INTERNATIONAL LAW STUDIES

Volume 80

Issues in International Law and Military Operation

Richard B. Jaques

Editor

Naval War College

Newport, Rhode Island

2006

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INTERNATIONAL LAW STUDIES

Volume 80

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Library of Congress Cataloging-in-Publication Data

Issues in international law and military operations / Richard B. Jaques, 

p. cm. -- (International law studies ; v. 80)

Includes bibliographical references and index.

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

ISBN-10: 1-884733-39-5

1. War (International law) 2. Humanitarian law. 3. War, Maritime (Inter

law) 4. War on Terrorism, 2001---Law and legislation. 5. Iraq War, 2003. 

Richard.

KZ6385.I87 2006

341.6--dc22

2006025972

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Table of Contents

Issues in International Law and Military Operati

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

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

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

PART I: JUS AD BELLUM: IRAQ

I Iraq’s Transformation and International Law

Ruth Wedgwood . . . . . . . . . . . . . . . . . . . . . . . 

II Iraq and the Law of Armed Conflict

Thomas M. Franck . . . . . . . . . . . . . . . . . . . . . . 

III International Law and the 2003 Campaign against Iraq

Nicholas Rostow. . . . . . . . . . . . . . . . . . . . . . . . 

PART II: AIR AND LAND WARFARE OPERATIONAL CHALLENGES

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

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

V Query: Is There a Status of “Unlawful Combatant?”

Marco Sassòli . . . . . . . . . . . . . . . . . . . . . . . . . 

VI Special Forces’ Wear of Non-Standard Uniforms

W. Hays Parks. . . . . . . . . . . . . . . . . . . . . . . . . 

VII Strategic Targeting and International Law: The Ambiguity of 

Meets the Reality of a Single-Superpower World

Jeffery K. Walker. . . . . . . . . . . . . . . . . . . . . . . 

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

Why No Brave New World?

Adam Roberts . . . . . . . . . . . . . . . . . . . . . . . . 

IX Targeting and Humanitarian Law: Current Issues

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

X Coalition Operations and the Law

M. H. MacDougall. . . . . . . . . . . . . . . . . . . . . . 

PART III: MARITIME OPERATIONAL CHALLENGES

XI Current Legal Issues in Maritime Operations: Maritime Inter

Operations in the Global War on Terrorism, Exclusion Zon

Hospital Ships and Maritime Neutrality

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

XII The Legal Efficacy of Freedom of Navigation Assertions

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

XIII Military Activities in the Exclusive Economic Zone: Preventin

Uncertainty and Defusing Conflict

Hyun-Soo Kim. . . . . . . . . . . . . . . . . . . . . . . . 

XIV The Unique and Protected Status of Hospital Ships under the 

Armed Conflict

D. L. Grimord & G. W. Riggs . . . . . . . . . . . . . . . . 

PART IV: THE FUTURE OF LAW IN WAR:

DIFFERENT APPLICATION OR DIFFERENT RULES?

XV Legal and Tactical Dilemmas Inherent in Fighting Terror: Ex

of the Israeli Army in Jenin and Bethlehem (April–May 200

Alan Baker . . . . . . . . . . . . . . . . . . . . . . . . . . 

XVI International Humanitarian Law:

Should It Be Reaffirmed, Clarified or Developed?

Jean-Philippe Lavoyer . . . . . . . . . . . . . . . . . . . . 

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XVII Enforcing the Law

John F. Murphy . . . . . . . . . . . . . . . . . . . . . . . 

XVIII Protection of Cultural Property: The Legal Aspects

Jan Hladík . . . . . . . . . . . . . . . . . . . . . . . . . . 

XIX The Law of Armed Conflict and the War on Terrorism

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

XX Interoperability and the Atlantic Divide:

A Bridge over Troubled Waters

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

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

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

vii

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Foreword

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

War College in 1901 to publish essays, treatises and articles that 

to the broader understanding of international law. This, the eightieth 

the series, contains edited proceedings of a colloquium entitled Curren

International Law and Military Operations hosted here at the Naval War 

June 25–27, 2003.

The colloquium’s mission was to examine the latest development

national law, drawing on issues from then ongoing military operatio

ing so, the colloquium participants focused on the applicability and 

of the law of occupation, the perspective of military judge advocates a

tegic, operational, and tactical levels in Operation Iraqi Freedom, ma

erations issues in armed conflict and military operations other 

including navigational freedoms in international waters and airspac

creasingly complex considerations of combatant status and coaliti

tions, developments in the laws of targeting and information opera

challenges faced in the interpretation and application of the law of ar

flict in current and future conflicts.

Renowned international scholars and practitioners, both military 

ian, representing government and academic institutions from throu

world participated in the colloquium, which was co-sponsored by the 

Studies Institute of the United States Army War College at Carlisle 

the Israeli Yearbook on Human Rights, Tel Aviv, Israel; the United St

Guard Academy; the Francis Lieber Society of the American Society o

tional Law; the Judge Advocate General of the Navy; the Naval Wa

Foundation; the Pell Center for International Relations and Public 

Salve Regina University, Newport, Rhode Island; and the Internat

Department of the Center for Naval Warfare Studies, United States N

College.

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

Commandant of the Marine Corps, I extend to all the co-sponsors and 

ing authors our thanks and gratitude for their invaluable contributions t

ject and to the future understanding of the laws of war.

J. L. SHUFORD

Rear Admiral, U.S. Navy

President, Naval War College

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Introduction

peration Iraqi Freedom, in which the United States and her coal

ners conducted military operations for the express purpose of 

Saddam Hussein from power in Iraq, implicated a host of international 

in both theory and practice. Many of those issues are still being deba

more than 3 years later. Was Operation Iraqi Freedom undertaken cons

international norms on the use of force? Are targeting norms, as traditi

derstood, adequate in the age of precision strategic strike capability and

an enemy who intentionally fails to distinguish himself from civilian

purposefully uses protected places from which to launch attacks? Or 

posely attacks protected persons, places and objects? How do States reco

peting views of what the law of war is, or requires, or forbids, in de

captured foes? Discussing and debating these questions, and others raise

acteristics of the conflict with “rogue” nations and international terroris

purpose of the colloquium that this book, Volume 80 of the Internat

Studies (“Blue Book”) series, memorializes.

In June, 2003, the Naval War College conducted a symposium entitle

Issues in International Law and Military Operations. The colloquium, or

the International Law Department’s Commander Don Rose, US Coast G

made possible with the support of the Strategic Studies Institute of t

States Army War College at Carlisle Barracks; the Israel Yearbook o

Rights, Tel Aviv, Israel; the United States Coast Guard Academy; the Fran

Society of the American Society of International Law; the Judge Advoca

of the Navy; the Naval War College Foundation; and the Pell Center fo

tional Relations and Public Policy of Salve Regina University, Newport, 

land. Without the support and assistance of these organizations, the c

would not have been the success that it was. Their support is greatly app

Two members of the International Law Department served as prima

of this volume. Lieutenant Colonel Jim Friend, JA, US Army, initially p

editorial work on this volume until the exigencies of war intruded a

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transferred, prior to his normal rotation date, to Kuwait. Major Richard 

Marine Corps, eventually assumed these duties and carried them throu

ition. Their dedication and perseverance are responsible for the produ

completion of this excellent addition to the “Blue Book” series.

A special thank you is necessary to Rear Admiral Rodney P. Rempt, fo

ident of the Naval War College for his leadership and support in the pla

conduct of the colloquium.

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

throughout the world to US and foreign military commands, academ

tions, and libraries. This volume, entitled Issues in International Law an

Operations (2003) to more accurately reflect the fact that the perspec

vided at the colloquium depicted events as known and perceived at t

a fitting and necessary addition to the series as nations continue to wrest

veloping consensus on how to best deal with groups and tyrants whose w

ligerence pose unacceptable threats to international peace and security.

DENNIS L. MANDSAGER

Professor of Law & Chairman

International Law Department

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Preface

t should be no surprise that, coming as it did in June 2003, a colloq

focused on “current” issues in international law and military o

would by necessity devote most of its time to the issues and challenges 

Operation Iraqi Freedom, the then nascent occupation of Iraq, and th

ing efforts to apply long established maritime rules and principles base

designed to respect, State sovereignty, against a Stateless belligerent. W

be surprising (or perhaps sadly ironic) is how current the issues, challen

yses, positions, and arguments for and against various interpretations a

plications of international law to military operations voiced in 200

today. This suggests that despite the passage of three years, little consen

nature, scope and degree of the threat faced, and the appropriate 

thereto, has yet developed.

Readers unfamiliar with the International Law Studies (“Blue Book”) 

wonder why a work that largely captures the proceedings of a colloquiu

2003 is only now, in 2006, finding its way to print. Long-time supporter

tributors who have patiently anticipated publication for some time 

those who participated in the colloquium) may well wonder why this vo

not serve, as previous volumes have, to fully capture all speaker and pan

ments and audience discussion or reflect the order in which those com

discussions occurred. To both groups of readers an explanation is warra

no other reason than to ensure that those deserving of credit in making t

reality receive their due.

For reasons of detail that are unnecessary here, most of the record of 

quium was not available to the editors of this publication. Compou

problem was the fact that the first two assigned editors found their tenure 

ternational Law Department cut short or interrupted by the exigencies 

significant portions, this work largely reflects an effort starting some 18 m

ter the event to recreate the colloquium and capture key portions of it.

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Typically, 

Blue Booksthat serve as a record of colloquium procee

reflect the order in which the panel discussions occurred. In this case

because it was impossible to recreate the “give and take” of panelists 

other and with the audience, and because not all the panels could be in

the book, the most logical arrangement was to group articles within 

subject areas addressed (the legality and legitimacy of Operation I

dom, the tactical and operational challenges in air and land warfare

variety of issues affecting operations in the maritime domain, and the 

of how the law of armed conflict needs to develop to adequately addre

and anticipated challenges) as reflected in the Table of Contents. A

which the author refers specifically to another article are grouped w

same major category.

I also decided to eschew the past practice of attempting, in this Prefac

marize the key points of each article around a central theme or themes. T

of articles and organization of the book itself essentially reflect my pers

the key points and themes. Moreover, readers will find it of much more v

cide for themselves what arguments and positions set forth herein have 

only suggestion I offer the reader in making those assessments is to reme

whatever the law of armed conflict was in the past, is today, or will be in 

it is not merely a subject for a panel discussion or an academic debate or a

tual position. For those affected by it, it is a matter of life or death.

As with all works such as this, a number of individuals were invol

publication process. Thanks must go to Lieutenant Colonel Jim Frien

Army, the first editor, who initiated this effort. A special note of thank

Mr. Matthew Cotnoir in the Naval War College’s Desktop Publishing 

served as the “point man” in converting draft after draft into publish

tirelessly and patiently enduring numerous rewrites, reconfiguration

edits without complaint. Thanks must also go to the contributors to th

long after the fact, for their great patience and understanding over the 

years. In particular, a debt of thanks is owed to Professor Wolff Hein

Heinegg and Colonel Charles H. B. Garraway, CBE, British Army (Ret

whom served as the Naval War College’s Charles H. Stockton Professo

national Law during my tenure, and both of whom are contributors t

ume, for their knowledge, expertise, perspective on law (and, more im

on life itself), and comradeship.

Finally, two individuals, for both of whom the “Blue Books” are a lab

deserve the lion share of the credit for ensuring that this work has come t

Simply put, without the leadership and vision of Professor Eme

Grunawalt and the painstaking detailed editing and review of Capt

xiv

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Thomas, JAGC, US Navy (Ret.), both of whom devoted countless ho

project, Volume 80 would still be barely a work in progress. Even more

served as mentors, teachers, advisors, confidants, leaders, and friends to 

signed in more ways than can be expressed. By all rights, theirs should be 

printed on the binding of this volume. For everything that is good about 

the credit is theirs. For everything that is not, the blame is mine.

RICHARD B. JAQUES

Major, US Marine Corps

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PART I

JUS AD BELLUM: IRAQ

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I

Iraq’s Transformation and Internationa

Ruth Wedgwood1

here is a great delight in returning to the US Naval War College. M

Newport as a Stockton Professor of International Law was won

deed. But few of us at the War College in the academic term of 1998–99 c

see the momentous events of the next five years. No one foretold al Qaed

of September 11, 2001. And we could not know that the United Stat

United Kingdom, alongside their allies, would commit their fortune and 

tervene again in Iraq, this time to defeat Saddam’s Baathist regime. But tr

brewing, even in 1998. At the time, Saddam limited and then excluded U

tions weapons inspectors, and the allies conducted a limited military ca

Operation Desert Fox. A broad debate on the use of force began to reente

lic square—when and on what authority military force could be used 

Iraq’s compliance with post-Gulf War disarmament obligations.

In the immediate moment, we are in the midst of Operation Iraqi 

Faced with Saddam Hussein’s continued intransigence in accounting for 

ons programs, in March 2003 the United States and its coalition forces m

fast-moving ground campaign against the Baathist regime, and quick

Baghdad. Public conversation has again focused on important issues o

tional law, including standards for the use of force, the role of the Securit

the methods of enforcing disarmament obligations, and the claims of h

ian intervention.2 But I will concentrate here on the practical problems a

governing occupation and reconstruction.

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Our panel today is graced by its commentators. Professor Thomas F

profound scholar on whose foundational work all of us have built. Dr

Rostow has a twenty-five-year career of dedicated public service, includi

the legal adviser to the National Security Council and as general counse

Mission to the United Nations. I should be providing comments on th

and not the reverse.

Let me start with a speculation on the more general implications of t

conflict for Iraq and the Middle East. It is a cause for celebration to see th

Hussein is gone. Not even the most vocal critics of the war have sugg

Saddam should be restored to power. No one argues that the Baathist di

reflected the free will of the Iraqi people. Saddam Hussein was a callow 

leader, and the allied intervention toppled an authoritarian regime of un

harshness. Saddam used chemical weapons to attack Iraq’s Kurdish villa

tempted to destroy the Marsh Shia. He was ruthless in suppressing polit

nents. Among the supporters of Iraqi sovereignty, no one can confuse 

regime with the claims of democracy.

