sta

Bilateral WMD Boarding Agreement, supra note 6, art. 1, para. 4 (revising Articl

existing agreement).

185. U.S. National Imagery & Mapping Agency, International Code of Signals for Vi

and Radio Communications, NIMA Publ’n 102 (1969, rev. 2003), at 83 [herein

Publication 102].

186. Navy MIO Doctrine, supra note 16, ¶ 2.4. In general, mission accomplishm

MOOTW are more restrictive than in war. SeeJoint Doctrine for MOOTW, supra no

187. The identification need not include the enforcing vessel’s name. The vessel’s (o

nationality and status as a warship is sufficient.

188. The “M/V Saiga,”supra note 152, ¶ 156.

189. Article 9 of the WMD boarding agreements between the United States, Lib

Marshall Islands incorporates a requirement for visual and auditory signals.

190. The Tribunal ultimately concluded, on conflicting assertions, that Guinea h

warn the Saiga before opening fire. The “M/V Saiga,” supra note 152, ¶ 157. If wa

given, P35 did not document the warnings by audiotape or videotape. The Tribu

identify which of the States had the burden of proof on the question whether wa

given.

191. There is no requirement to identify the vessel by name. US Coast Guard cutte

often display the rotating blue light associated with law enforcement vehicles. 

expressly authorized only in Inland Waters. See 33 C.F.R. § 88.11 (2005).

192. The International Code of Signals consists of alphanumerically coded signals 

transmitted between vessels by radio, signal flags, semaphore or flashing light. The 

each signal is set forth in a readily available publication printed in several language

Publication 102, supra note 185.

193. Coast Guard MLEM, supra note 18, ¶ 4.3 & Table 4-1.

194. Navy MIO Doctrine, supra note 16, ¶ 6.6. Any decision to use “full force,” w

include sinking the vessel, must be evaluated not only under the applicab

accomplishment ROE but also governing international law standards, such as tho

I’m Alone case.

195. 14 U.S.C.A. § 637(a)(2) (West 2005).

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the Coast Guard had failed to fire warning shots before firing into his vessel, uni

killing another crewman, the defendant was justified in resisting the boarding w

Although the court concluded that the former statutory requirement to fire wa

should be “rigidly administered” “for the good of the service,” it also concluded 

“perfectly clear that the defendant knew his boat was being chased.” Lewin v. Unit

F.2d 619, 620 (1st Cir. 1933).

197. See Coast Guard MLEM, supra note 18, ¶ 4.D & Table 4-1.

198. Navy MIO Doctrine, supra note 16, ¶ 6.6.1.2.

199. United States v. Streifel, 665 F.2d 414, 424 (2d Cir. 1981).

200. Id. at 419.

201. Id. at 424. The court quoted its earlier decision in United States v. Gomez:

A law enforcement officer who has duly announced his authority and w

attempted to stop and question a suspect is not required “to simply sh

shoulders,” ... and abandon his investigation... [T]he officer has the right to de

suspect against his will... Indeed, the officer “is entitled to make a forcible stop

633 F.2d 999, 1006 (2d Cir. 1980) (emphasis added), cert. denied, 450 U.S. 994 (198

202. Streifel, 665 F.2d at 424.

203. NIMA Publication 102, supra note 185, at 83.

204. The port State control regime is a response to the ineffectiveness of a regim

solely on flag State jurisdiction and control.

205. Adam B. Seigel, Enforcing Sanctions: A Growth Industry, 46 NAVAL WAR COLL

130, 132 (1993).

206. McDougal, supra note 20, at 557–58. Professor McDougal distinguished the us

law enforcement measures against private actors from forcible self-help and 

measures against States for violations of international law. He goes on to report “I’m 

confess that at one time I lent my support to the suggestion that article 2(4) and 

articles did preclude the use of self-help less than self-defense. On reflection, I thin

very grave mistake.” Id. at 559. Colombos devoted a chapter to “forcible measures 

used in time of peace.” C. JOHN COLOMBOS, INTERNATIONAL LAW OF THE SEA ch

1967).

207. See, e.g., 14 U.S.C.A. § 637 (West 2005).

208. Ivan A. Shearer, The Development of International Law with Respect to the Law 

Role of Navies and Coast Guards in Peacetime, in THE LAW OF ARMED CONFLICT: INT

MILLENNIUM 429, 441 (Michael N. Schmitt & Leslie C. Green eds., 1998) (Vol. 71, U

College International Law Studies).

209. Graham v. Connor, 490 U.S. 386, 396 (1989); see also United States v. Hensel, 

(1st Cir.) (use of force by Canadian enforcement vessels to board vessel smuggling 

cert. denied, 461 U.S. 958 (1983). The stricter test set out in Tennessee v. Garner will c

disabling fire would constitute “deadly force.” See supra note 113.

210. See Fuss, supra note 98, at 116.

211. United States v. Del Prado-Montero, 740 F.2d 113, 116 (1st Cir.),cert. denied, 4

(1984). The court also rejected a defense argument that the Navy’s participation 

Posse Comitatus Act, 18 U.S.C. § 1385, citing the former regulation authorizing N

for Coast Guard counter-narcotics operations in 32 C.F.R. § 213.10(c) [repealed]. 

at 116.

212. The United States has adopted an escalating use of force approach that prog

warning shots to disabling fire. Other States do not necessarily follow that order. F

when a marijuana smuggling vessel failed to heed their warning shots, a Canadian e

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crewmembers were located. No one was injured and the operator then stopped t

United States v. Hensel, 699 F.2d 18, 22 (1st Cir.), cert. denied, 461 U.S. 958 (1983)

213. The CGUFP includes limited provisions for non-lethal “higher-level” forc

overcome a vessel operator’s refusal to comply with a boarding demand. The tac

obviate resort to the more dangerous disabling fire alternative. The two non-lethal 

presently authorized include string-ball projectiles and rubber fin-stabilized munit

fired at the operator of the vessel from a 12-gauge shotgun, with the intent of d

operator long enough to allow the boarding party to get aboard. See Coast Guard M

note 18, ¶ 4.D.3.c. & Table 4-1. Neither of the techniques is likely to be effective again

vessel likely to be engaged in transporting WMD or missile delivery systems.

214. See The “M/V Saiga,” supra note 152, ¶ 157.

215. See 72 Tons of Marijuana Seized, NEW YORK TIMES, July 7, 1988. See also Uni

Cadena, 585 F.2d 1252 (5th Cir. 1978) (Coast Guard’s use of machine-gun and dec

stop foreign-flag marijuana smuggling vessel 200 miles off Florida coast).

216. See U.S. DEPARTMENT OF STATE, DIGEST OF UNITED STATES PRACTICE IN INTE

LAW 1989–1990, at 452–56 (2003). Before resorting to disabling fire, the cutter 

fleeing vessel, sprayed water across the vessel’s bow and down its stack and fired wa

across its bow.

217. The doctrine for use of helicopters by special operations forces is classified and 

discussed here. See Navy MIO Doctrine, supra note 16, ¶ 7.3.2.1.

218. The facts are taken primarily from U.S. DEPARTMENT OF STATE, DIGEST OF UN

PRACTICE IN INTERNATIONAL LAW 2002, at 1052–57 (2003).

219. Although Cambodia could not verify the vessel’s registration, it granted 

consent to the boarding if the vessel was in fact registered in Cambodia.

220. See LOS Convention, supra note 14, art. 110. See also Convention on the High S

1958, art. 22, 13 U.S.T. 2312, 450 U.N.T.S.

221. In exercising a right of visit boarding, the enforcing vessel is no longer limited 

boarding teams over by small boat. In contrast to Article 22 of the 1958 Convention 

Seas, which spoke only of sending a boarding team by boat, Article 110 of th

Convention expressly extends the right of visit to military aircraft and any other duly 

ships or aircraft clearly marked and identifiable as being on government servi

Convention, supra note 14, art. 110.

222. See, e.g., Frederic L. Kargis, Boarding of North Korean Vessel on the High Sea

SOCIETY OF INTERNATIONAL LAW INSIGHTS, Dec. 12, 2002, at http://www.asil.o

insigh94.htm; Kevin Drew, Law Allows Search, But Does Not Address Seizure of Cargo

NEWS, Dec. 11, 2002 (quoting Professor John Norton Moore).

223. See, e.g., United States v. Juda, 46 F.3d 961, 969 (9th Cir.) (holding that the Coas

entitled to proceed to verify the ship’s right to fly its flag by examining its docum

necessary, by an examination on board the ship; where the master refused and th

shoot at the Coast Guard boat “the Coast Guard was authorized to seize” the vessel), 

514 U.S. 1090 (1995); United States v. Kahn, 35 F.3d, 426, 430 (9th Cir. 1994) (hold

Coast Guard may legally detain a vessel while awaiting consent of the flag State 

jurisdiction over the vessel).

224. If evidence of criminal activity is discovered, the officials from the State con

boarding generally have two options: prosecute the individuals for violating the 

boarding State, or—in some circumstances—detain the individuals until they can 

to officials of another State with jurisdiction over the offense. As Chief Justice Marsh

in 1825, “the Courts of no country execute the penal laws of another.” The Antelope

Wheat.) 66, 123 (1825).

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Technology Control Regime (MTCR) defines Category I missiles (the most regula

those capable of delivering at least a 500 kilogram payload to a range of at least 300 

See Missile Technology Control Regime, Equipment, Software and Technology An

2004, p. 10, at http://www.mtcr.info/english/Annex2004.doc.

226. Legal Maze over Scud Seizure, BBC NEWS WORLD ED., Dec. 11, 2002

news.bbc.co.uk/2/hi/middle_east/2565905.stm.

227. See, e.g., International Convention for the Suppression of Terrorist Bombin

1997, art. 6(4), U.N. Doc. A/RES/52/164, S. TREATY DOC. 106-6 (1999). The Intern

Commission has long taken the position that a coastal State may not take custody of 

board a foreign vessel in innocent passage through its territorial sea for purposes o

that person to a third State. International Law Commission, Report to the General Ass

YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, vol. II, at 275.

228. See generally M. CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUT JUD

DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW (1995).

229. For a discussion of extradition issues under the 1988 Convention for the Sup

Unlawful Acts Against the Safety of Maritime Navigation, see DIGEST OF U.S. P

INTERNATIONAL LAW 1989–1990, supra note 216, at 111–14.

230. See supra note 145 and accompanying text.

231. MPC, supra note 90, § 3.07.

232. See supra note 113 and accompanying text.

233. Coast Guard MLEM, supra note 18, ¶ 4.B.3.b.2. The MLEM also limits the u

force to situations in which the suspect has failed to obey an order to halt, where suc

feasible and their use would not increase the danger to the officer or others. Id.

234. Id. ¶ 4.B.3.b.4.

235. See CJCSI 3121.01A, supra note 56, Encl. A, ¶ 5; see also Coast Guard MLEM, su

¶ 4.A.5.

236. Coast Guard MLEM, supra note 18, ¶ J.3. See also U.S. Coast Guard, Mariti

Drug and Alien Migrant Interdiction Operations, ¶ 7.15, COMDTINST M16247.4/N

(2000).

237. See CJCSI 3121.01A, supra note 56, Encl. A, ¶ 5.a; see also Coast Guard MLEM

18, ¶¶ 4.A.5, 4.B.2 & App. J.3.

238. See CJCSI 3121.01A, supra note 56, at A-4 to A-5. The meaning of military nec

the law of armed conflict is beyond the scope of this article. See generally A

SUPPLEMENT TO THE COMMANDER’S HANDBOOK OF THE LAW OF NAVAL OPERATI

(A.R. Thomas & James C. Duncan, eds., 1999) (Vol. 73, US Naval War College Intern

Studies) [hereinafter ANNOTATED Supplement].

239. SeeCJCSI 3121.01A, supra note 56, at A-4 to A-6. The meaning of proportionali

law of armed conflict is beyond the scope of this article. See ANNOTATED SUPPLEM

note 238, at 294 n.7.

240. See CJCSI 3121.01A, supra note 56, at A-2, A-3 & A-6.

241. Id. Encl. A, ¶ 5(a).

242. See id. Encl. A, ¶ 7. See also Coast Guard MLEM, supra note 18, ¶ 4.A.5 (note).

243. The Marianna Flora, 4 U.S. (11 Wheat.) 1, 46 (1826).

244. Id.

245. Id. at 50.

246. See United States v. Juda, 46 F.3d 961, 969 (9th Cir.), cert. denied, 514 U.S. 1090 

also Lewin v. United States, 62 F.2d 619 (1st Cir. 1933).

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defense confirms this. See MPC, supra note 90, § 3.04(2)(b)(ii)(B).

248. See CJCSI 3121.01A, supra note 56, Encl. A, ¶ 8.a(1).

249. Australian fisheries enforcement vessels patrolling the Southern Ocean m

exception. Australia has repeatedly demonstrated its commitment to effective enf

marine resource conservation laws through some of the longest “hot pursuits” of sco

in history. See Erik Jaap Molenaar, Multilateral Hot Pursuit and Illegal Fishing in t

Ocean: The Pursuits of the Viarsa 1 and the South Tomi, 19 International Journal of 

Coastal Law 19 (2004) (reporting Australia’s 21-day, 3,900 mile pursuit of F/V Viar

day, 3,300 mile pursuit of F/V South Tomi).

250. See RESTATEMENT, supra note 20, §§ 432–433; United States v. Conroy, 589 

1267–68 (5th Cir. 1979) (upholding Coast Guard enforcement action in Haitian te

with Haiti’s consent).

251. Sept. 4, 2003, available at http://www.state.gov/t/np/rls/fs/23764.htm.

252. U.N. Security Council Res. 1540, supra note 9.

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VI

The Proliferation Security Initiative in 

Maritime Domain

Stuart Kaye*

Introduction

The Proliferation Security Initiative (PSI) is one of a number of 

taken by the international community in response to the height

cern over terrorism since the attacks on the United States on Septembe

The PSI is essentially part of a preventative strategy to deny weapons o

struction (WMD) to terrorist organizations by ensuring such weapons 

moved freely across the world’s oceans. This article will seek to consider 

cations for the law of the sea, particularly the operation of the 1982 Unite

Convention on the Law of the Sea,1 generated by the PSI, and the possibl

tions of its vigorous pursuit.

Content of the PSI

The PSI was announced in Krakow, Poland on May 13, 2003 by Preside

W. Bush.2 It initially was a cooperative venture between eleven States

gradually widened its support base to include a number of additional 

cluding Russia.4 In addition to this direct support, the PSI received taci

from States attending an international conference directed at int

* Dean, Faculty of Law, University of Wollongong, Australia.

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security arrangements. This was demonstrated at the first anniversary m

Krakow on May 31 and June 1, 2004, which was attended by over sixty 

The thrust of the PSI is to prevent the proliferation of WMD by sea, lan

although within the scope of this article, only the maritime aspect of the 

will be considered. The PSI is not a treaty, but rather a statement of int

the part of participating States, and, of itself, it does not create formally b

ternational law obligations. Participating States have agreed to abide by 

terdiction principles, set out in a formal Statement. The interdiction 

indicate States will undertake effective measures to combat the prolif

WMD, delivery systems or related materials;6 cooperate on information 

and coordination of activities to combat such proliferation;7 and review 

and, if necessary, international law to strengthen these efforts.8

In terms of specific circumstances when interdiction will take place, th

vides a number of instances, and these are worth extracting:

Take specific actions in support of interdiction efforts regarding car

WMD, their delivery systems, or related materials, to the exten

national legal authorities permit and consistent with their obligation

international law and frameworks, to include:

a. Not to transport or assist in the transport of any such cargoes to o

States or non-State actors of proliferation concern, and not to all

persons subject to their jurisdiction to do so.

b. At their own initiative, or at the request of and good cause sh

another State, to take action to board and search any vessel flying thei

their internal waters or territorial seas or areas beyond the territorial 

any other State that is reasonably suspected of transporting such car

or from States or non-State actors of proliferation concerns, and 

such cargoes that are identified.

c. To seriously consider providing consent under the appr

circumstances to the boarding and searching of its own flag vessels b

States and to the seizure of such WMD-related cargoes in such vess

may be identified by such States.

d. To take appropriate actions to (1) stop and/or search in their i

waters, territorial seas, or contiguous zones (when declared) vessels 

reasonably suspected of carrying such cargoes to or from States or no

actors of proliferation concern and to seize such cargoes that are ide

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and (2) to enforce conditions on vessels entering or leaving thei

internal waters or territorial seas that are reasonably suspected of c

such cargoes, such as requiring that such vessels be subject to bo

search, and seizure of such cargoes prior to entry.

e. At their own initiative or upon the request and good cause sh

another State, to (1) require aircraft that are reasonably suspected of c

such cargoes to or from States or non-State actors of proliferation c

and that are transiting their airspace to land for inspection and seize a

cargoes that are identified; and/or (2) deny aircraft reasonably suspe

carrying such cargoes transit rights through their airspace in advance 

flights.

f. If their ports, airfields, or other facilities are used as transhipment 

for shipment of such cargoes to or from States or non-State ac

proliferation concern, to inspect vessels, aircraft, or other modes of tr

reasonably suspected of carrying such cargoes, and to seize such carg

are identified.9

These principles fall into a number of specific categories, in relation to 

Firstly, PSI States agree to undertake measures to prevent shipments of W

to cooperate with other participants to achieve this end. Ships suspecte

ing WMD destined for non-State actors may be stopped and searched in 

cumstances: where the ship flies the flag of a participating State in the PS

the flag State itself, or in cooperation with other PSI States; where the shi

side in a port of a PSI participating State; and, where the ship is present in 

nal waters, territorial sea or contiguous zone of a participating State. As 

in e. and f. above, similar provisions exist for aircraft, although only at ai

PSI State, or the national airspace of a PSI State.

These categories were effectively widened in 2004, with bilateral agree

tween the United States on the one hand, and Liberia and Panama on 

with a view to permitting US vessels to stop and search suspect vessels flag

latter two countries.10 Liberia and Panama will not function as PSI Stat

certain circumstances, they have agreed to allow the United States to in

flag vessels.11 Subsequently, similar agreements have been concluded wi

ber of other States, including Belize, Croatia, the Marshall Islands, and 

The PSI has also been the subject of consideration by the United Nat

rity Council. On April 28, 2004, the Security Council unanimously adop

lution 1540 on the prevention of the proliferation of weapons of mass d

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to non

State actors. The Resolution provided that States could take all 

consistent with international law to prevent the proliferation of weapo

destruction, and that States were under an obligation to ensure that such 

did not fall into the control of non-State actors. Significantly, there is no 

to interdiction of vessels,13 so the Resolution falls short of the range of 

contemplated within the PSI; however it is clear the Resolution would 

shipping of weapons in the circumstances contemplated to be addressed 

unlawful.

Legal Justifications for Interdiction under the PSI

The PSI draws its legal support from a number of bases, some of which ar

forward and some that are more contentious. For this reason, it is necessa

sider each in turn. These will be done without reference to the positions 

States per se, as they have largely simply asserted that the PSI itself is cons

international law.14

Flag State Jurisdiction

One of the oldest and most settled matters within the law of the sea is 

that a flag State retains jurisdiction over a vessel flying its flag.15 This pr

basis for the identification of jurisdiction and legal authority over ships 

beyond national jurisdiction. This principle is acknowledged in the Law 

Convention, and is reinforced by the requirement that where a ship own

change the registration of their ship, this can only take place in port.16 Th

that at sea, the flag State of a ship remains singular and constant, giving c

identification of the applicable law and authority aboard.

The use of flag State jurisdiction under the PSI is entirely valid, as 

clearly have the power to regulate affairs aboard vessels flying their 

therefore can direct masters of such vessels to comply with lawful direc

cordingly, a flag State could direct a vessel flying its flag to heave to and b

by another PSI State’s nationals, submit to search and make for a designa

a PSI State.18 With the authorization of the flag State, all the participati

in the operation could be assured of the legality of their actions.

Port State Interdiction

The second approach to interdiction under the PSI is found through th

of port State jurisdiction. A coastal State’s ports are part of its internal w

least can be made so under the Law of the Sea Convention.19 Since the r

on assertion of the coastal State’s jurisdiction over vessels exercising 

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innocent passage in the territorial sea do not apply to internal waters, t

State has a virtually unfettered jurisdiction to apply its law to ships visitin

or to deny entry to its ports to foreign vessels if it chooses.

Historically, there have been some restrictions upon the port State fr

ing its laws to vessels that are alongside in its internal waters. With the ex

sovereign immunity, which will be considered separately, these restricti

largely from customary international law. For example, traditionally, v

ing at a port as a result of distress are not subjected to the law of the coas

Similarly, States generally do not apply their labor laws to vessels calli

ports, or interfere with matters that are generally regarded as internal to 

tion of the vessel.21

It is unlikely that any of these restrictions existing in internation

would withstand the right of a coastal State to take steps to deal with a 

own security, or that of its allies, in its own port. Whether knowingly or 

cumstances in which the visiting vessel poses a threat to the security of 

State, it would seem absurd that the State would not be able to address 

within its own territory. Flag States have generally shown no objection to 

port States to take measures against vessels to curb the international d

and the consequences in the context of the PSI for a failure to prevent a 

reaching its destination are even higher.

On this basis, Port State efforts to implement the PSI would, with 

of respect for sovereign immune vessels, seem to be on very solid gr

there would seem to be no difficulty in its implementation to vessels al

a PSI State.22

Territorial Sea and Archipelagic Waters Interdiction

One matter of significant concern surrounding the PSI relates to freedo

gation. The Law of the Sea Convention provides substantial guarantee

spect to freedom of navigation, and the operation of the PSI to restrict th

of certain vessels to allow search and possible seizure of cargo presents a 

challenge. To place this challenge in context, it is useful to summarize th

ment and content of current arrangements in the law of the sea with resp

dom of navigation.

Freedom of navigation has its origins in Hugo Grotius’ response to th

and Portuguese claims of control over the oceans and territories outside 

by virtue of the Papal Bull23 and Treaty of Tordesillas.24 These docum

ported not only to give control over territory outside of Europe, but also 

for exclusive seaborne trading rights in the South Atlantic and Indian 

In reaction to this assertion, Grotius produced his seminal work, Mar

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asserting that the oceans were incapable of appropriation by States, an

ships of any State could journey anywhere on the world’s oceans.26

In the modern law of the sea, freedom of navigation was equally pe

important, and this status is reflected in the now superseded 1958 Genev

tions on the law of the sea. Article 14 of the Convention on the Territor

Contiguous Zone guaranteed a right of innocent passage to vessels, w

non-suspendable for waters in international straits, and Article 23 ind

plicitly that such rights were available to warships.27 Freedom of navigat

high seas was guaranteed in Article 2 of the Convention on the High S

Article 3 of the Continental Shelf Convention ensuring that the status 

above a State’s continental shelf remained as high seas, therefore enjoyin

of navigation.29 These efforts had been prefaced by the International Co

tice in 1949 in the Corfu Channel Case, which confirmed the right of inn

sage, available even to warships, passing through “straits used for int

navigation.”30 The Court was also prepared to state that foreign vessels, 

warships, during peacetime had a right of innocent passage through a

tional straits.

The current 1982 Convention on the Law of the Sea maintains the a

found in the Corfu Channel Case and the 1958 Geneva law of the sea conv

deals with navigation in two distinct contexts. First, it examines freedom 

tion in the territorial sea and archipelagic waters. Three passage regimes 

lished in these waters: innocent passage, transit passage and archipelagi

passage. It then considers freedom of navigation in areas beyond natio

eignty in Article 87.31

The regime of innocent passage deals with navigation by ships only in 

torial sea of a coastal or archipelagic State and archipelagic wat

archipelagic State, and as noted above, it retains the same approach as th

the Territorial Sea Convention and the Corfu Channel Case. Article 17 of 

the Sea Convention grants ships the right of innocent passage through t

rial sea, while the remaining articles in Subsection 3(A) of the Conventio

how the right is circumscribed. Essentially, vessels are required to transi

tinuous and expeditious fashion, on the surface of the ocean. Such passa

be impeded, except on a non-discriminatory and temporary basis for es

curity purposes.32

The coastal State has ability to regulate certain matters with respect 

exercising a right of innocent passage. These are listed in Article 21(1) of 

the Sea Convention:

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The coastal State may adopt laws and regulations, in conformity w

provisions of this Convention and other rules of international law, 

to innocent passage through the territorial sea, in respect of all or an

following:

(a) the safety of navigation and the regulation of maritime traffic;

(b) the protection of navigational aids and facilities and other facil

installations;

(c) the protection of cables and pipelines;

(d) the conservation of the living resources of the sea;

(e) the prevention of infringement of the fisheries laws and regulation

coastal State;

(f) the preservation of the environment of the coastal State a

prevention, reduction and control of pollution thereof;

(g) marine scientific research and hydrographic surveys;

(h) the prevention of infringement of the customs, fiscal, immigra

sanitary laws and regulations of the coastal State.

Upon their face, these controls do not provide a basis for a coastal Sta

jurisdiction over a passing vessel in its territorial sea for the purposes 

The matters Article 21 permits regulation of are clearly restricted to m

taining to the safe navigation of the ship, the protection of the surroundi

environment, and the maintenance of customs, fiscal, sanitation (health

migration controls of the coastal State. Unless there was a clear intention 

import WMD into the coastal State, which could be accomplished when 

came alongside in any case, there is no authority drawn from Article 2

coastal States to implement the PSI.

Other articles within the Law of the Sea Convention may be of more 

ticle 19 requires that a ship’s passage cannot be prejudicial to the peace, g

or security of the coastal State. A range of activities that fall outside th

ment are explicitly listed, including “any other activity not having a dire

on passage.”33 Clearly the delivery of WMD to terrorists may well be hig

dicial to the peace, good order and security of a coastal State, and an 

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could be made that such a passage is therefore not innocent, and the restr

coastal State authority over the passing vessel are removed.

On the other hand, there may be goods on board of which the maste

know little or nothing, and their only relationship with terrorists come

anonymous and unremarkable bill of lading. In these circumstances, it 

unduly harsh to argue the vessel’s right of innocent passage is open to 

However, the awareness of the crew does not render the vessel’s cargo 

make it any less of a security threat. The possible lack of knowledge o

should be a factor in their interaction with the boarding party, but sho

the determining factor in the ability of a coastal State to intercept the ve

The ability of a coastal State to close territorial waters for essenti

purposes on a temporary basis will not assist the PSI. Such closures are 

discriminatory in their application, and clearly this is not possible with th

PSI’s objective is to interdict suspect vessels, not to institute what re

blockade and compel the inspection of every passing ship. Further, Artic

intended to clear areas of the sea temporarily, not to authorize an insp

gime.34

Coastal State criminal jurisdiction, which would usually encompas

tions to undertake terrorist activities, can also be exercised under Articl

Law of the Sea Convention for vessels passing through the territorial sea

occur in four circumstances:

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

(b) if the crime is of a kind to disturb the peace of the country or th

order of the territorial sea;

(c) if the assistance of the local authorities has been requested by the 

of the ship or by a diplomatic agent or consular officer of the flag Sta

(d) if such measures are necessary for the suppression of illicit tr

narcotic drugs or psychotropic substances.35

Of these categories, only (a) and (b) will be of direct relevance to the P

the master or flag State seeks assistance as in (c), there is no issue of legal

and (b), it may be conspiracy to commit a terrorist act and preparator

wards such an act, the consequences of which might extend to the coast

disturb its peace or good order that are the criminal matters. However, t

als may be intended for a third State, which nullifies Article 27, which is 

the coastal State.

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For transit passage and archipelagic sea lanes passage, the same conce

save that such passage cannot be interrupted for any reason, not even th

security concerns of the coastal State. This would make the stopping of 

an international strait or archipelagic sea lane of greater significance. Fu

categories of applicable coastal State law to such vessels, as described in 

are more limited than those for innocent passage. However, Article 39 do

vessels to refrain from any violation of the principles of the United Nati

ter, as in Article 19, so the above discussion there would similarly be ap

Interception in the Contiguous Zone

The PSI also includes interdiction within the contiguous zone of a pa

coastal State. This raises additional issues with respect of freedom of n

While vessels in the territorial sea are obliged to observe the regime o

passage or be subject to the wider law of the coastal State, the contiguo

unfettered by such concerns.

Beyond the territorial sea, the Law of the Sea Convention also confirm

freedom of navigation for all vessels. Article 87 provides:

1. The high seas are open to all States, whether coastal or land-

Freedom of the high seas is exercised under the conditions laid d

this Convention and by other rules of international law. It com

inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Pa

(d) freedom to construct artificial islands and other insta

permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in sec

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard 

interests of other States in their exercise of the freedom of the hi

and also with due regard for the rights under this Conventio

respect to activities in the Area.

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The impact of this provision finds its way into the regime of the EEZ b

Article 58, which expressly incorporates rights of freedom of navigation 

flight. While a coastal State has additional jurisdictional reach in the c

zone, it is part of the EEZ and the navigational freedoms which exist o

seas and the EEZ apply there as well.

In terms of jurisdiction, under Article 33(1) of the Law of the Sea C

the contiguous zone grants a coastal State power over four types of activ

In a zone contiguous to its territorial sea, described as the contiguou

the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanita

and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed 

its territory or territorial sea.

Were WMD destined to be imported into the coastal State for use in 

attack, it would seem to fall clearly within the rubric of prevention of inf

of customs and possibly immigration laws and regulations37 under Artic

coastal State could therefore argue a right to stop, search, and seize was n

uphold its customs laws, and prevent the delivery of highly dangerous an

able materials to its territory.

A more difficult situation arises where the WMD are destined for ano

It would not be open to a coastal State to assert its customs laws were 

fringed by a passing vessel carrying WMD, as the vessel’s master might n

had any intention to enter the territorial sea of the coastal State. It woul

unreasonable expansion of Article 33 to have it include not mere preven

fringement of customs of the coastal State, but of other States as well. Thi

ularly the case given the freedom of navigation guaranteed for vess

contiguous zone, as a foreign flag vessel will have breached no law of t

State, and should be entitled to transit through the zone without interfe

Self-Defense and the Use of Force

Utilizing the PSI, based on application of the doctrine of self-defense and 

force in international law raises a number of issues. Among these 

whether the transfer of WMD might amount to a preparatory act to the u

that might permit intervention by the PSI States, and whether the inter

suspected WMD vessels amounts to a use of force in the sense it is u

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United Nations Charter. In order to explore these effectively, it is necessa

sider the doctrine of self-defense in international law, and the use of for

Contemporary international law is predicated on the notion that the 

force should be extremely limited, in an effort to promote internatio

and security. One of the most significant changes to the internationa

rounding armed conflict over the past 150 years has been the effective ab

the right of States to use force against others in pursuance of their ter

diplomatic aims. This restriction is explicitly restated in the Unite

Charter in Article 2(4): “All Members shall refrain in their internationa

from the threat or use of force against the territorial integrity or poli

pendence of any State, or in any other manner inconsistent with the P

the United Nations.” This ban is only modified by the authorization to 

when approved by the Security Council under Chapter VII of the Unite

Charter in order to preserve international peace and security, or, with 

tion to the Security Council, in the exercise of a right of individual or 

self-defense under Article 51 of the Charter.38

One issue for the PSI is whether interdictions of vessels constitute an 

rized use of force. In stopping and searching a vessel, there may be the n

use force, in circumstances where the vessel refuses to heave to and its c

the boarding. If the flag State is not a PSI State, and has not given its con

boarding, it is likely that some degree of force will have to be used to take 

and search the suspect vessel.

However, it is important to note that the prohibition on the use of 

tained in Article 2(4) of the Charter is not a blanket restriction on the us

but rather is a prohibition of the use of force “against the territorial integ

litical independence of any State, or in any other manner inconsistent wit

poses of the United Nations.” Clearly the PSI does not infringe the 

integrity of a State, unless the ship was considered part of its territory, wh

context would seem inappropriate. Even if a State can exercise prescripti

forcement jurisdiction over its vessels on the high seas, it cannot exerc

forcement jurisdiction within the territorial sea of another State. Th

hardly be said to be integral to the territory of its flag State, if the State c

dertake efforts to enforce its law in certain locations. Similarly, the poli

pendence of a State is unlikely to be threatened by unusual instances 

being stopped and boarded in the territorial sea of another State.

The key issue is whether such a boarding would be inconsistent wit

poses of the United Nations. Certainly the United Nations is dedica

maintenance of international peace and security, and this is not incons

the stated aims of the PSI. This is underscored by the fact that the Securi

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has considered the PSI and has adopted Resolution 1540, which support

pects of its operation. What is needed is a careful and considered appro

issue of boardings pursuant to the PSI to ensure there is never any que

they are being undertaken in a fashion that would run afoul of the princi

United Nations.

If force can be used, there is also a requirement it be in proportion to 

ference with the sovereignty of the State concerned.39 This concept finds 

the Caroline Principles,40 and also has been used by the International Co

tice: “[T]here is a specific rule whereby self-defense would warrant only 

which are proportional to the armed attack and necessary to respond t

well established in customary international law.”41

In the case of the PSI, it is submitted the level of force used is relative

ship after it has been boarded and searched, can be permitted to conti

way,42 and if wrongfully detained, be the subject of a compensation cla

flag State against the detaining State. In proportion to the potential harm 

tack which WMD would cause, the interference with the flag State is m

Anticipatory Self-Defense

The controversial doctrine of anticipatory self-defense is also potentiall

cation. The doctrine is based on the notion that the use of WMD leads t

structive consequences for the State liable to imminent attack, that it o

able to utilize conventional weapons to remove the threat. Waiting unti

attack may effectively be too late, as the State attacked might be largely de

have millions of its citizens killed. In response, a small-scale conventiona

remove the threat, it can be argued, is a reasonable compromise.

The response to this notion is that it is predicated on the imminent att

State on another, an event that may never occur. The possession of weap

climate of international tension do not necessarily demonstrate an in

launch a hostile and devastating attack in the near future.43 Further, the 

ticipatory self-defense would not seem to advance international peace an

as it uses the suspicion of an imminent attack, rather than the reality of s

tack, as the justification for the use of force. There does not appear to b

port for the concept directly within the United Nations Charter.44

Anticipatory self-defense is supported by relatively few States in int

law, and there are few instances of State practice relying upon it, at leas

end of World War II.45 One of the more direct examples of it came on Ju

with the Israeli attack upon the Iraqi nuclear facility at Osiraq, outside of 

Israel had argued that the facility would have given Iraq the ability to ma

nuclear weapons in the near future, and it was the most likely target for 

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such weapons.

Most of the international community rejected Israel

including a large number of the PSI States,47 and there has been no cha

viewpoint evident in the international community since 1988. Concern

doctrine was too fluid with difficulties of what might be judged as im

harmful to world peace in potentially authorizing unprovoked attacks 

suspected of having WMD they might wish to use, and capable of misa

by States seeking an excuse to attack their neighbors are cited for the lack 

in support for anticipatory self-defense.49 While academic opinion on t

divided, there is a not insubstantial volume of scholarship against the val

doctrine.50

In theory, the doctrine of anticipatory self-defense could be adapted 

terdiction of vessels. A PSI State could argue that the shipping of WMD t

ist organization would lead to attack by that terrorist organization on th

or its allies, and therefore stopping and boarding suspect vessels and 

WMD would be incidental to aiding in the defense of that State from an 

attack, albeit at some undefined point of time in the future, and not nec

the State itself.

It is submitted that such an argument would not be acceptable to the b

international community, including most of the PSI States. The uncert

the date and location of a terrorist attack would make it difficult to m

quirement of the imminent nature of the threat. The international repug

rounding the doctrine of anticipatory self-defense would be sufficient 

that none of the PSI States would seek to use it to justify their PSI activi

other ground was available.

Necessity

One approach to the PSI that could be used to justify interdiction of ve

doctrine of necessity. Necessity has been the subject of consideration b

tional legal scholars for some decades, and is neatly dealt with in the Int

Law Commission’s Draft Articles on Responsibility of States for Inter

Wrongful Acts. Article 25 of the Draft Articles provides that an otherwis

act of a State can be justified if it meets two criteria: (a) the act was the o

of safeguarding an essential interest of the State against a grave and immi

and (b) the act does not seriously impair an essential interest of the Sta

which the obligation existed.51 This principle has more than just the imp

the International Law Commission to support its status within publi

tional law. The identical predecessor of Article 25, Article 33 of the Dra

on State Responsibility,52 was cited with approval by the Internationa

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Justice in the Gabcíkovo

Nagymaros Project case,and was itself cited 

proval by the International Tribunal for the Law of the Sea in M/V Saiga (

When applied to the PSI, necessity can provide a justification for ac

might otherwise be unlawful at international law. While it is clear that m

PSI in relation to interdiction is valid, such as the interception of vessels 

flag of a PSI State, or where there is a treaty between the flag State an

States, such as between Liberia, Panama and the United States, some asp

operation may be problematic. The interception of a vessel, flagged in a t

government operated and on a non-commercial charter, while exercisin

innocent passage, is one example where the legality of the stop and searc

pect vessel presents difficulties.

In such a situation, a PSI State could note that the only way to prevent 

of WMD to a non-State actor would be to stop a vessel en route at sea in 

meeting the first of the criteria in Article 25. Certainly the possession of 

hostile terrorists would amount to a “grave and imminent peril” to the 

the second criterion, provided the vessel was released and allowed to co

beit without its deadly cargo, the essential interests of the flag State would 

riously impaired.

The PSI States have not shown much enthusiasm for utilizing nec

means to legitimize possible operations under the Initiative. This may b

for a number of reasons. First, the Draft Articles remain contentious, 

might be a reluctance by some PSI States to show direct support for part 

ment about which they have serious reservations. Second, to rely upon th

of necessity would be a tacit admission that some contemplated actions 

PSI are unlawful. As the Initiative is designed to combat unlawful behav

seeking to gain as much support from the international community as p

may not be politic for the PSI States to indicate that the PSI might in c

cumstances encompass unlawful action. This would be particularly the c

United States, Britain and Australia, where the lawfulness of the inter

Iraq by the “Coalition of the Willing” has become a major political issu

governments of those three States might be unwilling to highlight the law

otherwise of future measures in the global “war on terror.”

A present unwillingness to utilize arguments based on necessity woul

essarily preclude their use in the future to justify an interception. In the 

aftermath of action against a third State vessel, where WMD had been 

PSI States would seemingly have a strong argument that even if other jus

for interdiction had failed, necessity would cure the legitimacy of th

Whether necessity would operate to provide such protection in the ev

were not found is not so simple, as without WMD in the mix, it is d

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construct what the 

grave and imminent perilto the interest of the co

might be.

Security Council Resolution 1540

Another possible justification for the PSI might be derived from Securi

Resolution 1540. As already noted in the context of self-defense, one of 

mate ways for a State to utilize force against another is through the ado

resolution by the Security Council, authorizing the use of force. The Co

make such a resolution pursuant to Chapter VII of the United Nations C

feels the application of force would assist in combating a threat to int

peace and security.55

However, while the Security Council could pass a resolution seeking 

and detain vessels suspected of carrying WMD bound for non-State acto

vessels would clearly constitute a threat to international peace and secu

not done so to the present point in time. Resolution 1540 extols States n

mit the transit of WMD to non-State actors, but it does not create any po

upon States to undertake interdiction of such vessels. Indeed, the resol

goes so far as to authorize actions which are “consistent with internatio

The PSI States may contend that the Initiative is of itself lawful, and th

consistent with Resolution 1540, which appears to be the case, but it doe

vide for an explicit authorization of interdiction that would otherwise be 

One additional point in relation to Security Council Resolution 15

made. Were an unlawful interdiction to take place, and WMD discovere

board, even if the interdiction was unlawful, the presence of WMD wo

the flag State was in material breach of a Security Council resolution. Wh

vocating the adoption of two international wrongs making a right into th

one imagines that the issue of the interdiction would be regarded as sec

the political level, in comparison to the tremendous risk to international 

security posed by the shipment itself.

Interaction of the PSI with the Law of the Sea Convention

Sovereign Immunity

One great challenge to the operation of the PSI comes from the operat

doctrine of sovereign immunity. The doctrine is one of great age and si

within the law of the sea, requiring that warships and government vesse

commercial service be considered inviolate at international law. A war

empt from the operation of law of a port State or coastal State, unles

mander voluntarily permits the application of such law. If the warship br

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law of a coastal State, no sanction can be imposed directly on it, nor 

stopped or boarded. The only measure permitted is an order directing th

ate departure of the vessel from the territorial waters of the coastal State. 

it may have caused can only be the subject of international claim.

The rules with respect to sovereign immunity of vessels have their or

in history well prior to the 20th century. An attempt at codification of th

took place in the 1920s, and led to the adoption of the International C

for the Unification of Certain Rules concerning the Immunity of St

Ships.57 Article 3(1) of that Convention provides that warships, State-o

sels on non-commercial service, hospital ships, fleet auxiliaries, and ot

are to receive immunity in respect of claims brought against them. Such 

is confirmed in the Law of the Sea Convention, which provides explicit 

for such vessels on the high seas in Articles 95 and 96, and in the context 

ritorial sea in Part II, section 3(C). These provisions make it clear tha

States have jurisdiction over sovereign immune vessels, and that in the e

vessel breaching an applicable law of the coastal State, there is flag State 

bility for such breaches, but the only action permissible against the vesse

require it to leave immediately.58

Interference with a sovereign immune vessel, without the consent 

State, would amount to a clear breach of international law. For PSI Stat

the potential to be a serious problem. While it is unlikely that a State w

WMD to non-State actors on a warship, there is a possibility of a State-o

sel, on non-commercial service being used in such a fashion, particul

case of a communist State where most vessels will be State-owned. Whil

lish courts have been prepared to look behind the activity a vessel is eng

determine its status,59 a third State actively engaged in supplying WMD 

ists is likely to claim sovereign immune status.60

It is submitted that the potential use of sovereign immune vessels to s

to non-State actors represent the greatest challenge posed by the PSI to 

the sea. Such vessels cannot, under international law, be interfered wi

States or coastal States without the consent of the flag State or the maste

States will have a difficult decision to make in considering whether to 

such a vessel and thereby potentially undermine the status of their own 

sels elsewhere in the world.

Freedom of Navigation

Of distinct concern is the impact of the PSI on security notifications. A n

States have asserted that prior to entry into their territorial waters, forei

vessels are obliged to give notice of their passage.61 Most restrict this 

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warships, but some, notably North Korea, require it in the case of any fo

sel. The reason most frequently cited for such action is that it is incidenta

curity of the coastal State, and a transiting foreign warship passing cl

littoral State without prior warning represents a security threat. There is n

ity in the Law of the Sea Convention to support such an interpretation.

For the maritime powers, this could set an awkward precedent. The 

be encouraging them to stop and search vessels that posed a security risk 

the possible presence of WMD on board. A similar description, from th

view of China or North Korea could describe a US, British or French w

their territorial waters. The warship might be carrying WMD, in the fo

clear weapons, and may also be seen as a threat to the coastal State’s s

comparison to stopping and searching the vessel, the requirement of 

seems relatively modest, and in time, this may provide support to th

warning advocates. Such a result would not be a desirable one to the 

powers, most of whom are PSI States.

In its present form, with the lack of a binding treaty, and the reiteratio

consistent with international law, the PSI does not erode the position of 

time powers with respect to security notification. Unless and until an ac

ception, without some other ground based on flag or port State control, t

and the maritime powers assert the legality of their actions, those States s

curity notification will remain without concrete action upon which to 

objections.

Military Exercises

The issue of military activities, including surveillance, in the exclusive 

zone (EEZ) of another State is one not directly dealt with in the Law of th

vention.62 While the Convention makes it plain that military exercises 

ons testing in the territorial sea of a coastal State would be contrary to the 

innocent passage, there is no equivalent restriction articulated with respe

maritime zones. However, neither is there any specific authorization w

to such activities, which are not included within the Article 87 of the Law 

Convention list of freedoms.

The lack of direct reference to military activities is not fatal to the c

conduct of such exercises in the EEZ of another State. The rights listed 

87(1) are by no means an exhaustive list, and are merely specifically enun

amples. This is explicit in the use of the phrase “inter alia.” Further, the fr

the high seas are described as being subject to the conditions set down in 

vention and “other rules of international law.” The use of this languag

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clear that the Law of the Sea Convention is not intended to be the only sou

in relation to the use of the high seas or EEZ.

If the case for freedom to undertake military exercises in another State

be made, it is clearly subject to some qualification. For this the crux of th

essentially turn on the meaning of the phrase “with due regard.” This qu

is applied to high seas freedoms generally in Article 87(2), and it would 

cal that one must have due regard to the rights of others while navigatin

the EEZ.63

One issue that could be relevant in assessing the legitimacy of interdic

the PSI in the contiguous zone relates to whether passage by a suspect ve

constitute a threat to international peace and security, and therefore be i

and capable of being intercepted. The Law of the Sea Convention provid

assistance through Article 88 which provides: “The high seas shall be re

peaceful purposes.”

A wide reading of this provision would, in theory, see great limitation 

of warships on the high seas, and the potential circumscription on all m

tivities, particularly when read with the Preamble, which invokes the Co

role in the furtherance of peace and security in the world,64 suggesting o

ful uses of the sea are permissible. By extension this could be drawn into t

Article 58 adopts the high seas freedoms in the Convention, and explicit

Article 88 in this list.65 Similarly, the provisions with respect to marine sc

search under Part XIII of the Convention indicate that marine scientifi

can only be undertaken for peaceful purposes.66 A case could be made th

activity from the high seas or another State’s EEZ were incompatible wi

of the Sea Convention.

Such an interpretation has not been favored by many States or public

San Remo Manual on Armed Conflicts at Sea, which sought to update an

date the law of armed conflict at sea, makes it clear that armed conflict 

take place on the high seas, and, in certain circumstances, in the EEZ o

State.68 The Manual provides that belligerents must have due regard to 

which another State may wish to put its EEZ and avoid damage to the coa

If the motivation for interception is international security, then an 

may be placed in the hands of those States that claim military exercises 

gitimately take place in their EEZs. Such States have typically observed th

military activity prevents them from utilizing their EEZ and is a threat to 

rity of the sovereign rights they possess in the EEZ. If security concerns 

ride navigational rights under the PSI, these States may have a strong

argue that security and due regard are inconsistent, and that permission 

sought to exercise in the EEZ. This is particularly the case in so-called 

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zones

that may be attached to the contiguous zones of some States. T

been the subject of protest by the United States and other maritime Sta

Conclusion

The PSI represents a practical solution to the threats posed by the change

environment since the 9/11 attacks. By virtue of the speed and manner o

duction, it is yet to be structured into formally binding obligations withi

tional law. Were it to be implemented, to the full extent indicated in its in

principles, it could be justified, albeit not without difficulty under int

law. However, the implications of that justification would create challen

the law of the sea would struggle to accommodate, and might create p

which would undermine key principles the maritime powers would not w

damaged.

Notes

1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 833 U

[hereinafter Law of the Sea Convention].

2. President Bush stated:

When weapons of mass destruction or their components are in transit, we mu

the means and the authority to seize them. So today I announce a new effort 

proliferation called the Proliferation Security Initiative. The United States 

number of our close allies, including Poland, have begun working on new agre

to search planes and ships carrying suspect cargo and to seize illegal weapons or 

technologies. Over time, we will extend this partnership as broadly as possible 

the world’s most destructive weapons away from our shores and out of the hand

common enemies.

Available at http://www.whitepages.gov/news/releases/2003/05/20030531-3.html.

3. Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal

United Kingdom and the United States.

4. As of the date of this writing, the additional States are Canada, Denmark, Norw

Singapore and Turkey.

5. See paragraph 2, Chairman’s Statement, First Anniversary Proliferation Securi

Meeting, Krakow, Poland, May 31 – June 1, 2004, available at http://www.dfat.gov.

statements/1st_psi_chairmans_statement_040601.html.

6. Paragraph 1 of the Statement of Interdiction Principles calls on all concerned St

Undertake effective measures, either alone or in concert with other sta

interdicting the transfer or transport of WMD, their delivery systems, and 

materials to and from states and non-state actors of proliferation concern. “S

non-state actors of proliferation concern” generally refers to those countries or 

that the PSI participants involved establish should be subject to interdiction a

because they are engaged in proliferation through:

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associated delivery systems; or

(b) transfers (either selling, receiving, or facilitating) of WMD, their delivery s

or related materials.

Available at http://www.dfat.gov.au/globalissues/psi/psi_statement.html.

7. Paragraph 2 of the Interdiction Principles calls on all concerned States 

streamlined procedures for rapid exchange of relevant information concernin

proliferation activity, protecting the confidential character of classified information 

other states as part of this initiative, dedicate appropriate resources and efforts to 

operations and capabilities, and maximize coordination among participants in 

efforts.” Id.

8. Paragraph 3 of the Interdiction Principles calls on all concerned States to: “Revie

to strengthen their relevant national legal authorities where necessary to accom

objectives, and work to strengthen when necessary relevant international laws and 

in appropriate ways to support these commitments.” Id.

9. Available at http://www.dfat.gov.au/globalissues/psi/psi_statement.html.

10. Agreement between the Government of the United States of America and the G

of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of 

Mass Destruction, their Delivery Systems, and Related Materials by Sea, Feb. 11, 20

at http://www.state.gov/t/np/trty/32403.htm. Amendment to the Supplementary A

between the Government of the United States of America and the Government of t

of Panama to the Arrangement between the Government of the United Sta

Government of Panama for Support and Assistance from the United States Coast G

National Maritime Service of the Ministry of Government and Justice, May 12, 2004

http://www.state.gov/t/np/trty/32858.htm.

11. Liberia will also have the right to inspect United States flag vessels, but it is unlik

will be exercised.

12. Agreement Between the Government of the United States of America and the G

of Belize Concerning Cooperation to Suppress the Proliferation of Weapon

Destruction, Their Delivery Systems, and Related Materials By Sea, Aug. 4, 2005, 

http://www.state.gov/t/np/trty/50809.htm; Agreement Between the Government o

States of America and the Government of the Republic of Cyprus Concerning Coo

Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, 

Materials By Sea, July 25, 2005, available at http://www.state.gov/t/np/trty

Agreement Between the Government of the United States of America and the Govern

Republic of Croatia Concerning Cooperation to Suppress The Proliferation of Weap

Destruction, Their Delivery Systems, and Related Materials, June 1, 2005, availab

www.state.gov/t/np/trty/47086.htm; Agreement Between the Government of the U

of America and the Government of the Republic of the Marshall Islands Concening C

to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery S

Related Materials by Sea, Aug. 13, 2004, available at http://www.state.gov/t/np/trty/3

13. This omission was at the request of China.

14. The PSI arrangements explicitly state the Initiative is to be consistent with intern

See http://www.dfat.gov.au/globalissues/psi/psi_statement.html.

15. See, e.g., Muscat Dhows Case (1905) 9 UNRIAA 83, reprinted in 2 AMERICAN J

INTERNATIONAL LAW 921 (1908); S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 

See also IVAN A. SHEARER, STARKE’S INTERNATIONAL LAW (11th ed.1994); ROBIN R. 

AND A. VAUGHN LOWE, THE LAW OF THE SEA 205–209 (2d ed. 1988).

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17. Id., art. 94.

18. A shipowner could also direct a vessel that it heave to, be boarded and to p

designated port, providing the flag state did not object, as was the case with the BBC 

the facts surrounding the interception and boarding of the BBC China, see Mark Esp

Allen, The PSI: Taking Action Against WMD Proliferation, 10 THE MONITOR 4, 6 (Sp

See also discussion at Michael Byers, Policing the High Seas: The Proliferation Securi

98 AMERICAN JOURNAL OF INTERNATIONAL LAW 526, 529 (2004).

19. If a port were not already within the internal waters of a State, by virtue of bein

bay or river, the Law of the Sea Convention allows areas associated with ports to be 

territorial sea baselines. Article 11 provides that harbor works and other areas “

integral part of the harbor system” may be enclosed, while Article 12 explicitly 

enclosure of roadsteads.

20. See The Creole, Moore’s International Arbitration 4375; but cf. The Rebecca, Un

Mexican Claims Commission [1929–1930] No.82.

21. See Patterson v. The Eudora, 190 U.S. 169 (1903).

22. Van Dyke notes that seizures of suspect materials from ports have already tak

States associated with the PSI. Taiwan seized dual-use chemicals from a North Kor

Kaohsiung, and Japanese authorities have searched North Korean vessels when 

ports. Jon M. Van Dyke, Balancing Navigational Freedom with Environmental a

Concerns, COLORADO JOURNAL OF INTERNATIONAL ENVIRONMENTAL LAW AND PO

(2003).

23. Bull Inter Caertera of Pope Alexander VI, May 4, 1493, available 

bullsburning.itgo.com/essays/Caetera.htm#theBull.

24. Treaty of Tordesillas, June 7, 1494, reproduced at http://www.yale.edu/laww

modeur/mod001.htm.

25. C. JOHN COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 48–49 (6th ed. 1

JEAN DUPUY & DANIEL VIGNES, A HANDBOOK OF THE NEW LAW OF THE SEA 64–6

26. HUGO GROTIUS, MARE LIBERUM: THE FREEDOM OF THE SEAS OR THE RIG

BELONGS TO THE DUTCH TO TAKE PART IN THE EAST INDIAN TRADE (Ralph V

Magoffin trans., 1916) (1609).

27. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 516 U

28. Convention on the High Seas, Apr. 29, 1958, 450 U.N.T.S. 82.

29. Convention on the Continental Shelf, Apr. 29, 1958, 499 U.N.T.S. 311.

30. Corfu Channel (UK v. Albania), Merits, 1949 I.C.J. 4, 28 (Apr. 9).

31. See infra pp. 157–59.

32. Law of the Sea Convention, supra note 1, art. 25(3).

33. Article 19(2) of the Law of Sea Convention also provides, inter alia:

Passage of a foreign ship shall be considered to be prejudicial to the peace, good o

security of the coastal State if in the territorial sea it engages in any of the fo

activities:

(a) any threat or use of force against the sovereignty, territorial integrity or p

independence of the coastal State, or in any other manner in violation of the pr

of international law embodied in the Charter of the United Nations.

34. See generally 2 UNITED NATIONS CONVENTION ON THE LAW OF THE S

COMMENTARY 232–233 (Myron H. Nordquist ed., 1993) [hereinafter Commentary

35. Law of the Sea Convention, supra note 1, art. 27(1).

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sea lanes passage, Article 54 provides: “Articles 39, 40, 42 and 44 apply mutatis 

archipelagic sea lanes passage.”

37. Immigration laws might pertain to a situation where terrorists accompanied 

aboard the ship.

38. Article 51 of the Charter provides:

Nothing in the present Charter shall impair the inherent right of individual or co

self-defense if an armed attack occurs against a Member of the United Nations, u

Security Council has taken measures necessary to maintain international pe

security. Measures taken by Members in the exercise of this right of self-defense 

immediately reported to the Security Council and shall not in any way af

authority and responsibility of the Security Council under the present Charter to 

any time such action as it deems necessary in order to maintain or restore intern

peace and security.

39. See ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW 

OPERATIONS 402 305 (A. Ralph Thomas and James C. Duncan eds., 1999) (Vol. 7

War College International Law Studies). See also SAN REMO MANUAL ON INTERNAT

APPLICABLE TO ARMED CONFLICTS AT SEA 76–77 (Louise Doswald-Beck ed., 1

Thomas Graham Jr., Is International Law Relevant to Arms Control?: National S

International Law, and Weapons of Mass Destruction,4CHICAGO JOURNAL OF INTE

LAW 1, 6–9 (2003).

40. See the discussion in Robert Y. Jennings, The Caroline and McLeod Cases, 32 

JOURNAL OF INTERNATIONAL LAW 82 (1938).

41. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), M

I.C.J. 14, 94, (June 27); Legality of the Threat or Use of Nuclear Weapons, Adviso

1996 I.C.J. 226, 245 (July 8).

42. This occurred with the detaining and subsequent release of a North Korean ve

missiles bound for Yemen. After it was clear no treaty violation was taking place, and 

procuring the weapons for its own defense, the vessel was allowed to continue by th

Spanish warships. See Van Dyke, supra note 22, at 25–27.

43. A number of eminent publicists have given qualified support to the concept of 

self-defense in the context particularly of the imminent use of nuclear weapons aga

SeeChristopher Greenwood,International Law and the Pre-emptive Use of Force: Afgh

Qaida, and Iraq, 4 SAN DIEGO INTERNATIONAL LAW JOURNAL 7, 14–15 (2003). See a

M. FRANCK, RECOURSE TO FORCE 102–107 (2002) and 1 OPPENHEIM’S INTERNAT

421 (Robert Jennings & Arthur Watts eds., 1994) who have argued that there i

anticipatory self-defense against an imminent armed attack. See also ROSALY

PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 242 (1994).

44. Michael Glennon has argued the Charter is ill equipped to deal with the issue 

terrorists, in part because it does not deal with anticipatory self-defense. Michael 

Military Action Against Terrorists under International Law: The Fog of Law: S

Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 HARVARD J

LAW AND PUBLIC POLICY 539, 552–553 (2002).

45. Michael J. Kelly, Time Warp to 1945 – Resurrection of the Reprisal and Antic

Defense Doctrines in International Law, 13 JOURNAL OF TRANSNATIONAL LAW AND P

(2003).

46. See the statements by the Israeli Ambassador to the United Nations extracted i

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attack, and was adopted by the Council unanimously.

48. See Greenwood, supra note 43, at 15–16.

49. See John Quigley, A Weak Defense of Anticipatory Self-Defense, 10 TEMPLE INTE

AND COMPARATIVE LAW JOURNAL 255, 257 (1996). See also Byard Q. Clemmons 

Brown, Rethinking International Self-Defense: The United Nations’ Emerging Role 45 

REVIEW 217, 229 (1998).

50. See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STAT

(1963); LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 141–

CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 112 (2000).

51. Draft Articles on Responsibility of States for internationally wrongful acts, in R

International Law Commission on the Work of Its Fifty-third Session, UN GAOR

Supp. No. 10, UN Doc. A/56/10 (2001), available at http://www.un.org/l

State_responsibility/responsibility_articles(e).pdf.

52. 2 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 58, UN Doc. A/C

1996/Add.1 (Part 2).

53. Gabcíkovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. 7, 40–4

54. M/V “Saiga” (No. 2) (St. Vincent & the Grenadines v. Guinea) (International T

the Law of Sea, July 1, 1999), at paragraph 133, available at http://www.itlos.org/start

55. See supra p. 147 and note 33.

56. Operative paragraph 10 provides: “Further to counter that threat, calls upon 

accordance with their national legal authorities and legislation and consistent with in

law, to take cooperative action to prevent illicit trafficking in nuclear, chemical o

weapons, their means of delivery, and related materials.”

57. International Convention for the Unification of Certain Rules Concerning the I

State-owned Ships, Apr. 10, 1926, 176 L.N.T.S. 199 [hereinafter 1926 Brussels C

Protocol additional to the International Convention for the Unification of Certain R

to the Immunity of State-owned Vessels, May 24, 1937, 176 L.N.T.S. 215.

58. Law of the Sea Convention, supra note 1, art. 30.

59. The Philippine Admiral v Wallem Shipping (Hong Kong) Ltd [1977] AC 373.

60. Article 5 of the 1926 Brussels Convention, supra note 57, establishes a system wh

can issue a certificate indicating the non-commercial status of the ship or cargo.

61. China, for example, has enacted legislation (Article 13 of the Law of the Territo

the Contiguous Zone of February 25, 1992) that asserts its authority to exercise juris

security within the contiguous zone, and to seek prior notification of entry ther

rejected by the United States as inconsistent with Article 33 of the Law of the Sea C

which has no reference to a security jurisdiction in respect of the contiguous zone. T

protest is cited in ANNOTATED SUPPLEMENT, supra note 39, at 108.

62. See e.g., George V. Galdorisi & Alan G. Kaufman, Military Activities in t

Economic Zone: Preventing Uncertainty and Defusing Conflict, 32 CALIFORNIA 

JOURNAL OF INTERNATIONAL LAW 253 (2002).

63. See Francisco Francioni, Peacetime Use of Force, Military Activities, and the New 

Sea, (1985) 18 CORNELL INTERNATIONAL LAW JOURNAL 203, 215 (1985

COMMENTARY, supra note 34, at 553–565.

64. The Preamble states in part:

Prompted by the desire to settle, in a spirit of mutual understanding and co-op

all issues relating to the law of the sea and aware of the historic significance 

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progress for all peoples of the world

and

Believing that the codification and progressive development of the law of 

achieved in this Convention will contribute to the strengthening of peace, secu

operation and friendly relations among all nations in conformity with the princ

justice and equal rights and will promote the economic and social advanceme

peoples of the world, in accordance with the Purposes and Principles of the 

Nations as set forth in the Charter.

65. Galorisi & Kaufman, supra note 62, at 275–278.

66. Article 240, Law of the Sea Convention provides: “In the conduct of mari

research the following principles shall apply: (a) marine scientific research shall b

exclusively for peaceful purposes.”

67. On this point, see DAVID J. ATTARD, THE EXCLUSIVE ECONOMIC ZONE IN INTE

LAW 75 (1987); FRANCISCO ORREGO VICUNA, THE EXCLUSIVE ECONOMIC ZONE: R

NATURE UNDER INTERNATIONAL LAW 110–113 (1989); Galdorisi & Kaufmann, supr

274–276.

68. SAN REMO MANUAL, supra note 39, at 8.

69. For example, Pakistan has added security to the list of jurisdictional matte

contiguous zone. See Territorial Waters & Maritime Zones Act, 1976, available at w

Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PAK_1976_Act.pdf. The U

made a formal protest to Pakistan in 1996 in respect of this claim. China asserted 

in the contiguous zone over security matters in 1992 in the Law of the Territorial 

Contiguous Zone of 25 February 1992, which was protested by the United States i

asserted a similar security zone by Note Verbale No.152 transmitted to the Unit

The United States protested this claim in 1994. See Maritime Claims Referen

Department of Defense 2005.1-M, available at http://www.dtic.mil/whs/directives/c

20051m.htm. With respect to China, see supra note 61.

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CURRENT ISSUES IN OCCUPATION LA

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VII

Is There a “New” Law of

Intervention and Occupation?

Leslie C. Green*

At least since the seventeenth century international law has accepte

damental principle that all States are equal, none enjoying sovere

any other. This principle has found expression in Vattel’s famous apho

Since men are by nature equal, and their individual rights and obligations the 

coming equally from nature, Nations, which are composed of men and 

regarded as so many free persons living together in a state of nature, are by natu

and hold from nature the same obligations and the same rights. Strength or w

in this case, count for nothing. A dwarf is as much a man as a giant is; a small R

is no less a sovereign State than the most powerful Kingdom.1

As a consequence it has come to be accepted that a State is free to treat 

als as it pleases without interference from others, a principle which fin

sion in the domestic jurisdiction clause of the Charter of the United Na

Nothing contained in the present Charter shall authorize the United Na

intervene in matters which are essentially within the domestic jurisdiction of 

or shall require the Members to submit such matters to settlement under the 

Charter; but this principle shall not prejudice the application of enforcement m

* University Professor Emeritus, Honorary Professor of Law, University of Alberta

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peace].2

Nevertheless, both doctrinal writings and States, especially the more 

have asserted a right of intervention and even occupation in “ex

circumstances.

International law recognizes two forms of occupation of the whole or 

territory of one State by the forces or governmental representatives o

Occupatio pacifica is the basis of acquiring title to territory.3 For the purp

paper, the term is used for the situation that takes place when the occup

has agreed to the occupation or it has been imposed without the use of f

occupier or as a result of a multilateral treaty, although the threat to reso

may be the deciding factor that induces the occupied entity to agree to th

tion. Occupatio bellica ensues during or at the end of an armed conflict a

ally speaking, is contrary to the wishes of the State occupied or is acq

since there is no other option available to that State.

Examples of occupation pursuant to agreement may be seen in the tre

ing to the independence of the successor principalities of the Ottoman 

Bulgaria, Montenegro, Roumania and Serbia—initiated by the 1878 

Berlin. In the case of Bulgaria, a provisional administration was establish

[S]hall be under the direction of an Imperial Russian Commissary u

completion of the Organic Law. An Imperial Turkish Commissary, as we

Consuls delegated ad hoc by the other Powers, signatory of the present Treaty

called to assist him so as to control the working of the provisional regime. In 

disagreement amongst the Consular Delegates, the vote of the majority 

accepted, and in case of a divergence between the majority and the Imperial 

Commissary or the Imperial Turkish Commissary, the Representatives 

Signatory Powers at Constantinople, assembled in Conference, shall gi

decision.4

Article VII, in turn, provides that:

The provisional regime shall not be prolonged beyond a period of nine mont

the exchange of the ratifications of the present Treaty. When the Organi

completed the election of the Prince of Bulgaria shall be proceeded with imm

As soon as the Prince shall have been installed, the new organization shall be 

force, and the Principality shall enter into the full enjoyment of the autonom

To some extent this procedure seems to foretell the type of arrange

followed the operations against Afghanistan and Iraq at the beginni

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century.

The succession clauses in the Treaty of Berlin guaranteed pro

religious and other minorities in each of the States concerned, but they di

vide for any form of direct sanction in the event of non-observance. In 

differed from the view expressed by some of the “fathers” of internationa

envisaged the possibility of intervention by force, even resulting in occu

legedly on humanitarian grounds in favor of an oppressed people. Thu

was of the opinion that:

The fact must also be recognized that kings, and those who possess rights equal 

of kings, have the right of demanding punishments not only on account of 

against themselves or their subjects, but also on account of injuries which 

directly affect them but excessively violate the law of nature or of nations in r

any persons whatsoever.... Truly, it is more honourable to avenge the w

others rather than one’s own, in the degree that in the case of one’s own wro

more to be feared that through a sense of personal suffering one may exceed th

limit or at least prejudice his mind.... [K]ings, in addition to the particula

their own state, are also burdened with a general responsibility for human so

The final and most wide-reaching cause for undertaking wars on behalf of oth

mutual tie of kinship among men, which of itself affords sufficient gro

rendering assistance. . . . If, further, it should be granted that even in extrem

subjects cannot justifiably take up arms [against their sovereign]..., nevert

will not follow that others may not take up arms on their behalf.6

Not all the “fathers” of international law would agree with Grotius i

concerning the right of a State to punish another for committing crim

natural law. Among these was Vattel who asked:

Did not Grotius perceive that . . . his view opens the door to all the passions o

and fanatics, and gives to ambitious men pretexts without numbers7?...[How

there should be found a restless and unprincipled Nation, ever ready to do 

others, to thwart their purposes, and to stir up civil strife among their citizens

no doubt that all the others would have the right to unite together to subdu

Nation, to discipline it, and even to disable it from doing further harm.... 

foreign State may inquire into the manner in which a sovereign rules, nor set its

judge of his conduct. . . . If he . . . treats his subjects with severity it is for the N

take action; no foreign State is called on to amend his conduct and to force 

follow a wiser and juster course. . . . But if a prince, by violating the fundamen

gives his subjects a lawful cause for resisting him; if, by his insupportable tyr

brings on a national revolt against him, any foreign power may rightfu

assistance to an oppressed people who ask for its aid. . . . To give help to a brav

who are defending their liberties against an oppressor by force of arms is only 

of justice and generosity. . . . But this principle should not be made use of 

authorize criminal designs against the peace of Nations. . . . As for those mons

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nothing more than wild beasts, of whom every man may purge the earth.8

This last comment calls to mind President Bush’s reference to certain Sta

stituting an “axis of evil.”9

Pufendorf would not go as far as Grotius in granting a third State the r

tervene on behalf of foreign nationals, he nevertheless granted that right 

jects themselves had good cause to revolt,10 and, while he was critical of 

[W]ho say, that, when the king has degenerated into a tyrant, he can be stripp

command and punished by the people... [but] no one should believe, howe

we grant a boundless licence to princes, and deliver over to them their subjec

whom we have taken away every faculty of fighting back, like cattle to their plea

are altogether of the opinion that, if, indeed, even an absolute prince should a

mind utterly hostile towards his subjects, and openly seek their destruction wit

appearance of justice, his subjects can rightly employ against him also th

customarily used against an enemy for the sake of defending their own sa

[A]ssuredly, absolute princes can be punished neither for not running the sta

the people, nor for private misdeeds. . . . But after they have assumed the p

enemies [by their actions against their people], the evils which, perchance are 

upon them by the right of war do not have the character of a punishment pro

called....11 [T]he safest principle to go on is, that we cannot lawfully under

defence of another’s subjects, for any other reason than they themselves can r

advance, for taking up arms to protect themselves against the barbarous sav

their superiors....12 [F]inally, when there is no other reason, common desce

may be a sufficient ground for our going to the defence of one who is 

oppressed, and implores our aid, if we can conveniently do so.13

To a great extent the military operations undertaken by the United Stat

United Kingdom against Iraq in 2003 were based on this type of reas

though the plea for intervention came not from oppressed inhabitants

political exiles. However, the subsequent occupation received general s

least in the early days.

By the nineteenth century respect for sovereignty was so highly reg

writers generally were only willing to concede a right of intervention an

occupation in the most exceptional of circumstances. Phillimore pointed 

Intervention by one Christian State on behalf of Religion has... been pract

cannot be said, in the abstract, to be a violation of International Law. But wha

Intervention? By remonstrance, by stipulation, by a condition in a Treaty conc

war waged on other grounds. It may, perhaps, be justly contended that the p

might be pushed further; and that in the event of persecution of large bodies of 

account of their religious belief, an armed intervention on their behalf mig

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of blood and protracted internal hostilities.... [N]o writer of authori

International Law sanctions such an intervention, except upon the case of a 

persecution inflicted avowedly upon the ground of religious belief.14

Hall too was equally restrictive of the right:

International law professes to be concerned only with the relations of states 

other. Tyrannical conduct of a government towards its subjects, massac

brutality in a civil war, or religious persecution are acts which have nothin

directly or indirectly with such relations. On what ground then can internati

take cognizance of them? Apparently on one only, if it be competent to take cog

of them at all. It may be supposed to declare that acts of the kind mentione

inconsistent with the character of a moral being as to constitute a public scand

the body of states, or one or more states as representative of it, are competent to sup

[I]ntervention for the purpose of checking gross tyranny or of helping the eff

people to free itself is very commonly regarded without disfavour. Again, 

persecution, short of a cruelty which would rank as tyranny, has cease

recognised as an independent ground of intervention, but is still used as 

Europe and the East as an accessory motive, which seems to be thought b

persons as sufficiently praiseworthy to excuse the commission of acts in other 

grossly immoral.... [S]entiment has been allowed to influence the more del

formed opinion of jurists... [who] have imparted an aspect of legality to a s

intervention, which makes a deep inroad into one of the cardinal doct

international law [that of sovereign independence] . . . and which by the read

which it lends itself to the uses of selfish ambition becomes as dangerous in pr

plausible in appearance. It is unfortunate that publicists have not laid down 

and unanimously that no intervention is legal, except for the purpose 

preservation, unless a breach of the law as between states has taken place, or u

whole body of civilised states has concurred in authorising it. Intervention, 

armed or diplomatic, undertaken either for the reason or upon the pretext of 

or oppression, or the horrors of a civil war, or whatever the reason put 

supported in reality by the justification which such facts offer to the popula

would have had to justify themselves, when not authorised by the whole body of 

states unless accustomed to act together for common purposes, as measures whi

confessedly illegal in themselves, could only be excused in rare and extreme 

consideration of the unquestionably extraordinary character of the facts causing th

of the evident purity and motives of the intervening state.15

Westlake, almost foretelling modern views based on respect for hum

and popular indignation, commented that:

Intervention in the internal affairs of another state is justifiable... when a cou

fallen into such a condition of anarchy or misrule as unavoidably to disturb th

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government may be in that respect. . . . In considering anarchy and misrule as a 

for intervention the view must not be confined to the physical consequence

they may have beyond the limits of the territory in which they rage. These a

serious enough. . . . The moral effect on the neighbouring population is to be ta

account. Where these include considerable numbers allied by religion, languag

to the population suffering from misrule, to restrain the former from giving su

the latter in violation of the legal rights of the misruled state may be a task bey

power of their government, or requiring it to resort to modes of restraint irkso

subjects, and not necessary for good order if they were not excited by the spe

miseries which they must feel acutely. It is idle to argue in such a case that the 

the neighbouring peoples is to look on quietly. Laws are made for men and 

creatures of the imagination, and they must not create or tolerate for them si

which are beyond the endurance, which we will not say of average human natu

laws may fairly expect to raise the standard by their operation, but of the bes

nature at the time and place they can hope to meet with.17

Today it is increasingly the case that popular feeling at large, and not 

neighboring States, may be so outraged that a demand for intervention 

the United Nations or some other international organization is made, a

the case in, for example, the Sudan with regard to the treatment of Darf

It has not only been writers who, before the outbreak of World War 

establishment of the League of Nations, were prepared to condemn the 

particular States and even to advocate intervention or occupation. In hi

nual message, for example, President Theodore Roosevelt stated:

[T]here are occasional crimes committed on so vast a scale and of such 

horror as to make us doubt whether it is not our manifest duty to endeavour a

show our disapproval of the deed and our sympathy with those who have suf

it. The cases must be extreme in which such a course is justifiable . . . [and]in 

cases action may be justifiable and proper. What form the action shall ta

depend upon the circumstances of the case; that is, upon the degree of the 

and upon our power to remedy it. The cases in which we would interfere by 

arms ... are necessarily very few. Yet it is not to be expected that a people like 

which shows by its consistent practice its belief in the principles of civil and r

liberty and of orderly freedom . . . it is inevitable that such a nation shoul

eagerly to give expression to its horror on an occasion like that of the massac

Jews in Kishenef,19 or when it witnesses such systematic and long-extended 

and oppression of which the Armenians20 have been the victims, and which h

for them the indignant pity of the civilised world.21

The commitment of the United States to the principle of humanitari

led the American writer Stowell, perhaps the most authoritative writer 

vention, to comment:

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of protecting the inhabitants of another state from treatment so arbitr

persistently abusive as to exceed the limits within which the sovereign is pres

act with reason and justice....[However, t]he right of the sovereign state to act 

interference within its own territory, even though it be no more than a presum

of such importance to the well-being of international society, that the states 

wisdom, as evidenced in their practice, have been jealous of admitting the 

humanity as a justification for action against a sister state; and we find that inte

on this ground has been rather rigidly limited to specific cases, and conditioned 

of them upon the existence of a certain state of facts. It is true that the apprec

the facts and the determination as to the existence of the justifying situation still 

to a certain degree a matter entrusted to the conscientious discretion of the int

state; nevertheless, the general and salutary attitude of suspicion with whi

intervention upon the ground of humanity is regarded serves as a rough check 

abuse. The counterpoise which serves as the sanction to prevent aggress

subsequent conquest under the guise of humanitarian intervention is perha

found in the general readiness of states to act in defense of the balance of powe

order to preserve the society of independent states.22

In the light of these comments the reader might be justified in assum

right of intervention leading to possible occupation is, in certain circu

recognized in customary international law. However, whether this is t

not, such action is, as Stowell asserted, a matter of discretion, and by 19

the evidence of atrocities in Nazi Germany, reaction was largely “platon

ing Professor H. A. Smith of London University to complain:

[I]n practice we no longer insist that States shall conform to any common stan

justice, religious toleration and internal government. Whatever atrocities 

committed in foreign countries, we now say that they are no concern of ours. C

which in the nineteenth century would have placed a government outside th

civilised society is now deemed to be no obstacle to diplomatic friendship. Thi

in fact, that we have now abandoned the old distinction between civili

uncivilised states.24

In so far as occupatio pacifica as a result of treaty is concerned, referenc

made to Article III of the 1903 Agreement between the United States and 

the lease to the former of an area of Guantanamo “for the time requir

purpose of coaling and naval stations” and “during the period of occupat

United States . . . the United States shall exercise complete jurisdiction a

over and within said areas. . . .”25 In a 1933 decision the Cuban Supreme C

that “the territory of that Naval Station is for all legal effects regarded as fo

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Nevertheless, problems arose when the United States armed forces 

bers of individuals captured in Afghanistan for detention at the Guantan

base, labeling them, since there was no “war” declared, even though sup

the Taliban as distinct from members of al-Qaeda, carried their arms on 

de facto governing authority, as “enemy combatants” rather than “prisone

The United States, maintained that as such, regardless of the terms of t

Convention relating to the treatment of prisoners of war,27 they could b

indefinitely, denied access to counsel, and permitted no means of challen

confinement or clarifying their status or alleging mistaken identity.28 

this situation was challenged at the end of 2003 by a detainee by way of h

pus proceedings, and in Gherebi v. George W. Bush and Donald H. Ru

government claim was rejected by the majority of the Court of Appe

Ninth Circuit:

[W]e simply cannot accept the government’s position that the Executive 

possesses the unchecked authority to imprison indefinitely any persons, 

citizens included, on territory under the sole jurisdiction and control of the 

States, without permitting such prisoners recourse of any kind to any judicial fo

even access to counsel regardless of the length or manner of their confinemen

our view, the government’s position is inconsistent with fundamental t

American jurisprudence and raises most serious concerns under internationa

The Court cited, by way of explanation, Article 5 of the Prisoners of Wa

tion, 1949,30 as well as Article 9 of the International Covenant on Civil an

Rights to which the United States31 is a party: “Anyone who is deprived 

erty by arrest or detention shall be entitled to take proceedings before 

order that a court may decide without delay on the lawfulness of his deten

The United States argued to the court that while it exercised “complet

tion and control” over Guantanamo naval base, it continued to recognize 

tinuance and ultimate sovereignty in Cuba,” distinguishing the rights pe

“territorial jurisdiction” from those pertaining to “sovereignty”32 leading 

to point out that the “United States has exercised ‘complete jurisdiction 

trol’ over the Base for more than a century now, with the right to acqu

land or other property therein by purchase or by exercise of eminent do

full compensation to owners thereof.”33

The court further noted that the United States has “also treated Gu

Bay as if it were subject to American sovereignty: we have acted as if we 

retain the Base permanently, and have exercised the exclusive right to u

wish, regardless of any restrictions contained in the lease or continuing 

The court determined that:

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]y j

habeas jurisdiction lies in the present case.... [W]e conclude that, at least fo

purposes, Guantanamo is part of the sovereign territory of the United States. 

language of the Lease and continuing Treaty and the practical reality of U.S. a

and control over the Base support that answer.... [T]he United States exerc

dominion and sovereignty, while Cuba retains simply a contingent reve

interest that will become effective only if and when the United States de

relinquish its exclusive jurisdiction and control, i.e. sovereign domain o

territory.... [T]he United States possesses and exercises all the attrib

sovereignty, while Cuba retains only a residual or reversionary interest, conting

possible future United States’ decision to surrender its complete jurisdict

control.... [W]e conclude that Lease and continuing Treaty must be cons

providing that Cuba possesses no substantive sovereignty over Guantanamo 

the period of the U.S. reign. All such sovereignty during that indefinite and po

permanent period is vested in the United States.... Sovereignty may be gai

demonstration of intent to exercise sovereign control on the part of a country 

possession of the territory in question and has the power to enforce its will.35

These statements by the court are fully in accord with the traditional v

customary international law of the effect of occupation and there is noth

innovative about them. And the State which exercises sovereignty is ent

the rights accompanying sovereignty, as well as being burdened with all t

tions.36

As a further instance of occupatio pacifica by way of agreement the situ

ated by the arrangements made in 1960 at the time of the grant of indepe

Cyprus, whereby Britain retained full sovereignty over two areas of th

military bases may be cited.37

It may happen that part of a State’s territory is occupied by a victor 

dance with a peace treaty after a war. In such a case, the borderlin

occupatio pacifica and occupatio bellica may be somewhat blurred. Howe

such an occupation takes place, the wartime rights and obligations of the 

are not normally relevant. Under the 1919 Treaty of Versailles for examp

426 provides:

As a guarantee for the execution of the present Treaty by Germany, the 

territory situated west of the Rhine [the Rhineland and the Ruhr], together 

bridgeheads, will be occupied by Allied and Associated troops for a period o

years from the coming into force of the present Treaty.38

Provision was also made, depending on compliance by Germany with th

the Treaty, for the gradual withdrawal of the occupying forces.39

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A somewhat different policy was adopted after World War II because 

conditional surrender of both Germany40 and Japan.41 In so far as Ger

concerned, the victorious Allies—France, the Union of Soviet Socialist 

the United Kingdom and the United States—divided the country into 

rate zones governed by military officers, with Berlin divided into four se

allocated to one of the four powers. To all intents and purposes Germ

State, had ceased to exist by virtue of debellatio42 and the zones, both sepa

severally, were under the full sovereignty and administration of the 

powers, which only formally ended with the establishment and recogni

Federal and People’s Republics, respectively. In so far as Japan was conc

situation was somewhat different. There was no suggestion that the 

ceased to exist and the Emperor remained as titular Head of State, althou

tual government was in the hands of General Douglas MacArthur as 

Commander for the Allied Powers. He ruled with virtually absolute p

though ostensibly acting on behalf of the Allied Powers, MacArthur rem

ject to the authority of the President of the United States. This situation 

until the adoption of the Peace Treaty with Japan in 1951.43 Article 6

Treaty provides, in part, that all “occupation forces of the Allied Powe

withdrawn from Japan as soon as possible after the coming into force of t

Treaty, and in any case not later that 90 days thereafter. . . .”