The end of Iraq’s Baathist regime may advance the Middle East peac

The roadmap process for Palestinian-Israeli peace still has only a limited 

success. But Iraq’s threatening stance towards Israel had obvious con

and the end of an aggressive regime in Iraq may change how Israel regard

rity space. The Baathists supported terrorist attacks against Israel, throu

ing and perhaps through training. In the first Gulf War, Saddam Hussein 

Scud missile attacks against civilian centers in Israel, hoping to create a 

The elimination of an unpredictable and looming threat to the eastern b

facilitate crucial Israeli concessions on the West Bank.

After September 11, it is unacceptable for any country to provide fin

physical sanctuary to international terrorist groups. This includes any 

group seeking to attack civilians as targets. The Security Council has end

standards for State responsibility, forbidding any and all assistance to int

terror groups in Resolution 1373.3 Iraq’s financial and material support 

ism contributed to the spoliation of Middle East politics, and removal of 

also may produce salutary results for the region as a whole.

One hopes that the intervention in Iraq will affect other countries in 

through the example of an emerging democracy. Saudi Arabia and Egy

create some space for popular voice and competition in their politics

demonstrate, if things go well, that there can be a secular, prosperous, 

neous State in the region under a democratic government. Support for 

moderate democratic State should enjoy support from both sides of t

American politics. The long-term goals of democracy are a realist’s agen

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as an idealist

s hope. Harnessing the energies and ambitions of people 

been excluded from governance is one of the elements of real power. And 

that totalitarian repression is the only way to preserve stability deserves 

proved. Iraq is a resource-rich country, and may be in a better potential p

demonstrate that a modern democracy can work, than impoverished Sta

Afghanistan or East Timor or other economically desperate places 

United Nations has intervened.

With respect to weapons of mass destruction (WMD), we should recall 

diate purpose of the Iraqi intervention. At the time of the first Gulf War, Sa

embarked on ambitious programs to develop nuclear weapons, produc

weapons, and manufacture biological weapons. After he invaded Kuw

tempted to speed up the production of a nuclear bomb. When coalition tro

him out of Kuwait, and had the Republican Guard on the run, Saddam 

stringent and unique conditions as part of the cease-fire. Under Securi

Resolution 687,4 as a condition of the ceasefire, Iraq was required to shu

programs to develop weapons of mass destruction and medium-range or l

missiles, and to do so in a transparent way. Resolution 687 placed the 

proof on Iraq to demonstrate the dismantling of these weapons programs

the destruction of components and precursors, and this burden of pro

change during the next decade. But to the great surprise of the allies, Ba

fused to account for the programs of WMD development, defying the d

verifiable destruction of weapons components under the UN resolution.

The predicate for allied intervention in 2003 was “smoking docume

“smoking weapons.” Iraq was in the midst of active nuclear, chemical, an

cal weapons programs at the close of the first Gulf War, and was require

how and when they would be abandoned. Even in the last Iraqi declara

United Nations filed in December 2002, Baghdad failed to give a plausib

of its weapons inventories and their disposition. It refused to allow weap

tists to be interviewed outside the country. Ambassador Hans Blix op

military intervention, at least at that time, but as executive director o

Monitoring, Verification and Inspection Commission (UNMOVIC), he 

edged the unsatisfactory character of Iraq’s continued game of hounds 

In the world after September 11, accounting for WMD inventories an

quired destruction is not an optional matter.

Even after the retreat of Saddam’s forces, the continuing war in the 

Baghdad and elsewhere in the Sunni triangle has presented difficult pro

the United States and coalition forces in Iraq. Saddam has gamble

Baathists can return to power by continuing to inflict damage on the al

and the Iraqi people. He has counted on a version of the “Somalia syndr

5

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exhaustion of the United States

political will to continue. He looks forw

imagined moment, based on the example of Vietnam, when we will sim

draw, whether or not the military and security forces of a democratic Iraq 

to take over the fight. He predicts that we will wither, and that the field 

opened for Sunni and Baathist hegemony.

Overcoming the ongoing insurgency will be a great challenge. It is d

create a new Iraqi law enforcement capability. We have had this same stru

more benign environments, whether in Haiti, in Bosnia, or in Panama

curred every time an existing authority is displaced, so it should not be 

that we face the issue again. To vet and stand up a police force that is suit

pendent, robust, and reliable, especially in a country with ethnic division

easy task. It is crucial to have a local face as the intermediary with a larg

tion. Defeating an insurgency requires information and cooperation from 

izens. Baathist retaliation against Iraqi citizens who are seen as cooperativ

new transition has been ferocious. Yet it is clear that if the Sunni resistan

defeated, information from Iraqis about insurgent activities will be criti

A second practical problem is the wasting and destruction of critical i

ture. The arrival of allied forces in Baghdad was followed by a rampage. 

der and debellation would not surprise UN veterans who saw the razi

Timor by paramilitaries and militias, after the UN-organized vote for 

ence. Part of the violence may be the reaction of a people whose politi

was battered by three decades of suspicion and fear. The lesson for mil

structure and capabilities seems clear. In peacekeeping, over the last 15 

have discovered that even if a mandate calls for a limited peacekeeping 

forces must have a robust capacity for peace enforcement. Security env

change too fast, and can render under-equipped forces helpless on th

Now, in Iraq, we see the opposite problem. In the follow-on to a robust c

eration one needs a strong police capacity, with troops trained in secur

tions, arrest, and the responsible processing of prisoners. It may no longe

to confine the functions of military police to the reserve components 

armed forces. This capability may be needed in the active-duty force 

such situations in the future.

We also need to be frank about how long peacekeeping operation

whether in Bosnia or in Iraq. The time horizon for an international p

Bosnia was ignored by at least one White House. An attempt at realis

time horizon can improve our training for the tasks at hand. For exampl

lied forces are called upon to support local police operations, it would b

have some language capability, to avoid operating in a deaf and dumb 

Iraq, we should seek to train allied personnel in rudimentary Arabic. In t

6

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a gendarmerie, it is useful to know who started a quarrel, or to solicit tip

having a security breach through an unknown interpreter. Independen

capability will usefully allow each allied unit to check whether a local int

providing faithful translations.

Another practical difficulty—and another lesson learned from po

peacekeeping missions—is the importance of quick and visible economi

The slow decision and funding cycle of the World Bank and other aid ag

terrible obstacle to this, since the period for formulation, approval, and 

projects may be two to three years. “Quick impact” projects are critical t

Iraqi citizens that their material lives can change for the better. The Arm

Engineers and other US government components have an important ro

facilitate the rebuilding of the national infrastructure and the jumpst

economy. Though freedom is a most precious commodity, a prolonge

starting the economic recovery of Iraq will result in the loss of goodw

greater hesitation to embrace the transformation of Iraqi political socie

The ultimate puzzle is how to substitute civic nationalism for a cult of 

ity and ethnic division. A new set of institutions is needed as the touc

Iraqi allegiance and commitment. We faced similar challenges in post

many and during the Cold War, though the differences to be overcom

cases were more singularly ideological. The act of voting and organizing 

ment can be inspiring. But there were other important efforts in fighti

and communism; in particular, using effective cultural tools. Those da

be gone. Fifty years ago, international funding for a host of cultural a

tional projects was key in restoring German political culture. We have 

how to use cultural power to stabilize a fractious political situation.

And then there is the legal challenge of finding a framework that allow

complish these worthy purposes. Are the United States and coalition for

to be considered under the law as an “occupying” force? In Bosnia, NAT

characterized as an occupier. The Dayton Peace Accords acknowledge

role as a peacekeeping force.5 Characterizing the presence of allied force

ternational “occupation” also would have slighted the importance of Bos

tablished civilian government. NATO military commanders were conc

the legal category of occupation presumed a degree of control that might 

alistic, and in particular, were aware that they might not be immediately 

tiate searches for top-level Serb, Croat and Bosnian war criminals, a 

applies to occupiers under the Geneva Conventions. Rather, it was a

NATO served in Bosnia in the tradition of a classical peacekeeping force

intermediaries tasked to keep the opposing sides apart.

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In Iraq, with Saddam Hussein

s removal, we are once again in an unc

where international law is asked to handle new situations. The Hague an

Conventions may be read to suppose that an occupying power should le

as much as possible, the existing institutions of a society. But Saddam’s p

stitutions were savage and totalitarian, and to maintain their operation w

long a gross violation of human rights. It is hard to conclude that the Hag

land warfare could be intended to protect the Baathists’ violent monopo

ical power or to bolster Baghdad’s disregard for the Shiite and Kurdish c

ties. Treaty law must be read as part of a legal landscape in which human 

makes its own demands.

The United Nations also has kept eyes and ears, and a voice, on the 

Iraq, through a special representative of the UN Secretary-General. Thi

ian diplomat Sergio Vieira de Mello, who has served also as the Unite

High Commissioner for Human Rights in Geneva and has worked in a n

senior United Nations positions, including as Transitional Administra

Timor. He can be a vital link in mobilizing the UN’s specialized hum

agencies, as well as contributing to cooperation among competing Iraq

In an environment of confrontation, the United Nations could serve 

symbol of multilateral commitment. Though the military effort was con

a “coalition of the willing,” the reconstruction of Iraq has been mounte

broader aegis, in which even countries opposing the war will be invited t

ute. A visible United Nations presence in Iraq may make it easier for th

tries to participate in the key tasks of reconstruction.

To be sure, we have learned that the United Nations does not enjoy 

legitimacy in every situation. Multilateral endorsement is not a respecte

prehensible cultural artifact in some corners of the globe. This point has b

by Sir Brian Urquhart, in a wonderful memoir of his dangerous adventu

the early days of UN peacekeeping.7 Sir Brian served as a key aide to 

Bunche and UN Secretary-General Dag Hammerskjold in the UN pea

mission in the Congo in 1960.

Sir Brian was dispatched to the Congo’s Atlantic port at Matad

through an area where the Congolese Army had staged its mutiny. He fou

to transport a hardy contingent of Moroccan peacekeepers and had 

draped across the front of the train. But the UN’s emblem did not have t

effect. The Congolese, as Sir Brian reports, “had never heard of the Unite

‘L’ONU? C’est quelle tribu?’ (The UN? What tribe is that?) a local Cong

cial inquired.”

So, too, we should not assume that Sunni clan members living in the I

Tikrit will show any great deference to the United Nations. The United N

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be perceived as the institution that helped to enforce weapons inspection

nomic sanctions in the 1990’s. In other quarters of Iraq, the United Natio

seen as the institution that failed to protect the Kurdish and Shiite comm

ter the first Gulf War. This will not enhance its local legitimacy. Nonethe

eyes of foreign countries, the United Nations’ presence may make it eas

tribute to the Iraqi reconstruction effort.

It is often said that the law of armed conflict seeks to solve the probl

last war—catching up with worthy innovations demanded by circum

the ground or allowed by new technologies. But there are occasions w

post-war rules fail to reflect important problems of the most recent co

should direct a few more words to the problems of adapting the law of o

to the project of democratic transformation.

In the aftermath of World War II, the goal of the allied occupations wa

form the militaristic societies of Germany and Japan. Yet the 1907 Hagu

tions Respecting the Laws and Customs of War on Land8 were and are st

and posed some problems even for lawyers in 1945. The 1949 Geneva C

IV,9 on the protection of civilians, did not remedy these problems. Articl

Hague rules states that the occupier should “take all the measures in hi

restore, and ensure, as far as possible, public order and safety, while resp

less absolutely prevented, the laws in force in the country.” Article 64 of Ge

vention IV notes that “The penal laws of the occupied territory shall 

force, with the exception that they may be repealed or suspended by the O

Power in cases where they constitute a threat to its security or an obstacle 

plication of the present Convention.” And “the tribunals of the occupie

shall continue to function in respect of all offences covered by said laws

In Iraq the goal is to transform a Baathist culture of oppression. Certa

going to require an intrusion into and transformation of local law, m

practice by the democratic participation of Iraqis and the United Na

nonetheless, a change of local law that might appear inconsistent with th

some Hague rules and Article 64 of Geneva Convention IV.

Of course, even forces operating under the mantle of “occupiers” ha

that could aid a democratic transformation of the country. Under Artic

64 of the Geneva Convention IV, the occupier has to provide for the bas

the population and maintain orderly government.10 Security Council R

1483 of May 22, 2003, enacted under Chapter VII of the UN Charter, r

rectly to the Coalition Provisional Authority as a temporary governing bo

ing the organization of a democratic Iraqi government. It recognizes “t

authorities, responsibilities, and obligations under applicable internatio

these states [the United States and United Kingdom] as occupying pow

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unified command,

as well as calling on all States to assist the people 

their efforts to reform their institutions and rebuild their country.”12 M

orderly government and assisting the reform of institutions surely cou

clude restoring the chaotic brutality of Baathist hegemony.

And then there is the interplay between the law of occupation and hum

law. Geneva Convention IV was completed in the same historical mom

Universal Declaration of Human Rights.13 One thus has a strong reason 

two instruments in harmony. The diktat of the Baathist party in Iraq h

daily repudiation of the principles of the Universal Declaration of Hum

To be sure, in an earlier age, there was a much greater acceptance of posit

even when exercised by undemocratic regimes. There was less will

openly test the legitimacy of State power before respecting it. But the two

of 1948-49 saw the anointment of both instruments, and it is not unrea

read them together.

Perhaps the simplest justification for the democratic changes that will 

lies in the sovereignty of the Iraqi people. The United States and its allie

reference to the concurrence of the Iraqi people, expressed through th

Governing Authority and subsequent representative institutions. But on

son of other peacekeeping operations is that mechanical political choic

cement in place an angry nationalism. In Bosnia, elections should hav

layed until after 1996. By holding early elections there, we succeeded in e

tionalist parties who could claim democratic provenance alongside the

nationalism. In Iraq, we should not cement in place the sectarian angers 

and the Iraqi people—would ultimately rather not have.

What does one do in peacekeeping when confronted with a tendentiou

no other available? The problem of a legal vacuum during occupation is n

UN legal adviser has written elsewhere that it could be handy to have a 

criminal code for post-conflict situations, so that peacekeeping forces wo

legal basis for action.14 In East Timor, the UN civilian police would arrest a

those suspected of violent crimes in ongoing cycles, because there was n

code under which to hold and charge them. Nonetheless, in addressing t

lems, we should not forget the major justification for the adaptation and am

of prior Iraqi law, including interim measures by the Coalition Provision

ity. The occupation of Iraq is meant to be transformational, to allow the Ir

the benefits of democracy and modern human rights law, just as the occu

Germany and Japan were transformational. The law of armed conflict w

way have to catch up to that.

There is a long-term problem for American strategy in these kinds o

We have been using ground surrogates in many of our wars. In Bosnia 

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upon the Croatian ground campaign. In Afghanistan we had the Nort

ance. The US Secretary of Defense has the vision, which indeed I shar

combat forces need to be agile and mobile, able to get places where the

good airfields and good seaports. As a consequence, it may be necessary t

liances of convenience in the hotspots where we need to send our forces

the better of the parties on the ground.

But reliance on light and mobile forces poses a potential problem in o

and post-conflict policing. When we have succeeded in vanquishing an 

we still need a force structure to carry out the policing obligations of the H

Geneva Conventions. The Geneva Conventions require the occupier to 

orderly government and ensure that the normal functions of governmen

This may be hard to do, until and unless local forces are trained and sto

The challenge for American forces in the Iraq intervention was to mo

on the battlefield, to keep Saddam Hussein from using any chemical we

to prevent him from repeating the environmental attacks that he used 

Gulf War. We must salute the coalition forces that punched their way to 

so robustly. But a large ground presence will also be needed in post-conf

keeping, to assure the police authority needed to sustain order. We may l

sistance from other countries, through the United Nations or 

coordination. Yet in a difficult environment, a core American presence 

sential. Thus, in such operations, we need substantial US contingents a

follow after the light and mobile forces that vanquish the enemy on the ba

Let me mention Security Council Resolution 1483, and its effect on 

economy.15 Economic sanctions have been lifted. Oil can be sold and 

begin to repair refineries and distribution equipment to facilitate petro

duction. The resolution renders Iraqi petroleum products immune from 

ceedings against them. Thus, Iraq can sell its oil without concern about 

action in a French port. Resolution 1483 also establishes an Iraqi dev

fund. Frozen Iraqi assets of the Baathist regime can be transferred to the 

tected by required independent auditing.

Ultimately, Iraq will face the difficult question of how to form a new 

tion and establish the political legitimacy of a new government. The proc

South Africa at the end of apartheid may provide a useful lesson. In that 

consensus on foundational principles was sought, before addressing sp

cles of a constitution. An unanswered question is who will participate in 

opment of the constitution. The process of drafting a constitution 

democratic voice as a foundation stone.

There are other crucial choices in the process of constitution-buildin

the constitution center upon civic nationalism or religious nationa

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American constitutional advisor has supposed that an Islamic Republic 

sensible alternative for Iraq. But differences in the interpretation of Islam 

this as a provocative course of action, rather than ameliorative. The alter

secular republic or a secular republic that helps to assist established re

Americans, with our history of separation of church and State, we would 

with direct State support of religion. But this is not North America, and 

an attractive alternative to the radical Islamism seen in some other Arab 

There is a crucial choice to be made about federalism—the degree to w

erning powers are spun out to the regions. Certainly one way of maintai

within Iraq could involve decentralization of political power, at least once 

stored. Significant authority can be vested in local government, in the no

Kurds and in the south for the Shia. This territorial federalism may appro

of local autonomy. The Kurds obviously would like nothing better. Or on

plore a form of so-called “consociationalism”—a community-based met

ganizing political society, as seen in Belgium and some other multieth

There is an economic caveat, however. Many of the petroleum reserves of I

cated in Kurdish areas. Iraqi oil and development revenues cannot be clai

by the Kurds. They must be a national asset. In addition, local autonomy 

used as a mask for ethnic cleansing and forced relocations.

Structuring the executive is a most delicate issue, after the abusive 

power by Saddam Hussein. The separate election of an Iraqi president m

greater stability, since presidential leadership will not be immediately dep

the waxing and waning of coalitions of minority parties in the parliam

tionally, against a history of personality-driven politics in Iraq, a widely-r

and democratically-elected president may provide a symbol of transition 

totalitarianism of Iraq’s past to the democracy of the future.

Another difficult issue will concern the status and role of women. Wo

had a more prominent role in Iraq than in some other Arab countries. 

that prominence should continue.

Finally, the role of the armed forces is a critical issue for the future o

Turkish and Indonesian model in which the armed forces have a role in 

ment is highly problematic for Iraq, particularly measured against th

Saddam’s declaration of war against his own population. Nonetheless, si

a centrifugal society, and since some actors in the region will be tempte

apart, one needs to preserve a role for a democratic military in which 

forces are honored, trusted and valued by the State—and very firmly 

command and control of a democratic republic.

The Administrator of Iraq’s Coalition Provisional Authority, Ambas

Bremer, has reemployed some portions of the Iraqi Army as an interim 

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force. There needs to be Sunni participation in the new republic, rather t

sion from all governmental institutions. If former government employ

participate, they will provide a continuing source of angry insurgents.

Constitution building will take time. One wishes for a flourishing ci

with newspapers and civic associations and broad conversation, alongsid

cess of transferring power to organized political groups. In East Tim

Viera de Mello contemplated a slow and gradual transfer of political p

cause there was no trained administrative class. (Under Indonesian rul

East Timor’s managerial positions were filled by West Timorese or Jak

administrators.) But very quickly, José Ramos-Horta and Bishop Carlos 

had shared the 1996 Nobel Peace Prize, reminded the United Nations th

sian rule should not be replaced by practices that could be misapprehe

new style of multilateral colonialism. There was great impatience for 

participation of the East Timorese in governance. I think the same impu

felt in Iraq. The key is to find a way in which there is a prominent Iraqi ro

not allow this to develop into crony capitalism or nationalist hegemony

In conclusion, one can modestly admit that bundles of legal rules will 

determining factor in the immediate days ahead and in the development 

democratic governing structure in Iraq. A successful transition depends 

for the principles and values of Hague and Geneva law, while at the sam

establishing a civic culture after thirty years of tyranny. Although there 

hurdles to overcome, both by the United States and its coalition partn

the Iraqis themselves, I am optimistic that at the end of the day we will se

cratic and prosperous Iraq.

Notes

1. Edward B. Burling Professor of International Law and Diplomacy at the School o

International Studies, Johns Hopkins University, in Washington, D.C.

2. See, e.g., Ruth Wedgwood, Legal authority exists for a strike on Iraq, FINAN

(London), Mar. 14, 2003, at 19; Ruth Wedgwood, The Enforcement of Security Counc

687: The Threat of Force Against Iraq’s Weapons of Mass Destruction, 92 AMERICAN J

INTERNATIONAL LAW 724 (1998).

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

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

5. General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 

1995, 35 INTERNATIONAL LEGAL MATERIALS 75, 92 (1996), available at http://www

humanrts/icty/dayton/daytonannex1A.html.

6. Editor’s note: On August 19, 2003, Sergio Vieira de Mello was killed in an insurge

of the UN Headquarters in Iraq.

7. BRIAN URQUHART, A LIFE IN PEACE AND WAR 149 (1987).

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g() pg 

Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 2 

JOURNAL OF INTERNATIONAL LAW (1908) SUPPLEMENT 90, reprinted in DOCUMEN

LAWS OF WAR 69 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).

9. Geneva Convention Relative to the Protection of Civilian Persons in Time of W

1949, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 

10. Id., art. 55, at 319 (“To the fullest extent of the means available to it, the Occup

has the duty of ensuring the food and medical supplies of the population . . .”); id., art

at 322 (“The Occupying Power may... subject the population of the occupied 

provisions which are essential to enable the Occupying Power to fulfill its obligation

present Convention, to maintain the orderly government of the territory. . . .”).

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

12. Id., operative paragraph 1 (“Security Council . . . Appeals to Member States an

organizations to assist the people of Iraq in their efforts to reform their institutions 

their country, and to contribute to conditions of stability and security in Iraq in acco

this resolution”).

13. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 

plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).

14. Hans-Jorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The Un

Missions in Kosovo and East Timor, 95 AMERICAN JOURNAL OF INTERNATIONAL LAW 

15. S.C. Res. 1483, supra note 11.

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Iraq and the Law of Armed Conflic

Thomas M. Franck1

he law of armed conflict is generally understood to pertain to the 

erning the conduct of war, the jus in bello. Superior, and antece

however, is the jus ad bellum, the law pertaining to the initiation of war. A 

when fought in accordance with the letter of the jus in bello, will in no wa

mate if the conflict was initiated in violation of the jus ad bellum. So, f

first. Was the war in Iraq undertaken in compliance with the law gov

course to force? If, as I believe, the answer to that question is “probably 

the war could not have been fought in accordance with the law of arm

because the lawfulness of the conduct of hostilities is determined not o

way, but also by why, a war is fought.

The United Nations Charter, a treaty consented to by the US Senate a

by the president and to which more than 190 States are parties, purports 

tral undertaking to limit the grounds upon which States may lawfull

course to force. Article 2(4) stipulates that parties shall “refrain 

international relations from the threat or use of force against the territo

rity or political independence of any state.”2 With this provision, the w

emerged in 1945 from history’s bloodiest war of aggression, sought for

pudiate the principle attributed by Thucydides to the Athenians in the

towards the island-State of Melos during the Peloponnesian War that: “

do what they can and the weak suffer what they must.”3

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The conflict Thucydides describes is that initiated by a highly cultiv

tively democratic Athenian State against the much smaller Melian State, 

sought to remain neutral in Athens’ larger conflict with Sparta. Athens, 

rian tells us, eventually destroyed itself in a futile effort to protect against 

lignant eventuality by attacking and securing the submission of every p

which danger might emanate. Whether or not one perceives a modern 

these events, it is amply clear that the purpose of the world’s most wide

treaty is to repeal the vestiges of the Melian principle, replacing it with a s

against the initiation of war.

The sole exception envisioned by the Charter is set out in Article 51: “N

the present Charter shall impair the inherent right of individual or coll

defence if an armed attack occurs. . . .”4

Thus any examination of the lawfulness of US conduct in deplo

against Iraq in the spring of 2003 must begin by asking whether that a

congruent with the post-Melian requirements of the UN Charter. If the i

Iraq was nothing but an act of self-defense by the United States and the s

coalition, or only an exercise of the collective police-power that had 

been approved by the UN Security Council, then the recourse to force w

been lawful. The Charter’s Article 2(4) no-first-use pledge is clearly subo

the Article 51-based right of self-defense and also to the authority of th

Council, set out in Chapter VII of the Charter, to initiate action against 

the peace. If the 2003 invasion of Iraq had previously been authorized by 

rity Council, its legality would be beyond question.

It is possible to position the invasion of Iraq in either, or both, of thes

tory contexts, but just barely. The argument that our armed forces, in 

Iraq, have not violated the Charter is not easily or readily sustained, desp

efforts of US and British government lawyers. Indeed, the deputy legal 

the British Foreign Office resigned rather than sign on to London’s offici

sition. As enunciated by US State Department Legal Adviser William Ho

IV, the argument has two prongs. The first is that the President may “of 

ways use force under international law in self-defense.”5 The readily

problem with that rationale is that, even if it were agreed (as it well mig

the Article 51 right of self-defense has been interpreted in practice to incl

of action against an imminent armed attack, it is difficult to fit the facts o

tion existing in March 2003 within any plausible theory of imminence. 

time, after all, when UN and International Atomic Energy inspectors we

actively conducting seemingly unimpeded searches for weapons of mas

tion with the full weight of Security Council resolutions to back them up

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in the inspectors

reports lends any credibility to the claim that Iraq, in th

2003, posed any imminent threat of aggression to anyone.

The second prong of justification is more sophisticated, averring that 

on Iraq by the United States and Britain had already been pre-authorized 

curity Council. To sustain this assertion, the United States produced a cr

ultimately unsustainable reading of three previous Security Council Re

678, 687 and 1441.6 According to Taft,7 Resolution 678, with which th

had authorized the use of force to oust Iraq from Kuwait in January of 

kept in force by Resolution 687 of April 1991, which ended the first Gul

imposed stringent disarmament conditions on Iraq. Taft maintained th

had “materially breached” these obligations, the right to use force had rev

force may again be used under UNSCR 678 to compel Iraqi compliance. 

over, Taft said, the Security Council, in its Resolution 1441 of Novemb

which had ordered the inspectors back into Iraq, “had unanimously de

Iraq has been and remains in material breach of its obligation.” Accord

Legal Adviser, Resolution 1441 gave Baghdad a final opportunity to com

if disregarded, would constitute a further material breach. He concluded 

has clearly committed such violations and, accordingly, the authority to 

to address Iraq’s material breaches is clear.”8 Taft’s British counterpart a

that Resolution 678 of November 29, 1991 was still effective to authorize 

States to use all necessary means to restore international peace and secu

area” and that, while that authorization had been suspended at the end 

ties in 1991 by Resolution 687, it was “revived by SCR 1441(2002).”9

Is this a fair reading of the resolution that, in 1991, first authorized 

force by a coalition of the willing? Resolution 678 was itself the culminati

ries of earlier resolutions by which the Council had responded to Iraq’s i

Kuwait. It called for the immediate withdrawal of the aggressor, impose

tory sanctions and declared the annexation of Kuwait null and void. I

stance, the Council’s purpose, evidently, was to roll back the aggression c

by one member against another. Only after these measures failed to suff

Council, acting under Chapter VII of the Charter “authorize Member 

operating with the Government of Kuwait . . . to use all necessary means 

and implement [its earlier resolutions] and to restore international peace 

rity in the region. . . .”10

Obviously, it was the restoration of Kuwaiti sovereignty that had mo

Council in 1990-91. That Resolution 678 incidentally makes reference to 

ration of “international peace and security in the region” does not con

expansive additional mandate beyond that of Kuwaiti liberation. It doe

tingently license the pursuit of quite different objectives such as “regime 

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the sole discretion of individual members of the coalition. President Ge

Sr. acknowledged as much in explaining why the American military ha

sued Saddam Hussein’s forces all the way back to Baghdad. “The U.N. r

never called for the elimination of Saddam Hussein” he said. “It never 

taking the battle into downtown Baghdad.”11

What Resolution 687 did do was to establish intrusive post-conflict co

Iraq and to make these mandatory under Chapter VII of the Charter, sub

lective enforcement in the event of non-compliance. Compliance monito

ever, was to be the domain of the Security Council and its inspectors. Ba

compelled to agree to the verified elimination of its weapons of mass destr

of the industrial capacity to produce them, as well as of its medium- and l

delivery systems.12 To make sure this happened, the Council and the UN 

General were made responsible for creating and supervising the inspecto

deploying them,13 and it was to the Council that Baghdad was required 

“that it will not commit or support any act of terrorism or allow any or

directed toward commission of such acts to operate within its territory

clinch its continuing supervisory role, Resolution 687 stipulated that th

was to “remain seized of the matter and to take such further steps as m

quired for the implementation of the present resolution and to secure 

security in the region.”15 It is not individual States acting on their own in

without authorization of the Council.