Although by Article 1 of the Peace Treaty “the Allied Powers recogn

sovereignty of the Japanese people over Japan and its territorial waters,

stitution of Japan,44 drawn up in 1947 under the auspices of MacArthur

tion, remained in force. Article 9 of the Constitution provided:

Aspiring sincerely to an international peace based on justice and order, the J

people forever renounce war as a sovereign right of the nation and the threat 

force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air f

well as other war potential, will never be maintained. The right of belligeren

state will not be recognized.

The occupation of Japan was similar to that of the occupation of the Rh

that both followed the unconditional surrender of the defeated State a

sumption of absolute power by the victors. There was no suggestion that 

pier was in any way limited by the rights granted to an occupier in accord

the law of war.

Reference might also be made to the position of Austria following Wo

Austria had been annexed by Germany in 1938 and was regarded 

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Germany.

Recognition of the annexation was withdrawn by virtue of th

Declaration.46 Nevertheless, Austria was not treated in the same fashio

States unlawfully occupied by Germany. In 1946, an agreement was con

tween the four major Allied Powers (United States, United Kingdom, Sov

and France) and Austria47 that established a four-power Commission wi

tence for the whole of Austria, but with each of these powers a virtual sov

cupant in its own zone. By Article 1 of that accord, the Austrian Govern

all subordinate Austrian authorities were bound to carry out all instru

ceived from the Allied Commission, so much so that “the Austrian auth

no more than an executive arm of the occupying Power.”48 Although th

had ceased to be recognized, in 1955 a peace treaty was agreed to with Au

ticle 20 of which stipulated that the 1946 Agreement was terminated an

Agreement on Zones of Occupation was to terminate on the withdra

Allied forces by the end of that year.

Occupatio bellica involves occupation during the actual conduct of ho

after these have ceased prior to any arrangement being made for the fu

territory in question. In such cases, reference must be made to the law

toms of war. Already in ancient India:

Customs, laws and family usages which obtain in a country should be preserv

the country has been acquired.... Having conquered his foe, let him not ab

disregard the laws of that country....A king should never do such injury to h

would rankle in the latter’s heart.50

More important from our point of view, particularly since it became 

for much of Europe, is the Lieber Code51 prepared by Professor Lieber of 

University and propounded by President Lincoln during the American 

Here, we find a number of regulations affecting the rights of enemy c

which we need cite just a few:

Art. 23. Private citizens are no longer murdered, enslaved, or carried off to 

parts, and the inoffensive individual is as little disturbed in his private relatio

commander of the hostile troops can afford to grant in the overruling dema

vigorous war.

Art. 25. In modern regular wars of the Europeans, and their descendants 

portions of the globe, protection of the inoffensive citizen of the hostile coun

rule; privation and disturbance of private relations are the exception.

Art. 33. It is no longer considered lawful – on the contrary, it is held to be a 

breach of the law of war – to force the subjects of the enemy into the servic

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g, pp, 

conquest of the hostile country or district, that it is resolved to keep the 

district, or place permanently as its own and make it a portion of its own cou

Art. 35. Classical works of art, libraries, scientific collections, or precious instr

such as astronomical telescopes, must be secured against all avoidable inju

when they are contained in fortified places whilst besieged or bombarded.52

Art. 36. If such works of art, libraries, collections, or instruments belonging to 

nation or government, can be removed without injury, the ruler of the con

state or nation may order them to be seized and removed for the benefit of 

nation. The ultimate ownership is to be settled by the ensuing treaty of peac

case shall they be sold or be given away by the armies of the United States, nor s

ever be privately appropriated, or wantonly destroyed or injured.

Art. 37. The United States acknowledge and protect, in hostile countries occu

them, religion and morality; strictly private property; the persons of the inh

especially those of women: and the sacredness of domestic relations. Offens

contrary shall be rigorously punished....

Art. 39. The salaries of civil officers of the hostile government who remai

invaded territory, and continue the work of their offices, and can continue it ac

to the circumstances arising out of the war – such as judges, administrative o

officers, officers of city or communal governments – are paid from the public 

of the invaded territory, until the military government has reason wholly or pa

discontinue it....

Art. 44. All wanton violence committed against persons in the invaded cou

destruction of property not commanded by the authorized officer, all rob

pillage or sacking, even after taking place by main force, all rape, wounding, m

or killing of such inhabitants, are prohibited under the penalty of death, or su

severe punishment as may seem adequate for the gravity of the offense....

Art. 47. Crimes punishable by all penal codes, such as arson, murder, m

assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committ

American soldier in a hostile country against its inhabitants, are not only puni

at home, but in all cases in which death is not inflicted, the severe punishment 

preferred....

There is no need here to examine the Brussels Declaration of 187453 or t

Manual of 188054 since the former was never ratified, while the latter was 

by members of the Institute of International Law and had no official 

Moreover, their contents were fully taken into consideration at t

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Conference of 1899, which produced Hague Convention II

with resp

Laws and Customs of War on Land, which was itself replaced at the 190

ence by Convention IV.56 It is the latter Convention which governed the 

cupation until its application was extended in 1949 by the Fourt

Convention,57 as possibly supplemented by the various principles now a

part of the international law concerning the protection of human rights, 

lar the 1948 Universal Declaration of Human Rights58 and the 1966 Int

Covenant on Civil and Political Rights.59 Since the Geneva Conventions 

all cases of declared war or of any other armed conflict which may aris

two or more of the High Contracting Parties, even if the state of w

recognized by one of them,”60 it may be said as a general statement that

[T]he law of belligerent occupation is applicable whenever one State occupie

course of an armed conflict, territory which was previously under the con

hostile party to that conflict, irrespective of whether the displaced power was th

sovereign of that territory.61

But, this is only true of conflicting States which are parties to the Conve

though the principles embodied in 1907 have been held to be part of 

law62 and would, therefore, be applicable in any armed conflict. Mor

Martens Clause, set forth in the Preamble of Hague Convention IV of 

vides, in pertinent part, that:

[I]n cases not included in the Regulations [annexed to the Convention] 

inhabitants and the belligerents remain under the protection and the rul

principles of the law of nations, as they result from the usages established 

civilized peoples, from the laws of humanity, and the dictates of the public cons

In its advisory opinion on nuclear weapons, the International Court 

made clear that the Martens Clause is relevant even today, and “the fun

rules [laid down in the Hague and Geneva Conventions] are to be obse

States whether or not they have ratified the conventions that contain them

they constitute intransgressible principles of international customary la

Since it is now established that the principles embodied in the Hagu

tions and the Geneva Conventions, at least to the extent that they are in a

with accepted customary law, are of general application binding on all, 

sary to draw attention to some of the basic principles relating to occup

underlying principle in Hague Convention IV is to be found in Article 

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occupant, the latter shall take all measures in his power to restore, and ensure, 

possible, public order and safety, while respecting, unless absolutely preven

laws in force in that country.

The effect of this provision may be seen from the statement by the Un

Military Tribunal in the Hostages Case:

The status of an occupant of the territory having been achieved, internati

places the responsibility upon the commanding general of preserving order, pu

crime and protecting lives and property within the occupied territory. His p

accomplishing these ends is as great as his responsibility. But he is definitely lim

recognized rules of international law.64

This does not mean, of course, that the occupying power must maintain 

gal provisions that run counter to morality or basic principles underlyi

way of life, so that the Powers occupying Germany after its uncondition

der were fully entitled to abrogate such German legislation as the Na

laws, or, as has happened more recently, the cancellation of discriminato

tion directed at women.

Other relevant provisions of Hague Convention IV include Article 45 

bidden to compel the inhabitants of occupied territory to swear allegia

hostile Power”), Article 46 (“Family honour and rights, the lives of pe

private property, as well as religious convictions and practice, mu

spected . . .”), Article 50 (“No general penalty, pecuniary or otherwise, s

flicted upon the population on account of the acts of individuals for w

cannot be regarded as jointly and severally responsible”), and Article 55 

cupying State shall be regarded only as administrator and usufructuary 

buildings, real estate, forests, and agricultural estates belonging to the ho

and situated in the occupied country. It must safeguard the capital of the

ties, and administer them in accordance with the rules of usufruct”).

The law with regard to occupatio bellica was greatly expanded with the 

of the 1949 Geneva Convention IV. This did not replace the provisions o

Convention, expressly stating that it is “supplementary” thereto.65 Thi

tion is primarily directed to protecting the rights of civilians in occupied 

limiting the rights of the occupant in so far as such civilians are concerned

provides that “Persons protected by the convention are those who, at a 

ment and in any manner whatsoever, find themselves, in case of... a[n

tion, in the hands of a[n] Occupying Power of which they are not nation

been said of this Convention that:

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through the prohibition of reprisals and collective punishments against the 

population of the occupied territory, hostage-taking, torture, inhuman and d

treatment, deportation, slave labour, wholesale seizure of property, and comp

perform work of military value. Both the Hague Regulations and the Fourth 

Convention also forbid the exploitation of the economy of the occupied terr

the benefit of the occupant’s own economy. In exercising its power to determ

matters as exchange rates, the amount of money in circulation in the o

territory, and the terms and conditions of trade, the occupying power mus

provide for the good economic government of the occupied territory and no

feather its own nest.66

As important as these humanitarian provisions are, perhaps even mo

cant is the provision in Article 1 that the Convention is to apply “in a

stances,” while by Article 2, which is common to all four of the 194

Conventions, Convention IV is to apply:

[T]o all cases of declared war or of any other armed conflict which may arise 

two or more of the High Contracting Parties, even if the state of war is not rec

by one of them. [It] shall also apply to all cases of partial or total occupatio

territory of a High Contracting Party even if the occupation meets with n

resistance.

The provisions in Geneva Convention IV are applicable from the open

conflict or of the occupation and:

[I]n the case of occupied territory [its] applications... shall cease one year 

general close of military operations; however, the Occupying Power shall be bo

the duration of the occupation, to the extent that such Power exercises the fun

government in such territory by the provisions of [certain specified Articles re

the status and treatment of civilians]. Protected persons whose release, repatr

re-establishment may take place after such dates shall meanwhile continue to 

by the present Convention.67

By Article 27, the rights guaranteed by Convention IV are to be enjo

“without any adverse distinction based . . . on race, religion or political 

and women are to be protected against “any attack on their honour.” 

that protected persons enjoy their rights under the Convention, Article 2

that the “Party to the conflict in whose hands protected persons may be, 

sible for the treatment accorded to them by its agents, irrespective of any 

responsibility which may be incurred . . . .” Article 31, in turn, states that 

cal or moral coercion shall be exercised against protected persons, part

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obtain information from them or from third parties.

Moreover, Artic

vides that it is prohibited to take:

[A]ny measure of such a character as to cause the physical suffering or extermin

protected persons in [the] hands [of any High Contracting Party]. This pro

applies not only to murder, torture, corporal punishment, mutilation and m

scientific experiments not necessitated by the medical treatment of a protected 

but also to any other measures of brutality, whether applied by civilian or 

agents.

It is important to note that, in accordance with Article 8, protected pe

not agree to give up their rights under the Convention either “in part or 

Similarly, Article 47 declares that:

[P]rotected persons who are in occupied territory shall not be deprived, in an

in any manner whatsoever, of the benefits of the present Convention by any 

introduced, as the result of the occupation of a territory, into the institu

government of the said territory, nor by any agreement concluded betw

authorities of the occupied territories and the Occupying Power, nor by the ann

by the latter of the whole or part of the occupied territory.

This raises nice questions regarding, for example, the Israeli actions with 

territories under the control of the Palestine Administration Authority

Israel contends that since it has never ratified the Fourth Conventio

bound thereby. Moreover, it has argued that since the territories in que

never under the authority of any recognized sovereign they are merely 

tered,” rather than “occupied”—whatever that distinction might be. 

Prime Minister Sharon has acknowledged, in connection with his unde

withdraw from parts of the territory in question, that they are in fact “occ

this connection it might be of interest to draw attention to the following 

in the British Manual of the Law of Armed Conflict: “Whether the adm

imposed by the occupying power is called a military government or civ

ment is not important. The legality of its acts will be determined in a

with the law of armed conflict.”68 The United States Army manual, T

Land Warfare, is to the same effect:

It is immaterial whether the government over an enemy’s territory cons

military or civil or mixed administration. Its character is the same and the sou

authority is the same. It is a government imposed by force, and the legality of 

determined by the law of war.69

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In the light of these statements, it would appear that the inclusion in t

istration of civilian nationals of the occupied territory would not alter 

tion. It might be questioned, therefore, whether the administrations t

the supervision of occupying authorities, have been established in the K

gion of Yugoslavia, Afghanistan and Iraq are truly in line with the requir

the Convention, for they purport to govern regardless of the provisions o

vention or the customary law concerning occupation. In each of these 

regardless of the installation of “local” administrations, the occupa

though government might be conducted through local surrogates ho

scribed, has continued and appears likely to do so for some time, despite 

ing of local elections. A comment by Professor Greenwood is relevant:

Although it is obviously difficult to apply the law of belligerent occupat

prolonged occupation, that law is not thereby rendered inapplicable. Pr

occupation raises many questions to which the Hague Regulations and the 

Geneva Convention provide no express answers. In particular, there is a n

change on a far greater scale during a prolonged occupation simply because of 

in which circumstances change over time. Nevertheless, there is no indicat

international law permits an occupying power to disregard provisions 

Regulations or the Convention merely because it has been in occupation fo

period, not least because there is no body of law which might plausibly take th

and no indication that the international community is willing to trust the o

with carte blanche. Any changes, it is suggested, must take place within the fra

of the Hague Regulations and the Fourth Geneva Convention, the principles 

are flexible enough to accommodate at least some of the needs of a pr

occupation. . . . The longer the occupation lasts, the greater the degree of chang

is likely to be required but changes should still be made only in accordance 

broad principles [to be found in the Regulations and Convention].70

It must be borne in mind, when considering the Israeli situation, which w

sor Greenwood’s particular concern when making this comment, that Isr

fused to ratify Geneva IV and is only bound by those provisions of the C

which give expression to customary law.

In so far as the Israeli situation is concerned, while the tendency has 

recently to describe the contested Palestinian lands—the West Bank re

described as Judea and Samaria—held by Israel as “administered territ

which the Fourth Convention does not apply, Israeli courts, when calle

consider the legality of actions by military authorities in those territorie

always taken such a narrow approach, pointing out as early as 1968 tha

tary Commander’s legislative powers derive from the actual occupatio

the Convention, but the judge stated:

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is guided by the convention, inasmuch as the latter embodies humanitarian p

of civilized nations, I shall assume that I must have recourse to the convention 

of binding force. . . . Any Order made by the Commander is presumed to be v

its validity can only be impugned if the Order is on the face of it so unreason

exceptional and contrary to the most basic principles of natural just

international morality accepted by civilized nations, that it stands to be rejected 

Military Court [set up under security Provisions Order issued by the 

Commander of the Region] by virtue of its inherent authority must disreg

being enacted out of malice and arbitrariness rather than the achievement of an

purpose....72

The “Military Court” referred to in this opinion was established und

Provisions Order issued by the Military Commander of the Region. Esta

of such military courts is consistent with Geneva Convention IV. 73

As to the 1907 Hague Regulations, the Israeli judicial position is ver

was pointed out by the Supreme Court in 1982:

The rights of a resident in the area under military government vis-à-vis the 

commander – rights subject to judicial review in a court of law of the occupyin

stem from the rules governing belligerent occupation in customary internati

and contractual international law, insofar as they have been assimilated 

internal law of the occupying state by a valid internal act of legislation. In re

Israel’s belligerent occupation, and in the absence of legislation which interna

principle [sic] norms of the laws of war relating to belligerent occupation, (the 

force) are those included in the Hague Regulations. . . . Even though th

Regulations serve as an authority in this respect, the accepted attitude – which 

been accepted by this Court – is that the Hague Regulations are declarative i

and reflect customary international law, applicable in Israel without an act o

legislation. 74

The Fourth Geneva Convention, not having been ratified by Israel, 

been the subject of Israeli legislation. However, as has just been noted, 

will apply those parts of the Convention which it considers to be purely h

ian in character and part of international customary law. It is for this reas

rael applies the Hague Regulations appended to Convention IV of 1

though it contends there is no war since there is no State enemy, merely 

“terrorists,” like the Popular Front for the Liberation of Palestine, who ar

tled to be treated as prisoners of war and are, therefore, not protected by 

Geneva Convention.75

Among the activities of the Israel military administration claimed to b

to both the Hague Regulations and Geneva Convention IV is the destruc

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homes of civilians who are related to an alleged terrorist. In the 1985 case 

v. Military Commander of the Judea and Samaria Region, Judge Ben-Dr

out that the goal of the 1945 Defence (Emergency) Regulations permi

demolition:

[W]as a deterrent effect, and this effect should apply not only to the terrorist al

also to the family living with him. A demolition of a terrorist’s house ca

considered a ‘collective punishment’ because the house about to be demo

connected to the terrorist, and not to people unconnected with the matter. 

such as this the High Court usually instructs the respondent [the 

Commander] to consider other deterrent measures, such as merely sealing 

terrorists’ houses. However, the final decision on the nature of the measu

adopted lies within the respondent’s competence according to Regulation 119, 

to the gravity of the acts performed by the petitioners’ relatives, the san

demolition of their houses seems quite a reasonable one.76

The conclusion to be drawn from these Israeli judicial decisions is that 

little whether the occupying power regards the territory under admini

“enemy” or “terrorist” or by some other nomenclature. For Israel, at lea

to be applied is made up of the occupation provisions of the Hague Re

together with those provisions of the Fourth Geneva Convention whi

manitarian in their purpose and as such are to be observed regardless of 

ratifying the Convention.

The difference between the Israeli occupation and those that have occ

lies in the fact that the former is the result of conflict following Israel’s cr

has been conducted between Israel and forces that, for the main part, d

allegiance to any other State. The later occupations have all involved St

which are members of the United Nations, and have followed an interv

of the normal conflict type, but have been based on some other groun

disregard of the terms of the Charter of the United Nations. It is necess

fore, to pay some attention to the basis for the intervention and the c

occupation.

Before doing so, however, reference must be made to some apparen

tions under the auspices of the United Nations which have nothing inh

do with the law of armed conflict, and, consequently, not with the law c

occupation. There have been a number of incidents in which the memb

United Nations, particularly of the Security Council, have become con

the manner in which conflicting racial or tribal groups within a country, 

one that has only recently achieved its independence, have indulged in o

behavior, or in which it has been feared the local hostilities might 

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involve some third power. In such circumstances the United Nations h

rized the raising of a “peacekeeping” force which has been stationed in th

territory with a view to bringing an end to hostilities by acting as an int

force between rival groups.77 This has happened, for example, in Cyprus, 

rael, Somalia, Rwanda,78 Kampuchea, and East Timor, to name but a f

ever, these forces do not operate as occupiers, and the law, whether it is 

Hague or of Geneva, has no relevance. That these forces are there as a m

cal tolerance may be seen from the manner in which the UN force in 

withdrawn at the request of Egypt, the host country, in 1967.79

The intervention by peacekeepers in Haiti tends to stand in a position 

for in this case it has been alleged that the United States, which provided t

the peacekeeping force, virtually forced Aristide, the democratically ele

dent of the country, to depart and arranged for his removal (Aristide a

the United States forcibly removed him), which, if true, is clearly an actio

ing with local government contrary to customary international law. T

States denied doing so. While there was some indication that this action 

been popular at the time, by October 2004 agitation was taking place call

return.

Before considering the legal status of such interventions it must be p

that by Article 2, paragraph 4, of the Charter all Members “shall refrain i

ternational relations from the threat or use of force against the territoria

or political independence of any state, or in any other manner inconsisten

Purposes of the United Nations.” Further, as was indicated at the very be

this article, paragraph 7 of the same Article provides:

Nothing contained in the present Charter shall authorize the United Na

intervene in matters which are essentially within the domestic jurisdiction of 

or shall require the Members to submit such matters to settlement under the 

Charter; but this Principle shall not prejudice the application of enforcement m

under Chapter VII.

Chapter VII is concerned with “Action with respect to Threats to 

Breaches of the Peace, and Acts of Aggression.” Prima facie, this would su

unless ill treatment of nationals by one State constituted a direct threat t

being of another, no State or the United Nations itself would have a righ

vene on behalf of those persecuted. The situation might be altered by vi

existence of treaty obligations concerning human rights undertaken by 

cutor, although it must be borne in mind that none of the presently existi

in this field confers a right of direct intervention on any other party to suc

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In accordance with the law of treaties, unless the treaty specifically crea

right, by both customary and conventional law, breach of a treaty does no

vate citizens any right recognized and enforceable by international law

various treaties concerned with human rights have not created suc

expressis verbis. The only other recourse to a national would depend upo

party to the treaty and alleged to be in breach of it having created such a r

its national law. The only right accruing to other parties to the treaty w

way of damages, provided it could prove that its own interests had in fac

versely affected by the conduct objected to.

The first case that calls for consideration arose out of the dissolut

Socialist Federal People’s Republic of Yugoslavia and the conflicts whic

1991. These conflicts were both international, as for example, betwee

and Serbia, and non-international, as for instance, between Bosnia an

Serbs seeking to join Serbia. In accordance with customary internation

established government is entitled to take such action as it deems necess

press a revolt, free from any active intervention by any other State, an

appear from Article 2, paragraph 7 of the Charter, free from intervent

United Nations. In addition, in this particular instance it is important to 

all of the parties concerned in the Yugoslav fighting accepted the pro

Protocol II of 1977.81

By Article 3 of the Protocol, non-intervention by third States, whatev

cumstances, is condemned emphatically:

1. Nothing in the Protocol [including Part II concerning Humane Treatment] 

invoked for the purpose of affecting the sovereignty of a State or the respons

the government, by all legitimate [it does not say “reasonable”] means, to ma

re-establish law and order in the State or to defend the national unity and te

integrity of the State.

2. Nothing in the Protocol shall be invoked as a justification for intervening, di

indirectly, in the armed conflict or in the internal or external affairs of t

Contracting Party in the territory of which the conflict occurs.

Of course, States, for example the United States, which had not become 

the Protocol, would not be bound by this provision. It would, however, 

by the well-established principle of non-intervention under customary l

affirmed in the Charter.

Apart from the conflicts between Bosnia, Croatia and Serbia, a maj

took place in the Serb remnant, particularly as between the Serb authorit

Albanian population that constituted a majority in Kosovo. The attem

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Serbs to reassert their authority resulted in atrocities on both sides, w

spread allegations that the authorities were carrying out extensive polici

nic cleansing” involving expulsions, killings and mass rapes of the Albani

would argue that “ethnic cleansing” was a sanitized term for genocide. A

the Genocide Convention of 1948 defines genocide as meaning:

[A]cts committed with intent to destroy, in whole or in part, a national, ethn

or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated 

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.82

It can hardly be denied that slaughtering the men, and forcing women an

to flee their homes and take to the hills in winter without adequate food 

ing, would fall within this definition. While the Convention elevated gen

crime, it made little provision for its punishment, nor did it give any part

intervene to terminate acts of genocide being committed by some othe

any case, by failing to describe what was going on by the treaty term would s

no such right could be asserted.

Nevertheless, when Serbia rejected a proposal that a force of Nort

Treaty Organization (NATO) personnel be admitted and that a plebis

NATO supervision be held on Kosovo’s future after three years of interi

ment, and followed this rejection with increased pressure upon the Kos

nian population, NATO indicated that military action against the 

inevitable and in July 1999 NATO began a bombing campaign. This 

place to discuss the NATO intervention83 either in accordance with the U

tions Charter or the North Atlantic Treaty84 itself. Suffice it to say that A

the Treaty defines the geographic area of its competence, which does n

the former State of Yugoslavia, and requires an armed attack against a 

for the obligations of the Treaty to come into effect. It is difficult to appr

a non-international conflict in Yugoslavia, not a member of NATO, i

threatened the security of any NATO member. NATO, however, maint

its intervention was not in any way politically directed with the aim of b

what remained of the former Yugoslavia or to recognize an independen

but was purely humanitarian, directed at terminating the ethnic cleansing 

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atrocities committed by the Serbs against the Muslim Albanian populati

enable the latter to return home in safety and enjoying the same rights a

Serbian citizens in the area. Here we have an approach that is reminiscen

sions to be found in the 1878 Treaty of Berlin. Article XXXV thereof pr

In Serbia the difference of religious creed and confession shall not be alleged 

any person as a ground for exclusion or incapacity in matters relating to the en

of civil and political rights, admission to public employments, functions, and h

or the exercise of the various professions and industries, in any locality whate

freedom and outward exercise of all forms of worship shall be assured to all 

belonging to Serbia, as well as to foreigners. And no hindrance shall be offered 

the hierarchical organization of the different communions, or to their relatio

their spiritual heads.

While it is true that there is no established right of intervention, wheth

to occupation or not, in customary international law, one cannot igno

that international law is a developing process. The Preamble to the Unite

Charter affirms “faith in fundamental human rights, in the dignity and 

the human person, in the equal rights of men and women and of nation

small.” This has led to the adoption of a variety of instruments reaffirmin

tence of and support for human rights. With few States presuming to op

assertions, there is a tendency to assert that there is now, if not a jus cogen

developing customary law in this field binding upon and enforceable by 

this trend, it may be contended that the NATO intervention is legally 

What may be more difficult to support is the continued presence of NA

and a UN administrator in the territory now that “peace” has officiall

stored, and purportedly free elections have been held in Serbia. However

of those elections and the persons permitted to run for office have all b

and approved by the non-local internationally imposed administrator. W

is no official occupation in existence and no suggestion that the area is 

umbrella of the Fourth Geneva Convention, the members of the “o

forces are immune from the local jurisdiction, and there appears to be l

made by the sending State authorities to try their personnel in accord

their own national law for offenses committed against local inhabitants

It remains to discuss the situation in both Afghanistan and Iraq, part

the United States has taken the lead in dealing with both these countrie

tinues to do so, and remains somewhat indifferent to the view of other St

ing support in seeking to restore order.

On September 11, 2001, three hijacked American aircraft were used a

tive weapons against the World Trade Center in New York and the Pe

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Washington, D.C., while a fourth plane was likely prevented by its passen

crashing into the White House itself. The immediate reaction of the Un

Government was to declare a “war against terrorism,” without any indic

the State against which this war was to be waged. There was strong evid

dicate that the attacks had been organized by al-Qaeda, a group of Islam

mentalists led by Osama bin Laden, a renegade Saudi citizen, who 

responsible for a number of prior attacks against United States and oth

interests. There was also evidence to indicate that bin Laden was in A

where he maintained or financed a number of terrorist training camps

stan was at that time administered by an Islamic fundamentalist adm

(the Taliban) that constituted the country’s de facto government, altho

not internationally recognized. The Taliban authorities were called upo

bin Laden and surrender him to the United States for trial. When they 

do so, the country was attacked by US forces, supported by the United 

and others.

There was no declaration of war and, despite the fact that Taliban fig

representative of their “government” and as such distinguishable from 

the United States refused to recognize them as legitimate combatants 

treatment when captured as prisoners of war. Instead they were describ

emy combatants,” a classification not known to the law of armed conf

regards all captured enemy personnel belonging to an organized force as 

of war. If not clearly recognizable as entitled to be described as such, the

tled to be treated as if they were prisoners of war until such time as their 

been clarified by a tribunal.86 It is true that the supporters of the Taliban 

tration were not easily identifiable as members of a regular force, but they 

tainly no less identifiable that those constituting the Northern Allian

purported to be the remnant of the government overthrown by the Talib

over, in view of the camouflage worn by many members of modern arme

as well as by many, particularly younger, civilians—it may well be difficu

tify these too, especially those members who participate in undercove

wearing civilian or other dress, as distinct from national uniform, wheth

of or additional to their regular uniform.87 Having displaced the Ta

United States treated as an ally the Northern Alliance as representatives o

ernment displaced by the Taliban, and subsequently selected perso

among its members, together with some tribal leaders, to form a counci

government under the leadership of an individual acceptable to the Uni

In the meantime the latter was able to persuade some third States to as

administration and rebuilding of Afghanistan, and, as in Kosovo, some o

tary supervisory activities have been undertaken by NATO—although 

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been no attempt to explain how such an activity so far from the North At

falls within NATO’s competence. At no time has it been suggested that 

occupation or that there is any room for any of the Geneva Convent

applied.

Moreover, a new development in the practice of occupation has b

duced in Afghanistan. A number of armed western security personnel

servicemen, who may well be described as mercenaries and therefore il

batants,88 have been recruited to assist the occupying authority and the A

ministration in protecting commercial interests, usually western in chara

personnel have no interest in or concern for restrictions imposed by the 

Geneva Conventions and their activities go largely unchecked by either th

Afghan authorities.89

Despite the existence of an acceptable Afghan administration and the 

tion of other States, the United States has removed captured personne

ghanistan to Guantanamo Bay in Cuba, where it has a naval base leased 

perpetuity from the Cuban government.90 Among the captives are mem

Taliban, who, it may be suggested, were legitimately engaged in combat 

of their government against the United States “invader,” and who mi

garded, prima facie, as entitled to Third Convention protection, instea

denied, until recently,91 any form of independent legal protection. Also a

Taliban captives are non-Afghan Muslims who volunteered to defend 

administration against rebels or foreign forces seeking to overthrow tha

tration. It may be suggested that they were entitled to the same treatm

French Foreign Legion, the LaFayette Squadron or any American who 

allied forces in either World War before the United States itself became 

ent. Even when these captives have held the nationality of one of the Am

lies, as have a number from Britain or Pakistan, the United States has d

treat them as in any way protected by the law of armed conflict nor, wi

ceptions, has it been prepared to hand them over to their own gover

treatment in accordance with their national law. Moreover, it would 

where some detainees are concerned no details as to name or even place 

tion are known.92

In practice, despite the existence of a nominally independent govern

ghanistan is under effective US occupation since it would appear that th

ment” acts only with the consent of the United States, even though 

contends that any actions taken by them against local “terrorists” (a term 

being used somewhat indiscriminately both in Afghanistan and Iraq ev

those who might be more correctly described as “insurgents”) are only u

at the request or with the consent of the Afghan administration. Both t

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States and the Afghan authorities deny that an occupation exists, and t

States has indicated that it will withdraw if requested after the Afgha

which is due to take place shortly. Until then, it is the United States that 

to ensure that conditions exist for such an election to be held.

At least in so far as Afghanistan is concerned, it is possible to argue th

tection offered by the Taliban to the al-Qaeda terrorist movement with 

threats and actions against third States was enough to regard the Taliban 

of Osama bin Laden’s supporters and, as such, sufficient as a coconspirat

rant action against it. Additionally, the Taliban governmental authori

tremely restrictive and in virtual denial of all human rights, particula

women were concerned, although this argument was not originally of 

significance.

In the case of Iraq, no similar contentions could be put forward. Ins

ence was made to the United Nations resolutions terminating hostilities 

of the conflict with Iraq consequent upon its invasion of Kuwait. By R

687,93 which was adopted in 1991, Iraq was required to get rid of all it

and biological weapons as well as its weapons of mass destruction and to 

international inspection to ensure compliance with these requirements. A

the United States contended that Iraq was not fulfilling its obligations an

cooperating with the United Nations inspectors. When the Security Cou

to take the further action desired by the United States, the latter, suppor

United Kingdom, launched a military offensive against Iraq, while ad

complaint the assertion that Saddam Hussein, president of Iraq, was a p

al-Qaeda and even claimed that Iraq was party to the September atta

United States, a claim for which there appears to have been no substantiv

whatever. The United Kingdom added the complaint that Iraq was in br

ery international obligation concerning human rights and that the adm

should be overthrown even on this ground alone.

As in the case of Afghanistan, there was no support from the United N

was there any declaration of war.94The actual combat operations were n

duration, the Iraqi armed forces soon surrendered, and President Bush p

that the operation was successfully terminated. In that case, in accordanc

Third Geneva Convention,95 all prisoners of war other than those held fo

trial as war criminals must be released, an obligation only partly comp

Further, the United States declared that Saddam Hussein and many of h

military, political and scientific advisers had committed war crimes duri

Gulf War following the Iraqi invasion of Kuwait, as well as crimes again

ity, particularly against dissident Iraqi nationals. There was again no 

that these latter were to be treated in accordance with the Geneva Co

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although Saddam at least was permitted to see International Committee 

Cross representatives. Moreover, the United States arranged for Saddam 

of the others to be handed over to the new Iraqi administration for trial

ing the possibility of trials by vengeance, even though it was asserted th

precautions would be taken to ensure that they receive a fair trial.

With the overthrow of the government, the United States, without ack

ing that it was an occupant subject to the restrictions imposed by the 

Geneva Conventions, became the governing authority in Iraq, appointin

States citizen as supreme governor, although he was later replaced by an A

sponsored Iraqi interim administration, with the United States making c

local politicians it would not tolerate. The United States signed an agree

this administration undertaking to withdraw from Iraq should the Ira

ment request it to do so. In the meantime, the United States remained th

authority for security purposes and agreed not to undertake offensive o

against “terrorists,” even though some of those so described might mor

be considered as insurgents. It must be kept in mind that the overthrow 

Hussein and his government and the disbandment by the occupant o

armed forces did not mean that all support for the legitimate Iraqi govern

terminated, particularly as many of these forces found themselves with

pects of employment. Many of them did in fact continue operations o

character against both the “invading” military forces and representati

Iraqi administration. Subsequently the United States began allowing m

the former Iraqi forces, after proper vetting, to rejoin the newly-cre

armed or police forces.

When it became clear that Iraq had no weapons of mass destruction a

stroyed under United Nations supervision its chemical and biological w

fact later confirmed by the head of the United States Iraq Survey Group i

Report,96 the United States and its allies changed the balance of their a

concerning the invasion and subsequent occupation. It now seemed tha

important aim of their operations was to bring democracy to Iraq, s

claiming that this would prove an example for other Middle East State

ernments of many of which were dictatorial in character. This claim that 

of democratic governments everywhere the United States and its alli

ered it to be desirable—even absent United Nations approval if this co

obtained—is reminiscent of policies pursued by the Concert of Europe in 

teenth century.

In both Afghanistan and Iraq, the United States, backed by its allies

ported its nominee in the local administration in organizing an elect

American protection. The presumption appears to be that with an elec

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though local conditions might not make it feasible to be held throughou

pied area, a new era will be created with a popular government taking 

that will fully respect human rights, will not constitute a threat to any nei

will not seek to acquire weapons of mass destruction or others now c

contrary to international law.

This view that the introduction of the trappings of democracy to a s

has never known it and the history of which is riven with local lustings 

hatreds and jealousies is the answer to all problems and the way to a futur

existence for all is similar to the situation that existed particularly in form

colonies in Africa during the disassembling of empire. At that time th

seems to have been,

[Y]ou are now independent. We are giving you a building that looks like a 

railway terminus which is your legislature. In addition, we are providing yo

ceremonial chair which is the ‘Speaker’s Chair’, although the man who sits in it 

speak. There will be a person dressed somewhat like Little Lord Fauntleroy know

Speaker, who will sit in the Speaker’s Chair from which he is not allowed to spe

we will present you with an ornamental mace as a symbol of the Speaker’s autho

which must not be used as you were accustomed historically to use a mace. Fi

will give you a presentation copy of Erskine May’s Parliamentary Procedure and 

hold an election. After this, the world will know that you are a democracy.

Unfortunately, the years since those “heady” days have shown how arti

hopes were. There is no reason to assume that the situation in either Afgh

Iraq will be any different.

While there may be good grounds for arguing that the operations a

former Yugoslavia and in Kosovo, together with the invasions of both A

and Iraq are contrary to the Charter of the United Nations and the obl

the members, and are thus illegal, it should be noted that there has been n

in that organization to condemn any of them, not that there could hav

decision by the Security Council to this effect in view of the vetoes that w

been exercised by the United States and the United Kingdom.97 It must

be noted that the governments responsible for the invasions have sough

their interventions on the basis of the need to protect and assert human 

this endeavor, they argue, they have done nothing contrary to the princ

ing to humanitarian intervention discussed earlier in this paper, particu

the international community as such has failed to take action collective

case, this contention is strengthened by the generally accepted view that 

human rights is now part of the international jus cogens that must be resp

protected by all.

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In these instances, however, since the enforcing powers maintained 

were present only for the good of the country affected and the welfare of 

they, or at least the United States, tended to argue that their opponent

entitled to the protection of the law. For the main part, however, milita

nel captured in Iraq have, while in detention, been treated in accordanc

regulations concerning prisoners of war, subject to the exceptions respec

members of both the United States and United Kingdom forces respo

holding and interrogating Iraqi military and civilian detainees.98 Given th

stances in which the invasions took place, the existence of interim gover

both Afghanistan and Iraq and the tendency to describe all opponents as 

it is perhaps not surprising that the occupying authorities have not bee

cerned about the application of the Hague or Geneva Conventions. It 

pear, therefore, that by and large there has been no “new” law of occupati

application of behavior conditioned by the circumstances of the case.

For the future, perhaps, and to avoid the controversies that these o

have given rise to, the writer may be permitted to refer to a proposal he fir

ward in 1994:

When a government is unwilling or unable to protect, or persistently infri

human rights of large segments of its population, or the government structu

disintegrated that law and order have virtually ceased to exist, it may then wel

for the United Nations to take over the administration until such time as 

conditions have been restored.... However, it would perhaps be more desir

this be done not on an ad hoc basis – nor by a group of States assuming such a

unto itself – but on the basis of a permanent United Nations body made up o

personnel from a variety of countries and regions. . . . The members 

administrative or governing commission should not be drawn from nationa

great powers among whom, despite the end of the cold war, political rival

manoeuvering is still likely to take place.99

At the same time, it would be necessary to establish rules, probably by wa

vention somewhat similar to Geneva Convention IV, indicating the m

which persons in the country taken over are to be treated.

Such a proposal would be met by opposition from the great powers 

suggested they be left out of the administration to be established, while t

well be called upon to assist in its financing and in the training of perso

whose activities they would have no control. In addition, opposition wo

certainly be forthcoming from some of the smaller newly independent 

oping countries which are jealous of their sovereignty and are aware th

more likely to be the “victims” of such a procedure than any other State. 

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if such a policy were adopted, there might be less doubt as to the legal ba

intervention and consequent occupation, and a more substantial foun

contending that it is in accordance with the rule of law.

Notes

1. EMMERICH DE VATTEL,3THE LAW OF NATIONS 7 (Charles G. Fenwick ed., Carne

of Washington 1916) (1758).

2. U.N. Charter art. 2, para 7.

3. See, e.g., Island of Palmas (U.S. v. Neth.), 1928, 2 R.I.A.A. 829, 839; see also Wes

(Advisory Opinion) 1975 I.C.J. Reports 12, 39 (Oct. 16) and M.F. LINDLEY, THE A

AND GOVERNMENT OF BACKWARD TERRITORY IN INTERNATIONAL LAW (1926).

4. 1878 Treaty of Berlin (Great Britain, Austria-Hungary, France, Germany, Italy

Turkey), art. VI, July 13, 1878, 153 Consol. T. S. 172; reprinted in MAJOR PEACE T

MODERN HISTORY, 1648–1967, at 975 (Fred L. Israel ed., 1967).

5. See infra pp. 190–94.

6. HUGO GROTIUS, II DE JURE BELLI AC PACIS 504–5, 508, 582, 584 (Francis W. K

Clarendon Press 1964) (1625).

7. See, e.g., IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STA

(1963); see also Imre Szabo, Fundamental Questions Concerning the Theory and Histor

Rights, in SOCIALIST CONCEPT OF HUMAN RIGHTS 267 (Jozsef Halasz ed., 1966).

8. VATTEL, supra note 1, at 116, 130–2.

9. See, e.g., President Delivers State of the Union Address, Jan 29, 2002, availab

www.whitehouse.gov/news/releases/2002/01/20020129-11.html.

10. SAMUEL VON PUFENDORF, DE JURE NATURAE ET GENTIUM (C.H. & William A

trans., Claredon Press 1934) (1688).

11. SAMUEL VON PUFENDORF, ELEMENTORUM JURISPRUDENTIAE UNIVERSALIS 292

A. Oldfather trans., Clarendon Press 1931) (1672).

12. VON PUFENDORF, supra note 10, at 1307.

13. SAMUEL VON PUFENDORF, DE OFFICIO HOMINIS ET CIVIS 140 (Frank G. M

Oxford University Press 1927) (1682).

14. SIR ROBERT PHILLIMORE, 1 INTERNATIONAL LAW 622–3 (1879) [italics in origi

15. WILLIAM E. HALL, TREATISE ON INTERNATIONAL LAW 302–4 (A. Pearce Higgin

1924) (1895) [emphasis added].

16. This was largely the ground on which India invaded East Pakistan during the 

struggle for independence in 1971.

17. JOHN WESTLAKE, I INTERNATIONAL LAW 305–07 (1904).

18. John Ibbitson, Standing on Guard for Darfur, GLOBE AND MAIL (Toronto), Sep

A4.

19. See CYRUS ADLER & AARON M. MARGALITH, WITH FIRMNESS IN THE RIGHT

DIPLOMATIC ACTION AFFECTING JEWS 1840–1945, at 261 et seq. (1946).

20. JOHN BASSETT MOORE, 5 DIGEST OF INTERNATIONAL LAW 833 (1906).

21. JOHN BASSETT MOORE, 6 DIGEST OF INTERNATIONAL LAW 32 (1906) [emphas

22. ELLERY C. STOWELL, INTERNATIONAL LAW 349, 352 (1931) [emphasis added].

23. ARNOLD J. TOYNBEE, SURVEY OF INTERNATIONAL AFFAIRS 1931, at 371 (1934)

24. H. A. Smith, Where the League of Nations Failed, THE LISTENER, Jan. 26, 1938, 

196

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Stations, Feb. 23, 1903, T.S. 418, 6 Bevans 1113 [hereinafter Agreement for the Lea

26. In re Guzmán and Latamble, ANNUAL DIGEST AND REPORTS OF PUBLIC INTE

LAW CASES, 1933–34, Case No. 43 (Cuba 1933).

27. Convention Relative to the Treatment of Prisoners of War, art. 5, Aug. 12, 1949, 

135, reprinted in DOCUMENTS ON THE LAWS OF WAR 244 (Adam Roberts & Richard 

3d ed. 2000) [hereinafter Geneva Convention III], provides that:

Should any doubt arise as to whether persons, having committed a belligerent 

having fallen into the hands of the enemy, belong to any of the categories enume

Article 4 [defining those who are prisoners of war], such persons shall en

protection of the present Convention until such time as their status ha

determined by a competent tribunal.

28. See, e.g., Neil A. Lewis, U.S. Erecting a Solid Prison at Guantanamo for Long Term

TIMES, Oct. 23, 2004, at A20.

29. Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003), reprinted in 43 INTERNATIO

MATERIALS 381 (2004).

30. Id. at 1283 n.7.

31. Done Dec. 16, 1966, 999 U.N.T.S. 171.

32. Gherebi, supra note 29, at 1286.

33. Id. at 1287.

34. Id. The 1903 Agreement for the Lease of Guantanamo Bay was extended 

agreement between the United States and Cuba. It states that the lease “shall contin

“until the two contracting parties agree to the modification or abrogation of” the lea

that the United States does not abandon the naval station. Treaty Defining Relation

U.S.-Cuba, art. III, May 29, 1934, 48 Stat. 1682, 1683.

35. Gherebi, 352 F.3d at 1289–1290. In its decision, the court cited States v. Ric

Wheat) 246, at 254 (‘hostile occupation gives ‘firm possession’ and the “fulle

sovereignty” to the occupying power, while suspending the sovereign authority 

whose territory is being occupied.”)

36. See, e.g., award by Judge Huber in Island of Palmas Case (Neth. v. U.S.), H

Reports 2d (Scott) 83 (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829, 83

37. HMSO Command Paper 1093 (1960).

38. Treaty of Versailles, June 28, 1919, 225 Consol. T. S. 188, reprinted in II M

TREATIES OF MODERN HISTORY, supra note 4, at 1265.

39. Id., art. 429.

40. Declaration regarding the Defeat of Germany and the Assumption of Supreme A

the Occupying Powers, June 5, 1945, HMSO Command Paper 6658 (1953); see also 

FRIEDMANN, THE ALLIED MILITARY GOVERNMENT OF GERMANY (1947).

41. See Instrument of Surrender, 1945; Moscow Declaration, December 1945; and 

document on United States Post-Surrender Policy for Japan, all reprinted i

Department, Occupation of Japan: Policy and Progress 62, 69–73, 73–81 (1946); see a

Green, Law and Administration in Present-day Japan,1CURRENT LEGAL PROBLEMS 1

42. See LUDOVICO N. BENTIVOGLIO, LA ‘DEBELLATIO’ NEL DIRITTO INTERNAZIONA

43. San Francisco Peace Treaty, Sep. 8, 1951, reprinted in IV MAJOR PEACE T

MODERN HISTORY, supra note 4, at 2641; see also Leslie C. Green, Making Peace w

YEARBOOK OF WORLD AFFAIRS 1 (1952).

44. See Occupation of Japan, supra note 41, at 117; AMOS J. PEASLEE,2CONSTI

NATIONS 518 (1966).

197

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Patent, (1950) 68 R.P.C. 1.

46. Moscow Conference, Joint Four-Nation Declaration, Oct. 1943, 161 British 

State Papers 288 (1954), available at http://www.ibiblio.org/pha/policy/1943/43100

47. Agreement on the Machinery of Control in Austria, Vienna, June 28, 1946, 138 U

48. Requisition of Private Property (Austria) Case, ANNUAL DIGEST AND REPORT

INTERNATIONAL LAW CASES, 1949, Case No. 188 (Austria).

49. Treaty for the Re-establishment of an Independent and Democratic Austria, M

217 U.N.T.S. 223,reprinted in IV MAJOR PEACE TREATIES OF MODERN HISTORY, sup

2709.

50. See W. S. Armour, Custom of Warfare in Ancient India,8TRANSACTIONS OF TH

SOCIETY 71, 81 (1922).

51. Instructions for the Government of Armies of the United States in the Field, Ge

No. 100, Apr. 24, 1863,reprinted in THE LAWS OF ARMED CONFLICTS 3 (Dietrich Sch

Toman eds., 4th ed. 2004); see also Richard R. Baxter, The First Modern Codification 

War, 3 INTERNATIONAL REVIEW OF THE RED CROSS, No. 25, at 171 (1963).

52. After the fall of Baghdad and its occupation by United States forces, there 

criticism at the “failure” of those forces adequately to protect Iraqi works of art, mus

and the like.

53. Reprinted in THE LAWS OF ARMED CONFLICTS, supra note 51, at 21.

54. Id. at 29.

55. Convention (II) With Respect to the Laws and Customs of War on Land, July 

Stat. 1803, 1 Bevans 247, reprinted in id. at 63.

56. Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1

2277, 1 Bevans 631, reprinted in id. at 55.

57. Convention (IV) Relative to the Protection of Civilian Persons in Time of W

1949, 75 U.N.T.S. 287, reprinted in id. at 575.

58. G.A. Res. 217A (III), Dec. 10, 1948, available at http://www.un.org/Overview/r

59. G.A. Res. 2200 A (XXI), Dec. 16, 1966, 999 U.N.T.S. 171, available 

www.clea.org.uk/treaties/Iccpr.html.

60. See Common Article 2 of each of the four Geneva Conventions of 1949, 

DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 197, 222, 244 and 301, respe

61. Christopher Greenwood, The Administration of Occupied Territory in Internati

INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORY 2

Playfair ed., 1992).

62. The Nuremberg Judgment 1946, HMSO, Command 6964 (1946), at 65 states th

The rules of land warfare expressed in the Convention undoubtedly represe

advance over existing international law as it existed at the time of their adopti

the Convention expressly stated that it was an attempt ‘to revise the general la

customs of war’, which it thus recognised to be then existing, but by 1939 the

laid down in the Convention were recognised by all civilised nations, and were re

as being declaratory of the laws and customs of war. . . .

63. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 257 (July 8)

64. In re List (1948) 11 Trials of War Criminal 1230, 1244–5.

65. Supra note 57, art. 154.

66. Greenwood, supra note 61, at 250.

67. Supra note 57, art. 6.

198

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gy 

(2004).

69. Department of the Army, The Law of Land Warfare, FM 27-10, July 1956, ¶ 36

70. Greenwood, supra note 61, at 263; see also the opinion of Judge Barak in A 

Society Lawfully Registered in the Judea and Samaria Region v. Commander of the ID

the Judea and Samaria Region, 37 (4) Piskei Din (Reports of Supreme Court, I

reprinted in 14 ISRAEL YEARBOOK OF HUMAN RIGHTS 301, 307, 313 (1984):

The concrete content that we shall give to Art. 43 of the Hague Regulations in re

the occupant’s duty to ensure life and order will not be that of public life and o

the nineteenth century, but that of a modern civilized State at the end of the tw

century. . . . The transportation needs of the local population continue to increas

is impossible to freeze the condition of the roads in the Region. Therefore the M

Administration was authorized to elaborate a roads project to respond to the 

and future needs of the population. Indeed, the roads will remain after the term

of the military administration, but this fact does not matter. There is nothin

roads project that might blur the distinction between a military administration 

ordinary government. . . .

71. See, e.g., J. Singer, The Establishment of a Civil Administration in the Areas Adm

Israel, 12 ISRAEL YEARBOOK ON HUMAN RIGHTS 259 (1982); see also Mustafa Yusef 

of the Judea and Samaria Central Prison, 17 ISRAEL YEARBOOK ON HUMAN RIGHTS 3

72. The Military Prosecutor v. Zuhadi Saleh Hussein Zohar, 1968, reprinted 

YEARBOOK ON HUMAN RIGHTS 421 (1971).

73. Supra note 57, art. 66.

74. A Cooperative Society Lawfully Registered in the Judea and Samaria Region v. Co

the IDF Forces in the Judea and Samaria Region, 1982, cited in Mazen Qupty, The A

International Law in the Occupied Territories as Reflected in the Judgments of the H

Justice in Israel, in INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED 

supra note 61, at 90.

75. Supra note 28. See also The Military Prosecutor v. Omar Mahmud Kassem 

reprinted in 1 ISRAEL YEARBOOK ON HUMAN RIGHTS 456 (1971).

76. Reprinted in 17 ISRAEL YEARBOOK ON HUMAN RIGHTS 315 (1987).

77. See, e.g., ROSALYN HIGGINS,IUNITED NATIONS PEACEKEEPING 1946–196

(1969); MICHAEL J. KELLY, PEACE OPERATIONS: TACKLING THE MILITARY, LEGAL A

CHALLENGES (1997).

78. See, e.g., ROMEO DALLAIRE, SHAKE HANDS WITH THE DEVIL (2003).

79. HIGGINS, supra note 77, at 295 et seq.

80. Civilian War Claimants Association v. The King [1932] A.C. 14. (House of Lor

81. Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U

reprinted in THE LAWS OF ARMED CONFLICTS, supra note 51, at 775 [hereinafter Pr

82. Convention on the Prevention and Punishment of the Crime of Genocide, Dec

U.N.T.S. 277, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 18

83. For a discussion of the NATO intervention, see, e.g., LEGAL AND ETHICAL 

NATO’S KOSOVO CAMPAIGN (Andru Wall ed., 2002) (Vol. 78, US Naval W

International Law Studies).

84. The North Atlantic Treaty, Washington, Apr. 4, 1949, 34 U.N.T.S. 243.

85. See A. LeBor, NATO and UN ‘Fund Prostitution in Kosovo,’ TIMES (London), Ma

A19.

199

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v. Public Prosecutor [1969] 1 A.C. 430 (P.C. 1968).

87. See W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms,4CHICAGO 

INTERNATIONAL LAW 493 (2003).

88. Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (Protocol I), art. 47, June 8

U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 27, at 4

International Convention Against the Recruitment, Use, Financing and T

Mercenaries, G.A. Res. 44/34, U.N. GAOR, 72nd plen. mtg., art. 1, U.N. Doc. A/RES

4, 1989), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 89.

89. See Hamida Ghafour, Afghans Learning the Price of Security, GLOBE AND MAIL 

Oct. 8, 2004, at A14.

90. See supra text accompanying notes 25–35.

91. Gherebi v. Bush 352 F.3d 1278 (9th Cir. 2003); reprinted in 43 INTERNATIO

MATERIALS 381 (2004).

92. See, e.g., D. McGory, Ghost Prisoners Haunt Terrorism Hunt, TIMES (London

2004, at 19 (“President Bush says he does not know how many ‘ghost prisoners’ th

that interrogating them in secret has proved crucial in the war on terrorism”).

93. S.C. Res. 687, Apr. 8, 1991, reprinted in 30 INTERNATIONAL LEGAL MATERIALS 

94. Similarly, in the case of Iraq, on August 24, 2005, the English Court of Chan

Sadiqua Ahmed Amin v. Brown that it “was satisfied that the Government’s positi

there was not, and had not been a state of war between the United Kingdom and the 

Iraq.”

95. See Convention Relative to the Treatment of Prisoners of War, Geneva, Aug. 1

118, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra not

which provides that “Prisoners of war shall be released and repatriated without de

cessation of active hostilities.” See also Article 119 which provides, in part, that “Pris

against whom criminal proceedings for an indictable offence are pending may be de

the end of such proceedings. . . .”

96. See Iraq Survey Group Final Report, Sept. 30, 2004, available at http://www.gl

.org/wmd/library/report/2004/isg-final-report/.

97. U.N. CHARTER, art. 27, para. 3.

98. See Report of the International Committee of the Red Cross on the Treatm

Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Con

Iraq During Arrest, Internment and Interrogation, Feb. 2004, available at http://cry

icrc-report.htm#EXECUTIVE%20SUMMARY; Article 15-6 Investigation of the 80

Police Brigade, Mar. 9, 2004, available at http://www.npr.org/iraq/2004/p

_report.pdf. The latter is the report by Major General Antonio M. Taguba on the alle

prisoners at the Abu Ghraib prison in Baghdad. See also KAREN J. GREENBERG & 

DRATEL, THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 405 (2005).

99. Leslie C. Green, Proceedings, 23rd Annual Conference of the Canadian 

International Law, 6, 26 (1994) and Proceedings, 26th Annual Conference of th

Council on International Law 31, 37 (1997). See also supra text accompanying note

respectively, for comments of Hall and Westlake.

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VIII

Current Issues in Occupation Law:

2003 Civilian Deaths in Baghdad

Fred Abrahams*

This article documents and analyzes civilian deaths caused by US 

Baghdad from the end of major combat operations in May 2003 u

ber of that year. It is based on field research conducted in Iraq in Septe

October 2003 for Human Rights Watch. During that time, the author in

the witnesses to civilian deaths, family members of the deceased, victims 

non-lethal casualties, Iraqi police, lawyers and human rights activists, U

US Army judge advocates stationed in Iraq, and members of the United 

Coalition Provisional Authority (CPA), responsible at the time for gover

The research revealed many cases of upstanding and legally respectfu

the US military in Iraq’s capital. Many soldiers and commanders wer

their obligations as an occupying power under international humanitari

took appropriate measures to fulfill those obligations. At the same time, 

disturbing cases during the period under review in which soldiers used f

excessive or indiscriminate manner, sometimes resulting in the death of 

ians. Many of these cases went uninvestigated, contributing to an atm

impunity.

Clearly Iraq was and remains a hostile environment for US troops, wit

tacks by Iraqis or others opposed to the United States and coalition force

* Senior Researcher for Human Rights Watch.

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an environment does not absolve the military from its obligations unde

tional law to use force in a restrained, proportionate and discriminate ma

only when strictly required. Soldiers and commanders found to have use

ated the use of excessive or indiscriminate force must face appropriate ad

tive or criminal action.

Conditions in Iraq have changed a lot since the second half of 2003, p

with the growth of the insurgency and the transfer of power to the Ira

ment and security forces. But the concerns about civilian casualties rema

Iraq and as a lesson for military occupations.

Numbers

United States military and coalition forces in Iraq keep meticulous reco

diers killed in duty, providing daily accounts to the press,1 but they do no

tistics on civilian deaths. In response to a Human Rights Watch r

information about civilian casualties, the coalition’s press office sent th

It is tragic that civilians have died as a result of our operations and we are ful

that every time a civilian is caught in the line of coalition fire, we potentially l

among the Iraqi population. In terms of statistics, we have no definitive esti

civilian casualties for the overall campaign. It would be irresponsible to g

estimates given the wide range of variables. For example, we have had case

during a conflict, we believed civilians had been wounded and perhaps killed

the time our forces have a chance to fully assess the outcomes of the con

wounded or dead civilians have been removed from the scene. Factors suc

make it impossible for us to maintain an accurate account.2

While the coalition claims an accurate account of civilian deaths is im

obtain, Human Rights Watch collected data from a variety of sources for 

of post-war civilian casualties in Baghdad. Given its vast resources, the U

should be able to do the same, and not doing so suggests that civilian dea

of paramount concern.

Based on the data collected, US soldiers in Baghdad killed ninety-fou

between May 1 and September 30, 2003, in legally questionable circumst

merit an investigation. Human Rights Watch researchers did not veri

these individual allegations but, taken as a whole, they reveal a pattern 

unlawful deaths that should prompt concern and investigations.

More concretely, based on interviews with witnesses and family mem

man Rights Watch confirmed the deaths of twenty Iraqi civilians in Bagh

gally questionable circumstances between May 1 and September 30, 2003

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of these deaths are documented in the Human Rights Watch report, H

Minds: Post-war Civilian Deaths in Baghdad Caused by U.S. Forces (H

Minds),

3 published in October 2003. In addition, Human Rights Watch 

data on civilian deaths by US forces from the Iraqi police, human rights 

tions, Western media and US military statements on the topic. In tota

Rights Watch estimated the US military in Baghdad killed ninety-four c

questionable circumstances in the period May to September 2003.4

While this article does not present all the individual cases of civilian d

umented in Hearts and Minds, it is worth looking at the pattern th

namely, a disturbing trend by US forces of over-aggressive tactics, indi

shooting in residential areas and a quick reliance on lethal force. In some 

forces faced a legitimate threat, which gave them the right to respond w

But that response was sometimes disproportionate to the threat or ina

targeted, thereby harming civilians or putting them at risk.

Categories of Excessive Force

In Baghdad, civilian deaths can be categorized in three basic incident gr

were deaths that occurred during US military raids on homes in search 

members of armed groups. The US military said in the fall of 2003 that 

plementing less aggressive tactics, and was increasingly taking Iraqi polic

But Baghdad residents in late 2003 still complained of aggressive and re

havior, physical abuse, and theft by US troops. When US soldiers en

armed resistance from families who thought they were acting in se

against thieves, they sometimes resorted to overwhelming force, kill

members, neighbors or passers-by.

Second were civilian deaths caused by US soldiers who responded d

tionately and indiscriminately after they had come under attack at checkp

the road. Human Rights Watch documented cases where, after an improv

sive device detonated near a US convoy, soldiers fired high caliber weapo

tiple directions, injuring and killing civilians who were nearby. While th

those cases was often real, the indiscriminate response put civilians at r

Third were killings at checkpoints when Iraqi civilians failed to stop. A

the research was conducted in the fall of 2003, US checkpoints constan

throughout Baghdad. They were sometimes not well marked, although s

ity was improving. A dearth of Arabic interpreters and poor understandi

hand gestures added to the confusion, with results that were sometim

civilians. Soldiers sometimes shouted conflicting instructions in English 

guns raised: “Stay in the car!” or “Get out of the car!”

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In all of these scenarios, US soldiers were sometimes arrogant and abu

were seen putting their feet on detained Iraqis’ heads—a highly insultin

Male soldiers sometimes touched or even searched female Iraqis, also a 

unacceptable act, although female soldiers or searchers were in

deployed.

Of course, not all soldiers behaved in this way. Human Rights Watch 

US military personnel who dealt respectfully with Iraqis and were worki

train police, guard facilities and pursue criminals in difficult condition

these soldiers expressed frustration at the lack of sensitivity shown by 

leagues. “It takes a while to get the Rambo stuff out,” one officer said.

A Case Study: The Checkpoint in al-Slaikh

On the evening of August 7, 2003, soldiers from the Alpha Company, 2

ion, 3rd Field Artillery Regiment of the 1st Armored Division conducte

ons search in the Tunis district of Baghdad’s al-Slaikh neighborhood. Ac

residents, troops blocked the main street at two points with armored v

soldiers went through homes and shops. One checkpoint was establish

corner of Bilal Habashi Street and Street 5.

Around 9:15 p.m., a transformer blew on one of the electrical poles n

electricity in the immediate area was out, although it is not clear wheth

because of the blown transformer or whether the lights had been out bef

plosion. Two cars drove down Bilal Habashi Street, apparently unaware of 

point. The first car with three young men approached the checkpoint at a h

music blaring. Soldiers yelled at the driver to stop and fired warning shots

said, but when the car passed the checkpoint, the soldiers opened fire. Two 

vived but the driver, Saif Ra`ad `Ali Sa`id al-`Azawi, was killed. Behind 

with six members of the al-Kawwaz family was fired upon without warn

it reached the checkpoint. The father and three children were killed.5

Car One: The Killing of Saif Ra`ad `Ali Sa`id al-`Azawi, 20

As US soldiers were searching homes and shops in the neighborhood

9:00 p.m.—Saif Ra`ad `Ali Sa`id al-`Azawi, age 20, asked his father for p

to borrow his blue Opel station wagon. A student at the industrial high s

was excited by successful exam grades he had just received.6 His father 

Saif picked up two friends, `Abbas Shihab Ahmad al-Amary and `Ali H

Juburi, and drove off to visit a third friend named Ahmad.

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According to 

Abbas alAmary, the three young men were driving hom

9:30 with the music playing loud. “The district had electricity but before 

at the top of the side street which takes us home there was a dark area,” 

A resident of the neighborhood who lives and works near the corn

Habashi Street and Street 5 had a better view from the front of his tire re

Ahmad Abd al-Samad Fatuhi said that Saif’s car was moving fast and the 

loud. The soldiers warned him to stop, he said, but he did not slow dow

Human Rights Watch:

At that time, the electricity in the district was cut off and the interior light of S

was turned on, which prevented him from seeing outside clearly. He was accom

by two other passengers, it seems that they were his friends. The Americans ga

warning to stop the car by one of the African-American soldiers who yelle

Stop!” but Saif did not stop the car because I think he was afraid of hijack

mentioned earlier, the area was dark and without electricity. After that, on

American soldiers started to shoot warning shots at the ground, but Saif did 

the car and he penetrated the American checkpoint. The result of this action 

immediate shooting at Saif’s car, which led to Saif’s death and to the injury o

friends.8

This account was confirmed by another resident, Muhammad Sa`

Bayati, interviewed separately. He said:

I saw Saif’s car driving very fast. He was accompanied by two other people in 

The person in the backseat had his head out the sun roof, the inside lights wer

the stereo was playing loudly. I shouted at him loudly: “Saif stop! There is a che

there! There is an American checkpoint ahead!” but he did not hear me becaus

driving very fast. I shouted at him, “the Americans will shoot you—the

American checkpoint!” but he did not stop.9

The passenger, `Abbas al-Amary, said that none of the men in the ca

any signs to indicate a checkpoint or any soldiers asking them to stop. B

understood they were at a checkpoint, he said, they had come under fir

troops:

Suddenly Saif’s car was fired on and another car which was behind us [see al-

family below]....I could not see where the shooting was coming from. I was s

the back seat of the car because when the shooting started I lowered my he

shooting was full-automatic and the source of the gunfire was more than two 

guns. It continued for several minutes. After it stopped, I raised my head, I s

face because he was on the side, and his face was opposite me. As I said, I w

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g [] 

reply. We realized he had passed away.10

On the side of the street, Muhammad Sa`d `Adil al-Bayati was also hit 

in the right leg, suggesting that the shooting was not targeted exclusivel

car. He was hiding behind a parked car, he said, but was shot when he trie

home.11

According to both the passenger al-Amary and the witness Fatuhi, U

approached Saif’s car and pulled the two surviving men out. The car wa

and Saif’s body was inside, but no one tried to put the fire out or to tak

from the wreck. Al-Amary explained what happened next:

They came to the car and opened the front and the back doors of the right side, 

guns to our heads. They took us out of the car and told us through an interprete

up. `Ali and I begged the interpreter to take Saif from the car but the interpr

“Shut up, it’s nothing to do with you.” After they removed us from the car, they 

lay down on our stomachs on the ground. After five minutes, they took us to 

place ten to fifteen meters away from the car where the American vehicles were 

While they took me there I saw the front of Saif’s car burning—the engine was 

Again I asked the interpreter to take Saif from the car, but the interpreter did n

They left Saif in the car while we were lying on the ground.12

`Abbas al-Amary and his friend `Ali al-Juburi were eventually put in 

wounded man and young girl from the other car joined them, and all 

taken to a US military base. The man and girl, both from the al-Kaww

were taken to another room, and `Abbas and `Ali soon learned that they h

While all this was happening, Saif’s father had no idea his son had b

Around 9:30 p.m., when he returned home from evening prayers, he we

for Saif. Neighbors told him that US troops had killed several people i

that one of the cars was burning. He told Human Rights Watch:

I was horrified and rushed to see. I found the car there with no American tro

car was completely burnt—nothing could identify it except a small iron bo

contains the car’s spare parts. I knew the car was ours and Saif’s corpse was c

They killed an honest, peaceful young man who wanted to live in peace.13

`Ali al-Jaburi and `Abbas al-Amary were held and interrogated for tw

the base, `Abbas said. They received medical treatment for their light w

total, they were held for more than one month, first at a center near 

Stadium, then at the airport, and finally at a juvenile facility in al-Salihi

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being released by a judge at the al

Adhamiyya court. According to 

Amary, the judge said they were free to go because no charges had been 

Car Two: The Killing of `Adil `Abd al-Karim al-Kawwaz, 42, Haidar `A

al-Karim al-Kawwaz, 19, `Ula `Adil `Abd al-Karim al-Kawwaz, 17, and 

`Adil `Abd al-Karim al-Kawwaz, 8

Around 9:20 p.m. on the same evening, August 7, `Adil `Abd al-

Kawwaz began the short drive home from his in-laws’ house. His preg

Anwar Kadhim Jawad, was in the front seat and their four children sat in 

By 9:30, `Adil and three of his children were dead.

Anwar Jawad told Human Rights Watch what happened:

The Americans were stopping cars. There were no signs. We came close to th

the Americans began to shoot. Their cars had no lights on. There were two tan

car had its lights on. We were 100 meters away. I heard nothing first—

astonished by the shots. My husband was shouting but they were shooting. . . . 

bullets flying. It was the first time I had seen someone get shot and I saw my 

get hit on the left.14

According to Ahmad Fatuhi, the neighborhood resident who witn

shooting, US soldiers opened fire on the car without warning. “The 

lights were dimmed,” he said. “The Americans opened fire on that car w

warning or signal to stop the car, and they killed four members of one f

Haidar `Adil al-Kawwaz, age 19, and `Ula `Adil al-Kawwaz, age 17, w

instantly. Their father `Adil `Abd al-Karim al-Kawwaz, age 42, and his 

Mirvat `Adil al-Kawwaz, age 8, were badly wounded but still alive. US so

them from the car and brought them to a military base in a truck, togeth

two survivors from the first car, `Abbas al-Amary and `Ali al-Juburi. Both 

Mirvat died, either there or perhaps at a hospital where they were taken th

A Human Rights Watch researcher inspected the al-Kawwaz family c

tember 26, 2003, a 1984 white Volkswagen Passat. The car had twenty-e

holes on the front and left side, including four in the front windshield.

Anwar Jawad, who gave birth to a baby boy named Hassan one week a

cident, was summoned to visit the US military on September 24. Two off

she thought were named Colonel William Rabena and Colonel Peter Ma

fered her $11,000.16 A document she signed said she received the money 

pression of sympathy.”17 The family is requesting formal compensation 

US military authorities conducted an investigation to determine wh

diers from the Alpha Company, 2nd Battalion, 3rd Field Artillery Regim

1st Armored Division had acted inappropriately by shooting at the 

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According to the military coalition

s public affairs office, as well as US A

advocates assigned to Combined Joint Task Force 7, then the organisatio

the US military’s efforts in Iraq, the shootings were considered a “regret

dent,” but it was determined that the soldiers had “acted in accordanc

rules of engagement.”18 It is unclear how this was determined in the cas

Kawwaz car, which was fired upon without warning.

Training and Transition from Combat

In late 2003, a fundamental problem in Baghdad was that combat tr

asked to perform law enforcement and policing tasks for which they wer

quately trained or attitudinally prepared. Of the cases documented in H

Minds, for instance, eight Baghdad incidents resulting in sixteen civilian 

volved either the 82nd Airborne Division or the 1st Armored Division. M

soldiers from these divisions had fought their way into Iraq, and were the

switch quickly from warriors to police who controlled crowds, pursued t

rooted out insurgents. According to soldiers and commanders, there w

quate training and equipment for these Stability and Support Operatio

and an inadequate supply of Arabic interpreters.

The problem was explained in detail by an unnamed US infantry com

an After Action Report filed April 24, 2003, since declassified. “After le

hours after the first battlefield engagement,” the commander said:

Members of this company team were tasked to conduct checkpoint op

southwest of al-Najaf. With no training, soldiers were expected to search 

interact with civilians with no CA [Civil Affairs] or PSYOPS [Psych

Operations] support, detain EPW’s [Enemy Prisoners of War], and co

weapons. Less than 48 hours after this, the unit was again heavily engaged in 

operations. The radical and swift change from combat operations to SASO and 

combat operations over and over again causes many points of friction for the 

and their leaders.19

With the exception of a class given to the platoon leaders, there were 

classes or training conducted by Civil Affairs personnel prior to the oper

diers received no training on checkpoint operations or interacting with 

The commander also noted that the unit’s limited supply of constru

barrier materials for checkpoints was exhausted by the time they ha

Baghdad. Soldiers had to use “destroyed cars, flower pots, bicycle racks, 

ever else was available for force protection.”20 Interpreters, he wrote:

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[

]py y pg p

interpreters are critical to the team’s ability to interact with civilians, disce

problems, and broadcast friendly unit intentions. Often times the unit had cro

upset civilians to deal with and absolutely no way to verbally communic

them.21

The report emphasized the “fundamental shift in attitude” deman

troops as they shifted from combat to law enforcement tasks:

The soldiers have been asked to go from killing the enemy to protect

interacting, and back to killing again. The constant shift in mental postur

complicates things for the average soldier. The soldiers are blurred and confus

the rules of engagement, which continues to raise questions, and issues abo

protection while at checkpoints and conducting patrols. How does the soldi

exactly what the rule of engagement is? Soldiers who have just conducted 

against dark skinned personnel wearing civilian clothes have difficulty trust

skinned personnel wearing civilian clothes.

Other officers reflected the above concerns. In an interview publishe

Army-related website, a second lieutenant from the 82nd Airborne Di

scribed the complications of Iraq’s post-war scene:

Pulling the trigger against groups of fedayeen was easy compared to this p

environment where we are still taking casualties daily. Understanding why on

waves and blows kisses at you while the next one down the road sets up ambu

IEDs is not as easy as friendly/enemy, don’t kill/kill. We are ambassadors w

thumbs on the selector lever and always scanning for a set-up. It’s so hard to h

interact with a people when you trust no one. Getting your soldiers to unders

need to be hot/cold, on/off, at war/at peace with only milliseconds between th

very challenging.22

An article from the August 10, 2003, newsletter of the 1st Armored 

based in Iraq described how platoon leaders were adapting urban oper

cause the tasks in Iraq—patrols, raids and checkpoints—were differen

combat exercises for which they had trained. “[I]n Iraq, civilians are not 

occasional presence, as urban terrain training often depicts civilians,” t

wrote, “instead, interactions with civilians often comprise the entire mi

“Our mentality as soldiers is combat,” said Lieutenant Lucas Hale, wh

ing to modify urban combat techniques (Military Operations in Urban T

MOUT) in the field. “We don’t deal with civilians well as a whole. But in 

have to understand that 99 percent of the people [we encounter] are sim

who just want to get on with their lives.”24

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US judge advocates and CPA legal officials who spoke with Hum

Watch in the fall of 2003 were sympathetic to these concerns, and they a

not all combat troops had received adequate training for post-war tasks. 

structors were brought in to assist the 1st Armored Division, they said. “

come to terms with this kind of environment,” Australian Colonel Mike 

“Policing requires a different skill set.”25

According to the judge advocates, the US Marines performed bet

peacekeeping role because they were “quicker to adapt.” And Military P

better trained for crowd control, checkpoints and other peacekeepin

general, they said, the biggest problems were in Baghdad due to the inte

environment and the high level of armed resistance. Clearly this was 

later fighting in Falluja and Najaf and the insurgency’s development in c

western Iraq.

Accountability

Coalition forces in Iraq are not subject to Iraqi law. According to Coalit

sional Authority Regulation Number 17, coalition personnel are “imm

local criminal, civil and administrative jurisdiction and from any form o

detention other than by persons acting on behalf of their parent states.”

Given the absence of Iraqi legal structures to hold coalition forces ac

it is incumbent on the occupying powers of the participating countries 

gate all allegations of abuse, and to punish those found to have violated 

military codes, international humanitarian law, or human rights stand

the laws of war and non-derogable human rights standards require the 

tion of suspicious or apparently unlawful killings, even during times 

conflict.

In 2003, the United States military did not fulfill that obligation. T

timely and thorough investigations into questionable incidents created 

sphere of impunity, in which soldiers felt they could pull the trigger with

ing under review.

Specifically, as of October 1, when Human Rights Watch completed it

there were no known criminal investigations into cases of alleged use o

or disproportionate force by US soldiers in Iraq. The US military said it 

pleted five administrative investigations above the division level, all of th

the authority of the Deputy Commanding General in Iraq, but the findin

investigations raised serious concerns. In four of the five investigation

were found to have operated within the rules of engagement. In the fifth 

licopter pilot and his commander faced disciplinary action for trying to 

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a Shi

a banner in Sadr City in Baghdad, an incident that provoked a vio

with demonstrators on August 13.

Human Rights Watch conducted its own investigation into two of the 

and found evidence to suggest that soldiers had used excessive force, 

shooting a person who had his hands in the air and beating a detainee. 

also many questionable civilian deaths for which no investigation had ta

The most notable example is the killing of up to twenty people by the 

borne Division in Falluja on April 28 and 30, documented in a June 200

Rights Watch report, Violent Response: the U.S. Army in al-Falluja.

27

Iraqis rarely knew the unit of soldiers responsible for inflicting 

Through its own research or media reports, however, Human Rights Wa

fied at least the military division, if not the specific unit, in eight incidents 

sixteen civilian deaths. Of these, the 82nd Airborne Division was involv

incidents in which seven civilians were killed and the 1st Armored Divisi

volved in four incidents in which nine civilians were killed. Four civi

killed in an operation by Task Force 20, a combined CIA-Army special fo

established to capture Iraq’s former rulers, but it is not clear if they were 

ble for the shooting.

The following is a list of civilian casualties in Baghdad in the year 2003 

the specific US military unit is known:

82nd Airborne Division

• Mardan Muhammad Hassan and Farah Fadhil al-Janabi on Septe

Mahmudiyya killed by soldiers from the 3rd Battalion, 505th Parachut

Regiment.28

• Iraqi guards Ra`ad Fahd Shallal, Sa`id Majid Sa`dun and `Ab

`Abbas `Aday killed on July 10 in the al-Bayya` neighborhood.29

• Muhammad Subhi Hassan al-Qubaisi killed on June 26 in the Ha

neighborhood.30

• `Uday Ahmad Mustafa killed on July 10 behind the Baya’a Police S

Dora Patrol Station.31

1st Armored Division

• `Ali Muhsin, killed on August 11 by the 1st Battalion, 36th Infant

• Lt. `Ala’ `Ali Salih and Sgt. Muhammad Hilal Nahi, killed on Augu

Abu Ghraib road by soldiers from the 1st Battalion, 41st Infantry o

Brigade.33

• Izhar Mahmud Ridha killed on August 1 in the al-Mansur neighb

soldiers from the 3rd Brigade.34

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Soldiers from Alpha Company, 2nd Battalion, 3rd Field 

Regiment35 shot and killed Saif Ra`ad `Ali Sa`id al-`Azawi when he failed 

a checkpoint. In a second car, soldiers killed `Adil `Abd al-Karim `Abd 

al-Kawwaz and three of his children, Haidar, `Ula and Mirvat.36

Recommendations

Since late 2003, the US military has taken some steps to reduce civilian 

Iraq. Checkpoints became more clearly marked and combat troops rece

tional training for police tasks. Iraqi police and military were more freq

corting US soldiers on raids, or conducting those raids themselves, an

past year the Iraqi security forces have assumed the burden of policing 

countability has apparently improved after the abuse scandal at Abu Gh

But more initiatives are required. One basic step is to continue imp

language and cultural training to teach soldiers hand gestures used and u

by Iraqis and essential Arabic words and phrases, which would minim

sion at checkpoints or during raids.

The US military’s rules of engagement are not made public due to sec

cerns, but Iraqi civilians have a right to know the guidelines for safe beh

coalition should mark all checkpoints clearly, for instance, and info

through a public service campaign of how to approach checkpoints and 

have during raids.

US soldiers and other coalition forces should also be better trained 

tense non-combat situations without resorting to lethal force. Lethal fo

be used only when necessary to meet an imminent threat to life and only 

tion to the actual danger presented in conformity with international sta

To properly perform post-conflict policing, US soldiers need adequa

of non-lethal crowd control devices like tear gas and rubber bullets. Eff

hance communication with local communities should be intensified, sta

adequate provision of interpreters.

When civilian deaths do occur, they should be documented and in

Military authorities should keep records, observe and analyze trends rela

cific units and commanders, as well as tactics, in order to minimi

casualties.

Of central importance are prompt investigations of and punishment 

appropriate or illegal use of force, as required under international law. I

soldiers operated with a large degree of impunity in Iraq. Knowledge tha

be held accountable will be a helpful restraint on the excessive, indiscri

reckless use of lethal force.

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Notes

1. Between May 1 and September 30, 2003, 88 US soldiers were killed in hostile 

more than 800 wounded. During that time, there were also 94 non-hostile deaths an

hostile injuries among US troops. See, e.g., Robert H. Reid, One U.S. Soldier K

Bombing, ASSOCIATED PRESS, Oct. 1, 2003, and Alex Berenson, Roadside Bombs K

and a Translator in Iraq, NEW YORK TIMES, Oct. 7, 2003, at A18.

2. E-mail sent to Human Rights Watch from coalition press office on September 

3. HEARTS AND MINDS: POST-WAR CIVILIAN DEATHS IN BAGHDAD CAUSED BY U

Oct. 2003, available at http://www.hrw.org/reports/2003/iraq1003/.

4. Human Rights Watch used six sources to obtain data: 1) Direct interviews with 

the family of victims accounted for twenty-one deaths; 2) Records from Iraqi police 

account for fifty-four civilian deaths; 3) A local human rights group, The Hu

Organization in Iraq, reported thirty-three cases of civilian casualties in Baghdad; 

news media reported fifteen civilian deaths, but Human Rights Watch included 

deaths reported with a victim’s name; 5) Other non-governmental organizations 

civilian deaths; 6) US military press releases reported three civilians killed in two in

the US Combined Joint Task Force 7 Judge Advocate General’s office confirme

Twenty-three deaths were reported by two or more sources, leaving a total of ninet

5. Some media reported that on the same night US forces killed another man, 

Salman, on a road nearby and, in an interview with Human Rights Watch, Salm

supported this claim. Human Rights Watch interview with `Ali Salman’s mother, S

Baghdad, Oct. 5, 2003. Based on interviews in the neighborhood, however, Hu

Watch believes that `Ali Salman probably died on the highway in a traffic accident 

US troops. See also Scheherezade Faramarzi, Jittery U.S. Soldiers Firing in the Dark K

Trying to Get Home Before Curfew, ASSOCIATED PRESS, Aug. 10, 2003, availab

www.signonsandiego.com/news/world/iraq/20030810-1225-iraq-adeadlynight.htm

6. Human Rights Watch interview with Ra’ad `Ali Saied al-Azawi, Baghdad, Sept

7. Human Rights Watch interview with `Abbas Shihab Ahmad al-Amary, Baghd

2003.

8. Human Rights Watch interviews with Ahmad Abdel Samad Fatuhi, Baghdad, 

Oct. 5, 2003.

9. Human Rights Watch interview with Muhammad Sa`d `Adil al-Bayati, Bagh

2003.

10. Interview with `Abbas Shihab Ahmad al-Amary, supra note 7.

11. Interview with Muhammad Sa`d `Adil al-Bayati, supra note 9.

12. Id.

13. Interview with Ra’ad `Ali Saied al-Omran al-Azawi, supra note 6.

14. Human Rights Watch interview with Anwar Khdim Jawad, Baghdad, Sept. 26, 

15. Interviews with Ahmad Abdel Samad Fatuhi, supra note 8.

16. Colonel Peter Mansoor was commander of the 1st Armored Division’s 1st 

Lieutenant Colonel William S. Rabena was commander of the 2nd Battalion, 3rd Fiel

17. The receipt, viewed by Human Rights Watch, calls the money a “Solatia pay

CERP” and is from Captain Robert Brewer and ordered by Captain Casey D. Coyle

18. Human Rights Watch interview with Colonel Marc Warren, Colonel Mike Kelly

P. J. Perrone, Baghdad, Sept. 23, 2003.

19. Operation Iraqi Freedom After Action Review Comments, Apr. 24, 2003, availa

www.strategypage.com/dls/articles/20030912.asp.

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21. Id.

22. Interview with Second Lieutenant Andy Blickhahn 325th Airborne Infantry Reg

Airborne Division, available at www.companyteam.army.mil, as of October 2003.

23. Lisa Burgess, 1AD Units Modify MOUT Training to Suit the Situation, THE OLD 

REPORT, Vol. I, Issue 20, Aug. 10, 2003.

24. Id.

25. Interview with Colonel Marc Warren, Colonel Mike Kelly and Major P.J. Pe

note 18.

26. Coalition Provisional Authority Order Number 17, Status of the Coalition, For

Missions, Their Personnel and Contractors, June 27, 2003. All CPA regulations are 

www.cpa-iraq.org, however, Order Number 17 was revised on June 27, 2004. Unde

paragraph 3 of the revised regulation, “All MNF, CPA and Foreign Liaison Mission 

and International Consultants shall be subject to the exclusive jurisdiction of th

States. They shall be immune from any form of arrest or detention other than by pe

on behalf of their Sending States. . . .” Although the language has been revised, the 

same—coalition forces are not subject to Iraqi law.

27. VIOLENT RESPONSE: THE U.S. ARMY IN AL-FALLUJA, June 2003, availabl

www.hrw.org/reports/2003/iraqfalluja/.

28. HEARTS AND MINDS, supra note 4, at 26–9.

29. Id. at 29–31.

30. Id. at 33–4.

31. Id. at 23–6.

32. John Tierney, How and Why did Iraqi Die? 2 Tales of Anger and Denial, NEW Y

Aug. 27, 2003, at A1.

33. HEARTS AND MINDS, supra note 4, at 31–3.

34. Gary Marx, As Iraqis Die, Hate for U.S. Spreads, CHICAGO TRIBUNE, Aug. 17, 2

35. Commander of the 2nd Battalion, 3rd Field Artillery is Lieutenant Colonel 

Rabena.

36. See text accompanying notes 6–18. See also HEARTS AND MINDS, supra note 4, 

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IX

Treatment and Interrogation

of Detained Persons

David E. Graham*

Media reports of abuse of enemy prisoners of war (EPW) an

Detainees in Iraq, as well as other reports questioning certain 

tion techniques employed to gain intelligence from those in the custo

United States have raised concerns regarding the adequacy of the guidan

with such matters provided to U.S. Army personnel. This article address

rent U.S. Army regulatory and doctrinal guidance relevant to the treatme

terrogation of EPW and Security Detainees.

Before turning to this subject, however, I would like to briefly focus o

that occurred at The Judge Advocate General’s Legal Center and Schoo

Charlottesville, Virginia. In the summer of 2004, the LCS hosted its an

Commissioned Officer Conference, at which Army paralegals from a

world gathered to discuss ongoing issues. One of the highlights of this co

always the presentation of an annual award to an outstanding junior para

award winner, this year, had the looks of a recruitment poster—early 30

graduate, jump qualified. In fact, he was a Jump Master. As he accepted 

he expressed thanks to his colleagues, of course, and saluted all of the 

work that they had accomplished—and then he related this story. While 

* Colonel, JA, US Army (Ret.).

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Iraq, he had served as a Convoy Commander. In fact, he had served in th

well over 50 times. On one such occasion, the convoy became stalled in t

as the vehicles were sitting at a dead halt, a grenade was dropped from an 

At that moment, every weapon in the convoy swung in that direction. 

lowed next, he said, made him exceptionally proud to be an American so

ing in Iraq. For, even though every weapon had been pointed at the over

single shot was fired. Why not? Because, he said, a target could not be 

The personnel in that convoy had complied with the Rules of Engagem

single round was fired. And, I would submit that such behavior is the n

the exception.

Do accidents occur? Are crimes committed? Are investigations cond

crimes prosecuted and defended equally aggressively? In each instance, t

is yes. Yet, if one focuses only on the negative, such as the abhorrent cond

Ghraib, one loses sight of the fact that the overwhelming majority of U.S. 

serving in Iraq consistently do the right thing—simply because it is the r

Mistakes are made, crimes are committed, investigations may take an a

overly extended period of time to complete. But, again, I would submit t

tions taken by those servicemen in that convoy, on that particular day in 

lated by that junior enlisted soldier, represent the norm—not the excep

Turning now to the subject at hand: the current Army regulatory and 

guidance dealing with the treatment and interrogation of EPW and Se

tainees is found in several Army publications. In terms of their applicat

situation in Iraq, each publication begins with a premise with which esse

ery public international lawyer would agree. Almost all individuals pres

are subject to either the Third or Fourth Geneva Convention.1 Thus, w

to EPW taken captive in Iraq, the process is a relatively simple one. If the 

was a member of the Iraqi armed forces, he was entitled to Prisoner of W

As such, he was to be afforded the numerous rights and privileges accor

Third Convention. In terms of the interrogation of EPW, this, again

straightforward matter. Article 17 provides:

Every prisoner of war, when questioned on the subject, is bound to give 

surname, first names and rank, date of birth, and army, regimental, personal 

number, or failing this, equivalent information.

....

No physical or mental torture, nor any other form of coercion, may be infl

prisoners of war to secure from them information of any kind whatever. Pris

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y , , pp

disadvantageous treatment of any kind.

Clearly, coercing EPW into divulging information is forbidden.

Although the Third Convention is clear and unequivocal in its requir

the humane treatment of EPW and the prohibition of coercive inter

some have contended that the law is somewhat less certain with respect t

Detainees. I disagree. The first issue that must be addressed in this reg

manner in which an individual might become a Security Detainee in Ira

how does an individual lose his status as a “protected person” under Arti

Fourth Convention2—a status that carries with it a broad range of prote

safeguards? The answer is found in the fact that Article 5 of the Fourth C

enables the Occupying Power to arrest and detain individuals who pose 

threat.3 Article 78, in turn, enables the Occupying Power to detain or to i

those arrested under the authority of Article 5. These individuals, then, a

ger protected persons; they are, in fact, Security Detainees.

Again, there have been those who have argued that once an individu

status as a protected person, he essentially loses those protections acco

under the Fourth Convention. This, of course, is simply not true. Even w

to the interrogation of Security Detainees, Article 5 clearly indicates that 

viduals must be treated humanely.

The U.S. Army provides both regulatory and doctrinal guidance reg

treatment and interrogation of EPW and Security Detainees. This gui

been criticized by some as being unclear or that, given their “nuanced” n

relevant regulatory provisions are subject to varying interpretations. C

such assertions, however, it is my view that there is simply no lack of clari

of precision with respect to the relevant regulatory requirements. Army R

190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and 

tainees,

4 addresses the treatment of both EPW and Security Detainees. 

1-5(a)(1) provides:

All persons captured, detained, interned or otherwise held in U.S. Armed 

custody during the course of a conflict will be given humanitarian care and tre

The inhumane treatment of EPW, civilian internees, and retained pers

prohibited and is not justified by the stress of combat or by deep provocation

Paragraph 1-5(b) further notes:

All prisoners will receive humane treatment without regard to race, nat

religion, political opinion, sex or other criteria. The following acts are pro

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, , pp, , g g, 

deprivation, collective punishment, execution without trial by proper autho

all cruel and degrading punishment.

Additional guidance on the issue of the treatment of EPW and Se

tainees is found in Army Field Manual 3-19.40, Military Police Internmen

ment Operations.

5 Specifically, paragraphs 5-1 and 5-2 state that physical 

moral coercion must not be used in connection with civilian internees an

Detainees. They must be protected against violence, insult, public curios

injury, reprisal, and sexual attack.

The photos of abused prisoners at Abu Ghraib generated much of the 

tention focused on the treatment and interrogation of those individuals h

United States, and the issue of interrogation, in particular, has continu

matter of intense media scrutiny. Army Field Manual 34-52, Intelligence 

tion,

6 deals with both EPW and Security Detainees. This FM provides th

captured insurgents, civilian internees, other captured, detained or ret

sons, foreign deserters, or other persons . . . are protected by the Genev

tions.”7 It further states that “the [Geneva Conventions] and U.S. policy 

prohibit acts of violence or intimidation, including physical or ment

threats, insults or exposure to inhumane treatment as a means of or aid 

gations. Such illegal acts are not authorized and will not be condoned b

Army.”8 Very importantly, it also goes on to say that violations of thes

tions are criminal acts, punishable under the Uniform Code of Military 

The Intelligence Interrogation manual specifically addresses prohibite

gation techniques. It provides that “physical or mental torture or coerci

around eliminating the source’s free will, and are expressly prohibit

[Geneva Conventions].”10 Torture is defined as “the infliction of inten

body or mind to extract a confession or information, or for sadistic pleas

amples of physical torture cited in the FM include: electric shock; inflicti

through chemicals or bondage; forcing an individual to stand, sit or kn

normal positions for prolonged periods of time; food deprivation; and a

beating. Cited examples of mental torture include mock executions, 

sleep deprivation, and chemically induced psychosis. “Coercion” is defi

actions designed to unlawfully induce another to compel an act against one’s w

include: threatening or implying physical or mental torture to the subject o

family or others; intentionally denying medical assistance or care in exch

information or cooperation; and, finally, threatening or implying tha

guaranteed by the [Geneva Conventions] will not be provided unless coope

forthcoming.12

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Questions have been raised as to whether the Intelligence Interrogatio

accurately reflects both the domestic and international law obligatio

United States. I can assure you that it does. Twelve years ago, the Interna

Operational Law Division of the Office of The Judge Advocate General o

conducted an intense legal review of FM 34-52 and produced a 12-pa

spaced, legal opinion detailing the manner in which US legal obligations 

set forth in this publication.

Once again, I would submit that the regulatory and doctrinal guidanc

to the treatment and interrogation of EPW and, very importantly, Se

tainees, is quite clear, and it should be well understood as to those ac

can—and cannot—be taken. Equally clear is the fact that, if an interr

gages in proscribed activities, he or she is subject to prosecution under th

Code of Military Justice. This is precisely what U.S. Army military intelli

sonnel are taught. The Intelligence Collection manual, published in 1992

carefully considered, thoughtful, and lawful guidance, guidance that 

been modified.

Some have suggested that, given the nature of the “Global War on T

detainee interrogation techniques that obviously go well beyond those s

in current Army doctrine should be permitted. I would object to the use 

terrogation methods for a number of reasons. First, once you cross that 

tion Rubicon dictated by both international and domestic law, you im

subject individual service members to potential civil and criminal litiga

unconvinced that any form of a “necessity defense” argument would pr

individuals from prosecution under either the Uniform Code of Military 

in an international forum. Second, instructing military intelligence pe

now engage in questionable interrogation techniques would contraven

years of previous training. Third, as the Intelligence Collection manual 

“Revelation of use of torture will bring discredit upon the US and its arm

while undermining domestic and international support for the war effor

there is the matter of reciprocity. Once the United States condones actio

beyond those always considered to reflect accepted international no

practices will almost automatically become, in my view, the benchmark 

rogation methods deemed suitable for use by both State and non-State a

all of these reasons, it is critically important that the United States conti

here to the humanitarian treatment standards set forth in the Geneva Co

and other relevant international agreements.

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Notes

1. Geneva Convention III Relative to the Treatment of Prisoners of War, Aug. 12, 

3316, 75 U.N.T.S. 135 and Geneva Convention IV Relative to the Protection of Civi

in Time of War, Aug. 12, 1949, 6 UST 3516, 75 U.N.T.S. 287, reprinted in DOCUME

LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 244 and 301, res

2. The relevant portion of Article 4 provides, “Persons protected by the Conventi

who, at a given moment and in any manner whatsoever, find themselves, in case o

occupation, in the hands of a Party to the conflict or Occupying Power of which 

nationals.”

3. Specifically,

Where, in the territory of a Party to the conflict, the latter is satisfied that an ind

protected person is definitely suspected of or engaged in activities hostile to the 

of the State, such individual person shall not be entitled to claim such rig

privileges under the present Convention as would, if exercised in the favour 

individual person, be prejudicial to the security of such State.

4. Headquarters, Department of the Army, AR 190-8, Enemy Prisoners of Wa

Personnel, Civilian Internees and Other Detainees (Oct. 1, 1997), available at http:/

.army.mil/pdffiles/r190_8.pdf. This is a multi-service regulation that also is also appl

Air Force, Marine Corps and Navy.

5. Headquarters, Department of the Army, FM 3-19.40, Military Police I

Resettlement Operations (Aug 1, 2001), available at https://134.11.61.26/CD5/P

DA/FM/FM%203-19.40%2020010801.pdf.

6. Headquarters, Department of the Army, FM 34-52, Intelligence Collection (Sep

available at https://134.11.61.26/CD7/Publications/DA/FM/FM%2034-52%201992

7. Id. at 1.7.

8. Id. at 1–8.

9. Id.

10. Id.

11. Id.

12. Id.

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X

Liberation and Occupation:

A Commander’s Perspective

Fabio Mini*

One of the main challenges for the commander of a military oper

side his national territory is to deal with the international laws t

apply to the operation and the constraints his own nation may impose 

Such limits stem from political aims, diplomatic convenience, econom

international image, media opportunity, budget priorities, force structu

national law jurisdiction applicable to the area of operations. For the co

of a multinational force the challenges are even greater because he is sub

ditional constraints coming from the international organization he is wo

the international organizations he is working with and the national ca

contingent of his force brings with them. The legal constraints influence 

omy and command action during the conflict, but, most importantly, 

post-war operations when he becomes the target of scrutiny—and often 

While the military code of conduct and the customs of war are embedd

tary education and can help guide the commander’s action, the legal con

fecting war or peace support operations are sometimes ambiguous. The l

be known and studied, with the support of legal advisors, but, unfortun

are largely neglected in military education and during the specific pre-de

* Lieutenant General, Italian Army.

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training. In many countries, the military education systems include the

the formal program, but then they are skipped because there is someth

important” to do or they are left in the hands of boring lawyers that sim

litany of what you cannot do.

In particular, in many Western war colleges or military academi

teaches how to handle a post-war situation. Strategy and tactics refer on

bat situations. Management deals only with our own military organiz

units. A little bit of management is devoted to civil-military cooperation 

but because of the emphasis given to peace support operations rather tha

war management, CIMIC is perceived more as a candy bar distribution 

than a military methodology to control the post-war situation. Milita

over civil institutions is a blasphemy for democratic armies and nowa

nation and army pretends to be democratic. I am old enough to rem

warning posters of the occupying powers after World War II: “Tomorro

tribution of food will be suspended” and “Public gathering is prohi

fenders will be arrested,” signed Captain Charlie or Kurt or Martini. 

captains are not even given the authority to ask questions and the genera

questions are not entitled to any answers. I also belong to the gener

planned for military control over civilian administrations in case of in

surgency. I remember the plans to replace civil authorities, to exerci

ship, limit individual liberties and so on. Those times are gone and, w

for good.

Our democratic system is strong and the military does not have to p

assumption of power. However, while war is still very much present an

in the West have avoided and, at the same time, subverted the idea of w

the last ten years we have avoided the reality of war. We invented operati

than war”—humanitarian intervention, international police operatio

support operations, with their aggregate of peacekeeping, peace enforc

making, and so on. We invented hundreds of expressions in order to 

word “war” or to soften its meaning. In the United States and other p

world, e.g., China, there was the opposite phenomenon. The same word w

abused and everything became a “war,” including market competiti

quarrels and social endeavors. The result was again an illusion because 

resumed in its traditional form as confrontation and violence, often a

and non-linear, many people did not recognize it. War on terror in many 

is still considered to be the equivalent of the war on inflation, or the war o

tion, or the war on drugs.

The “Global War on Terror” and its many forms suggest a vision of 

with the Empire striking back and Luke Skywalker saving the Galaxy 

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fantasies, instead of inspiring the idea of a worldwide disaster. This s

elusion has also disrupted our awareness about wartime responsibility; 

quence has been the separation of military operations from pre- and po

management. Contrary to what was taught to junior officers at milita

fifty years ago, the armies of the democratic West today are told to limit t

to combat operations. They are taught to deal with “army-like” threats 

“internal” security problems to the civil authorities responsible for law 

ment. I have seen national caveats forbidding the employment of soldie

public unrest. Subsequently, when they were caught in the middle of civi

the soldiers did not know how to respond. There are many NATO natio

not agree with the use of their soldiers in anti-crime, anti-extremism or 

terrorism roles. We all have seen our officers and professional soldiers w

without taking action, the looting of national museums, public and pri

erty, or ethnic minority assets; saying that they are not policemen.

The separation between military and civil powers is necessary, but 

the security situation is stabilized and real democratic and effective inst

functioning judicial system and reliable law enforcement resources ar

Whoever rushes in to declare the end of military operations (or even the 

war) and transfers the responsibilities for public order to immature loca

ties or to inefficient international organizations or to puppet governm

responding to security and reconstruction requirements, but only to n

and narrow-minded political interests. Such a rush is conducive to insta

ates civil-military disconnects and increases risks for the forces in the are

tions. The fact of the matter is that modern military operations do not en

cessation of combat. Victory is no longer defined just by successful milit

tions, if it ever was. The aims of modern operations are purely political 

true down to the platoon level and lower. Therefore, until the politica

achieved, victory cannot be declared.

Furthermore, the occupation of a foreign territory is not the end of 

tion but the beginning of another phase of the same effort. Modern wars 

ations are not undertaken to acquire territory or sovereignty. In part

annexation of a territory is no longer the aim of the modern Western de

which tend, instead, to respect the integrity and the sovereignty of fore

tries no matter how mean their political regime and their social behav

be.1 Modern operations are undertaken more to further ideals and inte

for territorial acquisitions, even if that territory has valuable resources 

come a profitable marketplace. Therefore, the military have specific res

ties that cannot be ignored by simply declaring the end of comba

especially the case in the absence of a safe and secure environment to sup

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a declaration or if the same 

victoriousforces are continuously sufferi

We cannot say that we have won the battle in the field against the o

forces while the civil authorities have lost the battle to create a basis for d

zation, peace, reconstruction, development and social enhancement. W

lost our common war.

Unfortunately this artificial and hasty separation between supposed

and civilian responsibilities is a critical factor in the failure of modern o

or, at least, leads to lengthy and inconclusive operations, delays, and 

money, time, effort and human lives. It leads the military to concentrat

tary objectives with little concern for post-war problems related to possib

fects and so-called “collateral damage.” In the meantime it gives th

authorities an alibi for their failure in reconstruction. They can put the 

the military and use extensive war damage, the lack of internal stability 

popular unrest stemming from economic difficulties as an excuse. From 

tary standpoint, and under the influence of this civil-military “separation

erations tend to be planned and executed to:

• Achieve absolute military supremacy even when it is not necessa

there are no symmetric threats that can challenge the US and Wester

supremacy. There is not a lack of military power to cope, but an excess o

manage. Terror is achieving some results only because it is not a milit

and because it is completely asymmetric. In addition, terror directly 

political class and an international leadership largely unfit and untrain

with this problem.

• Make no distinction between combatants and noncombatants.

mistakenly considered a “police operation” or a “humanitarian effort” 

enemy but only a “criminal.” However, dealing with a criminal is diffe

dealing with a “just enemy.” Here begins the main contradiction of 

While avoiding the idea of war and eluding its reality, the military force

training, ethics and procedures related to war—a classic, traditional, s

old fashion, destructive war. Our armies are completely different fr

forces. And rightly so. But many situations that militaries have to face a

different from international law enforcement. In order to cope 

ambiguity, many military units attempt to change their ethics an

conduct. Unfortunately, when the ethics of war change, the applicable 

changes as well and often with undesirable consequences. The major

soldiers know how to deal with the enemy, a traditional combatant, b

know how to deal with criminals. So we tend to abuse the terms “cri

“terrorist” in order to enhance the aggressive behavior and determinat

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soldiers, but at the same time this lowers our ethical threshold. If the de

enemy is unclear, “criminal” can become a potential enemy, even 

belonging to the category of noncombatant.

• Destroy all infrastructure (factories, roads, power plants

communications, government facilities) with little concern for saf

essential infrastructure needed by the country to recover quick

infrastructure is safeguarded but only if useful to the subsequen

occupation. This generally creates the impression that the “real aims o

are other than humanitarian undertaken in the pursuit of internationa

• Selectively overthrow rogue regimes and dictators. There are man

and rogue regimes that do not “benefit” from our military attention

some of them benefit from our protection, while the current “bad guy

times, conveniently been our best allies—all of them. This also gives an 

perception of the aims of war.

• Carry on preventive operations in the sense that they come first b

prevent crises, losses or damages. In our Western terminology, “preven

assumed the meaning of crisis and war avoidance. A war to preven

similar or worse war is not perceived as true prevention. It is an “antici

an event whose necessity is not yet defined or proven—a scenario. Ou

following a legalistic approach, do not accept war as a preventive measu

use of force can be gradually applied only if balanced against a threat tha

immanent and imminent. Scenarios are not threats and worst-case 

cannot lead international policy as a matter of routine. In our legalistic 

intelligence is not evidence. This set of perceptions further limit

solutions and adds suspicion about the legality of the military use of fo

• Carry on operations in the complete absence of an achievable po

economical “end state.” Here “achievable” refers to a result plann

outcome of a pre-determined period of time and clearly allocated 

(including those for security). While democratization, liberty, rule o

reconciliation are good ideas and ideals, in areas where peoples have live

hardship and economic or ideological slavery for centuries, they are no

end states “achievable” through a defined and predetermined foreig

intervention. That is why many military operations appear endless and 

• Show force and pursue humiliation both of the antagonist and th

the enemy is a “criminal,” the ethics of combat suffer and humiliation 

tool to exercise superiority. When humiliation becomes a tool, it is d

confine it to the enemy. It is also easily applied to allies and friend

Refusing an offer of help because “this operation is too sensitive

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technological,

or bound to secrecyis perceived as a humiliation by m

Not sharing essential intelligence, abuse of the “blue eyes only” cr

sharing uneven responsibilities can become a humiliation in the event o

missions and indefinite risk.

On the other hand, the transitional civil administrations (either unde

tional or national and local control) that are so eager to intervene after th

operations, tend to:

• Apply the same set of measures to all situations and to every kin

society. The drawers of the international planners seem to contain only 

map” or one list of “benchmarks” or a single “eight-point plan,” and 

used indifferently for East Timor, Kosovo, Palestine or Iraq. Hu

international experts are paid huge sums of money for their consultanc

the output is the same plan over and over, often repeating the same mi

making some new ones because differences of social, cultural and 

environment are not taken into account.

• Establish a Western-style democracy regardless of its compatibilit

existing culture and development needs. Western-style democracy, whi

on the ideals of liberty and freedom of expression of the will of the peo

product of two bloody and lengthy conflicts: the American and th

revolutions. In both cases, it took hundreds of years to attain the full b

democracy, and now this model, which is far from perfect and which re

continuous checks and balances provided by the different bra

government and the ultimate control of periodic elections, is im

populations that neither understand the system nor really want it. Ad

the main corollary of modern democracy, “the market democracy,” ha

cases, a devastating effect on immature, archaic or former socialist soc

• Dissolve existing social institutions (welfare, health care, wa

councils, family systems, etc.) with no acceptable or efficient alternati

the existing network of institutions and set of customs is the only orga

glue surviving after the war. The people know where the hospitals are an

do to get there. They know what belongs to whom and why. They kno

legal and illegal according to their own old set of rules. The rapid chang

structures and age old points of reference gives the impression, and som

reality, of anarchy.

• Divide et impera (divide and rule). This principal is often applied w

are ethnic or religious differences within a society. Additionally, these d

are exploited when they exist among other States in the region. The re

where the crisis stemmed from religious or social hatred, coexistenc

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diverse ethnic or religious groups becomes impossible. In the meantim

social infrastructures are unified under the control of foreign powers 

soon prove ineffective.

• Change standards (legal system, standards of living, social relat

disband existing organizations (army, police, judicial).

• Impose an ambiguous rule of law often based on alien law method

culture. For example, the Balkans used to have a mixed system of so

Roman law. The new international administration introduced man

common law–based regulations that were often perceived as unfair and 

incomprehensible to local judges, lawyers and the people.

• Concentrate on aid and emergency assistance but not on s

development.

Lessons Learned

All the operations so far conducted by the international community, if se

grated efforts including pre-war, war and post-war phases, have demons

they can fail, not because of military blunders or lack of power, but bec

Dimensional Disconnect. The preparation and conduct of the war is gl

the post-war management is local; or vice versa (unilateral war and m

post-war management). All operations since the 1991 Gulf War have 

global engagement. All nations have been asked to unite in the effort o

subsequently for peace support operations. However, immediately after 

ing, all solutions of the crises have looked for divisions—the Dayton s

The new imperatives have been divide, separate, cantonize, decentralize

ing, regional security actors have been neglected or seen as part of the pr

not part of the solution. In Afghanistan and Iraq, the trend of war was the 

but the multilateral post-war effort still does not include the regional 

their responsibilities.

Elusion and Illusion. In this post–Cold War era, we have developed the 

the use of military arms is humanitarian; we do not wage war, we ensure 

are good and we produce a “success story” every day. This irenic appro

the concept of war and produces many illusions that are present in the b

many military organizations and administrators. Their claims of succe

evanescent and groundless that trusting them becomes a real risk.

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Oversimplifications. Politics seems to have lost the sense of complexit

ways had and that made its management a real art. Instead of understan

plexity and elaborating new approaches to the problems, our political s

resorted to simplifications and often oversimplification. For example:

• Democracy means elections—the sooner the better. Huge and 

international organizations are devoted to this mantra and ru

populations that have never had a democratic system into elections. Bu

the candidates? How are the rights and fair representation of 

protected? During the crises, whoever gets in power normally has the s

guns or the protection of foreign forces. In both cases the “free” elec

legalizing the change of power and strengthening the power of unknow

or individuals.

• Freedom means free markets. Free market means free competition

about local economies that cannot compete? Local resources will neve

chance to grow independently. In many instances, local and internatio

will benefit from a market where everything has to be imported and w

are weak governments or collusive forces facilitating the evasion of 

controls.

• Free economy means a unified currency. The first step int

monetary authorities take is to establish a convertible currency. But c

what? Coming from where? Acquired through what? What abou

laundering?

• The managers of after-war periods tend to assume that the ba

society hit by a crisis have not changed during the war. This is no

oversimplification; nothing is less true. War changes almost everythi

particular it changes the people. Before, during and after the w

generations are lost because of the killed and missing in action, the wou

massacres and reprisals on civilians. Generations of “could be” fa

mothers are lost. But during these periods, generations are also lost d

educational opportunities during the war. This compounds the inadequ

education they received from the previous regimes, and the ideologi

ethnic biases of their upbringing, biases reinforced by the vicious cycle o

• We in the West tend to face the problems only when violence eru

almost all instances it is already too late. We started dealing with East 

1999, but the crisis started in 1975. The most dramatic genocide in the 

terms of the percentage of the existing population) was perpetrated d

period and nobody seemed to care. Everybody knew that Marshall Tito

1980 would start the dissolution process of Yugoslavia, but from 1980 t

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one seemed to care. NATO brought war to Yugoslavia during the Kosov

1999, but the problem had started ten years before, in 1989, when Milos

his nationalistic stance against the province. In those ten years, the S

away the autonomy Kosovo had enjoyed since 1948, and the Alban

groups were forced out of the government and denied an adequate e

finally resorting to open violence. A Catholic priest in Kosovo once said 

takes a lifetime to shape a man and 24 hours with a gun in the hands t

life. All these kids that tasted the power of violence will never be the sa

those children that lived in constant contact with war relics, un

ordnance, landmines and under the protection of foreign military f

never be the same. Generations that are supposed to reshape the fut

country are simply non-existent or wholly unprepared for the 

international observer noted in Western Africa, “The sons are less edu

more violent than the fathers.” This is an equally unfortunate trui

Balkans, Afghanistan, East Timor, Somalia, Rwanda, Palestine, 

elsewhere visited by the violence of war. These are historical defeats for o

because the “fathers” were raised through colonialism, communism, e

and fundamentalism—all manifestations of the “evil” from which we 

them. The international community tends to replace every loss with t

foreign manpower and in so doing they perpetuate the delay in recoveri

generations. Finally, within these societies, there are also lost expecta

hopes, and lost ideals, and these losses aggravate the recovery plan.

• Reconstruction by the few. In all of the after-crisis periods a h

international companies are given the task of reconstruction. Norm

companies belong to the same nations that “donate” the reso

reconstruction. The money basically returns to those who gave it. 

manpower is scarcely involved and since such companies are techn

advanced, their costs tend to be much higher than the average local sta

periods of emergency, through so-called international community 

replacing the governmental structures that existed before the crisis is no

exercise control over the foreign money and over the reconstruct

Therefore the opportunities for speculation, profiteers, black market, 

evasion and so on are great.

• Another maniacal effort immediately undertaken is “privatization

State-owned enterprises, cooperatives, farms, and industries are disba

thousands of workers laid off. The international administrators do no

appear undemocratic and they immediately tend to shape the local 

according to free market models that it took centuries to develo

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everywhere, this abrupt effort does not fit a situation where property 

unclear, ethnic or religious divisions make it difficult to be fair, and whe

needs require labor occupation and not unemployment.

• Last but not least, intervenors intervene without defining the des

status” of the crisis area. It is a sign of hypocrisy and inefficiency to give 

fuel expectations that would be difficult to keep. It is also difficult to thin

model of society could work for every corner of the world. Furthermore

of the realization of the final status in the absence of a strong, efficient

and transparent administration supports the creation of failed Stat

States, rogue States and mafia States. The final status must be defined a

upon before the international intervention with clarity and courage. T

must be compatible with international standards but first and foremo

compatible with the local and regional reality. No single hot spot can be 

in isolation from its environment.

Fire and Forget. This tendency is not new, but has regained conceptu

during the last decade. The military instruments are the only readily ava

organized tools to turn to in emergency situations. The political impera

something” (which is also a sign of political weakness) finds it easy to reso

tary action first. Unfortunately, the lack of comprehensive planning of th

war and post-war phases and of any kind of holistic approach makes it a

identify the emergency circumstances, respond to the crisis areas and t

them, leaving the military behind. Peacekeeping missions start in the sp

public support and emotion but very soon are neglected and forgotten.

Civil-military Relationship. Another lesson drawn from recent operati

the relationship between the military forces and the non-military admin

always problematic, but it becomes a disaster when the international co

or the sending States allow:

• Multiple chains of command.

• Different reporting lines (national, international, private).

• Different priorities, concepts of secrecy, concepts of reliability (vi

locals).

• Different approaches: emergency vs. sustainable development, bu

vs. results, local vs. regional, politics vs. administration, success stor

story.

• Uneven access to the political leadership and feedback. Int

organizations and corporations have much easier access to the “politica

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than do the military commanders. Normally layers of political, d

economic, religious and other advisors screen the access of the milit

decision makers who, often unable to get the military assessment as i

stated by the commanders, tend to take the wrong decisions or prefer 

“good news” stories those advisors want to present.

• Security not to be integrated in the development and reco

strategy. In the minds of many civil administrators and politicians, 

often confined to “armed protection.” The international civil administ

not like to see the military around or inside their briefing rooms. Peace

mistakenly seen as a pacifistic and idealistic effort and many internation

peacekeepers (administrators) come from personal backgrounds of con

objection, anti-military activism, and other “noble” endeavors. Many, 

know that without the military it would be impossible to cope with e

situations, but many others think it would be better to leave the military 

if military forces are absolutely necessary, to send them away as soon a

once the initial emergency is in hand. Almost all these administrato

include the military aspects of security in the plans they make—roads a

are rebuilt without considering defensive or military requirements; 

complexes and plants are rebuilt and managed regardless of their vulne

internal and external sabotage; mines and minerals or other natural res

left in the hands of engineers and managers totally unaware of secur

Furthermore, the reconstruction plans do not consider the indirec

military presence has on local development and the indirect and direct p

of minorities and their patrimonial sites. This security factor is either 

granted or completely missed. There is always a great push towards a 

“de-militarization” or effort to diminish the presence of the militar

having restored an effective security system. A reduction in the foreig

force is always a great confidence building measure, but it must undert

when accompanied by a real improvement in the security environment, 

of all, the diminution of visible aspects of security must be balanced by 

but not less effective, measures of security (intelligence, deterrence, re

reserve forces, civil-military cooperation, information campaign, psy

operations and military-to-military cooperation). Finally, the great valu

military-to-military relationships have in the regional context is ve

considered. The occupying military forces are denied opportunities fo

or wider contacts with the military forces of the area on the assumpt

relationship with neighboring foreign forces could invade the realm 

policy. In this way a basic and effective tool of cooperation is often neg

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The latest international operations have also demonstrated that nobo

alone. No matter how powerful and strong a nation, the participation o

friends is always advisable and necessary. Coalitions of the willing are not 

they exclude traditional partners or potential critics. Critics must be 

volved and their views solicited and considered. Furthermore, the single

proach (the military wage war, civilians manage pre-war and post-wa

further disconnects and a vacuum of power that is immediately filled 

criminals and extremists. Without an integrated approach to pre-war

post-war operations, the transition periods, no matter how smooth or 

bed the seeds of failure for the entire operation. It is during these perio

major contrasts between military operations and civil administration ar

parent and that both the military and civilian sides are most vulnerable. D

transitions the huge amount of money that international “solidarity” h

into the crisis area cannot be controlled and these monies create enorm

bilities for criminal organizations and other profiteers. It is also during t

sition periods that oversight of the local political system is reduced

struggle for internal power delays political development.

The “Liberation Syndrome.” It is often stated that modern military o

and wars are not waged just to defeat an enemy but to free a country or 

tion. Of course this is a true statement and it is the only appropriate m

that a modern civilization can have to justify war against someone tha

pose a direct threat to the sovereignty of our countries nor possess the m

pability or power in whatever form to threaten our basic security. But 

“liberation” cannot be misused or abused. Liberation is not a status gran

tervening foreign forces or freely claimed by insurgents, but it is acquired 

self-determination process guided by internationally recognized legal in

Self-determination is a fundamental principle of international law. T

Nations system is built on the concept of self-determination as expressed 

Charter. The inalienable right of self-determination stands as the very f

in the two treaties, the International Covenant of Civil and Political Righ

International Covenant on Economic, Social and Cultural Rights,4 both a

1976, which, together with the Universal Declaration of Human Rights,

the International Bill of Rights. The right to self-determination may b

and asserted only by the legitimate representative of a people or nation

ization of the right to self-determination, through the attainment of s

and legal personality, is governed under international law according to t

ing recognized factual criteria of Statehood: “The State as a person of int

law should possess the following qualifications: (a) a permanent popula

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defined territory; (c) government; and (d) capacity to enter into rela

other States.”6 In addition to these factual criteria, recognition is an imp

tor in the granting of legal statehood. The General Assembly, responsib

mitting members to the United Nations, is the most authoritative forum 

recognition, although bilateral recognition by other States is also an imp

tor. However, the right to self-determination is not the same as an absolu

secession from an established State. The territorial integrity and sovereig

of States are also basic principles of international law recognized in the U

and subsequent treaties. In the 1970 Declaration of Principles of Internat

the General Assembly affirms that every State must aid in the realizat

“self-determination of peoples” in accordance with the provisions of th

but also that “nothing in the foregoing paragraphs shall be construed as 

ing or encouraging any action which would dismember or impair . . . the 

integrity or political unity of a sovereign State.”7 Similarly, the 1961 Decl

the Granting of Independence to Colonial Countries and Peoples affirm

right of all peoples to self-determination and the principles of territoria

and inviolability of State borders.8

In the last decade, “liberation,” more than an expression of self-dete

of the poor and oppressed, has become a “syndrome” of the powerful. 

created dangerous ambiguity in the role of belligerent parties and occup

ers. The misperception induced by the “politically incorrect” word “occu

greater than the reality, while the “good” word “liberation” fuels many 

standings. These include:

• Liberators are not occupants; they cannot behave like occupying 

• Immediate liberation. In the minds of the liberated peoples they 

soon as the liberating forces assume the control of the territory and 

contact with them. If small local irregular units happen to have contribu

fighting, they become the heroes of the nation and the “freedom fight

demand immediate actions in removing the previous authority, freein

prisoners or internees, arresting former officials, disbanding for

administrative agencies and State security organizations, including in

law and order and administration. They expect the international com

allow freedom and rights not previously enjoyed. They expect that pow

transferred to them without any interference or delay.

• Another perception is that of those who were persecuted by th

regime want the power too. They are martyrs. They want the leading pos

they want revenge.

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Then there is the perception of the liberating forces. In this m

there are no longer wars for territorial control or annexation. Nobody 

modify the existing borders. Therefore, unlike the occupying forces o

century, the so-called liberation forces do not want to control the terr

simply want to accomplish whatever objective was set and then go home 

possible. They want to transfer the power to whoever could free them 

continuing responsibility. The liberators do not feel additional resp

towards the “liberated” and are not psychologically prepared to use for

them; even if the failure to do so would allow the thugs to come into p

disbanding the previous administration would mean chaos for decades

All this is very far from what the reality of the situation requires an

what is anticipated by international humanitarian law (IHL). Liberatio

onym of self-determination as far as the people or the nation that strive to 

dependence are concerned and it is a form of external “aid” to such an 

when foreign forces intervene. However, no matter the purpose of the co

status of occupation paradoxically provides a greater legal basis than any 

tification for military presence and best ensures the protection and basi

the civilian population. Let us turn to the case of Iraq and see what o

should imply.

The following analysis contains extracts taken from a paper prepared 

the International Humanitarian Law Research Initiative.9 While 

lengthy, it provides an excellent discussion of the principles of IHL in the 

the military occupation of Iraq.

The Fourth Geneva Convention [1949] and the Hague Regulations [annexed 

Hague Convention IV 1907] regulate the situation of belligerent occupation. 

forth a series of duties and obligations for the parties involved from Coalition 

relief agencies and the Iraqi population itself. Their purpose is to ensure 

protection of the civilian population and favor the stabilization of the secu

living conditions in the territory under the control of invading forces.

....

What is an occupation?

The IHL follows a very practical approach in defining military occupation. It 

factual control over a territory or a population. It does not require any 

declaration or intent of the invading forces. The motives for the presence o

military forces on the territory, be they liberation, self-defence, or enforc

emptive doctrine, are irrelevant....

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p

From the point of view of IHL, civilians in occupied territories deserve a

particularly detailed rules of protection. . . . The civilians have no obligation o

towards the occupying power, regardless of the motives of the invading for

only obligations they have relate to their civilian status, i.e., not to partic

hostilities.... [Because of that obligation, IHL prohibits civilians from v

resisting occupation of their territory and from attempting to liberate that ter

violent means.] [Conversely,] the occupying power is subject to a series of ob

pertaining to the administration of the territories it occupies and the popu

controls as a substitute and caretaker for the national authorities.

When does occupation begin?

The criteria for the application of the law of occupation are relatively straight

The law of occupation applies whenever, during an armed conflict, a territor

population come under control of the enemy of the State authorities pr

controlling that territory. (See Art. 42 of the Hague Regulations and Art. 2(1) a

of Fourth Geneva Convention.) The overriding concern of the IHL rules is to 

the relationship between the civilian population and the invading forces as soo

two are in contact, independently of the duration or motives of the military op

In this context, even a military platoon occupying a village for a period of a fe

has obligations to take care of the population (emergency health care, food an

supplies, etc.), not as a matter of charity but as a duty under the rules of I

longer this occupation lasts, the more detailed the obligations become. In th

Iraq, the fall of the regime certainly creates long-term obligations pertainin

spheres of public services, from the maintenance of law and order, the admin

of justice, the supply of food, water, and health services, and the administratio

Iraqi resources for the benefit of its people.

When does occupation end?

Occupation ends whenever one of the conditions of occupation is no longer 

1. The international armed conflict has ended.

An agreement has been signed between the parties at conflict bringing to an 

armed conflict. In general, such agreement will involve the withdrawa

occupying forces. There may be situations, however, where the former occu

maintain a military presence in the country, with the agreement of the le

government under a security arrangement (e.g. US military presence in Ja

Germany). The legality of such agreement and the legitimacy of the 

authorities signing it are subject to international recognition, whereby membe

international community reestablish diplomatic and political relations w

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g, p

maintain a clear regime of occupation until the conditions for stability and p

created allowing the re-establishment of a legitimate national government. 

occupation military presence can only be construed in the context of a viab

and peaceful situation.

2. Foreign military forces have withdrawn from enemy territory or are n

exerting control over the population of that territory.

In case of an ongoing conflict, the withdrawal of the forces also brings an en

applicability of the law of occupation. It implies however that the enemy po

regained control over its population and territory. The mere withdrawal o

from certain conquered places does not end or suspend the application of IHL 

leaves a vacuum of authority. The control of the territory and the legal duties 

remain in effect until the front lines have stabilized. Evidently, in the cou

military campaign where front lines can move back and forth many tim

responsibility over the territory and population is unclear, the implementation 

rules can become impractical. However, in the case of the collapse of enemy f

in Iraq, the law of occupation applies to territories and populations enter

contact with invading forces, and remains applicable regardless of further 

deployment of troops. In other words, there is no vacuum of auth

responsibility once troops have moved into a given territory. Obligations 

maintenance of law and order as well as all other obligations pertaining to oc

powers are applicable to the Coalition forces as soon as they drive Iraqi forc

civilian areas.

In both cases:

• The hand-over of administrative functions to civil servants does not re

Occupying Power of its obligation;

• The set-up of government structures by opposition groups with the con

military presence of Coalition forces does not fulfil the conditions for the en

occupation. If changes to the Constitution are required, it can only be amende

its own provisions and procedures or, in exceptional cases, under ap

international law and procedures. Agreements concluded by the U.S. or the U

local authorities of the occupied territory or changes introduced by Coalition F

Iraqi institutions or to the government of Iraq cannot deprive protected perso

the protection offered by IHL (see Article 47 of Fourth Geneva Convention).

• In all cases, the law of occupation applies until one year after the general 

military operations, and even beyond that date basic rules continue to app

occupying power exercises the functions of government in the territory. (Se

6(3) of the Fourth Geneva Convention.) In addition, Protocol I contemp

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ppp

(See Article 3(b) of Protocol I.).

What are the obligations of the Coalition forces in Iraq?

• In principle, life in the occupied territory must be allowed to continue as nor

possible. The obligations of the occupying power can be summed up as permi

in the occupied territory to continue without being affected by its prese

authority has passed into the hands of the occupant, it becomes responsible fo

order, safety and welfare in the occupied territory. IHL is strong in protecting t

quo ante, while weak in responding to new needs of the population of the o

territory. The longer the occupation lasts, the more shortcomings of the 

established by IHL therefore appear. Only international institutions such as t

or new local authorities established in conformity with the right of the Iraqi p

self-determination can establish a new political system in Iraq.

The legal implications of this approach are the following:

Regarding internal security, the maintenance of law and order and public we

• The occupying power’s only protected interest is the security of the oc

armed forces; it may take necessary measures to protect that security, but 

responsible to take all measures in its power to restore and ensure, as far as 

public order and safety (see Article 43 of the Hague Regulations). In this conte

the U.S. is not responsible for every looting occurring in the territory it co

must exercise due diligence to avoid such looting. The claim that its forces 

sufficient in number or not appropriately trained is not a sufficient excuse;

• Similarly, the U.S. and the U.K. are responsible for ensuring public he

sanitation (see Article 56 of the Fourth Geneva Convention) and the provision 

and medical supplies (see Article 55 of the Fourth Geneva Convention).

Regarding the administration of justice

• Except concerning the protection of the occupying power’s security, lo

remain in force (see Article 43 of the Hague Regulations and Article 64 o

Geneva Convention) and local courts remain competent (see Article 66 of th

Geneva Convention);

• Civilians may only be detained in anticipation of a trial or for imperative 

reasons, which must be individually determined, allowing for a right of app

Article 78 of the Fourth Geneva Convention). Such civil internees benefit fro

detailed protective regime under the Fourth Geneva Convention (see Arts. 7

Convention IV);

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, y y pg

by the occupying power, but do not lose their civilian status. They may how

their communication rights (see article 5(2) of Convention IV). Unless they 

participate in hostilities, they benefit from the protection of civilians against e

hostilities (see article 51(3) of Protocol I.)

• In no case may a civilian be deported outside the occupied territory (see A

(1) of Fourth Geneva Convention).

Regarding property and resources

• Except when rendered absolutely necessary by military operations, private p

may not be destroyed (see Article 53 of the Fourth Geneva Convention) an

only be confiscated under local legislation (see Article 46 of the Hague Regula

• The government previously controlling the territory can obviously no 

administer public property (other than that of the municipalities (see Article 

Hague Regulations). Such property may therefore be administered by the oc

power, but only under the rules of usufruct (see Article 55 of the Hague Regula

Iraqi oil wells were government owned, the U.S. may administer them and se

According to some opinions, it may use the proceeds not only for the benefi

local population, but also, similar to levies, to cover the cost of the occupation 

of the whole war) (see Article 49 of the Hague Regulations).

As can be seen, the aim of liberation does not affect the status of occu

alter the relevant obligations. “Fire and forget” is not the kind of respon

IHL assigns to occupying powers. “Fight, pay and leave” is not what t

population can ask for. The criteria set by the law of occupation exactly f

ation of Iraq.

Case Studies

Afghanistan. In the case of Afghanistan, the “liberation” by the Coalitio

ther requested nor wanted by the Taliban regime that constituted the go

of that country. The so-called “Northern Alliance” was not a resistance 

the remnant of a group of warlords opposing the unifying power of th

The Taliban regime, which itself pretended to “free” the country from th

regime and the mujahideen under the banner of self-determination, was 

nized by the United Nations. In fact, after the Coalition’s “liberation” 

warlord system of the mujahideen regime that preceded the Taliban has 

local power, while the central government is able to perform a sort of loo

only over Kabul, and that thanks to the presence of US and NATO forc

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the mujahideen regime there were around 28 warlords and now there are 

war/drug lords.

Iraq. In the case of Iraq, there will be no liberation until the Iraqi people h

tive, stable and legal (internally and internationally recognized) State in

Unfortunately, they have been prevented from liberating themse

Saddam’s regime. The assumed and promised popular revolution and 

tion in the “liberation” did not take place. It was a gross misperception 

take of evaluation on the part of many experts, worldwide renow

scholars, intelligence agencies and naïf politicians. On the other hand, th

attempt to organize the participation of the local population in the coalit

tion was not organized, not foreseen and not even symbolically pursue

the most widely remembered symbol of the end of the Saddam regime wa

ing down of the large statue in central Baghdad. But this was done by a U

and the small crowd of Iraqis around it was chanting more for the sake o

eras than for joy. Most Iraqis had longed to liberate themselves from th

regime, but were not given the opportunity to organize their own fight, n

a symbolic level. Although coalition leaders brought with them Iraqis tha

lieved to be potential leaders, these had no political credibility; they were 

puppets of the Western forces that had imposed hardship on the Iraqis fo

Because there was no participation by the Iraqi population, the people had 

tunity to rid themselves of regime propaganda and the atavist fear of the reg

did not have the chance to understand the new situation and finally react.

Paradoxically, like any other peoples that did not have the opportun

themselves from their own dictators, the Iraqis are now freeing thems

the “liberators”—the Coalition. Liberation and freedom must be earne

self-sacrifice and cannot simply be given to them for free by someone els

tus of “liberator” is not one recognized by international law and liberatio

erators” is not a guarantee of democracy or humanity. The Jewish intern

Nazi lagers gained their freedom through their own martyrdom; they we

free in the face of God and in the face of the international community 

Americans and the Soviets opened the gates of Auschwitz, Buchenwald

etc. Nevertheless, they saw their liberators as angels regardless of whe

military forces belonged to a Western democracy or a Stalinist regime. T

ity of Iraqis view the Coalition forces as liberators, but they know that th

tion does not give the Coalition any specific right over them, their res

their sovereignty.

The majority of Iraqis recognized the Coalition as an occupying pow

sible for restoring and ensuring public order and safety, because they 

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were incapable without that assistance of overcoming the resistance forc

the criminal gangs that plagued their country. They were willing to po

establishment of their own freedom because of their lack of capability to 

security. But if the occupying forces prove unable to ensure security or w

up their own responsibility as occupying forces in order to appear “libera

the good guys, they have no useful role to play and should leave. The peo

selves have the right to free their own country. Therefore, from the leg

view, a temporary consensual military occupation is better than an inde

in the ambiguous status of liberators. Furthermore, as soon as the “occu

up their legitimate status and want to become just “liberators,” ignorin

sponsibility to ensure security and freedom of movement, they can be s

lawful occupants, making the struggle for liberty, or self-determinatio

them lawful and justified. That’s why in the periods of immediate post-c

even during the phase of active combat against rebels or insurgents, th

occupants is better than any other funambulism, at least until security 

teed and civil institutions are able to control the internal situation. Unti

ment, the coalition forces should retain the status of occupying forces an

with their relevant responsibilities under international law. Liberation 

pation is not a matter of self-labeling, but of international obligation.

In the case of a coalition composed of belligerent and non-belligeren

the responsibility of ensuring respect for the norms of international hum

law as occupying forces resides with the individual nations even though 

tional or administrative leadership has been assumed by or delegated to 

nation. Although some national forces may not accept the rationale for th

status of occupation is independent from their acceptance or non-acc

that rationale. Their de facto control over part of a territory even by a 

render the national forces responsible for the fulfillment of occupying o

In Iraq, it is likely that the so-called supporting nations (Italy, Poland, 

assuming the responsibility of a sector, implicitly assume the obligation 

ing forces even though that status is specifically recognized by the releva

olutions only with respect to the United States and the United Kingdom

28, 2004, the control of Iraq was formally handed over to Iraqi authori

ever, coalition forces have not changed or given up their de facto contr

territory. It is highly questionable whether the nominal control resid

hands of the local authorities is sufficient to end the “occupation regime

tainly it is not sufficient to amend the obligations that the coalition has to

civilian population.

It is clear that in their formal new status of “invited” forces, the natio

in Iraq cannot have fewer obligations than they did when their status w

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occupying forces. Furthermore, Iraqi forces have no power to control th

situation, lack intelligence and surveillance resources, and do not posses

capability to adequately support the Coalition. In fact, the Coalition st

control of the security instruments and their apparent status of “suppo

local authorities is a fiction. As a matter of fact, the so-called “passage 

eignty” (in reality, according to international law, Iraq never lost its sove

the Iraqis has added the Iraqis themselves and their immature, unprep

fective security forces to the list of enemies of the criminals and the rebels

disengagement of Coalition forces from the obligations of occupation 

desire to regain the fallacious status of “liberators,” and their formal tran

sponsibility of security to the provisional local institutions has ended the 

occupation and also the right of resistance that such law recognizes to 

armed groups.10 But it has also relieved the civilian population from th

not engage in violent resistance to the occupation. The formal end of th

tion has paradoxically increased the risk of legalizing mass rebellion an

civil war; the rebels can now clearly identify the Iraqi security forces eit

laborators of the unlawful occupants or as internal enemies.

Kosovo. In Kosovo, legally speaking, the war against the sovereign Stat

and Montenegro was waged by a regional security organization (NATO

to protect a minority legally and lawfully integrated into a sovereign Sta

to transfer to such ethnic group the sovereignty over the parts of Serbi

and the Former Yugoslav Republic of Macedonia (FYROM) where they 

eration” in this case and in this phase has the value of humanitarian prot

relief. That is why UN Security Council Resolution 124411 authorizing th

led mission in Kosovo and the UN administration did not foresee any los

eignty by Serbia and Montenegro.

The international administration of Kosovo that followed Operat

Force was often discussed both before and after the war with regard to i

bility to Iraq. Many experts and UN officials wanted to export the “Koso

to Iraq. In fact several international officials and national military off

transferred from Kosovo to Iraq in the early days of the invasion. I can te

personal experience that among those international officials there were s

persons who had performed effectively, but there were others that had fa

ably during their tour in Kosovo. The suggestion of the “Kosovo mode

was a serious concern to all those who had lived through that painfu

peacekeeping process. Kosovo has nothing to do with Iraq and the po

mance of the most prominent international organizations there did not 

attempt to make a “model” out of it. The Kosovo model becomes e

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irrelevant when being exported to a completely different situation, cult

tality and set of practical problems. The United Nations may have had li

because other models were not available and the donor countries and th

tional organizations had somehow accepted the bureaucracy estab

Kosovo. Because the different circumstances in Iraq were not understoo

cision was not very promising. Iraq required a new and clearly determ

proach; the failure to provide that approach does not bode well for the 

The United Nations imprimatur has great political value and good d

value. Worldwide operations or initiatives cannot be effectively underta

out the consent and the support of the United Nations. That said, in Ko

other missions it has undertaken, the United Nations proved complete

tive and even dangerous when administering a country or a territory. K

small spot in the Balkans; officially a province of Serbia. It has a territory 

square kilometers and a population of 2.1 million. United Nations Interi

istration Mission in Kosovo (UNMIK)12 is, in effect, the governing ins

Kosovo and is responsible for running this province on behalf of the U

tions. A Special Representative of the UN Secretary-General (SRSG) is t

international authority in that province. NATO, which brought war 

Montenegro because of the Kosovo humanitarian crisis, maintains Kos

(KFOR), an international security force composed of NATO and non-N

tary contingents, in the province. The KFOR commander (COMKFOR) 

ond ranking international official in Kosovo, but is not subordinate to 

Personnel of the United Nations High Commissioner for Refugees 

are still, as of the time this article is written, working in Kosovo. Their 

manitarian work is finished and they are reducing their staff and han

some responsibilities to the civil administration, but they still provide as

the local minorities.

UNMIK is divided into four sections, which it calls “pillars,” as follo

• Pillar I, under UN management, is responsible for police and justic

• Pillar II (civil administration), also under UN management, is r

for all aspects of organization of normal life; e.g., finance and payment, e

transportation, health, judicial affairs, UNMIK police, p

telecommunication, public utilities and many more.

• Pillar III, an institution run by the Organization for Security 

operation in Europe (OSCE), is in charge of media dev

democratization, police training, and elections/registration.

• Pillar IV, run by the European Union, is responsible for recon

trade and industry and public utilities.

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The SRSG is responsible to the Secretary

General, but must report to 

Group of eight nations. In theater, a special supervisory mandate is gi

QUINT Nations (the missions in Pristina, Kosovo of the Federal Repub

many, France, Italy, the United States and the United Kingdom). In 20

took over as COMKFOR, UNMIK had 16,000 personnel assigned to it a

32,000. In the period which followed, UNMIK was to slightly reduce its s

received the task to reduce KFOR to 17,000 personnel by the end of 2003

terlocutors included the staffs of the international non-governmental 

tions (400 non-Kosovars and 3000 Kosovars) and the police force com

5000 international police officers and 5000 indigenous personnel.

From the international humanitarian law point of view, the NATO-le

Kosovo should not have the status of occupation forces. Serbia signed 

ment allowing the foreign military presence on its own territory. Howe

the requirement to use whatever means “to establish a secure enviro

KFOR could have acted as a “de facto” occupant rather than a force “allo

deployed there for a long time. This was prevented by the hurry the UN a

political authorities were in to declare the situation safe and secure. It is 

liar that NATO and Serbia did not sign a status of forces agreement 

KFOR. Instead, the immunity granted to the forces is regulated by the F

for Provisional Self-Government in Kosovo issued by UNMIK itself.

When I assumed command of the Kosovo Force in October 2002 (t

after the war), I had the good fortune to be aware of most of my legal l

because I had served as Chief of Staff of Joint Forces Command Southe

that had, during the previous two years, been responsible for all operati

Balkans. I was also fortunate in that exactly ten years earlier I led a mecha

gade in the very first phase of an operation against organized crime in Sic

time, in the aftermath of the assassination of two magistrates, the local go

institutions were unable to cope with the distrust of the population and 

effective in countering organized crime. The Italian Army undertook t

tion with special police powers and deployed in Sicily for nine years befo

ing full control of the region to civilian law enforcement. When I 

command of KFOR, I thought I understood all of the difficulties related t

tionship with civil administration and law enforcement. I was also conv

NATO forces had “liberated” the Albanian population and that both the 

and the Serbs were under control. During the previous three years ther

incidents or deliberate attacks against KFOR and the official reporting 

picted some improvement.

On taking command, I was also immediately challenged by some un

aspects of my mandate. The first meeting scheduled after bidding farew

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predecessor was with the Russian Representative at NATO who trav

Brussels to Pristina for the sole purpose of complaining about the excl

Russian liaison officer at some regular meetings with the Serbian Secur

The second meeting was with my Chief of Staff and the legal advisors to e

official complaint presented by Amnesty International in reference to t

mistreatment of two Islamic diplomats by KFOR troops. The two dipl

been arrested with clear evidence of conducting illegal activities whil

working for an Islamic NGO. I settled the dispute with the Russians in 

utes, but Amnesty International is not satisfied with the answer NATO 

with regard to the two diplomats and that issue remains open.

I soon discovered that the national caveats (the guidance provided by 

ipating countries with regard to their contingents), previously seen as 

gadgets” the diplomats like to play with, were directly affecting the mis

contingents and limiting their rules of engagement. Some of them were a

additional and unnecessary risks to our soldiers. For example, minim

force was allowed only in case of direct attack or hostile intent. The mea

rect attack is clearly recognizable, but not so hostile intent. Generally spe

national caveats were clear, understandable and justifiable. More proble

the interpretation of existing local law, the national law every soldier mu

and international law.

Any concerns that I had with potential legal matters and dealing with 

ing national caveats were insignificant when compared to the overwhelm

tical problems associated with carrying out KFOR’s responsibilities.

In exercising its responsibility for ensuring a safe and secure enviro

Kosovo, KFOR had passed security tasks related to the protection of sen

patrimonial sites, border control, and freedom of movement, to local po

What I discovered after the first couple of weeks was that the situation wa

being safe and stable. The endless “successes” that contributed to the ro

were exaggerations, when they were not plain lies. In most cases, when 

cesses were reported, the following failures did not find their way into th

Security was sufficient only regarding KFOR self-protection. The eth

precipitating the war was still there and had worsened the situation of the 

the Serbian population of Kosovo. The Albanian majority was conductin

“Albanization” of the province through blackmail, intimidation, assa

and attacks on Serbian citizens and property.

In addition, the reconstruction program was behind schedule with no 

of improvement. The final political status of Kosovo was not even being 

The relationship with Belgrade was a disaster, with daily clashes and i

tween the SRSG and a Deputy Prime Minister of Serbia. The transition o

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the provisional government was not implemented. The local Assembly w

and the ministers wanted only more cars, cell phones and bodyguards

standing three rounds of democratic elections, there was not a functionin

ment. Politically motivated assassinations were a norm. Some extre

organized riots, demonstrations and the export of violence to southern 

northern FYROM.

Many of these security and governance issues stemmed from Koso

functioning economy. Unemployment impacted 80% of the population

fested every field of activity, the decentralization of powers to the mun

had not even started, energy infrastructure was under constant sabotage

cial system was compromising with the thugs, the UN administration wa

more about political games than “administration,” extremists had take

control of legal parties and civil protection institutions, schoolteacher

strike, and the miners were claiming their jobs. Kosovo was importing 

and not one single social system had been re-established. Energy produ

below the average requirements for domestic electricity use. No industr

or farms had been reactivated. The money poured into the province h

tripled the initial estimate for the full reconstruction. The results of thi

vestment (US $9 billion, without counting the military expenses) brou

good news for housing and roads, but the rest was a disaster. Nobody kn

$8 billion of the $9 billion had gone.

War criminals were free to walk the streets and the International Cri

bunal for the Former Yugoslavia (ICTY), established by the Security C

prosecute those who had committed war crimes during the ethnic conf

1990s, was afraid to indict the Albanians that committed crimes against 

The international police, composed of police officers coming from 80 

was largely ineffective and under continuous threat. Some of them w

pletely unaware of the local legal system, or of any kind of legal system fo

ter. Corruption was widespread. The local police were not only ineffecti

involved in crime through clan and family links. Many of these officer

called “former freedom fighters” who believed this entitled them to cla

privileges, but did not impose upon them obligations to carry out the

forcement responsibilities.

The entire system was biased by a diffuse blackmail: “Do not upset the 

population. We liberated them.” Kosovo not only was going nowhere; e

there was a real risk that is would become a mafia State. The dangers we

greater than they had been two years earlier. It was not more military an

forcement forces that were needed, but a better and tougher use of a 

against extremism, terrorism, crime, corruption and inefficiency. 

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intelligence asset that existed in Kosovo was oriented towards the wron

These resources were focused on a supposed military threat from the Serb

and completely overlooked and neglected the destabilizing power of the 

former freedom fighters in the region and in Kosovo. It was clear tha

threat to the safe and secure environment that KFOR was tasked to 

maintain came from within Kosovo and not from outside.

It was also clear that dramatic change was required. Within a few m

started to arrest war criminals of any ethnicity indicted by the ICTY. 

powers were used in a very discrete way and cooperation was improved w

judicial system that was relying on international and local judges. W

downsizing and changing methods of operations, allowing more cooper

and support to the police, more participation in anti-crime operation

creased utilization of the Over the Horizon NATO-led reserve forces. W

comprehensive intelligence database and created a Joint Intelligence 

Center, which incorporated all possible sources and all the intelligenc

present in Kosovo. Within two months we were able to identify more 

criminal links within the government, the political parties, the social in

and within the organization supposedly in charge of civil protection. Ne

it took our Joint Forces Commander (JFC) and the Strategic Comm

months to “socialize” a new assessment of the situation with NATO 

authorities.

When the SRSG and I finally had the opportunity to present our vi

North Atlantic Council the facts on the ground had already proven the a

our assessment. KFOR had arrested the first Albanians indicted by the I

two members of the Kosovo Protection Corps, the civilian emergen

agency established by a 1999 UNMIK regulation, had just blown themsel

terrorist attack against a railway bridge. Attacks against the police statio

tensified, while we were able to disrupt a spring offensive in southern S

FYROM through the arrest and detention of prominent extremists and 

Through cooperation with the judicial system, we were also able to put t

ees under judicial control.

Unfortunately, as of the time this article is written, all these efforts 

useless. The fight in Kosovo is not over yet and inter-ethnic clashes eru

in March 2004. Recently, the SRSG, a former prime minister of Finland

man and a highly respected politician, resigned. His frustration with the 

sults and goodwill on the part of all concerned led to this harsh decision

The bottom line in Kosovo is that the seeds of a persistent, frustratin

were planted:

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1. In the pre

war period when trust was placed in and help given to 

persons and priority was given to the military campaign without integ

and post-war requirements;

2. In the war period when the so-called freedom fighters were allowed 

power with guns and perpetrate a sort of ethnic cleansing against the m

and

3. In the post-war period when the power of extremists was co

through illegal activities and “democratic elections.” Furthermore, the U

istration was inefficient and plethoric; the international security forces w

dulgent towards the extremists, allowing them to become de-stabilizer

criminal clans; and some nations and international organizations, still lin

pre-war mentality of the extremists as victims, continued to assist them 

war by providing assistance and funding.

Conclusions

Because of a misperceived sense of “democratic” division of responsibilit

forces tend to be used as legitimate interpreters of the power of invasion

tion and liberation only during combat operations. As soon as the fightin

is artificially declared over, civilian authorities, with no understanding o

tion, assume decision-making responsibility. By the time local civilian ru

lished and functioning, permanent damage has been done: pre-war struc

been destroyed by the war or no longer function, and the new structures 

by compromise and corruption.

During planning in advance of an operation, it must be determined 

clear who will direct the civil administration during the war and in its i

aftermath, to include the kind of social, economic and security system t

put in place, how the regional framework will be affected and what to do 

prevent destabilization.

In the last ten years we have tested the system to separate war from pr

post-war. We have identified the actors responsible for each phase as sep

ties. And we have proven that the system does not work! Pre-war is th

politics and diplomacy, but the military could be used much more than 

diplomacy (coercive diplomacy). The military consequences must be de

this period by defining the potential risk for our forces and also the destab

fects of war on society.

War is the realm of the military, but political leadership has an impo

in its execution. Particularly, political leaders must respect the priority 

operations and ensure that each provides a political value that contribu

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resolution of the crisis. What has to be avoided is the use of operations a

tute for political action or to maintain ambiguity. Politicians cannot ask 

surgical operations and then keep them going for years. They cannot c

war-like operations behind other names. Pre-war and war must be conn

have a unified political-military-diplomatic control center. The time fo

during crises is becoming shorter and shorter not because threats are 

overnight, but because the international community is very slow in acq

right intelligence, getting an honest and independent assessment, and th

ing what to do without indulging in bureaucratic politics. With fewer 

States maintaining standing armies, the preparation of the military ins

becoming more difficult. In the meantime, military strategy and co

growing faster: the major risk of the pre-emptive war doctrine is that 

military operations even before diplomacy is ready or has clear ideas on 

afterwards. Early operations (pre-emptive) are at their extreme when an

the war before the enemy is recognised or before the friendly forces are re

fore the objectives are set. During the war, any political request to end m

erations, or to pretend they have ended, before a reasonable level of 

achieved has to be, if possible, contested.

During the last ten years the post-war phase has been the most dang

unfruitful. Decision makers, both State and international, have applied 

agement model of divide et imperato to Bosnia and Afghanistan, and it i

under discussion for application in Kosovo and Iraq. The internationa

nity has applied this Roman Empire rule in the most unhistorical way: i

applied indifferently to enemies within occupied territories, and, mo

tantly, it has been applied to us and to our allies. The Romans used to div

thing that was too big and strong to handle as a whole, but they made 

were able to control the separate pieces. For each situation, they had a to

trol it: force, money, favors, or corruption. Every tool was legitimate. Ins

ing a variety of mechanisms, today the international community f

dividing entities without understanding it is losing any possibility of co

have also divided ourselves by not only breaking alliances in order to f

tions, but by dividing the leadership and the tools to exercise power.

We have established a substantial separation between civilians and th

between the United Nations and national structures, between governm

non-governmental entities, between NATO and the United Nations

OSCE and the European Union, and so on. This separation has given 

myriad of chains of command, reporting channels, priorities and differ

ments. The results are that in all situations, from Somalia to Bosnia-He

to Kosovo, to East Timor, Afghanistan and Iraq, international forc

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controlling the situation. In fact, in the last ten years we have missed 

point: the three phases of pre-war, war and post-war are not separate. An

to keep them separate is artificial and the gaps between them favor the d

forces, allowing them to infiltrate and destabilization to prevail.

Another missed point is that conflicts are never limited to the hot spot

sons for crises are often very far from the time and space of the hotspot. W

hope to control a crisis just by pouring troops and missiles on the hotspo

to consider the regional balance and the international environment. We 

to consider the kind of side effects that can be expected in the medium/

and we must be prepared to cope with them. Nowadays, these side effect

of a nature that the military can control. They are related to the econom

balance, strategic resource management, social fields and, lastly, securit

The three phases of pre-war, war and post-war are connected by s

each phase there is a subtlety, a slightly different aspect of security, whic

the prerequisite. In the pre-war period, security is mainly a stability 

There is something that threatens it. During combat operations, security 

a primacy problem in order to gain control over destabilizing forces, inc

people for whom we fight. After the war, security is mainly a self-prote

rule of law problem. Military forces have a prime role to play in every 

they cannot act in isolation or be separated from politics, diplomacy, ad

tion and reconstruction. Some type of war cabinet must assume contro

crisis in the very early stages and provide oversight and direction, while 

the unity of command. This war cabinet must also provide guidance on w

before, during and after actual combat operations. No vacuum of pow

permitted, no transition can take place if the security requirement

achieved, and no transfer of power can be executed if the political and ad

tive bodies are not ready to take responsibility. My suggestion is ve

maybe even simplistic. War cannot be rushed into before all solutions ar

and attempts to peacefully solve the crisis are made. Politicians and 

must refrain from rushing into war “hoping” that it will solve the probl

because “something has to be done.”

In the pre-war phase, military forces have the vital role of preparin

while emphasizing to the politicians and diplomats that waging war is 

ferred option. Military leaders have a duty to highlight all possible op

their consequences, including the side effects on the economy, social s

gional and global assets. Military forces have a duty to prepare for sho

operations that do not annihilate, and for a long, painful, uncertain and 

riod of insecurity. They have to focus on strengthening their powers of d

dissuasion, and “reassurance” more than their capability to destroy. Re

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has a focal point in the military because it has to be credible and flexi

comprises both economic aid and confidence building measures. Th

have to be prepared to participate in the temporary territorial admini

foreign countries, under different cultural situations.

When operations begin, the military should use a reasonable excess o

secure major objectives and defeat the enemy forces. They have to “ma

excess of power and safeguard basic critical infrastructure needed for po

erations and reconstruction. After major operations have been comp

must be in control of those providing security and must guarantee the 

framework for rehabilitation. They must not hand over control to so-c

police until security is re-established and stability ensured, until a judicia

effectively functioning, until freedom of movement is re-established an

ized violence is extinguished. In this phase, the military have to resist th

declare their mission completed and depart, the wish of the politicians to 

tory and leave, the desire of the profiteers to transfer power to the civilia

or to the local clans, and the wish of the local population to have the mili

on the ground as a nice, money spending, non-interfering, gentle “close 

and open your wallet” organization. The military also has the duty to 

gional security and therefore they have to engage all regional and intern

tors in projects that build regional or wider security. Security in this ph

only self-protection or the fight against extremists. Security and stability 

economic recovery, reconciliation, return of refugees, prosecution of w

maintenance of law and order, an effective judicial system, employment

management, nation building and regional confidence. Security is also 

maturity and social development to the system: you are not free and safe 

hungry or humiliated.

Does accomplishing these things necessitate a long occupation und

rule? A difficult and extended period of responsibility for law and orde

tice? A significant share of responsibility over a long and painful period 

struction? In some circumstances, perhaps. Until international law ev

becomes more relevant to current circumstances, occupation law must 

ered not as an instrument of invasion or prevarication, but as the only 

able to clearly assume responsibility for and obligations towards th

population. It is not the best tool we can ask for, but it is a rule of law th

mean an endless sequence of uncertainty, lack of control, civil-military s

instability, and deaths. It will not allow compromising with the thugs, 

guilty by association, and pouring indefinite, infinite and unaccountable 

into a black hole and, consequently, supporting new failed States, rog

non-States, quasi-States and mafia-States instead of new democratic enti

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prevent spreading violence, destabilization, drugs and terror all over th

will mean a real unified engagement for a real liberation.