This does not sound as if the Council then, or thereafter, intended to c

United States and Britain the right to determine when to use military fo

absence of an (imminent) armed attack. It does not appear to delegate t

ual members of the Council authority to determine the existence of 

breach or to decide the appropriate response. To interpret Resolution

1441 otherwise would be to imply, without further evidence, an int

Council to overturn the basic architecture of the Charter by authorizing 

members to effect an unprecedented and uncontrolled derogation from 

sites of Article 2(4). Without supporting evidence, it would be foolhard

such an assumption.

This difficulty for those arguing the legality of US recourse to force is 

ated by reference to Resolution 1441 of November 2002, which effected 

of the inspectors to Iraq. While that resolution passed unanimously, i

that goal by resolutely refusing to delegate to individual States the autho

cide if and when its mandate was being violated, let alone what to do abo

members, in voting for Resolution 1441, may have hoped there would b

sion to cross the bridge of enforcement. However, there is no evidence w

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for the confident assertion that they intended to authorize individual St

cide whether the Council strictures had been violated and, if so, what to d

What, if anything, is to be learned from the consequences of this US d

use force without the requisite Security Council authorization? This wa

not the first time a State had chosen to pursue what it perceived to be its n

terest by reverting to such unilateral action. France and Britain in Suez, In

and Bangladesh, Tanzania in Uganda, Vietnam in Cambodia, and even 

Kosovo, are but a few of a plenitude of examples. Sometimes, the unlaw

was defended by lying about the facts, which, at least, exemplifies the co

vice sometimes pays to virtue. In most instances, however, it was argued—

out reason—that, by violating the technical letter of the law, the initiator o

force was preventing the occurrence of some far greater wrong. Any legal s

take such an argument into account. But these are not the justifications W

is producing now that the weapons of mass destruction have not been 

and the link of Saddam Hussein to Al Qaida remains unproven. In the wa

disappointments for those who sought to justify this war in traditional ter

defense, we are now being invited to draw more far-reaching conclusio

need to reshape the ostensibly broken international system because of it

refusal to endorse our recourse to force. Some call for the dismantling of 

Nations as a spent force vainly resisting the reality of American pred

France, it is said, needs to be punished and Germany ignored.

But these are the wrong conclusions to draw from the Iraq experience

the right ones may have to await further clarifying events, but a few m

tured tentatively. One is that the collective decision-making process of th

Council should not be regarded as just a hobble on the sole superpowe

tion, but also as an important reality check, a way to get important persp

may even sometimes save Washington from acting too hastily in over-r

its own imperfect and sometimes distorted vision. Another is that the Un

needs the world, and that, without its support for projects important 

tional interest, the successful pursuit of that interest may prove far mo

and expensive.

A final lesson is that the rule of law is not a smorgasbord, where the s

power is entitled to pick and choose among its offerings. For example, t

Nations has put in place an extensive system for preventing and moni

flow of money to terrorists. To implement it, however, States must su

some of their sovereign prerogatives to an interstatal legal regime. W

they? Very few countries feel as directly threatened by terrorism as do we

African and Asian States and not even the nations of Europe. If they sup

the war on terrorism, it is not necessarily in their national interest that 

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conformity with these new legal mechanisms, for to help the United St

example, the Government of Pakistan appears to be doing, is to invite th

to extend their retributive reach. That the legal regime underpinning t

terrorism nevertheless enjoys such broad support of governments testi

adherence of States of diverse races, religions, political persuasions and 

looks to the rule of law that the Charter supremely exemplifies.

It would be a mistake to underestimate the cost to the culture of c

were the United States to continue over-demonstrating its entit

exceptionalism. The war in Iraq was undertaken in what is almost unive

ceived as a serious violation of international law and, thus, a weakening 

regimes’ capacity to secure acquiescent compliance. This deterioration o

ethos cannot be to the longer-term advantage of the United States, wh

short term temptations. If it is not, steps need to be taken to mitigate, not t

the damage done. In the age of globalization, and globalized anti-governm

ror, Athens needs the Melians to be willingly on its side.

Notes

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

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

3. See THE LANDMARK THUCYDIDES,ACOMPREHENSIVE GUIDE TO THE PELOPONN

352 (Robert B. Strassler ed., 1996).

4. UN Charter, art. 51.

5. William Howard Taft IV, An Address to the National Association of Attorneys Ge

20, 2003).

6. UNSCR 678 (Nov. 29, 1990); UNSCR 687 (Apr. 3, 1991); UNSCR 1441 (Nov. 8

7. See Taft, supra note 5.

8. Id.

9. See Written Answer of the Attorney General, Lord Goldsmith, to a Parliamenta

on the legal basis for the use of force in Iraq, Mar. 17, 2003 (UK Foreign and Com

Office, ¶¶ 2-4.

10. UNSCR 687, supra note 6.

11. PUBLIC PAPERS OF THE PRESIDENTS, GEORGE BUSH, 1992–93, Vol. I, at 568 (19

12. UNSCR 687, supra note 6, at ¶ 33.

13. Id., ¶¶ 9, 10 and 13.

14. Id., ¶ 32.

15. Id.

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III

International Law and the 2003 Campa

against Iraq

1

Introduction

When, on September 12, 2002, President George W. Bush called 

Security Council to enforce its binding resolutions on Iraq and 

that the United States was willing to enforce them alone if need be,2 one o

tions he put before the world had periodically come up in the preceding d

it lawful for a State or group of States to enforce the Security Council reso

Iraq without specific Security Council authorization in each case? Or, to 

other way, “who decides?”3 The previous occasions when this question wa

volved the enforcement in the 1990s of the No-fly Zones by the Uni

Britain, and, for part of the time, France or larger scale attacks on Iraqi m

gets as in December 1998.4 However one frames this constitutive questio

case the answer is that those members of the Security Council decided.

Of course, actions are taken in context, and the lawfulness of an acti

be assessed without examining its context. The circumstances of the spe

after the terrorist attacks of September 11, 2001, lent special urgency to 

dent’s call. The effort by Iraq to mount terrorist attacks against the int

coalition formed in response to the 1990 invasion of Kuwait, Iraqi suppo

estinian terrorist attacks against Israel, Saddam Hussein’s applause for th

ber 11 attacks themselves, and Iraq’s repeated efforts to obtain and then 

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nuclear, chemical, and biological weapons programs and capabilities wh

obligations stemming from the 1991 Gulf War formed the political and 

ronment of the 2003 military action.

On September 12, 2002, President Bush summarized the principal U

Council resolutions binding on Iraq and Iraq’s failure to comply with 

said “[t]he conduct of the Iraqi regime is a threat to the authority of the U

tions and a threat to peace. . . . Are Security Council resolutions to be ho

enforced or cast aside without consequence?”5 He added that the United 

the right and indeed the obligation to enforce the law against Iraq and cal

Member States to join in doing so.6

The US view of international law applicable to the Iraq case did not an

now enjoy unanimous support. For example, Professor Thomas Fran

that, in 2003, the United States, Britain, Australia, and others engaged 

force against Iraq not sanctioned under the UN Charter.7 He disputes th

the campaign was a lawful exercise of the international use of force und

UN Security Council resolutions and general principles of internation

fact, the arguments Professor Franck disagrees with have merit and dese

ration before the invisible college of international lawyers renders its ju

The Legal Basis for the 2003 Campaign against Saddam Husse

The argument for the lawfulness of the 2003 campaign against Saddam 

government of Iraq is rooted in the Persian Gulf situation after August 2, 

argument concludes that, first, UN Security Council resolutions and s

from 1990 through 2002 provided legal authority for the 2003 campaign 

onstrated that, as a legal matter, the 1991 Gulf War had not ended, an

that, in any event, Iraq’s material breaches of the 1991 cease-fire, which 

rity Council repeatedly recognized as such, kept alive, if it were necessar

the Security Council’s 1990 authorization to use force to uphold and i

subsequent resolutions and restore regional peace and security. The te

tacks of September 11, 2001, transformed the context and analysis of Iraq

and ended more than a decade’s tolerance of Iraq’s refusal to fulfill its o

to the UN Security Council.9

UN Security Council Resolutions and Council Presidential Statemen

the UN-based legal framework for the 2003 campaign.10 Resolution 14

the Security Council adopted unanimously on November 8, 2002, recog

threat Iraq’s non-compliance with Council resolutions and proliferation 

ons of mass destruction and long-range missiles poses to international 

security.”11 The operative section of Resolution 1441 commences with t

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that Iraq 

has been and remains in material breach of its obligations und

resolutions, including resolution 687 (1991).”12 These words refer to the 

of the 1990 Gulf Crisis, when Iraq invaded and purported to annex Kuwa

knowledge that the conflict thus begun had remained unresolved. They 

put under the lens both the UN Security Council authorization to use fo

Iraq because of the invasion of Kuwait and the resolution setting forth th

ending that conflict and authorization.

Material Breach of UN Security Council Resolution 687 (1991)

The Security Council was the forum through which the collective defe

wait was managed in 1990.13 On August 2, 1990, the Council condemned 

vasion of Kuwait of the same day.14 The Security Council then affirmed t

collective self-defense in response to the invasion,15 imposed an econ

bargo,16 authorized the ongoing maritime enforcement of the embargo

out humanitarian exceptions to the embargo,18 warned Iraq about t

quences of illegal hostage-taking,19 and addressed other specific issues 

during the first four months following the invasion.20

On November 29, 1990, the Security Council adopted Resolution 678 

ing the use of force and giving Saddam Hussein until January 15, 1991, t

government’s obligations to implement pre-existing Security Council r

beginning with Resolution 660, which had condemned the invasion 

manded an immediate, unconditional Iraqi withdrawal from Kuwait.21 

sence of Iraqi compliance with this ultimatum, the Resolution authorized 

States co-operating with the Government of Kuwait . . . to use all necessar

uphold and implement Resolution 660 (1990) and all subsequent relevant 

and to restore international peace and security in the area.”22 Operation Dese

the 1991 Gulf War to eject Iraq from Kuwait—began on January 16, 1991, b

of the US-led Coalition, not of the Security Council, and ended with a ceas

by decision of the US-led Coalition, which the Security Council subsequentl

as a “suspension of offensive combat operations” on March 2, 1991.23 The

3, 1991, the Council adopted Resolution 687, codifying that cease-fire and 

additional obligations on Iraq, “bearing in mind” the goal of securing in

peace and security in the area.24 In order to obtain a cease-fire, Iraq formal

the terms of Resolution 687 by letter dated April 6, 1991.25

Resolution 687 set forth the conditions for fulfilling the terms of Reso

but did not rescind or provide for its termination. Since adopting Reso

on April 3, 1991, the Security Council never found that Iraq has met its o

thereunder or that Resolution 678, including its authorization to use for

hold and implement Resolution 660 (1990) and all subsequen

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resolutions,

was no longer in effect or even that the war commenced by 

vasion of Kuwait in August 1990 had ended. Indeed, UN Secretar

Boutros Boutros-Ghali’s introduction to the UN publication of docume

Iraq-Kuwait conflict, 1990–96, states that, notwithstanding the adoptio

lution 687, “enforcement measures remained in effect, including the san

gime and the Council’s authorization to Member States to use ‘all necessa

to uphold Iraqi compliance.”26 As shown by the series of resolutions in 19

tried to manage the Iraq-Kuwait crisis, the Security Council is capable of 

cisions about mandates.

From 1991 onwards, the Security Council repeatedly concluded that 

tions failed to correspond to Iraq’s obligations. Iraq’s refusal to impleme

tion 687, apparent within one month of the Resolution’s adoption, c

Security Council to find that Iraq was in “material breach” of the Resolut

is, of the conditions for the 1991 cease-fire.27 The term “material breach

rived from the 1961 Vienna Convention on the Law of Treaties: 28 a mate

is a repudiation of the agreement or a violation of a provision or term e

the accomplishment of the object or purpose of the agreement. Materia

an international agreement by one of the parties entitles the other to i

breach as a ground for terminating or suspending the agreement in w

part.29 In the circumstances of Iraq’s failure to fulfill essential terms of the 

agreement by submitting inaccurate and incomplete declarations of its h

prohibited weapons, weapons systems, and support structures, concealm

hibited weapons and weapons programs, and obstruction of the inspecti

designed to monitor and verify Iraqi compliance with Resolution 687,30 t

States and the United Kingdom and others, including Secretary-Genera

Ghali understood the finding of material breach to mean that the use of 

again permitted to compel Iraq to comply with its obligations or, as Bou

wrote in 1996, “to uphold Iraqi compliance.”31 Iraq’s failure to comply 

paragraphs of Resolution 687 violated the cease-fire and justified, as a 

law, the resumption by the United States and its coalition partners of 

force authorized under Resolution 678.32

Resolution 1441’s use of the words “material breach” to characterize 

peated failures over more than a decade to implement the 1991 cease-

ment was the ninth such Security Council finding since the end of the G

In addition, the Security Council also repeatedly found that Iraq was no

ing with its obligations more generally. From 1991 to the end of 2002, th

concluded three times that Iraq was in “flagrant violation” of its obliga

times that Iraq was not complying,35 once that Iraq was in “clear-cut de

its obligations,36 three times that Iraq had committed a “clear violation

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that its violations were 

clear and flagrant,and once that Iraq was in 

lation” of Resolution 687.39 In addition, from the cease-fire of 1991 th

adoption of Resolution 1441 in November 2002, the Security Council t

Iraq with “serious consequences” 12 times as a result of its persistent non-c

with essential terms of Resolution 687.40 The different formulations u

1990s reflected the widening fissures among the Permanent Members o

rity Council with regard to Iraq.