Notes

1. This is based on the principle of the “inadmissibility of the acquisition of territ

International law views occupation as a temporary status during which the occupier 

first to end the occupation as quickly as possible and second to safeguard the r

occupied population during the temporary period in which the occupation is main

move by the occupier to infringe on the rights of the occupied or change the s

occupied land through, for example, annexation, confiscation of resources, populat

or destruction of civilian property, is illegal under the Geneva Conventions. See, 

Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 

U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR 301 (Adam Robert

Guelff eds., 3d ed. 2000).

2. The legal status of combatants for the right to self-determination was defined by 

Assembly in 1973 according to the following principles: first, such struggles are legiti

full accord with the principles of international law; second, attempts to suppre

against colonial and racist regimes are incompatible with the UN Charter. Universal 

of Human Rights, GA Res. 217A, at 71, U.N. Doc. A/810 (1948); Declaration on the 

Independence to Colonial Countries and Peoples, GA Res. 1514, U.N. GAOR, 15th 

No. 16, at 66, U.N. Doc. A/4684 (1961). Such attempts themselves constitute a thr

and security.

3. Adopted Dec. 19, 1966, 999 U.N.T.S. 171, reprinted in 6 INTERNATIONAL LEGAL 

368.

4. Adopted Dec. 16, 1966, 993 U.N.T.S. 3.

5. Supra note 2.

6. Montevideo Convention on Rights and Duties of States, art. 1, Dec. 26, 1933, 

19, 49 Stat. 3097, T.S. No. 881.

7. Declaration on Principles of International Law Concerning Friendly Re

Cooperation Among States in Accordance with the Charter of the United Nation

Res. 2625, 25 U.N. GAOR, Supp. (No. 28) 121, U.N. Doc. A/8028 (1971).

8. Universal Declaration of Human Rights, supra note 2.

9. The IHL Research Initiative is a project of the Program on Humanitarian Law a

Research, an international research and policy program based at the Harvard Scho

Health. The discussion set forth above is taken from Military Occupation of Iraq: I. A

of IHL and the Maintenance of Law and Order, Apr. 14, 2003, available 

www.ihlresearch.org/iraq/pdfs/briefing3423.pdf.

10. Occupied people have the right to resist the occupation itself, as well as the sp

practices of the occupier. However, it is beyond dispute that attacks on unarmed 

whether by an occupying army or an armed resistance group—always constitute a 

fundamental human rights and can never be justified under international law.

11. SC Res. 1244 (June 10, 1999), available at http://daccessdds.un.org/doc/UN

N99/172/89/PDF/N9917289.pdf?OpenElement.

12. Established by the Secretary-General under the authority provided by SC Res. 

13. Id., para 9(d).

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PART V

MILITARY COMMISSIONS

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XI

Military Commissions:

Old Laws for New Wars

William K. Lietzau*

Introduction

The President’s exercise of his constitutional authority to direct the 

of Defense to detain enemy combatants and to convene military tr

prosecute war crimes and other crimes triable by military commission

lawful and practical response to the ascendance of terrorism. Though un

by many,2 and initially challenged as anachronistic, the exercise of juris

military commissions comports both with domestic and international la

serve to advance the values that long have animated US national security 

The apocalyptic effects of al Qaeda’s attacks of September 11, 2001—

of thousands of innocent civilians and the immutable gash in the skyl

most populous city3—were pale harbingers of the significant chan

wrought across the international and domestic landscapes when the Un

initiated the Global War on Terrorism in response. That war, in turn, 

duced legal challenges that perhaps represent the quintessential example 

during impact of the attacks and the US response thereto. That the 

should instigate a metamorphosis of old law to address the unique ch

this new war was not surprising. History teaches that changes in the law 

* Lieutenant Colonel, United States Marine Corps. The remarks contained herein 

reflections and do not necessarily represent the position of the US Marine C

Department of Defense.

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significant consequences of war. So too, this war on terrorism has chall

continues to challenge the limits of the constitutive tenets that have defin

ternational and domestic orders throughout the last half of the 20th cent

ure to participate thoughtfully and deliberately in fashioning the legal n

are being developed—norms that will guide the global community fo

century—would constitute a missed opportunity of substantial momen

US post-9/11 counterterrorist activities, particularly in the legal re

been the subject of much criticism. The decision to use military commiss

alleged terrorists is a notable example. US efforts to cultivate those chan

tant law necessary to prosecute the war on terror frequently have appeare

dinated and ill-composed in immediate application. But this awkwardn

accurately attributed to the fact that the progression in law required to 

terrorism highlights both the confluence of what might previously 

viewed as disparate legal regimes—law enforcement and war—and th

that reveal themselves in our attempts to merge the boundaries of thes

disciplines.

Paradigm Shift

To comprehend fully the issues raised by the decision to use military com

one must first recognize the significant strategic and operational shift 

with the 9/11 response. Historically, the strategy of the United States in r

to terrorism was grounded solely in law enforcement.4 It was widely r

and accepted that the magnitude of the 9/11 attacks, coupled with thei

tion of the American homeland, rose beyond mere criminal conduct, a

instead to an act of war.5 The almost exclusive law enforcement respon

terrorist attacks would not suffice; the use of military force had become 

legitimate option, but also a necessity. The US Congress recognized th

nature of the terrorist threat when, on September 14th, it enacted a joint 

authorizing the President to use “all necessary and appropriate force aga

nations, organizations, or persons he determines planned, authorized, co

or aided the terrorist attacks that occurred on September 11, 2001, and 

such organizations or persons, in order to prevent any future acts of int

terrorism against the United States.”6

The military response to the events of September 11th marked the m

cant use of military force in response to terrorist acts to date—what ha

been viewed and addressed as a criminal act now had started a war. This vi

limited to domestic observers. The use of military force in Afghanistan in r

9/11 was well received both internationally and domestically.7 On Septem

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the Security Council passed a resolution expressly recognizing the ri

United States to respond in self-defense.8 Days later, the North Atlan

Organization (NATO) took the unprecedented step of passing a resolu

Article 5 of the NATO Charter.9 Separate resolutions of the ANZUS an

nations similarly condemned the 9/11 attacks as attacks on their respect

tive memberships.10

Though the need to respond to terrorism via the armed conflict m

manifest—primarily as a preventive measure—it was undoubtedly at

punitive aspects traditionally associated with law enforcement concepts

in crafting the associated new legal paradigm, the United States incorpo

ments of both law enforcement and warmaking. This was no mere 

choice, but one required by the circumstances at hand. Oliver Wendell 

observation is appropriately recollected, “the life of the law has not been 

experience.”11 We were and remain clearly at war, but the stated object

war was and is, at least in part, to bring wrongdoers to justice.12

In theory, an act subordinate to and lawfully consistent with the decis

gage in armed conflict should enjoy support commensurate with that att

core decision itself.13 But that has not been the case.14 The armed conflict 

addressing terrorism, most prominently embodied in Operation Endu

dom,15 was accompanied by a number of subordinate actions that did 

such a sanguine reaction within the international community. Issues rel

detention of alleged terrorists at Guantanamo Naval Base, Cuba,16 an

posed plan for prosecuting alleged terrorists before military tribunals1

conspicuous among those that have been the object of international c

tion. Yet, these decisions are a natural outgrowth of the paradigm shift fr

law enforcement to one of war. Legally and logically, military tribunals a

ral extension of the President’s authority as Commander-in-Chief of 

forces; they are not a function of the United States’ judicial authority as 

claimed.18 Domestic and international criticisms of the President’s deci

been cloaked in sweeping allegations of illegality. The apprehension 

those claims, however, is most frequently a misperception of an abuse 

authority or misidentification of policy concerns generated by the 

merger of the two relevant bodies of law.19

Executive versus Judicial Authority

The first misperception is the most widespread and also the most easily 

Much of this criticism is simply the natural consequence of continuing 

discrete acts related to the war on terrorism as if they fell squarely and so

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the law enforcement arena. A response to terrorism framed solely in t

forcement paradigm—particularly when the detention and trial of acc

viduals is involved—invokes a body of law requiring significant proce

process and according a suspect or accused a plethora of substantive rig

dition, the concept of trials by military commission invokes a feature o

law that itself has been scrutinized substantially: procedures and rights 

the criminal trials of accused persons in civilian courts have been the sub

tensive legislation, have been implemented in detail by the executive bra

government, and continue to be the object of considerable judicial scrut

the process.

Critical aspects of a wartime terrorist trial militate against using proce

rules of evidence akin to those employed in times of peace in civilian jur

Criminal justice systems are not attuned to—nor could they be readily a

accommodate—unique aspects of the law of war such as the indefinite 

tion of enemy combatants for the duration of hostilities. Processing an a

rorist through the civilian court system would likely implicate speedy tri

trial detention review norms that could be completely unworkable dur

conflict. An alleged terrorist detained for trial in the United States, for 

would have the right to appear before a federal judge within forty-eigh

apprehension. At that juncture the judge would receive evidence to 

whether there existed probable cause that the crime had been committe

accused had committed it, and that pre-trial detention was necessary.20 

tion at war cannot be expected to pull military commanders from the ba

present the necessary evidence for such a judicial determination.

War crimes investigators would likely be hamstrung by a civilian co

rules of evidence. Such rules could prove counterproductive from both 

tion and defense perspectives. For example, it is far less likely that law en

investigators will be able to secure evidence amounting to more than he

admissible in most US courts) or to document the chain of custody assoc

the warrantless seizure of evidence from a remote Afghan cave by a mi

under fire. In civilian courts, these rules are often thought to operate to 

ment of the government, but in a war crimes trial held outside the ac

tainee’s country of residence, a rule favoring the admission of relevan

without regard to hearsay or established chain of custody might greatly 

accused as well.

Another difficulty created by deferring to an extant peacetime crimi

system is that the circumstances and evidence associated with a war crim

trial for acts of transnational terrorism during an ongoing conflict are li

quire the production and disclosure of intelligence collection met

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sensitive intelligence products to a degree rarely, if ever, encountered du

ian trials. The presentation of classified information in sensitive federa

prosecutions, while not routine, is possible under the Classified Inform

cedures Act of 1980. Those trials are not normally conducted during 

conflict, however, when the sensitivity of relevant intelligence informati

peak. It is reasonable to presume that the presentation of classified in

under seal and the requirement that defense attorneys submit to security 

background checks would affect each and every terrorism case, substa

creasing the scope and volume of procedural safeguards required, escalatin

ically the cost of mounting such prosecutions, and contributing to extensiv

There also exist a number of civil rights and prophylactic judicial 

have no practical currency in a wartime prosecution regime. For e

Miranda-like rights advisement is unlikely to be part of the operationa

of US ground troops when they take enemy combatants prisoner;

exclusionary rule in such instance would do nothing to further the rule 

civil liberties of cave-dwelling terrorists. Similarly, statements made 

terrorists during initial interrogations are unlikely to have been prec

rights advisement. Certainly we cannot intend for intelligence debriefe

tion only those detainees who have waived the right to silence and to 

lawyer. And if there is no extant right to a lawyer during the debrief, t

value in an exclusionary rule to guarantee compliance. These and like iss

legitimate concerns that have been addressed incrementally over years 

in civilian courts.

Conversely, most actions associated with the conduct of war are gover

less developed legal frameworks—domestically, the President’s executi

ity in the war-making arena and internationally, the law of armed confl

those arenas to which the law of war does not speak that hiatuses in the n

gal paradigm associated with the Global War on Terrorism naturally rev

selves. That these matters have been subject to heavy regulation i

enforcement field exacerbates perceptions that the law of armed conflict 

cable or insufficient. Critical sensibilities are understandably influenced 

iarity with the criminal justice system. Those sensibilities yield negati

reactions to war-related actions that are readily, but inappropriately, ana

law enforcement.23

The problem is compounded further by the existence of parallels be

areas in which war-related decisions may appear to correlate to actions 

associated with the criminal justice system and criticisms of those very 

the criminal justice system from another camp. Some argue that substa

ciencies mar our criminal law enforcement system—deficiencies assoc

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an overly charitable extension to criminal defendants of due process and 

stantive rights.24 The relatively flexible and unregulated norms associate

law of war may then be seized upon as affording a welcome opportunit

the overdeveloped procedures of federal criminal practice. The shadow 

Simpson trial and its sensationalized treatment in the press cast a pal

thought of a significant terrorist trial. This backdrop, coupled with t

standable need to protect classified intelligence in the national security 

alleged terrorist, may cause some to fear a Republican-led governmental 

tion to the prospect of a media-focused trial. They may also fear use of 

gence protection rationale as a subterfuge to hold secret proceeding

conceal a related erosion of civil liberties or trial-related human rights.2

sistent undercurrent lends a patina of credibility to some who would qu

motives of those that elect to proceed within the law of war framework

All things considered, past experience may prompt the conclusion tha

ists no rubric under which terrorists can be held accountable for their crim

some see as criminal justice deficiencies and others view as appropriate p

protections may in fact yield only systemic ineffectiveness when appl

problem of international terrorism. The standard “extradite or prosecu

simply has not worked, and to the extent it can be made to work in indivi

one may question our ability to prosecute any sizeable number of alleged 

in the context of an expensive and over-laden US federal court system.2

Despite the contumely of some pundits, military commissions are no

concoction of clever Bush Administration attorneys. Since before the b

United States, “warriors have used such tribunals to determine the gui

cence of their fellow warriors for violations of the law of war.”27 The 

Court has consistently upheld as constitutional the trials of belligerents b

commission.28 In establishing military commissions, the President has 

navigate adeptly the confluence of law enforcement and the law of arme

and at the same time to fill gaps in our legal landscape in a principled wa

thers the interests of the rule of law.

In addition to being well-grounded legally, the military commissio

is logically sound as well. President Bush’s use of the military instru

volved a prolonged, deliberate, “boots on the ground” operation with 

tive of killing or capturing terrorists and destroying their networks. To 

to a law-enforcement paradigm after capture might appease certain hum

activists in the short-term, but it would create a perverse dynamic on the 

that could undermine the most fundamental tenets of the law of war. By f

tending the use of the military instrument in authorizing the use of comm

try enemy combatants, President Bush eliminated that potentially absurd 

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for the US soldier on the battlefield

whether to capture or kill an en

clearly will continue to pose a threat to the United States, and who, in 

maintains no affiliation with a parent organization that, in more conven

cumstances, could direct surrender.29

Enforcing the Law of War: Military Commissions versus Courts-m

Almost 50 years ago, Israeli Ambassador to the United States Abba Eban 

international law as the law “the wicked do not obey and the righteous 

force.”30 For years, the international law of armed conflict has lacked a

ment mechanism.31 The President’s Military Order of November 2001 

framework for military commissions and set in motion a process to fill t

the enforcement of the laws and customs of war.32 Conversely, cynics vie

der and the commissions it establishes as an attempt to circumvent norm

nal procedures—a kangaroo court that eschews burdensome du

requirements, providing a mechanism to bring alleged terrorists to ju

fashion that favors efficiency over human rights and civil liberties.33 T

cerns are partly a consequence of the changed circumstances associated 

rorism. More simply, however, they reflect that the President’s ch

regarding the prosecution of alleged terrorists—by military tribunal

been traveled in decades and improvements to that path, although id

necessary years ago, have not yet been implemented.

After defining persons subject to the President’s Military Order (terr

those who aid and abet them if designated as such by the President),34 

clarifies that such persons will be held by the Department of Defense an

tried by military commission as opposed to some other forum.35 Lawye

rights groups, and foreign capitals criticized the Order for derogating s

tively and substantially from relevant due process guarantees—regard

war/law enforcement paradigm shift.36 Critics were somewhat quieted b

retary of Defense’s implementing order issued four months later,37 but s

steps in the direction of trial, such as the publication of additional implem

structions restoked the anti-commission fires.38 In the almost three years s

to promulgation of the Order, only eleven individuals have been designa

ject to its jurisdiction; two of these were subsequently transferred to the Un

dom, their country of citizenship, and released. Although truncated p

hearings have been held in several cases, no trial has yet proceeded to the 

tion of evidence on the merits.39

Delays and difficulties notwithstanding, however, we simply cannot 

mandate to conduct trials. Every United States president who has faced ter

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spoken of bringing its perpetrators to justice.

Moreover, internationa

clearly a growth industry, and its law enforcement complement has not k

It is useful to note that historically, military commissions have been v

means of injecting a civilized, judicial component into an otherwise u

chaotic world where killing is authorized and the fog of war often ob

moorings of civilization. This military authority41 has been used previous

different roles: 1) to try individuals who violate the laws of war; 2) to a

justice in an occupied territory; and 3) to serve as a general court in an a

martial law has been declared and the civil courts are closed.42 With res

Global War on Terrorism, we are primarily dealing with the first catego

flict-related offenses, but the likelihood that commissions may be needed 

ture under other circumstances may play into the analysis of whe

establishment is a worthwhile endeavor.43

From a domestic perspective, the authority to convene military com

derives from the President’s Article II Commander-in-Chief powers.44 

Douglas noted, the executive’s power “is vastly greater than that of any tr

mander. He not only has full power to repel and defeat the enemy; he has 

to occupy the conquered country and to punish those enemies who vi

law of war.”45 Congress has also explicitly acknowledged the President’

ing authority in this regard. A pertinent provision of the Uniform Code 

Justice (UCMJ) provides, “The provisions of this chapter . . . do not dep

tary commissions . . . of concurrent jurisdiction with respect to offend

fenses that by statute or the law of war may be tried by military commissi

A subsequent provision of the UCMJ authorizes the President to adopt r

for military commissions.47 Further, in subsequent related legislation

appears to have taken great pains to ensure continued recognition of 

dent’s authority with respect to military commissions.48 A common c

uniformed judge advocates, many of whom have spent years defendin

tary justice system from claims that it is inferior to civilian courts in pro

rights of the accused,49 is that military commissions are no longer nec

cause courts-martial now have jurisdiction over the same set of offenses 

military commission.50 Therefore, the argument goes, we now shou

UCMJ as a guide because it contemplated, or should have, wartime exig

the outset, we should recognize that the extension of jurisdiction over 

violations in the latest rendition of the UCMJ is not as revolutionary as so

think. In enacting the current version of the UCMJ, first introduced 

Congress made a conscious decision to continue including the identica

found in a 1928 version of a Manual for Courts-Martial,52 which clarifie

Articles of War did not “deprive military commissions . . . or othe

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tribunals of concurrent jurisdiction with respect to offenders or offens

statute or by the law of war may be tried by military commissions . . . or o

tary tribunals.”53 The 1950 Manual for Courts-Martial also extended tha

tion to general courts-martial—but only to the extent that military com

already possessed such jurisdiction as a matter of custom.54 Since adop

UCMJ, no war crime has ever been successfully tried by court-martial

during the well-documented trial of Lieutenant William Calley on char

meditated murder related to the My Lai massacre, an appellate court 

footnote that there had been some consideration given to trying anoth

perpetrator for war crimes, “by military commission. . . .”56

Lack of historical use aside, the real weakness in the argument for 

courts-martial to try terrorists—or war crimes in a more general sens

the UCMJ’s evolution over the years has weakened its utility in this reg

the end of the Second World War, the UCMJ has been continuously 

not to account for expanded jurisdiction involving violations of the la

but in response to perceived due process deficiencies in the forum—th

ity of trials inadequately sensitive to defendant rights that prevailed dur

War II and the years immediately thereafter. The response has been 

courts-martial look very much like federal district courts.57

What has never been addressed in the court-martial system is the ab

war criminals for violations of the law and customs of war. While el

crimes have been the subject of extensive drafting and judicial interpreta

of the offenses specified in the UCMJ, the Manual for Courts-Martial ha

attempt whatsoever to define violations of the laws of war. Similarly, cou

procedures fail to contemplate the trial of any defendant who is not a ser

ber; the UCMJ establishes no appellate process for a convicted war crimin

Manual for Courts-Martial makes no attempt to modify procedures fo

service member accused. Public perception to the contrary, courts-mart

likely to be a panacea for the problems associated with trying terrorists.

Substantive Due Process

In March of 2002, the Secretary of Defense issued basic rules for the c

military commission trials. These rules were the subject of subsequent e

in a series of “Military Commission Instructions.”58 In keeping with the P

Military Order, these rules mandated a “full and fair trial”59 purportedl

to strike an appropriate balance—a balance that, on the one hand, reco

exigencies associated with warfare, and, on the other hand, demonstrat

adherence to the principles of fairness and due process that animate ou

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criminal jurisprudence.

What the rules did not do is replicate the level o

procedural due process found in other more developed criminal justic

For this, the rules have been vociferously criticized.61

Anticipating the need for greater evidentiary flexibility, the military 

sion rules promulgated by the Department of Defense leave many proce

evidentiary determinations in the hands of the triers of fact.62 This same 

mates the International Criminal Court’s rules of procedure and those of 

national Criminal Tribunals for the Former Yugoslavia and Rwanda.

similar in nature to the concept of military commissions, they operate 

ferent conditions (e.g., post-hostility), and are hampered by the uniqu

crasies of their respective international processes. Because the tribuna

prosecute 9/11 terrorists will play such an important role in defining ava

structures for the future, it is imperative that we identify and attach ess

process elements to the tribunal’s conduct, but do so in a way that ac

their unique mission.

Military commissions afford defendants several important protection

here faithfully to immutable principles of fairness and due process tha

our domestic criminal jurisprudence—protections such as the presump

nocence, the ability to confront witnesses, and a standard of proof bey

sonable doubt.64 They also explicitly make available to the government 

as closed trials, intelligence shielding protective measures, and relaxed ru

cedure and evidence—tools that recognize the national security-related 

associated with war-time prosecutions, e.g., that evidence seized on the 

is unlikely to carry with it a chain of custody or a judicially approved warr

sary to satisfy the reticulated requirements of judicial trials; that flexibility 

to bring criminals to justice while concurrently accommodating the prose

war; and that war is attended by concomitant operational security concer

imperative to protect intelligence information, methods and sources.65 Th

fect an appropriate balance with a view to providing justice in the conte

against terrorism. Whether the balance may be off is open for debate—bu

ance that, at present, no other forum has attempted to strike.

Compliance with the Law of War66

Another common criticism of military commissions is that, admitting th

bility of the law of war and the propriety of using military commissions 

the incarceration and intended trial of enemy combatants simply viola

of war. Here we must look at the law of war itself, and the applicability 

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provisions. In most cases, specific accusations of noncompliance are ba

inappropriate application of particular tenets.

Given the eminence of the Geneva Conventions,67 one might think t

abiding by their terms—regardless of applicability as a technical matter

consistent with a commitment to the rule of law. Indeed, US military 

pressed in a Chairman of the Joint Chiefs of Staff Instruction 

“compl[iance] with the law of war during all armed conflicts, however 

flicts are characterized.”68 The language regarding conflict characteriza

to the traditional parsing of international and internal armed confli

most of the provisions of the Geneva Conventions are applicable to on

tional armed conflicts, military policy is to apply those provisions even 

flict is “not of an international character.” One could reason, then

characterization of the war on terrorism should not impact US policy as 

to the handling of captured enemy combatants or any other matter. Th

is that complying with a body of law and applying its provisions are tw

ferent endeavors. While a legal regime might be applicable, a particular 

may not apply.

By way of analogy, one might elect to comply with safe driving sta

gardless of whether the jurisdiction in which one drives effectively app

forces those standards. Self-imposed compliance does not mandate con

drive 45 miles per hour when the speed limit goes up to 65—even though 

limit is arguably safer; applicable standards may change. Viscerally, fai

cord prisoner of war status to enemy combatants is, to some, a decision n

safely. To others, it is a simple recognition of changed circumstances. M

tomary provisions of the law of armed conflict are appropriately rendere

ble as a matter of policy;69 others, however, are dependent on circumsta

Note that this relationship to circumstance could be a matter of eith

sion or prescription/proscription. Absent a required minimum, the aut

to drive 65 miles per hour does not preclude one’s decision to drive slo

particular safety norm at issue involved, for example, on which side of th

was to drive, the changed circumstance would require adjustment or hea

sions would inevitably result. The pertinent provisions of Geneva C

(III), which pertains to prisoners of war, detail specific requisite circum

applicability—demonstrating that the rights and regulations associated 

oner of war status were not intended to be reflexively applied in all circu

Like the speed limit, however, they are clearly permissive in nature with 

denial of prisoner of war status.

Nevertheless, the concern that the Global War on Terrorism has ident

nificantly sized group that appears to fall largely outside the par

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protections of various Geneva Conventions and Protocols

may indeed 

mate concern militating in favor of developing new international norms

sion is appropriate, but that discussion should be based on the 

understanding that seizing on the legal regime associated with law enfor

the basis for criticizing the treatment of captured enemy combatants is a 

application of law by analogy.71 In addition, useful dialogue can occur o

quent to recognition of the legitimate, but differing perspectives on th

state of the law of armed conflict. We benefit from the insights of Paul G

the former Director General of the International Committee of the 

(ICRC), who in the days following September 11th asserted, “with the S

11 terrorist attacks, the nature of war is changing.... With al Qaeda, 

emerging new type of belligerent,... transnational networks. To cope 

change, [the international law of armed conflict] must adapt itself for fe

marginalized.”72

Nowhere does Geneva Convention (III) preclude, or even discourag

military commission. Indeed, Article 84 reflects a preference for “milita

as that term was broadly understood in 1949.73 As opposed to mandating 

lar procedure or forum, Geneva Convention (III) requires certain minim

dards of fairness in the forum choice elected. For example, the pros

prisoners of war must include “essential guarantees of independence a

tiality as [are] generally recognized.” 74 The Conventions identify as a gr

“willfully depriving a protected person of the rights of a fair and regula

scribed in the applicable convention.”75 It is unimaginable that any judic

established by the United States would not meet these minimum require

long as any particular military commission meets those broad fairnes

ments, it would appear that even prisoners of war might be tried in such a 

A more specifically applicable standard has been established since 

Conventions, however, that provides greater detail regarding minimum 

dards. Article 75 of Additional Protocol I defines that article’s applicabili

to, “persons who are in the power of a Party to the conflict and who do n

from more favourable treatment under the Conventions or under t

col. . . .”77 It then provides, among other things, a moderately extensive 

rights that represent a minimum standard for the due administration o

Although the United States is not party to Additional Protocol I, m

opined that we should accept certain of its provisions, including Article 

flective of customary international law.79 The United States’ military co

rules appear to comply with all requirements of Article 75. Perhap

colorable claim that military commissions, as contemplated, are non

with the general normative due process standards enumerated in th

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Conventions is found in the 

independencerequirement set forth in 

of the Third Convention.80 The standard for independence is that whic

erally recognized.”81 Some may interpret the “independent” requireme

cluding a military commission’s utilization of a trier of fact or lawy

subordinate to the military chain of command.82 Such a reading, howev

be inconsistent with State practice since the 1949 Conventions were n

Military tribunals have always involved military triers of fact, and there 

dence in the Geneva negotiating records suggesting that anything to th

was intended.83 Certainly, any such proposition should be forcefully rej

The bottom line when assessing the substantive due process accorde

terrorists to be tried by military commission is that there is no reason to 

any derogation from fundamental fairness guarantees normally accorde

nal defendants. The President’s Military Order and the Secretary of Defe

require commissions to provide a “full and fair” trial. Even if there wer

protections provided by the rules or applicable instructions, military of

stituting a military commission should be expected to follow orders in p

full and fair trial. The absence of particular rules, thus permitting pundi

tify potential abuses that could occur is hardly fodder for a substantial 

though it is likely a natural consequence of the slow and deliberate mean

trials have proceeded. At this juncture, criticism of military commissi

dures amounts to nothing more than an attack on worst case hypotheti

Nondiscrimination Principle

Another principle of humanitarian law of potentially even greater impac

terrorist trials is that which appears to require nondiscrimination in ju

ceedings applied to prisoners of war and members of the armed forces 

taining power.84 To date, the United States has made no statement reg

interpretation of the principle’s relevance to the trials of alleged terro

most extreme textual articulation related to this norm is found in Art

Geneva Convention (III), which states:

A prisoner of war can be validly sentenced only if the sentence has been pronou

the same courts according to the same procedure as in the case of membe

armed forces of the Detaining Power, and if, furthermore, the provisions of the 

Chapter have been observed.85

While arguably not directly relevant to trials currently contemplated (

cause the defendants are not entitled to the protections associated with p

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war status),

other potential military commission trialssuch as thos

from the conflict in Iraq—may involve persons who do meet Geneva C

(III) criteria for prisoner of war status.87 Moreover, the norms are worth 

cause they envisage circumstances similar to those found in the law of 

digm for trials. And as a matter of policy, the United States has agreed to 

principles of the Geneva Conventions to the extent practicable.88

Some would read the language of Article 102 as precluding the use o

tribunals were they not also employed to try US troops. Given that no 

may be subject to the President’s Military Order or to trial by military co

the principle of nondiscrimination would appear to bar the use of mil

missions to try prisoners of war.89

The language of Article 102 is ambiguous in several important resp

ever. Probing these ambiguities renders premature and overly simplist

questioning acceptance that Article 102 bars absolutely the use o

commissions—even with respect to the trial of prisoners of war pro

Geneva Convention (III). In particular, it is unclear whether Article 1

only to post-capture offenses, or whether it may apply to pre-capture o

well.90 Second, the language fails to clarify the meaning of either “same 

“same procedure.”91

The language of Article 102 was carried over from Article 63 of the 19

Convention.92 In the famous post–World War II war crimes trial, In re Y

that language was interpreted by the US Supreme Court to apply onl

capture offenses committed by an individual who already was a prisone

While drafters of the 1949 Conventions clearly intended to provide p

protections for those accused of pre-capture offenses, it is not clear that A

was the intended vehicle for those protections. Nothing in the minor ve

justments of the 1949 Convention appears to affect this original intende

bility (and terrorism-related trials are likely to involve only pre-capture 

Yet, Geneva Convention (III) not only retained the 1929 language that 

became Article 102, it added a new provision—Article 85—with no par

1929 Convention.94 Some view the combination of Articles 102 and 85 as 

ing the Yamashita limitation and requiring that the courts and the proc

lized be the same for prisoners of war as for the armed forces of the 

power—even with regard to pre-capture offenses.95 Reasoning that the 

power’s procedures should apply when the detaining power’s substantiv

play appeals to both logic and fairness. But the claim that future war cr

must exactly mirror courts-martial should not be viewed as dispositive of t

state of the law, particularly given that the text of the 1949 Convention

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variety of competing interests.

And a closer review of Article 85 reveals 

cused orientation toward post-conviction treatment than to trial rights p

Additionally, a narrower read of Article 102 as requiring nondiscr

only in the prosecution of post-capture offenses is consistent with the u

theory of prisoner of war “assimilation” in the armed force of the detain

that is, once captured, a prisoner of war must obey the rules and regula

apply to the armed forces of the detaining power.98 Such assimilation ha

cation when the issue is pre-capture, that is, pre-assimilation crimes.99

Setting aside for a moment the colorable argument that Article 102 do

ply to pre-capture offenses such as those for which terrorists would be p

the question persists as to the meaning of “same courts” and “same pr

“Same” may be read to mean: what is jurisdictionally available, what has 

historically, what would likely be used in the future, or some other criter

no US court has considered the meaning of this term in this context. Alt

“same courts” language may have a straightforward meaning and applica

applied to a detaining power that prosecutes its service members in on

rum, it is not so straightforward in the case of the United States. Give

United States may prosecute members of the armed forces in any numb

including Article III courts, courts-martial, and military commissions

different aspects of “sameness” that may apply.

Article 102 may be read to require only that prisoners of war must be 

by any of the same courts that may have jurisdiction over a US service m

Because jurisdiction can be determined without regard to subjective 

greatest degree of clarity and precision inhabits this interpretation. Ano

ing of Article 102 is that it requires prisoners of war to be sentenced by 

courts that have historically sentenced US service members. This appro

look beyond bare jurisdiction to determine what courts and procedures 

“typically” used and require that prisoners of war be subject to trial by 

courts and under the same procedures as past trials of US service mem

analysis illuminates another potential problem, however. While rece

would militate in favor of the court-martial forum for standard military 

offenses, such would not be the case for violations of the international law 

conflict. In fact, law of war violations by service members have only b

cuted, as such, by military commission.101

Finally, another possible reading is that the cases to which prisoner of 

ecutions should be compared are those hypothetical cases that could aris

same area or same conflict. Thus, to the extent that the executive eviden

to prosecute its service members in a particular manner in a particula

prisoners of war from that same conflict should be subject to those same 

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same procedures. The current widespread exercise of court

martial juri

contradistinction to historic uses of military commissions for war crime

some consideration of this possibility.102

The above discussion of the last two possibilities posed begs the q

what crime would apply for purposes of conducting the analysis.103 Ce

type of offense must play some role. If US soldiers most frequently find t

in traffic court to deal with moving violations, does that mean that traf

an appropriate forum for war crimes committed by prisoners of war? 

our review in this regard only to violations of the law of war, we are left e

the conclusion that violations of the law of war must be tried by military 

sions or a determination that future war crimes will be tried by courts-

The idea that any “same courts” and “same procedure” procedure ana

assume that the crime charged is the same as well is also consistent with 

relevant provisions in Geneva Convention (III).105 Assuming this to b

note that Article III courts, courts-martial, and military commissions, 

certain jurisdictional authority to prosecute war crimes.

Article III courts probably have the narrowest range of authority with 

law of war violations,106 although recent developments with respect to t

rial support to terrorism” charge may give them equal or better coverage 

stantive conduct of terrorism.107 Only specified war crimes are chargea

the War Crimes Act, including crimes identified as “grave breaches” 

Geneva Convention.108 Subject matter jurisdiction extends to aliens 

prisoners of war) only if the victim of the war crime is a member of the 

forces or a national of the United States.109 The Act also authorizes pros

US service members irrespective of the status of the victim.110

Were prisoners of war to be prosecuted in Article III courts, a pure jur

understanding of “sameness” would support an argument that the req

of Article 102 had been met. That is, because US service members may b

enumerated violations of the laws of war in Article III courts, prisoners o

may be. Historically, though, US service members have not been tried in 

courts for violations of the laws of war or even for crimes that could 

charged as such.

As previously mentioned, prisoners of war are subject to trial by cour

for violations of the UCMJ committed after establishing prisoner of wa

Additionally, 10 U.S.C. § 818 appears to establish jurisdiction over a broa

of persons triable under the law of war.112 This could include jurisdiction 

oners of war during the period of time preceding their attainment of p

war status.113 The claim that Article 102’s nondiscrimination require

been satisfied then could be grounded in jurisdiction or perhaps hist

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Historical use, however, would cut in different directions. On the one 

though courts-martial have jurisdiction to try violators of the laws of 

have not been employed for that purpose since the UCMJ was enacte

other hand, the United States has sent US service members to courts-m

crimes that could have been charged as war crimes.114

Nevertheless, there are other complications attending the court-ma

worth noting. Because courts-martial have been designed with an em

prosecution of US service members, certain adjustments to the procedu

have to be effected to permit the process to function properly in the tria

oner of war. From a practical perspective, procedures such as rules for m

on panels115 and the conduct of pretrial confinement reviews116 wou

modification to fit the unique circumstances attending prisoners of w

over, one might argue that given the Calley precedent of charging what 

war crime as an enumerated offense under the UCMJ, one could not 

prosecution of a prisoner of war was proceeding under the “same proced

example, for the same factual offense, a US service member would be ch

murder (subject to the elements of that charge as well as the sentence li

while a prisoner of war would be charged with a law of war violation (wi

merated elements or sentence limitations). Thus, although the court-m

at first seem a comfortable fit with the requirements of Article 102, a clos

veals a more complicated and potentially problematic relationship.117

Finally, assessing military commissions from an Article 102 perspectiv

they easily fit a jurisdictional method of analysis. Past precedent makes 

military commissions may be used to try US citizens.118 As one court held

and non-citizens alike—whether or not members of the military, or un

rection and control, may be subject to the jurisdiction of a military comm

violations of the law of war.”119 Thus, trial of prisoners of war by military 

sion would be by one of the same courts that has jurisdiction over a 

member for a similar crime. From a historical use perspective, military 

sions have been convened against US service members,120 indeed, ev

“camp-followers and other civilians employed by the government in c

with the army.”121 On the other hand, no military commissions have 

vened since the period immediately following World War II.

One adjustment to the current state of affairs could improve the perce

the trial of prisoners of war by military commission comports with th

crimination principle; that would be to modify the President’s Military 

tablishing commissions so as not to exclude US citizens from its jurisd

course, an even stronger argument that the military commission forum 

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with the requirement of nondiscrimination could be made if US service 

actually were brought before such tribunals.122

In fact, were it not for the wartime setting, it would appear that neith

martial nor military commissions would have sufficient jurisdiction to a

propriate offenses.123 It is only when terrorist conduct amounts to an 

that military commission or expanded court-martial jurisdiction engage

the concept of military commissions languished in desuetude during 

years. This, in turn, explains why the parameters of the governing subst

were not addressed during the same period. As has always been the case

ment of the law of war comes after changes to war itself.

Conclusion

So what is the best way to bring terrorists to justice? Certainly that questi

prior to September 11, 2001, but the collapse of New York’s tallest bui

posed on us, as Americans, and as citizens of the world, a mandate to f

swer. Today, almost three years later, we have moved toward an answer

remains much work yet to be done. Our challenge is to answer that ques

erately. As the United States proceeds with military commission trials 

terrorists, history will be written. As in the aftermath of World W

Nuremberg, we are in the process of establishing a future world order. S

11, 2001 stands out conspicuously as a historic inflection point, but the 

impact of that day ultimately may prove to be the new legal paradigms e

in its wake.

The manner and tempo at which legal transformation takes place is 

to preserving and improving international cooperation. Many US alli

discontent early in observing the shift from addressing terrorism solely a

forcement matter. The best United States response will be in making 

consciously influencing appropriate and useful changes to the law of wa

needs to adapt and adjust, and we are in the best position both to identify 

and to lead the way in satisfying it. It has always been both “our nationa

and “in our national interest” to establish the rule of law domestically an

tionally. And the United States today has an unprecedented opportunit

lish an international order based on the rule of law. The war on terrorism 

pursued to victory, but it should also be pursued in such a way as to devel

most effectively.

It is too easy to simply criticize something that represents change—

the case with most criticism of military commissions. Over the past sev

the United States Government has faced the challenge of attempting to 

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existing laws of war to the Global War on Terrorism. That application 

please everyone, but neither does it deserve the condemnation assoc

claims of denigrating the rule of law. As in the aftermath of past conflict

tional law has moved forward by effectively establishing a pattern of Sta

that eventually may be adopted as customary law or codified by conven

process is at work today.

If there is one legitimate criticism of the US decision to initiate militar

sions, it is the failure to explain adequately its legal reasoning to relucta

key component to any planned evolution of existing law through a consi

practice is the public articulation of the norm, values, and principles gu

practice. State practice is almost meaningless if a deontologically accepta

nation does not accompany its execution.125 Our State practice, withou

tion, amounts to nothing more than fuel for criticism based on incons

ignorance. In this regard, enough cannot be said about the importance 

engaging and communicating with the international community. To sha

intentionally, we must communicate why certain decisions are consisten

rule of law as we see it, and, if change is needed, our intent—both to effe

change itself, and to maximize our standing to do so.

Alone, neither the law governing domestic criminal enforcement no

erning war is well situated to address the ascendance of terrorism. The w

future is to adjust or perhaps merge these paradigms in a way that contem

future. Military commissions are as good a potential component to suc

legal regime as any. They represent both a well-founded precedent from 

and a forward-looking change for the future. The task before us is not to 

cedent, but rather to build on the foundation of existing law—nation

law, criminal law, and the law of armed conflict—as we seek to apply the

tenets, justly, to the challenges of the war on terrorism. We can expect 

change will be accompanied by a bit of anguish and perhaps a few misste

must not be dissuaded by the fact that change never comes easily.

The law of war has been written primarily in the aftermath of crisis—

address the concerns of past conflicts—with the hope of providing rele

ance for those of the future. That hope having seen its limitations as app

current conflict, the law of war must be retooled to address the change

stances of the war on terrorism. A commander with whom I once had th

of serving was fond of saying, “if you want a new idea, go read an old boo

been done before.” In military commissions, as reshaped to fit a uniqu

foreseen adversary, we have something that is both old and new. In this 

we do well to recall the paradoxical words of Alexander Bickel who, p

heroes among common law judges, characterized them as those who 

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the past and remembered the future.

The United States, in using mil

missions to try terrorists, is shaping the law imparted by the past, all 

seeking to make it relevant, not just for today, but for tomorrow.

Notes

1. On November 13, 2001, the President of the United States issued a Military Orde

that “[a]ny individual subject to this order shall, when tried, be tried by military co

Military Order of Nov. 16, 2001: Detention, Treatment, and Trial of Certain Non-Ci

War Against Terrorism, 66 Federal Register 57,833 (Nov. 16, 2001) [hereinafter 

Military Order]. The initiation of military tribunals aptly illustrates the unfo

challenges of the post–9/11 world. See, e.g., Elisabeth Bumiller & David Johnsto

Challenged: Immigration; Bush Sets Option of Military Trials in Terrorist Cases, NEW Y

Nov. 14, 2001, at A1; Anne Gearan, Terrorists Could Face Military Trial, AP ONLIN

2001, available at 2001 WL 30244845.

2. This action was unexpected by most. William K. Lietzau, Address at the Harvard 

Humanitarian Policy and Conflict Research Conference on International Human

and Current Conflicts: New Dilemmas and Challenges for Humanitarian Organizati

2001) (answering a question regarding the possible use of military commissions by 

while possible in a theoretical sense, military commissions were a thing of the p

authors were more prescient in recognizing the viability of military commiss

terrorists. See, e.g., Spencer J. Crona & Neal A. Richardson, Justice For War Crimina

Armies: A New Legal and Military Approach to Terrorism, 21 OKLAHOMA CITY UNIV

REVIEW 349 (1996) (advocating the adoption of the military tribunal to try accused 

Daniel M. Filler, Values We Can Afford—Protecting Constitutional Rights in an Age o

A Response to Crona and Richardson, id., at 409 (arguing that accused terrorists shoul

civilian courts).

3. See, e.g., Terrorists Hijack 4 Airliners, Destroy World Trade Center, Hit Pentago

Dead, WASHINGTON POST, Sept. 12, 2001, at A1; Eric Lipton, Struggle to Tally All 9

Anniversary, NEW YORK TIMES, Sept. 1, 2002, at 1 (reporting that the final World T

death toll will drop no lower than about 2,750, not including the 10 hijackers. Coun

killed in Washington and Pennsylvania, it will remain the second-bloodiest day in U

history, behind the battle of Antietam in the Civil War). The dead include citizens o

90 countries. A City of New York Office of the Comptroller estimated the overall ec

to New York City resulting from the 9/11 attacks as totaling between 82.8–94.8 bil

See http://www.comptroller.nyc.gov/bureaus/bud/reports/impact-9-11-year-later.p

4. U.S. Issues Warning on Terrorist Attacks; State Department’s Concern Partly Based 

Explosives, Arrests in Spain, LOS ANGELES TIMES, Dec. 15, 1989, at P2 (259 people 

plane and 11 on the ground were killed in the 1988 bombing of Pan American Fligh

first Bush Administration treated the problem of apprehending suspects as one o

and extradition, clearly a law enforcement matter. See Nejla Sammakia, L

Parliamentary Process That Could Give Gadhafi Way Out, ASSOCIATED PRESS, M

available at 1992 WL 5296910 (reporting that the United Nations had instituted s

Libya that would continue until two Libyan suspects in the Pan Am bombing were tu

either the United States or the United Kingdom). In the 1993 World Trade Center b

people were killed and over 1,000 injured. Law enforcement officials conducted a

investigation, resulting ultimately in the apprehension, extradition, trial, and conv

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Again, we observe what was unquestionably a law enforcement response. See Uni

Rahman, 837 F. Supp. 64 (S.D.N.Y. 1993) (stating that the United States charged O

Ali Abdel Rahman with crimes associated with the 1993 bombing of the World Tra

See also Death Toll From Bomb Rises to 6; Searchers Sifting the Wreckage at World T

Uncover the Body of a Missing Man, ORLANDO SENTINEL, Mar. 16, 1993; Larry 

Verdict: Sheik, All Co-defendants Guilty in Terror Trial, ASSOCIATED PRESS, O

available at 1995 WL 4408662. The 1998 embassy bombings in Nairobi, Kenya, 

Salaam, Tanzania, claimed the lives of 12 Americans and over 200 Kenyans and Tanz

United States conducted a one-strike military response, and indictments were issue

individuals, four of whom were apprehended by foreign governments, extradited to 

States, and tried and convicted in US District Court. See Remarks by President Will

at Ceremony Honoring the Men and Women who Lost Their Lives in the Bom

Embassies in Kenya and Tanzania, Andrews Air Force Base, Maryland, The White H

of the Press Secretary (Aug. 13, 1998) (“The 12 Americans and the 245 Kenyans and 

were taken from us in a violent moment by those who traffic in terror and rejoice in 

their victims. We pledge here today that neither time, nor distance can bend or break 

to bring to justice those who have committed these unspeakable acts of cowardice 

We will not rest. We will never retreat from this mission.”). See John Diamond, 

Partly Successful, Reports Suggest, AP ONLINE, Aug. 21, 1998, available at 1998 WL 6

U.S. Department of State, Office of the Spokesman, Fact Sheet, Steps Taken to Serve J

Bombings of U.S. Embassies in Kenya and Tanzania (Aug. 4, 1999), availabl

www.state.gov/www/regions/africa/fs_anniv_steps.html. See also United States v. B

F. Supp. 2d 225 (S.D.N.Y. 2000) (stating that the United States charged Usama Bin 

others with crimes stemming from the bombing of the US embassies in Nairobi, Ken

es Salaam, Tanzania); See also Greg B. Smith, Osama’s Tech-Thug Pal Bombings Pla

Report Says, NEW YORK DAILY NEWS, Mar. 18, 2002, at 9. International initiatives to 

terrorist threat also have reflected a predisposition to law enforcement. The U

responded to the Khobar Towers attack both by launching a law enforcement inves

by commencing an international initiative that ultimately resulted in the negotiatio

into force of the Terrorist Bombing Convention. International Convention for the 

of Terrorist Bombings, Jan. 12, 1998, 37 INTERNATIONAL LEGAL MATERIALS 249. W

to shore up weaknesses in the law enforcement model through treaties establishing 

aut dedere aut punire (extradite or prosecute) for terrorism offenses; id., art. 8 (pr

States, in whose territory a person is present who has committed or is alleged to have 

an offense under the Convention, agree to investigate his involvement in the offe

appropriate, take such person into custody for the purpose of prosecution or extr

Party does not extradite the person, it is obliged, without exception whatsoever, t

him.). Another example of this general emphasis is the Terrorist Financing C

International Convention for the Suppression of the Financing of Terrorism art. 10

2000, 39 INTERNATIONAL LEGAL MATERIALS 270 [hereinafter Terrorist Financing Co

5. See Dick Polman, “War” is Now More than a Metaphor; Deadly Terror Attac

Promised U.S. Response—Make a Long Overused Word Mean Just What It Says, PH

INQUIRER, Sept. 13, 2001, at A5; Katherine M. Skiba, Terror Hits Were “Ac

MILWAUKEE JOURNAL SENTINEL, Sept. 13, 2001, at 1A.

6. Joint Senate Resolution to Authorize the Use of United States Armed Forces Ag

Responsible for the Recent Attacks Launched Against the United States, Pub. L. No. 

Stat. 224 (2001).

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armed force. See, e.g., David Clark, Terror in America: Mr. Blair Must Be Prepared to 

President Bush, INDEPENDENT (LONDON), Sept. 14, 2001, at 4 (noting that “[c]lear e

Usama Bin Laden orchestrated [the 9/11] atrocities will necessitate military action 

the threat he and his organisation pose”); Bush Tells US to be Patient, AUSTRALIAN 

REVIEW, Sept. 17, 2001, at 1 (noting that President Bush “has broad comm

international support for his response to the attacks” of 9/11 and that the “President 

General Pervez Musharraf, agreed to help in whatever might be required”).

8. See S.C. Res. 1368, U.N. SCOR, 4370th mtg., 40 INTERNATIONAL LEGAL MAT

(2001) [hereinafter 9/11 Resolution] (recognizing the “the inherent right of in

collective self-defense in accordance with the Charter”).

9. See North Atlantic Treaty Organisation (NATO): Statement by NATO Secretary G

Robertson, 40 INTERNATIONAL LEGAL MATERIALS 1268 (2001) (resolution quoting 

the NATO Charter and emphasizing that the attack on the United States “shall be co

attack on all” NATO members).

10. See Australian Prime Minister Media Release, Application of ANZUS Treaty 

Attacks on the United States (“The Government has decided, in consultation with 

States, that Article IV of the ANZUS Treaty applies to the terrorist attacks on 

States.”), available at http://www.pm.gov.au/news/01_news.html. Article IV p

pertinent part, that: “Each Party recognizes that an armed attack in the Pacific Area o

Parties would be dangerous to its own peace and safety and declares that it would act 

common danger in accordance with its constitutional processes.” Security Tre

Australia, New Zealand and the United States of America (ANZUS), Sept. 1, 1951, 3 

T.I.A.S. 2493; 131 U.N.T.S. 83. The Rio Treaty (Inter-American Treaty of 

Assistance), Dec. 3, 1948, T.I.A.S. 1838; 21 U.N.T.S. 77 [hereinafter Rio Pact], has b

by twenty-three States in the Western Hemisphere, including Argentina, the Baham

Brazil, Chile, Colombia, Cuba, Costa Rica, the Dominican Republic, Ecuador, 

Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Tr

Tobago, the United States, Uruguay, and Venezuela. After the September 11th terror

special session of the General Assembly of the Organization of American States (OAS

in Lima, Peru on that very day “condemned in the strongest terms the terrorist a

reiterated the need to strengthen hemispheric cooperation to combat this scour

thrown the world and the hemispheric community into mourning.” Ten days late

acting pursuant to the Rio Pact, labeled the attacks on the World Trade Center and th

as “attacks against all the American States.” See Terrorist Threat to the Americas, R

01, OAS Doc. OEA/Ser.F/II.24/RC.24/RES.1/01 rev. 1 corr. 1, at operative para. 

2001) (24th Meeting of Consultation of Ministers of Foreign Affairs).

11. Lecture 1—Early Forms of Liability, in OLIVER WENDELL HOLMES, THE COM

(1881).

12. See President George W. Bush, State of the Union Address (Jan. 29, 2002), availa

/www.whitehouse.gov/news/releases/2002/01/20020129-11.html (“We will... brin

to justice.”).

13. See Richard Morin & Claudia Deane, Most Americans Back U.S. Tactics: Poll 

Worry Over Rights, WASHINGTON POST, Nov. 29, 2001, at A1.

14. As a general rule, the community of nations has not as completely accepted th

shift from law enforcement to war. This could be partly explained by the fact that it i

States that most conspicuously associates armed conflict with use of the military 

Other governments use the military for some instances of domestic law enforcemen

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1385 (2004) (“Whoever, except in cases and under circumstances expressly autho

Constitution or Act of Congress, willfully uses any part of the Army or the Air Forc

comitatus or otherwise to execute the laws shall be fined under this title or impris

Some academics have also suggested that it is appropriate to use the military instrum

of war as a matter of self-defense without triggering the laws of war. Thus, while 

agree that the Global War on Terrorism does not amount to a traditional armed co

would argue that it does not amount to an armed conflict at all. This view should b

amounting to a situation where there is almost no accepted legal regulation of the ext

use of force.

15. The military response to the September 11, 2001 terrorist attacks on the Unite

assigned the name Operation Enduring Freedom. The initial military objectives o

Enduring Freedom, as articulated by President Bush, included the destruction 

training camps and infrastructure within Afghanistan, the capture of al Qaeda lead

cessation of terrorist activities in Afghanistan. Long-term goals included the end o

the deterrence of State sponsorship of terrorism, and the reintegration of Afghanis

international community. See President George W. Bush, Address to a Joint Session 

(Sep. 20, 2001) and Address to the Nation (Oct. 7, 2001), available at http://www.gl

.org/military/ops/enduring-freedom.htm.

16. See Roy Gutman, Christopher Dickey & Sami Yousafzai, Guantanamo Justice?, 

July 8, 2002, at 34.

17. See, e.g., Christopher Schroeder, Military Commissions and the War on T

AMERICAN BAR ASSOCIATION LITIGATION 28, 32 (2002).

18. US CONST. art. II. § 2. See also Joan Biskupic & Richard Willing, Military Trib

Judgments in Dire Times, USA TODAY, Nov. 15, 2001, at 1A.

19. STEPHEN M. DUNCAN,AWAR OF A DIFFERENT KIND: MILITARY FORCE AND 

SEARCH FOR HOMELAND SECURITY 170–172 (2004); see generally Note: Responding T

Crime, Punishment, and War, 115 HARVARD LAW REVIEW 1217, 1235–37 (2002) 

Terrorism, Crime, Punishment, and War].

20. County of Riverside v. McLaughlin, 500 U.S. 44, 58–59 (1991).

21. See Classified Information Procedures Act of 1980 (18 U.S.C. App. III).

22. See Miranda v. Arizona, 384 U.S. 436, 467–72 (1966) (noting that the right to r

is “fundamental to our system of constitutional rule,” while the “right to have couns

the interrogation is [an] indispensable [right].”). But see 148 Congressional Record 

ed. Feb. 13, 2002) (statement of Sen. Arlen Specter of Pennsylvania upon his intro

bill to establish procedures for military commissions, arguing that Miranda 

appropriately employed with regard to trials by military commission).

23. See, e.g., Senator Edward M. Kennedy Statement on the Pending Nomination 

Haynes (May 11, 2004) available at http://kennedy.senate.gov/~kennedy/statem

2004311703.html.

24. See, e.g., Terrorism, Crime, Punishment, and War, supra note 19.

25. Joanne Mariner, O.J. and Osama, the Fear of a Highly Publicized Bin Laden T

Problem with Military Commissions, FINDLAW LEGAL COMMENTARY, Nov. 26, 2001

http://writ.news.findlaw.com/mariner/20011126.html.

26. See Ryan H. Berry, Modern Use of Military Tribunals: A Legal “Can” and 

“Should”?, 28 OHIO NORTHERN UNIVERSITY LAW REVIEW 789, 808 (2002) (noting th

of United States v. Rahman took nine months, involved seventy-one defense wi

resulted in a massive opinion. In its opinion, the US Court of Appeals for the Sec

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those normally endured by a trial judge.” All this was to bring nine men, tried at onc

While it is laudable that the United States domestic system was able to handle this c

the effect on the judicial system if over three hundred similar prisoners were broug

the domestic courts. Placing these cases in one court, such as the Federal Distric

Alexandria, Virginia, would create a massive backlog for that court. Spreadin

throughout the country would create a legal nightmare of differing decisions on ide

across the circuits, leading to different treatment of similar cases. The Supreme C

eventually have to resolve these potential controversies. . . .”).

27. See Michael O. Lacey, Military Commissions: A Historical Perspective, ARMY LA

2002, at 49. Military commissions were utilized during the Civil War, the Second 

and, in between, the Indian Wars, the Spanish American War, and the First Wo

employed the “commission concept to punish violations of the law of war.” See 

MAGUIRE, LAW AND WAR: AN AMERICAN STORY (2000).

28. See, e.g., Ex Parte Quirin, 317 U.S. 1 (1942); In re Yamashita, 327 U.S. 1 (1946)

Civil War’s Ex parte Milligan decision did the Court limit the jurisdiction of suc

holding that US citizens could not be tried by military commission in a state not inva

engaged in rebellion, in which the Federal courts were “open, and in the 

unobstructed exercise of their judicial functions.” Ex parte Milligan, 71 U.S. 2, 121, 

See also, WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE, CIVIL LIBERTIES IN 

(1998) (providing a detailed history of the facts underlying the Milligan decision).

29. This dilemma is not unworkable, but it highlights the unintended conseque

presumed preference for more developed judicial systems. By way of example d

greater detail below, Colombian soldiers are regularly involved in fighting an 

conducted by the Revolutionary Armed Forces of Colombia (known by its Spanis

FARC) and other narco-terrorists. See Dan Burton & Barton Gillman, Miscues in th

WASHINGTON TIMES, Apr. 11, 1999, at B4. The military frequently kills these terro

armed conflict (and vice versa). If terrorists are captured, however, in compliance w

they must be submitted almost immediately to the normal domestic court system

turn, can be influenced by the very terrorist groups the military is fighting. See FA

Charged, LATIN AMERICAN NEWS LTD., May, 15, 2001, at 228. A conversation with a 

military officer elicited this disturbing comment, “In a firefight, we try to kill as m

narco-terrorists] as possible before they can surrender. The ones we capture go befo

and may end up back in the jungle—killing our relatives.” Confidential int

Colombian military officer, Spring 2004 (notes on file with author).

30. Person to Person (CBS television broadcast, Sept. 20, 1957), quoted in GER

GLAHN, LAW AMONG NATIONS 4 (1981).

31. The Security Council attempted in recent years to fill part of this void ad h

International Criminal Tribunals for the former Yugoslavia and Rwanda never were 

replace the sovereign exercise of national jurisdiction to bring wrongdoers to 

International Criminal Tribunal for the Former Yugoslavia, headquartered at The 

created by the Statute for the International Criminal Tribunal for the former Yug

Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993) [herein

of the ICTY]; The International Criminal Tribunal for Rwanda, headquartered 

Tanzania, was created by Statute for the International Criminal Tribunal for Rwan

955, U.N. SCOR, 49th Sess., 3453rd mtg., Annex, U.N. Doc. S/RES/955 (1994) 

Statute of the ICTR]. The International Criminal Court (ICC), which the United Sta

view as an appropriate permanent international forum for addressing violations o

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International Criminal Court, U.N. Diplomatic Conference of Plenipotentia

Establishment of an International Criminal Court, U.N. Doc. A/Conf.183/9 (1998) 

ICC Statute]. The ICC came into existence on July 1, 2002. It is the first permanen

established to investigate and try individuals for the most serious violations of in

humanitarian law, including war crimes, crimes against humanity, and genocide. 

Crossette, Long-Range Justice Raises Fears for Sovereignty, NEW YORK TIMES, July 1, 2

(quoting William Pace, convener of the Coalition for an International Criminal 

even its proponents agree that the benefit of the ICC lies primarily in encouraging th

national jurisdiction. United Nations, General Assembly, 56th Session, Statem

International Committee of the Red Cross, New York, Establishment of the In

Criminal Court (Nov. 12, 2001), available at http://www.icrc.org/web/eng/siteeng0.n

32. See President’s Military Order, supra note 1, at Sec. 4(c)(2).

33. But see David Greenberg, Uncivil Courts: America’s Military Tribunals Throu

SLATE, Dec. 5, 2001, http://www.slate.com/?id=2059375&device= (argui

tribunals are not normally kangaroo courts).

34. See President’s Military Order, supra note 1, at Sec. 2, ¶ (a):

The term “individual subject to this order” shall mean any individual who 

United States citizen with respect to whom I determined from time to time in 

that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaeda;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of intern

terrorism, or acts in preparation therefore, that have caused, threaten t

or have as their aim to cause, injury to or adverse effects on the United 

its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subpar

(i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this 

35. Id., at Sec. 3, Detention Authority of the Secretary of Defense; and Sec. 4, Auth

Secretary of Defense Regarding Trials of Individuals Subject to this Order.

36. See, e.g., Joan Biskupic & Richard Willing, Military Tribunals: Swift Judgments in 

USA TODAY, Nov. 15, 2001, at 1A; Gearan, supra note 1; Bumiller & Johnston, supr

generally Lawyers Committee for Human Rights, A Year of Loss: Reexamining Civil Li

September 11, Sept. 5, 2002, at 32 (Claiming that the order creates a parallel crim

system in which defendants would have only those rights that the President or 

Defense decide they would have, reciting a litany of specific concerns associated with 

accorded an accused tried by military commission, and asserting that some of th

principles on which the country is founded have been eroded or disregarded.).

37. Department of Defense, Military Commission Order No. 1, Procedures fo

Military Commission of Certain Non-Citizens in the War Against Terrorism (Ma

[hereinafter MCO No. 1].

38. Department of Defense, Military Commission Instruction No. 1, Military C

Instructions (Apr. 30, 2003); Department of Defense, Military Commission Instru

Crimes and Elements for Trials by Military Commission (Apr. 30, 2003) [hereinaft

2]; Department of Defense, Military Commission Instruction No. 3, Responsibilities 

Prosecutor, Prosecutors, and Assistant Prosecutors (Apr. 15, 2004); Department 

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Defense Counsel, and Civilian Defense Counsel (Apr. 15, 2004); Department 

Military Commission Instruction No. 5, Qualification of Civilian Defense Couns

2003); Department of Defense, Military Commission Instruction No. 6, 

Relationships for Military Commission Personnel (Apr. 15, 2004); Department 

Military Commission Instruction No. 7, Sentencing (Apr. 30, 2003); Department 

Military Commission Instruction No. 8, Administrative Procedures (Apr. 

Department of Defense, Military Commission Instruction No. 9, Review 

Commission Proceedings (Dec. 26, 2003).

39. See Department of Defense Military Commissions, Presidential Decisions, 

http://www.defenselink.mil/news/presidential_decisions.html (“The President dete

there is reason to believe that each of these enemy combatants was a member of al Q

otherwise involved in terrorism directed against the United States.”).

40. See President William Clinton, Remarks About the Saudi Arabia Explosion (Jun

available at http://www.cnn.com/WORLD/9606/25/clinton.remarks/index.html (“

States will be firm with terrorists. We will not make concessions. . . . If we find stat

money, weapons, training, identification, documents, travel, or safe haven for terro

respond. Our aim is to demonstrate to these countries that supporting terrorism is n

We will bring terrorists to justice. We will . . . identify, track, apprehend, prosecute, 

terrorists. Terrorism is crime, and terrorists must be treated as criminals.”). See De

Defense, Compendium, Terrorist Group Profiles, Nov. 1988, at 1 (Four days before 

1988, Pan American Flight 103 from London to New York exploded over Lockerb

All 259 passengers and 11 people on the ground were killed. In discussing his h

bombing, President Reagan stated “Now that we know definitely that it was a bomb, 

to make every effort we can to find out who was guilty of this savage and tragic thin

them to justice.” See http://www.pbs.org/wgbh/pages/frontline/shows/target/etc/

See generally LOU CANNON, PRESIDENT REAGAN: THE ROLE OF A LIFETIME 654 (199

President Reagan’s remarks on signing an anti-terrorism bill on August 27, 1986

Reagan also promulgated National Security Decision Directive 207, National P

Combating Terrorism (Jan. 1986) (outlining the basic tenets of US policy for re

international terrorism, whether conducted inside or outside US territory), availab

www.fas.org/irp/offdocs/nsdd/nsdd-207.htm.

41. See US Department of Justice, Office of Legal Counsel, Memorandum for 

Gonzales, Counsel to the President, Legality of the Use of Military Commiss

Terrorists (November 6, 2001) (concluding that under 10 U.S.C. § 821 and pur

inherent powers as Commander in Chief, the President may establish military com

try and punish terrorists apprehended as part of the investigation into, or the m

intelligence operations in response to, the September 11 attacks [hereinafter Le

Memo for Gonzales].).

42. See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS (2d ed. 1920).

43. Had an effective military tribunal system been extant in the Spring of 2003, 

historic role of military commissions—as an occupation court—might have bee

topic for discussion as well. Consider, for example, the potential utility of establish

commissions to assist in maintaining security in occupied Iraq. Such commissions 

included Iraqi panel members and more efficiently established a judicial process 

categories of offenses. Many agree that, had commissions been established in other 

more recent history, far greater consideration would have been accorded their use 

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precedent (id.) is merely a reflection of how the judicial arm of the military 

developed in the 18th and 19th centuries. We should anticipate its evolution in the fu

The use of commissions against individual members of transnational terrorist o

might stand on its own as an independent example of the use of military commis

future.

44. See supra note 41.

45. Hirota v. MacArthur, 338 U.S. 197 (1948) (Douglas, J., concurring).

46. See Uniform Code of Military Justice, 10 U.S.C. §§ 801–946 [hereinafter U

U.S.C. § 821. General Enoch H. Crowder, Judge Advocate General of the Army, app

Congress in 1916 as a sponsor for the adoption of the Articles of War and made it c

concept of military commission jurisdiction enacted in the Articles of War was m

preserved. He stated, “As long as the articles . . . provided that [persons subject to m

might be tried by court-martial, I was afraid that, having made special provision for 

court-martial, it might be held that the provision operated to exclude trials 

commission and other war courts; so this new article was introduced.” See In re Yam

U.S. 1, 20 n.7 (1946); see also Madsen v. Kinsella, 343 U.S. 341 (1952) (“[Article 15] 

these war courts the jurisdiction they now have and makes it a concurrent jurisd

courts-martial, so that the military commander in the field in time of war will be 

employ either form of court that happens to be convenient” (quoting Genera

testimony at S. Rep. No. 130, 64th Cong., 1st Sess. 40)).

47. 10 U.S.C. § 836.

48. See, e.g., 18 U.S.C. §326 (providing that the Military Extraterritorial Jurisdiction 

would not effect jurisdiction of military commissions); 10 U.S.C. § 828 (pr

employment of interpreters at military commissions); 10 U.S.C. § 3037 (noting 

advocate of the Army must prepare records of proceedings in military commissio

U.S.C. § 3172 (noting that the Speedy Trial Act does not apply to trials by military com

49. See, e.g., Jan E. Aldykiewicz, Authority to Court-Martial Non-U.S. Military p

Serious Violations of International Humanitarian Law Committed During Inte

Conflicts, 167 MILITARY LAW REVIEW 74, 145–48 (2001).

50. UCMJ art. 18 (“general courts-martial also have jurisdiction to try any person 

law of war is subject to trial by military tribunal and may adjudge any punishment p

the law of war.” 10 U.S.C. § 818); UCMJ art. 21 (“The provisions of this chapte

jurisdiction upon courts-martial do not deprive military commissions, provost cou

military tribunals of concurrent jurisdiction with respect to offenders or offenses th

or by the law of war may be tried by military commissions, provost courts, or ot

tribunals.” 10 U.S.C. § 821.). See Mark S. Martins, National Forums for Punish

Against International Law: Might U.S. Soldiers Have Their Day in the Same Court?, 3

JOURNAL OF INTERNATIONAL LAW 659, 673–75 (1996) (noting that a “United S

martial trying an alleged war criminal would provide further safeguards. All of the 

accorded in the Hague Tribunal [ICTY] would be accorded. In addition, the accus

protected by elaborate rules of evidence, such as those generally excluding hears

convicted, the presentencing procedures would give him the benefit of relaxed rules o

present matters in extenuation and mitigation, while continuing to impose strict 

prosecution. Were a sentence imposed on him, he also would receive several levels of dire

51. The Uniform Code of Military Justice, was originally promulgated on May 5, 19

81-506, 64 Stat. 107-49. The law took effect on May 31, 1951 and was codified at 1

801–946.

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53. 10 U.S.C. § 821.

54. 10 U.S.C. § 818 (“General courts-martial also have jurisdiction to try any person 

of war is subject to trial by military tribunal and may adjudge any punishment perm

law of war.”).

55. See Department of the Army, International and Operational Law Department

Advocate General’s School, Operational Law Handbook 518 (2000) (It is DoD p

member of the armed forces who commits an offense that qualifies as a “war cri

charged with a specific article of the UCMJ.).

56. U.S. v. Calley, 46 C.M.R. 1131, 1137 (C.M.A. 1973).

57. 10 U.S.C. § 800,et seq. Manual for Courts-Martial, United States, Military Rules 

1102 (2002) [hereinafter MCM]. In fact, courts-martial now so mirror feder

proceedings that eighteen months after their effective date in the federal system, ch

Federal Rules of Evidence are automatically applicable to courts-martial unless a

contrary is taken by the President.

58. See supra note 38.

59. See MCO No. 1, supra note 37.

60. Id. at § 6.B(1) (stating that the commission must give “a full and fair trial”); 

(stipulating that the defendant “shall be presumed innocent until proven guilty”).

61. See, e.g., Mariner, supra note 25. Unlike the civilian courts with their under

legislative activity and judicial review, the law of war has no similar mechanism for d

baseline procedural framework for military commissions. Perhaps the best law of 

exists vis-à-vis the common law characteristics of our domestic criminal law 

incremental changes in the law are rooted in a priori reasoning and guided by past p

common law of war, however, is truly a function of the practice of nation States. 

State practice with respect to many elements of the law of war has been limited; unfo

is perhaps most limited with respect to the prosecution of violations of the law of arm

62. See MCO No. 1, supra note 37, at § 6.D(2)(d)(“The Presiding officer may au

methods appropriate for the protection of witnesses and evidence.”).

63. See ICC Statute, supra note 31; Statutes of the ICTY and ICTR, id.; (all es

“probative value”–based evidentiary admission policy).

64. See Polman, supra note 5; Skiba, supra note 5.

65. For example, they permit protective measures, including closed trial 

accommodate the operational imperative of shielding intelligence information, m

sources.

66. The focus of this section is on only those areas most significantly impacted by 

terror. This section does not purport to provide an exhaustive collection of pertinen

standards regarding the trial process.

67. See, e.g., Convention for the Amelioration of the Condition of the Wounded 

Armies in the Field, July 27, 1929, 47 Stat. 2074, 118 L.N.T.S. 303, reprinted in TH

ARMED CONFLICTS 409 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004) [here

Geneva Convention]. See also Geneva Convention (I) for the Amelioration of the C

the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 

[hereinafter Geneva Convention (I)]; Geneva Convention (II) for the Ameliora

Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces 

12, 1949, 6 U.S.T. 3217, 75 U.S.T.S. 85 [hereinafter Geneva Convention (I

Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S

U.N.T.S. 135 [hereinafter Geneva Convention (III)]; Geneva Convention (IV) Re

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g

[hereinafter Geneva Convention (IV)]; all reprinted in DOCUMENTS ON THE LAW

(Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197, 222, 244 and 301, respec

68. Department of Defense, Chairman of the Joint Chiefs of Staff Instruction 

Implementation of the DoD Law of War Program (Mar. 25, 2002).

69. For example, Article 36 of Protocol Additional to the Geneva Conventions o

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 LAWS OF WAR, supr

422 [hereinafter Additional Protocol I], requires that the acquisition process inc

review of all new weapons to determine whether they comply with pertinent p

international law. Note that the United States is not party to Additional Protoco

Michael J. Matheson, Remarks in Session One: The United States Position on the 

Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Co

AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW & POLICY 419, 428 (1987

that it is US policy to consider parts of Additional Protocol I customary internation

Defense Acquisition Program in turn requires a legal review of all intend

acquisitions—regardless of whether the treaty is applicable regarding a conflict wi

adversary against whom the weapon might be used. Department of Defense, Direc

The Defense Acquisition System (May 23, 2003), para E1.1.15.

70. See Geneva Conventions (I), (II), (III) and (IV), supra note 67; Additional Prot

note 69; and Protocol Additional to the Geneva Conventions of 12 August 1949, and 

the Protection of Victims of Non-International Conflict (Protocol II), June 8, 

U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 67, at 483

to say that the law of armed conflict is silent regarding the persons in question. It is w

that belligerents can be detained without charge until the end of hostilities. See Ex P

317 U.S. 1, 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); I

156 F. 2d 142, 145 (9th Cir. 1946). But Geneva Convention (III) only regulates the 

those entitled to participate in hostilities. Moreover, additional questions not 

addressed by relevant treaties arise in the context of the Global War on Terrorism, s

the conflict that pertains to a particular unprivileged belligerent ends or what statu

has when apprehended in a location away from a traditional battlefield.

71. See A Nation Challenged; Agency Differs with U.S. Over P.O.Ws, NEW YORK TI

2002, at A9; Seth Stern & Peter Grier, Untangling the Legalities in a Name, CHRISTI

MONITOR, Jan. 30, 2002, at 3.

72. Interview with Paul Grossreider, Director, International Committee of the 

(ICRC), Le Temps, Jan. 29, 2002 (“Le droit humanitaire doit s’adapter sous p

marginalize” translated as “Humanitarian law must adapt or risk marginalization.”

has since distanced itself from the Grossreider comment, clamoring for the trial or 

of the Guantanamo Bay detainees. See generally Report of the 28th International Co

the Red Cross and Red Crescent, International Humanitarian Law and the C

Contemporary Armed Conflicts, Dec. 2–6, 2003 (emphasizing throughout that in

humanitarian law is specifically designed to take account of both State security an

rights).

73. Geneva Convention (III), supra note 67, art. 84 (stating, in part, “A prisoner of 

tried only by a military court, unless the existing laws of the Detaining Power expr

the civil courts to try a member of the armed forces of the Detaining Power in re

particular offence alleged to have been committed by the prisoner of war.”).

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(py 

kind which does not offer the essential guarantees of independence and impartiality 

recognized, and, in particular, the procedure of which does not afford the accused th

means of defence provided for in Article 105.”).

75. Id., art. 130; Geneva Convention (IV), supra note 67, art. 147.

76. Some Geneva Convention requirements are not reflected in the Military C

Instructions promulgated for al Qaeda. For example, pursuant to Geneva Conve

supra note 67, art. 105, a prisoner of war is entitled, among other things, “to assistan

his prisoner comrades.” These less substantively important provisions coul

accommodated with additional implementing instructions were it to be decided 

technical provisions of Geneva Convention (III), Article 102 were appropriate for ap

unlawful combatants.

77. Additional Protocol I, supra note 69, art. 75.

78. Id. Article 75 reads, in pertinent, part:

3. Any person arrested, detained or interned for actions related to the armed 

shall be informed promptly, in a language he understands, of the reasons wh

measures have been taken. Except in cases of arrest or detention for penal offenc

persons shall be released with the minimum delay possible and in any event as 

the circumstances justifying the arrest, detention or internment have ceased to 

4. No sentence may be passed and no penalty may be executed on a person 

guilty of a penal offence related to the armed conflict except pursuant to a con

pronounced by an impartial and regularly constituted court respecting the g

recognized principles of regular judicial procedure, which include the followin

(a) The procedure shall provide for an accused to be informed without dela

particulars of the offence alleged against him and shall afford the 

before and during his trial all necessary rights and means of defence;

(b) No one shall be convicted of an offence except on the basis of individu

responsibility;

(c) No one shall be accused or convicted of a criminal offence on accoun

act or omission which did not constitute a criminal offence under the n

or international law to which he was subject at the time when 

committed; nor shall a heavier penalty be imposed than that wh

applicable at the time when the criminal offence was committed; if, a

commission of the offence, provision is made by law for the impositi

lighter penalty, the offender shall benefit thereby;

(d) Anyone charged with an offence is presumed innocent until proved 

according to law;

(e) Anyone charged with an offence shall have the right to be tried in his pre

(f) No one shall be compelled to testify against himself or to confess guilt

(g) Anyone charged with an offence shall have the right to examine, 

examined, the witnesses against him and to obtain the attendan

examination of witnesses on his behalf under the same conditions as w

against him;

(h) No one shall be prosecuted or punished by the same Party for an off

respect of which a final judgment acquitting or convicting that person h

previously pronounced under the same law and judicial procedure;

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(

) ypgj

pronounced publicly; and

(i) A convicted person shall be advised on conviction of his judicial an

remedies and of the time-limits within which they may be exercised.

6. Persons who are arrested, detained or interned for reasons related to the 

conflict shall enjoy the protection provided by this Article until their final 

repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of 

accused of war crimes or crimes against humanity, the following principles shall 

(a) Persons who are accused of such crimes should be submitted for the pur

prosecution and trial in accordance with the applicable rules of intern

law; and

(b) Any such persons who do not benefit from more favourable treatmen

the Conventions or this Protocol shall be accorded the treatment prov

this Article, whether or not the crimes of which they are accused co

grave breaches of the Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing an

more favourable provision granting greater protection, under any applicable 

international law, to persons covered by paragraph 1.

79. See Matheson, supra note 69. In the only recognized authoritative statement on 

by a US Government official, Mr. Matheson, then US Department of State D

Advisor, expounded at a law of armed conflict conference on those provisions o

Protocol I the United States deemed to constitute customary international law. H

Article 75’s provisions among them.

80. Geneva Convention (III), supra note 67, art. 84.

81. Id.

82. Cf. Melvin Heard, Robert P. Monahan, William Ryan & E. Page Wilki

Commissions: A Legal and Appropriate Means of Trying Suspected Terrorists? 49 N

REVIEW 71 (2002) (criticizing the “most significant weakness” in MCO No. 1—th

independent appellate court).

83. See MCM, supra note 57, Rules for Courts-Martial 504, 505 (prescribing a milit

the trier of fact). Moreover, if Geneva is interpreted as requiring that the trier of fact 

segregated in a different branch of government, several hundred years of military co

practice would have to be invalidated as well. To an American audience, “ludicrous

appropriate modifier for the above postulate that a military jury is not 

“independent” to comport with modern standards. It would be equally ludicrous to 

the United States Senate, in ratifying the Geneva Conventions, was acceding to an in

law standard that would afford alleged war criminals theoretically superior trial right

accorded US soldiers. We should be aware, however, that others may see things 

Indeed, the European Court of Human Rights has done just that. In Findlay v. Unite

24 E.H.R.R. 221 (1997), that court found insufficient independence in British court

comply with parallel human rights provisions found in the European Convention 

Rights. Findlay at para. 59. The European Court of Human Rights, which has autho

United Kingdom, nullified a British court-martial and established a rule that requir

revamping of the United Kingdom’s military justice system. See Simon P. Rowlinson

System of Military Justice, 52 AIR FORCE LAW REVIEW 17 (2002). In articulating the ru

deem both correct under currently accepted norms and appropriate for a future that 

285

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and ensure we are not unwittingly setting undesirable precedent.

84. See Geneva Convention (III), supra note 67, arts. 84, 85, 102.

85. Id., art. 102.

86. See Legal Counsel Memo for Gonzales, supra note 41.

87. See Geneva Convention (III), supra note 67, art. 4.

88. The White House, Office of the Press Secretary, Fact Sheet, Status of D

Guantanamo (Feb. 7, 2002) [hereinafter White House Fact Sheet—Status of 

available at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.

89. President’s Military Order, supra note 1, at Sec. 2. One of the negotiators 

Conventions has argued that only courts-martial are now legally available for war c

See, e.g., Raymund T. Yingling & Robert W. Ginane, The Geneva Conventions 

AMERICAN JOURNAL OF INTERNATIONAL LAW 393 (July 1952). It is not clear what co

this reading of Article 102 might impose on the United States, but at the ver

President’s Military Order language prohibiting trial of US citizens becomes proble

as a legal issue, then certainly as one of international public relations.

90. See Geneva Convention (III), supra note 67, art. 99 (beginning the chapter in w

102 is contained with language implying that the chapter will discuss offenses rele

the detaining power’s law—i.e., post-capture offenses).

91. Id., art. 102.

92. Geneva Convention, supra note 67.

93. In re Yamashita, 327 U.S. 1 (1946).

94. Geneva Convention (III), supra note 67, art. 85 (providing that “[p]rison

prosecuted under the laws of the Detaining Power for acts committed prior to c

retain, even if convicted, the benefits of the present Convention.”).

95. See Yingling & Ginane, supra note 89 (concluding, in an article published shor

negotiation of the 1949 Conventions, that the courts and the procedure utilized 

same for prisoners of war as for the armed forces of the detaining power—even wi

pre-capture offenses). A more recent paper authored by Ed Cummings, Deputy Lega

the US Department of State, reached this same conclusion.

96. Geneva Convention (III) essentially retained the 1929 language that ultima

Article 102, but the new additive provision, Article 85, had no parallel in the 1929 w

97. Geneva Convention (III), supra note 67, art. 85. An expansive reading of Artic

make superfluous another provision of the Convention—Article 84—also first ad

(suggesting that if a choice of courts is available; military courts must be used un

courts have jurisdiction.) If the “same” courts must be used for pre-capture crime

then there is no choice of courts as described in Article 84, and the language is mea

98. Id., arts. 99–100.

99. Id.

100. The terms of Article 84 suggest just such a reading of Article 85. Article 

jurisdiction; it requires trial by a military court, “unless the existing laws of the Deta

expressly permit the civil courts to try a member of the armed forces of the Detaini

respect to the particular offense alleged to have been committed by the prisoner of 

101. In the course of the Calley case, there was some discussion among prosec

whether Calley should be charged under provisions of 10 U.S.C. § 821 with the com

war crimes in addition to the UCMJ charges for the substantive offenses underlyi

crimes. Prudential concerns resulted in the charging only of non-law of war cha

Calley, 46 C.M.R. 1131 (1973).

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Article 102 among uniformed judge advocates would probably yield a belief that th

requires trial by court-martial—simply because that is the forum with which mo

greatest familiarity.

103. That is, if a certain subset of criminal offenses is applicable for consideration, t

martial would undoubtedly be the most prevalent forum, both historically and wit

future probability.

104. That courts-martial charges have been brought against those accused in the pri

scandal of Abu Ghraib provides continued support for this proposition. See, e.g., Se

S. Davis—Charged under the UCMJ with conspiracy to maltreat detainees; derelic

for willfully failing to protect detainees from abuse, cruelty, and maltreatment; malt

detainees; assaulting detainees; and making a statement designed to deceive an inves

Corporal Charles Graner—Charged under the UCMJ with conspiracy to maltrea

dereliction of duty for willfully failing to protect detainees from abuse, c

maltreatment; maltreatment of detainees; assaulting detainees; committing in

adultery with Private First Class England; and obstruction of justice. Charge sheets 

http://news.findlaw.com/hdocs/docs/iraq/. See also Edmund Sanders & Richa

Contrite GI Pleads Guilty to Abuse, LOS ANGELES TIMES, May 20, 2004 (“Choking ba

expressing remorse, US Army Spc. Jeremy C. Sivits pleaded guilty Wednesday in Ba

to abusing detainees at the Abu Ghraib detention center and was demoted, sentenced 

military prison, and expelled from the Army. The sentence makes him the first US so

martialed in an evolving scandal that authorities say could reach beyond the se

implicated so far.”). See also Hearing Scheduled for Pfc. Lynndie England on Pri

Charges, Lawyer Says, THE ASSOCIATED PRESS, May 28, 2004 (noting that “Army P

who appeared in Abu Ghraib prison photographs pointing at Iraqi prisoners’ g

holding a leash attached to a detainee, will face a military court hearing known as an 

scheduled for June 21–25, at Fort Bragg, North Carolina. The Article 32 is a proce

military prosecutors present evidence and a judge decides whether to go forward w

martial. It is similar to a civilian grand jury. England is one of seven soldiers fac

charges in the Abu Ghraib prison scandal. England is charged with assaulting Iraq

conspiring with Spec. Charles Graner Jr. to mistreat the prisoners and committing 

act by forcing prisoners to masturbate.”), available at http://ap.tbo .com/a

MGBOZ4HGSUD.html.

105. See, e.g., Geneva Convention (III), supra note 67, art. 84 (authorizing trial by 

when such courts have jurisdiction over “the particular offense alleged to 

committed”). See also Yingling & Ginane, supra note 89 (arguing that Geneva 

Supreme Court’s decision in Yamashita approving differing treatment of POWs 

service members “for a like offense”).

106. The War Crimes Act of 1996, 18 U.S.C. § 2441 (war crimes); 18 U.S.C. § 371 (co

107. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-

110 Stat. 1214, 1291–94 (codified at 18 U.S.C. § 2332b)(defining the charge of “mate

to terrorism”).

108. The War Crimes Act, supra note 106, at § 2441(c).

109. Id. at § 2441(b).

110. Id.

111. See 10 U.S.C. § 802 (prescribing that “prisoners of war in custody of armed 

subject to the UCMJ).

112. See MCM, supra note 57.

113. Id.

114. See, e.g., U.S. v. Calley, 46 C.M.R. 1131 (1973).

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116. Id.

117. Treating prisoners of war “the same” at a court-martial raises problematic ju

issues as well. For example, the UCMJ limits its jurisdiction over US armed forc

committed after the member is under military control, and thus has no jurisdictio

enlistment or pre-commission crimes. Because Article 102 requires that prisoner

treated the same way US armed forces are treated, one might argue that a court-ma

jurisdiction over pre-capture crimes.

118. Ex Parte Quirin, 317 U.S. 1 (1942).

119. Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001) (citing Ex Parte Quirin). O

has limited the reach of military commission jurisdiction over US citizens. See Ex Pa

71 U.S. 2 (1866). In Milligan, the Court determined that a US citizen who was not a b

and who resided in a state without active hostilities and where the civil courts we

operating—could not be tried by military commission. Id. These considerations wou

to limit the jurisdiction of military commissions over military members, howeve

(citing accused’s lack of military status as a factor in finding that military commi

jurisdiction).

120. See WINTHROP, supra note 42.

121. Id. (noting that, inter alia, officers’ servants, government detectives, medical 

lieutenants in the revenue service were tried by military commission in the Civil W

122. This would, however, not only create obvious political concerns, it woul

constitutional issues. For example, in response to a defense argument that the Fift

Amendments required trial by jury, the Quirin Court held that the “offenders were 

constitutional guarantee of trial by jury, not because they were aliens but only becau

violated the law of war.” Quirin, supra note 118, at 44. Read broadly, the decis

interpreted as placing all military commission proceedings outside of the 

Constitutional guarantees. Id. at 45 (“We conclude that the Fifth and Sixth Amendm

restrict whatever authority was conferred by the Constitution to try offenses again

war by military commission. . . .”). But there is some risk that a reviewing court may 

more narrowly and find that some constitutional provisions do apply at military c

convened to try US citizens. In the case of a US citizen for example, if the 6th A

Confrontation Clause was found to apply, commission hearsay rules might be r

reflect that right. This would raise the concern, of course, that the trials of prisoners o

no longer be using the “same procedures” as trials of US service members (most o

citizens).

123. Except perhaps in the unique case when a service member was prosecuted f

related activities using either an enumerated violation of the UCMJ or an assim

charged as a violation of Article 134 of the UCMJ.

124. See MCI No. 2, supra note 38 (requiring that the contextual element for each of

read in light of definitions, mandates a war nexus).

125. See Remarks by Alberto Gonzales, Counsel to the President, American Bar 

Standing Committee on Law and National Security, Washington, D.C., Feb. 24, 20

at http://usinfo.state.gov/dhr/Archive/2004/Mar/17-834301.html.

126. Bickel was quoting Sir Lewis Bernstein Namier in an address originally delivered 

Oliver Wendell Holmes Lecture series at Harvard Law School, reprinted in ALEXAN

THE SUPREME COURT AND THE IDEA OF PROGRESS 13 (1970).

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XII

Military Commissions: Constitution

Jurisdictional, and Due Process

Requirements

Jordan J. Paust*

Presidential Power to Create a Military Commission and

Jurisdictional Competence

The President’s power as Commander-in-Chief to set up a military 

sion and the jurisdictional competence of a military commission 

during an actual war within a war zone or a war-related occupied ter

Colonel William Winthrop recognized in his classic study of military law

tary commission . . . can legally assume jurisdiction only of offences c

within the field of command of the convening commander,” and regar

tary occupation, “cannot take cognizance of an offence committed wit

territory . . . . The place must be the theater of war or a place where milita

ment or martial law may be legally exercised; otherwise a military comm

will have no jurisdiction . . . .”2 The military commission set up within t

States during World War II and recognized in Ex parte Quirin3 had be

during war for prosecution of enemy belligerents for violations of the l

that occurred within the United States and within the convening autho

of command—which in that case was within the Eastern Defense Comm

United States Army.4

* Mike and Teresa Baker Law Center Professor, University of Houston.

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Limitations with Respect to Place

What is unavoidably problematic with respect to military commission ju

at Guantanamo, Cuba is the fact that the US military base at Guantana

ther in a theater of actual war nor in a war-related occupied territory,5 a

military commission at Guantanamo will not be properly constituted a

without lawful jurisdiction. Moreover, alleged violations of the laws of w

war in Afghanistan or Iraq clearly did not occur in Cuba. Another proble

spect to prosecution of certain persons in a military commission at Gu

involves an absolute prohibition under the laws of war. Any person wh

prisoner of war and who is captured in occupied territory in Afghanist

must not be transferred out of occupied territory. Article 49 of the Ge

vention Relative to the Protection of Civilian Persons in Time of War

mandates that “[i]ndividual or mass forcible transfers . . . of protecte

from occupied territory . . . are prohibited, regardless of their motive.”

“unlawful deportation or transfer” is not merely a war crime; it is als

breach” of the Geneva Convention.8 To correct such violations of the la

persons who are not prisoners of war and who were captured in occupie

and eventually found at Guantanamo or other areas under US control 

occupied territory should be returned to the territory where they were c

Limitations with Respect to Time

The President’s power and a military commission’s jurisdiction are 

terms of time to a circumstance of actual war until peace is finalized.9 

General Henry Halleck wrote early during the last century, military com

“are established by the President, by virtue of his war power as comm

chief, and have jurisdiction of cases arising under the laws of war,” addin

are war courts and can exist only in time of war.”10 Similarly, in 1865 

General Speed formally advised the President:

A military tribunal exists under and according to the Constitution in time 

Congress may prescribe how all such tribunals are to be constituted, what shal

jurisdiction, and mode of procedure. Should Congress fail to create such tr

then, under the Constitution, they must be constituted according to the l

usages of civilized warfare. They may take cognizance of such offences as the 

war permit . . . . In time of peace neither Congress nor the military can cr

military tribunals, except such as are made in pursuance of that clause 

Constitution which gives to Congress the power “to make rules for the govern

the land and naval forces.”11

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From the Attorney General

s opinion, one can recognize that relevant p

power is tied to a war circumstance and law of war competencies such a

petence of a war-related occupying power to set up a military commis

violations of the laws of war in accordance with the laws of war.

Crimes Triable Before Military Commissions

Since their authority is tied to war powers, military commissions general

risdiction only over war crimes, which are violations of the laws of w

some writers have stated that military commissions have jurisdiction onl

crimes.12 In 10 U.S.C. Sections 818 and 821, Congress has only expressly 

military commission jurisdiction for prosecution of “offenders or offen

statute or by the law of war may be tried by military commissions.” Such 

sional grant of competence, without additional grants of jurisdiction ov

ers or offenses by statute, limits the offenders and offenses that are triab

that the law of war permits to be tried in a military commission. The 

Court has also recognized that when Congress enacted the 1916 Articl

which contained similar language, Congress “gave sanction” to uses of a 

commission contemplated by the common law of war.”13 Section 4(A) o

dent’s 2001 Military Order14 states that accused shall be tried for “offen

by military commission.”15 Thus, one question is whether the law of w

military commission to address crimes other than war crimes.

In practice, some military commissions have addressed other crimes 

ternational law that occurred during war (such as crimes against human

ring during World War II) when, but only when, the military commis

convened in war-related occupied territory.16 A war-related occupying 

tually has a greater competence under the international law of war to ma

and order in the occupied territory and to prosecute various crimes.17 S

national law is a constitutionally based part of the law of the United Stat

that the President is bound faithfully to execute here or abroad in time o

war,18 the President actually has an enhanced power to execute laws o

confer powers on a war-related occupying power to prosecute such crim

gress has also conferred such a competence in 10 U.S.C. Section 821, sin

of war with respect to war-related occupation permits the trial of such 

and offenses. Thus, when the United States is exercising a war-related 

power, a military commission in such territory could prosecute crimes 

war crimes because of a special competence conferred by the law of war c

war-related occupation. Where the United States is not such an occupyi

it is apparent that military commission jurisdiction can be permissible i

of war but will be limited to prosecution of war crimes.

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Again, military commissions at Guantanamo are not within a theate

war-related occupied territory and have no such jurisdiction.20 Even if 

constituted in an actual theater of war such as Afghanistan or Iraq, ques

been raised whether the current list of crimes set forth in Military Comm

struction No. 221 is partly improper because it attempts to list crimes th

prosecutable as war crimes as such despite a statement that the “crime

ments derive from the law of armed conflict, . . . the law of war” and “con

olations of the law of armed conflict or offenses that, consistent with th

law, are triable by military commission.”22 For example, Human Right

stated that the list includes crimes that are not war crimes and tha

prosecutable by military commission must occur during an armed c

which the laws of war apply.23 The list does include some crimes that a

crimes per se; but conduct relevant to some of the crimes, such as “hi

hazarding a vessel or aircraft”24 and “terrorism,”25 could constitute a 

during actual war in a given circumstance and the Instruction requires t

conduct took place in the context of and was associated with armed con

fact, terrorism is not new to the laws of war and some forms of “terrorism

crimes.27 Some crimes on the list can be war crimes if they are committ

persons or property protected from attack or destruction by the laws of w

could involve murder or destruction of property28 if in a given context t

or destruction were war crimes.29 Yet, some of the crimes listed are mer

against the state as such or “pure political offenses”30 and are not war crim

include: “aiding the enemy, spying,31 perjury or false testimony, and obst

justice related to military commissions.”32 The Human Rights First R

correctly notes that definitions of “armed conflict” are too broad with 

the laws of war and that an attempted jurisdictional reach through suc

tion and concepts such as “associated with” an armed conflict are pote

proper.33

Other Constitutional Limitations

General Conferral of Competence by Congress

Some have argued that Congress must authorize the creation of military 

sions and that Congress has not done so with respect to military comm

dressed in the 2001 Military Order of the President. However, as noted 

has generally conferred military commission jurisdiction with respect to 

tion of war crimes in 10 U.S.C. Sections 818 and 821; and it has done so i

general language that existed in the 1916 congressional Articles of War34 

by the US Supreme Court in Ex parte Quirin and In re Yamashita whic

292

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allows such jurisdiction to obtain when a military commission is otherw

erly constituted and is being used in a manner “contemplated by the com

of war,”35 but also incorporates the laws of war by reference as offenses a

laws of the United States whether they are committed by United States 

nationals here or abroad.36 The President expressly mentioned such a c

jurisdictional competence in his 2001 Military Order.37 I do not agree 

gress must do so again in more specific legislation, although it is the case 

gress has not approved the type of military commissions or procedures s

the 2001 Military Order38 or in subsequent Department of Defense (DoD

commission rules of procedure or instructions.

A Violation of the Separation of Powers

Nonetheless, a serious violation of the separation of powers exists with 

the attempt by the President in his 2001 Military Order to preclude any j

view of US military commission decisions39 concerning offenses against 

war and other international crimes over which there is concurrent jur

competence in federal district courts.40 Additionally, under Article I, 

clause 9 of the United States Constitution, Congress merely has power “[

tute Tribunals inferior to the supreme Court” and, thus, tribunals subj

mate control by the Supreme Court.41 For this reason, the con

authorization for creation of military commissions in 10 U.S.C. Section 

essarily subject to the constitutional restraint contained in Article I, 

clause 9 and the President’s attempt to preclude any form of judicial rev

stitutionally improper whether or not a military commission has suppor

eral congressional authorization.42

Problems Concerning Present DoD Rules of Procedure for

Military Commissions

Since 9/11, we have witnessed the deliberate creation of rules of proced

military commissions that would violate human rights and Ge

guarantees43 and can create war crime civil and criminal responsibility fo

rectly participating in their creation and application if the military co

rules are not changed and are utilized.44 We have seen a refusal to even d

names of persons detained and false Executive claims are made before 

and media that human beings have no human rights or Geneva law prote

right of access to an attorney or to their consulate, and no right of access 

of law to address the propriety of their detention without trial.45 Des

mendable efforts by professional military lawyers to stretch the DoD 

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procedure where they can in order to follow the mandate of the Presid

tary Order requiring that all accused have “a full and fair trial,”46 present 

for military commissions would assure denial of the customary and tr

human rights to trial before a regularly constituted, competent, indepen

impartial court;47 to counsel of one’s choice and to effective represent

fair procedure and fair rules of evidence, including the right to confron

examination of all witnesses against an accused (an important due proce

tee that can be violated, for example, by use of unsworn written statemen

sified summaries of evidence, testimony from prior trials or proceedin

forms of hearsay, other testimony from witnesses who do not appear 

military commission, and reports);49 to review by a competent, indepen

impartial court of law;50 and to various other human rights, includin

from discrimination on the basis of national origin (since only aliens will 

to prosecution before the military commissions), rights to equality of 

and equal protection, and “denial of justice” to aliens.51 Relevant custo

man rights to due process are also incorporated through common Artic

Geneva Conventions as minimum due process guarantees for all perso

armed conflict, regardless of their status as combatants or noncombat

whether or not the due process requirements are mirrored elsewh

Conventions.

Clearly, the DoD rules should be changed. Moreover, they should be 

consistently with the President’s requirement of a “full and fair trial” 

possible, since in case of a potential clash between lawful portions of the P

Military Order and subsequent DoD rules of procedure or military comm

structions the lawful portions of the Military Order must prevail.53 Ad

since the Executive is bound by international law,54 the Military Order a

quent DoD rules and instructions should be construed consistently wit

tional legal requirements wherever possible.55 In cases where the Militar

DoD rules or instructions are unavoidably violative of international law

tional law must prevail as supreme law of the United States.56

Conclusion

Military commissions are “war courts” and their jurisdiction is limited i

context and time to a circumstance of actual war and in terms of place t

of war or a war-related occupied territory. Guantanamo Bay, Cuba is no

ater of war or war-related occupied territory and, thus, a military commi

ated there would not have lawful jurisdiction. Some of the crimes that 

charged are also not within the competence of a military commission. 

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violation of the separation of powers exists because the military comm

Guantanamo Bay do not comply with Article I, Section 8, clause 9 of th

stitution, which requires that tribunals be constituted “inferior to th

Court” and, thus, subject to its ultimate control.

Some of the present DoD rules of procedure and instructions for mil

missions do not comply with international law, which is the constitution

supreme law of the United States, and they should be changed. Some 

and instructions have a potential to create violations of international law 

olate the President’s requirement of a “full and fair trial.” They should 

preted consistently with international law or changed if compliance is no

Serious short- and long-term consequences can ensue for the Uni

other countries, United States and other military personnel, and other U

als if violations of human rights and rights under the Geneva Conventi

Violations are unnecessary. They would degrade this country, its values, 

fluence. They can fulfill terrorist ambitions57 and pose serious long-ter

As military officers, we took an oath to preserve and protect the Constit

we are bound to comply with the laws of the United States, not to violate 

them here or abroad even at the order of a President.58

Notes

1. See, e.g., The Grapeshot, 76 U.S. (9 Wall.) 129, 132–33 (1869) (jurisdiction exist

the insurgent power was overthrown”); WILLIAM WINTHROP, MILITARY LAW AND P

836 (2d ed. 1920); Jordan J. Paust, Antiterrorism Military Commissions: Courting 

MICHIGAN JOURNAL OF INTERNATIONAL LAW 1, 5 & n.14, 25 n.70, 26–27 (20

Madsen v. Kinsella, 343 U.S. 341, 348 (1952) (a military commission is proper in a 

occupied enemy territory “in time of war”); Duncan v. Kahanamoku, 327 U.S. 304

(“occupied enemy territory”); id. at 326 (Murphy, J., concurring) (“[o]nly whe

invasion or civil war actually closes the courts”); Coleman v. Tennessee, 97 U.S. 509, 

. . . in the enemy’s country”), 517 (when occupation of enemy territory occurs) (18

2. WINTHROP, supra note 1, at 836.

3. 317 U.S. 1 (1942).

4. See 317 U.S. at 22 n.1. Petitioners had also been charged with war-time espion

Supreme Court merely approved military commission jurisdiction to try violations o

war.

5. See, e.g., Paust, supra note 1, at 25 n.70. See also Rasul v. Bush, 542 U.S. 466, 

(Kennedy, J., concurring) (it is territory “far removed from any hostilities”).

6. Done Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 2516, T.I.A.S. No. 3365, 

DOCUMENTS ON THE LAWS OF WAR 301 (Richard Guelff & Adam Roberts eds., 3

[hereinafter GC or Geneva Civilian Convention]. The Convention applies to 

Afghanistan and Iraq even though the United States cannot be at “war” with al Qa

there or elsewhere and members of al Qaeda can be covered under certain provi

Convention if captured during war in Afghanistan or Iraq. See, e.g., Paust, supra n

295

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y ff 

JOURNAL OF INTERNATIONAL LAW 325, 325–28 (2003).

7. GC, supra note 6, art. 49; see also id., art. 76 (“persons accused of offences shall be 

the occupied country”); Protocol Additional to the Geneva Conventions of 12 Augu

Relating to the Protection of Victims of International Armed Conflicts, June 8

85(4)(a), 1125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra no

471 [hereinafter Geneva Protocol I]; IV COMMENTARY, GENEVA CONVENTION R

THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 278–80, 363 (Jean S. Pict

[hereinafter IV COMMENTARY]; Paust, supra note 1, at 24 n.68. Even if persons are n

“neutral” State and their State of nationality has normal diplomatic relations with th

State, they are protected persons if they are in occupied territory or other territory th

territory of the detaining State, since the exclusion in paragraph 2 in Article 4 on

persons detained in the detaining State. See, e.g., GC, supra note 6, art. 4; IV CO

supra, at 48 (“in occupied territory they are protected persons and the Convention 

to them”); U.S. Department of the Army, Pam. 27-161-2, 2 INTERNATIONAL LAW 13

they are in occupied territory, they remain entitled to protection.”); UK Ministry 

THE MANUAL OF THE LAW OF ARMED CONFLICT 274 (2004) (“Neutral nationals 

territory are entitled to treatment as protected persons under Geneva Convention IV 

not there are normal diplomatic relations between the neutral States concern

occupying power.”) [hereinafter UK MANUAL].

Additionally, rights and duties under the 1949 Geneva Conventions must be ap

circumstances.” See, e.g., GC, supra note 6, arts. 1, 3, 27. Importantly, any detainee 

prisoner of war has certain protections under the Geneva Civilian Convention an

Article 3, which now applies also in an international armed conflict (i.e., there are 

Geneva law that leave a person without any protections). See, e.g., GC, supra note 6, 

16, 27–33; IV COMMENTARY, supra at 18, 58, 595; U.S. Department of the Army F

27-10, THE LAW OF LAND WARFARE 31, ¶ 73, 98, ¶ 247(b) (1956) [hereinafter FM 

MANUAL, supra, at 5, 145, 148, 150, 216, 255; Derek Jinks, Protective Parity and the 

79 NOTRE DAME LAW REVIEW 1493, 1504, 1508–11 (2004); Paust, supra note 1, 

William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Featur

JOURNAL OF INTERNATIONAL LAW 319, 321–22 (2003). Further, the 1949 Geneva C

contain express and implied rights and can be self-executing. See, e.g., Jordan J. Pa

Power To Determine the Status and Rights of Persons Detained Without Trial, 44 

INTERNATIONAL LAW JOURNAL 503, 515–17 (2003). Additionally, they are “ex

congressional legislation in, for example, 10 U.S.C. §§ 818, 821. See, e.g., infra note 

Paust, supra at 517 (re: ATCA and habeas statutes). Moreover, the President has an 

constitutional duty to faithfully execute the law. See, e.g., U.S. CONSTITUTION, art. 

notes 11, 18.

That the United States has been an occupying power in Afghanistan and Iraq is w

See, e.g., United Nations Security Council Resolution 1438, U.N. SCOR, 58th Sess., 

pmbl., U.N. Doc. S/RES/1483 (2003) (addressing UK and US recognitions); Jordan 

US as Occupying Power Over Portions of Iraq and Special Responsibilities Under the L

(May 2003), at http://www.nimj.org/documents/occupation(1).doc; Paust, supra n

n.67.

8. GC, supra note 6, art. 147; IV COMMENTARY, supra note 7, at 280, 599. See 

Protocol I, supra note 7, art. 85(4)(a); Rome Statute of the International Crimina

8(2)(a)(vii) and (b)(viii), U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 INTE

LEGAL MATERIALS 999 (1998).

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commission power is “related to war” and recognizing them as “war courts” that th

“may, in time of war, establish”); In re Yamashita, 327 U.S. 1, 11–13 (1946) (such p

after cessation of hostilities “at least until peace has been officially recognized b

proclamation of the political branch of the Government.”), 20 n.7 (a military com

“war court”) (1946); Ex parte Quirin, 317 U.S. 1, 28 (1942); The Grapeshot, 76 U

129, 132–33 (1869) (permitting jurisdiction “so long as the war continued” and “du

Cross v. Harrison, 57 U.S. (16 How.) 164, 190 (1853) (permitting jurisdiction until 

peace”); 24 Opinions of the Attorney General 570, 571 (1903); 11 Opinions of t

General 297, 298 (1865); JORDAN J. PAUST, M. CHERIF BASSIOUNI, ET AL., INTE

CRIMINAL LAW 309–10 (2d ed. 2000); WINTHROP, supra note 1, at 86 (jurisdiction 

commissions “is determined by the existence and continuance of war”), 831 (jurisd

to the war powers, “exclusively war-court”), 837 (“An offence . . . must have been 

within the period of the war or of the exercise of military government .... [J]uri

cannot be maintained after the date of a peace... .”); DIGEST OF OPINIONS OF 

ADVOCATE GENERAL 1067 (1912); Henry W. Halleck, Military Tribunals and Their Ju

AMERICAN JOURNAL OF INTERNATIONAL LAW 958, 965–66 (1911), reprinted in MI

REVIEW BICENTENNIAL ISSUE 15, 21 (1975); Michael A. Newton, Continuum Crim

Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MIL

REVIEW 1, 15 (1996); Paust, supra note 1, at 5 & n.14, 9, 25 n.70; Committee on Mil

and Justice of the Association of the Bar of the City of New York, Inter Arma Sil

Times of Armed Conflict, Should the Laws be Silent? – A Report on the President’s Milit

November 13, 2001 at 25–26 n.68, 28 (Dec. 2001); SENATE REPORT. No. 64-130, at 40 

a “war court”).

10. Halleck, supra note 9, at 965–66. General Halleck was a general during the Civ

prominent international legal scholar who participated in the creation of the 1863 

on the laws of war.

11. 11 Opinions of the Attorney General, supra note 9, at 297, 298 (1865). Clearly, C

regulate the jurisdiction and procedure of military commissions, but must do so 

with international law and the requirements of international law “are of binding for

departments and citizens of the Government, though not defined by any law of Co

neither Congress nor the Executive can “abrogate them or authorize their infractio

id. at 298–300; Madsen v. Kinsella, 343 U.S. 341, 348–49 (1952); see also Dooley v. U

182 U.S. 222, 231 (1901) (Executive military powers are “‘regulated and limited . . . d

the laws of war’”), quoting 2 HENRY W. HALLECK, INTERNATIONAL LAW 444 (1st ed. 

note 18.

12. See, e.g., Human Rights First, Trials Under Military Order: A Guide to the Fin

Military Commissions 2, 8 (rev. ed. June 2004) [hereinafter Human Rights Fi

available at http://www.humanrightsfirst.org/us_law/PDF/detainees/trials_under

.pdf; Alberto R. Gonzales, Martial Justice, Full and Fair, NEW YORK TIMES, Nov. 30, 

(“The [2001 presidential] order only covers foreign enemy war criminals . . . [th

chargeable with offenses against the international laws of war”). See also Madsen 

supra note 11, at 348–49; Johnson v. Eisentrager, 339 U.S. 763, 786 (1950) (“

commission is a lawful tribunal to adjudge enemy offenses against the laws of war.”

Kahanamoku, 327 U.S. 304, 313–14, 322–23 (1946); 11 Opinions of the Attorney Ge

note 9, at 298 (“They may take cognizance of such offenses as the laws of wa

WINTHROP, supra note 1, at 831, 836–37; Halleck, supra note 9, at 965–66 

jurisdiction of cases arising under the laws of war”); Newton, supra note 9, at 15, 19

297

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395 U.S. 258, 267 (“court-martial jurisdiction cannot be extended to reach any p

member of the Armed Forces . . . no matter how intimate the connection between t

and the concerns of military discipline .... [C]ourts-martial have no jurisd

nonsoldiers, whatever their offense”), 302 (“we deal with peacetime offenses, not wi

stemming from the war power. Civil courts were open. The offenses were committed 

territorial limits, not in the occupied zone of a foreign country.”) (1969); United 

Toth v. Quarles, 350 U.S. 11, 13–14 & n.4 (1955) (ex-service persons are no

prosecution in military courts-martial re: murder, yet the case did not involve co

power to punish offenses against the laws of war). A resolution of the American Bar 

in 2002 recommended that the military commissions prosecute only war crim

Blumenthal, ABA Votes to Favor Curbs on Bush’s Military Tribunals, THE LEGAL INTE

Feb. 5, 2002, at 24, available at http://pirate.shu.edu/~jenninju/CivilPro

ABAOpposesMilitaryTribunalsLawComFeb5.htm [hereinafter ABA Resolution].

13. In re Yamashita, supra note 9, at 19; see also id. at 20 n.7 (a military commissi

court”).

14. Military Order of Nov. 13, 2001, 66 Federal Register 57,833 (Nov. 16, 2001), 

http://www.fas.org/irp/offdocs/eo/mo-111301.htm.

15. Id. § 4(A).

16. See, e.g., PAUST, BASSIOUNI, ET AL., supra note 9, at 288–93. The Supreme Cou

that “jurisdiction of military tribunals is a very limited and extraordinary jurisdic

from the cryptic language of Art. I, § 8,” concerning offenses against the law of nati

Covert, 354 U.S. 1, 21 (1957).

17. See, e.g., GC, supra note 6, arts. 64, 66–68, 71–75, 147; Hague Convention No. IV 

the Laws and Customs of War on Land, Annex, Oct. 18, 1907, art. 43, League of Na

Series vol. XIV (1929), No. 2138, T.S. No. 539, 36 Stat. 2277, reprinted in DOCUME

LAW OF WAR, supra note 6, at 69, 80.

18. See, e.g., U.S. CONSTITUTION, art. II, § 3; JORDAN J. PAUST, INTERNATIONAL LAW 

THE UNITED STATES 7–9, 169–92, 488, 493–94 (2d ed. 2003), and the many cases a

and views of the Founders and Framers cited; Paust, supra note 7, at 517–22; Jord

Executive Plans and Authorizations to Violate International Law Concerning Tre

Interrogation of Detainees, 43 COLUMBIA JOURNAL OF TRANSNATONAL LAW 81

(2005); supra note 11; see also U.S. CONSTITUTION, arts. III, § 2, VI, cl. 2.

19. Concerning the enhancement of Executive power by international law, see, 

supra note 18, at 9, 16, 44–47 n.55, 79, 82, 180, 185, 457, 468–69, 480–81.

20. See Part I A supra.

21. Military Commission Instruction No. 2, Crimes and Elements for Trials 

Commission (rev. ed. Apr. 30, 2003), available at http://www.defenselink.mil/new

d20030430milcominstno2.pdf [hereinafter Instruction No. 2].

22. See id. at 1–2, § 3(A).

23. See Human Rights First Report, supra note 12, at 2, 8–9, 13.

24. In a given case, a hijacking can involve hostage-taking covered under the Gen

Convention. See GC, supra note 6, arts. 3(1)(b), 34. Some might involve cruel o

treatment, and so forth.

25. See Instruction No. 2, supra note 21, at 13–14, § 6(B)(1)–(2). The definitional 

“terrorism” are, however, too broad since they do not require an intent to produce 

intense fear or anxiety but merely an intent to “intimidate or coerce.” See id. § 

Minimum standards of fairness and common sense dictionary definitions require th

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techniques approved by Secretary Rumsfeld and others would be “terrorism” u

definition when they violate laws of war such as those in the Geneva Civilian Conve

note 6, arts. 3, 5, 27, 31–33, 147.

26. See Instruction No. 2, supra note 21, at 13–14, § 6(B)(1)(a)(3) and (2)(a)(4).

27. See, e.g., GC, supra note 6, art. 33; Geneva Protocol I, supra note 7, art. 

BASSIOUNI, ET AL., supra note 9, at 32 (1919 list of war crimes adopted by the Res

Commission of the Paris Peace Conference), 998; Jordan J. Paust, Terroris

International Law of War, 64 MILITARY LAW REVIEW 1 (1974).

28. See Instruction No. 2, supra note 21, at 13–14, § 6(B)(3)–(4).

29. “Murder,” for example, involves the unlawful killing of a human being, which 

the question because some persons, in some contexts, can be lawfully killed during 

example, once any person is “taking no active part in the hostilities” “violence to 

particular murder” of such a person would be both murder and a war crime covered 

Article 3(1)(a) of the Geneva Conventions. See also GC, supra note 6, arts. 32, 147. I

matter whether the perpetrator was “military or civilian.” FM 27-10, supra note 7, a

Yet, is the unlawful killing of one soldier by a fellow soldier that constitutes “mu

domestic law a war crime merely because it happens in a theater of war? Similarly, 

by a noncombatant or unlawful belligerent necessarily a war crime if committed in 

war? Professor Yoram Dinstein has written that an unprivileged belligerent who 

battlefield lacks combat immunity and, therefore, becomes subject to domestic pro

any applicable domestic crimes over which there is jurisdiction, but that the law of 

takes off a mantle of immunity from the defendant, who is therefore accessible to p

for any offense committed against the domestic legal system.” YORAM DINSTEIN, TH

OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 31 (2004)

parte Quirin, 317 U.S. 1, 28–31, 35–37, 44 (1942) (prosecution of combatants who 

combatant operations of sabotage out of uniform in violation of the laws of war

MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC 

(1961); Paust, supra note 6, at 331–32 (regarding combatant immunity).

30. Concerning the concept of “pure political offenses,” see, e.g., PAUST, BASSIO

supra note 9, at 332–33, 367–69.

31. Spying as such is not a war crime. See, e.g., id. at 854; FM 27-10, supra note 7, 

78(c).

32. See Instruction No. 2, supra note 21, at 14–16, § 6(B)(5)–(8). See also Smith 

Johns. 257, 265 (N.Y. Sup. Ct. 1815) (civilian who allegedly was an enemy spy exci

and insurrection during war cannot be detained by the US military for trial in 

tribunal); In re Stacy, 10 Johns. 328, 332 (N.Y. Sup. Ct. 1813) (habeas writ issued 

against a military commander holding a civilian charged with treason in aid of the e

US military did not have jurisdiction despite the alleged threat to national security)

33. Human Rights First Report, supra note 12, at 9–12, addressing Instruction No. 2

21, at 3, § 5(B)–(C). In this regard, it should be noted that although the United State

Afghanistan and Iraq, one cannot be at war with al Qaeda as such. Thus, armed a

Qaeda outside of an actual war, such as those that occurred outside the context of th

Afghanistan between the Northern Alliance and the Taliban or that occurred 

Afghanistan and prior to the war in Afghanistan involving US armed forces tha

October 2001 might be criminal under some laws but cannot be war crimes. See, e.g., 

note 1, at 5–8 & n.16; Paust, supra note 6, at 325–28. However, the fact that a sta

armed conflict cannot exist between the United States and al Qaeda as such does n

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United States engages in such self-defense actions abroad does not create a sta

conflict). See, e.g., Jordan J. Paust, Use of Armed Force against Terrorists in Afghanista

Beyond, 35 CORNELL INTERNATIONAL LAW JOURNAL 533, 534–35, 538–39 (2002).

34. 39 Stat. 619, 653 (Aug. 29, 1916).

35. In re Yamashita, 327 U.S. 1, 19 (1946).

36. See, e.g., Ex parte Quirin, 317 U.S. 1, 28–30 (1942); In re Yamashita, id. at 7–8

States v. Schultz, 1 U.S.C.M.A. 512, 519, 4 C.M.R. 104, 111 (1952); Jordan J. Paust, A

The Case for War Crime Jurisdiction Over Civilians in Federal District Courts, 50 

REVIEW 6, 10–12 (1971); reprinted in 4 THE VIETNAM WAR AND INTERNATIONA

(Richard Falk ed., 1976).

37. See Military Order, supra note 14, para. 1 (“By authority vested in me as preside

Constitution and the laws of the United States of America, including . . . sections 82

title 10 . . . .”).

38. Congress certainly did not do so in its Joint Resolution to Authorize the Use of U

Forces Against those Responsible for the Recent Attacks Launched Against the U

Sept. 18, 2001, Pub. L. No. 107-40, 115 Stat. 224, since there was no mention 

commissions and it was passed nearly two months prior to the President’s Militar

also Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (stating merely that Congr

impliedly authorized the “trial of enemy combatants” covered therein—not that 

forum was authorized or, especially, that any type of military commission or 

operative outside an actual theater of war or war-related occupied territory 

appropriate). For a well-argued view contrary to the view that Congress has general

military commission jurisdiction and that general approval should suffice, see, e

Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribuna

LAW JOURNAL 1259 (2002).

39. See Military Order, supra note 14, § 7(B)(1)–(2). See also US Department 

Military Commission Order No. 1, Mar. 21, 2002, §§ 6 H (4)–(6), 7 B, availab

www.defenselink.mil/news/Mar2002/d20020321ord.pdf. He cannot do so lawful

Paust, supra note 1, at 10–11, 15; Paust, supra note 7, at 518–24; infra note 50.

40. Concerning judicial power and concurrent competence in federal district cou

U.S. Const., Art. III, § 2; 28 U.S.C. § 3231; Paust, supra note 36, at 17–28, and refer

41. See also James E. Pfander, Federal Courts: Jurisdiction-Stripping and the Supr

Power to Supervise Inferior Tribunals, 78 TEXAS LAW REVIEW 1433, 1454–56 (2000) 

provisions of Article I that operate as restrictions on legislative power, the Inferio

Clause underscores the inability of Congress to fashion new courts to displace the co

supremacy of the one supreme court.”).

42. The Supreme Court has already recognized the propriety of habeas review 

detention at Guantanamo. See Rasul v. Bush, 542 U.S. 466 (2004); see also Jord

Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure, 23 

JOURNAL OF INTERNATIONAL LAW 677, 690–94 (2002); Paust, supra note 7, at 517 & 

20 n.67. It is not unlikely that the Court will insist that there be habeas review wit

military commissions if not other forms of review. See also infra note 43.

43. See, e.g., Steven W. Becker, “Mirror, Mirror on the Wall . . .”: Assessing the A

September 11th, 37 VALPARAISO UNIVERSITY LAW REVIEW 563, 580–86 (2003); Paus

1, at 10–18; Paust, supra note 42, at 677–90; Joshua Rozenberg, Law Chief Calls on 

Terror Suspects Fair Trial, THE DAILY TELEGRAPH (London), Sept. 19, 2003, a

Kingdom’s Attorney General Goldsmith identifies some of the British complaints ab

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ygj

Evan J. Wallach, Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?

LAWYER 18, 40, 43–45 (Nov. 2003); see also Michal R. Belknap, A Putrid Pedigre

Administration’s Military Tribunals in Historical Perspective, 38 CALIFORNIA WE

REVIEW 433 (2002); Lord Johan Steyn, Guantanamo Bay: The Legal Black Hole, Twe

FA Mann Lecture, British Institute of International & Comparative Law (Nov. 25, 2

12, 18, available at http://www.nimj.org/documents/Guantanamo.pdf; Jonath

Tribunals and Tribulations: The Antithetical Elements of Military Governance in a 

Democracy, 70 GEORGE WASHINGTON LAW REVIEW 649 (2002); Lawyers Com

Human Rights, Assessing the New Normal: Liberty and Security for the Post–Septemb

States 57–58, 60–61 (2003), available at http://www.lchr.org/pubs/description

AssessingtheNewNormal.pdf; Blair Wants Britons’ Legal Status Resolved, HOUSTON C

Oct. 23, 2003, at A23 (Prime Minister Tony Blair reiterated concerns “about the form 

they [UK nationals] will have under a military commission.”).

44. See, e.g., Paust, supra note 42, at 694; Paust, supra note 1, at 4 n.12, 10 n.18, 28 n.

supra note 43, at 45–46.

45. See generally Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Paust, supra note 7, at 5

addressing numerous cases recognizing judicial power to review Executive or milita

id. at 520–24). See also White House Counsel Alberto R. Gonzales, Memorand

President (Jan. 25, 2002), available at http://www.msnbc.msn.com/id/4999148/site

John Yoo & Robert J. Delahunty of the Office of Legal Counsel, Department 

Memorandum for William J. Haynes II, General Counsel, Department of Defense (J

available at http://www.msnbc.msn.com/id/5025040/site/newsweek.

46. See Military Order, supra note 14, § 4(C)(2).

47. See, e.g., Paust, supra note 42, at 687–88; A. Christopher Bryant & Carl To

Revisited, 2003 WISCONSIN LAW REVIEW 309, 360–61 (2003); Mark A. Drumbl, V

Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the Interna

Order, 81 NORTH CAROLINA LAW REVIEW 1, 10–12, 58–59 (2002); Harold Hong

Case Against Military Commissions, 96 AMERICAN JOURNAL OF INTERNATIONAL LA

39 (2002); Detlev F. Vagts, Which Courts Should Try Persons Accused of Terrorism?, 14 

JOURNAL OF INTERNATIONAL LAW 313, 322 (2003); see also NORMAN ABRA

TERRORISM AND CRIMINAL ENFORCEMENT 330–31 (2003); Justice Sandra Day 

Vindicating the Rule of Law: The Role of the Judiciary,2CHINESE JOURNAL OF INTE

LAW 1, 3–4 (2003), quoting the Declaration of Rights of the Massachusetts Constitu

29, which “framed by John Adams, boldly declares, ‘It is the right of every citizen to 

judges as free, impartial and independent as the lot of humanity will admit,’” 

“Individual judicial independence is necessary if each case is to be resolved on its 

according to the facts and the law.”

48. See, e.g., Paust, supra note 42, at 690; Human Rights First Report, supra note 12

18, 21–24; supra notes 43, 47.

49. See, e.g., Koh, supra note 47, at 339; Paust, supra note 42, at 678–79, 688–89; Hu

First Report, supra note 12, at 3–4, 27–28, 30; Military Defense Attorneys and Co

Office of Military Commissions, letter to the United States Senate Armed Forces an

Committees (June 1, 2004), available at http://pegc.no-ip.info/omc_def_letter_200

supra notes 43, 47.

50. See, e.g., Paust, supra note 42, at 678–79, 685–86; Human Rights First Report, su

at 4, 31–32; supra notes 43, 47. The Executive’s military “Review Panel” may no

conviction, reverse or amend a decision, or order dismissal or release of the perso

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yg )() y 

recommendation as to disposition, or (b) return the case to the Appointing Authorit

proceedings” if a majority of the panel decides that “a material error of law occurre

Commission Order No. 1, supra note 39, § 6(H)(4). Further, only one member of the 

be a lawyer, since only one member must “have experience as a judge,” and no me

panel must have been a judge with expertise in the laws of war, international law mo

or criminal law more generally. See id. § 6(H)(4). The final “decision” in such a “

“recommendation” system will be made by the Secretary of Defense or the Pres

6(H)(2), (6). See also Reid v. Covert, 354 U.S. 1, 36 n.66 (1957), quoting Alexande

THE FEDERALIST NO. 78 (“Liberty can have nothing to fear from the judiciary alone

have everything to fear from its union with either of the other departments . . . .”).

51. See, e.g., Paust, supra note 1, at 10–17; Paust, supra note 42, at 678–85 

impermissible discrimination on the basis of national origin, denial of equal access t

to equality of treatment and equal protection of the law, “denials of justice” in 

customary international law, and denial of the human right to fair, meaningful a

judicial review of the propriety of detention).

52. See, e.g., GC, supra note 6, art. 3(1)(d); Paust, supra note 7, at 511 n.27, 514 & 

supra note 42, at 678 n.9.

53. See Military Commission Order No. 1, supra note 39, §§ 7(B) and 8.

54. See, e.g., supra notes 11, 18.

55. Even federal statutes must be interpreted and applied consistently with intern

See, e.g., Cook v. United States, 288 U.S. 102, 120 (1933); The Charming Betsy, 6 U.S

64, 117–18 (1804); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801); 11 Opinions of t

General, supra note 11, at 299–300; 9 Opinions of the Attorney General 356, 362–63 (

. . . must be made and executed according to the law of nations”); PAUST, supra no

120, 124–25 ns.2–3.

56. See, e.g., supra notes 11, 18.

57. See also Adam Roberts, Role of Law in the “War on Terror”: A Tragic Clash, 97 PR

OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW 18, 19–20 (2003); Steyn, supra 

(“unchecked abuse of power begets ever greater abuse of power”). Terrorists m

produce governmental overreaction that sends a message that the targeted governm

follow law, thus deflating its legitimacy and possibly enhancing terrorist recruiting, s

influence or deflating for some the effects of the illegality of terrorist tactics. Claim

“war” with certain non-State terrorists might also unwittingly enhance their statu

other terrorist purposes.

58. See United States v. Lee, 106 U.S. 196, 219–21 (1882); supra notes 11, 18; see 

Covert, 354 U.S. 1, 5–6, 12, 35 n.62 (1957) (our government is one of delegated pow

that is entirely a creature of the Constitution and has no power or authority to act he

inconsistently with the Constitution); Paust, supra note 1, at 19–20. As the Sup

reminded in United States v. Lee:

No man in this country is so high that he is above the law. No officer of the law 

that law at defiance with impunity. All the officers of the government, from the 

to the lowest, are creatures of the law, and are bound to obey it.

It is the only supreme power in our system of government, and every man 

accepting office participates in its functions is only the more strongly bound to 

to that supremacy, and to observe the limitations which it imposes upon the exe

the authority which it gives.

106 U.S. at 220.

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XIII

Military Commissions—Kangaroo Cou

Charles H. B. Garraway*

The decision to use Military Commissions to try persons held at Gu

has attracted massive worldwide opposition.1 Unfortunately, mu

been caught up in the increasing political vitriol that seems to be m

whole question of the so-called “war on terror.” This is marring what s

genuine legal debate. The advent of the International Criminal Court (

its emphasis on the doctrine of “complementarity”2 should have encoura

to discuss how best crimes arising out of armed conflict should be dealt 

domestic level. Is it appropriate in the 21st century to use military just

way or should “democracy” require a civilian response? Instead the iss

come polarized so that people tend to be either “for” military commiss

support them without criticism—or alternatively “against”—in which 

ing is good about them at all.

Part of the difficulty is the confusion over the term “war on terror

“armed conflict” to which the laws of armed conflict apply? Is it a mat

enforcement, in which case the laws of armed conflict may be irrelevant

new form of conflict to which the law of armed conflict can only be applie

ogy? Traditionally terrorism has been dealt with in the law enforcem

digm—and to a large extent still is.3 In the view of most, Afghanis

traditional armed conflict with the Taliban being the de facto Governm

* Senior Research Fellow, British Institute of International and Comparative Law.

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country. As such, the law of armed conflict applied to that conflict.

Th

area is when attempts are made to expand that conflict into a worldwide 

against “terrorism” in general and Al Qaeda in particular.

The attempt to extend the law of armed conflict into what has traditio

a law enforcement area has been confusing and, frankly, badly handled. 

been a lack of clarity in the pronouncements on law by members of the U

istration that has made it very difficult to ascertain what the official p

There has been a degree of “pick and mix” about the application of the l

the impression is given that the United States is selecting those parts th

purpose and rejecting those as “unsuitable” that do not. However unfa

sessment may be, there is no doubt that this is how it is seen in many p

world including among traditional allies. The campaign against terror 

some difficult legal issues which both domestic criminal lawyers and int

lawyers have to come to terms with, but a unilateral reinterpretation of t

paradigms is not necessarily the right way forward.

Further confusion is caused by the use of the loose term “unlawful co

It implies that those who take part in hostilities become “combatants

their status as civilians.5 The argument is put forward that it is ridicul

scribe a civilian who has chosen to take up arms as anything other than a 

ant.” However, this is not necessarily as ridiculous as it may sound. It i

that only certain persons are allowed to take part in hostilities. They are t

der the law of armed conflict “combatants.”6 Those who are not so e

termed “civilians” who have protected status.7 If these “civilians” chos

direct part in hostilities, they do not change status, any more than a wou

dier or prisoner of war changes status. They lose their protection.8 Less co

the old fashioned—but, coming from Richard Baxter—well establi

“unprivileged belligerent.”9 Such people, in taking part in comba

“unprivileged.” That means that they have no combatant immunity and 

even acts that to a combatant would be legitimate under the law of arm

are criminal in so far as the unprivileged belligerents are concerned. Th

ant who tries to masquerade as a civilian remains a “combatant,” and wh

be committing perfidy, he does not become an “unlawful civilian.”

This background has helped to hide what may be the real issue here—

in the modern world for the concept of military justice. The United Stat

Kingdom and some other nations, mainly of the common law tradition

established military justice systems going back centuries. Based on civil p

but modified to meet the peculiar requirements of service life, military j

is applied in those nations is often fairer than the ordinary domestic cri

tems that it replicates. For example, in the United Kingdom, there was 

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requirement for a judge in a domestic criminal trial to ensure that an acc

understood the nature of his plea if he pleaded guilty. In military courts

procedure was followed to ensure that the accused did understand t

quences of his plea and it was not uncommon for guilty pleas to be refu

not guilty plea entered. Ironically, many of these safeguards are being a

in the attempt to reflect more closely the civilian system.10

However, it has to be admitted, this is not the norm worldwide. S

military justice has got a bad name through the misuse of the system by 

regimes both military and civilian. Could a military court in Stalin’s R

Argentina under the junta be trusted to administer justice? It is becau

abuses that military courts are looked at askance by so many. The U

Rights Committee has criticized military jurisdiction, particularly ove

stating that the use of military courts to try civilians “could present ser

lems as far as the equitable, impartial and independent administration o

concerned. Quite often the reason for the establishment of such courts i

exceptional procedures to be applied which do not comply with normal 

of justice.”11 The European Court of Human Rights may soon be asked t

just that issue in relation to UK courts-martial in the case of Alan Ma

year-old dependent who was tried for murder by a general court-mart

many in 1995.12 The UK system has had to undergo radical overhaul in t

years because of human rights concerns, but in none of the cases that ha

Strasbourg have the Court found an actual injustice.13 The Court has made 

on the basis that justice must be seen to be done and thus reliance on the 

of those who run the system is not sufficient. The Convening Officer—“C

Authority” in US terminology—has been abolished, not because of an

his powers but because of the perceived possibility of abuse. Military ju

had survived in the Navy though the Army and Air Force had used civil

advocates” since 1948, were abolished in 2003 for the same reason.14 

has swung full circle.

It was not always so. At the end of World War II, military justice was 

most appropriate means of dealing with cases in a wartime situation. Pr

war were made subject to the disciplinary laws of the forces of the 

Power15 and civilian court proceedings were to be the exception rathe

rule.16 The penal laws passed by an Occupying Power could be enfor

“properly constituted, non-political military courts” of the Occupying P

is interesting how military courts were then seen as essentially apolitical. 

of war crimes, the majority of cases were tried by military courts set up by 

powers.18 Although, at Nuremberg itself, the trials were conducted prima

as the Western powers were concerned, by civilian lawyers and judges, 

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military experience and the military played a major role. Nuremberg was

the exception, not the rule.

On June 14, 1945, by Royal Warrant, Regulations for the Trial of War 

were established by the United Kingdom.19 These established “Military C

this purpose and a “war crime” was defined as “a violation of the laws and 

war committed during any war in which His Majesty has been or may be 

any time since the 2nd September 1939.” Procedures were established an

evidence laid down. This Royal Warrant is still extant today though it is i

need of updating. The United Kingdom War Crimes Act of 1991,20 desig

able the Government to deal with the legacy of World War II war crimes 

of the opening up of the records in Eastern Europe, was, strictly speaking

sary except in so far as it granted jurisdiction to civil courts, as military 

ready had jurisdiction under the Warrant.

Even today, in many European nations, “military courts” have the p

risdiction in war crimes cases. This is so, for example, in Switzerland.21 

this is not always a fair comparison as much “military justice” is now carr

the civilian authorities, occasionally using special courts or lawyers wh

servist posts.

There is nothing inherently wrong with military courts, commissio

nals—call them what you will—as a forum for dealing with cases of this n

therefore necessary to examine the commissions in a more technical man

than attacking them as a matter of legal principle.

The Presidential Military Order of November 13, 200122 caused co

alarm due to the starkness of its terms. For example, Section 1(f) stated 

not practicable to apply in military commissions under this order the 

of law and the rules of evidence generally recognized in the trial of crim

in the United States district courts.” The concern was not so much wit

evidence” as with “principles of law.” These concerns were compound

limitation of the Military Order to non-US citizens.23 This is not the p

into the controversy of prisoner of war status and the possible conflict 

cle 82 of the Third Geneva Convention. However, it would appear fro

that in the case of US citizens, the impracticability referred to in Section 

not exist! Why the mere fact of nationality should affect the issue of pra

is not explained. While it may be argued that US citizens are entitled to 

stitutional rights of which they cannot be deprived, this is not a matter 

cability” but one of law.

Other provisions of the Order also gave cause for concern, includin

provisions on evidence,24 the lack of any judicial appellate structure25 a

clusion of the supervisory jurisdiction of the civil judiciary. 26 In fac

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provisions appear in the British Royal Warrant of 1945. The problem, ho

primarily in the failure to appreciate that the language of 1945 may not 

be appropriate in the 21st century, some 60 years later. The world has m

particularly in the field of human rights, a field in which the United 

played a major part. One only has to consider the role of Eleanor Roose

drafting of the Universal Declaration of Human Rights.27 The tempta

back to old precedents is enormous, but in this case, it undoubtedly caus

essary problems. Those assigned to translate the Presidential Order into 

ders and Instructions were then faced with marrying up old language wit

day commitments and starting from a position of antagonism by civil ri

nizations that might, with more care, have been prevented. Many of the 

were easily foreseeable and could have been forestalled with a bit more 

The Military Commission Order No. 1 of March 21, 200228 and the s

Instructions29 were greeted almost with a sense of relief in some circles

peared to row back to a considerable extent from the blunt language of 

dential Order. In fact, they did not. They merely expressed that Order 

more acceptable language for the 21st century. After all, it was the Presid

der that was the overall authority for the subsequent Orders and Instru

they thus had to be consistent with it. Nevertheless, there was, and stil

criticism of the structures proposed.

This will not be a detailed analysis of the Orders or Instructions, nor a

of them under US domestic law. That is better carried out by others. T

will, however, look at some of the key issues of contention and attempt 

international perspective to them. This means that it will not examine th

jurisdiction including the crimes themselves and the elements of crime

primarily an issue governed by US law. It is ironic that many of the ele

based on those prepared for the ICC and, where there are changes, thes

specifically designed to meet the different nature of the law. This is a US 

court—not an international one. This is particularly true in the decision 

ements for the inchoate crimes.30 This would have been far too difficu

carry out for the ICC given the differences between legal systems. Desp

couragement, the Preparatory Commission decided not to go down that 

route. However, here, in a court operating under a single domestic legal s

law, there is merit in drafting such elements. However, these elements s

necessarily be taken as a framework for other jurisdictions where differen

tive law applies, particularly civil law jurisdictions where some of the com

terms are simply not known.31

While on elements, one particular innovation is noteworthy—the sp

mand responsibility between knowledge before the fact and knowledg

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fact.

The former encompasses liability for the offenses committed, the 

separate offense of failing to act. This is a step in the right direction and 

partial answer to the problems arising from the ICTY Appeals Chamber d

Hadzihasanovic.

33

Criticisms have centered on the evidential provisions, the role of th

and the appellate structure. Each will be looked at in turn.

On evidence, the Presidential Order provided that the Commissi

admit

Such evidence as would, in the opinion of the presiding officer of the 

commission (or instead, if any other member of the commission so requests at 

the presiding officer renders that opinion, the opinion of the commission ren

that time by a majority of the commission) have probative value to a re

person.34

This has been substantially tempered firstly by the Military Commiss

No. 1 itself which required that the Presiding Officer be a lawyer (to b

judge advocate of any United States armed force”),35 as well as laying dow

more detailed evidential admissibility criteria.36 It is still unfortunate tha

sion of the Presiding Officer can be overruled by lay members but this w

in the UK court-martial system, until comparatively recently. Howeve

trends are to leave issues of admissibility of evidence in the hands of a j

separating the role of judge and juror.

The criticism of the scope of permitted evidence would seem to be w

mark. In domestic jurisdictions, particularly those of a common law na

are extensive—and often illogical—rules on evidence admissibility.37 

are much more relaxed in civil law jurisdictions and this is apparent a

rules governing international courts. Article 69(3) of the ICC Statute, fo

gives the Court “the authority to request the submission of all evidence t

siders necessary for the determination of the truth.”38 This extremely br

sion is countered slightly by Article 69(4) which allows the Court t

admissibility “taking into account, inter alia, the probative value of the 

against any prejudicial affect. While the Rules of Procedure address m

dealing with admissibility questions,39 they do not detract from the brea

admissibility provisions in the Statute itself. Compared to that, the pro

the Military Commissions are comparatively modest!

The second area of concern is the provision of defense counsel. Artic

the International Covenant on Civil and Political Rights refers to “cou

own choosing.”40 It also refers to the right “to have legal assistance assign

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in any case where the interests of justice so require, and without payment 

any such case if he does not have sufficient means to pay for it.”41 In so 

latter requirement is concerned, it is met by the provisions in Military Co

Order No. 1, that “Detailed Defense Counsel” will be assigned “for ea

Such counsel are free of charge. Criticism is made of the fact that such c

all military judge advocates. However, this appears to be merely anoth

the distrust of military justice that pervades the world today (and in par

human rights community). Military judge advocates assigned to be defe

sel are fiercely independent as they have already indicated.43 However, 

risk of coming under pressure from within the chain of command. It is 

the possibility of such influence that human rights courts have discourag

of military defense counsel. The concern is therefore one of presentat

than substance. It does not matter how independent military defense co

they will not be seen to be so by vast swathes of the community—and part

the Muslim world.

Of greater concern is the requirement to provide “counsel of his own c

It is true that, subject to certain requirements, the accused can select 

judge advocate.44 However, his choice outside that is limited. He may 

services of a civilian attorney “at no expense to the United States Govern

that attorney must himself fulfill a number of requirements including b

citizen and having been determined “to be eligible for access to informat

fied at the level SECRET or higher.”45 In addition, Military Commissio

tion No. 546 required such counsel to sign an affidavit placing severe restr

his movements, his power to seek assistance, and even on his right to co

communications with his client.47 Such restrictions would be unaccepta

British lawyer and the National Association of Criminal Defense Lawyer

ethics opinion “that it is unethical for a criminal defense lawyer to repre

son accused before these military commissions because the condition

upon defense counsel before these commissions make it impossible for 

provide adequate or ethical representation.”48 This resulted in some am

of these rather draconian provisions, in particular the requirement th

pay for their own security clearance and, though here the changes are am

on the monitoring of attorney-client communications. Nevertheless, t

the “Civilian Defense Counsel” is very definitely subordinate to the m

tailed Defense Counsel. He can be excluded from closed sessions and 

from obtaining any information on what went on during such session

whatever reason, it was decided to hold the complete trial in closed sessio

of the civilian defense counsel would effectively be denied completely.

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The balance between security considerations and the requirements o

are always difficult and it is clear that an attempt has been made to f

through these two conflicting interests. However, it must be said that it 

promise that, on paper, can satisfy nobody. Only time will tell if the eff

National Association of Criminal Defense Lawyers and the Ame

Association50 bear fruit sufficiently so that the civilian defense counsel a

a genuine role to play. While presiding officers, in accordance with their 

undoubtedly strive diligently to ensure that the balance between fairne

needs of security is maintained, at present, the risk of abuse is too gr

would almost have been better to bite the bullet and dispense with the c

fense counsel altogether. This would undoubtedly lead to an outcry fro

rights activists but in some way would be more honest than introducin

option hedged around with so many restrictions as to make it impracti

The third area of concern is the appellate structure. The Presidential 

quired the “submission of the record of trial, including any conviction o

for review and final decision by me or by the Secretary of Defense, if so d

by me for that purpose.”51 The exclusion of the jurisdiction of the US c

further illustrated that the appellate process would not be through the jud

through the Executive. Again Military Commission Order No.1 sought 

rate this by the insertion in the process of a “Review Panel” at least one m

which “shall have experience as a judge.”52 There have been further dev

including the appointment of senior civil judges to the Review Panel 

given two-star rank for the purpose!).53 The “Review Panel” has been 

hanced powers which do seem to go far beyond the original terms of th

The original provisions were again based on old precedents. The Bri

Warrant of 1945 provides for petitions to the Confirming Officer (the eq

the “Appointing Authority” under Military Commission Order No. 1) 

ence to the Judge Advocate General “for advice and report.”54 Beyond th

evant authorities were the Secretaries of State (in this case for War an

Affairs) or various other designated officials, principally High Commis

occupied territory.55 This reflected the procedures adopted under milit

generally. However, again times have moved on as has been reflected in s

modifications introduced.

The International Covenant on Civil and Political Rights gives the rig

eryone convicted of a crime” to have his conviction and sentence “revi

higher tribunal according to law.”56 In 1951, the United Kingdom intro

Courts Martial Appeals Court, from where appeal lay to the House of L

there are similar appeal provisions applicable in the United States milit

system.58 Here, there was initially a regression back to the position wher

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structures are wholly within the discretion of the Executive. Even befor

the United Kingdom, the military justice system was subject to control b

ian courts through the medium of the prerogative orders, even if that p

rarely used. However, here, even that supervisory jurisdiction has been 

It is worthy of note that in all the international tribunals established 

years to deal with war crimes and similar offenses, a judicial appellate str

been built into the system.59 The days of the Executive having the final s

cial matters, or even a single judicial body with no right of appeal, have 

United States would have been the first to protest if US citizens had fac

executive-controlled processes in the former Soviet block—and rightly s

good for the goose is good for the gander and the argument of “Trust me

good guy” no longer washes.

To conclude, this article has looked at three particular areas of conc

are others but these are the ones that have attracted the most oppositio

fortunate that the Executive chose originally to revert to precedents fro

half of the last century, appearing to ignore the developments in proce

the last sixty years, many championed by the United States. The problem

If these proceedings are commenced in a manner that, rightly or wrongly

unfair, the effects could be incalculable. There is already a growing view

larly in the Muslim world, that these Commissions are designed for c

and that nobody can receive a fair trial before them. That is wrong. Mili

advocates of all armed services in the United States are proud of their 

and will do their best to ensure that justice is done. Military defense co

military judges will act “without fear or favor” and trials will be conduc

highest standards of military justice. However, there is more to it than tha

a political battle to be won and it is here ground is being lost. While grea

made on the original Order and its deficiencies, there has been little pub

side the United States of the ameliorating changes that have been introd

The authorities have made great efforts to listen to criticism and to se

those criticisms within the parameters laid down. It is a great tribute to a

volved that they have not “hunkered down” and sought to defend their 

tions. However, the damage has been done by the failure to presen

properly. There has been an apparent lack of transparency in the process 

affected the way outsiders have looked at it.

Whether or not anybody accepts such a concept as a “war on terror

unite in the view that there is a campaign to be fought and that it must 

least in part, in the hearts and minds of ordinary people. If convicting a f

of crimes by what are seen as dubious means simply antagonizes hundre

ers, driving them into the hands of extremist organizations, the end wil

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than the beginning. The United States has been a beacon of liberty and d

for most of its existence. It would be unfortunate if the light from that b

obscured by the apparent pursuit of short-term advantage at the expen

term security.

Notes

1. See Human Rights Watch letter to President Bush of November 15, 2001, on 

Rights Watch website under title “US: New Military Commissions Threaten Rights, C

available at http://www.hrw.org/press/2001/11/miltribsltr1115.htm. See also the 

speech by the United Kingdom Attorney General, Lord Goldsmith, on June 25, 20

under the title “UK Alarm over Guantanamo Trials,” available at http://www.globa

intljustice/general/2004/0625alarm.htm.

2. “Emphasizing that the International Criminal Court established under this Sta

complementary to national criminal jurisdictions.” Preamble to the Rome Sta

International Criminal Court, July 17, 1998, UN Doc. A/CONF. 183/98 (1998), 

http://www.un.org/law/icc/statute/romefra.htm [ICC Statute].

3. See, e.g., the European Commission action paper in response to the terrorist act

Memo 04/66, March 18, 2004, available at www.statewatch.org/news/2004/mar/Com

Plan.pdf.

4. “Whether or not international humanitarian law, or the law of armed conflict

from September 11, it clearly began to apply once the US started bombing Afghan

Cerone, Status of Detainees in International Armed Conflict, and their Protection in t

Criminal Proceedings, ASIL Insights, January 2002, available at http://www.asil.o

insigh81.htm.

5. See Yoram Dinstein, Unlawful Combatancy, 32 ISRAEL YEAR BOOK ON HUMAN R

248 (2002).

6. “Members of the armed forces of a Party to a conflict (other than medical pe

chaplains . . . ) are combatants, that is to say, they have the right to participate 

hostilities.” Protocol Additional to the Geneva Conventions of 12 August 1949, a

to the Protection of Victims of International Armed Conflicts, June 8, 1977, 

reprinted in DOCUMENTS ON THE LAWS OF WAR 444 (Adam Roberts & Richard Gu

ed. 2000).

7. See id., art. 50(1).

8. See id., art. 51(3).

9. See Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas and S

BRITISH YEAR BOOK OF INTERNATIONAL LAW 321, 345 (1951).

10. See Rule of Procedure 42, Rules of Procedure (Army) 1972 (S.I. 1972/316 as 

These Rules were abrogated in the reforms introduced by the Armed Forces Discipl

(c. 46) as a result of rulings made by the European Court of Human Rights.

11. UN Human Rights Committee, General Comment 13, Article 14 (Twenty-f

1984), at ¶ 4, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb7224

12563ed0049dfbd?Opendocument.

12. Martin’s appeal against conviction was rejected by the Judicial Committee of t

Lords on December 16, 1997. The judgment is available at http://www.publications

.uk/pa/ld199798/ldjudgmt/jd971216/mart01.htm.

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py g

Case No: 22107/93, decided February 25, 1997, at paragraph 84, upholding the 

Commission that “no causal link had been established between the breach of the 

complained of by the applicant and the alleged pecuniary damage, and . . . that it was 

to speculate as to whether the proceedings would have led to a different outcom

fulfilled” Convention requirements, available at http://cmiskp.echr.coe.int/tkp1

?item=1&portal=hbkm&action=html&highlight=Findlay%20%7C%20United%20

ingdom&sessionid=557312&skin=hudoc-en.

14. See Grieves v United Kingdom, ECHR Case No: 57067/00 decided Decemb

available at http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=557429&skin

&action=request.

15. Article 82 of the Geneva Convention Relative to the Treatment of Prisoners of W

1949, 75 U.N.T.S. 135,reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 6

[hereinafter Geneva Convention III] states that “A prisoner of war shall be subject 

regulations and orders in force in the armed forces of the Detaining Power.”

16. Article 84 of Geneva Convention III states, “A prisoner of war shall be trie

military court, unless the existing laws of the Detaining Power expressly permit the c

try a member of the armed forces of the Detaining Power in respect of the partic

alleged to have been committed by the prisoner of war.” Id.

17. See Geneva Convention Relative to the Protection of Civilian Persons in Time o

12, 1949, art. 66, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 6, 

[hereinafter Geneva Convention IV].

18. See CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRI

531–34 (2d. rev. ed., 1999).

19. See The Law of War on Land being Part III of the Manual of Military Law [herei

Part III], The War Office, 1958, at 347. An excellent account of the application of t

can be found in Tony Rogers, War Crimes Trials under the Royal Warrant: British Pr

1949, 39 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 780 (1990).

20. War Crimes Act 1991 (c. 13), available at http://www.hmso.gov.uk/acts/acts

_19910013_en_1.htm.

21. See, for example, the case of G before the Military Tribunal of Division I,cited in 

LAW PROTECT IN WAR? 1255 (Marco Sassoli & Antoine Bouvier eds., 1999).

22. Military Order of November 13, 2001 on Detention, Treatment, and Trial of C

Citizens in the War Against Terrorism, 66 FEDERAL REGISTER 57,833 (Nov. 16, 200

at http://www.fas.org/irp/offdocs/eo/mo-111301.htm.

23. Id., sec. 2(a).

24. Id., sec. 4(3).

25. Id., sec. 4(8).

26. Id., sec. 7(b).

27. “A key figure in the evolution of the Universal Declaration was Eleanor Ro

widow of President Franklin Roosevelt, who had died in 1945. She was selected to be 

representative to the commission by her husband’s successor, President Harry Trum

Pitts, The Noble Endeavor, 3 USIA ELECTRONIC JOURNAL No. 3 (October 1998), 

http://usinfo.state.gov/journals/itdhr/1098/ijde/noble.htm.

28. Military Commission Order No. 1, Procedures for Trials by Military Com

Certain Non-United States Citizens in the War Against Terrorism, Mar. 21, 2002, 

http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf.

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y 

http://www.defenselink.mil/news/commissions.html.

30. See Section 6(C) of Military Commission Instruction No. 2, on Crimes and E

Trials by Military Commission, available at id.

31. For example, the provisions relating to “conspiracy” in Section 6(C)(6) 

Commission Instruction No. 2. Id.

32. See id. § 6(C)(3) and (4).

33. Prosecutor v Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura. ICTY C

01-47. Decision of the Appeal Tribunal on Interlocutory Appeal Challenging Jur

Relation to Command of 16 July 2003, available at http://www.un.org/icty/hadz

decision-e/030716.htm.

34. See Military Order of November 13, 2001, supra note 22, § 4(c)(3).

35. See Military Commission Order No. 1, supra note 28, § 4(A)(4).

36. Id., § 6(D).

37. The rule against hearsay in English law has developed in a particularly convolu

over centuries. “There can be little doubt that the rule excluding hearsay is the most c

the rules of evidence, posing difficulties for courts, practitioners and witnesses alike.

from Consultation Paper No. 117 of The Law Commission for England and W

Hearsay Rule in Civil Proceedings Part V – Provisional Conclusions, ¶ 5.1, availab

www.lawcomm.gov.je/appendix _a_bestevidence_rule_paper.htm.

38. ICC Statute, supra note 2.

39. See Chapter 4, ICC Rules of Procedure and Evidence, UN Doc. PCNICC/20

(2000), available at http://www.un.org/law/icc/prepcomm/report/prepreportdocs.h

40. The full wording is: “In the determination of any criminal charge against him

shall be entitled to the following minimum guarantees, in full equality:

. . . .

(b) To have adequate time and facilities for the preparation of his defense 

communicate with counsel of his own choosing;”

. . . .

See Article 14(3)(b), International Covenant on Civil and Political Rights, Dec. 1

U.N.T.S. 171, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm.

41. Id., art. 14(3)(d).

42. Military Commission Order No. 1, supra note 28, § 4(C)(2).

43. See, for example, the unclassified motions cited on the Department of Defe

Available at http://www.defenselink.mil/news/Aug2004/commissions_motions.htm

44. See Military Commission Order No. 1, supra note 28, § 4(C)(3)(a).

45. Id., § 4(C)(3)(b).

46. Military Commission Instruction No. 5, Apr. 30, 2003, available at http://ww

news/Feb2004/d20040220milcominstno5.pdf.

47. Id. § 3(A)(2)(e) and Annex B.

48. See NACDL Ethics Advisory Committee Opinion 03-04 (Aug. 2003), availab

www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$

Ethics_Op_03-04.pdf.

49. See Military Commission Order No. 1, supra note 28, § 5(B)(3).

50. The American Bar Association created a Task Force on Treatment of Enemy 

which published a report in February 2003, available at http://news.findlaw.com/h

aba/abatskforce103rpt.pdf.

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y p()()

52. See Military Commission Order No. 1, supra note 28, § (H)(4).

53. See “Military Commission Review Panel Takes Oath of Office,” American F

Service, Washington, September 22, 2004, available at http://www.defenselin

Sep2004/n09222004_2004092207.html.

54. See Regulation 10, Regulations for the Trial of War Criminals, MML Part III, a

note 19.

55. See Regulation 12, id. at 349–350.

56. See International Covenant on Civil and Political Rights, supra note 40, art. 14

57. The current legislation is contained in the Courts Martial (Appeals) Act 1968.

58. The Uniform Code of Military Justice (UCMJ) was enacted on May 5, 1950. Art

UCMJ established the Court of Military Appeals as a three-judge civilian court. Th

the House Armed Services Committee accompanying the legislation emphasized t

Court would be “completely removed from all military influence of persuasion.” Th

became effective on May 31, 1951. In 1968, Congress redesignated the Court as the U

Court of Military Appeals.

59. See, for example, the appellate provisions in relation to the Yugoslav and Rwand

and the International Criminal Court. All available on the UN website at http://ww

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PART VI

THE RIGHT OF SELF-DEFENSE

IN THE GLOBAL WAR ON TERRORISM

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XIV

Using Force Lawfully in the 21st Cent

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

Introduction

War is not a law-free zone. There have always been rules governi

State can legitimately use armed force. In one familiar ancien

in the 12th century BC the Mycenaean Greeks most likely sacked the ci

because it was rich and vulnerable. As summer 2004 moviegoers saw, ho

800 BC the poet Homer felt compelled to clean up the story with a justif

of Trojan perfidy—the kidnapping of a Spartan queen by a Trojan princ

ingly, a more respectable casus belli, rooted in revenge, love and passion

vided in The Iliad1 for what otherwise would have been blatant Greek a

Thus, even in the Age of Heroes, when armed combat was glorified and 

believed to fight side-by-side with men, unalloyed aggression was viewe

ally questionable. The perceived need for some legal justification for u

the dogs of war has remained a constant ever since.

At the beginning of the 17th century, Hugo Grotius noted that, altho

grounds of war are as numerous as those of suits at law.... Three justifia

for war are generally cited: defense, recovery of property, and punishmen

is little doubt that the casus belli regularly invoked by States over the s

350 years fell into one or more of these categories. To be sure, given the 

ture of such concepts as “defense” or “punishment,” the potential for t

or bad faith application has been quite obvious. Only a hopelessly unim

* Messrs. Rivkin and Casey are partners in the Washington, D.C. office of Baker 

LLP.

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statesman would have been unable to articulate some plausible soundin

his belligerent aims, whatever they might be.

Not surprisingly, while some leaders took full advantage of the co

elasticity inherent in the traditional resort-to-force legal and ethical 

dubbed jus ad bellum, others have sought to leash the dogs of war by dev

more rigid and proscriptive rules. Indeed, the efforts to ban armed con

gether (of which the 1928 Kellogg-Briand Pact3 is perhaps the best-kno

ple), or at least substantially constrain the use of violence, are as old as, 

instances, even older, than war itself. The search for legal limitations has 

in the 20th century, as the carnage of mechanized warfare and the horre

sualties suffered during the two World Wars have substantially dimini

bat’s erstwhile heroic luster.