While some, including Professor Franck, have argued that only th

Council ought to determine when, after the cease-fire of 1991, it is perm

voke the authorization of Resolution 678 (1990),41 the United States an

have never shared that opinion. The United States consistently has a

Resolution 678 remained in effect until the Security Council specifically 

it, that its reference to “all subsequent relevant resolutions” include

Council resolutions adopted subsequent to Resolution 678, and that 

quent Security Council authorization was needed before the United 

others lawfully could use force against Iraq to compel compliance wit

Council resolutions, including Resolution 687, which codified the cease-

Security Council had neither included an expiration date for the autho

use force in Resolution 678 nor provided for the termination of such aut

on Iraqi acceptance of Resolution 687 or for some other reason.44While R

678 contained no time limit, succeeding resolutions, including 1441, con

termination of the authorization to use force that was granted in previou

Council resolutions. Whether they liked it or not, Security Council memb

stood that the United States, the United Kingdom, France for a time, a

would treat Resolution 678 as providing continuing authority. Indeed, alth

justified the maintenance of No-fly Zones with reference to Security Coun

tion 688, the United States, the United Kingdom, and, during the period 

pated in enforcing the No-fly Zones, France used their patrolling aircra

pressure on Iraq to comply with Resolution 687.45 In so doing, they argu

acting on the continued authority of Resolution 678.

The British view, authoritatively expounded by the Attorney Gen

Goldsmith, on March 17, 2003, stressed the significance of the finding o

material breach by Iraq in Resolution 1441. Lord Goldsmith concluded 

rity Council Resolution 687:

[S]uspended but did not terminate the authority to use force under resolutio

material breach of resolution 687 revives the authority to use force under re

678. In resolution 1441 the Security Council determined that Iraq has b

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obligations to disarm under that resolution.46

Russia’s then-UN Permanent Representative Ambassador Sergei Lav

one of the most comprehensive statements against the US and British v

cember 1998, during Operation Desert Fox undertaken by the United 

United Kingdom.47 Lavrov argued that the Security Council, which wa

seized” of the matter:

alone has the right to determine what steps should be taken in order to mai

restore international peace and security. We reject outright the attempts mad

letters from the United States and the United Kingdom48 to justify the use of 

the basis of a mandate that was previously issued by the Security Coun

resolutions of the Security Council provide no grounds whatsoever for such ac

He came back to these arguments in 2002, using the word “automatici

resenting the view he opposed.50

Iraq’s “Final Opportunity”

The second part of Resolution 1441 allowed Iraq a “final opportunity

into compliance with its obligations under Resolution 687, thus elim

material breach. In the words of the French Permanent Representative, 

dor Jean-David Levitte, Resolution 1441 created a “last opportunity” 

confrontation.”51 To ensure compliance, the Security Council establi

was called in the negotiations “an enhanced inspection regime” of the U

toring, Inspection and Verification Commission (UNMOVIC) and th

tional Atomic Energy Agency (IAEA). “Enhanced inspection regime” m

the Security Council had given UNMOVIC and the IAEA clearer, bro

stronger instructions and powers than ever before.52

Resolution 1441 required that Iraq make a new declaration of all its w

mass destruction and associated agents and materials and support, resea

opment, and manufacturing facilities and structures. Iraqi material miss

and/or omissions in this declaration and “failure to cooperate fully in the im

tion shall constitute a further material breach and will be reported to the C

assessment in accordance with paragraphs 11 and 12 below.”53 When Iraq 

its declaration under this Resolution no Security Council Member or UNM

IAEA official defended it as complete within the meaning of the Resolution

they found material omissions.55 The preliminary results of the post-war su

dence of Iraq’s programs to develop weapons of mass destruction and the

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systems further illuminate the inadequacies of the December 2002 declarat

nal report confirmed this conclusion.56

Omissions and false statements in the declaration were not enough 

guage of Resolution 1441 to constitute the “further material breach” 

Resolution 1441. The second of the two requirements was “failure to 

fully in the implementation” of the Resolution. Iraq’s derelictions in bot

were evident to the Council and reported by UNMOVIC and the IAEA

The rest of Resolution 1441—the part that would determine what ca

reflected a compromise between those governments that did not want to 

second Security Council decision with respect to the use of force and 

did.58 The result was agreement to meet “to consider the situation and th

full compliance with all of the relevant Council resolutions in order to se

national peace and security.”59 Finally, Resolution 1441 ended by remin

that the Security Council had repeatedly warned that continued violat

obligations would have “serious consequences.” In the circumstances of 

ure to fulfill essential terms of the cease-fire agreement, the finding o

breach, and the threat that serious consequences would follow non-c

with Resolution 1441, everyone understood that the United States, Br

others were contemplating the use of force to compel Iraq to comply wi

gations if Iraq failed to fulfill them in response to Resolution 1441 althou

curity Council was not unanimous on the legal interpretation o

resolutions.60 Nothing in Resolution 1441 required the Council to adop

resolution as a prerequisite for military operations. And, between No

2002, and March 19, 2003, when the United States and the United 

launched their campaign against Saddam Hussein, the Security Council 

47 times in public and in informal consultations considering the situ

terms of Resolution 1441 therefore were met and the 2003 campaign ag

was lawful in accordance with UN Security Council resolutions and actio

after Operation Desert Storm in 1991.61

The Context: The Terrorist Attacks of September 11, 2001

Iraq’s attack on Kuwait in 1990 thus launched the train of events lead

2003 campaign. Iraq’s unwillingness to accept the outcome of Operat

Storm and comply with Security Council Resolution 687 meant that Iraq 

a threat to international peace and security after the 1991 Gulf War. Th

the 1990s, the Iraq question stayed on the UN Security Council agenda, a

curity Council sanctions against Iraq, imposed in the wake of the 1990 i

Kuwait, remained in place. The Security Council monitored applicat

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sanctions, and the UN bureaucracy supervised Iraqi sales of oil and impo

goods, including foodstuffs and medicines.62 Iraq was contained mil

prevented from attacking the Kurds in the north and the Shia in the so

American, British, and, for part of the time, French enforcement of the 

and Southern No-fly Zones, beginning in 1991. UN inspections of Iraq’

programs had depended in substantial part on intelligence and defecto

not on Iraqi cooperation and inspectors’ skills, however great, for succe

in 2003, the United States, the United Kingdom, Spain, and others on th

Council—perhaps more than the nine needed to adopt a resolution 

veto—concluded that every effort to obtain the compliance of Saddam 

government with Security Council resolutions stipulating the condition

ing the 1990 Gulf conflict had failed. Why, if Saddam’s Iraq was cont

watched and the economy supervised, did the United States and Great B

cide to launch the campaign that removed Saddam Hussein from powe

The answer, as President Bush said on March 6, 2003, lay in the imp

terrorist attacks on September 11, 2001. The repeated failure by Saddam 

Iraq throughout the 1990’s to comply with Resolution 687, and the repea

within the Security Council to agree about what to do in response, was 

tolerable for the United States, the United Kingdom, Spain, and others

ber 11th changed the strategic thinking, at least as far as I was concerned, 

protect our country,” President Bush said. “It used to be that we could 

you could contain a person like Saddam Hussein, that oceans would 

from his type of terror.”64 Saddam Hussein’s statements about the Sep

attacks could give no assurance about his attitude,65 and his record of 

material breach of Security Council Resolution 687, despite economic 

diplomacy, low intensity military pressure, and repeated Security Co

mands, combined to support the view that there would never be volun

compliance with Resolution 1441 and that changing the regime by forc

portional and lawful and, after September 11, 2001, necessary.

All Security Council member governments believed that Saddam Hus

had not complied with Resolution 687 and at least had programs to deve

tain nuclear, biological, or chemical weapons of mass destruction, even 

them questioned whether Iraq actually possessed such weapons at that m

In this connection, one should weigh the assessment of Rolf Ekeus, the first 

UN inspection effort in Iraq, and, in the view of a former British Ambassa

United Nations, “the most-clear sighted and by far the most successful” of 

[Iraq’s policy since 1991 was not to produce warfare agents, but rather to concen

design and engineering] with the purpose of activating production and shi

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gy y 

chemical engineers and production and process engineers worked to develo

agents, especially VX, with the primary task being to stabilize the warfare agents 

to optimize facilities and activities, e.g., for agricultural purposes, where batches 

agents could be produced during short interruptions of the production of 

chemicals. This combination of researchers, engineers, know-how, precurso

production techniques and testing is what constituted Iraq’s chemical th

chemical weapon. The rather bizarre political focus on the search for rusting dr

pieces of munitions containing low-quality chemicals has tended to dis

important question of WMD in Iraq and exposed the American and 

administrations to unjustified criticism. The real chemical warfare threat from 

had two components. One has been the capability to bring potent chemical agen

battlefield to be used against a poorly equipped and poorly trained enemy. The 

the chance that Iraqi chemical weapons specialists would sign up with terrorist n

such as al Qaeda—with which they are likely to have far more affinity than 

unemployed Russian scientists the United States worries about.... While b

weapons are not easily adapted for battlefield use, they are potentially th

devastating as a means for massive terrorist onslaught on civilian targets. 

chemical weapons, Iraq’s policy on biological weapons was to develop and imp

quality of the warfare agents. It is possible that Iraq, in spite of its denials, retain

anthrax in storage. But it could be more problematic and dangerous if Iraq 

maintained a research and development capability, as well as a production ca

run by the biologists involved in its earlier programs. Again, such a complete 

would in itself constitute a more important biological weapon than some stored 

doubtful quality. It is understandable that the U.N. inspectors and even m

military search teams, have had difficulty penetrating the sophisticated, well-r

and protected WMD program in Iraq. . . . The Iraqi nuclear projects lacked 

fissile material but were advanced with regard to weapon design.... This is en

justify the international military intervention undertaken by the United St

Britain. To accept the alternative—letting Hussein remain in power—would h

to tolerate a continuing destabilizing arms race in the Gulf, including 

nuclearization of the region, threats to the world’s energy supplies, leakage o

technology and expertise to terrorist networks, systematic sabotage of efforts 

and sustain a process of peace between the Israelis and the Palestinians and the co

terrorizing of the Iraqi people.68

The Iraq Survey Group responsible for searching for prohibited Iraqi we

weapons programs in the wake of the 2003 Iraq campaign confirmed the 

of such programs.69

Security Council unity about Iraq’s ambitions did not extend to want

a use of force to obtain compliance and bring an end to the programs—

overthrow Saddam Hussein’s regime. Therefore, the Council’s una

adopting Resolution 1441 expressed more solidarity than existed, as, fo

the French and Russian statements explaining their votes made clea

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French

RussianChinese Joint Statement of November 8, 2002, reinforc

rity Council members, Secretariat officials, and others agreed that the b

US military forces in Kuwait had persuaded Saddam Hussein to coope

degree he did with UNMOVIC and the IAEA, but they did not agree tha

run-out for non-military solutions to the threat posed by Iraq.71 For examp

Permanent Representative pulled back from the dire message of Resolutio

Implementation of the resolution [1441] will require goodwill on the part of 

involved in the process of seeking a settlement of the Iraq question. They must 

willingness to concentrate on moving forward towards the declared common g

yielding to the temptation of unilateral interpretation of the resolution’s provis

preserving the consensus and unity of all members of the Security Council.72

France’s Ambassador Levitte said that “the Security Council would 

control of the process.”73 He did not acknowledge that any one besides th

UNMOVIC or the IAEA might report to the Security Council on Iraqi c

with Resolution 1441. The fact that Resolution 1441 contemplated rep

sources other than the IAEA or UNMOVIC ought not to have needed 

did because Ambassador Levitte only referred to reports from those 

causing the Security Council to meet. Some commentators have seen 

motives behind Russian and French Iraq policies throughout the 1990s: 

Iraq’s trade was worth roughly $17 billion, and other countries were dete

get a piece of it. Iraq carefully awarded contracts to those who echoed 

ganda and voted its way in the Security Council.”74 Perhaps more im

Abassador Lavrov’s and Ambassador Levitte’s statements revealed again 

gence of perspectives about international threats in the wake of the terror

of September 11, 2001.75

The importance of those attacks for the United States cannot be ex

They have exerted hydraulic pressure on US officials, sending them to 

night worried that they have again failed to understand bits and pieces 

gence about terrorist plots, and causing them to look out on the world 

prism formed by the September 11 attacks. Thus, acceptance of Iraq’s 

ness to abide by the result of the 1991 Gulf War no longer appeared to be 

policy option.

Conclusion

The legal foundation for the 2003 campaign against Iraq is not the less 

for being well known. The aspiration that international society operate 

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to law is inseparable from the aspiration for international peace. On Sept

2003, Security Council members joined in emphasizing this point.76 W

have been periods of peace, enforced by a balance of power, these perio

cally have ended in great wars. Whether an international system of ind

States, even one that includes international institutions to which State

important powers, can live according to law and even whether that law 

forced so as to strengthen peace within the international society, is a 

whose answer we are still fashioning.

One of the most important and therefore one of the most controv

ments of the 2003 campaign against Iraq involved enforcement of int

law by a group of States motivated by the attacks of September 11, 200

being able to prove a connection between Iraq and those attacks. Unli

ghanistan campaign, which was directed against the apparent source o

tacks, the Iraq campaign involved a response to a previously defined bu

threat, which acquired new seriousness as a result the terrorist attack

Council actions on Iraq, including the authorization to use force and th

findings of Iraq’s failure to carry out its cease-fire obligations, raised the 

all States, especially after September 11, 2001, because of the Council’s p

sponsibility for the maintenance of international peace and security. T

actions created a compelling legal foundation for the 2003 campaign. C

choose to ignore it. They cannot rebut it.

Notes

1. Professor Nicholas Rostow is General Counsel, US Mission to the United Nati

former Charles H. Stockton Professor of International Law at the Naval War Colleg

expressed are those of the author and do not necessarily represent the views of the De

State or the United States. A version of this paper appeared in the 2004 Israel Y

Human Rights as “Determining the lawfulness of the 2003 Campaign against Iraq.”

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

3. See the symposium on this question in 27 NEW YORK UNIVERSITY JO

INTERNATIONAL LAW AND POLICY (1995), including Nicholas Rostow, “Who Decides

Public Order, at 577–83.