These regulatory efforts featured most prominently a no-first use 

whereby force could be used only in response to an attack, rather than 

strument of aggression. However, given the fact that waiting to absorb an 

an enemy before responding can be a risky strategy, most statesmen an

have sought to protect the option of using force first, albeit in anticipa

enemy’s attack. This anticipatory self-defense doctrine has been a hardy 

in international law.4

Anticipatory Defense’s Historical Record

Burning the Caroline

The 1837 Carolineincident,5 involving the British destruction of an Ame

in US territorial waters, buttressed the modern international law doctri

ticipatory self-defense.” In accepting the British explanation that the Ca

destroyed in “self-defense,” anticipating that she would again be used to 

Canadian insurgents, American Secretary of State Daniel Webster ackn

in 1841 the doctrine’s validity, although he attempted to limit its applica

most extreme circumstances—where the need is “instant, overwhelming

ing no choice of means and no moment for deliberation”6—leading m

quent commentators to conclude that the doctrine could be invoked only 

threat was imminent.7

Of course, robust anticipatory self-defense had been a well-acce

firmly grounded in all-important State practice, for centuries before th

went crashing over Niagara Falls. Indeed, Webster’s rather restrictive w

this rule was driven largely by the US desire to limit the circumstance

Britain or any other European power could claim a legitimate basis 

force on American soil. In a sense, the Caroline doctrine was meant t

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some additional legal scaffolding for the Monroe Doctrine, promulgate

Significantly, neither the practice nor the writings by the various int

law authorities evidenced much regard for the notion of instantaneity i

Webster; indeed, many an attenuated or distant threat were judged to 

cient casus belli.

In 1587, for example, England’s Queen Elizabeth I sent a fleet, comm

Sir Francis Drake, to attack Spanish and Portuguese harbors—primaril

in an effort to prevent, or at least to delay, the arrival of the “Invincible 

Forty years later, Grotius endorsed the practice as lawful in his monum

tise, The Law of War and Peace, noting that self-defense was permissible, 

being attacked and also before, where “the deed may be anticipated.”8 W

one hundred years later, another of modern international law’s foundi

Emmerich de Vattel, also asserted in The Law of Nations that a country 

anticipate the other’s [aggressive] design, being careful however, not to 

vague and doubtful suspicions.”9 Over the next three centuries, anticip

defense was regularly employed, whether openly or by implication.

By the 20th century, a robust self-defense prerogative was firmly roote

national law. For example, in 1939 Britain and France acted in anticip

defense, warning Germany that the democracies would consider an 

Poland to be a casus belli, and going to war when that attack occurred. G

armed forces were not, of course, at that time menacing either Britain or F

the only legal right either State would have had to threaten Hitler—sin

was not British or French territory—must have been based in their right

pate future attacks. In fact, it is this same fundamental rule that justifies 

tic Alliance’s “collective security” scheme—where more than two do

pledged armed support if the territory of any one were attacked—and t

Nations Charter’s approval of “collective” self-defense.

Anticipatory Defense Today

Preemptive use of force has always been an implicit component of Amer

egy, and during the Cold War the United States resolutely refused to a

claratory no-first use position with respect to nuclear weapons. More rec

June 1, 2002, West Point speech, President Bush articulated a traditio

justification for the anticipatory self-defense doctrine, noting that “we 

the battle to the enemy, disrupt his plans and confront the worst threats b

emerge” and that “if we wait for threats to fully materialize, we will have 

long.”10 These themes were further elaborated in the National Security 

the United States (NSS),11 issued by the Bush Administration in Septembe

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Despite anticipatory self

defenses venerable pedigree, the Bush Ad

tion’s critics claimed that the NSS went too far by not limiting preempt

cumstances involving imminent threats, by giving preemption such 

place, and thereby alienating many friends and allies. This criticism is m

American declaratory strategy has always been meant to serve a varie

poses, including deterring enemies and reassuring friends. Most of the tim

these goals can be accomplished simultaneously. Whenever faced, how

an unusually acute threat from groups or regimes difficult or impossible 

the situation the United States faces today—the deterrence imperative

sonably prevail. Thus, emphasizing the vigor of the American preemptio

is meant to enhance, to the greatest extent possible, the quality of US de

Europe’s Angst

For all its ample legacy, however, anticipatory self-defense remains con

It is attacked for a variety of reasons, ranging from the more idealistic, 

necessarily prudent, desire to abolish war, or at least to limit the circum

which force can be used, to the belief that the application of the anticip

defense doctrine inherently leads to abuses and causes instabilities, to th

limit American freedom of action. Indeed, many European officials asse

sent a UN Security Council authorization, force can be used only to repe

attack on a State’s territory—after it has been initiated. This was certainl

tion articulated with considerable vigor during the Iraq-related debat

countries as France, Germany and Russia.

What explains Europe’s embrace of the restrictive view of self-defense

with, the European criticisms on this subject are often laced with a hea

anti-Americanism, since it is the United States that is currently viewed a

obvious beneficiary of the anticipatory self-defense option.12 Anti-Am

aside, Europe’s defense analysts appear to be more concerned with the 

that the States’ embracing the anticipatory defense strategy will ove

strike first without sufficient provocation, rather than with the danger 

layed response to a weapons of mass destruction (WMD)-wielding 

prove disastrous.

Meanwhile, the more academically inclined pundits, who used to de

Soviet nuclear buildup as a reaction to the United States-initiated arms 

argue that the key to maintaining international stability and peace is to ke

of a threshold as possible against the use of force and that allowing State

based upon suspicions or intelligence warnings, would make the use 

more frequent occurrence. Their common underlying assumptio

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misperceptions, mistakes and hair

trigger military deployments, geare

preemption, are destabilizing and the main cause of wars.

These criticisms, however, even in their more refined versions, are f

tally misplaced. The strategy, which would require States to wait until t

stacks of an enemy fleet rose over the horizon and the first broadside 

before responding, was hopelessly unrealistic even when the UN Ch

adopted in 1945. Particularly in the post-September 11 environment, 

vance warnings may be calculated in seconds rather than days or weeks, o

come at all, the consequences of allowing an enemy to get in the first blow 

be catastrophic. As President Bush has pointed out, even the most rob

rence “means nothing against shadow terrorist networks with no nation 

to defend,” and containment is not possible “when unbalanced dict

weapons of mass destruction can deliver those weapons surreptitiou

shores or secretly provide them to terrorist allies.”13

In fact, far from being inconsistent with deterrence, a preemption s

sentially broadens the range of conduct to be deterred to encompass n

use of force—as was the case with the traditional deterrence model—b

forts to acquire prohibited weapons (or even the efforts to pursue a str

appears to flirt with WMD development and acquisition) or render aid t

groups. As such, preemption both buttresses and extends deterrence.

Distant Threats

Additional criticisms of the Administration’s recasting of the anticip

defense strategy come from those who claim that, even under the traditio

ries-old view of that doctrine, to justify response the threat had to be i

This argument, however, does not hold water. First of all, although 

Caroline letter indeed formulated the anticipatory self-defense doctrin

that stressed the instantaneousness of the threat, leaving no opportunity 

eration, this was not the formulation used by many of the earlier leadin

tional law experts. Moreover, centuries of State practice in this are

preemption against both immediate and more long-term threats.

In any case, the concept of an imminent threat is not synonymous wi

lead time threat. A threat can be strategically imminent, albeit years awa

fruition. In today’s world, for example, a rogue regime or a pan-nation

group that is committed to our destruction and is seeking to acquire w

mass destruction, while undertaking in the interim more convention

poses a strategically imminent threat to the United States fully sufficien

the preemptive use of force. With regard to al Qaeda, in particular, th

threat situation that we have been facing for a number of years now.

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Moreover, given the nature of the al Qaeda

style attacks, the only w

empt successfully against such groups is to do so months, and even ye

vance of these attacks being launched. This is because the way the 

preparing and carrying out such attacks makes near-term preempti

United States inherently ineffective. For example, even if the United 

toppled the Taliban regime in the summer of 2001, or succeeded in elimi

Laden himself during that time period, it would not have necessarily pre

September 11 attacks. Most of the perpetrators had already infiltrated t

States, and they could have proceeded without additional help or instruc

their superiors.

To be sure, to the extent that preemption is being contemplated in res

long-term strategic threat, it is reasonable to hold that the threat involve

extremely serious in nature. (Conversely, an immediate and certain th

Caroline-style gun running, even if not particularly grave in nature, pote

tifies a preemptive response.) To proceed otherwise would admittedly 

anticipatory self-defense doctrine infinitely elastic, eroding all limitatio

use of force.

Intelligence Mistakes Revisited

Another oft-invoked anti-preemption argument builds upon the Bush 

tration’s failure to find WMD stockpiles in Iraq, claiming that it under

inherent unreliability of all weapons programs intelligence and mitiga

trying to use force to forestall attenuated, long-term threats. This claim 

merit; prosecuting a robust preemption strategy may well lead to some 

uses of force. On balance, however, given the threats faced, erring on the 

ing too cautious may not be a wise strategy. This is especially the case wh

with Saddam Hussein and other regimes that have engaged in aberrant a

dictable conduct.

Even more fundamentally, the fact that Saddam apparently eschewed

the end of the first Gulf War, retaining and enhancing actual WMD stoc

render his regime harmless. Iraq retained active WMD development pro

engaged in an elaborate strategic cat-and-mouse game, denying any WM

ambitions, while behaving as if it already had substantial weapon st

Moreover, since Saddam himself was in the best position to determin

would require a particular set of weapons, and producing sufficient qu

chemical and biological agents and weaponizing them could have been 

relatively short time, this just-in-time deployment strategy was perfectly 

any case, from beginning to end, the burden was on Saddam Hussein to 

he had fully disarmed—not on the anti-Saddam coalition to prove that h

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weapons stockpiles or research programs. The broader point, repeatedl

the Bush Administration during the months leading up to the war, was 

regimes, instead of playing hide-and-seek games, were supposed to pu

various confidence-building measures capable of reassuring the int

community that they were fully and irreversibly disarmed.

The real danger in today’s world comes from rogue regimes and terr

nizations that care not a whit about international law. As a result, the req

of deterrence have become far more onerous, with many of our foes bel

the United States, in bin Laden’s famous words, is “a weak horse.”15 In 

tion, for the United States to accept the proposition that the anticip

defense doctrine is no longer valid and that, aside from responding to 

attack on one’s territory, all uses of force require the blessing of the UN 

Council, would be nothing short of suicidal. More generally, adopting t

would create an unprecedented dissonance between the policy imper

the legal rules. This is a strain that the law cannot bear. It would lead to 

tual demise of all legal restrictions on the use of force.

What about the UN Charter?

Stassen’s Revenge

Not surprisingly, since the policy arguments about the benefits of narr

circumstances in which law-abiding States can use force are ultimately 

sive, its proponents have also sought to use the law as a trump card. They 

the anticipatory self-defense doctrine, however venerable or consonan

politik imperatives, did not survive the adoption of the United Nations 

portion of which—Article 2—requires all members of the United Natio

frain in their international relations from the threat or use of force.” T

nents of this restrictive view argue that, absent the Security Council’s bl

Charter limits the lawful use of force to circumstances, set forth in Art

which an armed attack already has taken place and, even then, only pend

by the Security Council. This assertion, however, relies on an implausib

of Article 51 and of other UN Charter provisions. Even more fundament

reflects an erroneous, albeit widely held view, that the UN Charter has s

and vitiated the entire pre-existing body of customary and treaty-base

tional law.

In fact, the Charter, upon which many of the Bush Administration’s c

neither abrogated the pre-existing body of international law nor abolish

ticipatory self-defense doctrine. To be sure, the goal of at least some of th

uals involved in the negotiations leading up the United Nation’s establish

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to outlaw war and to limit the right of self

defense so far as to require a S

sorb an aggressor’s first strike. Indeed, this appears to have been the p

Harold Stassen, who served on the American delegation and suggeste

right of self-defense was so narrowly crafted that the United States could 

an enemy fleet steaming towards the Jersey shore.16

Yet, whatever Governor Stassen’s purposes, when the Charter is read 

its limitations on the use of force are far more modest. Article 2 of the Ch

ally prohibits the use of force in only three circumstances: (1) to seize ter

to impose a colonial-style government; and (3) in a manner “inconsisten

Purposes of the United Nations.” Thus, the use of military force that do

volve territorial expansion, or does not threaten a member State’s indepe

not forbidden so long as it is not otherwise inconsistent with the Unite

purposes. The first among these “purposes” is the maintenance of “int

peace and security,”17 a goal which, while worthy and laudable, is inhe

biguous. For example, fierce debates have raged over whether a given us

be it against Slobodan Milosevic or Saddam Hussein, advances or retard

tional peace and security.” Meanwhile, the fact that Article 2 refers to 

tional peace and security” and not just peace also suggests that war avoid

costs, was not the policy goal advanced by the Charter’s drafters.

The notion that the Charter, taken as a whole, allows the unilateral u

only in response to an armed aggression is also belied by the actual la

Article 51. If this restrictive interpretation was correct, Article 51 w

granted to the UN members the carefully defined self-defense rights.18 Y

51 conveys no such authority; instead, it merely acknowledges the contin

ity of the pre-Charter’s “inherent right of individual or collective self

rooted in customary international law. It also employs a rather casual lan

dicating that “the inherent right of individual or collective self-defence [a

an armed attack occurs”; the term “armed attack” is not defined and the

dication that this inherent right arises only if an armed attack takes plac

This level of precision is perfectly acceptable if one construes Article 

lustrative example of a much broader set of self-defense-related powe

available to all sovereign States. It is, however, manifestly deficient if t

provides the only legally permissible avenue for using force, short of o

Security Council authorization.20 Moreover, a restrictive reading of Ar

the exclusive venue for using force, essentially renders Article 2’s broad 

permissive language regarding the use of force entirely superfluous. It is, 

the common principle of statutory or treaty interpretation that any co

that vitiates some of the provisions is disfavored. By contrast, viewing A

the Charter’s main provision for assessing the legitimacy of the use of f

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the Article 51 being a rather narrow 

safe harborif the use of forc

the Article 51-compliant set of circumstances, there no is need to pe

broader “all facts and circumstance”-type analysis envisioned by Ar

both consistent with the relevant statutory language and gives meaning 

the Articles.

Moreover, given the nature of the UN system, which features veto au

the permanent members of the Security Council, and gives even non-p

members an opportunity to block the Council from exercising its Ch

powers, it was predictable that a Security Council deadlock would be a 

state of affairs. Indeed, it is significant that throughout its entire operatin

both during the Cold War and thereafter, the Council has never acted 

that the proponents of the restrictive reading of the Charter expected it to 

the Council has determined on several occasions that a breach of the 

threat to the peace existed, it has never engaged in enforcement measur

ing the mandatory use of military force.22 It is, therefore, implausible to b

the Charter’s drafters, aside from a few pacifists like Harold Stassen, w

vested that body with an exclusive authority to use force. When one con

the Charter’s drafters were only too aware of the extent to which the obse

the Kellogg-Briand Pact and the policy of appeasing Hitler had paved t

World War II, this interpretation is even more incomprehensible.

Anticipatory-Defense “Lite”

Some international law scholars also espouse the view that, while a broad 

anticipatory self-defense has been blocked by the Charter’s adoption, a m

est version of this doctrine has survived. Professor Dinstein, who is one o

ing proponents of this claim, has even coined the term “intercepti

defense. This right is evidently triggered by an armed attack that is “imm

“unavoidable,” but that has not yet reached its intended victim.24 In fl

this concept of interceptive self-defense, Dinstein has used such exam

Japanese attack on Pearl Harbor and the 1967 Arab-Israeli War. Thus, 

that if the United States were to have destroyed Admiral Yamamoto’s ca

groups as they were steaming towards Pearl Harbor, the Unites States w

been engaged in interceptive self-defense. When it comes to the 1967 W

wide range of hostile measures taken by Egypt—ejection of the UN obse

the Gaza Strip and Sinai, the closure of the Straits of Tiran, military mo

and movement of forces, accompanied by shrill anti-Israeli rhetoric—in 

view Israel’s early use of force was another example of interceptive se

From the policy perspective, Dinstein’s somewhat elastic formulation i

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preferable to the most rigid formulation of Article 51, which would r

“victim” actively to absorb a first strike.

It is, however, not a particularly useful analytical tool for determining

spective basis, the legality of any particular use of force. The reason for t

simple; unless one adopts a rather crude Marxist interpretation of histori

in which certain events become inevitable because of the underlying w

history, nothing is truly unavoidable and inevitable. Thus, unless one a

the attack has been physically launched (in which case, the doctrine beco

ally indistinguishable from the traditional narrow reading of Article 51)

missiles are in the air—one never knows in advance when an attack is un

History is replete with examples of crises building up to a crescendo, wh

of force seemed imminent, only to dissipate because of last-minute dipl

terventions. Indeed, before the “lights went out,” in Lord Gray’s famou

tion, in 1914, there were several instances when European war was avoi

last minute. Examples include the 1909 Austrian Annexation o

Herzegovina, the 1911 “Agadir Crisis,” and the 1912–13 Balkan wars. 

looks at the Pearl Harbor example, it is certainly conceivable, albeit highl

that the Japanese government could have issued last-minute recall order

ral Yamamoto. The same is true when one comes to the 1967 situation

US-Soviet diplomacy could have prevented it.25

However, the single greatest weakness of this anticipatory defense 

trine is that it is not based upon the Charter’s actual language. Article 51’

uses the word “occurs,” rather than “launched or commenced,” in desc

triggering circumstances. Yet, to justify Dinstein’s “interceptive” co

word “occurs” would have to be stretched to the point where it 

discernable meaning. Once this is done, “occurs” may just as well be co

mean the birth of a future aggressor or the early hatching of an aggre

The bottom line is that anticipatory self-defense “lite” is less supporta

Charter’s language, than either the permissive or restrictive interpretatio

cles 2 and 51.

Assault on National Interest

In parsing the UN Charter and assessing the legal merits of the various a

relating to the legitimacy of the anticipatory self-defense doctrine, it is a

cant that the arguments used by the Administration’s critics are interna

sistent. For example, in trying to figure out whether a given use of for

Article 2, one must ascertain whether the action at issue would promot

poses of the United Nations. In this regard, it is certainly reasonable to 

removing from power a man like Saddam Hussein—who for decad

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sought to acquire nuclear weapons; developed, deployed and used both 

and biological weapons on his own people and his neighbors; viewed h

modern day Saladin; and defied Security Council resolutions for well 

cade—was entirely consistent with the UN Charter.

It is also possible to opine, of course, that the strategy of regime chan

was not likely to promote international security. Indeed, some scholars 

cisely that, while also claiming that some other uses of force, which they 

favor, like NATO’s use of force against Milosevic’s Serbia, were more 

with United Nation’s purposes. However, whatever one thinks about the 

merits of the argument that Milosevic posed a greater threat to internati

and security than did Saddam Hussein, or that the Kosovars were oppr

thereby deserving of a rescue) more than the Iraqi Shiites and Kurds, the 

tic nature of these claims renders them utterly unsuitable as legal argum

It is also disingenuous to argue that, as a matter of law, humanitarian 

tion to aid the residents of another country that are being brutalized by t

is legal under the UN Charter, presumably because it is always consisten

Charter’s laudable goals, but a national interest-driven intervention is 

not similarly legitimate.26 Leaving aside the issue of the rather idiosync

ing of the Charter, which, on its face, does not legitimize humanitarian 

tions, it is not obvious why this humanitarian intervention principle on

to the protection of foreign nationals, rather than a State’s own citizens. 

September 11 world, US actions to destroy terrorist organizations and t

sors are the clear equivalent of a humanitarian intervention in d

American citizens.

Collective Action

Then there are scholars who, perhaps realizing the utter un-workability 

restrictive interpretation of the UN Charter, try to read into it some mo

sion of the Security Council’s primacy in the use-of-force area. They do 

tolling the legal legitimacy of collective actions, even if these do not com

support of the entire Security Council. From a policy perspective, an 

which postulates that force can be legitimately used even though one or 

have blocked the Security Council from acting is perhaps more manag

requiring a Security Council’s blessing; the only problem is that there 

slightest support in the UN Charter or any other international legal doc

this theory.

There are also commentators who purport to discover in the UN Cha

sions that bless regional actions, while leaving nation States acting “un

entirely to the mercies of Article 51. However, those provisions (found i

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VIII of the UN Charter), do not permit a regional organization, such as th

zation of American States (OAS) or NATO, to operate as the Security 

surrogate. Indeed, for example, the imprimatur of regional organizati

perhaps valuable as a diplomatic tool, is of little legal value. During the C

sile Crisis, for example, the foundation of both the right of the United S

the OAS, to take action against the Soviet Union and Cuba was their inh

of individual and collective self defense, including the right of anticip

defense. As a matter of international law, a group of States has no mor

right to use force than any one of its nation–State members. The cha

Chapter VIII of the Charter also do not seem to realize the inherent frai

approach: all one has to do to qualify, in an otherwise restrictive regula

ronment, for a broad anticipatory self-defense option, is to create a coop

gional organization. This can be accomplished in a fortnight.

The Actual Practice of States

Moreover, the notion that anticipatory self-defense is barred by the U

has not been supported by the actual practice of States in the years 

United Nations was established. That, in the final reckoning, is the crit

Anyone attempting to determine what international law, whether cus

conventional, truly provides on any particular point would do well to 

Marquise de Merteuil’s maxim in Les Liaisons Dangereuses27; don’t liste

people tell you, watch what they do. Here, the evidence is overwhelmin

traditional law of anticipatory self-defense has survived the adoption 

Charter. As Michael Glennon notes, since 1945 two-thirds of the memb

United Nations have fought 291 inter-State conflicts in which over 2

people have been killed.28

Among the more important post-Charter instances of “anticipat

defense must be counted the 1956 “Suez Crisis,” where France, Britain 

launched military operations against Egypt based on Nasser’s seizure o

Canal. The affair was a political disaster for the governments involved

highly significant that Britain and France, both charter members of the U

tions and permanent members of the Security Council, claimed that t

Egyptian military clash, which took place in a close proximity to the S

was a threat to the world’s economy and therefore adequate to justify arm

Needless to say, this was a very broad formulation of a classical anticip

defense argument, perhaps even broader than the argument used by th

Prime Minister Tojo, who justified Japan’s attack on Pearl Harbor by the 

American economic sanctions were strangling imperial Japan.

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In 1967, Israel acted preemptively against Egypt, Syria and Jordan, r

await the attack of their massing forces. Israel was neither condemned 

tioned by the UN for this action. Similarly, Israel attacked and destroye

nuclear power facility in 1981, again citing “self-defense” as justific

though, this time, Israel’s action was condemned in the Security Council

was taken to address this supposed “aggression.” Recalling the Marquise

whatever the verbiage used, this strongly suggests a fundamental recogn

Israel acted in accordance with its rights under international law to antic

foil, attacks before they are launched.

Israel, of course, has not been alone in exercising the right of anticip

defense. In 1986, President Reagan ordered attacks against terrorist targe

to prevent their use against US interests. In 1982, Britain claimed a 15

clusion zone around the Falkland Islands as a preventative measure, an

Sweden asserted the right to use armed force against any foreign submar

within 12 miles of her territorial sea. In 1989, the George H. W. Bush Ad

tion used force to oust Panama’s strongman Manuel Noriega, arguin

posed a threat to the safety of the American service members present i

and their families. All of these actions can be justified only by a right of an

self-defense.

Yet, perhaps the most important modern example of anticipatory self

before Operation Iraqi Freedom—came during the Cuban Missile Crisis 

the Soviet efforts to install ballistic missiles armed with nuclear warhead

Although there were absolutely no indications that the Soviets intended 

these missiles against the United States, immediately or in even the dist

the Kennedy Administration claimed that the purpose of the Sovie

ments—“to provide a nuclear strike capability against the Weste

sphere”—was sufficient justification for the imposition of a naval “qua

Although the US threat assessment was also shaped by a perception t

leader Khrushchev had engaged in nuclear saber rattling, threatened t

States in Berlin and elsewhere, and may have been irrational and impuls

dent Kennedy’s bottom-line conclusion was clearly that, in a nuclear age

tous effort by an avowed American foe to change the strategic balance of 

enough of a threat to American security to justify the resort to an anticip

defense doctrine.

To argue that all of these uses of force have been illegal under the UN C

some proponents of the restrictive interpretation of the Charter have 

even that most of them were illegal has been done by those who advocat

tory defense “lite” or allow its use only when invoked by regional orga

constitutes both a rejection of the validity of State practice—traditionally

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reliable and authoritative way to establish international legal norms

an

ular dogmatic approach to the Charter’s interpretation. Significantly, th

States involved have consistently claimed that their actions have been 

with the UN Charter is neither hypocritical nor an effort to re-write th

through subsequent practice; rather, it is a proof of their embrace of the p

interpretation of the Charter.

Conclusion

Overall, the UN Charter, far from being a comprehensive legal edifice 

uses of force, except for the Article 51-compliant situations and variou

collective action, is actually a far more modest document. It basically r

long-standing rule, which was not always honored, but nevertheless, 

announced, against an aggressive use of force, sets forth a safe harbor r

use of force in response to an armed attack against one’s territory or the t

one’s allies, while not inhibiting a broader range of defensive uses of for

ing in anticipation of an attack.

Although a nuclear Armageddon is far less likely today, the actual us

ons of mass destruction, nuclear, chemical, and biological, has become 

and immediate threat. The principal danger is not that one State will atta

with these weapons, but that non-State actors, such as al Qaeda, who are 

tion beyond deterrence, will obtain and use WMDs. This is because, fo

time ever, modern technology has enabled private individuals, aided an

by failed States, to create military-style forces capable of projecting po

the globe. That, of course, is precisely what al-Qaeda achieved on Septem

projected power. Traditional deterrence works poorly in this nove

environment.

This means that the traditional rules of international law, which perm

anticipate threats and to act before an attack actually is initiated, are far 

portant than in the past. Unfortunately, while these rules have not been 

the UN Charter and have been reflected in ample State practice, both pr

post-1945, they have been subjected to strident legal and policy attack

States, international organizations and most international law experts. 

importance of legal and ethical considerations in American policy-m

United States must continue to defend the validity of these traditional r

with these rules in place can the United States hope to protect its citizen

tack, maintain international stability, and defeat rogue States and terror

that pose a grave threat to the entire civilized world.

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Notes

1. HOMER, THE ILIAD (Robert Fagles trans., Penguin Books 1998) (8th century BC

2. HUGO GROTIUS, THE LAW OF WAR AND PEACE 72 (Francis W. Kelsey, trans., 19

3. General Treaty for Renunciation of War as an Instrument of National Policy (Au

94 L.N.T.S. 57.

4. To be sure, some scholars have questioned the relevance of the historical practice 

not only with regard to the anticipatory self-defense doctrine, but even as far as the 

concept as a whole is concerned. For example, Yoram Dinstein argues that “[u]p to 

the prohibition of war, to most intents and purposes, ‘self-defence was not a legal 

merely a political excuse for the use of force’. Only when the universal liberty to go 

eliminated, could self-defence emerge as a right of signal importance in interna

YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 160–61 (3d ed. 2001)

Jimenez de Arechaga, International Law in the Past Third of a Century, 59-I RECUEIL 

1, 96 (1978). This view, however, ignores the fact that legal and ethical restrictions o

force did not emerge in the 20th century; indeed, for centuries, there have been va

and types of restrictions, some, but not all, of which were driven by religious imper

efforts to ban the waging of war by Christian States against other Christian States. T

they were often breached did not render them any more irrelevant than the frequen

modern proscriptions. As far as anticipatory self-defense is concerned, the fact that 

arose and was practiced during the time when the overall doctrinal attitudes towar

force were more permissive than the ones we encounter today is not particularly 

Indeed, the fact that the doctrine was refined at the time when armed aggression 

usual instrument of statecraft, makes it even more significant in the current, mor

legal environment.

5. For a description of the Caroline incident, see KENNETH R. STEVENS, BORDER D

THE CAROLINE AND MCLEOD AFFAIRS IN ANGLO-AMERICAN-CANADIAN RELATI

1842, at 121 (1989).

6. Daniel Webster, Secretary of State, Letter to Lord Ashburton, British Plenipote

6, 1842), reprinted in JOHN BASSETT MOORE, 2 A DIGEST OF INTERNATIONAL LAW 

7. Some commentators have also argued that the Caroline incident is miscast as a 

for the anticipatory self-defense doctrine, because the ship was used to re-supply th

insurgents prior to its destruction and hence, could have been considered to 

continuous armed operations against Britain. This claim is, of course, debatable

operations would have had to be continuous, rather than intermittent, and t

historical record does not evidence such a pattern. In any case, regardless of the ac

the ground, what makes the Caroline case significant in the development of the 

international law is that both the United States and Britain chose to apply the 

defense paradigm in setting up the legal framework for handling the incident.

8. GROTIUS, supra note 2, at 173.

9. EMMERICH DEVATTEL,3THE LAW OF NATIONS 130 (Charles G. Fenwick ed., 19

10. President’s Commencement Address of June 1, 2002 at the United States Milita

in West Point, New York, 38 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENT

10, 2002), available at http://www.whitehouse.gov/news/releases/2002/06/2002060

11. OFFICE OF THE PRESIDENT OF THE UNITED STATES, THE NATIONAL SECURITY S

THE UNITED STATES (Sept. 2002), reprinted in 2002 DIGEST OF UNITED STATES P

INTERNATIONAL LAW 947.

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yy gg 

pacifism has often been driven by a hefty dose of anti-Americanism. Writing in 1

bemoaned the existence of

[I]ntellectual pacifists, whose real though unacknowledged motive appears to be 

of Western democracy and admiration for totalitarianism. Pacifist propaganda 

boils down to saying that one side is as bad as the other, but if one looks closel

writing of the younger intellectual pacifists, one finds that they do not by any 

express impartial disapproval, but are directed almost entirely against Britain 

United States . . . .

George Orwell, Notes on Nationalism (1945), reprinted in GEORGE ORWELL: ESSAY

Carey ed., 2002).

13. Supra note 10.

14. For a discussion of this issue, including the comparison of how Saddam

deception policy was, in some key respects, similar to the missile bluff strategy pur

late Nikita Khrushchev, see David B. Rivkin, Jr. & Lee A. Casey, Saddam, Nikita 

Weapons of Mass Destruction: A Question of Threat Perception and Intelligence Assessm

NATIONAL INTEREST, June 12, 2003, at http://www.inthenationalinterest.co

Vol2Issue23/Vol2iss23RivkinCasey.html.

15. See e.g., Text: Bin Laden Discusses Attacks on Tape, at http://www.washingtonpo

srv/nation/specials/attacked/transcripts/binladentext_121301.html.

16. Minutes of the Thirty-Eighth Meeting of the United States Delegation, Held at Sa

Monday, May 14, 1945, 9:05 a.m., in 1 FOREIGN RELATIONS OF THE UNITED STAT

(1945).

17. U.N. CHARTER art. 1, para. 1.

18. It is also worth noting that Article 51 refers only to an armed attack “against a me

United Nations.” When the Charter was ratified and for decades thereafter, a numb

chose not to join the UN. To construe Article 51 as the exclusive all-purpose rule for 

that has supplemented the traditional customary law norms, would mean such S

have no self-defense rights at all.

19. The full text of Article 51 is as follows:

Nothing in the present Charter shall impair the inherent right of individual or co

self-defence if an armed attack occurs against a Member of the United Nation

the Security Council has taken measures necessary to maintain international pe

security. Measures taken by Members in the exercise of this right of self-defence 

immediately reported to the Security Council and shall not in any way af

authority and responsibility of the Security Council under the present Charter to 

any time such action as it deems necessary in order to maintain or restore intern

peace and security.

20. Article 51’s language aside, its rather accidental legislative history also does not 

claim that the Charter’s drafters conceived of it as an important substantive ri

provision. In this regard, Andru Wall notes that

Article 51 was not in the original drafts because the drafters believed the cus

international law right of self-defense was incorporated without alteration i

Charter. The US delegation in San Francisco proposed Article 51 to ensure t

obligations of collective self-defense against armed attacks arising fro

Chapultepec Act were incorporated into the Charter. While self-defense was un

accepted as a customary right of States, collective self-defense was an emerging 

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199, 200–201 (2003).

In a remarkable historical parallel, this view of a robust self-defense prerogati

as something that is so firmly entrenched in international law that it did not 

require an explicit reaffirmation—was also expressed by Secretary of 

Kellogg. Kellogg stated at the time when the 1928 Kellogg-Briand Pact (the 

high point of the efforts to limit the use of force by States) was being negot

“that there was no need to state it expressly in the terms of the pact; even 

adoption of texts that seem inconsistent with exercise of the right, he said, d

preclude reliance upon it.” Telegram from Frank B. Kellogg, Secretary of Sta

the US Ambassador in France, (Apr. 23, 1928) in 1 FOREIGN RELATIONS OF 

UNITED STATES 34, 36–37 (1928), quoted in Michael J. Glennon, Military A

Against Terrorist Under International Law: The Fog of Law, Self-Defense, Inhe

and Incoherence in Article 51 of the United Nations Charter, 25 HARVARD JOU

OF LAW AND PUBLIC POLICY 539 n.62 (2002).

21. The view that Article 51 is meant to be merely an illustrative safe harbor has be

by the advocates of the restrictive reading of the Charter. For example, Yoram Dinst

this regard

What is the point in stating the obvious (i.e. that an armed attack gives rise to t

of self-defence), while omitting a reference to the ambiguous conditions of pre

war? Preventive war in self-defence (if legitimate under the Charter) would 

regulation by lex scripta more acutely than a response to an armed attack, si

opportunities for abuse are incomparably greater.

DINSTEIN, supra note 4, at 168. This question, however, can be easily answered by p

that the whole idea of a safe harbor in the law is to delineate precisely those circum

can be easily dealt with. Thus, the whole purpose of Article 51 is to indicate that, w

uses force after he has been the victim of an armed attack, he is always legally in the r

further analysis of the circumstances is necessary. By contrast, precisely because the 

of anticipatory self-defense can be, and has been, used as a pretext for aggression 

complex, all facts and circumstances-type analysis, under Article 2, is calle

interpretation is certainly supported by the fact that the framers of the Charter 

familiar with the arguments used by both the Nazi and Japanese leadership (

subsequently replayed during the Nuremberg and Tokyo war crimes trials) tha

engaged in anticipatory self-defense. Looking to the future, leaders of a State that ha

in a manner consistent with Article 51 could feel safe from prosecution; even if that S

the war and they were subject to a war crimes prosecution.

22. At the time the Council adopted the Korean War Resolution (SC Res. 82 (Jun

reprinted in 5 RESOLUTIONS AND DECISIONS OF THE SECURITY COUNCIL 4 (1950)) a

War Resolution (SC Res. 678 (Nov. 29, 1990), reprinted in 29 INTERNATIO

MATERIALS 1565 (1990)), which many regard as its strongest actions, all it 

recommend that member States render assistance to South Korea and Kuwait. Si

these countries were victims of armed aggression, and countries coming to their aid 

squarely within the ambit of Article 51, the Security Council’s blessing of these 

primarily of a rhetorical and diplomatic value; it did not alter the legal landscape.

23. See Professor Dinstein’s article, The Gulf War: 1990–2004 (And Still Countin

Chapter XV in this volume, at 337.

24. DINSTEIN, supra, note 4, at 172.

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yqy py 

easier to predict, based upon an analysis of the long-term trends, what is eventua

happen, rather than what will happen tomorrow. Thus, the quality of strategic threa

often better than the assessment of tactical threats. Accordingly, anticipatory self-def

medium- and long-term threats may well make more sense and be more reliab

interceptive self-defense, geared for dealing with unavoidable and imminent attack

26. Unfortunately, only a few proponents of the legality of humanitarian intervent

the view that the Charter is similarly permissive when it comes to national sec

interventions. For a notable exception to this idiosyncratic reading of the Char

Feinstein & Ann-Marie Slaughter, A Duty to Prevent, 83 FOREIGN AFFAIRS 136, Jan

27. PIERREAMBROISE FRANCOISCHODERLOS DE LACLOS, LES LIAISONS DANGEREU

28. Michael J. Glennon, Why the Security Council Failed, 82 FOREIGN AFFAIRS, May

at 16 and Michael J. Glennon, Preempting Terrorism: The Case for Anticipatory S

WEEKLY STANDARD, Jan. 28, 2002, at 24.

29. John F. Kennedy, President of the United States, Radio and Television Report to t

People on the Soviet Arms Buildup in Cuba (Oct 22, 1962), Public Papers of the Presi

United States: PRESIDENT JOHN F. KENNEDY: CONTAINING THE PUBLIC MESSAGES

AND STATEMENTS OF THE PRESIDENT: JANUARY 1 TO DECEMBER 31, 1962, at 8

(1963), available at http://usgovinfo.about.com/library/weekly/aa102100b.htm.

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XV

The Gulf War: 1990–2004

(And Still Counting)

Yoram Dinstein*

There is a popular notion (based on some loose language used by 

Administration) that the hostilities conducted by the American-

tion of the willing against Iraq in 2003 were based on a legal doctrine of p

forcible action against a potential threat. From the standpoint of interna

this popular notion is as untenable as it is unnecessary. The present artic

set the proper predicate for the legality of the action taken against Iraq. 

article will turn to the spurious contention of preemptive action.

A Legal Analysis of the Various Phases of the Gulf War

It is common practice to refer to the hostilities in Iraq in 2003 in a mann

nected from the hostilities of the early 1990s: some media stories have 

the expressions “Gulf War I” and “Gulf War II.” However, in reality ther

only a single Gulf War which started in 1990 and is still not over in 200

tedly, that war has consisted of a number of phases, yet each phase must 

as a part of the whole. The three main phases of the Gulf War are:

* Yanowicz Professor of Human Rights and Pro-President, Tel Aviv University, Isr

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The Invasion and Liberation of Kuwait (1990

1991)

Iraq invaded Kuwait on August 2, 1990. Within a few hours, the Unite

Security Council adopted Resolution 660, which determined the exist

breach of international peace and security,” and demanded immediate a

ditional withdrawal of the Iraqi forces.1 This was (and still is) only the se

lution in the history of the Security Council in which it used the phrase 

international peace” and then proceeded to take action. (The first being R

82 of 1950 relating to the invasion of South Korea by North Korea,2 alth

resolution used the slightly different phrase “breach of the peace.”)

Following Resolution 660, the Council adopted a string of other r

which, inter alia, imposed on Iraq mandatory economic sanctions unde

VII of the Charter (Resolution 6613) and even a blockade (Resolut

When Iraq did not relent, the Council—in Resolution 678 of Nov

1990—authorized the “Member States co-operating with the Governm

wait,” should Iraq not fully comply with previous Council resolutions b

15, 1991, “to use all necessary means to uphold and implement resol

(1990) and all subsequent relevant resolutions and to restore internatio

and security in the area.”5 The formula “to use all necessary means” ha

come the common and accepted euphemism for the use of force.

Pursuant to Resolution 678, and upon the expiry of the ultimatum, 

forces of a large American-led Coalition struck at Iraq on the night of Ja

17, 1991. It is important to understand that at no time did the Council 

United Nations force for combat purposes against Iraq.6 The legal foun

the use of force against Iraq by the coalition was collective self-defense.7 

ticle 51 of the United Nations Charter, when an armed attack occurs, a

entitled to respond by exercising its right of individual or collective self-d

specific affirmation of “the inherent right of individual or collective self-d

response to the armed attack by Iraq against Kuwait, in accordance with 

of the Charter,” was already incorporated into Resolution 661.9 Even 

“Member States co–operating with the Government of Kuwait” suggests 

are “nations engaged in collective [self-] defense with Kuwait.”10

The meaning of Resolution 678 is that, while the Security Council 

from deploying a veritable United Nations force as an instrument of co

curity, it gave its blessing in advance to the voluntary exercise of colle

defense by the members of the Coalition (following an interval of several 

signed for the exhaustion of the political process). The core of the reso

the prospective approval of future action.11 In an ordinary constellation 

States first employ force in individual or collective self-defense and on

port to the Council about the measures that they have taken, so that th

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investigates the nature of the hostilities retrospectively. In the particu

Iraq, the Coalition sought and obtained from the Council a green light fo

cise of collective self-defense against the perpetrator of an armed attack 

before the projected military clash. Thereafter, the Coalition did not hav

about the reaction of the Council, inasmuch as that reaction had preda

tual combat.

Considering that the military operations of the Coalition in 1991 we

festation of collective self-defense—rather than collective security—

technically no need for the specific mandate of Resolution 678 to legal

the employment of forcible measures against Iraq.12 Article 51 per se oug

sufficed in authorizing the Coalition to resort to force in response to 

armed attack, and arguably Resolution 678 only tied the hands of the cou

operating with Kuwait in that they had to hold their fire until Januar

course, in political and psychological terms, Resolution 678 had an incal

fect: internationally (cementing the solidarity of the Coalition and s

ranks) as well as domestically (mobilizing public opinion to political sup

action against Iraq).

The Cease-Fire Period (1991–2003)

Cease-fire terms were dictated to Iraq by the Security Council, in Apr

Resolution 687.14 These were rigorous terms, which compelled Iraq, inter a

arm itself of weapons of mass destruction (WMD), but Iraq accepted the

be appreciated that, although the conditions of the cease-fire were delineat

olution 687, the ensuing cease-fire constituted an agreement between 

tion—rather than the United Nations (which remained above the fray)—

The cease-fire in Iraq went on for a dozen years, yet it failed to spawn 

stead of moving towards a peaceful settlement, the Coalition and Iraq 

stantly at loggerheads, inasmuch as Iraq—from the very onset of the ce

was unwilling to fully comply with its agreed-upon terms, especially as re

armament of WMD. Huge quantities of chemical weapons agents, and a 

biological weapons production equipment and materials, were destro

the supervision of UN inspectors.15 However, quite frequently between 

2003 (in particular, in 1998/1999), Coalition warplanes struck Iraqi tar

ing unsuccessfully to compel Iraq to abide by the cease-fire conditions 

cially to cooperate with UN disarmament inspectors.16 The sundry air 

the Coalition must be construed as a resumption of combat operations 

of Iraqi violations of the cease-fire terms.17

Already under Resolution 688, adopted within a few days of the entry 

of the cease-fire, the Security Council (without naming Chapter VII) he

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Iraqi repression of the civilian population (particularly the Kurds) 

thre

national peace and security in the region” and insisted that Iraq “allow i

access by international humanitarian organizations to all those in nee

tance in all parts of Iraq and to make available all necessary facilities for th

tion.”18 As a result, with the military help of armed forces of the United 

other Coalition countries, “access” to humanitarian aid was achieved th

creation of an air exclusion (“no-fly”) zone securing a Kurdish enclave in 

of Iraq. In 1992, another “no-fly” zone was established over the Shiite a

south of the country. In the next decade, many air strikes were conducted 

tion warplanes against Iraq in response to Iraqi defiance of the “no-fly” 

The Occupation of Iraq (2003)

The state of war between Iraq and the Coalition continued notwithsta

suspension of general hostilities in 1991. When the friction between Ir

Coalition culminated in the resumption of general hostilities of 2003, ev

examined by a host of commentators against the backdrop of a doctrin

emption” set out by President George W. Bush (see below).20 But, as co

the Legal Adviser of the Department of State: “Was Operation Iraqi Freed

ample of preemptive use of force? Viewed as the final episode in a confli

more than a dozen years earlier by Iraq’s invasion of Kuwait, it may not see

There is absolutely nothing preemptive about the resumption of 

when a cease-fire disintegrates. The leading partner of the United States 

alition against Iraq—the United Kingdom—formally took the position t

gal basis of the 2003 hostilities was a revival of the Coalition’s right to 

against Iraq consequent upon the Iraqi material breach of the cease-fire

As indicated, Iraqi reluctance to comply with its obligations of WMD 

ment brought about numerous clashes with the Coalition throughout 

fire period. Ultimately, in the face of persistent reports about Iraq’s vio

its obligations in this regard, the Coalition decided to terminate the ceas

fact that no WMD were found in Iraq after its occupation is irrelevant: 

of the resumption of hostilities, everybody—including the UN inspec

lieved that Iraq had not fully observed its disarmament undertakings.2

fusal to cooperate unreservedly with UN inspectors led to a series o

Council resolutions branding its conduct a “material breach” of its dis

obligations.

It is wrong to argue (as was done by the United Kingdom) that the leg

Coalition’s right to use of force against Iraq in 2003 hinged on a revival o

Council Resolution 678.24 Resolution 678 gave the blessing of the Securi

to the military action taken in 1991, and surely it had nothing to do with o

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conducted a dozen years later under totally different circumstances. 

there was no need for a revival of Resolution 678 in 2003, just as there wa

need for its original adoption in 1990. Both in 1991 and in 2003, the 

acted on the basis of the right of collective self-defense with which it w

vested by Article 51 of the Charter and by customary international law.

A cease-fire, which merely suspends hostilities without terminatin

does not extinguish the right of collective self-defense that remains leg

for the duration of the war.25 The criteria for the legitimate exercise of th

main anchored to the circumstances of the outbreak of the war (in th

1990). The disintegration of a cease-fire by dint of its violation by one b

party—and the forcible response of the adversary—is not to be confuse

initiation of a new war.

Under Article 40 of the Regulations annexed to Hague Convention (

and to Hague Convention (IV) of 1907 Respecting the Laws and Custo

on Land, a serious violation by a party to a cease-fire (“armistice” in th

wording of the Regulations) empowers the other side to denounce it an

of urgency, to resume hostilities immediately.26 The modern practice is t

to a serious violation but to a “material breach.” This phrase appears 

60(1) of the Vienna Convention on the Law of Treaties (as a ground fo

tion or suspension of bilateral treaties).27 The applicability of the “materi

criterion to general cease-fire agreements had been recognized in the int

legal literature even before the Vienna Convention was crafted in its fin

The meaning of the phrase “material breach” is not unequivocal.29 Ar

of the Vienna Convention defines a “material breach” as either “a repu

the treaty not sanctioned by the present Convention” or a “violation of a 

essential to the accomplishment of the object or purpose of the treaty.

provision is to be considered “essential”? It is generally recognized that, i

text of a material breach, the term covers any “important ancillary prov

treaty.31 Thus, the WMD disarmament clauses in the cease-fire agree

Iraq were decidedly essential (albeit ancillary to the suspension of hosti

their violation constituted a “material breach.”

It is therefore noteworthy that, as early as August 1991 (a few month

entry into force of the cease-fire suspending hostilities), the Security 

acting under Chapter VII of the Charter, in Resolution 707 (1991)—alr

demned Iraq’s serious violation of its disarmament obligations and e

that the violation “constitutes a material breach of the relevant provisio

lution 687.”32 Eleven years late, in Resolution 1441 (2002), the Securit

(again acting under Chapter VII) decided “that Iraq has been and r

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material breach of its obligations under relevant resolutions, including 

687 (1991).”33

Many commentators maintain that—subsequent to Resolution 1441

alition could not take military action against Iraq in 2003 without obtain

cific go-ahead signal from the Security Council to resort to force.34 Th

the Coalition failed to persuade the Security Council to adopt a further 

expressly authorizing—in the vein of Resolution 678—the use of “all 

means” (i.e., force) against Iraq was regrettable from a political standp

legally speaking, such an additional resolution was not required. Even t

tending that Resolution 1441 “does not contain any ‘automaticity’ as co

potential use of force” have to concede that the text lends itself to a diffe

pretation.35 It most assuredly does not prescribe—or even necessaril

that, prior to recourse to force, the Coalition must return to the Securi

for a second (confirmatory) resolution.36

The clear inference from the determination by the Security Council 

the Iraqi “material breach” was that the other side to the cease-fire agre

released from its obligation to continue to respect the cease-fire.37 A sal

often missed by commentators on this topic,38 is that the other side to the 

agreement with Iraq was not the United Nations as such but the Coali

sumption of the hostilities, therefore, did not require an explicit stamp o

from the Security Council.

In reality, even the determination of the existence of an Iraqi “materi

need not have been made by the Security Council.40 By right, this dete

could have been made by the Coalition itself. Differently put, there was n

distinct from a political) need for the Coalition to have turned to th

Council in the first place (just as in 1990/1991 the Coalition did not hav

Security Council for Resolution 678 or, for that matter, Resolution 687)

the Coalition chose to bring the matter before the Security Council in 2

since the Council did set up an enhanced inspection regime, giving Iraq a 

portunity” to comply with the disarmament obligation41—the Coalition 

strained to give that inspection regime a chance of success. Similarly to R

678, which equally offered Iraq a “final opportunity”42 and tied the ha

Coalition by introducing a temporal interval during which it had to ho

Resolution 1441 did not leave the Coalition the option to recommence 

immediately. Thus, despite the determination of the existence of a 

breach” of the cease-fire terms, the Coalition had to await new UN insp

ports. However, when a number of reports were in, it became clear that 

still unresolved issues and that Iraq had failed to take all the steps require

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end to its 

material breach.The freedom of action of the Coalition w

ingly regained.

Following a final ultimatum, the Coalition terminated the cease-fire 

and resumed hostilities on March 20, 2003. Baghdad fell on April 9th, an

days major combat operations were over. All the same, irregular fightin

sisted long after the occupation of Iraq (with an upsurge in the violence a 

in 2004). Already in May 2003, the Security Council determined that th

in Iraq, although improved, continued to constitute “a threat to int

peace and security.”44 In October 2003, the Council expressly authorized 

national force under unified command” (structured around the Coalitio

units) “to take all necessary measures to contribute to the maintenance 

and stability in Iraq.”45 In June 2004, in accordance with Security Coun

tion 1546, the formal occupation of Iraq by the Coalition ended, and a

Government reasserted full responsibility and authority; nevertheless, 

national (Coalition) force remained in the country and its authority “

necessary measures” was reaffirmed by the Council.46

Preemptive Self-Defense

The United States has traditionally taken the position that a State may ex

ticipatory” self-defense,47 in response not merely to a “hostile act” but 

“hostile intent” (a dichotomy elevated to the level of doctrine by the U

Engagement).48 In the past, the United States was careful to underscore t

patory self-defense—or response to a hostile intent—must nevertheles

the “threat of imminent use of force.”49 The emphatic use of the qualify

tive “imminent” is of great import. As we shall see, the imminence of an 

tack (provided that it is no longer a mere threat) does indeed justif

response by way of interceptive self-defense. However, after the heinou

attacks of September 11, 2001 (9/11), a well-known statement of poli

emptive action in self-defense was issued as part of the US National Secu

egy,50 and this is often referred to as the “Bush Doctrine” (after Preside

W. Bush).51 The new policy appears to push the envelope by claiming 

“preemptive” self-defense countering pure threats based on the “capab

objectives” of today’s adversaries, especially terrorists and in particular 

potential use of WMD comes into the equation.52 It is not yet clear wha

effects the new policy will have in reality. But to the extent that it will actu

about the preventive use of force in response to sheer threats, it will not b

pliance with Article 51 of the Charter.

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Since Article 51 permits self

defense solely when an armed attacko

question arises whether there exists—independently of the Charter—

customary international law right of anticipatory self-defense. The Int

Court of Justice, in the Military and Paramilitaries Activities case of 1986

decision on the norms of customary international law concerning self-d

sequel to an armed attack.53 Yet, the Court stressed that this was due to th

stances of the case, and it passed no judgment on the issue at hand.54

On the other hand, Judge Schwebel—in his Dissenting Opinion—

clear-cut position on the subject. In conformity with a scholarly school 

maintaining that Article 51 only highlights one form of self-defense (viz

to an armed attack), without negating other patterns of legitimate acti

defense vouchsafed by customary international law,55 Judge Schwebel 

reading of the text which would imply that the right of self-defense und

51 exists “if, and only if, an armed attack occurs.”56

In the opinion of the present writer, precisely such a limitative reading 

51 is called for. Any other interpretation of the Article would be count

counter-factual and counter-logical.

First, a different interpretation of Article 51 would be counter-textu

the use of the phrase “armed attack” in Article 51 is not inadvertent. T

sion should be juxtaposed with comparable locutions in other provisi

Charter. It is particularly striking that the framers of the text preferred in 

the coinage “armed attack” to the term “aggression,” which appears in th

in several contexts (the Purposes of the United Nations (Article 1(1)), co

curity (Article 39) and regional arrangements (Article 53(1)).57 The 

words in Article 51 is deliberately confined to a response to an armed a

An armed attack is, of course, a type of aggression. Aggression in 

meaning may be stretched to include mere threats, although it is interes

consensus Definition of Aggression, adopted by the General Assembly 

while not pretending to be exhaustive—does not cover the threat of fo

only a special form of aggression amounting to an armed attack justifi

fense under Article 51. The French version of the Article sharpens its 

speaking of “une agression armée.”59 Under the Article, a State is permi

force in self-defense only in response to aggression which is armed.

Second, the idea that one can go beyond the text of Article 51 and fin

for a broad concept of preventive self-defense in customary internatio

counter-factual. When did such customary international law evolve and 

dence in the practice of States (as distinct from scholarly writings) do w

it? The right of self-defense crystallized only upon the prohibition of 

force between States. That prohibition was first evinced in the Kellogg-B

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of 1928

and reiterated, in clearer and broader terms, in Article 2(4) of th

in 1945.61 What preventive war of self-defense was unleashed between 

1945?

Third, the reliance on an extra-Charter customary right of self-defe

counter-logical. After all, the framers of Article 51 introduced signifi

tations on the exercise of self-defense (which is subject to the overridi

of the Security Council). Does it make sense that the most obvious ca

defense—in response to an armed attack—is subordinated to critical c

whereas self-defense putatively invoked in other circumstances (on a 

basis) is absolved of those conditions? What is the point in stating the ob

that an armed attack gives rise to the right of self-defense), while omittin

erence whatever to the ambiguous conditions of an allegedly permissib

tive war? Preventive war in self-defense (if legitimate under the Chart

require regulation by lex scripta more acutely than a response to an arm

since the opportunities for abuse are incomparably greater. Surely, if 

war in self-defense is justified (on the basis of “probable cause” rather t

tual use of force), it ought to be exposed to no less—if possible, even c

pervision by the Security Council. In all, is this not an appropriate ca

application of the maxim of interpretation expressio unius est exclusio al

Having said all that, it is the considered opinion of the present writ

right to self-defense can be invoked in response to an armed attack as soo

comes evident to the victim State (on the basis of hard intelligence avail

time) that the attack is in progress. There is no need to wait for the bomb

or, for that matter, for fire to open—if a moral certainty exists that the 

tack has actually begun (however incipient the stage of the attack is at th

The target State can lawfully (under Article 51) intercept the armed att

view to blunting its edge.

The best way to illustrate the circumstances in which interceptive se

can be relied upon is to assume that the Japanese carrier striking force, e

the point from which it mounted the notorious attack on Pearl Harbor 

ber 1941, had been destroyed by American forces before a single Japanese 

craft got anywhere near Hawaii.62 If that were to have happened

Americans would have succeeded in aborting an onslaught which in one 

managed to change the balance of military power in the Pacific, it would 

preposterous to look upon the United States as answerable for inflicting 

attack upon Japan.

The proper analysis of the case should be based on three disparate hy

scenarios (all based on the counter-factual postulate that the American

Japanese plans).

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The easiest scenario relates to the hypothetical shooting down by the A

of the Japanese aircraft—following detection by radar or other means—i

tively short time-frame between their launch from the air carriers and 

execution of the attack mission. Once the launch was completed, there 

doubt that (although theoretically the mission could still be called off) t

States as the target State had every right to regard the Japanese armed atta

ing commenced and to intercept it.

The more difficult scenario pertains to a hypothetical sinking of th

fleet when poised for the attack on Pearl Harbor but before the launch 

craft. In the opinion of the present writer, the turning point in the unfold

was the sailing of the Japanese fleet towards its fateful destination (again

standing the possibility of its being instructed to turn back). Had the Am

perhaps through the breaking of Japanese naval codes—been in possessi

clusive evidence as to the nature of the mission in which the Japanes

Force was already engaged, and had the Americans located the whereab

Japanese fleet, they need not have relinquished the opportunity to inter

On the other hand, had the Americans sought to destroy the Japanes

fore it sailed—while it was still training for its mission, war-gaming it or 

making advance preparations—this would have been not an intercepti

lawful) response to an armed attack but an (unlawful) preventive use 

advance of the attack which had not yet commenced. As and of themsel

ing, war-gaming and advance preparations do not cross the red line of 

attack.

The crux of the issue, therefore, is not who fired the first shot but who 

upon an apparently irreversible course of action, thereby crossing 

Rubicon. The casting of the die, rather than the actual opening of fire, is w

the armed attack. It would be absurd to require that the defending State s

tain and absorb a devastating (perhaps a fatal) blow, only to prove an im

conception of self-defense. As Sir Humphrey Waldock phrased it: “Whe

convincing evidence not merely of threats and potential danger but of an 

ing actually mounted, then an armed attack may be said to have begun 

though it has not passed the frontier.”63

Interceptive self-defense is lawful even under Article 51 of the Char

much as it takes place after the other side has committed itself to an arme

an ostensibly irrevocable way. Whereas a preventive strike anticipates an 

tack that is merely “foreseeable” (or even just “conceivable”), an intercep

counters an armed attack which is in progress, even if it is still incipient: 

“imminent” and practically “unavoidable.”65 To put it in another wa

nothing preventive about nipping an armed attack in the bud. But that 

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absolute requirement. Self

defense cannot be exercised merely on the 

assumptions, expectations or fear. It has to be demonstrably apparen

other side is already engaged in carrying out an armed attack (even if the 

not yet fully developed).

Conclusion

Based on the preceding analysis, it is clear that the Coalition case of takin

action against Iraq in 2003 was legally impregnable. Unfortunately, som

spokesmen and supporters of the Administration in Washington—ins

cusing (like the British) on the issue of Iraqi “material breach” of the p

cease-fire—preferred to link the hostilities to preemptive self-defense, t

posing the military operations against Iraq to harsh and legitimate crit

moral of the story is that, at times, a wrong “spin” of the tool of interna

can become a dangerous boomerang.

Notes

1. SC Res. 660 (Aug. 2, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIA

(1990).

2. SC Res. 82 (June 25, 1950), reprinted in 5 RESOLUTIONS AND DECISIONS OF TH

COUNCIL 4, id. (1950).

3. SC Res. 661 (Aug. 6, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 

1327 (1990).

4. SC Res. 665 (Aug. 25, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIALS 

1330 (1990).

5. SC Res. 678 (Nov. 29, 1990), reprinted in 29 INTERNATIONAL LEGAL MATERIA

(1990).

6. See Katia Boustany, La Guerre du Golfe et le Système d’Intervention Armée de 

CANADIAN YEARBOOK OF INTERNATIONAL LAW 379, 391–2 (1990).

7. See Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AMERICAN J

INTERNATIONAL LAW 452, 459–460 (1991).

8. U.N. Charter, reprinted in 9 INTERNATIONAL LEGISLATION 327, 346 (Manley O. H

1950).

9. SC Res. 661, supra note 3, at 1326.

10. JOHN NORTON MOORE, Crisis in the Gulf: Enforcing the Rule of Law 151 (199

11. See Alissa Pyrich, United Nations: Authorizations of Use of Force, 32 

INTERNATIONAL LAW JOURNAL 265, 268 (1991).

12. See Christopher Greenwood, New World Order or Old? The Invasion of Kuwait 

of Law, 55 MODERN LAW REVIEW 153, 163 (1992).

13. See Christian Dominicé, La Sécurité Collective et la Crise du Golfe,2EUROPEAN J

INTERNATIONAL LAW 85, 104 (1991).

14. SC Res. 687 (Apr. 3, 1991), reprinted in 30 INTERNATIONAL LEGAL MATERIALS 

The express reference to “a formal cease-fire” appears id. at 854.

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pygq

INTERNATIONAL LAW 471, 472 (1999).

16. For an overview of the sporadic hostilities between the Coalition and Iraq fr

2002, see Andru E. Wall, The Legal Case for Invading Iraq and Toppling Hussein

YEARBOOK ON HUMAN RIGHTS 165, 183–187 (2002).

17. See Ruth Wedgwood, The Enforcement of Security Council Resolution 687: T

Force against Iraq’s Weapons of Mass Destruction, 92 AMERICAN JOURNAL OF INTE

LAW 724, 726 (1998).

18. SC Res. 688 (Apr. 5, 1991), reprinted in 30 INTERNATIONAL LEGAL MATERIA

(1991).

19. See Wall, supra note 16, at 184–187.

20. See, e.g., Christian Henderson, The Bush Doctrine: From Theory to Practice,9J

CONFLICT AND SECURITY LAW 3, 15–16 (2004).

21. William H. Taft IV & Todd F. Buchwald, Preemption, Iraq, and Internatio

AMERICAN JOURNAL OF INTERNATIONAL LAW 557, 563 (2003).

22. Foreign and Commonwealth Office Paper, Iraq: The Legal Basis for the Use 

INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 812–814 (2003).

23. See John Yoo, International Law and the War in Iraq, 97 AMERICAN JO

INTERNATIONAL LAW 563, 566 (2003).

24. Foreign and Commonwealth Office Paper, supra note 22, at 812–814.

25. See Wall, supra note 16, at 183.

26. Regulations Respecting the Laws and Customs of War on Land, Annexe

Convention (II) of 1899, July 29, 1899, 22 Stat. 1803, 1 Bevans 247 and Regulation

the Laws and Customs of War on Land, Annexed to Convention (IV) Respecting th

Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631, reprinted in T

ARMED CONFLICTS:ACOLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER D

55, 66, 77 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004).

27. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 

1969 UNITED NATIONS JURIDICAL YEARBOOK 140, 155.

28. See Quincy Wright, The Termination and Suspension of Treaties, 61 AMERICAN J

INTERNATIONAL LAW 1000, 1003 (1967).

29. For a detailed analysis of the expression “material breach,” see MOHAMMED 

SUSPENSION OR TERMINATION OF TREATIES ON GROUNDS OF BREACH 25–50 (199

30. Vienna Convention, supra note 27, at 156.

31. ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 238 (2000).

32. SC Res. 707 (Aug. 15, 1991),reprinted in 46 RESOLUTIONS AND DECISIONS OF TH

COUNCIL 22, 23 (1991).

33. SC Res. 1441 (Nov. 8, 2002), reprinted in 42 INTERNATIONAL LEGAL MATERIA

(2003).

34. See, e.g., Rüdiger Wolfrum, The Attack of September 11, 2001, the Wars against 

and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and 

Armed Conflict?, 7 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 1, 15–18 (2

35. Rainier Hofman, International Law and the Use of Military Force against Iraq, 

YEARBOOK OF INTERNATIONAL LAW 9, 25–28 (2002).

36. See Taft & Buchwald, supra note 21, at 560–562.

37. See Michael Byers, Preemptive Self-Defense: Hegemony, Equality and Strateg

Change, 11 JOURNAL OF POLITICAL PHILOSOPHY 171, 183 (2003).

348

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gppg

DROIT INTERNATIONAL PUBLIC 378, 386 (2003).

39. It is true that the Coalition of 2003 (still led by the United States) was of 

composition compared to the original anti-Iraq array of 1990/1991, but thi

immaterial. Wartime coalitions are not engraved in stone: the Grand Alliance wh

Germany and Japan in World War II underwent even greater permutations with

period of time.

40. See Taft & Buchwald, supra note 21, at 560.

41. SC Res. 1441, supra note 33, at 251.

42. SC Res. 678, supra note 5, at 1565.

43. See Christopher Greenwood, International Law and the Pre-emptive Us

Afghanistan, Al-Qaida, and Iraq,4SAN DIEGO INTERNATIONAL LAW JOURNAL 7, 31–

44. SC Res. 1483 (May 22, 2003), reprinted in 42 INTERNATIONAL LEGAL MATERIAL

(2003).

45. SC Res. 1511 (Oct. 16, 2003), reprinted in 43 INTERNATIONAL LEGAL MATERI

256 (2004).

46. SC Res. 1546 (June 8, 2004), reprinted in 43 INTERNATIONAL LEGAL MATERIAL

(2004).

47. ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK OF THE LAW 

OPERATIONS 263 (A.R. Thomas & James C. Duncan, eds., 1999) (Vol. 73, US Naval W

International Law Studies).

48. United States Army, Judge Advocate General’s Legal Center and School, Oper

Handbook 75 (2004).

49. Id. See also ANNOTATED SUPPLEMENT, supra note 47, at 263.

50. OFFICE OF THE PRESIDENT OF THE UNITED STATES, THE NATIONAL SECURITY S

THE UNITED STATES (2002), reprinted in 2002 DIGEST OF UNITED STATES P

INTERNATIONAL LAW 947 [hereinafter National Security Strategy].

51. See Henderson, supra note 20, at 8–9.

52. National Security Strategy, supra note 50, at 951–952.

53. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 102–

(merits).

54. See id. at 103.

55. See, e.g., MYRES S. MCDOUGAL AND FLORENTINO P. FELICIANO, LAW AND 

WORLD PUBLIC ORDER 232–241 (1961).

56. Military and Paramilitary Activities, supra note 53, at 347.

57. U.N. CHARTER, supra note 8, at 331, 343, 347.

58. GA Res. 3314 (XXIX) (Dec. 14, 1974), paras. 2–4, 29(1) RESOLUTIONS OF TH

ASSEMBLY 142, 143 (1974).

59. U.N. CHARTER, supra note 8, at 346.

60. General Treaty for Renunciation of War as an Instrument of National Polic

1928), 94 L.N.T.S. 57.

61. U.N. CHARTER, supra note 8, at 332.

62. The Pearl Harbor example was adduced in debates in the United Nations. See M

WHITEMAN, 5 DIGEST OF INTERNATIONAL LAW 867–868 (1965).

63. C.H.M. Waldock, The Regulation of the Use of Force by Individual States in Intern

81 RECUEIL DES COURS 451, 498 (1952).

64. For support of this view, see MALCOLM N. SHAW, International Law 1030 (5th 

349

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fpy

Reflections on the Lawfulness of Contemporary Intervention, 25 VIRGINIA JO

INTERNATIONAL LAW 621, 659–660 (1984–1985).

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XVI

The Right of Self-Defense in the Global 

against Terrorism

Christoph Müller*

The fight against the scourge of terrorism has become a key objectiv

national politics. It has become much more than a pure law en

task but a political fight in the widest sense that has to draw on all the re

political action, including, if necessary, military options. When the fig

terrorism turns into military action abroad, international politics mee

tional law. The use of military force by a State beyond its borders is gover

ternational law. Still, given the political depth of the fight against terr

sometimes seems to acquire existential meaning—is it at all possible to d

right of self-defense in the global fight against terrorism in purely le

When each and every legal argument may assume major political signif

we still talking about international law or do we discuss politics? Appare

This article seeks to shed some light not only on the law but also on the dy

terrelationship between State policies on the use of force and the evolu

law: the historical background of the UN Charter law, the law as it stand

rift between world order as designed by the UN Charter and the real state 

In conclusion, it will be argued that the political and legal benefits flow

* Deputy Director General for Legal Affairs, German Foreign Office, Berlin. B

personal views of the author, the article goes beyond stating the German Governmen

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strengthening of the UN Charter

s framework on the use of force clearly 

the risks incurred by letting that framework fall into desuetude.

Historical Background

Ninety years ago, in June 1914, a terrorist organization code-named “Bla

unsuccessfully tried to stop an assassination plot that it had earlier sup

supplying arms, training and money. On the 28th of June, one of the terr

tured by “Black Hand” carried out the plot. He assassinated the crown pr

Austro-Hungarian Empire and his wife.1

The empire then struck back. By turning against the State of Serbi

sumed home base of “Black Hand,” Austria-Hungary set into motion a 

and its own demise. It would seem to be an interesting, even though 

question how to qualify the Austro-Hungarian action in the context of th

porary debate. Of course, given the mood of the day and the European 

trip-wire alliances, World War I was probably inevitable anyway. Still, t

June 1914 seems a useful reminder of the deeper layers of terrorism’s d

power, a destructive potential that works indirectly, through the poison

ternational relations, and may even trigger wars that were not intended 

the way they did.

The major lesson of the First World War was related to the broader q

legality and legitimacy of the use of force in international relations. After 

experienced by the killing of some 10 million people, a new question 

asked: could it be that something was fundamentally wrong with a 

which any nation with the power to use force felt free to do so? 

Woodrow Wilson of the United States tried to initiate a revolutionary a

an international organization of global reach, tying all States together in a 

collective security. He was ahead of his time; the US Senate did not follo

The truncated League of Nations, as it did emerge, was too weak to deal 

with the blows from Japan, Germany, and Italy.2 World War II follow

than 50 million people were killed, this time the majority of victims bein

During the war, it was again an American president who took the lead in 

new search for an organizational framework to create world order.3 Th

resulted in the Charter of the United Nations, which sets forth the basic 

and rules intended to govern international relations.

For nearly sixty years, the UN Charter has been the basic legal doc

public international law. Accordingly, this article will turn to the Cha

and find some answers to the question of how to define the scope of self-

the fight against terrorism. There is no alternative starting point for f

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applicable rules of international law. Furthermore, there is already evi

legal practice under the Charter is adapting to the new threat.4 At the sa

lawyer working in the context of international politics has to note, of co

time and again it seems fashionable to put into doubt the whole UN sys

true that the objectives of the United Nations are still far from being 

decades, the Cold War paralyzed the Security Council. Even under 

more favorable conditions existing since the 1990s, the Security Counc

in taking effective action has been mixed. To appreciate the United N

have to imagine a world without it.6 After the catastrophic breakdown 

order of nation States in the first half of the 20th century there has neve

doubt for post-war Germany that the lead of the American architects o

multilateral order should be followed, and that in addition to a robust 

alliance of the West, an effective global system of collective security and 

tion must be sought.

The Law as it Stands

No other article of the UN Charter plays such a prominent role in the c

bate on the significance of international law for a stable and peaceful wor

does Article 51. How is it to be read after the events of September 11, 200

sequent war in Afghanistan, the United States’ presentation of its ne

strategy in September 2002, and the Iraq war? How is it to be read in the l

threats posed by failing States, the proliferation of weapons of mass d

and international terrorism? Article 51 is the final provision of the UN 

Chapter VII which sets out the conditions that justify the use of force 

system of collective security created by the Charter should there by an

the peace, breach of the peace or act of aggression. The system of collecti

is based on the prohibition of the use of force against other States. Only t

tions to that prohibition are provided for in the Charter: coercive mea

must be authorized by the Security Council, and the “inherent” right of 

or collective self-defense. The first sentence of Article 51 reads as follows

in the present Charter shall impair the inherent right of individual or 

self-defence if an armed attack occurs against a Member of the United Na

til the Security Council has taken measures necessary to maintain int

peace and security.”

The exercise of the “inherent right of individual or collective self-d

thus permissible only in the event of “an armed attack . . . against a Mem

United Nations.” It cannot be invoked when faced with actions that do 

the threshold of an armed attack and it may only be exercised until such t

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Security Council has taken measures necessary to maintain internatio

and security.7 September 11 raised the question of whether the right of se

also applies in the face of terrorist action. The Security Council gave a cl

immediately, on the day following the attack in Resolution 1368 (2001)8 

at the end of the same month, in Resolution 1373 (2001).9 It determined 

terms, first, all acts of international terrorism constitute a threat to int

peace and security, and second, the right of individual or collective self-

accordance with the Charter could be applicable in connection with act

national terrorism. No authorization is required from the Security Coun

self-defense actions, however, the measures taken by a State in the exe

right of self-defense must be immediately reported to the Security Coun

The Security Council’s decision to recognize especially grievous terro

as an “armed attack... against a Member of the United Nations” was a v

cant, evolutionary step in the reading of Article 51. Previously, legal doc

erally assumed that an “armed attack” could not be carried out by non-St

but required action by a State. The new reading of Article 51 met with th

unanimous approval of international jurists and governments.10 The re

sory opinion, Legal Consequences of the Construction of a Wall,

11 of th

tional Court of Justice did not explicitly endorse the new reading of Arti

the Court’s seemingly restrictive language—”Article 51 of the Charter t

nizes the existence of an inherent right of self-defence in the case of arme

one State against another State”12—should not be understood as a con

either. The Court apparently aimed at emphasizing the point that an arm

has to originate from a territory outside the control of the attacked part

Recognizing the possibility of non-State actors mounting an “armed 

meant by Article 51 leads to a tricky follow-on question: who or which e

stitutes a legitimate target when defending against such terrorist attack?

ing September 11 the answer to this question was relatively simple: 

obvious links between Al Qaeda and the Taliban, the use of force by t

States and coalition forces in Afghanistan to topple the Taliban regime 

mate self-defense under Article 51 of the UN Charter. The German Go

and all other NATO States shared this view. On October 2, 2001, the Nor

Council decided, for the first time in its history, to invoke the principle o

defense contained in Article 5 of the North Atlantic Treaty. On the basis 

51 of the UN Charter, in conjunction with Security Council Resolutions 

1373,16 the German Bundestag on November 16, 2001 issued a mandate 

ing the Bundeswehr to support the United States in Operation Enduring 

This mandate was renewed for the second time in November 2003. As a

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by that mandate, the German Government provided soldiers for the w

ghanistan, as well as for naval duties in the fight against terrorism.

Defensive action after September 11 followed an armed attack. What 

ticipatory self-defense?17 Whether there is room for a right of preempti

preventive self-defense for individual States within the UN Charter’s syst

lective security is a highly controversial question.18 The restrictive wordi

cle 51 (“if an armed attack occurs”) would seem to rule out a right of an

self-defense. What little State practice there has been to date also seems t

caution. Prior to 2001, the question was explicitly discussed in the UN f

only on two occasions, during Israel’s preventive strike against Egypt d

Six-Day War in 1967 and when Israel bombed the partially constructed 

clear reactor Tamuz I in 1981. While a number of States felt that preve

defense was permissible in the former case,19 in the latter case it was held 

permissible and unanimously rejected by the UN Security Council in R

487 (1981).20 At that time the United States was among the States tha

Israel’s preventive action in the Security Council debate with particular

sive arguments based on international law. Those States which did not w

out the option of anticipatory self-defense absolutely and a priori have b

arguments on a case from the year 1837. The test introduced in the Ca

permitted pre-emptive self-defense in very exceptional cases. US Secreta

Daniel Webster formulated it as follows: “It will be for the government 

necessity of self-defense, instant, overwhelming, leaving no choice of m

no moment for deliberation.”21

The criteria of urgent necessity contained in this test led to the subse

velopment in international law of the requirement that an attack must 

nent.22 Very restrictive conditions have been placed on the co

“imminence.” Such imminence must moreover be apparent to an obj

server. The United States’ national security strategy of September 2002

took a wider approach:

We must adapt the concept of imminent threat to the capabilities and obje

today’s adversaries . . . . The greater the threat, the greater is the risk of inactio

the more compelling the case for taking anticipatory action to defend ourselve

uncertainty remains as to the time and place of the enemy’s attack.23

Just how the United States will implement this concept remains an o

tion. No precise criteria have been specified yet. Nor does the securi

place the right of self-defense within the context of the UN Charter and 

of collective security. The Iraq war may, in political terms, be view

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application of the new national security strategy. In justifying its position 

ternational law to the UN Security Council, however, the United States d

gue the asserted right of anticipatory self-defense. It rather stated that i

operations were in accordance with Resolutions 678 (1990)24 and 687 

and in particular with the threat of serious consequences made in Resolu

(2002).26

The European Union adopted a new security strategy in December 20

lays out a threat assessment similar to that contained in the US securit

also referring to the threats posed by terrorism, the proliferation of w

mass destruction, failing States and organized crime. It also recognizes th

anticipatory action:

Our traditional concept of self-defence – up to and including the Cold War – w

on the threat of invasion. With the new threats, the first line of defence will 

abroad. The new threats are dynamic. The risks of proliferation grow over t

alone, terrorist networks will become even more dangerous. State fail

organized crime spread if they are neglected – as we have seen in West Afr

implies that we should be ready to act before a crisis occurs. Conflict preven

threat prevention cannot start too early . . . . We need to develop a strategic cul

fosters early, rapid, and when necessary, robust intervention . . . . We need to b

act before countries around us deteriorate, when signs of proliferation are d

and before humanitarian emergencies arise. Preventive engagement can avo

serious problems in the future.27

However, the objectives of the European Security Strategy are explicitl

the context of “effective multilateralism” and a “rule-based internation

We are committed to upholding and developing International Law. The fund

framework for international relations is the United Nations Charter. The 

Nations Security Council has the primary responsibility for the mainten

international peace and security. Strengthening the United Nations, equipp

fulfill its responsibilities and to act effectively, is a European priority. . . 

condition of a rule-based international order that laws evolve in resp

developments such as proliferation, terrorism and global warming.28

The common European view of international law governing the use of fo

very much geared towards the United Nations. At the same time, it is not 

open to new developments contributing to truly effective multilateralis

context, Secretary-General Kofi Annan’s statement in September 20

highly relevant. After reiterating the traditional, narrow reading of Art

stated:

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, y g g, 

weapons of mass destruction could be launched at any time, without warning

clandestine group. Rather than wait for that to happen, they argue, States have 

and obligation to use force pre-emptively, even on the territory of other Sta

even while weapons systems that might be used to attack them are st

developed.

My concern is that, if it were to be adopted, it could set precedents that resu

proliferation of the unilateral and lawless use of force, with or without justificat

it is not enough to denounce unilateralism, unless we also face up squarel

concerns that make some States feel uniquely vulnerable, since it is those conc

drive them to take unilateral action. We must show that those concerns can, 

be addressed effectively through collective action.

The Council needs to consider how it will deal with the possibility that individu

may use force ‘pre-emptively’ against perceived threats. Its members may 

begin a discussion on the criteria for an early authorization of coercive mea

address certain types of threats – for instance, terrorist groups armed with we

mass destruction.29

The German Government shares the assessment of the Secretar

While the UN Charter narrowly limits the use of military force by individ

for good reason, i.e., to prevent the escalation of violence, the Securit

does have a wide range of options at its disposal. Under Article 24 it is giv

mary responsibility for the maintenance of international peace and secu

Article 39 it is granted the necessary powers to act in the event of a th

breach of the peace. This preventive competence bestowed on the UN 

Council, together with the conflict prevention instruments available t

Secretary-General, must be made easier to use in the future—precisely i

prevent the escalation of violence and the spread of armed conflict.

Meanwhile, following his speech of the 23rd of September, Secretar

Annan in November 2003 appointed a high level panel to develop reco

tions for UN reform and for a collective response to the new threats.30 Th

the panel was issued in December 2004.31 All States were invited to contr

work. The European Union submitted a joint contribution whose thrus

the Security Council should do more to assume its responsibilities under 

ter. The relevant paragraphs of the EU contribution read as follows:

The EU reaffirms that the provisions of the UN Charter regarding the use 

remain valid. The EU also recognizes the potentially devastating threat pose

member states by modern terrorism, and by weapons of mass destruction in th

of non-state actors. The threat is devastating both to states targeted and to tho

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y py y 

when a state is unwilling or unable to deal with the threat posed by a non-state 

its territory – be required to meet the threat effectively. In this context, the EU 

view that military action going beyond the lawful exercise of the right to self

should be taken on the basis of Security Council decisions. The Security 

however, must be prepared to make a rapid assessment of any threat broug

attention and, if necessary, to act quickly and decisively in order to neutralize i

engagement by the Council on terrorism and weapons of mass destruc

recommended above, and the expertise thereby commanded, would confer 

additional strong measure of authority in demanding compliance with obl

and of respect for its collective decisions.32

To sum up: Germany, like its European partners, clearly sees the ne

more effective anticipatory action in the light of the new threats, includ

spectrum of measures that may be grouped under preventive engagemen

ical means. Preventive military action, however, should be authorized b

Security Council. Only in cases where a previously indistinct threat turn

threat of an imminent attack33 is pre-emptive self-defense authorized un

national law.

The Rule of Law—Squeezed by Machtpolitik, Saved by Realpoli

Law transcends politics but time and again it has to meet the test of polit

tance. When legal norms are perceived as faltering or when they appear u

meet their intended purpose, political pressures will mount to change th

UN Charter law on the use of force provides the legal framework designe

tain international peace and security. However, even a cursory look a

globe reveals that peaceful order has remained as elusive a goal as ever. W

wrong with the UN Charter system of maintaining international peace 

rity? Are there better ways and means to create order in the world?34

Order cannot be created without harnessing power and establishin

the use of force. In a functioning nation State, government has a monop

use of force. Internationally, the UN Charter system has envisaged a distr

the authority to use force between the nation States and the UN Securit

The system has shown three major deficiencies. First, a growing numbe

States have proved to be unable to establish internal peace and a mon

the use of force on their own territory, hence the increase in civil strife 

border violence by non-State actors, including terrorists. Second, gov

have repeatedly used force beyond the limits set by the UN Charter. 

Security Council has only sometimes been able to take remedial action a

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disorder spreading from disintegrating States or the unauthorized use o

governments. Of these three deficiencies, only the first eludes direct and 

edies. The other two would seem to be remediable: given the political wi

ments could cease to flout the UN Charter rules on the use of force, 

represented in the Security Council, especially the five permanent memb

make it work. Why don’t they just do it?

Some governments apparently do not believe that playing by the rules 

Charter could ever satisfy their vital security concerns. During the Cold 

skepticism was well-founded. Given the ideological rift and the imperial 

the Soviet Union, the idea of collective security never really had a chan

traditional patterns of great power rivalry and balance of power continue

international politics, establishing de facto rules on the use of force in int

relations.35 Following the demise of the Soviet empire, the 1990s seemed 

a renaissance of the UN Charter’s normative framework on the use of fo

der the shock of September 11 and the twin threat of terrorism and the 

tion of weapons of mass destruction, the picture has become mixed; t

States in particular seems to have only limited confidence in the prev

protective potential of the UN Charter system.37

It is true that the reality of today’s world does not really fit the legal ab

of the UN Charter. The Charter envisaged a world composed of nat

which implicitly were assumed to have a number of seemingly self-evide

teristics that allowed them to interact on the basis of sovereign equality, 

them share a common sense of purpose, and that gave them the ability to 

course of events. Nation States were, by and large, implicitly assumed to 

ably well organized, to be run by responsible governments, to be maste

own house, to have a bona fide orientation towards the lofty goals of the C

pursue power not as an end in itself, to overcome the traditional zero-

mentality of international politics and to seek a better life through co

with others. The real world, of course, looks different. While State

regions, in particular in Europe, have indeed buried their centuries-ol

and the very idea of war amongst themselves, others continue traditio

politics, whilst a third category of a growing number of States seems to 

towards primeval chaos,38 not to mention the dubious domestic legitim

many dictatorships and authoritarian regimes. The dangers inherent in 

zones of chaos are multiplied by new categories of powerful non-State 

fields like organized crime, weapons proliferation, and terrorism, who ar

operating international networks, but sometimes have even acquired the 

to initiate and sustain a new type of armed conflict that may most aptl

asymmetrical warfare.39

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It is against the background of such a pointedly realistic world view

cidentally, is widely shared by both the United States as well as the E

strategies40—that the normative thinking of some authors has returne

tional patterns of power politics where little room is left for the UN 

multilateralist concept of world order. These authors consider this conc

alistic at best, as naive and irresponsible at worst. Their views are reflec

following statements: “Although the effort to subject the use of force to 

law was the monumental internationalist experience of the twentieth ce

fact is that that experiment has failed”41 and “The first and last geopoliti

that states pursue security by pursuing power. Legalist institutions th

that pursuit maladroitly are ultimately swept away.”42 But which or

emerge if the United Nations were thus swept away? Given the unipola

the day, could it not, should it not be a Pax Americana? Robert Cooper 

thoughtful comment on such an eventuality:

In general, monopolies are undesirable. One exception to this rule is the mon

force. This is not just desirable; it is the essential basis of order in the state an

state system. What is wrong, then, with a virtual monopoly of force in the wo

answer is that the state is based on the legitimate monopoly of force and the d

with the American monopoly of force in the world community is that it is A

and will be exercised, necessarily, in the interest of the United States. This wi

seen as legitimate. Legitimacy is as much a source of power as force. Force 

legitimacy is tyranny – for those who are subject to it. In an age in which secu

depend on taking early action against emerging threats abroad, legitimacy 

important than ever. And, like it or not, the United Nations remains the most p

source of legitimacy for such action.43

In response, Robert Kagan suggests “the legitimacy of liberalism”—a

meant to operate outside and independently of the UN framework—

United States and the liberal democracies of Europe would exercise in 

could add to American power.44 However, he puts this vision himself int

assuming that “many Europeans are betting that the risks from the ‘ax

from terrorism and tyrants, will never be as great as the risk of the Ameri

than unbound.”45 It seems indeed doubtful whether a joint transatlanti

legitimacy outside the United Nations could contribute to making US p

tics a success—but not for the reason Kagan assumes. His assertion 

Europeans are more concerned about American power than the risks 

proliferation and mega-terrorism seems totally beside the point. Rober

remarks on legitimacy probably come closer to mainstream European 

but the core of European skepticism vis-à-vis the unrestrained use of 

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power may be found in a more elementary thought that is the opposite 

eyed idealism: many Europeans simply believe that unipolar powe

whether executed purely unilaterally or through a coalition of the willi

practical and do not work. Suicidal terrorists will not be moved by the “

awe” of a bombing campaign, the application of sheer power alone does 

the desired results under conditions of asymmetrical warfare, the trans

of deficient nation States into responsible liberal democracies require

means than the application of military force.

The rebirth of democratic West Germany out of the ruins of the Thi

sometimes referred to as an example for successful State-engineering in

overwhelming force. Maybe it is—but only ceteris paribus: in Germany 

Allies entered with huge armies and fully controlled a country that was 

hausted and destroyed by nearly six years of “total war” of the Germ

choosing. The Wehrmacht did not melt away to resurface later in a g

fought until it was finished. Furthermore, people were demoralized not o

feat, destruction and million fold deaths, but also, when faced with the tr

speakable crimes, by a rapidly growing sense of guilt. In that situation, it 

not occur to the remaining young men to question defeat and to for

bands of fanatics trying to fight asymmetrical war. Instead, the Germans

happened to consist of a homogeneous and highly educated populatio

the generous offer by the victors to re-enter the civilized world, chose 

their country, and had another try at democracy.

Today’s threats are different and require different treatment. In the 

non-military means will drain the breeding grounds of a suicidal terror

fueled by pseudo-religious fervor. The battle for hearts and minds wil

war of ideas where there is no substitute for the victory of reason. For 

prevail, it will be essential that the use of force, when necessary, is prope

stood as action in the common interest.46 It appears hardly conceivable 

this objective without following a course of “effective multilateralism” 

aged by the European Security Strategy,47 with a reformed and revitaliz

curity Council assuming a central role. In that regard, it seems a

American authors have replaced the old maxim “if it ain’t broke, don’t 

new leitmotif, “if it ain’t fixed yet, break it,” whereas a pragmatist would 

suggest “if it ain’t fixed yet, try and do it.” Therefore, if the implementa

UN Charter system has indeed remained deficient, why sweep it away, w

and fix it? A number of important steps into that direction have alr

taken by the Security Council, not only before, but also after the unfortu

troversy preceding the Iraq war, including, inter alia, Security Council R

1373 (2001) to fight international terrorism,48 Resolution 1540 (2004) t

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proliferation of weapons of mass destruction,

and Resolution 1546 

Iraq’s political transition and reconstruction.50 The road towards int

peace and security through effective multilateral action has been clearly 

Secretary-General Annan: it should follow the rule of law,51 lead to a ref

Security Council, and arrive at a new commitment for joint action that 

clude criteria on when and how anticipatory action by the Council is ne

counter the terrorist threat.

In conclusion, it seems fair to say that the reading of the international 

use of force as set forth above is strongly supported by contemporary po

liefs in Germany. The cataclysmic events in the first half of the 20th ce

German role in those events, and our national experience after 1945; all 

tors have converged into a very strong conviction of mainstream fore

thinking in Germany: the conviction that we should follow the new cour

national relations charted in San Francisco in June 1945, which had bee

by the United States. Germans presumably will stay this course not on

they firmly believe that it is right, but also because they see no practical 

in terms of Realpolitik.

Notes

1. KARL D. ERDMANN, DER ERSTE WELTKRIEG 76–77 (1980).

2. STEPHEN SCHLESINGER, ACT OF CREATION: THE FOUNDING OF THE UNITED NAT

(2003). Schlesinger discusses the enthusiasm and vision of Wilson and his disappoin

the Senate.

3. See id. at 30. Schlesinger describes how Roosevelt followed Wilson’s idea. He 

Roosevelt’s prior experience as Wilson’s Secretary of the Navy helped him “forg

vision” of the world.

4. For a discussion of Article 51 of the UN Charter, see infra pp. 353–58.

5. See e.g., Michael J. Glennon, Why the Security Council Failed, FOREIGN AFFAIR

2003, at 16.

6. The question of the political adequacy of the UN Charter framework is discus

detail infra pp. 358–62. For some interesting contributions to the current discussion 

in international law and the practice under the UN Charter, see John Yoo, Internatio

the War in Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 563 (2003); Ruth 

The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-

AMERICAN JOURNAL OF INTERNATIONAL LAW 576 (2003); Richard N. Gardner, Neit

the “Jurisprudes,” 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 585 (2003

Florentino Cuéllar, Reflections on Sovereignty and Collective Security, 40 STANFORD J

INTERNATIONAL LAW 211 (2004); Richard A. Falk, What Future for the UN Chart

War Prevention?, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 590 (200

opposition to Falk’s article, see Michael D. Ramsey, Reinventing the Security Council: 

Lockean System, 79 NOTRE DAME LAW REVIEW 1529 (2004).

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ppg yp

8. SC Res. 1368 (Sept. 12, 2001), available at http://daccessdds.un.org/doc/UNDOC

533/82/PDF/N0153382.pdf?OpenElement.

9. SC Res. 1373 (Sept. 28, 2001), available at http://daccessdds.un.org/doc/UNDOC

557/43/PDF/N0155743.pdf?OpenElement.

10. See, e.g., Cuéllar, supra note 6, at 220; Jane E. Stromseth, Agora: Future Implica

Iraq Conflict: Law and Force after Iraq: A Transitional Moment, 97 AMERICAN J

INTERNATIONAL LAW 628, 633 (2003); Eric Rosand, Security Council Resolutio

Counter-Terrorism Committee, and the Fight against Terrorism, 97 AMERICAN J

INTERNATIONAL LAW 333 (2003); Nicholas Rostow, Before and After: The Changed U

to Terrorism Since September 11th, 35 CORNELL INTERNATIONAL LAW JOURNAL 475 

11. Legal Consequences of the Construction of a Wall in the Occupied Palestinia

2004 I.C.J. ___ (July 9), available at http://www.icj-cij.org/icjwww/ido

imwpframe.htm.

12. Id. ¶ 139.

13. See id. The relevant parts of paragraph 139 of the advisory opinion read as follo

Article 51 of the Charter thus recognizes the existence of an inherent right 

defence in the case of armed attack by one State against another State. Howeve

does not claim that the attacks against it are imputable to a foreign State. The Co

notes that Israel exercises control in the Occupied Palestinian Territory and 

Israel itself states, the threat which it regards as justifying the construction of t

originates within, and not outside, that territory. The situation is thus differe

that contemplated by Security Council resolutions 1368 (2001) and 1373 (200

therefore Israel could not in any event invoke those resolutions in support of i

to be exercising a right of self-defence. Consequently, the Court concludes that 

51 of the Charter has no relevance in this case.

14. Generally speaking, defensive military action targeting territory of another Sta

considered lawful if that State is either unwilling or unable to prevent its territory 

used for preparing or launching an armed attack. See Albrecht Randelzhofer, Com

Article 51, in THE CHARTER OF THE UNITED NATIONS:ACOMMENTARY 799–802 (Br

ed., 2d ed. 2002).

15. Supra note 8.

16. Supra note 9.

17. For a discussion on pre-emptive self-defense after September 11, see gener

Hongju Koh, On American Exceptionalism, 55 STANFORD LAW REVIEW 1479, 1516 

also Yoo, supra note 6, at 571.

18. Stromseth, supra note 10, at 638–640, argues that the United States should dr

with its allies parameters for preemptive self-defense against threats posed by terror

Falk, supra note 6, at 593; and Ramsey, supra note 6, at 1558.

19. For a general analysis of the Six-Day War and its consequences for the Midd

Michael B. Oren, Six days of War: June 1967 and the Making of the Modern M

(2002).

20. SC Res. 487 (June 19, 1981), available at http://daccessdds.un.org/doc/RES

GEN/NR0/418/74/IMG/NR041874.pdf?OpenElement.

21. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), quoted in JOH

MOORE, 2 A DIGEST OF INTERNATIONAL LAW 412 (1906).

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y 

in Paradigms, in INTERNATIONAL LAW: CLASSIC AND CONTEMPORARY READING

(Charlotte Ku & Paul F. Diehl eds., 1998).

23. See THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERIC

2002), available at http://www.whitehouse.gov/nsc/nss.pdf.

24. SC Res. 678 (Nov. 29, 1990), available at http://daccessdds.un.org/doc/RES

GEN/NR0/575/28/IMG/NR057528.pdf?OpenElement.

25. SC Res. 687 (Apr. 3, 1991), available at http://daccessdds.un.org/doc/RESOLUT

NR0/596/23/IMG/NR059623.pdf?OpenElement.

26. SC Res. 1441 (Nov. 8, 2002), available at http://daccessdds.un.org/doc/UNDOC

682/26/PDF/N0268226.pdf?OpenElement. See letter of Permanent Representati

Negroponte to the President of the Security Council of March 20, 2003. U.N. Doc. 

available at http://documents-dds-ny.un.org/doc/UNDOC/GEN/N03/290/79/pd

.pdf?OpenElement. The British and Australian justification of the Iraq war follow

line of argument. See U.N. Doc. S/2003/350 (British) and U.N. Doc. S/2003/352 

available at http://documents-dds-ny.un.org/doc/UNDOC/GEN/N03/290/73/pd

.pdf?OpenElement and http://documents-dds-ny.un.org/doc/UNDOC/GEN/N03/

N0329085.pdf?OpenElement, respectively. For a more detailed account of th

argument, see William H. Taft IV & Todd F. Buchwald, Preemption, Iraq, and Intern

97 AMERICAN JOURNAL OF INTERNATIONAL LAW 557 (2003)

27. See A SECURE EUROPE IN A BETTER WORLD – EUROPEAN SECURITY STRATEGY 7

2003), available at http://ue.eu.int/uedocs/cmsUpload/78367.pdf.

28. Id. at 9,10.

29. Address to the UN General Assembly, Sept. 23, 2003, U.N. Doc. SG/SM/889

(2003), available at http://www.un.org/News/Press/docs/2003/sgsm8891.doc.htm.

30. See UN Press Release, Nov. 4, 2003, U.N. Doc SG/A/857 (2003), availab

www.un.org/News/Press/docs/2003/sga857.doc.htm.

31. A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY, REPORT OF THE 

GENERAL’S HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE (2004), 

http://www.un.org/secureworld/.

32. See PAPER FOR SUBMISSION TO THE HIGH-LEVEL PANEL ON THREATS, CHALL

CHANGE, approved for transmission to the panel by EU foreign ministers on M

available at http://ue.eu.int/uedocs/cmsUpload/EU%20written%20contribution2.p

33. The German government, in answering a question from parliament, recently 

that it regards not only an actual but also an imminent attack as a sufficient basis for 

of the right of self-defense: “The right of individual or collective self-defense accordi

51 of the UN Charter includes, in the Federal Government’s opinion, measure

against an imminent attack.” See Antwort der Bundesregierung: Umsetzung der E

Sicherheitsstrategie, BUNDESTAGS-DRUCKSACHE 15/3181 (2004), at 25.

34. “Order in the world” is here understood in the narrow sense of security ba

eventual use of force. Broader concepts of world order and global governance genera

applicable to the core security issues, cf e.g., ANNE-MARIE SLAUGHTER,ANEW WO

(2004), even though new analytical insights like those on the workings of the “d

state” through government networks might be very useful in tackling the broader 

promoting world stability short of the use of force, including law enforcement netw

international terrorism. On the other hand, it [a networked world order] would 

States acting as unitary States on important issues, particularly in security matters. 

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Under that new normative order, each superpower would refrain from attack

essential interests of the other, but would be freed to use force at will in its own sp

influence. States that were clients of a superpower would be freed to use force 

those that were not, but would be restrained from using force against the client

other superpower . . . . In this context, ‘equality’ and ‘supremacy’ did not merely 

the equation of military power among states, but also states’ respective d

normative prerogatives and precautions in the use of force.

See Thomas M. Franck, What Happens Now? The United Nations After Iraq, 97 

JOURNAL OF INTERNATIONAL LAW 607, 609 (2003).

36. Id. at 609, 610.

37. For an extremely critical view of the current and future role of the Security C

Michael J. Glennon, supra note 5, at 31: “The charter’s use of force regime . . . petere

period of years. The Security Council itself hobbled along during the Cold War, u

brief resurgence in the 1990s, and then flamed out with Kosovo and Iraq.”

38. See ROBERT COOPER, THE BREAKING OF NATIONS: ORDER AND CHAOS IN TH

FIRST CENTURY (2003). Cooper distinguishes the pre-State, “post-imperial chao

example of the “pre-modern world,” the classical State system of the “modern world

balance-of-power or hegemonic policies, and the “postmodern world” as exemp

European Union where the pattern of inter-State relations has been completely sw

the balance-of-power mode towards ever-growing cooperation and openness.

39. See HERFRIED MÜNKLER, DIE NEUEN KRIEGE 187 pp. (2002).

40. See supra notes 23 and 27.

41. See Michael J. Glennon, supra note 5, at 24.

42. Id. at 25.

43. See supra note 38, at 167.

44. See ROBERT KAGAN, PARADISE & POWER: AMERICA AND EUROPE IN THE N

ORDER 149–158 (Atlantic Books 2003).

45. Id. at 158.

46. For reasons of legitimacy, but also in order to improve and not to erode the 

change induced by “soft power.” Regarding the sources and the potential of the U

soft power, as well as its inverse relationship to the unrestrained use of hard power, s

NYE JR., THE PARADOX OF AMERICAN POWER: WHY THE WORLD’S ONLY SUPERPO

GO IT ALONE (2002). Regarding this interrelationship, cf. also THE 9/11 COMMISSIO

FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON T

STATES 375 (2004):

Support for the United States has plummeted. Polls taken in Islamic countries 

11 suggested that many or most people thought the United States was doing th

thing in its fight against terrorism; few people saw popular support for al Qaeda

those surveyed said that ordinary people had a favorable view of the United St

2003, polls showed that ‘the bottom has fallen out of support for America in mo

Muslim world. Negative views of the U.S. among Muslims, which had been 

limited to countries in the Middle East, have spread.... Since last summer, fa

ratings for the U.S. have fallen from 61% to 15% in Indonesia and from 71% 

among Muslims in Nigeria.

47. See supra note 27.

48. See supra note 9.

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(p)pg

N04/328/43/PDF/N0432843.pdf?OpenElement.

50. SC Res. 1546 (June 8, 2004), available at http://daccessdds.un.org/doc/UNDOC

381/16/PDF/N0438116.pdf?OpenElement.

51. See his address to the UN General Assembly on September 21, 2004, availab

www.un.org/apps/sg/sgstats.asp?nid=1088#.

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XVII

The Legality of Operation Iraqi Freed

under International Law

Michael N. Schmitt*

In the months preceding the attack on Iraq by the US-commanded “c

the willing,”1 few issues captured greater international attention than 

ity of the impending armed conflict. Even United Nations Secretary-Ge

Annan entered the fray, intimating that an attack without the imprim

Security Council mandate would violate the UN Charter.2 Once Opera

Freedom began on March 19, 2003, however, one might have expected 

haha to die down, particularly given the speed of victory, and the fact tha

bled occupation should have diverted attention from jus ad bellum res

Indeed, controversy regarding the legality of the two campaigns the Un

and United Kingdom had recently conducted, Operations Allied Forc

during Freedom,4 faded quickly once hostilities ended.

Yet, as this article is being written in early 2004, the controversy over 

dom rages on. The 2004 US presidential election campaign has contribu

staying power of the issue. So too have the transatlantic and intra-

* Professor of International Law, George C. Marshall European Center for Secu

Garmisch-Partenkirchen, Germany. The views expressed herein are those of the a

personal capacity and do not necessarily represent those of any United States 

government agency. This article was published previously in volume 3, no. 2 of th

Military Ethics (2004) and is reprinted with permission.

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divides created, or at least exacerbated, by virulent opposition to the w

part of some European States, especially France and Germany. The seem

ity of weapons inspectors to locate the alleged weapons of mass d

(WMD) capabilities that President Bush pointed to so frequently as w

loomed, and the failure to find a smoking gun tying Iraq to Al Qaeda, h

fuel to the fire.

Given the panoply of justifications for the operation bandied about b

ments, politicians, political commentators, legal experts, non-governme

nizations, and the public at large, Iraqi Freedom serves as a fascinat

bellum case study. This article considers those most commonly posed

Security Council authorization, self-defense against State support to terr

ticipatory (often mislabeled preemptive) self-defense against terrorism 

ons of mass destruction, breach of the 1991 cease-fire, humanitarian int

and regime change. States mounting the attack formally proffered only 

the cease-fire that ended the first Gulf War as its legal basis. However, 

sources in policy and academic circles floated the others as independen

for the action, and the States involved cited each as a de facto, albeit not le

legitimizing the attack.

Implicit Security Council Authorization

The most universally accepted basis for the use of force is authorizat

United Nations Security Council. Before granting it, the Council must d

pursuant to Article 39 of the UN Charter, that a particular situation am

threat to the peace, breach of the peace, or act of aggression. Once it d

Security Council must first attempt to resolve the matter by employing n

ful measures, such as an embargo.5 If non-forceful actions prove unsucce

it believes that attempting them would be “inadequate,” the Council may 

ing under Article 42, “take such action by air, sea, or land forces as it 

necessary to maintain or restore international peace and security.” Such a

known as “Chapter VII enforcement operations,” a reference to the Cha

ter in which the relevant articles appear.

This decision generally comes in the form of a Security Council resol

taining a mandate to use “all necessary means” to achieve a specified en

stance, Resolution 678 of 1990 authorized “Member States coopera

Kuwait” to use all necessary means to “uphold and implement Securit

Resolution 660 and all subsequent relevant resolutions and to restore int

peace and security.”6 Resolution 660 had demanded the withdrawal of I

from Kuwait following their August 1990 invasion. 7 Mandates can be 

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individual States or an ad hoc coalition thereof, to a regional security or

such as NATO, or to a UN commanded and controlled force.8

As events unfolded in late 2002 and early 2003, the United States a

Kingdom actively sought a Security Council mandate for action against I

ever, the best they could achieve was Resolution 1441, which did not c

desired “all necessary means” clause.9 Both countries abandoned subs

forts to secure a follow-on use of force resolution when France and Rus

ened to exercise their veto authority.

Resolution 1441, passed unanimously on November 8, condemned 

ure to fully disclose information about its weapons of mass destruction 

tic missile programs,10 cooperate with weapons inspectors,11 en

terrorism,12 cease repression of its population,13 facilitate humanitarian 

by aid agencies,14 and cooperate in accounting for missing individuals 

erty from the first Gulf War.15 The resolution went on to find Iraq in 

breach” of these obligations under various resolutions, including Resol

which, as conspicuously noted in 1441, set forth the terms of the 1991 

After granting Iraq “a final opportunity” to comply with its disarmame

tions, imposing detailed requirements regarding the future weapons insp

gime, and demanding that Iraq “cooperate immediately, unconditio

actively” with inspectors from the International Atomic Energy Agen

and United Nations Monitoring, Verification and Inspection Co

(UNMOVIC), the resolution ominously “recalled” “that the Council h

edly warned Iraq that it will face serious consequences as a result of its 

violations of its obligations.”

With war drawing close, some argued that Resolution 1441, standing 

plicitly authorized the impending attack. The resolution specifically not

Security Council was operating under Chapter VII of the UN Charter, w

vides the basis for authorizing the use of force in response to a threat to 

Although it gave Iraq a final opportunity to meet its obligations, 

Weapons Inspector Hans Blix briefed the Council on March 7, 2003 tha

not cooperated “immediately,” as required by Resolution 1441.16 Finally

lution warned of “serious consequences” if Iraq failed to meet the Counc

tions. Given prior sanctions on Iraq, the phrase could only have been a 

so the argument goes, to forceful disarmament. Thus, when Iraq failed 

ate immediately with the inspectors, the 1441 condition precedent for 

force presented itself.

This line of reasoning is fundamentally flawed. First, the lack of the 

sary means” clause evidences the Council’s discord over whether armed 

stituted the appropriate remedy for Iraq’s failure to meet its obligations. 

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in 1990 the Security Council had likewise given Iraq a 

final opportunit

its obligations under prior resolutions, most significantly withdrawal 

wait.17 But on that occasion it also authorized Member States that were 

ing with Kuwait to “use all necessary means” to uphold and implement t

tions and “restore international peace and security in the area” if Ira

comply with them by January 15, 1991. Thus, Iraqi non-compliance aut

triggered the use of force mandate. Resolution 1441 contained no such 

In fact, only the non-inclusion of the “all necessary means” language 

olution 1441’s adoption possible. During the Security Council sessio

proved the resolution, France, Russia, and China insisted that they view

but the first step in a two-step process, and that only the Council could d

to do in the event of Iraqi non-compliance. The French Ambassador wa

larly pointed: “France welcomes the fact that all ambiguity on this point a

ments of automaticity have disappeared from the resolution.”18

Tellingly, US Ambassador Negroponte conceded as much in his own 

As we have said on numerous occasions to Council members, this resolution 

no “hidden triggers” and no “automaticity” with respect to the use of force. If t

further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a 

State, the matter will return to the Council for discussions as required in pa

12.19

Portentously, he went on to qualify his comments.

The resolution makes clear that any Iraqi failure to comply is unacceptable 

Iraq must be disarmed. And, one way or another, Iraq will be disarmed. If the 

Council fails to act decisively in the event of further Iraqi violations, this re

does not constrain any Member State from acting to defend itself against th

posed by Iraq or to enforce relevant United Nations resolutions and prote

peace and security.20

Consistent with this approach, the United States later returned to th

Council to urge armed force, most famously on February 5, 2003 when S

State Colin Powell briefed it on Iraq’s failures and urged the Council to “

from whatever is ahead.”21 As noted, the Council did not act, a failure tha

ident Bush to proclaim: “The United Nations Security Council has not l

its responsibilities, so we will rise to ours.”22 Therefore, it should be app

when Coalition forces attacked days later, their legal basis for armed actio

Resolution 1441; nor would the resolution have provided a proper basi

made such an assertion.

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Self

Defense against State Support to Terrorism

Beyond Security Council authorization to use force under Chapter VI

other explicit exception to Charter Article 2(4)’s broad prohibition on 

force23 is self-defense pursuant to Article 51. Article 51 provides that “[n

the present Charter shall impair the inherent right of individual or coll

defense if an armed attack occurs against a Member of the United Nat

the Security Council has taken measures necessary to maintain internati

and security.” Thus, whereas a mere threat to the peace suffices to engage 

rity Council’s right to mandate forceful enforcement measures, an arme

the condition precedent for self-defense.

The terrorist attacks of September 11, 2001 crystallized the applicab

law of self-defense to acts of terrorism. The following day the Securit

passed Resolution 1368 affirming the “inherent right of self-defense as r

by the Charter of the United Nations.” On September 28, it again cited t

self-defense in Resolution 1373, which set forth a number of measures 

terrorism. Subsequent resolutions reaffirmed 1368 and 1373, thus imp

knowledging that the situation implicated the right to self-defense.24

However, by March 19, 2003, Iraq had not conducted terrorist attac

the United States, nor was there an immediate threat of it doing so. Tru

Iraq had been involved in an assassination plot against former Preside

Bush, Sr., to which the United States responded with cruise missile s

since then, no known terrorist attacks have been conducted by Iraqi agen

fore, any justification of Operation Iraqi Freedom related to ongoing 

must be based on Iraq’s support of terrorists, such as Al Qaeda.

The law surrounding the use of force against State supporters of terrori

perienced a sea change over the past two decades. Recall that Operation 

Canyon, the 1986 package of US air strikes against Libya following a te

tack in Berlin that targeted US military personnel, generated nearly univ

demnation. With the exception of Israel and the United Kingdom, even 

of the United States criticized the operation.25 The General Assembly pa

olution condemning it as a violation of international law,26 and Secretar

Javier Perez de Cueller stated that he “deplored” the “military action by 

ber state against another.”27

State support of guerilla forces surfaced in a judicial opinion rendere

year. In Military and Paramilitary Activities, a case between the United 

Nicaragua, the International Court of Justice addressed the appropriaten

puting an armed attack to a State because of its sponsorship of rebels suc

itary action against the State itself is appropriate in self-defense.28 The C

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that a State committed an armed attack by 

the sending by or on behalf o

armed bands, groups, irregulars or mercenaries, which carry out acts 

force against another State of such gravity as to amount to (inter alia) 

armed attack conducted by regular forces, or its substantial inv

therein.”29 The opinion went on to state that “[t]his description, contain

cle 3, paragraph (g), of the Definition of Aggression annexed to General 

Resolution 3314 (XXIX), may be taken to reflect customary internatio

Reduced to basics, the requirement was that the group be acting on be

State or that the State have been otherwise highly involved in the actual o

Yet, when the United States and United Kingdom directly attacked th

the de facto government of Afghanistan, because of its decision to “allow 

of Afghanistan that it controls to be used by [Al Qaeda] as a base of ope

the international community was very supportive. In addition to UK pa

in the initial strikes, Georgia, Oman, Pakistan, the Philippines, Qatar, S

bia, Tajikistan, Turkey, and Uzbekistan provided airspace and faciliti

Egypt, Russia, and the European Union publicly backed the operations, 

the Organization for the Islamic Conference limited itself to urging t

States to restrict its campaign to Afghanistan.32 Australia, Canada, the 

public, Germany, Italy, Japan, The Netherlands, New Zealand, Turke

United Kingdom offered ground troops.33 Paradoxically, this all occurr

of the fact that the Taliban were more dependent on Al Qaeda (for sup

conflict with the Northern Alliance) than vice versa, and therefore did n

to fit the Military and Paramilitary Activities standard.

Particularly indicative of the shifting attitude towards the degree of 

port that rises to the level of an armed attack is the fact that the justificat

tacking the Taliban was contained in the required US notification to th

Council that it was acting in self-defense. Therefore, the international co

was clearly on notice that the United States characterized its action as o

defense and it appears to have accepted the premise that, in appropria

stances, State supporters of terrorism risk a military response pursua

right.

That said, the precise level of State support that amounts to an armed 

mains uncertain. The horror of 9/11, particularly the number of casualt

direct targeting of innocent civilians, clearly contributed to internatio

tance of the US response. So too did the fact that the United Nations had 

warned the Taliban to put an end to terrorist activities on its territory,34 

United States post-9/11.35 The fact that the Taliban were internationally 

made striking them even more palatable. Nevertheless, the attack a

Taliban and the response thereto were certainly watershed events fo

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surrounding lawful responses to State support of terrorism. Without a

the degree of support necessary to constitute an armed attack has 

precipitously.

And what of Iraq’s complicity in terrorism? Failure of occupation for

a direct link between Saddam Hussein and Al Qaeda attacks (or any othe

forces actively conducting operations against the United States) is releva

dispositive. International law judges actors by what they reasonably belie

the circumstances.36 Therefore, the question is not whether there wer

tween Iraq and terrorists, but rather would any links the United States 

thought existed, even mistakenly, have justified an attack on Iraq in self

Defensive actions must also meet the legal criteria of necessity and pr

ality in the face of an immediate threat.37 Necessity requires that there 

sonable alternative to the use of force; proportionality limits the force u

required to actually defeat the attack; and imminency requires the self-

occur only during the last window of opportunity to mount an effective 

operation.

Secretary of State Powell provided the most comprehensive picture o

United States believed regarding Iraqi complicity in his February 5, 200

to the Security Council. The Secretary made the case that “Iraq . . . h

deadly terrorist network headed by Adu Musab al-Zarqawi, an associat

laborator of Osama bin Laden and his Al Qaeda lieutenants.”38 Acc

Powell, Zarqawi set up a terrorist training camp in Afghanistan, which 

quently moved to northeastern Iraq after the United States ousted th

from Afghanistan. Although this camp was located outside territory con

the Iraqi government, Baghdad did have an agent in Ansar al-Islam, the 

ganization that controlled the area. That agent provided some mem

Qaeda safe haven. Powell went on to claim that Al Qaeda associates h

into the capital, where they operated freely. Further, he asserted that ov

decade there had been frequent contacts between Iraqi agents and Al Q

that interrogation of an Al Qaeda detainee led to an admission that Iraq 

chemical and biological weapons training for two members of the organ

US concerns about Iraqi involvement in terrorism were not isolated

Security Council had determined that “Iraq has failed to comply with it

ments pursuant to resolution 687 (1991) with regard to terrorism. . . .”40 

that the US allegations were reasonable and made in good faith, did the

response in self-defense?

To begin with, by linking Iraq to Al Qaeda, the issue of anticipatory se

becomes moot. Al Qaeda has been conducting a campaign of terrorism a

United States for at least a decade.41 Its attacks (planned or executed) can 

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characterized as isolated, independent actions, with each response jud

rately for compliance with the law of self-defense. US defensive actions a

ticipatory, but rather undertaken in the face of an ongoing campaign.

Was Iraq’s involvement in this campaign sufficient to merit an atta

against the country? It would appear not. The major factor that Powell em

was the presence of a key Al Qaeda operative in northern Iraq. Howeve

an area beyond the control of the government. Further, to the extent Iraq 

terrorists, that activity certainly did not rise to the level of Taliban/Al Q

nections, with terrorist camps operating openly in Afghanistan. The 

contacts that Powell cited were insufficiently developed to merit charact

Al Qaeda campaign as an armed attack by Iraq. As demonstrated by th

tional condemnation of the 1998 US cruise missile strike on a Sudanes

ceutical plant (in contrast to acceptance of a related strike against a terro

in Afghanistan), the international community insists that the evidence 

States base counter-terrorist defensive operations be reliable.42

Anticipatory Self-Defense against WMD and Terrorism

Although some commentators argued that Iraqi ties to Al Qaeda legal

Operation Iraqi Freedom as self-defense against an ongoing attack, an

self-defense43 found greater support within the legal and policy commun

cifically anticipatory defense against the dual evils of weapons of mass d

(whether wielded by a State or terrorists) and transnational terrorism 

State sponsored or not). And Operation Iraqi Freedom made good on 

Bush’s September 2002 National Security Strategy promise, echoed in 

lished weapons of mass destruction and terrorism strategies, to act pre

when necessary.44

The inability to deter a potential attacker, the immediacy of today’s threats, 

magnitude of potential harm that could be caused by our adversaries’ c

weapons do not permit [relying on a reactive posture]. We cannot let our 

strike first.45

Legal arguments based on anticipatory self-defense usually falter on th

of imminency. Recall the international law requirements that an act of s

be proportional and necessary to an armed attack that is either imminent 

way. They derive historically from an 1837 incident involving the Caroli

used to supply Canadian rebels fighting British rule during the Macken

lion. British forces crossed into the United States (after asking the Uni

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without result, to put an end to rebel activities on its territory), cap

Caroline, set it ablaze, and sent it over Niagara Falls. Two US citizens p

An exchange of diplomatic notes ensued in which Secretary of St

Webster argued that defensive actions require “a necessity of self-defens

overwhelming, leaving no choice of means, and no moment for delibe

[and must be] justified by the necessity of self-defence, must be limited b

cessity, and kept clearly within it.”46 Lord Ashburton, his British count

cepted this formula as the basis of their exchange.47 Both the Internation

Tribunal at Nuremberg and the International Court of Justice have cite

dard with approval.48

By any measure of estimation, Iraq was not about to launch an atta

United States, with weapons of mass destruction or otherwise, in the i

future. Nor is there any compelling evidence of Iraq distributing weapo

destruction to transnational terrorists or in any other way directing or s

specific and imminent attacks on the United States. Rather, the United 

lieved that Iraq had failed to fully disarm as required by the UN disarm

gime; had not fully accounted for the biological and chemical weapon

anthrax and the nerve agent VX it possessed immediately after the first 

could rapidly produce and disperse more such weapons; was actively c

efforts to develop additional weapons of mass destruction, as well as exis

bilities, for instance, by dispersing rocket launchers and warheads conta

logical warfare agents into western Iraq while Resolution 1441 w

negotiation; was determined to develop a nuclear weapon and was se

capability to produce fissile material; and was developing the ability 

weapons of mass destruction with ballistic missiles and unmanned aeri

(UAV).49 Although assertions that Iraq possessed biological and chemica

and a nuclear weapons development program are highly doubtable in l

failure of post-attack weapons inspectors to discover convincing 

thereof,50 bear in mind that it is the reasonable belief of the attacker, ev

taken, that is legally relevant.

While these “facts” arguably fail to meet the imminency criterion as 

tionally understood, in its National Security Strategy the United States h

that imminency must be interpreted more liberally in the current circu

We must adapt the concept of imminent threat to the capabilities and obje

today’s adversaries. Rogue states and terrorists do not seek to attack u

conventional means. They know such attacks would fail. Instead, they rely o

terror and, potentially, the use of weapons of mass destruction—weapons tha

easily concealed, delivered covertly, and used without warning.51

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, gjg 

forces to battle against Iraq adopted exactly this liberal interpretation of anti

self-defense. Whereas Iraq’s demonstrated capability and willingness to use we

mass destruction, the high risk that the current Iraqi regime will either empl

weapons to launch a surprise attack against the United States or its Armed F

provide them to international terrorists who would do so, and the extreme ma

of harm that would result to the United States and its citizens from such an 

combine to justify action by the United States to defend itself....52

Those who urge fidelity to an outdated restrictive interpretation of im

fail to grasp the realities of twenty-first-century conflict. In an era when 

may be a shadowy non-State group intent on remaining invisible until i

blow, a requirement to withhold defensive action until that blow is abo

would render the right to self-defense meaningless. Exacerbating matter

that, given WMD proliferation, any miscalculation as to when an attack 

could be fatal.

If international law is to contribute to the maintenance of global 

rights and duties it sets out must be interpreted not only in conformity 

core purposes, but also with sensitivity to the security context in which th

plied. The requirement of imminency deters States from resorting precip

the most powerful—and potentially destabilizing—option available i

tional relations. On the other hand, the right of self-defense exists to allow 

effective shield against aggression. In the Charter framework, the reco

this inherent right compensates for the possibility (a de facto likelihood

Chapter VII scheme for maintaining or restoring international peace an

might fail.

A careful balancing of the presumption against using force with the n

low States an effectual defense suggests the appropriate standard. Stated 

firmative, a State may act anticipatorily (preemptively) if it m

immediately to defend itself in a meaningful way and the potential aggres

revocably committed itself to attack. The determinative question when 

claims to anticipatory self-defense is whether the defensive action occur

the last possible window of opportunity in the face of an attack that was a

tainly going to occur.

This approach to imminency generally operates synergistically with 

sity criterion. After all, if the use of force is not the sole remaining viable 

resolving the matter, then in most cases the last window of opportuni

have been reached.

Assuming, for the sake of analysis, the facts believed by the Coalition 

ment it acted, the case for acting anticipatorily was weak. There is no d

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Iraq presented some threat to the United States and its Coalition partner

larly given its ties to transnational terrorism, its demonstrated willingn

weapons of mass destruction, its possession of such weapons, and its de

hostility to the United States. However, little evidence existed of an Iraq

to use WMD in the near future. Nor did Iraq possess a reliable means of 

those weapons over great distances. Further, although Iraq unquestio

connections to terrorism, there was no suggestion that it was about to tr

weapons it reportedly possessed to terrorists.

On the contrary, both individual States and the United Nations had th

under a microscope. Moreover, the lessons of Afghanistan could not hav

on the Iraqis. The Iraqi leadership must have realized that any use of WM

the United States, whether by themselves or Iraqi-supported terrorists, w

proven suicidal. Indeed, use against any State, or even an internal gro

have been exceedingly irrational, for such use would have immediatel

opposition to a use of force mandate in the Security Council. In fact, UN 

was serving as an incentive for compliance, a fact apparent in Iraqi acc

inspectors pursuant to Resolution 1441, and its subsequent cooperation

grudging, with them; clearly, the Iraqis feared an attack. To conclude in 

cumstances that Iraq was simultaneously planning a strike against t

States or any Coalition partner, and that March 2003 represented the la

of opportunity to mount an effective defense, would have been illogical

In the case of Iraq, anticipatory self-defense arguably fails on the other 

ria as well. That the Iraqis had not fully complied with the requirements o

vant Security Council resolutions is unquestionable; but international p

Iraq had seen progress, particularly following the US and UK saber rattli

Council’s adoption of Resolution 1441. Neither inspection team belie

reached a dead end. And the Security Council could not even agree that 

needed to enforce its prior resolutions, an easier conclusion to reach tha

held an attack was forthcoming and only an immediate armed response c

it off. Thus, Operation Iraqi Freedom falters on the necessity criterion.

But even had an attack been necessary in March 2003, some might ha

that conquest and belligerent occupation of the country was disproporti

instance, selected air strikes against WMD-related targets, or perhaps eve

campaign designed to impose ever-greater costs, might have compelled I

mantle its capabilities, cooperate fully with international weapons inspe

refrain from further involvement with terrorists. That said, given 

Hussein’s record of intransigence (and in light of Operation Desert Fox

to convince him to readmit weapons inspectors), assertions of disprop

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are unconvincing. Of course, because the operation was not 

necessar

term is understood in the law of self-defense, the entire issue is purely the

Breach of the 1991 Cease-Fire

The lead Coalition partners, the United States and United Kingdom

base the legality of their attack against Iraq on a self-defense argument, an

or otherwise. Before commencing hostilities, the United Kingdom mad

in a formal opinion of the Attorney General.53 The United States issued n

rable official legal opinion, a problem because the US administration w

discussing possible reasons for the attack that ranged from WMD and 

cease-fires to terrorism and regime change.54 However, immediately af

of Operation Iraqi Freedom, the United States addressed a letter to the P

the Security Council in which it outlined its legal rationale for resorting 

force, a justification very similar to that contained in the earlier Attorne

opinion.55 The United Kingdom did likewise.56

It is important to distinguish these formal legal justifications from t

other justifications suggested by the US and UK governments, many of 

peared to be robed in the mantle of the law. For instance, in his noti

Congress that the United States was employing force against Iraq, the 

stated he has determined that “further diplomatic and other peaceful m

will neither adequately protect the national security of the United Sta

the continuing threat posed by Iraq, nor lead to enforcement of all releva

Nations Security Council resolutions regarding Iraq.”57 Some might con

such statements indicate application of the preemptive self-defense st

nounced in the 2002 National Security Strategy. Such assertions confu

with the underlying legal basis for application of a strategy in particula

stances. Precision requires distinguishing strategic rationale from under

justification.

To date, the most complete “official” presentation of the legal positio

the United States is contained in an article coauthored by the US Sta

ment’s Legal Adviser, William H. Taft IV, and the Assistant Legal Advise

ical/Military Affairs, Todd F. Buchwald, in the American Journal of Int

Law.

58 In that piece, they amplify on the rationale contained in letters to 

cil President. They begin by accurately dispensing with the notion that p

self-defense is either necessarily legal or illegal; such assertions are red he

cause the legality of preemptive actions is always fact-specific.59 They th

the US legal basis for Operation Iraqi Freedom, one grounded in both th

in 2002–3 and the history of the Iraq case over the past dozen years. The

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combined with that contained in the US and UK notifications to th

Council and the Attorney General’s opinion yield the following justifi

the war.

After Iraq invaded Kuwait on August 2, 1990, the United Nation

Council passed Resolution 660, declaring the attack a breach of the pea

manding immediate withdrawal.60 Over the ensuing two months, it pass

ber of resolutions imposing sanctions on Iraq in the hope of pressu

comply with 660.61 Finally, on November 29 the Council, pursuant to i

VII authority, adopted Resolution 678, which authorized States cooper

Kuwait to use “all necessary means” to implement 660 and subsequent r

and “to restore international peace and security in the area.”62 The latte

particularly relevant as it empowered the use of force not merely to expe

military from Kuwait, but also to create the conditions necessary for re

bility. In order to afford Iraq “one final opportunity,” the resolution set 

ance deadline of January 15, 1991. Meanwhile, the United States and a n

other States had deployed forces to the region “in the exercise of the inh

of individual and collective self-defense.”63

When Iraq failed to comply with the UN resolutions by the deadline

forces attacked. This action was taken pursuant to 678, not a new Securi

mandate; thus, individual States—not the Security Council—determine

not complied and took the decision to attack. By March 3, Iraqi forces w

treat and field commanders negotiated a cease-fire.

Exactly one month later, the Security Council adopted Resolution 6

forth the terms of a cease-fire that would come into effect upon Iraqi a

including terms relating to such issues as borders, terrorism, and, mo

cantly, WMD disarmament. A system of inspections (and weapons destr

the United Nations Special Commission (UNSCOM) and IAEA was set 

latter purpose. Iraq grudgingly accepted the terms on April 6 in a letter to 

rity Council.65

As a matter of law, material breach of the terms of a cease-fire by o

leases the other from its own obligations, including that to refrain from 

force.66 Those who suggest that breach of a cease-fire contained in 

Council resolution requires a subsequent use of force mandate before 

hostilities ignore the fact that the state of war continues during a c

Cease-fires are merely temporary cessations of hostilities, usually agree

order to facilitate negotiations on formal termination of hostilities. O

hostilities have formally ended, for instance through a peace agreemen

UN Charter Article 2(4) prohibition on the use of force become operativ

between the parties to the conflict.68

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On a number of occasions, Coalition forces had responded to Iraq

forcibly, most notably in 1993 and 1998. Although the Security Coun

specifically authorize the use of force either time, significant indications 

rence with the position that Resolution 678 alone sufficed to justify a re

of hostilities existed in both cases. Not only did France (an opponent o

action) participate in the 1993 operation with the United States and Un

dom, but Secretary-General Boutros-Ghali stated:

the raid was carried out in accordance with a mandate from the Security Counc

resolution 678 (1991), and the motive for the raid was Iraq’s violation 

resolution which concerns the cease-fire. As General-Secretary of the United N

can tell you that the action was taken in accordance with the resolutions of the 

Council and the Charter of the United Nations.69

Similarly, following the 1998 Operation Desert Fox strikes, a vituperat

over the necessity of a Security Council Resolution finding Iraq in mate

as a condition precedent to attack took place; tellingly, this debate assum

the Security Council had rendered such a finding, States could have use

response thereto.70

In fact, in the years following implementation of the cease-fire, th

Council found Iraq in non-compliance with Security Council resolution

tiple occasions. For instance, in August 1991, the Council condemned Ir

ous violation of a number of its obligations under . . . resolution 687 (19

its undertakings to cooperate with the Special Commission and the Int

Atomic Energy Agency, which constitutes a material breach of the relev

sions of that resolution which established a cease-fire. . . .”71 In March 

Council issued a stern warning to Iraq that “compliance... with its obli

to accord immediate, unconditional and unrestricted access to the Spe

mission and the IAEA, in conformity with the relevant resolutions, is ne

the implementation of resolution 687 (1991)... [and] that any violat

have the severest consequences for Iraq.”72 That November, the Cou

demned Iraq for “the decision . . . of 31 October 1998 to cease cooperatio

Special Commission” and labeled the step a “flagrant violation of reso

(1991) and other relevant resolutions. . . .”73 Operation Desert Fox comm

December 16, 1998 and continued for three days, but Iraq refused to adm

tors for the next four years.

The most relevant finding of breach came when the Security Coun

mously adopted Resolution 1441 on November 8, 2002. As outlined abo

resolution the Council determined that Iraq had failed to com

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requirements to disclose WMD information, cooperate with weapons i

cut ties to terrorists, cease repression of its population, facilitate human

sistance, and cooperate in accounting for human and property losses fro

Gulf War. It affirmed “Iraq has been and remains in material breach of 

tions under relevant resolutions, including resolution 687 (1991), in 

through Iraq’s failure to cooperate with United Nations inspectors and 

and to complete actions required under paragraphs 8–13 of resol

(1991).”74 Resolution 1441 also specifically “recalled” that Resolution 6

thorized the use of “all necessary means” to uphold and implement both 

subsequent relevant UN resolutions (thereby including 1441) and restor

tional peace and security. The Council afforded Iraq a “final opportunit

its obligations, but “failure by Iraq at any time to comply with and coop

in the implementation of this resolution [which requires a declaration 

pects of the Iraqi WMD program and cooperation with inspectors] shall 

a further material breach of Iraq’s obligation. . .” (emphasis added). R

1441 concluded with a stern warning of “serious consequences” in th

“continued violation [by Iraq] of its obligations.” Significantly, 1441 re

Security Council to reconvene if Iraq did not fulfill its obligations. As no

the Council did so to consider the reports of weapons inspectors, who d

Iraq a clean bill of health, and the concerns of individual States, most n

United States.

What Resolution 1441 did not contain was a requirement to return to 

cil for a use of force authorization. As noted by the US legal advisers, ea

circulated among the Security Council members required the Counc

again to “decide any measures to ensure full compliance of all its releva

tions.”75 Negotiations led to the rejection of this wording.

Based on these facts, the United States and its coalition partners p

rather linear argument. Resolution 687 (1991) conditioned the cease-fi

compliance with its terms. Iraq had not fully complied, resulting in sever

Council declarations that such non-compliance amounted to material b

Council even gave Iraq a “final opportunity” to bring itself into confo

placed Iraq on notice that further non-compliance would constitute 

breach which could result in serious consequences. In the US view, th

Council should have acted at that point to enforce its own resolutions, b

Therefore, the United States and other Coalition States were released 

cease-fire obligations and the initial use of force authorization containe

lution 678 became operative again, as it had on multiple occasions in th

decade. The sole limitation on their actions was that they do no more th

rized by the broad mandate contained in Resolution 678 —to enforce 

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future Council resolutions and restore international peace and secur

more than a decade of violation of Security Council resolutions intende

the conditions for stability, ousting Saddam Hussein and the Baathists fr

fell neatly within that mandate.

As a matter of law, this line of argumentation is sound. Under the pr

humanitarian law, cease-fires are clearly temporary measures that bi

thereto only so long as the other side is not in material breach. The Secu

cil had agreed in November 2002 that Iraq was in breach (thereby mooti

gument about whether a US or UK assertion of breach was justified

immediately prior to the attack the UN’s own inspectors asserted that 

were not meeting all the requirements imposed on them, a situation w

had pre-determined to be a further material breach. As a general mat

hostilities may immediately resume in the event of material breach. In th

lar case, the right to resume hostilities was clearer still, for the cease-fire 

specifically reaffirmed Resolution 678, which authorized the use of forc

as expressly changed.” The only change to that resolution was imposit

cease-fire itself. But with the cease-fire materially breached, the 678 use o

thorization came back into play by the express terms of Resolution 687

Some have claimed that only the Security Council was authorized to 

how to respond to the cease-fire breach it had acknowledged in Resolu

and previous resolutions. However, such assertions ignore the fact that 

fire was not between the United Nations and Iraq, but, according to 687

Kuwait and member States cooperating with Kuwait in accordance with 

678 (1990).” Therefore, those States were empowered under internatio

determine whether to resort to force once a material breach of the ce

which they were a Party occurred.76 The fact that Resolution 687 provid

curity Council remained “actively seized of the matter” has similarly be

terpreted as indicating that exclusive authority to mandate a response 

the Council. In fact, the phrase is nothing more than standard text ap

many resolutions indicating the Security Council will continue to addre

ation at hand (as it did with 1441 and other post-687 resolutions). Unle

cally provided, such text does not preclude actions (that are in compl

international law) taken by States or other international governmental 

tions to respond to a situation. It has also been argued that the use of forc

zation was limited to expelling the Iraqis from Kuwait, and that any u

beyond that purpose would require further Council authorization. Ho

stated purpose of 678 was to “uphold and implement resolution 660 (19

subsequent resolutions and to restore international peace and security in 

That this was a broad grant of authority is evidenced by inclusion of the d

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cease

fire terms (from borders to disarmament) in Resolution 687. C

1990–91, the Council understood that restoring international peace an

involved much more than merely liberating Kuwait.

Admittedly, this line of analysis, albeit legally valid, poses a difficult pr

lemma, for the views of the Security Council on the use of force agains

fered dramatically in March 2003 from those of April 1991. Yet, the Cou

face of US and UK opposition, was powerless to withdraw, or even mod

its 1990 use of force authorization or the terms of its 1991 cease-fire.77 Th

ticularly vexing problem given post-conflict difficulties of finding the WM

rorism smoking guns. Thus, we witnessed a use of force based on Securi

resolutions that the Council itself would not have approved had it been t

cision-maker. It represented the triumph of law over policy.

In the future, the Council is likely to be very reticent about granting op

continuing authority to employ force. In particular, it can be expected t

craft its Chapter VII resolutions to require explicit follow-on authorizati

resumption of hostilities should a cessation of hostilities occur. That said

doxical legal fact remains that based on the interplay of a series of Securi

resolutions and the law of cease-fires, Operation Iraqi Freedom was leg

Humanitarian Intervention

There is no question that the Security Council could have authorized an 

tion into Iraq based on the regime’s mistreatment of its population. In 

the internal situation need merely have represented a “threat to the pea

Article 39 of the Charter, such that the Council’s Article 42 authority ve

the Council itself determines when a threat has emerged, it enjoys unfe

cretion in authorizing a forcible humanitarian intervention under Chap

the Charter.

The Security Council has mandated such interventions on numerous 

For instance, when internal order in Somalia collapsed in 1992, the Coun

rized “member States. . . to use all necessary means to establish as soon as 

secure environment for humanitarian relief operations in Somalia.”78 T

States responded with Operation Restore Hope, conducted by the mu

Unified Task Force (UNITAF). The following year, acting under Chapt

Council approved the replacement of UNITAF by the United Nations 

in Somalia (UNOSOM) II.79

The nature of the intervention need not be classically humanitarian

the Security Council authorized member States to forcibly intervene in H

fect the “restoration of the legitimate authorities of the Government o

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Although the resolution cited the humanitarian situation in the country

the denial of civil liberties, the intent was clearly political in purpos

change through “the prompt return of the legitimately elected Presid

Bertrand Aristide, within the framework of the Governors Island Agree

Some humanitarian interventions mounted without Security Counc

have subsequently acquired the support of the Council. In 1990, the 

Community of West African States (ECOWAS) intervened in Liberia w

approval. The following year, a Security Council Presidential Statem

mended the efforts made by the ECOWAS Heads of State and Governme

mote peace and normalcy in Liberia.”82 When fighting broke out again in 

Council praised ECOWAS for its role in addressing this “threat to int

peace and security.”83 ECOWAS conducted yet another humanitarian 

tion without Security Council sanction in 1997 when events in Sierra Leo

out of control. As in the Liberia case, an ex post facto Presidential Statem

mended ECOWAS for the “important role” it was playing “towards th

resolution of this crisis.”84

Although also conducted without Security Council objection, these ca

readily distinguished from the situation in Iraq. First, regional organiza

ried them out, thereby adding some degree of legitimacy to the operat

ther, there was no apparent opposition to the interventions in th

Council, and certainly none from any of the Permanent Five. Finall

countries the humanitarian crisis was widespread, immediate, and horr

The 1999 NATO intervention in Kosovo represents a closer case bec

the Security Council had previously labeled the situation a threat to the 

Iraq and the operation was mounted in the face of opposition on th

Council, most significantly from Russia. Unsurprisingly, Operation Al

generated significant criticism from the international legal community. 

few contested the legitimacy of the NATO operation, many supporters 

edged the frailty of its asserted legal basis. Kosovo was not, after all, Rwan

deaths numbered in the hundreds of thousands. In that case, individual 

the international community were roundly criticized for inaction; but 

scale of the tragedy that tended to underpin such criticism.85

Even with the rise of concepts such as human rights, human dignity, 

der, and sovereignty residing in the citizenry rather than the governmen

tional law continues to react negatively to the prospect of State A determ

events in State B merit resort to the use of force. UN Charter Article 2

prohibits the use of force against the territorial integrity or political inde

of any State, continues to enjoy normative positive valence. Asserting e

to this prohibition beyond those found within the four corners of the 

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self

defense and Security Council authorizationinevitably generates s

and opposition.

Iraq lies further down the continuum of situations that might legally 

manitarian intervention than the aforementioned cases. With Iraq, no re

ganization rose to the challenge of intervention. On the contrary, clo

those who did attack Iraq were openly opposed to intervention withou

approval. Further, the humanitarian situation in the country, albeit depl

not rise to the level of suffering of the previous precedents. In the period 

the attack, there is no question that torture was widespread, ethnic mino

expelled from their homes, infant and child mortality rates had grown dr

as a result of Saddam Hussein’s non-cooperation with the “food-for-oil

assets, and that the humanitarian situation was generally deteriorating

theless, the scale and scope of suffering had not reached genocidal propo

had in Rwanda, nor was there fear of an imminent campaign of geno

Kosovo. Simply put, the human situation in the country was not at a poi

majority of international legal scholars and practitioners would agree th

basis for humanitarian intervention, a controversial matter in interna

even in the abstract, existed.

Thus, while the regime’s treatment of the Iraqi population was mora

gally reprehensible, and although President Bush repeatedly cited such 

as a rationale for action against Iraq (for example, during his 2002 State 

ion Address), it did not justify humanitarian intervention absent Securi

de jure or de facto acquiescence. Although the jus ad bellum has moved in 

tion of increased acceptance of humanitarian intervention since the e

Cold War, by March 2003 it had not reached situations such as that in Ira

is unsurprising that none of the countries participating in Operation I

dom formally cited the internal suffering as legally justifying their actio

Regime Change

In 1998, a distinguished group of individuals, many of whom now o

positions in the Bush administration, openly urged the removal b

Saddam Hussein’s regime.87 Clearly, the Administration desperately d

gime change in Iraq. Yet, despite a self-evident need for a new regime in 

try, and although the US administration actually demanded on March 

that Saddam Hussein step down within 48 hours or face forceful remova

no independent basis in international law for regime change. Rath

change can only be a legitimate consequence of otherwise legal uses of f

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For example, the Security Council may determine that continued g

by a particular group threatens international peace and authorize the r

that government under Chapter VII, as it did in the case of Haiti in 1994

determine that another situation amounts to a threat to the peace, breac

or act of aggression and authorize the use of military force pursuant to A

restore international peace and security. If the fall of a regime results fro

suing military action, that regime change would be legal. For instance, m

that Coalition forces should have marched on Baghdad in 1991 to topp

Hussein because with the dictator still in power it was impossible to pe

restore international peace and security pursuant to Resolution 678. Sim

effective defense, either individual or collective, may result in the fall of 

that mounted an aggressive attack. It is even possible that a humanitarian 

tion could result in removal of a regime, either as a coincidental consequ

operation or because doing so is necessary to safeguard the civilian p

That certainly would have been the case with the Hutu-dominated gove

Rwanda had external forces intervened in 1994 to stop its slaughter of 

However, States may not, absent Security Council mandate, act for the 

pose of removing a regime of which they disapprove; doing so would co

patent violation of Article 2(4) of the UN Charter. Therefore, in the ab

separate legal basis for action (which existed in this case), any effort 

Saddam Hussein from power would have been illegal.

Conclusions

Despite the often-confusing rhetoric that has accompanied Opera

Freedom, there is only one legal basis on which the action could have be

justified, and it is on that basis that the States forming the coalition again

Hussein rested their case. Therefore, the war against Iraq is unlikely to im

rent understanding of the jus ad bellum in any dramatic way, as Ope

during Freedom did with regard to the use of force against terrorists and 

supporters.

If anything (and somewhat counter-intuitively), the affair is 

strengthen the centrality of the UN Charter use of force regime and th

Council’s role in determining when States may employ armed force. 

agreed that first resort in the matter was to the Security Council. In

United States and its Coalition allies actively sought a use of force man

the Council. When they did not receive one, they nevertheless justifie

tions on a string of Security Council resolutions reaching back over 

Analogously, States opposed to Operation Iraqi Freedom based their res

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the argument that the Coalition should not have attacked without a

Council mandate.

Had the Coalition chosen any other ground to justify the attack, curr

vailing interpretations of the jus ad bellum would have been placed und

cant stress, with some scholars and practitioners arguing for new interpr

existing law in light of changed circumstances, others suggesting the em

new norms, and many asserting that the attack was quite simply unlawfu

tunate that the Coalition avoided alternative justifications, for, as every la

knows, hard cases make bad law. Instead, the lesson of this experience is 

will continue to look to the Security Council as the font for authorizat

force; therefore, that body must exercise its discretion with great care, su

cision, and an eye to the future.

Notes

1. At the time of the attack, 49 nations were publicly committed to the Coalitio

ranged from contributions of troops to political actions. White House Press Release

Iraqi Freedom: Coalition Members, Mar. 27, 2003, available at http://www.whit

news/releases/2003/03/20030327-10.html.

2. Patrick E. Tyler & Felicity Barringer, Annan Says U.S. Will Violate Charter If It A

Approval, NEW YORK TIMES, Mar. 11, 2003, at A10. Many academics also found th

See, e.g., the letter from 16 law professors, THE GUARDIAN (London), Mar. 7, 2003, a

also Adam Roberts, Law and the Use of Force After Iraq, SURVIVAL, Summer 2003, a

For an excellent compilation of articles on both sides of the issue, see Future Implic

Iraq Conflict, SELECTIONS FROM THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

3. That component of international law that governs when a State may resort to forc

of its national interests, such as defending itself from armed attack or acting pu

mandate from the United Nations Security Council. It is distinguished from the 

which addresses the conduct of actual hostilities, for example by providing certain 

individuals protected status during hostilities.

4. The 1999 NATO war against the Federal Republic of Yugoslavia and the 2001 

Afghanistan, respectively.

5. U.N. CHARTER art. 41.

6. SC Res. 678 (Nov. 29, 1990).

7. SC Res. 660 (Aug. 2, 1990).

8. The Council used ad hoc coalitions for operations against Iraq in 1990-1 (SC Re

note 6) and to set up the initial International Security Assistance Force in Afghani

(SC Res. 1368 (Sept. 12, 2001)). By contrast, the Council turned to NATO to lea

Kosovo in 1999 (SC Res. 1244 (June 10, 1999)). An example of a “blue helmet

UNAMSIL in Sierra Leone, which received its first mandate in 1999 (SC Res. 12

1999)).

9. SC Res. 1441 (Nov. 8, 2002).

10. Required by SC Res. 687 (Apr. 3, 1991).

11. Specifically, the United Nations Special Commission (UNSCOM), Internatio

Energy Agency (IAEA), and United Nations Monitoring, Verification and 

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()gqp

Iraq expelled both in 1998. UNMOVIC was established as the successor to UNSCO

1284 (Dec. 17, 1999)).

12. Required by SC Res. 687, supra note 10.

13. Required by SC Res. 688 (Apr. 5, 1991).

14. Required by id.

15. Required by SC Res. 686 (Mar. 2, 1991); 687, supra note 10; 1284, supra note 1

16. Text of 4714th meeting, SC, U.N. Doc. S/PV.4714 (Mar. 7, 2003).

17. SC Res. 687, supra note 10.

18. Text of 4644th mtg., SC, U.N. Doc. S/PV.4644 (Nov. 8, 2002).

19. Id.

20. Id.

21. Briefing by Secretary of State Powell to the Security Council, U.N. Doc. S/PV.4

2003).

22. White House Press Release, President Says Saddam Hussein Must Leave Ira

Hours. Remarks by the President in Address to the Nation, Mar. 17, 2003, availab

www.whitehouse.gov/news/releases/2003/03/20030317-7.html.

23. “All Members shall refrain in their international relations from the threat or 

against the territorial integrity or political independence of any state, or in any ot

inconsistent with the Purposes of the United Nations.” U.N. CHARTER art. 2, para 

24. E.g., SC Res. 1378 (Nov. 14, 1991); SC Res. 1386 (Dec. 20, 2001); SC Res. 13

2002).

25. See, e.g., W. Michael Reisman, International Legal Responses to Terrorism, 22 

JOURNAL OF INTERNATIONAL LAW 3, 33-4 (1999); Stuart G. Baker, Comparing th

Airstrike on Iraq to the 1986 Bombing of Libya: The New Interpretation of Article 51, 

JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 99 (1994).

26. GA Res. 41/38 (Nov. 20, 1986).

27. Israelis Praise It While Arabs Vow to Avenge It, CHICAGO TRIBUNE, Apr. 16, 198

28. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

29. Id. at 103, para. 195.

30. Id.

31. Letter from the Permanent Representative of the United States of America to 

Nations Addressed to the President of the Security Council, U.N. Doc. S/2001/9

2001).

32. Sean D. Murphy, Contemporary Practice of the United States Relating to Intern

96 AMERICAN JOURNAL OF INTERNATIONAL LAW 237 (2002); Sean D. Murphy, Te

the Concept of “Armed Attack” in Article 51 of the U.N. Charter, 43 HARVARD INTE

LAW JOURNAL 41 (2002).

33. Murphy, Contemporary Practice, supra note 32, at 248. The European Council “

its staunchest support for the military operations . . . which are legitimate under the 

United Nations Charter and of Resolution 1368.” Declaration by the Heads 

Government of the European Union and the President of the Commission: Follo

September 11 Attacks and the Fight Against Terrorism, Oct. 19, 2002, SN 4296/2/0

34. See, e.g., SC Res. 1267 (Oct. 15, 1999); SC Res. 1363 (July 30, 2001); SC Res. 1378

24; SC Res. 1390, supra note 24.

35. President George W. Bush, Address Before a Joint Session of Congress on the U

Response to the Terrorist Attacks of September 11, 37 WEEKLY COMPILATION OF PR

388

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(p)

through Pakistan.

36. This principle was articulated most notably in the Rendulic case. German Gene

was accused of excessive destruction during the German evacuation of Norw

acquitted of the charge on the basis of his (mistaken) belief that his forces were being 

the Russians and that therefore the destruction was necessary to deny them res

Hostages Case (U.S. v. List et al.), 11 T.W.C. 759, 1253–54 (1950). Note that the In

Criminal Court Statute provides that mistake of fact is a ground for excludi

responsibility if it negates the mental intent element of the offense. Rome Sta

International Criminal Court art. 32, July 17, 1998, 2187 U.N.T.S. 90.

37. Proportionality and necessity have specifically been cited as customary internat

the International Court of Justice. Military and Paramilitary Activities, supra note 

para. 194; Oil Platforms (Iran v. U.S.), Merits (Nov. 6, 2003), 42 INTERNATIO

MATERIALS 1334, 1353, 1361, paras. 43 & 74, available at http://www.icj-cij.org/icjww

iop/iopframe.htm.

38. U.N. Doc. S/PV.4701 (Feb. 5, 2003).

39. Id. at 14-7.

40. SC Res. 1441, supra note 9.

41. For a fuller discussion of this analysis, see Michael N. Schmitt, Counter-terrorism 

of Force in International Law, 32 ISRAEL YEARBOOK ON HUMAN RIGHTS 53 (2002). 

attacks of September 11, 2001, the various attacks were primarily characterized as 

nature. 9/11, as explained in the cited article, fundamentally altered the in

community’s perspective on transnational terrorism as a matter of law.

42. See id. for a fuller discussion of this point.

43. For a comprehensive analysis of the law underpinning anticipatory self-defense

Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties H

THE LAW OF MILITARY OPERATIONS 365 (Michael N. Schmitt ed., 1998) (Vol. 72, U

College International Law Studies).

44. THE WHITE HOUSE, NATIONAL SECURITY STRATEGY OF THE UNITED STATES O

(2002); THE WHITE HOUSE, NATIONAL STRATEGY TO COMBAT WEAPONS 

DESTRUCTION (2002); THE WHITE HOUSE, NATIONAL STRATEGY FOR COMBATING 

(2003).

45. The Secretary of Defense’s Annual Report makes the same point in a “lesso

section: “[D]efending the United States requires prevention and sometimes preempt

possible to defend against every threat, in every place, at every conceivable tim

defense . . . is to take the war to the enemy. The best defense is a good offense.” 

Rumsfeld, Annual Report to the President and the Congress 30 (2002), 

www.defenselink.mil/execsec/adr2002/pdf_files/chap3.pdf.

46. Letter From Daniel Webster, US Secretary of State, to Henry Fox, British 

Washington (Apr. 24, 1841), in 29 BRITISH AND FOREIGN STATE PAPERS 1840–18

(1857).

47. Letter from Lord Ashburton to Daniel Webster, US Secretary Of State (July 28, 

BRITISH AND FOREIGN STATE PAPERS 1841–1842, at 1858 (1857), available 

www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm.

48. International Military Tribunal (Nuremberg), Judgment And Sentences, 41 

JOURNAL OF INTERNATIONAL LAW 172, 205 (1947); Military and Paramilitary Acti

note 28, at 94, para. 176; Legality of the Threat or Use of Nuclear Weapons, Adviso

1996 I.C.J. 226, 245, para. 41 (8 July); Oil Platforms, supra note 37, at 1353, 1361, p

389

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() 

905 (1987).

49. Powell Briefing, supra note 21.

50. For instance, former Director of the Iraq Survey Group, David Kay, admitted th

almost all wrong” with regard to the Iraqi weapons of mass destruction prog

testifying before the Senate Armed Services Committee in January 2004. That said

that Iraq clearly violated Resolution 1441. Transcript: David Kay at Senate Hear

2004, http://www.cnn.com/2004/US/01/28/kay.transcript/.

51. NATIONAL SECURITY STRATEGY, supra note 44, at 15.

52. Authorization for the Use of Military Force Against Iraq Resolution of 2002, Pub

107–243, 116 Stat. 1498, 1499 (2002).

53. Lord Goldsmith, Attorney General Clarifies Legal Basis for the Use of Force A

(Mar. 18, 2003), http://www.fco.gov.uk/servlet/Front?pagename=OpenMarke

ShowPage&c=Page&cid=1007029393879&a=KArticle&aid=1047661460790.

54. In the days immediately preceding the attack, President Bush did indicate, howe

primary basis for the forthcoming operation was to be found in Security Council 

678, 687, and 1441. White House Press Release, supra note 22. This speech was mad

17, the same day the UK Attorney-General appeared before the House of Lords 

essentially the same position. It would appear that by this point, the United States 

Kingdom had reached agreement on the justification, among the many that had been 

unofficially, for their forthcoming action.

55. Letter dated March 20, 2003 from the Permanent Representative of the Unit

America to the United Nations addressed to the President of the Security Council, U

2003/351 (Mar. 21, 2003), available at http://documents-dds-ny.un.org/doc/UN

N03/290/79/doc/N0329079.DOC?OpenElement.

56. Letter dated March 20, 2003 from the Permanent Representative of the United 

Great Britain and Northern Ireland to the United Nations addressed to the Pres

Security Council, U.N. Doc. S/2003/350 (Mar. 21, 2003), available at http://docu

ny.un.org/doc/UNDOC/GEN/N03/290/73/pdf/N0329073.pdf?OpenElement.

57. Text of a Letter from the President to the Speaker of the House of Represen

President Pro Tempore of the Senate, Mar. 21, 2003, available at http://www.whit

news/releases/2003/03/20030321-5.html.

58. William H. Taft & Todd F. Buchwald, Preemption, Iraq, and Internation

AMERICAN JOURNAL OF INTERNATIONAL LAW 557 (2003).

59. On the topic of preemption in international law, see Michael N. Schmitt, 

Strategies in International Law, 97 MICHIGAN JOURNAL OF INTERNATIONAL LAW 5

60. SC Res. 660, supra note 7.

61. SC Res. 661 (Aug. 6, 1990); 662 (Aug. 9, 1990); 664 (Aug. 18, 1990); 665 (Aug. 25

(Sept. 16, 1990); 670 (Sept. 25, 1990); 674 (Oct. 29, 1990); 677 (Nov. 28, 1990).

62. SC Res. 678, supra note 6.

63. Letter dated 9 August 1990 from the Permanent Representative of the Unit

America to the United Nations, U.N. Doc. S/21492 (Aug. 10, 1990).

64. SC Res. 687, supra note 10.

65. Letter from Permanent Representative of Iraq to Secretary-General and Secu

President, U.N. Doc. S/22456 (Apr. 6, 1991), reprinted in JOHN N. MOORE, CRISIS I

497 (2002).

390

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y 

Articles 36 and 40 of the 1907 Hague Regulations Respecting the Laws and Custom

Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

67. See, e.g., Jules Lobel & Michael Ratner, Bypassing the Security Council: 

Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime, 93 AMERICA

OF INTERNATIONAL LAW 124 (1999).

68. On this point, see Yoram Dinstein, War, Aggression, and Self-Defence (3d ed., 

69. Transcript of Press Conference by Secretary-General Boutros Boutros-Ghal

Diplomatic Press Club Luncheon, Paris, Jan. 14, 1993, U.N. Doc. SG/SM/4902/Rev

70. Taft & Buchwald, supra note 58, at 560. The United States specifically g

operation on previous resolutions. As President Clinton noted, the armed action was 

with and has been taken in support of numerous U.N. Security Council resolution

Resolutions 678 and 687. . . .” Letter to Congressional Leaders on the Military Str

Iraq, reprinted in 2 PUBLIC PAPERS 2195 (Dec. 18, 1998).

71. SC Res. 707 (Aug. 15, 1991).

72. SC Res. 1154 (Mar. 2, 1998).

73. SC Res. 1205 (Nov. 5, 1998). Other significant examples of the Security Council 

in non-compliance include SC Res. 1060 (June 12, 1996); SC Res. 1115 (June 21, 19

1137 (Nov. 12, 1997).

74. Paragraphs 8–13 provide for the destruction under international supervision 

and missiles, reports on possession of particular items, cooperation with UNSCO

IAEA, and a commitment to refrain from further development or acquisition o

items.

75. Taft & Buchwald, supra note 58, at 562.

76. There is some controversy over the impact of the Vienna Convention on the Law 

(considered a restatement of customary law for non-Parties) on the cease-fire bre

Convention, May 23, 1969, 1155 U.N.T.S. 331 (entered into force January 27, 19

60(2) provides that in the event of a material breach by one of the parties to a multila

the others can suspend the treaty’s operation in whole or in part by unanimous 

However, it also provides that if a party is “specially affected” by the breach, th

unilaterally suspend as between itself and the breaching party. Thus some have su

former principle means that the United States and the United Kingdom could 

determine the cease-fire to be suspended, whereas others argue they are specially a

therefore, could do exactly that. A better approach is to view the matter less legal

focus instead on the lex specialis of the humanitarian law of cease-fires. This woul

party to the cease-fire to resume hostilities in the event of a material breach.

77. The practice of the Security Council in terminating a use of force authorization 

expressly terminate in a subsequent resolution or provide an expiration date in the au

itself. An example of the former is Resolution 1031 (SC Res. 1031 (Dec. 15, 199

whereas examples of the latter include Resolutions 954 (SC Res. 954 (Nov. 4, 1994

and 929 (SC Res. 929 (June 22, 1994)) (Rwanda).