4. See text, infra at notes 41–45.

5. Supra note 2, at 8. Most of the relevant Security Council resolutions on Ira

“decisions” binding under Article 25 of the UN Charter (“The Members of the Uni

agree to accept and carry out the decisions of the Security Council in accordance with 

Charter.”) The use of the word “decides” in Security Council resolutions is significa

matter. British practice is to insist that a paragraph in a resolution is binding on State

of law only if the preamble states that the Council is determining that the situation in 

a threat to the peace, breach of the peace, or act of aggression, and that the Council is 

Chapter VII of the UN Charter. Other Permanent Members have gone along with t

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gpp

characteristic nowadays. Whether formalists or not, all other Permanent Members a

word “decides” creates a binding obligation.

6. Id.

7. See Thomas M. Franck, Iraq and the Law of Armed Conflict, which is Chapter II in 

at 15. See also Thomas M. Franck, What Happens Now? The United Nations Af

AMERICAN JOURNAL OF INTERNATIONAL LAW 607 (2003).

8. The Legal Adviser of the US Department of State published the authoritative US G

analysis. See William H. Taft IV & Todd F. Buchwald, Preemption, Iraq, and Intern

97 AMERICAN JOURNAL OF INTERNATIONAL LAW 557 (2003) (the legality of the 

against Iraq derives from UN Security Council resolutions). This article appeared 

comments on the lawfulness of the war against Iraq, some of which defend it 

grounds: John Yoo, International Law and the War in Iraq, id. at 563–76 (the lawfu

war derives from UN Security Council resolutions and customary law of self-defen

N. Gardner, Neither Bush Nor the “Jurisprudes,” id. at 585–90 (the Bush Administra

need the self-defense rationale because legally sufficient justification lay within U

Council Resolutions); and Ruth Wedgwood, The Fall of Saddam Hussein: Secu

Mandates and Preemptive Self-Defense, id. at 576–85 (the UN Charter system mu

changing security concerns). Others reject these arguments: Richard A. Falk, What F

UN Charter System of War Prevention, id. at 590–98 (the UN Charter system req

Security Council authorization, and US interests would have been well served by wa

was forthcoming); Miriam Sapiro, Iraq: The Shifting Sands of Preemptive Self-Defens

607 (the 2003 campaign against Iraq was unlawful under the international law of 

self-defense); and Franck, What Happens Now? The United Nations After Iraq, sup

607–620. Two other authors address related issues: Tom J. Farer, The Prospect for I

Law and Order in the Wake of Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL L

(2003) (the United States ought to accommodate to others’ preferences in order to 

own), and Jane Stromseth, Law and Force After Iraq: A Transitional Moment, id. at 6

Charter system not dead). See also Carsten Stahn, Enforcement of the Collective Will A

at 804 (US-UK action formally breached UN Charter but Charter law intact); Andru 

Legal Case for Invading and Toppling Hussein, 32 ISRAEL YEAR BOOK ON HUMAN 

(2002) and Paul Schott Stevens, Andru E. Wall, and Ata Dinlenc, The Just Demands 

Security: International Law and the Case Against Iraq, The Federalist Society for L

Policy Studies (2002); 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) (absence of, or ambiguity in connection with, 

Security Council authority). See also Prime Minister Blair, The Threat of Global Terr

5, 2003 (“The lawyers continue to divide over it—with their legal opinions bearing a 

similarity to their political view of the war.”), available at www.ukun.org.

9. A separate argument concerns humanitarian intervention. Some argue that the 

the Hussein government, its demonstrated slaughter of thousands—perhaps as man

or more (see, e.g., Simon de Bruxelles, Britons Find Graves of 300,000 Victims, TIME

June 4, 2003; WILLIAMS SHAWCROSS, ALLIES: THE US, BRITAIN, EUROPE, AND THE W

160–61 (2004))—of Iraqis, including with chemical weapons, itself justified the ca

matter of international law. Under this view, States have the right—some would say 

to intervene to prevent or stop widespread human rights abuses. Publications of 

rights non-governmental organizations on the widespread and systematic violation

rights by Saddam Hussein’s government provide a basis for considering that hu

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this point, I do not pursue it here. In this connection, see Taft & Buchwald, supra no

Stevens, Wall, & Dinlenc, supra note 8, at 11–12; UK Foreign & Commonwealth Off

Hussein: Crimes and Human Rights Abuses (November 2002); Thomas L. Friedma

Remade by War, NEW YORK TIMES, Dec. 7, 2003, available at www.nytimes.com

opinion/07FRIE.html. On the arguments for and against humanitarian intervention se

J. Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FO

NEW INTERNATIONAL ORDER (Lori Fisler Damrosch & David J. Scheffer eds., 199

Meron, Commentary on Humanitarian Intervention, id. at 212–14; Lori Fisler 

Commentary on Collective Military Intervention to Enforce Human Rights, id. at 21

Henkin, The Use of Force: Law and US Policy, in RIGHT V. MIGHT: INTERNATIONA

THE USE OF FORCE 37–69 (Louis Henkin et al. eds., 1989); Jeane J. Kirkpatrick & A

The Reagan Doctrine, Human Rights, and International Law, in id. at 19–36; and Falk

8, at 500–98 and citations therein. See also INTERNATIONAL COMMISSION ON INT

AND STATE SOVEREIGNTY, THE RESPONSIBILITY TO PROTECT (Gareth Evans & 

Sahnoun co-chairs, 2001). The political, legal, and moral issues raised by 

humanitarian intervention and the history of external interference in countrie

human rights or try to protect individuals or groups against oppression are com

involve conflicting policy and emotional impulses. Among the issues are the prin

sovereign equality and independence of States, the prohibition on the use of force, 

murder of the European Jews in World War II, which frames responses to m

particularly, genocidal killings whatever the specifiable international impact, and th

of defining tripwires. The last involves the questions, among others, of how m

justify or require intervention and who will bear the burdens and risks of interven

10. Security Council Presidential Statements are delivered on behalf of the ent

Council by the President. They are adopted by consensus, not a vote.

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

12. Id. ¶ 1.

13. See generally, Nicholas Rostow, The International Use of Force after the Co

HARVARD INTERNATIONAL LAW JOURNAL 411 (1991).

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

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

16. Id.

17. UNSCR 665 (Aug. 25, 1990). The US Navy’s enforcement of the embargo bega

weeks after the invasion, prior to the adoption of Resolution 665. President George H

letter to the Speaker of the House of Representatives and President pro tempore o

August 9, 1990, explained the US response to the invasion as “in exercise of our inhe

individual and collective self-defense.” PUBLIC PAPERS OF THE PRESIDENTS OF T

STATES, GEORGE BUSH, Vol. II at 1116 (1991). See also the letter of August 16, 1990 

charge d’affaires to the President of the Security Council (S/21537) (US interception 

request of government of Kuwait).

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

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

20. E.g., UNSCR 669 (Sept. 24, 1990) (addressing “increasing number of r

assistance” under Article 50 of the UN Charter).

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

22. Id. ¶ 2 [emphasis added].

23. UNSCR 686 (Mar. 2, 1991), preambular ¶ 5. See Taft & Buchwald, supra note 

33

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(p)p

25. Letter dated April 6, 1991 from the Permanent Representative of Iraq to the U

General and to the President of the Security Council, UN Doc. S/22456 (Apr. 6, 199

Council Resolution 687, paragraph 33, required such notice for a “formal cease-fire” to 

26. Boutros Boutros-Ghali, Introduction, in UNITED NATIONS BLUE BOOK SERIES, V

THE UNITED NATIONS AND THE IRAQ-KUWAIT CONFLICT, 1990–1996, at 29 

Secretary-General’s view in 1996 was the same as it had been in 1993. See Taft & Buch

note 8, at 559, quoting UN Press Release SG/SM/4902/Rev. 1 at 1 (Jan. 15, 1993). (

approve of yesterday’s raid against Iraq? The Secretary General: The raid was ca

accordance with a mandate from the Security Council under resolution 678 (1991 [s

motive for the raid was Iraq’s violation of the resolution, which concerns the ce

Secretary-General of the United Nations, I can tell you that the action was in accorda

resolutions of the Security Council and the Charter of the United Nations.”)

27. UNSCR 707 (Aug. 15, 1991), preambular ¶¶ 7 and 11 (failure to report w

concealment of activities “constitute a material breach of its acceptance of t

provisions of that resolution which established a cease-fire and provided the conditio

to the restoration of peace and security in the region.” Id. at preambular ¶ 11).

28. Convention on the Law of Treaties, Vienna, May 23, 1969, art. 60, 1155 U.N.T.S

60(1): “A material breach of a bilateral treaty by one of the parties entitles the other t

breach as a ground for terminating the treaty or suspending its operation in whole 

Article 60(2): “A material breach of a multilateral treaty by one of the parties ent

other parties by unanimous agreement to suspend the operation of the treaty in who

or to terminate it either: (i) in the relations between themselves and the defaulting St

between all the parties; (b) a party specially affected by the breach to invoke it as a 

suspending the operation of the treaty in whole or in part in the relations between i

defaulting State; (c) any party other than the defaulting State to invoke the breach as 

suspending the operation of the treaty in whole or in part with respect to itself if th

such a character that a material breach of its provisions by one party radically 

position of every party with respect to the further performance of its obligation

treaty.” The United States is not a party to this Convention but regards most p

generally accurate restatements of the binding customary international law of treat

29. Id.

30. US Department of State, Historic[al] Review of UNMOVIC’s Report of 

Disarmament Issues, Mar. 10, 2003, available at www.state.gov/r/pa/prs/ps/2003/18

31. Boutros-Ghali, supra note 26. In one case, the United States and Britain launche

against Iraq a week after the Security Council found Iraq to be in material breach. Se

33 (Jan. 11 and 18, 1993).

32. See Michael J. Matheson, Legal Authority for the Possible use of Force Agai

AMERICAN SOCIETY OF INTERNATIONAL LAW PROCEEDINGS 136, 142 (1998). A

suspends military operation by mutual agreement. A party can resume hostilities 

“serious violation” of the armistice. Regulations Annexed to Convention (IV) Re

Law and Customs of War on Land, Oct. 18, 1907, art. 36, 36 Stat. 2277, 2305. 

Buchwald, supra note 8, at 559; YORAM DINSTEIN, WAR, AGGRESSION AND SELF-D

(3d ed. 2001) (“A labeling of Resolution 687 as a permanent cease-fire is a cont

terms: a cease-fire, by definition, is a transition-period arrangement.”)

33. UNSCR 707 (Aug. 15, 1991); Security Council Presidential Statements (PRST) 

23609 (Feb. 19, 1992); UN Doc. S/23663 (Feb. 28, 1992); UN Doc. S/23699 (Mar. 11

Doc. S/24240 (July 6, 1992); UN Doc. S/25081 (Jan. 8, 1993); UN Doc. S/25091 (Jan

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the Security Council would not agree to the use of the words “material breach” beca

Members understood them explicitly to justify a use of force, and France and Russi

concur. As a result, lesser characterizations such as “clear” or “flagrant” “violations

See, e.g., UNSCR 1115 (June 21, 1997).

34. UN Doc. S/22746 (June 28, 1991); UN Doc. S/PRST/1994/58 (June 14, 1996); U

(Oct. 23, 1997).

35. UN Doc. S/23517 (Feb. 5, 1992); UN Doc. S/23709 (Mar. 12, 1992); UNSCR 

1992); UN Doc. S/PRST/1994/58 (Oct. 8, 1994); UNSCR 1051 (Mar. 27, 1996); 

PRST/1996/49 (Dec. 30, 1996); UN Doc. S/PRST/1994/33 (June 13, 1997); UNSCR 

12, 1997); UN Doc. S/PRST/1997/54 (Dec. 3, 1997); UN Doc. S/1998/820 (Sep

UNSCR 1284 (Dec. 17, 1999).

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

37. UN Doc. S/PRST/1996/11 (Mar. 19, 1996); UNSCR 1060 (June 12, 1996); UN D

1997/56 (Dec. 22, 1997).

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

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

40. UN Doc. S/22746 (June 28, 1991); UN Doc. S/23609 (Feb. 19, 1992); UN Doc. S/

28, 1992); UN Doc. S/23803 (Apr. 10, 1992); UN Doc. S/25081 (Jan. 8, 1993); UN D

(Jan. 11, 1993); UN Doc. S/25970 (June 18, 1993); UN Doc. S/26006 (June 28, 199

949 (Oct. 15, 1994); UN Doc. S/PRST/1997/49 (Oct. 29, 1997); UN Doc. S/PRST/19

13, 1997); UNSCR 1441 (Nov. 8, 2002). Iraq’s record during 1991–96 is summarized 

Ghali, supra note 26, at 74–98. Uses of force against Iraq by US and other forces 

followed these Council actions.

41. See, e.g., Franck, What Happens Now? The United Nations After Iraq, supra no

Patrick McLain, Settling the Score with Saddam: Resolution 1441 and Parallel Justifica

Use of Force Against Iraq, 13 DUKE JOURNAL OF INTERNATIONAL LAW 233, 

(paragraph 34 of UNSCR 6897 (1991) (“Decides to remain seized of the matter and 

further steps as may be required for implementation of the present resolution an

peace and security in the region”) meant the Security Council alone could decid

authorization in Resolution 678 (1990) could be invoked); Lobel & Ratner, supra n

42. Including France and Boutros-Ghali. See Taft & Buchwald, supra note 8, a

Boutros-Ghali, supra note 26.

43. See Matheson, supra note 32, at 137, 139, 141–42, 146. At that time, Mr. M

Principal Deputy Legal Adviser, US Department of State. Professor Franck was 

participants in the discussion at that meeting of the American Society of Internatio

disagreed with Matheson. Id. at 143, 144, 145 (noting, among other things, the 

admitted by all, of the threat to use force to enforce the Security Council resolutions 

arguing that the threat itself was unlawful).

44. Cf. UNSCR 929 (June 22, 1994) (stating that the mission in Rwanda will be 

period of two months following the adopting of the present resolution); UNSCR 10

1995) (terminating the authority for States to take certain action in Bosnia).