78. SC Res. 794 (Dec. 3, 1992).

79. SC Res. 814 (Mar. 26, 1993).

80. SC Res. 940 (July 31, 1994).

81. Id.

82. U.N. Doc. S/22133 (Jan. 22, 1991).

83. SC Res. 788 (Nov. 19, 1992).

84. U.N. Doc. SC/6481 (Feb. 26, 1998).

391

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ppqy 

1994 Genocide in Rwanda, annexed to Letter dated 15 December 1999 from th

General addressed to the President of the Security Council, U.N. Doc. SC/1999/12

1999), available at http://daccessdds.un.org/doc/UNDOC/GEN/N99/3

N9939547.pdf?OpenElement.

86. HUMAN RIGHTS WATCH, FORCIBLE EXPULSION OF ETHNIC MINORITIES (M

HUMAN RIGHTS WATCH, IRAQ: THE DEATH PENALTY, EXECUTIONS, AND “PRISON C

(2003); HUMAN RIGHTS WATCH, THE IRAQI GOVERNMENT ASSAULT ON THE MA

(2003); AMNESTY INTERNATIONAL, ANNUAL COUNTRY REPORTS (1995–2003), 

www.amnestyusa.org/countries/iraq/index.do; Reports of the Special Rapporteur 

Commission on Human Rights on the Situation of Human Rights in Iraq, availab

ap.ohchr.org/documents/dpage_e.aspx?m=88.

87. Letter to the President (William Clinton), Jan. 26, 1998, www.newamericanc

iraqclintonletter.htm. The group included Richard Armitage, John Bolton, Pete

Donald Rumsfeld, and Paul Wolfowitz.

88. White House Press Release, supra note 22.

89. The Iraq Liberation Act expressed the “sense of Congress” that it should be the 

United States to support efforts to remove the regime headed by Saddam Hussein fro

Iraq and to promote the emergence of a democratic government to replace that reg

authorized support to the Iraqi opposition, but did not purport to authorize any us

the United States. Public Law No. 105–338, 112 Stat. 3178 (1998).

392

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PART VII

TARGETING TERRORISTS

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XVIII

Debating the Issues

Kenneth Roth and Robert F. Turner*

Moderator: The last set of questions to the preceding panel members i

segue to questions of law enforcement and military responses to fighting 

and in this particular case, targeting terrorists. We are now going to ta

look at questions of preemption and prevention, as well as specific techn

might apply to combating terrorists and terrorist groups.

I am a journalist and generally examine the issue of targeting terroris

a domestic lens focused on homeland security and criminal justice, so I a

forward to a debate that broadens the focus to include international law 

tary operations. This debate is much more interesting when we start to 

activities conducted beyond the borders of the United States with activ

ducted within our borders, and then determining what standards will be 

targeting terrorists abroad versus within the United States.

Our first speaker is Mr. Ken Roth, who has been Executive Director 

Rights Watch since 1993, and served as the deputy director of that or

from 1987 to 1993. Human Rights Watch is the largest human rights or

based in the United States. Its researchers conduct fact-finding investiga

human rights abuses in all regions of the world and then publishes those f

dozens of books and reports every year, generating extensive coverage in 

international media.

* Mr. Kenneth Roth is the Executive Director of Human Rights Watch. Professo

Turner is Associate Director, Center for National Security Law at the University 

School of Law.

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Mr. Roth: It is an honor to be here. I am grateful for the invitation. I am 

ful to the Supreme Court for waiting to hear the benefits of today’s co

before deciding the Hamdi and Padilla cases now pending before it so th

address the issues from a blank slate. What I will address this morning i

tion: what are the limits to the war on terror. More specifically, when is 

terror a real war and when is it a metaphor more akin to the war on dr

war on poverty or various other efforts to mobilize the population to 

important goal.

Obviously Afghanistan was a war. There is no question that arme

occurred there. Insofar as Iraq had anything to do with terrorism, no 

that was a war, too. But what about elsewhere? President Bush has spo

the war on terror being global, since al Qaeda has cells around the wo

war against it and the war on terrorism must be pursued globally. Is he s

a metaphoric sense or literally? The answer to that question is important 

we’re talking only metaphor, then we are obviously applying the rules 

time law enforcement. And under those rules, as you all know, you hav

arrest a suspect if at all possible—indeed only arrest the suspect upon 

cause. Then the suspect is brought before a judge, represented by a lawye

to a trial, et cetera. Lethal force can sometimes be used but only if strictly 

to stop a threat to life or a threat of serious bodily injury to another. An

force is carefully circumscribed. In a war context, you look at the law 

conflict. If you have detained an enemy combatant, there is no need to 

lawyer, no need to give him a trial, no need to charge him with anyth

midst of battle, you can shoot to kill. You don’t have to attempt arrest. O

if an enemy surrenders, you have to respect that. But if, for example, 

combatant is walking down the street or operating on patrol, you can sh

You don’t need to first attempt an arrest. Those are big differences. Th

is: which set of rules should apply to combating terrorists—those for law 

ment or those for law of armed conflict.

Unfortunately, the law of armed conflict provides relatively little gu

making that decision. It sets forth detailed rules that apply once you have 

conflict. But it is unclear, however, exactly when the circumstances are 

they may be considered to be an armed conflict.

If you look at the commentary to the 1949 Geneva Conventions, fo

there are references to the intensity of the violence and to the regularity 

clashes. You can argue that the series of al Qaeda operations from th

embassies to the USS Coleto the World Trade Center are but a series of ve

tant criminal acts, or you might argue that those are various acts of war. T

396

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terribly good way to resolve that argument by looking to the Geneva Co

and the accompanying commentary. You end up having a battle of met

What I propose to do is to look beyond the metaphors and to try to 

few cases—some troublesome cases—to see whether they help us decide 

at which the real war on terrorism should end and the metaphor shou

would like to examine these cases from a policy prospective to determin

ally makes sense. I’ll conclude by proposing a general rule that might pro

ance in drawing that line.

The obvious place to start is the Padilla case. Padilla, of course, is t

“Dirty Bomber” who flew from Pakistan to Chicago’s O’Hare Airport. 

pears that maybe he wasn’t pursuing a dirty bomb; maybe he was going t

an apartment building. But whatever he was doing, he seems to have bee

good. The US Government, after initially arresting him as a material wi

quickly moved to classify him as an enemy combatant and then shipped 

naval brig in South Carolina. There he was denied access to his lawyer for 

ods of time on the grounds that he didn’t have to be charged with a crim

Now, does that make sense? Is Padilla, who was far from any traditio

field, an enemy combatant? One way to address that question is to seri

sider what it would mean if Padilla really were an enemy combatant. 

stepping off that plane in O’Hare Airport and through the terminal to p

luggage were sufficient to make him an enemy combatant as alleged, th

be no duty to arrest him. He could simply have been shot under the pro

the law of armed conflict that entitle a belligerent to kill enemy combat

I am troubled by that conclusion. I suspect many of you are as well. B

me to question whether the characterization of an individual, even if he 

good, as an enemy combatant is appropriate. One of the reasons I am t

that there was a functioning legal system in the United States. Padilla ea

have been arrested and brought before it. Indeed, he was, as a material w

fore being made an enemy combatant.

Another enemy combatant who was arrested in the United States wa

He was arrested in his house in Peoria, Illinois. We now know his main o

being a nephew of the alleged 20th hijacker but at the time it was alleged t

a member of a sleeper cell. Again if he was really an enemy combatant

have been shot as he came to open the door. He didn’t have to be arrest

really where we want to go?

If you think about another war that is generally understood to be met

the war on drugs—we are dealing with comparable dangers in many resp

trafficking is also an international phenomenon; there is a raging armed 

Columbia. Even though drug cartels send clandestine agents to the Un

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who engage in violent activities that kill thousands of people, nonethel

uncomfortable treating drug traffickers as combatants. We don’t star

them—we arrest and prosecute them. Why is terrorism different when w

situation where prosecution is possible?

Now let’s look on the other side of the spectrum. This morning’s 

cussed the 2002 attack on a senior al Qaeda operative in Yemen. This is a

where I think it was appropriate to classify him as a combatant, but t

States never made a good case at explaining its reasoning. At the time, a

was that a CIA-operated Predator drone flying over Yemen launched 

which struck a car carrying Abu Ali al-Harithi, along with several of h

coconspirators, and that they were all killed. Very little else beyond 

known. In fact, even that information was not supposed to be made pub

fort was made at the time to justify the killing of al-Harithi as an enemy co

So let me try to do that in retrospect. I think that this was probably 

stance in which it was appropriate to classify him as an enemy combatan

though it appears al-Harithi had been responsible for the attack on the C

of itself that would not be sufficient because if you’ve simply committed 

the past, that doesn’t justify shooting you today. To be shot today, you 

engaged in ongoing combatant activities. So the allegation has to be that 

was engaging in continuing terrorist activities—an allegation that t

States never made publicly. Yet my understanding is that this was believe

case.

Second, the United States never made the case publicly as to why h

have been arrested. In fact, we know that it would have been very difficu

him. In a prior attempt by Yemen forces to arrest him, a dozen Yeme

were killed. Al-Harithi stayed in the tribal areas of Yemen where he wa

beyond the reach of the Yemeni government.

You might ask, “Couldn’t the United States, with Yemen’s permissio

troops to arrest him?” I understand that the United States considered th

tive, but apparently felt it would be impossible for troops to infiltrate 

without the tribal forces immediately knowing they were there. Under 

cumstances, there would have been fierce resistance with casualties far i

those sustained in the Predator attack.

I think the case could have been made that with respect to al-Harithi y

active combatant engaged in ongoing plans against the United States and 

ity to use traditional law enforcement means to arrest him. Under thos

stances, no one should contend that the United States could not take 

defend itself. Treating him as an enemy combatant and resorting to letha

appropriate. In that case, war rules were the right rules, even though t

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States didn

t explain its case well. But the alHarithi case is more of an 

than the rule.

Just to give you a few more examples, there were six Algerians a

Bosnia. In that case, the United States decided initially to employ the law 

ment approach and brought these individuals before a Bosnian court. 

which had been created by the United States, agreed to accept the cases 

for the evidence, but it then found the evidence insufficient to hold th

The United States responded by saying that it had decided instead to trea

enemy combatants and whisked them off to Guantanamo Bay despite th

the Bosnian court order directed their release.

That I find troublesome because here was an available, clearly functio

system, hardly hostile to US interests, in which honest justices looked 

and determined they had not been provided sufficient evidence to warr

cution. Rather than produce the evidence, rather than using the functio

cial system, the United States sent them off to Guantanamo Bay.

Something very similar happened in Malawi where five al Qaeda sus

picked up. The local court system looked at the evidence, determined th

evidence of criminal conduct, and ordered them released. The United S

“No problem, we’ll treat them as enemy combatants,” and detained them 

In that case, sometime later the United States decided that in fact the 

court was correct; there was no evidence. The suspects were then release

lustrates the problem with allowing war rules to be applied globally e

law enforcement is an option. Frankly, it means that there is nothing tha

the US Government from picking up any one of us, declaring us an en

batant, and whisking us away without access to a lawyer. Indeed, as we k

al-Harithi, there’s nothing to stop the US Government from shooting us 

ing us enemy combatants and just firing away. I had the chance to ask 

General Ashcroft about this and he said, “Oh, trust us; we’ve only done t

referring to the Padilla and the al-Marri cases.

I think it’s fair to say those are test cases. If the Bush Administration g

ing it wants from the Supreme Court, we are going to see many more of t

We already have many more of them outside of the United States. This 

larly worrisome in terrorism cases because much of what is said to be kno

terrorists is based on intelligence that can be of varying reliability. Part

that situation, you want the evidence tested in an open court in some k

versarial process.

With those dangers in mind, I would like to propose a three-part test

rules that I believe should govern our efforts to draw the line between wa

law enforcement rules.

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Obviously, you have Afghanistan and Iraq (at least in the initial sta

military campaign) as traditional battlefields. But in the absence of a t

battlefield, I would first argue that you need to be able to make the case th

a regularity and level of intensity to the violence such that it is fair to ch

the overall campaign as one of war; that a mere criminal act here or there 

sufficient.

Second, in determining whether a particular individual is a com

must be a direct participant. Here I refer to the traditional rules on whe

ular or civilian can be treated as a combatant. You need some direct par

in this violent activity, although that does not necessarily imply carryin

placing a bomb. I understand the role of planners or organizers, but th

to be made that this is a direct participant, not a sympathizer or a fina

have to keep in mind the traditional line that we draw even in a class

tween combatants and others who provide support, but who may not b

targeted.

Finally, and most important, law enforcement options have to be un

If someone can reasonably be arrested, if there is a functioning cou

those avenues should be pursued. We should reserve the use of war rule

tions when armed combat is really the only option—situations like tho

ist in the tribal areas of Pakistan or in Afghanistan before the conflict 

where you had an uncooperative government that was sheltering indivi

were actively in the process of launching attacks against the United Sta

are not circumstances where we want to require the law enforcement o

Now let me just briefly say a word about torture.

I don’t have to repeat the international humanitarian law rules p

torture for this audience; you know these all too well. I want to note th

situations where the Geneva Conventions are inapplicable; there is a pa

of law that military lawyers often forget about, that is, human rights law

applies even in the absence of the Geneva Conventions. So, for example

vention Against Torture and Other Cruel, Inhuman or Degrading Tre

Punishment prohibits torture in any circumstance. There are no e

whatsoever. In explicit terms, it similarly prohibits cruel, inhuman or 

treatment. Similarly, the International Covenant on Civil and Politi

prohibits both torture and cruel and inhuman treatment. It is clear th

those are nonderogatory. Even in a public emergency you can never u

You can never engage in cruel, inhuman or degrading treatment. With 

ground, this should be an open and shut case, and we should have noth

dress on that issue.

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In fact, a series of decisions by appointed lawyers in the Bush Adm

did set us on that road where torture and cruel and inhuman treatmen

openly discussed by the American (and international) public. The deci

taken step-by-step. The first was to decide that the 1949 Geneva Conv

Relative to the Treatment of Prisoners of War was inapplicable not 

Qaeda, but initially to the Afghan conflict. This decision was reached u

combination of a novel failed-State theory and/or by arguing that the Tali

distinguish itself from the civilian population even though every Afg

exactly who the Taliban was by the turban and the dress they wore. No

facts didn’t get in the way of the Bush Administration, which declared t

Convention inapplicable. That was step one.

Step two was to completely ignore the parallel requirements of hum

law. The initial decisions made in January 2002 determined the Prison

Convention was inapplicable but did indicate that those who were in 

were to be treated humanely. Until August of that year, there was no pu

tion of the Torture Convention at all.

When we finally see mention of the Torture Convention it is in that 

August 2002 Jay Bybee memorandum from the Justice Department. In th

randum, we see that the use of torture is dealt with in an extremely na

There is no mention of the parallel prohibition of cruel, inhuman or 

treatment, other than to say torture is much worse than that. There is 

that there is actually a requirement to refrain from cruel, inhuman or 

treatment. I think the reason for that is that the Torture Convention d

quire criminalization of cruel and inhuman treatment, only of torture, an

tice Department lawyers were mainly worried about avoiding prosecuti

It wasn’t until June 2003, after a series of meetings that Human Rig

staff members and others had with Condoleezza Rice, the National Se

viser, that the Bush Administration mentioned publicly the prohibition 

inhuman and degrading treatment. The Department of Defense Gener

stated (in a well thought out statement) that the prohibition on cruel

and degrading treatment proscribes the same conduct in the United St

the US Constitution as international law proscribes overseas. In other wo

can’t do it at the local police station, you can’t do it anywhere. This cor

ment of the law was, as evidenced by the various interrogation techniqu

now know were authorized, promptly ignored. In some cases, the author

rogation techniques even involved torture.

Indeed, even after meeting with Condoleezza Rice a few weeks ag

her to disown coercive interrogation as contrary to the US Army’s I

Interrogation manual and contrary to the prohibition of cruel and 

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treatment, the Bush Administration still insists that there is a realm o

interrogation that is permissible and appropriate. Thus, this is not an i

dividual aberrant interrogators but one of policy involving senior lev

Administration.

We’re all aware that various defenses have been offered for the Bush 

tration’s decisions. I won’t spend much time on them other than to say it 

rassing to a see a lawyer putting them forward. The first is that the Presid

exercise of his commander-in-chief authority, can authorize torture—

fect, rip up the Torture Convention and the Geneva Prisoners of War Co

The second theory put forward is that in self-defense you can torture. 

war involves self-defense but in that instance the use of force is governed 

body of law—the law of armed conflict. That law is absolutely clear in p

torture—you simply can’t do it! The Bush Administration’s decision

equated to the rules for a barroom brawl—anything goes.

Finally, the Bush Administration puts forward the argument of ne

you really have to, it’s permissible. But one of the requirements of neces

the legislature has not prohibited a certain type of response. The Adm

states the rule of necessity, but then ignores the US ratification of the Tor

vention with its provision that you can never torture or use cruel or 

treatment, even in extreme situations. There is no exception to this proh

the Convention.

What this all adds up to is a highly permissive environment when it co

ercive interrogation. We don’t have evidence yet of orders from the top. 

ever will find an explicit order to torture. But we do have a group of pol

pointed lawyers who, rather than conscientiously applying clear internat

hibitions, were basically looking for legal loopholes of enormous dubiou

sending the signal, “do whatever you want, we’ll get you off.” It should 

prise under this circumstance that torture and abuse were the result. Th

Moderator: Thank you, Mr. Roth. Our second speaker is Professor Bo

who serves as the Associate Director of the Center for National Security 

University of Virginia School of Law. Professor Turner knows these is

both a personal and academic standpoint having served two Army tou

Nam. He has served in the Pentagon as Special Assistant to the Under S

Defense for Policy, in the White House as Counsel to the President’s In

Oversight Board, at the State Department as Principal Deputy Assistan

for Legislative Affairs, and as the first President of the congressionally e

United States Institute of Peace.

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Professor Turner: Our time is limited. I want to leave a lot of time fo

questions but also comments because there are many people in the aud

know as much about these issues as I do and almost as much as Ken do

cut to the chase.

There are a lot of differences between us; but I think, at its core, the di

going to be about whether the law enforcement paradigm or the law of a

flict paradigm ought to govern in the war against terrorism. On that issu

foundly disagree. I don’t deny we have the legal option of arresti

combatants and trying them in Article III federal courts, but we also have 

of resorting to traditional methods of self-defense under the law of arme

which include the legal right to target enemy combatants, even enemy le

take no actual part in the hostilities, and to detain them without trial un

of the conflict.

I was pleased to hear Ken recognize that. I would remind you that dur

War II the United States detained hundreds of thousands of German 

Italian prisoners of war within our territory without judicial oversight an

access to lawyers. During the more than eight years that some American p

held as prisoners of war in North Viet Nam, not once did we ask the N

namese to give them a right to a lawyer nor did they receive a judicial h

We understood that under existing international law, in the Geneva p

war convention, during a period of armed conflict it is permissible to 

“warehouse” enemy soldiers for the duration of the conflict. To be sure, 

accused of criminal behavior they then obtain a number of procedural 

essentially international due process of law. But even in that setting t

supposed to be sent into Article III courts. Article 84 of the Geneva C

provides expressly that if POWs are accused of criminal behavior, eithe

ted while prisoners or war crimes committed during the conflict and b

were captured, they are to be tried only by military courts.

Ken and I disagree about whether law enforcement or law of arme

rules should apply. But that’s not a hard decision to make and it seems to 

tant to ask who ought to make that decision. It seems to me one can argue 

constitutional system that, as chief executive officer, as commander in chie

of fighting our wars, and so forth, maybe it is the President’s decision to 

Our very first speaker at this conference told us that the war on terro

fact a war. He said terrorism is an act of war. That I think is clear. I don’t 

body will dispute this.

The President views this war as governed by the law of armed conflic

again, maybe we can say that it’s not the President’s decision; that it ough

law-making authority that makes this decision so maybe it’s a de

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Congress. Or perhaps this is really a question of international law, so 

ought to be the United Nations—and since it involves the issue of war 

perhaps it’s the UN Security Council, which is the primary organ of the U

tions for the maintenance of international peace and security.

The response to the suggestion that it is other than the President’s 

would submit, is that it was determined on September 18, 2001, when t

States Congress, by overwhelming votes in both houses, enacted Public 

40, which authorized the use of US armed forces against and, I quote, 

tions, organizations or persons, he [the President of the United States] d

planned, authorized or committed or aided the terrorist attacks that oc

September 11, 2001, or harbored such organizations or persons in order 

any future act of international terrorism against the United States.”

Thus, I would submit the war on terrorism is not really a metaphor lik

on poverty” or the “war on drugs.” The United States has been the obj

merous armed attacks within the United States and abroad that hav

thousands of human lives and Congress has by law authorized a militar

against those persons whom the President determines played a role in th

tacks or belonged to an organization involved in those attacks.

That Joint Resolution was the constitutional equivalent of a declarati

And there is no provision in the statute for judicial review, no provision s

before you can target an enemy terrorist you have to take him before an 

judge and make a determination beyond a reasonable doubt that he did 

that organization or did take part in that activity. That is not the wa

fought.

Ken may not like it, many of us may not like it, but the decision has b

by our President and our Congress that the law of war governs. And ten 

Congress authorized the use of armed force on September 28, 2001, the 

rity Council unanimously passed Resolution 1373, which reaffirmed tha

international terrorism constitute a threat to international peace and se

may be combated by all means. Not just by law enforcement means, 

means, specifically mentioning the inherent right of individual or colle

defense as recognized by the Charter of the United Nations.

Once again, this is the language of armed conflict, not the language 

forcement. And earlier this year, in Security Council Resolution 1526, th

again reaffirmed the need to combat, “by all means in accordance with th

of the United Nations and international law threats to international pea

curity caused by terrorist acts.”

Now, I submit that at least until the Supreme Court orders otherw

would say personally I’m delighted the Supreme Court is looking at this

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has been resolved and the law of armed conflict is an appropriate parad

war against international terrorism.

I might add that if Human Rights Watch and other NGOs really believ

is only a law enforcement problem, it’s hard to understand all the conc

heard from them about the Geneva Conventions in the last few years.

It is true by definition that terrorists do not abide by the law of arm

and thus do not qualify under international law as lawful combatants. B

gument that this misconduct should somehow entitle them to preferred 

to that given to lawful combatants when engaged in acts of war eludes m

I am not suggesting that there is not an important role for the law en

paradigm in the war on terror. Various Security Council resolutions h

for example, the importance of using law enforcement tools to criminali

vision of funds to terrorist organizations and the like. We have the option 

ing and trying terrorist suspects. When those individuals are US persons

well be the most appropriate approach.

Again, I’m pleased the Supreme Court is looking at the Padilla and 

cases. When you are dealing with US persons under our legal system y

times get a different situation than dealing with foreign nationals.

Now, it is true that mistakes can happen and that innocent people ho

lieved to be terrorists might be apprehended and detained against their 

violation of fundamental principles of justice. Despite the best intention

one involved, sometimes innocent people are killed in wartime. It’s ha

Iraq. It’s happened in Afghanistan. It happened in Viet Nam. It ha

World War II.

There may be a war in history where mistakes were not made or innoc

were not killed, but I am unaware of any such situation. War is often a n

choice between lesser evils, and if we demand that no enemy be targeted 

are absolutely certain of their identity and that no collateral damage will 

are not going to win very many wars and a lot of good people on our side 

to be killed by the enemies we elect not to target.

Under the law enforcement paradigm, presumably when Jose Padilla 

the United States with instructions to explore the possibility of explodin

logical weapon, we should have told the FBI, “Hey, this guy may be up to 

kind of keep an eye on him. Don’t violate his rights, don’t profile him, do

him. Follow him around a little bit if you can. If you happen to see him 

lion people, bring him in so we can try him.” That is the criminal parad

One may say he was already guilty of conspiracy. An interesting bit o

tion is that when he was in Afghanistan and Pakistan he in fact did meet w

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al Qaeda leaders and came back home on a mission that was a conspirac

mit some horrible felonies.

Thirty-five years ago, as a junior Army lieutenant, I had the experienc

through a chemical-biological-nuclear warfare course. Every gradua

course, even those who weren’t paying much attention, focused on the 

of radiological poisoning and the symptoms and the painful death th

And I can tell you with reasonable certainty, because we talked about it 

breaks, that if any of us were told there’s going to be a nuclear war and yo

choice of being at ground zero or being far enough away that it’s going to 

few weeks to die of radiological poisoning, every one of us would have sa

God, let me be at ground zero.” It is one of the most painful ways to die I ca

As I say, perhaps Padilla was involved in a criminal conspiracy when h

off that plane. But I doubt seriously we could have proven that in fede

court without seriously compromising our counterterrorism infrastruc

Hearsay prohibitions do not exist in international law or most of th

legal systems, but presumably US evidentiary rules would have required 

in our most sensitive intelligence sources from Pakistan or Afghanistan t

tified and cross-examined in open court in order to get a conviction of M

That means, of course, those sources would not have been able to re

Qaeda cell meetings to find out what targets were planned for next wee

month. That obviously is too high a price to pay for one conviction. So un

preferred paradigm, we would have been limited to following Padilla aro

without violating his rights, in the hopes that perhaps if he murdered a 

sand or a few hundred thousand or a few million of our fellow citizens wi

logical device we might be able to catch him in the act and get a conv

course, even to get that conviction, we would likely have to disclose in o

how we managed to keep track of him, the various technologies used t

his activities, to intercept his communications and the like, and his frie

no doubt be sitting there taking careful notes. If they didn’t, in report

trial, Time magazine would help the American people and al Qaeda u

what tools the United States can use that al Qaeda needs to avoid.

Let me turn briefly to the issue of targeting individual terrorist leader

that is incorrectly described as “assassination.” Some of you know this h

issue close to my heart going back many, many years to my service in 

where one of my jobs was investigating acts of terrorism and assassinatio

wrote a very long classified study called The Viet Cong Tactic of Assass

1970. I don’t think it went anywhere. They couldn’t get it declassified so i

was left behind. These are issues of interest to me.

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For five years in the mid

70s I worked as national security adviser to 

of the Senate Foreign Relations Committee and followed both the Chur

Pike hearings. The Church Committee issued a several-hundred-page re

end of which they concluded they could not identify a single incident an

the world where the CIA had ever assassinated anyone. That didn’t mak

pages. Most surprising today!

In 1981, a few days after President Reagan issued Executive Order 12

hired by the White House to be the Counsel to the President’s Intellige

sight Board charged with the job of overseeing the activities of all of the in

community and reporting directly to the President any violation of the 

Executive Order 12333. As most of you know, Section 2.11 of that Order 

and I quote, “Prohibition on Assassination. No person employed by or 

behalf of the United States Government shall engage in or conspire to 

assassination.”

Now again, by way of background, you may remember Frank Chu

very indignant about the role of the CIA. Prior to the Church Committ

into existence, two CIA directors—Director of Central Intelligence Will

and his predecessor Richard Helms—had issued internal regulations p

assassination by anyone in the CIA.

So this issue was not really a major problem. But again, this is an is

been thinking about and working on since 1974, if not before. And I thin

important we define our terms. The Executive Order does n

“assassination.”

Over the years, I have come up with almost two dozen different def

various dictionaries and legal dictionaries and the like, and in almost ever

one word is used—“murder.” A typical definition is that assassination is 

der of a person by lying in wait for him and then killing him, particularly 

der of prominent people for political motives; e.g., the assassination of 

Kennedy.”

I would suggest what we are talking about is not murder at all, and th

assassination, but rather it is the intentional targeting of terrorists as an 

defense. Approaching the subject in that way eliminates a lot the very bu

baggage of being linked with Abraham Lincoln, John Kennedy and Mar

King. I think we should agree that “assassination” is wrong and ought n

option.

On the other hand, “self-defense” is a good thing, at least a relatively g

considering the alternatives. What I am talking about are situations in 

intentional taking of life of one wrongdoer might be expected to p

slaughter of large numbers of innocent people. I would submit that dir

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force primarily against the leadership of terrorist groups is morally pref

strategy that kills large numbers of their foot soldiers. It is difficult to de

who really want to die for their religion, although I have my doubts abo

gerness to die of some of their leaders. You will note, for example, we ha

Osama bin Laden rushing out in front of gunships waving his arms a

“please make me a martyr.”

There are numerous aspects of this issue that time simply will not per

address. One thing I do want to emphasize is that in using lethal force th

of course, limited by the duties to avoid unnecessary suffering and to m

lateral damage.

In conclusion, let me emphasize that the war on terrorism is serious b

is not a game. An overwhelming presumption in favor of the terrorists 

mandated by the law or by prudent policy. If we relax our guard and tie 

of our leaders and our militaries, al Qaeda will be given an opportunity 

numbers of our fellow citizens. Be assured that they will take full advant

opportunity. I, for one, will be surprised if they don’t hit us again h

November.

At the same time, if we sacrifice our Bill of Rights in the war on 

Osama bin Laden will have won a far greater victory than was apparent 

through the rubble of the World Trade Center and the Pentagon in Sep

2001 looking for survivors.

If we demand unrealistic and inappropriate standards, insisting that t

terrorism be waged in federal district court by law enforcement rules, wh

emy is using military weapons and tactics against our civilian populatio

likely soon be burying large numbers of our citizens—and the cause of 

ties will not be served by the likely public reaction.

Preserving the rule of law is critically important in our struggle agai

ism, but preserving the lives of our citizens is also important. The con

framework set forth in the Fifth Amendment establishes three values I 

particularly important. They are that no person shall be deprived of life

property without “due process of law.” But it is not an alphabetical list. W

life above liberty because we understand that when your life is taken fr

also expire your liberties. In the war on terrorism, these are in fact values 

balance. If we err on the side of civil liberties, our fellow citizens may pay 

lives. Civil liberties are one of the things that have distinguished this cou

so much of the world. They are cherished values we have to uphold. Bu

gress, the President, and the UN Security Council all recognize that 

armed conflict is the appropriate paradigm in this struggle.

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International law makes Osama bin Laden and other al Qaeda lead

targets for the intentional application of lethal force. That is not, in my vi

call. Thank you.

Moderator: Thank you, Professor Turner. In the interest of keeping this 

more a like a debate, I’ll give Ken maybe two minutes to rebut and then 

the audience for questions.

Mr. Roth: On the Padilla case, Bob seemed to sort of vie back and forth 

nuclear explosion and a radiological weapon, which we know are quite d

any event, the government now admits he wasn’t going to use a ra

weapon; he had some other bombing plan in mind.

Be that as it may, the alternative was not to try to follow him until he 

sands of people. The alternative was quite simply to arrest him on crimin

demonstrating probable cause. To do that would not have required any 

of clandestine techniques.

An FBI agent or some other law enforcement official could have come 

Article 3 judge and said a source has told me under the following circ

that Mr. Padilla was plotting to blow up buildings. That would have been 

to arrest him. Hearsay works. I can speak from experience—personal exp

here. You don’t need eyewitness testimony to get an arrest warrant.

So you get Padilla arrested under probable cause. Then under the Sp

Act you make application for an interest of justice exclusion to delay his 

until such time as it is possible to produce whatever witnesses need to be b

court. This is a doable proposition.

We should be realistic here that there were quite genuine law enforc

tions that were not pursued because the Bush Administration wanted to 

radical theory that anyone they pick up is an enemy combatant.

Second point. It is a red herring to say that Human Rights Watch or cr

Bush Administration believe that terrorism has to be fought simply th

enforcement agents. I thought I made that clear at the outset: there are ti

war is perfectly appropriate. Indeed there are traditional battlefields wh

war rules apply. Afghanistan is a perfect example of that. The questio

some declaration of the war against al Qaeda justify war rules around 

Because if it does, what that means very simply is that we have taken a 

centuries of due process protections, international human rights law and 

tions, and set them aside. It means that governments, simply by declarin

an enemy combatant can, without any evidence, lock that person up f

That is a radical notion, but that is what the global application of war ru

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You should be very reluctant to do that. We should insist that war rules 

only in circumstances when there is some level of actual armed conflict. W

not be handing out this extraordinary power that essentially obliterate

rights. Thank you.

Question and Answer Period

Question: Professor Turner, you mentioned the Joint Congressional Re

think it is important to assess the scope of that Resolution in light of an

ute, Title 18 USC § 4001A, known as the Non-detention Act that Congr

about 35 years ago. That statute said the government can’t detain a Un

citizen even for offenses like espionage or sabotage. Shouldn’t we at lea

Joint Resolution and that statute together to provide that any enemy co

are subject to procedural safeguards like judicial review and right to cou

Professor Turner: That is a good question. I have not spent a lot of time 

that issue and I don’t have a complete answer to it. I think perhaps an ans

be, but this is very much a lay opinion, that what Congress is talking ab

American judicial process or domestic law and that an exception exists i

tional armed conflict settings, but I don’t know if that is the answer.

To the extent the President has independent power to do this, the que

becomes can Congress take away that power even by statute. I would arg

separation of powers in many areas, the President does have constitution

ity to do some things that can effectively amount to a taking away of a 

derived right. You don’t amend the Constitution by a statute that Cong

purporting to tell the President he must do thus and so.

I will just give you one example. Bob Dole, when he was running for 

against Bill Clinton, pushed through a statutory amendment that provid

President had to move the American embassy from Tel Aviv to Jerusale

imagine why, in an election year, he’d want to be bothered with some

that, but he seemed to think it had some benefit. The Supreme Court 

mined that the decision as to where to site an embassy is part of the d

what government is to be recognized as the lawful government of a fore

eign, and thus an act of Congress trying to usurp power that clearly belo

President is null and void.

I think a case can also be made, particularly after Congress has auth

of lethal force—has authorized war—that the President has certain po

cannot be limited by statute, and the best way to interpret the statute is 

its reading so as not to infringe upon the President’s power.

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This is really an off

thecuff response to your question. It is a good 

Maybe somebody else has a better answer to it. Another option is that yo

be right. It is an issue that needs to be raised. I was delighted that the 

Court took these three cases. I think that it is fairly clear from the exist

dents that there were one and arguably two German soldiers in the Quiri

were US persons. I think two of them claimed citizenship and I believe 

concluded at least one was an American. But the Court said when a US ci

the armed forces of the enemy he becomes subject to the same consequ

enemy soldiers face. It seems to me that principle governs until the Supre

decides otherwise. But I am delighted it is considering these cases and 

ward to reading the opinions when they come out.

Question: First, a comment. Both speakers, by desperately trying to ke

the confines of current international law, are contributing to the under

basic principles of the law of armed conflict. As we have been discussing 

out the conference, the ultimate legal justification to target and kill 

which I agree is not assassination, is based on the right of self-defense. Ye

ing terrorism does not fall within the traditional definitions of either int

or non-international armed conflict. Obviously I agree that terrorism 

combated under the right of self-defense and that the use of military for

part of that effort, but rather than attempting to apply the law of arme

which was developed initially to regulate wars between States, in circum

which it was not intended, the focus should be on the development of a 

regime governing what can be done to address the threat of terrorism.

When we attempt to apply the law of armed conflict to the conflic

States and non-State actors, we are shaking the very fundamental princ

law of armed conflict—the principle of reciprocal rights and obligation

States in a truly international armed conflict. The “war on terror,” if I 

that, raises novel issues that simply defy analysis under the law of arme

since one party to that war is not a State. Thank you.

Mr. Roth: I’m not entirely sure I understand the point. There is much of 

armed conflict that isn’t entirely dependent on reciprocity among gov

Take Common Article 3. In this case we’re dealing with an internation

not an intergovernmental conflict. I know the Bush Administration is 

view that Article 3 only applies to civil wars, but I don’t know the basis fo

sition. There’s no reason why it can’t apply across borders as well.

Yes, of course, there’s the right of self-defense. Nobody challenges tha

that right allow you to use war methods every place or is there some kind 

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that? You can certainly launch a war wherever you want. Once it looks 

war we know that classic war rules apply. But can you go into a country 

you fail to arrest the people through judicial means declare a war for tha

utes it takes to detain them and pull them out as enemy combatants? I d

so. That kind of playing games with war rules is the problem.

Professor Turner: I agree with most of the points you made as I underst

It seems to me when the Security Council and the US Congress have a

measures of self-defense that you have the option of resorting to law enf

but since both the Security Council and Congress clearly identified al Qa

source of the attacks, you can engage in self-defense actions against 

members of al Qaeda. Should you decide initially to arrest them and th

your mind and decide you would rather use a law of armed conflict a

don’t have a problem with that.

To me it is unjust to tell the President that you can’t arrest someon

honestly believe to be an enemy combatant and hold them in detention

the case, it would seem to follow with a lot more force that you obvio

make a decision to shoot them or can’t order a cruise missile strike vic

them. If we’re going to apply law enforcement rules, presumably eve

needs to be told before you take a shot at that guy on the other side wh

ing a rifle at you, you need to first take him back to the 9th Circuit, perh

Supreme Court, to obtain a ruling that there is no doubt about thi

identity.

By the same logic that says the President is allowed to authorize a priv

fully through a general, a colonel and maybe a lieutenant) to kill a suspec

combatant, it would seem to follow that they could also detain him unde

of the law of armed conflict.

Comment (Audience Member): I too share the fears of the questioner 

due categorization. I would like to make a comment about the war on 

March 2004, the Human Rights Committee of the United Nations made 

portant general comment, General Comment Number 31. It states tha

tional humanitarian law and human rights law are complementary. 

question of either/or. Now, if we are faced with a war on terror and th

will never end, a war in which there will never be a ceasefire or a peace tre

ally have to rethink the interaction between human rights law and the law 

conflict. I believe that’s something we really need to think about. In fact, 

the subject of a conference in its own right.

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Question: Mr. Roth, you talked about the troublesome hypothesis of th

ment shooting Mr. Padilla upon his arrival at O’Hare Airport. Let’s chan

pothetical slightly. Say he vaulted over his would-be captors and was ab

into a taxi. The law enforcement choice would have been to kill him or 

go. What is your solution to that situation?

Mr. Roth: Well, under classic law enforcement rules you are allowed to 

force if you are a cop on the beat and it’s necessary to stop an imminen

loss of life or serious bodily injury.

Now my understanding of Padilla is that he was nowhere near posin

imminent threat. In that case, a mere fleeing suspect cannot be shot. If y

the hypothetical a little bit, if he’s about to go and plant the bomb, of c

can shoot him. You do not need international humanitarian law to do t

But in a situation like this where there is a sole operator and you have 

tracking him and an available judicial system, there is no reason why you 

use law enforcement rules. The danger of allowing war rules is that it p

applies to all of us.

Professor Turner: There is a reason we authorized the President to deleg

thority to take human life without a judicial hearing. It has to do with th

war. Just as we authorized the President to fight a war against al Qaeda, if 

dent really wanted to order a cruise missile to be launched against one o

not sure what formal check on his authority would prevent that. I know 

aftereffects of that will be. I know the American people will be outrage

know the American Congress would be outraged over it. There are che

system that are less formal.

When I spoke recently in Munich, I made the point that if the Uni

which has this unchecked military power, uses that power in an aggressiv

the American people aren’t going to tolerate it. Just as they stopped the w

Nam, they will stop the war on terrorism if they conclude, rightly or wro

violations are going on.

There are lots of quieter checks if the President were to give an order t

missile at John Kerry’s home. You would have lots of people in that cha

mand presumably resigning, going public, doing whatever was necessa

vent that from happening. But the difference between that situation and 

where you say a federal district court has to authorize the taking of life 

conflict is tremendous.

The President has to be able to protect the nation to save lives. If tha

decision is made to shoot Mr. Padilla, that may be a decision with w

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would disagree. And, of course, it would be a particularly unfortunate 

Mr. Padilla or someone similarly situated turns out to be an innocent p

But the consequences of the alternative, the alternative of saying you 

human life, you can’t deprive someone of due process or personal libe

greater. Do you want the President to be able to authorize the US arme

take the lives of people that they have strong reason to believe are al Qae

tives? I think most of us want him to be able to do that. To those who argu

permissible to shoot al Qaeda members but they can’t be detained, I say 

disconnect in the logic that I can’t understand.

Question: Mr. Roth has referred, on a couple of occasions, to the quest

application or characterization of a war zone on a global scale. I would su

a state of war exists. We have an adversary who is pursuing a set of p

through the use of armed force. That is what distinguishes this from me

wars, like the war on drugs or the war on poverty. In terms of the place 

tion, or the battlefield as it were in which that war is executed, one of the t

we teach at the Naval War College is that the enemy gets a vote. Al Qaed

sen the battlefield of the world and the nontraditional battlefield of s

worldwide. The choice is theirs, not ours. The choice that is ours is do w

do we fight back, do we engage in a war that has been declared against u

not. To get to the question, I would prefer to see the panelists address 

which is very real, of given that situation, which is almost unprecedent

do we protect our civil liberties and how do we protect the values of o

while still fighting in that battlespace.

Mr. Roth: Let me say it’s not so easy to distinguish the war on drugs. It’s 

ing that analogy seriously because there too you have clandestine group

chosen a global battlefield, routinely use violence, and kill many, many 

ple than terrorism does. Nonetheless we have chosen to keep it a metaph

because we understand the consequences of not doing so would be deva

the type of democracy in which we live.

Similarly, al Qaeda has chosen to use violence worldwide. I don’t d

How should we respond? If we choose to respond with lethal force u

tional military means as in Afghanistan, then war rules apply. But should 

sponding elsewhere, such as in Hamburg, as if it’s a war? I think to do so 

devastating.

I think we need to draw those lines establishing that in some instances 

military force operating under the law of armed conflict is the appro

sponse, but in other instances law enforcement means should be used. A

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Thursday, September 14, 2006 3:16:38 PM
of policy

and of prudenceI would argue, it would be a mistake to re

the war is global, because the consequences for the civil rights that we v

center of our society would be quite severe.

Comment (Audience Member): If I may, just one follow-on comment. 

lenge and that is what I am asking you to try to respond to. It is a war and 

because there are policy objectives being pursued by our adversary throu

of armed force. The drug lords don’t have policy objectives. They have pr

tives. That is part of the distinction that defines war and makes this a st

that is, in fact, occurring on a global battlefield. We can’t change that. W

change or what we can address, and hopefully will, is how to protect our 

while fighting on the battlefield that they have chosen.

Mr. Roth: The profit motive is not the distinction. Saddam invaded K

profit. Yes, al Qaeda is using violent means. As a matter of policy that i

doing. That still begs the question of how we should respond. We shou

selective in how we apply war rules. In some instances, the option of law 

ment means should be preferred because that is more likely to produce t

society that we desire.

Professor Turner: Under our constitutional system, the President has be

great deal of unchecked power. In Marbury v. Madison, Chief Justice John 

wrote that certain matters, which are of a political character, are confi

President’s discretion. But he said these things affect the nation, not 

rights, and that Congress has the primary responsibilities for preservatio

vidual rights. By passing the equivalent of a declaration of war, Congre

that the United States may use lethal force against al Qaeda and other 

wherever they may be found. If we find them in Germany, however

launch cruise missiles into Germany.

Let me raise a more fundamental question about human rights bec

feel, since 9/11, that I’ve become the poster boy for government repressio

I’ve sat on so many panels addressing the issues that have been discus

conference. I’m convinced that if the American people become rea

they’re going to make a decision to demand lessening restraints on the u

and more limitations on civil liberties.

I will give you one example to think about. Go back 62 years to a deci

by President Roosevelt. Of all of our presidents there are very few that h

record in civil liberties and humanitarian issues. Yet President Roosevel

order to arrest, to apprehend, and to detain thousands of American natio

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of them US citizens and many of them native

born Americans. Most of 

not even suspected of the slightest wrongdoing. These thousands of our 

zens were sent to detention camps, which were, in many respects, the eq

concentration camps except folks were not killed when they arrived.

These people were quite properly outraged. They applied for release 

eral courts. Who argued the case before the courts that this detention w

act? Earl Warren, then the Attorney General of California, who later bec

Justice of the United States. He argued that the order was a proper exerci

dential authority because it was believed that the security of the United 

threatened. The case finally made its way to the Supreme Court on ap

Court unanimously upheld President Roosevelt’s order. Who was the ju

wrote the opinion in that case? Justice Hugo Black. There probably has n

a finer civil libertarian in the history of the US Supreme Court and yet he

ident Roosevelt, was afraid. In that fear they sacrificed the human right

liberties, of tens of thousands of innocent people.

Now, one reason that I favor reasonable measures, even understan

may involve the unjust detention of a few innocent people, is because I u

if the fundamental responsibility of protecting the lives of our people is n

out, the demand for casting aside the Bill of Rights is going to be overw

We saw that in 1942. We will see that in 2004, 2005, or 2006, if we don’t co

effective war against terrorism.

The thought of losing our civil liberties terrifies me, but if you look 

opinion polls, the American public will support it. We must preserve o

we’re going to preserve our liberties. Thank you.

Moderator: Thank you Mr. Roth and Professor Turner for your insight

sion of very important issues. As is often the case in discussions such a

doesn’t necessarily reach specific conclusions, but the dialogue is very 

outlining those things that must be considered in reaching those conclu

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APPENDIX

CONTRIBUTORS

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Editor’s Note: In order to most accurately portray the events of the colloquiu

graphical data in this appendix reflects the position in which the authors w

at the time of the colloquium, as reflected in the colloquium brochures and m

Mr. Fred Abrahams worked from 1995 to 2000 as a Senior Researcher 

Rights Watch, covering the South Balkans. He subsequently worked as 

in the prosecutor’s office at the International War Crimes Tribunal for t

Yugoslavia. He is currently finishing a book on Albania’s recent politi

and the transition from communism.

Professor Craig H. Allen joined the University of Washington faculty in 

lowing his retirement from the US Coast Guard. He is a licensed master 

fellow in the Nautical Institute and a member of the Royal Institute of N

and the US Maritime Law Association. Professor Allen is on the board of 

Ocean Development and International Law and is the author of the for

new edition of Farwell’s Rules of the Nautical Road. Professor Allen teach

in international, admiralty, constitutional and foreign relations law.

Mr. Lee A. Casey is a partner in the Baker & Hostetler LLP and works in 

Washington, D.C. office. He focuses on federal, environmental, cons

election, and regulatory law issues, as well as international and interna

manitarian law. From 1986 to 1993 Mr. Casey served in various capac

federal government, including the Office of Legal Counsel (1992–93) a

fice of Legal Policy (1986–90) at the US Department of Justice. In addi

1990 to 1992, Mr. Casey served as Deputy Associate General Counsel at t

partment of Energy. Mr. Casey has authored or co-authored articles on s

as the International Criminal Court, the presidential war powers, and th

treaty interpretation power.

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Professor Yoram Dinstein is the Yanowicz Professor of Human Rights a

University (Israel), where he is the immediate past President. Professo

has recently concluded a second term as the Charles H. Stockton Pr

International Law at the US Naval War College (2002/2003, 1999/2000

also a Humboldt Fellow at the Max Planck Institute for International L

delberg (Germany), 2000/2001. Professor Dinstein is a Member of the I

International Law. He has written extensively on subjects relating to int

law, human rights and the law of armed conflict. He is the founder and 

the Israel Yearbook on Human Rights. His latest book is The Conduct of 

under the Law of International Armed Conflict.

Colonel Charles H. B. Garraway, CBE, is serving as a Senior Research Fe

British Institute of International and Comparative Law prior to taki

Charles H. Stockton Chair of International Law at the US Naval War 

August 2004. Colonel Garraway’s previous tours of active duty have in

signments in Cyprus, Germany, Belgium (SHAPE) and Hong Kong, an

tours in the United Kingdom. He is a former Visiting Fellow at the Resea

for International Law, Cambridge University (now the Lauterpacht Cen

Member of the International Institute of Humanitarian Law at San Rem

Garraway is also a member of the Board of Directors of the Internation

for Military Law and the Law of War and was one of the General Rappo

the 2003 Congress in Rome and served as Chairman of the General Aff

mittee. He has represented the United Kingdom at various internation

ences, including the Preparatory Committee for Amended Protocol 

Conventional Weapons Convention, the Diplomatic Conference on t

Protocol to the Hague Cultural Property Convention and negotiations 

tablishment of an International Criminal Court. During the 1990–1991 

he served as senior Army Legal Services Officer where he was involved, i

lar, with prisoner of war handling. In December of 2002, Colonel Garraw

pointed a Commander of the Most Excellent Order of the British Emp

Majesty The Queen.

Colonel David E. Graham, JA, US Army (Ret.), is the Special Assistant to 

Advocate General of the US Army. His active duty assignments include 

ternational and Operational Law Division, Office of the Judge Advocat

Director, Center for Law and Military Operations at the Judge Advocate 

School of the Army and Chief, Strategic Planning, Office of the Judge 

General. Colonel Graham also served as a legal advisor to the Multinati

and Observers (MFO) in Sinai (1981–82). Colonel Graham earned a B

420

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Arts in History from Texas A&M University, and Master of Arts in Intern

fairs from the George Washington University and a Juris Doctorate from t

sity of Texas. He is also a Distinguished Graduate of the National War Co

Professor Leslie C. Green is a former Charles H. Stockton Professor o

tional Law at the US Naval War College (1996–98). After serving in t

Army during World War II, he held university appointments at the Un

London; University of Singapore; University of Alberta, where he is 

Professor Emeritus; Kyung Hee University, Seoul, South Korea; Univers

orado; and the University of Denver. Professor Green’s many govern

pointments include Member and Legal Advisor to the Canadian delega

Geneva Conference on Humanitarian Law in Armed Conflict (1975–77

cial consultant to the Judge Advocate General, National Defence Headq

the latter capacity, he wrote the Canadian Manual on Armed Conflict La

sor Green is the author of numerous books, including The contempor

armed conflict and over 300 papers and articles.

Professor Wolff Heintschel von Heinegg is the Charles H. Stockton Pr

International Law at the US Naval War College and is a former Professo

national Law at the University of Frankfurt-Oder and the University of 

Germany. He was the Rapporteur of the International Law Association C

on Maritime Neutrality and is currently the Vice-President of the Germ

of Military Law and the Law of War. Professor Heintschel von Heinegg w

a group of international lawyers and naval experts who produced the 

Manual on International Law Applicable to Armed Conflicts at Sea. He 

published author of articles and books on the law of sea and naval warf

Professor Stuart Kayewas appointed Dean of Law at the University of W

in July 2002. Prior to his appointment, he was Head of the Law Schoo

Cook University in Cairns. He holds degrees in Arts and Law from the 

of Sydney and a doctorate in Law from Dalhousie University. He is adm

solicitor of the Supreme Court of New South Wales, a barrister of the 

Courts of Tasmania and Queensland, and of the High Court of Australia

Kaye has an extensive research interest in the law of the sea and interna

generally, and has published extensively in these areas. He has written a 

books including Australia’s Maritime Boundaries, The Torres Strait an

tional Fisheries Management. He was appointed by Australia to the Int

Hydrographic Organization’s Panel of Experts on Maritime Boundary 

tion in 1995 and in 2000 was appointed by Australia to the List of Arbitra

421

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the 1991 Madrid Protocol to the Antarctic Treaty. Professor Kaye was c

Australian Red Cross International Humanitarian Law Advisory Com

Tasmania in 2000 and in North Queensland in 2001–02.

Lieutenant Colonel William K. Lietzau, United States Marine Corps, is 

serving as a research fellow at the National War College, Washington

preceding assignment was as Special Advisor to the General Counsel of th

ment of Defense. Lieutenant Colonel Lietzau’s duties in that capacity inv

advice on numerous international law matters associated with the glob

terrorism including establishing the military commission process. His pr

signments included duty as Deputy Legal Counsel to the Chairman o

Chiefs of Staff; Circuit Judge for the Atlantic Judicial Circuit, Navy-Mar

Trial Judiciary; and Head Law of Armed Conflict Branch, International 

ational Law Division Office of the Navy Judge Advocate General. Lieuten

nel Lietzau has served on several US delegations in recent multilat

negotiations including those adopting the Terrorist Bombing Conventio

tawa Convention banning anti-personnel landmines, the Second Proto

Hague Cultural Property Convention and the Rome Statute for the Int

Criminal Court. He also led the United States negotiating team respo

drafting elements of crimes for the International Criminal Court. Lieuten

nel Lietzau has taught international law as an adjunct professor in G

Law Center’s Master of Laws program. He has published several article

national law, criminal law, and constitutional law subjects.

Lieutenant General Fabio Mini, Italian Army, holds a Business Administ

ploma; a Master’s Degree in Strategic Sciences; one post-university degr

tegic Sciences; two post-university degrees in Humanistic Sciences 

“Accademia Agostiniana,” Lateran University; and one post-university 

International Negotiation from the University of Trieste. He is a 1965 g

the Italian Military Academy. He has commanded all levels of mechan

from platoon to brigade. In 1992, following the mafia assassination of t

he led his brigade in the “Vespri Siciliani” operation against organized cr

ily. As a major general, he was Director of the Joint Services Senior Sta

(ISSMI) and Chief of Defense Public Information. He was Chief o

NATO’s Allied Forces Southern Europe (AFSOUTH) for two years. In 2

tenant General Mini was appointed as Commander, Kosovo Force (K

NATO-led international force responsible for establishing and maintai

rity in Kosovo. He has written widely on military, strategic and geopolit

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He lectures regularly at various universities on geopolitics and at natio

gence schools on Far East and Asian strategies, terrorism and organized 

Doctor Christoph Müller has served as the Deputy Director General fo

fairs, German Foreign Office, Berlin since July 2003. Previous assignme

the German Foreign Office include Head, South Asia Division, Germa

Office, Berlin; Head, Political Department, German Embassy, New Delh

Chief of Mission, German Embassy, Harare, Zimbabwe; Deputy Head, Pu

national Law Division, German Foreign Office, Bonn; Deputy Head of th

Delegation to the Conference on Disarmament, Geneva, 1990–93, Ge

bassy, Beijing; Arms Control Directorate, German Foreign Office, Bon

German Mission at NATO Headquarters, Brussels. Doctor Müller has a 

tor degree from the University of Augsburg, Germany and a Master of A

from The Fletcher School of Law and Diplomacy, Medford, Massachus

Professor Jordan J. Paust is Law Foundation Professor of International 

Law Center of the University of Houston. He has a Juris Doctor (J.D.) de

the UCLA School of Law, a Master of Laws (LL.M.) degree from the Un

Virginia School of Law, and is a Doctor of Juridical Science (J.S.D.) Cand

University. Professor Paust has also been a Visiting Edward Ball Eminen

sity Chair in International Law at Florida State University, a Fulbright P

the University of Salzburg, Austria, and a member of the faculty of the 

Judge Advocate General’s School, International Law Division (1969–7

served on several committees on international law, human rights, terro

the use of force in the American Society of International Law, the Americ

of the International Law Association, and the American Bar Association 

rently Co-Chair of the American Society’s International Criminal La

Group. Professor Paust has authored or co-authored three books and 

over 140 articles, book chapters, papers and essays in law journals in Belg

ada, China, England, Germany, Greece, Israel, Japan, the Netherland

United States, many of which address treaties, customary international 

diction, and the incorporation of international law into US domestic la

Mr. David B. Rivkin, Jr. is a partner in the Baker & Hostetler LLP and 

that firm’s Washington, D.C. office. He has in-depth experience wi

constitutional issues that are frequently implicated by federal regulator

including commerce clause-, appointments clause- and due process-

sues, as well as First and Tenth amendment-related matters. Mr. Rivki

practiced in the area of public international law and has extensive exp

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international arbitration and policy advocacy on a wide range of int

and domestic issues, including treaty implementation, multilateral and 

sanctions, corporate law, environmental and energy matters. Within t

government he has served as the Associate Executive Director and Cou

President’s Council on Competitiveness at the White House and Asso

eral Counsel of the US Department of Energy. In addition to those po

served in the Office of then Vice President George Bush, as Legal Adv

Counsel to the President and as Deputy Director of the Office of Policy 

ment (OPD), US Department of Justice. Mr. Rivkin has published num

pers, articles, book reviews, and book chapters on a variety of internatio

constitutional, defense, arms control, foreign policy, environmental a

issues in various publications.

Mr. Kenneth Roth is the Executive Director of Human Rights Watch, a p

held since 1993. Human Rights Watch is the largest US-based internation

rights organization. From 1987 to 1993, Mr. Roth served as deputy dire

organization. Previously, he was a federal prosecutor for the US Attorn

for the Southern District of New York and the Iran-Contra investigation 

ington. He also worked in private practice as a litigator. Mr. Roth has 

human rights investigations around the globe, devoting special attentio

of justice and accountability for gross abuses of human rights, standards 

military conduct in time of war, the human rights policies of the United 

the United Nations, and the human rights responsibilities of multinati

nesses. He has written over 70 articles and chapters on a range of human 

ics. He also regularly appears in the major media and speaks to audienc

the world.

Professor Michael N. Schmitt is the Director of the Executive Program i

tional and Security Affairs and Professor of International Law in the Col

ternational and Security Studies, George C. Marshall European Center fo

Studies, Garmisch-Partenkirchen, Germany. Professor Schmitt serv

United States Air Force for 20 years before joining the Marshall Cent

During his military career, he specialized in operational and internation

was senior legal adviser to multiple Air Force units, including units c

combat operations over Northern Iraq. Professor Schmitt has been on 

of the Air Force Academy, where he was Deputy Head of the Departme

and was Assistant Director for Aerial Warfare in the Naval War Colleg

for Naval Warfare Studies. He has been a Visiting Scholar at Yale Law S

lectures and teaches regularly at the International Institute of Humanit

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and the NATO School. The author of many scholarly articles on law an

affairs and contributing editor for multiple volumes of the US Naval Wa

International Law Studies (the Blue Books) series, his works have been 

in Belgium, Chile, Germany, Israel, Peru, United Kingdom, and the Uni

Professor Schmitt is a member of the American Society of Internationa

International Law Association (British Branch), and the Société Interna

Droit Militaire et Droit de la Guerre.

Professor Torsten Stein is Professor of International, European Union 

parative Constitutional Law and Director of the Institute of Europea

(Law Department) at the University of Saarland, Saarbrücken, German

been a Senior Research Fellow at the Max Planck Institute of Comparat

and Public International Law, Heidelberg (Germany), and was a Profe

Heidelberg Law Faculty. He is the Secretary General of the German Bra

International Law Association (ILA) and a member of the ILA’s Executiv

He was Rapporteur of ILA’s International Committees on Legal Proble

tradition in Relation to Terrorist Offences and on International Law b

tional Courts, and is currently Chairman of the ILA’s Committe

International Criminal Court. He has published several books and num

cles in his fields of law. Professor Stein is also a Colonel in the German 

Reserve.

Commander Dale Stephens, Royal Australian Navy (RAN), just compl

in residence at Harvard University School of Law from which he receive

of Laws degree and is about to join the faculty of the US Naval War Colle

national Law Department. His previous assignments have included Flee

ficer, Maritime Headquarters Australia (Sydney); Deputy Director O

Law, Strategic Operations Division (Canberra) and Chief Legal Officer, 

sitional Administration in East Timor Peacekeeping Force Headquart

mander Stephens has served as a Legal Officer in the RAN since being a

practice in 1989 and has had considerable experience in matters of opera

international law, especially in the context of combined operations. He 

thor of several articles dealing with, inter alia, the law of naval mine warfa

tional rights under the 1982 United Nations Convention on the Law of t

the intersection of the law of armed conflict and human rights.

Mr. Ryan P. Stiles currently serves in the White House as Deputy Coun

Homeland Security Council. He provides legal, technical and policy gu

the development and implementation of interagency homeland secu

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(with particular focus on the Council

s Domestic Counterterrorism D

and advises the Homeland Security Advisor during domestic incidents 

terrorism and natural disasters. Mr. Stiles was appointed by President Bu

2003. Prior to joining the White House, Mr. Stiles practiced law in Chica

at two prestigious law firms. His practice focused on complex commer

tion and white collar criminal defense. Mr. Stiles also volunteered for Fir

Legal Aid, providing emergency legal representation in criminal matte

gent clients at Chicago-area police headquarters. He received his unde

degree in Economics from George Mason University and his Juris Doc

from the University of North Carolina School of Law, Chapel Hill, North 

Professor Robert F. Turner holds both professional and academic docto

the University of Virginia School of Law, where in 1981 he co-founded 

for National Security Law. He has served as its Associate Director since th

for two periods of government service in the 1980s and during 1994–95

occupied the Charles H. Stockton Chair of International Law at the US N

College. A veteran of two Army tours in Vietnam, he has served in the P

Special Assistant to the Under Secretary of Defense for Policy, in the Wh

as Counsel to the President’s Intelligence Oversight Board, at the State D

as Principal Deputy Assistant Secretary for Legislative Affairs, and as the 

dent of the congressionally established United States Institute of Peace

Turner is a former three-term chairman of the ABA Standing Committ

and National Security (and for many years editor of the ABA National Se

Report). He is the author or editor of a dozen books and monographs, an

ous articles in law reviews and professional journals. Professor Turner h

before more than a dozen different congressional committees on issues o

tional or constitutional law and related topics.

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Index

A

Afghanistan 22, 26, 46, 105, 125, 162, 168, 174, 183, 189–195, 227, 229, 238, 248, 2

290, 292, 295–296, 299–301, 303, 312, 349, 353–355, 372–374, 377, 387, 396

406, 409, 414

Africa 27–30, 46, 105, 194, 205, 229, 356, 384, 396

Additional Protocol I 187, 199–200, 236–238, 266, 283–285, 296, 299

Additional Protocol II 187–199, 283

al Qaeda 83, 105, 255, 266, 277, 279–280, 284, 295, 299, 323–324, 332, 365, 396, 39

406, 408–409, 412–415

Al Qaida 31, 36, 39

Albania 74, 122, 161, 187–189, 229, 241, 243–246

Algeria 399

Amnesty International 244, 392

Annan, Kofi 356–357, 362, 367, 387

Argentina 276, 305

Article 51 82, 96, 151, 162, 325–329, 332, 334–335, 338–339, 341, 343–346, 353–35

371, 388

Ashburton, Lord (see also Caroline case and Webster, Daniel) 333, 363, 375, 389

assassination 243–245, 352, 371, 406–407, 411

Australia 19–29, 60, 71, 77, 139, 141, 154, 159, 210, 276, 364, 372

axis of evil 170, 360

B

bin Laden, Osama 36, 49, 190, 192, 324–325, 373, 408–409

biological weapons 58, 60, 64, 68, 114–118, 163, 192–193, 329, 339, 373

Bosnia 187, 248, 328, 391, 399

Brazil 276

Brownlie, Ian 76, 163, 196

C

Cambodia 55, 106, 137

Canada 7, 9, 12–13, 51, 71, 91, 120, 130, 132, 159, 167, 372

Caroline case (see also Webster, Daniel and Ashburton, Lord) 75, 152, 162, 320, 32

355, 374–375

chemical weapons 35, 105, 111, 117, 339, 375

Chemical Weapons Convention 118

Chile 276

China 65, 67, 70, 75, 121, 157, 160–161, 163–164, 222, 370, 372

CIA 211, 398, 407

civil war 171, 241, 295, 299, 411

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255, 271, 304–305, 352, 372

Coast Guard 70, 75, 79, 81–87, 90–91, 100–102, 104–105, 107–110, 119–124, 126–

139, 160

Cold War 14, 227, 321, 327, 353, 356, 359, 365, 385

collateral damage 224, 405, 408

Colombia 276, 278

combatants 174, 190–191, 224, 251, 255, 258–260, 264–266, 280, 284, 294, 299–30

397–400, 403, 405, 410, 412

Constitution 21, 23, 31, 37–38, 49, 82, 87–88, 90, 104, 128, 130, 176, 197, 236, 274

290, 292–293, 295–296, 298, 300–302, 401, 410

Convention for the Suppression of Terrorist Bombings 138, 275

Convention on the Physical Protection of Nuclear Material 60, 115

crimes against humanity 192, 245, 279, 285, 291

Cuba 66, 75, 77, 80, 120, 129, 173–175, 191, 197, 257, 276, 290, 294, 330–331, 336

Czech Republic 50, 372

D

death penalty 44

Department of Defense 79, 84, 120, 122, 125, 164, 255, 261, 264, 279–280, 283, 293

314, 401

Dinstein, Yoram 75, 299, 312, 327–328, 333, 335–337, 391

E

economic sanctions 330, 338

Egypt 186, 327, 330–331, 355, 372

El Salvador 276

Europe 5, 31–51, 55, 60–61, 74, 134, 145, 171, 177, 193, 242–243, 248, 285–286, 30

312, 320, 322, 328, 347, 352, 356–361, 364–365, 367–368, 372, 388

European Convention on Human Rights 51, 285

European Union 31–37, 40–44, 46–51, 61, 242, 248, 356–357, 365, 372, 388

extradition 36, 44, 107, 138, 274–275

F

Falk, Richard 77, 300, 331, 362–363

FARC 278

FBI 4, 48, 405, 409

Finland 33, 47, 246

France 27–28, 32, 49, 51, 71, 120, 133, 159, 176–177, 196, 243, 321–322, 330, 335, 36

French Foreign Legion 191

fundamentalism 229

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Green, Leslie C. 136, 167, 197, 200

Geneva Convention 146, 174, 183–185, 189, 191–193, 195, 197–200, 216, 218–220

251, 265–268, 270, 282–287, 290, 294–296, 299, 306, 312–313, 396–397, 400

405

Georgia 372, 388

Germany 31–32, 35, 37–39, 42, 44–47, 49, 51, 55, 62, 71, 120, 159, 173, 175–177, 1

197, 235, 243, 305, 321–322, 349, 352–353, 358, 361–362, 367–368, 372, 415

Glennon, Michael 162, 330, 335–336, 362, 365

Global War on Terrorism 75, 219, 255, 259, 262, 265, 273, 277, 283

Gonzales 280, 286, 288, 297, 301

Greece 47

Greenwood 162–163, 183, 198–199, 347, 349

Grotius 145, 161, 169–170, 196, 198, 319, 321, 333

Gulf War 192, 227, 324, 335, 337, 368–369, 375, 381

H

Haiti 26, 30, 139, 186, 276, 383, 386

Hamdi case 300, 301, 396

Hitler 321, 327

Homeland Security Council 3, 7–8, 15

human rights 26, 46, 84, 89–90, 171, 179, 186–187, 189, 192, 194–195, 201, 203, 21

260–261, 285, 293–295, 305, 307, 309–310, 384, 395, 400–401, 409, 412, 415–

humanitarian relief 383

Hussein, Saddam 192–193, 199, 324, 326, 328–329, 348, 362, 373, 377, 382, 385–38

I

ICAO 13

India 21–22, 27, 105, 145, 161, 177, 196, 198, 278

Indonesia 22, 24–25, 27–29, 365

intelligence collection 258

International Civil Aviation Organization 13

International Committee of the Red Cross (ICRC) 193, 200, 266, 279, 283

International Convention for the Suppression of Terrorist Bombing 138, 275

International Convention for the Suppression of the Financing of Terrorism 275

International Covenant on Civil and Political Rights (ICCPR) 90, 131, 174, 179, 30

314–315, 400

International Criminal Court (ICC) (see also Statute of the International Criminal 

90, 125, 130, 131, 264, 278–279, 282, 296, 303, 307–308, 312, 315, 389

International Criminal Tribunal for Rwanda (ICTR) 278

International Criminal Tribunal for the Former Yugoslavia (ICTY) 30, 245–246, 2

282, 303, 307, 308, 312, 314

international human rights law 409

international humanitarian law 84, 201, 210, 234, 240, 243, 251, 279, 283, 312, 400

429

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() 

International Military Tribunal at Nuremberg 375

International Security Assistance Force 46, 387

Iran 56, 70–71, 124, 130, 164, 389

Iraq 22, 55, 124, 152, 154, 162, 168, 170, 183, 189, 191–195, 198, 200–204, 208–217

229, 234–242, 248, 251, 268, 280, 287, 290, 292, 295–296, 299–300, 322, 324

337–343, 347–349, 353, 355, 361–365, 367–371, 373–388, 390–392, 396, 400

irreversible course of action 346

Islam 38–39, 46, 190, 239, 244, 365, 372–373

Israel 75, 152–153, 162–163, 182–186, 196, 199, 261, 312, 327, 330–331, 335, 337, 3

363, 371, 388–389

Italy 47, 49, 51, 71, 120, 159, 196, 240, 243, 352, 372

J

Japan 51, 71, 77, 129, 133, 159, 161, 176, 197, 235, 327–328, 330, 335, 345–346, 34

Jennings, Robert 75, 162

Jordan 289, 295–300, 331

jurisdiction 22–23, 25, 27, 32, 41, 46, 63–64, 74, 83, 85, 91, 96–98, 103, 106, 110, 1

128–134, 136–137, 142, 144–145, 147–148, 150–151, 156, 163–164, 167, 173

189, 210, 214, 221, 255, 258, 261–263, 265, 269–272, 278–279, 281–282, 286–

300, 305–308, 310–312

jus ad bellum 320, 367–368, 385–387

jus in bello 387

Justice Jackson 23

K

Kagan, Robert 360, 365

Ker v. Illinois 130

Korea 21, 55–56, 67, 70–71, 106–107, 137, 157, 161–162, 186, 335, 338

Kosovo 183, 187–188, 190, 194, 199, 226, 229, 241–246, 248, 365, 384–385, 387

Kurds 329, 340

Kuwait 22, 192, 335, 338–340, 347, 368, 370, 379, 382–383, 415

L

Latin America 278

law enforcement 4, 8–9, 12–13, 20–21, 27–28, 34–35, 37, 69, 79, 81–86, 88–90, 93, 

106–107, 111, 116, 120, 122, 124, 127–129, 134–136, 208–209, 223–224, 243

262, 266, 272, 274–276, 303–304, 351, 364, 395–396, 398–400, 403–405, 408

415

League of Nations 172, 196, 298, 352

Lebanon 83

Libya 71, 131, 274, 331, 371, 388

Lockerbie, Scotland 280

430

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M

maritime interception operations (MIO) 79–81, 96, 99–101, 103, 107, 121–124, 12

134–137

Martens Clause 179

media 8, 65–67, 89, 92, 103–105, 108, 156, 162, 168, 190, 203–205, 211, 213, 218–2

227, 229, 232–233, 240, 242–243, 247, 256, 260, 263, 271, 278, 293, 323–324

334, 337–338, 340–342, 354, 358–359, 369, 371, 373–380, 382, 384, 390, 395

Mexico 7, 9, 12, 91, 105, 276

Milosevic, Slobodan 229, 326, 329

Moore, John Bassett 196, 363, 365

Moscow Declaration 177, 197

M/V Saiga case 93–95, 100, 104, 130, 133, 135, 137, 154, 163

M/V Tampa 19, 21–23, 29

N

national security 6–8, 10, 23–28, 40, 45, 62, 68–70, 77, 84, 110, 115, 127, 142, 158, 

255, 260, 264, 273, 279, 299, 329, 336, 355, 378, 407

nationality 24, 27, 66–67, 106, 135, 191, 217, 296, 306

NATO 44, 61, 73, 77, 83, 120–121, 123, 126, 188–191, 199, 223, 229, 238, 241–244

257, 276, 329–330, 354, 369, 384, 387

necessity 5, 66–67, 84, 86, 91–93, 99, 109, 132–133, 138, 151, 153–154, 219, 225, 25

373, 375–377, 380, 389, 402, 405

Netherlands 71, 120, 159, 372

neutrality 79, 96, 130

New Zealand 276, 372

Nicaragua case 25

North Korea 56, 67, 70–71, 107, 157

Northern Alliance 190, 238, 299, 372

Northern Ireland 390

nuclear weapons 13, 56, 58–60, 71, 112, 152, 157, 160, 162, 179, 321, 329, 375

Nye, Joseph 365

O

O’Connell, D. P. 130, 133–134

Oman 46, 372

Operation Allied Force 241, 384

Operation El Dorado Canyon 371

Operation Enduring Freedom 46, 105, 121, 125, 257, 277, 354, 386

Operation Iraqi Freedom 213, 331, 340, 367, 371, 374, 377–378, 383, 385–387

Organization of American States 13, 276, 330

Organization for Security and Cooperation in Europe (OSCE) 44, 51, 242, 248

431

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Pakistan 22, 56, 71, 164, 191, 196, 276, 372, 389, 397, 400, 405–406

Palestine 182, 184, 226, 229

Panama 65, 70, 75, 78, 98–99, 102, 105, 121, 135, 143, 154, 160, 276, 331

Paraguay 276

Pearl Harbor 327–328, 330, 345–346, 349

Philippines 372

piracy 14, 21, 66, 109, 148, 287, 314, 405–406

Popular Front for the Liberation of Palestine 184

Portugal 47, 49, 71, 120, 159

preemptive use of force 323, 340

prisoner of war 174, 184, 190, 192, 195, 197, 215–216, 265–271, 283–284, 286–288

304, 306, 313, 403

proportionality 67, 80, 84, 86, 91, 103, 109, 138, 373, 377

Q

Qatar 372

R

Reisman, Michael 388

refugees 250

regime change 329, 368, 378, 384–386

Rhodesia 124–125, 130

Rio Treaty 276

Rules of Engagement (ROE) 27, 82–86, 96–97, 99–100, 102, 107–110, 124–127, 13

212, 244

Roosevelt, Eleanor 307, 315

Roosevelt, Franklin 313, 362, 417–18

Roosevelt, Theodore 172

Rumsfeld, Donald 299, 389, 392

Russia 51, 62, 71, 78, 121, 133, 141, 159, 168, 196, 244, 305, 322, 369–370, 372, 384

Rwanda 186, 229, 264, 278, 315, 384–386, 391–392

S

Schmitt, Michael N. 131, 136, 367, 389–390

San Remo Manual 124, 158, 162, 164

Saudi Arabia 280, 372

Schwebel, Stephen 344

Security Council Resolution 1368 354, 371, 388

Security Council Resolution 1373 25–26, 36, 65, 68, 76, 121, 354, 361, 363, 371, 40

Security Council Resolution 1441 341–342, 356, 369–370, 375, 377, 380–382, 390

Security Council Resolution 678 338–342, 368, 379–382, 386

432

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y 

Security Council Resolution 688 339

September 11 7, 11, 19, 31, 35, 39, 67, 141, 189, 255–256, 266, 272, 276–277, 279–2

301, 312, 323–324, 329, 332, 343, 348, 353–355, 359, 363, 371, 388–389, 404

Serbia 168, 187–189, 241–246, 329, 352

Shearer, Ivan 103, 130, 136, 160

Singapore 71, 77, 159

Somalia 186, 229, 248, 383, 391

South Tomi 27–29, 139

South Korea 335, 338

Soviet Union 177, 330, 359

Spain 47, 49, 71, 105, 120, 130, 132, 159, 274

Sparta 319

special operations 81, 105–106, 123, 137

Statute of the International Criminal Court (see also International Criminal Court) 

279, 296, 312, 389

SUA Convention 65–66, 70, 75, 90, 131–132

Sudan 172, 374

Sweden 47, 331

Syria 331

T

Tadic case 25, 30

Tajikistan 372

Taliban 36, 49, 105, 174, 190–192, 238, 299, 301, 303, 324, 348, 354, 372–374, 401

technology 11–13, 33, 37, 42, 46, 58, 71, 73, 114, 118, 332

terrorism 4–10, 12–14, 24–26, 28, 31–33, 35–41, 46–47, 56, 60, 72, 76, 107, 110, 11

134, 141, 190, 200, 223, 245, 255–261, 264–265, 268, 270, 272–273, 275, 277

286–287, 292, 295, 298–300, 303, 351–361, 363–365, 368–369, 371–374, 378

389, 395–399, 403–406, 408–409, 411, 413–414, 416

terrorists 3–8, 10–12, 25, 39–46, 56, 61, 65, 73, 121, 147–148, 154, 156, 162, 184–1

193, 195, 256–257, 259–261, 263–264, 267, 269, 272, 274, 276, 278, 280, 302

358, 361, 371, 373–377, 381, 386, 395–396, 399, 405, 407–408, 411, 415

Tunisia 133

Turkey 71, 133–134, 159, 196, 372

U

unilateral use of force 326

UNITAF 383

United Kingdom 26, 33, 49, 51, 71, 120, 125, 132–133, 159, 170, 176–177, 190, 192

199–200, 240, 243, 261, 274, 285, 300, 304, 306, 310–313, 340, 367, 369, 371–

380, 390–391

United States v. Toscanino 130

Universal Declaration of Human Rights 179, 232, 251, 307

UNSCOM 379, 387–388, 391

433

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173, 176, 186, 212, 225, 244, 277, 300, 321–329, 332–333, 335, 338, 340, 342–

354, 356–362, 364–365, 368–371, 373, 376–377, 379–384, 386, 388, 391–392

USS Cole 83–84, 125, 283, 295, 396, 398

Uzbekistan 372

V

Vattel 167, 169, 196, 321, 333

Venezuela 276

Viarsa I 29, 139

Vienna Convention on the Law of Treaties 97, 134, 341, 348, 391

Vietnam 125, 133, 300, 402–403, 405–406, 413, 426

W

weapons of mass destruction (WMD) 7, 55–58, 61–71, 73, 75, 77–82, 94–99, 101, 

107, 110–114, 121, 124, 131–132, 134–135, 137, 141–144, 147, 150, 152–157

192–194, 322–324, 332, 339–341, 343, 353, 356–359, 362, 368–369, 374, 374

383, 390

Webster, Daniel (see also Caroline case and Ashburton, Lord) 320–321, 323, 333, 3

375, 389

Y

Yemen 55, 106–107, 162, 398

434

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