45. See the exchanges on October 17, 2002, and June 8, 2000, between U

representatives on one side and the Russian representative on the other regarding 

Zones for representative expressions of position. S/PV.4625 (Resumption 3) at 22 (O

(Russia)), S/PV.4152, at 3–4, 5–6 (June 8, 2000 (Russia, UK, US)). In April 1991

States, the United Kingdom, and France established a “No-fly Zone” over northern I

Iraqi aircraft were not permitted to fly. The immediate cause of the decision to estab

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y qpg 

resulting exodus of a large number of refugees to Turkey, which threatened to i

conflict. In August 1992, a similar No-fly Zone was established for southern Iraq to p

Shiites from attack by Saddam Hussein’s forces. The US Government defended the c

enforcement of the No-fly Zones by reference to UN Security Council Resolution 68

the first time in UN Security Council history condemned internal repression as 

international peace and security, insisted on immediate access by international hu

organizations to all those in need of assistance in Iraq, and appealed to all UN M

contribute to such humanitarian relief efforts. The enforcement of the No-fly Zon

thousands of individual sorties. US and other aircraft periodically fired on Iraqi 

when they appeared to threaten patrolling planes. These forces, as well as other f

region, engaged in periodic attacks on Iraqi military or intelligence targets during th

result of Iraqi actions, such as the attempt on the life of President George H.W. Bu

Stevens, Wall & Dilenc, supra note 8, at 9–11; KENNETH M. POLLACK, THE TH

STORM: THE CASE FOR INVADING IRAQ 66–67 (2002). See also The History Guy: “

Zone War” (US/UK-Iraq Conflict) 1991–2003, www.historyguy.com/no-fly_zone_

46. The Written Answer of the Attorney General, Lord Goldsmith, to a Parliamenta

on the legal basis for the use of force in Iraq, March 17, 2003 (UK Foreign and Com

Office), ¶¶ 2–4. See also the opinion of Christopher Greenwood, CMG, QC, Octob

available at www.parliament.the-stationery-office.co.uk..

47. December 16–20, 1998, involving some 30,000 troops, 37 warships, and 348 

Stevens, Wall, & Dilenc, supra note 8, at 18–19.

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

S/1998/1182.

49. UN Doc. S/PV.3955 at 4 (Dec. 16, 1998). On the legal significance of the p

Security Council resolutions referring to remaining seized of the matter, see THE C

THE UNITED NATIONS:ACOMMENTARY 287–98 (Bruno Simma et al. eds., 2d ed. 200

M. GOODRICH, EDVARD HAMBRO & ANNE PATRICIA SIMONS, CHARTER OF T

NATIONS: COMMENTARY AND DOCUMENTS 129–33 (3d ed. 1969); SYDNEY D. BA

DAWS, THE PROCEDURE OF THE UN SECURITY COUNCIL 473 (3d ed. 1998) (langua

being seized with a matter pertains to Article 12 and relations between the Security 

General Assembly).

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

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

52. UNMOVIC had been established pursuant to UN Security Council Resolut

December 17, 1999, to undertake “the responsibilities mandated to the Special C

(UNSCOM). UNSCR 1284 (Dec. 17, 1999) at ¶ 2. See POLLACK, supra note 45, at 

adoption of UNSCR 1284.

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

54. Hans Blix, Executive Chairman of UNMOVIC, told the Security Council 

consultations on January 9, 2003, that Iraq’s Declaration “is rich in volume but p

information about weapons issues and practically devoid of new evidence on s

Briefing the Security Council, January 9, 2003, available at www.un.orgs/Depts/un

pages/security_council_briefings.asp. See also UNMOVIC’s 12th quarterly report, F

¶¶ 6–11 (S/2003/232). In public Security Council meetings and in informal consult

Council, Blix and ElBaradei offered the same message. Blix reported incre

cooperation with inspections as the threat of the use of force became more intense. O

14, 2003, ElBaradei, the Director General of the IAEA, told the Security Council th

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S/PV.4707 at 9 (Feb. 14, 2003). The only records of informal consultations are those 

by delegation or UN staffs because, technically, informal consultations are just that; 

meetings of the Security Council. One transcript of private Security Council meeti

and preserved in the Office of the Secretary-General. Provisional Rules of Proce

Security Council (Dec. 1982), S/96/Rev. 7, art. 51. A communiqué is issued after 

meeting. Id., art. 55.

55. For example, on January 9, 2003, Blix and ElBaradei reported examples of missin

related materials for which Iraq provided no explanation or an inadequate explan

declaration of December 7, 2002. The text of those reports is available at www.un

unmovic/new/pages/security_council_briefings.asp. See also Taft & Buchwald, sup

562 n.21.

56. David Kay, Statement before the House Permanent Select Committee on Intelli

On the Interim Progress Report on the Activities of the Iraq Survey Group, Oct. 2, 20

Powell, What Kay Found, WASHINGTON POST, Oct. 7, 2003, at A7. See also Richard W

Iraq Illicit Arms Gone Before War, Inspector States, NEW YORK TIMES, Jan. 24, 2004

generally the “Duelfer Report,” the report of the Iraq Survey Group, Comprehensiv

the Special Adviser to the DCI on Iraq’s WMD (Sept. 30, 2004), available at http://w

cia/reports/iraq_wmd_2004/ [hereinafter the Duelfer Report].

57. At no time in public or in informal consultations, did any member of the Secu

agree that Iraq had fulfilled its obligations under Resolution 1441.

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

59. UNSCR 1441, at ¶ 12.

60. This conclusion is drawn from the public record only, including, such statement

then-French Ambassador to the United Nations, Jean-David Levitte, and 

counterpart, Sergei Lavrov, who participated in the negotiation of Security Counci

1441. UN Doc. S/PV.4644, at 5 (Levitte: “The rules of the game spelled out by 

Council are clear and demanding and require the unfailing cooperation of Iraqi lea

wants to avoid confrontation it must understand that this is its last opportunity.”

(Lavrov: “As a result of intensive negotiations, the resolution just adopted c

provisions for the automatic use of force. . . . What is most important is that th

deflects the direct threat of war and that it opens the road towards further work in th

a political diplomatic settlement.”) See also Stromseth, supra note 8, at 629–31 (re

public record of the diplomacy leading to the adoption of Resolution 1441 and quo

by then Ambassador to the United States: “I went to the State Department and t

House to say, don’t do it [seek a new resolution]. First, because you’ll split the C

second, because you don’t need it. Let’s agree to disagree between gentlemen, a

Kosovo, before the war in Kosovo.” Id. at 630–31.) See also Matheson, supra not

(severe consequences refer to possible use of force).

61. See also Lord Goldsmith’s opinion, supra note 45, at background document p

(requirement that Iraq be given a final opportunity and that the Security Council c

failure meant that Resolution 1441 did not automatically authorize the 2003 campa

62. UNSCRs 986 (Apr. 14, 1995), 1111 (June 4, 1997), 1129 (Sept. 12, 1997), 1

1997), 1153 (Feb. 20, 1998), 1158 (Mar. 25, 1998), 1175 (June 19, 1998), 1242 (Ma

1266 (Oct. 4, 1999), 1275 (Nov. 19, 1999), 1280 (Dec. 3, 1999), 1293 (Mar. 31, 2000)

8, 2000), 1330 (Dec. 5, 2000), 1352 (June 1, 2001), 1360 (July 3, 2001), 1382 (Nov

1409 (May 14, 2002), 1447 (Dec. 4, 2002), 1454 (Dec. 30, 2002), 1472 (Mar. 29, 200

(Apr. 24, 2003).

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pp

64. Transcript of President George W. Bush News Conference on Iraq, March 6, 20

at http://cnn.usnews.com, at 5.

65. On September 12, 2001, Saddam Hussein said on Iraq Television in Arabic that 

States reaps the thorns that its rules have planted in the world.” FBIS, Sept. 12, 2001; Op

the American Peoples, Sept. 11, 2001. See also SHAWCROSS, supra note 9, at 109 (On Se

2002, an Iraqi government paper calls attacks of September 11, 2001, “God’s Punishm

66. Blair, supra note 8.

67. David Hannay, Before and After, TIMES LITERARY SUPPLEMENT, Feb. 13, 2004, 

of WILLIAM SHAWCROSS, ALLIES: THE U.S., BRITAIN, AND EUROPE, AND THE W

(2004) and TOBY DODGE, INVENTING IRAQ (2004). Lord Hannay was British Ambas

United Nations, 1990–95.

68. WASHINGTON POST, June 29, 2003, at B7. The material in square brackets i

Hannay, supra note 67.

69. SHAWCROSS, supra note 9, at 189–93 (“The Kay report did not show that Iraq 

immediate threat. But it did provide irrefutable evidence that Saddam’s WMD [weap

destruction] ambitions were an inevitable threat.”); Blair, supra note 8 (“Actuall

apparent from the Survey Group that Iraq was indeed in breach of UN Resolution 

not disclose laboratories and facilities it should have; nor the teams of scientists kep

retain their WMD including nuclear expertise; nor its continuing research relev

[chemical weapons] and BW [biological weapons]. As Dr. Kay, the former head of t

Survey Group] who is now quoted as a critic of the war has said: ‘Iraq was in clear vio

terms of Resolution 1441’. And ‘I actually think this [Iraq] may be one of those cases 

even more dangerous than we thought.’... It’s just worth pointing out that the sea

conducted in a country twice the land mass of the UK, which David Kay’s interi

October 2003 noted, contains 130 ammunition storage areas, some covering an area 

miles, including some 600,000 tons of artillery shells, rockets and other ordnance, o

a small proportion have as yet been searched in the difficult security environment tha

70. S/PV.4644, at 5, 8–9 (Nov. 8, 2002) (Levitte, Lavrov); UN Doc. S/2002/1236 (N

(Joint Statement of China, France, and Russia). See also the Duelfer Report, supra no

at 1 (key findings) (“[Saddam Husayn sought to balance the need to coopera

inspectors—to gain support for lifting sanctions—with his intention to pre

intellectual capital for WMD with a minimum of foreign intrusiveness and loss of fac

at 68 (“Asked by a US interviewer in 2004, why he had not used WMD against th

during Desert Storm [1991], Saddam replied, ‘Do you think we are mad? What wou

have thought of us? We would have completely discredited those who had supporte

Duelfer Report was not completed at the time this article originally went to press. I

scrutiny as it makes clear the scope of Iraq’s ambitions with respect to the develo

delivery of WMD and its existing programs although the Iraq Survey Group did not 

of WMD, which so many people expected it to do. Although not a model of clarity

suggests the existence of biological weapons materials. See id., vol. III at 18 et seq. on 

by the Iraq Survey Group with respect to Iraq’s biological weapons research and de

See also id. at 58 (“An ISG [Iraq Survey Group] team obtained two vials of C.[

perfringens[causative agent of gas gangreene] as well as one vial of C.botulinum type 

agent of the disease botulism], from a mid-level scientist who formerly worked 

[biological warfare] program.”), and 2 (ISG recovery of biological warfare-related 

after Operation Iraqi Freedom).

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g(p)(g)(g

2003); Franck, supra note 43, at 145.

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

73. Id. at 5.

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

75. See, e.g., Robert Kagan, A Tougher War for the US is One of Legitimacy, NEW Y

Jan. 24, 2004, at B7 (“Today, most Europeans believe that the United States exa

dangers in the world. After Sept. 11, most Americans fear that they haven’t taken th

seriously enough.” Id. at B9). Carl Bildt, former Prime Minister of Sweden, not

Europe, the most important recent historical date was 1989 when the Berlin Wall 

for the United States, the most important recent date was September 11, 2001: “Wh

peace, they talk of security. While we talk of sharing sovereignty, they talk abou

sovereign power. When we talk about a region, they talk about the world.” Adam Ni

Thinks Europeans are Cockroaches, LONDON DAILY TELEGRAPH, electronic edition, N

SHAWCROSS, supra note 9, at 50 (Prime Minister Blair told the House of Commo

2003 that “September 11 changed the psychology of America. It should have c

psychology of the world.”).

76. UN Doc. S/PV.4833 (“Justice and the Rule of Law: the United Nations Role,” Sept

39

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PART II

AIR AND LAND WARFARE

OPERATIONAL CHALLENGES

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IV

Jus in Bello Issues Arising

in the Hostilities in Iraq in 2003

Yoram Dinstein1

he hostilities in Iraq in 2003 brought to the fore a number of jus in 

deserving special consideration. This paper will deal with ten such 

The Status of Unlawful Combatants

The subject of unlawful combatancy has already been addressed by the pre

in the conference on Afghanistan in 2002.2 It is not proposed to repeat her

stated at some length in the earlier essay. Suffice it to state that, under cus

ternational law, a combatant who does not fulfill the cumulative condition

(or privileged) combatancy—inter alia, that of having “a fixed distinctive s

nizable at a distance”3—becomes an unlawful combatant, i.e., he is denied 

leges of a prisoner of war status and exposed to the full rigor of the dom

system for any act of violence perpetrated by him in civilian clothes.

The use of uniforms by members of the regular armed forces is a mat

tom, esprit de corps and convenience. Lawful combatancy is not determi

wearing of a uniform per se. As indicated, it is determined (inter alia) by 

ing of a fixed distinctive emblem recognizable at a distance. This fixed 

emblem may be less than a full-fledged uniform (e.g., a special head

armband). But if the fixed distinctive emblem of regular armed forces is 

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then the removal of that uniform in (or in proximity to) combat does 

person acting that way of lawful combatancy.

The issue of the removal of a uniform (as a fixed distinctive emblem

bers of the regular armed forces must be examined within the confines of 

time. A member of the armed forces who is performing his duties far from 

tact zone with the enemy and removes his uniform without any possible 

(or even reasonable ability) to deceive the enemy as to his true comba

does not thereby lose his entitlement to prisoner of war privileges. Thus

tion whether military personnel stationed in the Pentagon wear uniform 

clothes while at work is irrelevant to their status as lawful combatants wh

ties are raging in Iraq. However, any member of the armed forces who re

uniform during combat—or even en route to combat or in the course 

gagement from it—becomes an unlawful combatant.

The legal position is the same whether the combatants under disc

Americans or Iraqis. The jus in bello applies equally to both sides in an int

armed conflict, regardless of who is in the right—and who is in the w

terms of the jus ad bellum.

4 One of the hallmarks of the hostilities in Ira

was that much of the fighting on the Iraqi side was conducted by “feday

fought Coalition forces out of uniform. These “fedayeen” were unlawfu

ants. But so were any members of the US Special Forces (or other Coal

tary units) who fought out of uniform.

Removal by a combatant of a fixed distinctive emblem (such as a un

fects his entitlement to prisoner of war status. It exposes him either to 

the domestic courts of the Detaining Power for any act amounting to an 

crime under the local legal system—such as murder, arson, etc.—which 

condoned if carried out by lawful combatants in the course of hostilitie

detention without benefit of the immense panoply of protection spread 

oners of war pursuant to Geneva Convention (III). However, removal o

distinctive emblem does not amount to a breach of the jus in bello itself, a

be deemed a war crime.

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

1. It is prohibited to kill, injure or capture an adversary by resort to perfi

inviting the confidence of an adversary to lead him to believe that he is entitled 

obliged to accord, protection under the rules of international law applicable i

conflict, with intent to betray that confidence, shall constitute perfidy. The f

acts are examples of perfidy:

....

(c) the feigning of civilian, non-combatant status.5

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Neither the United States nor Iraq is a Contracting Party to the Protoco

therefore, inapplicable in the hostilities between them. But, in any event, 

sion of Article 37(1)(c) must be viewed as curious and in some respects m

On the face of it, a radical change is brought about in customary interna

as regards the status of combatants who feign civilian status by remo

fixed distinctive emblem and wear plain clothing. In conformity w

37(1)(c), if the act leads to the killing, injury or capture of an adversary, 

vited to believe that he is facing a civilian, the act is considered perfidio

constitutes a direct breach of the jus in bello itself.

The wording of Article 37(1)(c), to say the least, is surprising, inasm

Protocol in general—far from imposing more stringent constraints on co

taking off their fixed distinctive emblem—actually relaxes in a controv

the standards of customary international law in this context. How can on

for the singular thrust of the new stricture? The answer is that Article 37(

not amount to much more than lip-service. Any lingering doubt is disp

rider in Article 44(3) (where much of the controversial relaxation o

combatancy occurs): “Acts which comply with the requirements of this 

shall not be considered as perfidious within the meaning of Article 37, 

1(c).”6 Even the ICRC Commentary concedes that “[t]here is a certain 

tion in terms” between the provisions of Article 37(1)(c) and Article 44

Since—under customary international law—the removal of a fixed 

emblem (such as uniform) by a combatant during military operations 

of loss of privileged status, and not a breach of the jus in bello (let al

crime), it follows that each belligerent party is at liberty to factor in a co

calculus as to whether or not circumstances militate in favor of retainin

distinctive emblem or removing it. If members of Special Forces units a

behind enemy lines, and if the enemy has a demonstrably poor track rec

serving the jus in bello’s norms concerning the protection of hors de com

military personnel, the conclusion may be arrived at that on the whol

worth assuming the risks of (potential) loss of prisoner of war status upo

while benefiting from the (actual) advantages of disguise. However, as a r

terms of the armed forces in general (as distinct from high-hazard c

units), the prospect of loss of prisoner of war status is a significant co

that should, and does, weigh heavily on commanders before they give th

to an adventurous course of action.

The preservation of traditional modes of combat by uniformed (or 

properly identified) soldiers is a matter of great import. The only way to 

spect for the basic principle of distinction between civilian and combat

tecting the latter from attack and injury, is to enable each belligerent par

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whom it is facing. A combatant disguising himself as a civilian deserves 

tion of loss of prisoner of war status for he endangers all civilians.

Dealing with Suicide Bombers

There is currently a lacuna in the jus in bello, insofar as the growing pheno

suicide bombers disguised in civilian clothes is concerned.8 Clearly, suic

ers disguised in civilian clothes are unlawful combatants. But what effe

tion is available against them? By its very nature, the sanction of de

prosecution (under the domestic legal system) is irrelevant. A civilian (

batant out of uniform) who merely prepares himself to become a hum

but is thwarted in the attempt, can still be subject to detention or pr

Once the act is executed, the perpetrator is beyond the reach of the law. 

tion as to which measures can be taken by way of deterrence against pot

cide bombers is by no means resolved at the present time, especially in l

generally upheld principle that nobody can be punished for an offense 

personally committed.9 Accomplices and accessories to the terrorist ac

dently be prosecuted or detained, but members of the perpetrator’s f

others associated with him—cannot be held responsible for his conduct 

cause of that connection.

A specific question relating to suicide bombers arises in the contex

warfare. The issue is how to protect hospital ships from immense potent

being sunk by suicide bombers operating from speedboats (à la the well-

tack against the USS Cole), with a view to causing vast numbers of casu

problem is derived from the fact that Article 35 of Geneva Convention (I

in listing conditions not depriving hospital ships of protection, indicates 

held on board must be confined to those kept by the crew for the main

order, for their own defense or that of the sick and wounded.10 This app

clude machine guns (and of course heavier armament) which may rep

bombers.11 How can hospital ships be safeguarded against the externa

suicide bombers in the absence of adequate armament on board? Pro

best solution would be to allow light armed naval craft to patrol the wate

hospital ships. But the matter is not currently addressed by Geneva C

(II) or by any other instrument.

Feigned Surrender

The above-mentioned Article 37 of Additional Protocol I, in prohibiting 

killing, injuring or capturing an adversary by resort to perfidy, refers al

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the feigning of...a surrender.

No doubt, this is a reflection of custom

national law. In Iraq, there were many instances in which surrender w

perfidiously. It must be appreciated that the killing, injuring or capture 

versary, and the perfidious resort to feigning of an intent to surrender, n

committed by the same person or persons. Should combatants hoisting 

flag of surrender be in collusion with their companions (who are lyin

perfidy is consummated once the latter open fire upon enemy soldier

forward to take the former as prisoners of war. Still, collusion is the k

manifestation of perfidy. In many combat situations, some individual

units) surrender while others continue to fight. Absent collusion, the fac

Doe persists in shooting does not mean that Richard Roe is feigning wh

the white flag. To be on the safe side, the adverse party’s troops need n

themselves to unnecessary risks, and they may demand that Richard Ro

ward unarmed.13

“Human Shields”

Possibly the most characteristic feature of the hostilities in Iraq in 2003 

Saddam Hussein regime constantly—and flagrantly—resorted to the ta

termingling civilians and combatants, using civilians as “human shiel

view to protecting combatants and military objectives. The deliberate 

gling of civilians and combatants, designed to create a situation in which 

against combatants would necessarily entail an excessive number of civil

ties, is a flagrant breach of the jus in bello. Article 51(7) of Protocol I 

“The presence or movements of the civilian population or individual civ

not be used to render certain points or areas immune from military ope

particular in attempts to shield military objectives from attacks or to sh

or impede military operations.”14 The concept lying at the root of the p

appears already in Article 28 of Geneva Convention (IV): “The presenc

tected person may not be used to render certain points or areas immune 

tary operations.”15 Irrefutably, this norm mirrors customary internatio

Utilizing the presence of civilians or other protected persons to rend

points, areas or military forces immune from military operations is reco

war crime by Article 8(2)(b)(xxiii) of the 1998 Rome Statute of the Int

Criminal Court.17 The reference to other protected persons extends bey

ians to prisoners of war, military medical personnel, etc.18

There are three ways in which the shielding of military objectives by ci

be attempted:

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(i) One scenario relates to civilians who voluntarily choose to serve as 

shields, with a view to deterring an enemy attack against combat

military objectives. Such conduct would amount to an active particip

the hostilities on the part of the civilian volunteers, who would conse

become (unlawful) combatants.

(ii) The second scenario comes into play when combatants compel c

(either enemy civilians or their own) to move out and join them in m

operations. The civilians in question may be obliged to serve as a sc

marching combatants, sit on locomotives of military trains in tran

Acting as they do under duress, these civilians do not become comb

Those who coerce the civilians to act in such a manner assume full c

responsibility for their conduct.

(iii) The third scenario is a variation of the second. The only differ

that, instead of the civilians being constrained to join the combata

combatants (or military objectives) join the civilians. That is done, 

combatants emplacing tanks or artillery pieces in the courtyar

functioning school or in the middle of a dense civilian residenti

Likewise, military units may infiltrate columns of civilian refug

happened during the Korean War), in order to mask a military oper

Once more, the civilians do not become combatants as a result of the m

action taken.

All three types of attempts to protect combatants or military objective

man shields are equally unlawful.

The crucial question is whether the brazen act of shielding a military 

with civilians (albeit a war crime) can effectively tie the hands of the enem

ring an attack. Article 51(8) of Protocol I states that a violation of the pro

shielding military objectives with civilians does not release a belligerent f

gal obligations vis-à-vis the civilians.20 What this means is that the princi

portionality (discussed below) remains relevant. However, even if that 

the actual test of excessive injury to civilians must be relaxed. That is to s

praisal whether civilian casualties are excessive in relation to the military 

anticipated must make allowances for the fact that, if an attempt is mad

military objectives with civilians, civilian casualties will be higher than 

quote Louise Doswald-Beck, “[t]he Israeli bombardment of Beirut in Jun

of 1982 resulted in high civilian casualties, but not necessarily excessive

the fact that the military targets were placed amongst the civilian popul

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Customary international law is certainly more stringent than the Pr

this point. It has traditionally been perceived that, should civilian casua

from an illegal attempt to shield combatants or military objectives, the u

sponsibility lies with the belligerent State placing innocent civilians at ris

ligerent State is not vested by the jus in bello with the power to block an 

legitimate attack against combatants (or military objectives) by deliber

ing civilians in harm’s way.23

Abuse of Hospitals, Mosques and Schools

Throughout the hostilities of 2003, the Iraqis consistently used hospitals

and schools as weapon arsenals, staging areas for military operations a

pads for attacks against Coalition forces. It goes without saying that 

mosques and schools are civilian objects which are entitled to protection

special protection because of their medical, religious and cultural natu

attack. However, the jus in bello is clear about the requirement to not 

protection. When hospitals, mosques and schools are put to military use

tection is terminated and they become military objectives.24 Article 52 of 

clarifies in Paragraph 2 that any object can turn into a military objectiv

use (making an effective contribution to military action); the sole qual

proclaimed in Paragraph 3: “In case of doubt whether an object which i

dedicated to civilian purposes, such as a place of worship, a house or othe

or a school, is being used to make an effective contribution to military 

shall be presumed not to be so used.”25 It must be borne in mind that the 

tion is patently rebuttable, and it arises only in case of doubt. There is no 

doubt once combatants are exposed to direct fire from a supposedly c

ject.26 If a steeple of a church or a minaret of a mosque is used as a sni

doubt is eliminated and the enemy is entitled to treat it as a military ob

Even Article 53 of the Protocol, which lends special protection to c

tural objects and places of worship constituting the cultural or spiritual h

peoples, prohibits their use in support of the military effort.27 Article 13 

the protection of civilian medical units shall cease if they are used to com

side their humanitarian function, acts harmful to the enemy.28

The pivotal issue here is proportionality. That is to say, in the words of J

gins, in her Dissenting Opinion in the ICJ Advisory Opinion on Legality of 

or Use of Nuclear Weapons: “even a legitimate target may not be attacked if 

eral civilian casualties would be disproportionate to the specific military 

the attack.”29 Protocol I does not employ the phrase “disproportionate,” 

in Article 51(5)(b), the term “excessive.”30 Thus, it would be excessive to 

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hospital, with many dozens of civilian casualties, in order to eliminate a sin

sniper.31 In contrast, if, instead of a single enemy sniper, a whole artille

would operate from within the hospital, such destruction may be warran

Individual Targeting of Central Figures in the Regime

Pursuant to the jus in bello, all combatants can be lawfully targeted.33 Th

all members of the armed forces (other than medical or religious p

whether or not they are actually engaged in combat.34 When a person tak

or merely dons a uniform as a member of the armed forces, he automa

poses himself to enemy attack. The jus in bello does not preclude singling 

dividual enemy combatant as a target, i.e., “attacks, by regular arme

forces, on specific individuals who are themselves legitimate military 

Thus, leaders of the Iraqi regime—like Saddam Hussein—who wore mi

forms and prided themselves on holding high-ranking positions in the 

tary hierarchy could be targeted by Coalition forces, provided that the 

not entrust the mission to unlawful combatants, as discussed earlier.

Looting by Enemy Civilians

Pursuant to customary international law, as reflected in the Hague Regul

specting the Laws and Customs of War on Land, annexed to Hague Con

of 1899 and IV of 1907, pillage of towns and other places is forbidden, ei

sault (Article 28)36 or in occupied territories (Article 47).37 Pillage mea

(or plundering) of enemy, public or private, property by individuals f

ends.38 Looting is a common phenomenon in warfare, but it is usually pe

a problem affecting the belligerent forces (especially in assault or in oc

The Iraqi situation was somewhat singular in that the collapse of th

Hussein regime brought about prolonged large-scale looting of Iraqi p

private edifices (including, notoriously, the national museums) by the lo

lation going on the rampage. Undeniably, the jus in bello prohibition of p

ers all types of looting by whoever is undertaking it. The obligation of b

parties is evident, and it is reflected (inter alia) in Article 4(3) of the 19

Convention for the Protection of Cultural Property in the Event of Ar

flict: “The High Contracting Parties further undertake to prohibit, prev

necessary, put a stop to any form of theft, pillage or misappropriation 

acts of vandalism directed against, cultural property.”39 Surely, this cove

of looting, including that carried out by local inhabitants against their 

ernment, institutions and co-nationals.

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The Status of Journalists

Article 79 of Protocol I enunciates that journalists engaged in dangerous p

missions in areas of armed conflict are to be considered and protected as 

Journalists do not lose their status as civilians by accompanying armed f

being “embedded” in them). It does not matter what their specific missio

bers of the media is: the expression “journalists” covers photographers, T

men, sound technicians, and so on.42

All the same, it must be understood that when journalists choose to g

combat zone, with a view to covering hostilities from the front, they are e

a dangerous professional mission. Being civilians, journalists must not b

deliberately. But one should not be surprised when journalists are ac

caught in the cross-fire between the belligerent parties (as happened on 

casions in Iraq). It is unrealistic to expect journalists to undertake a dang

fessional mission without casualties.

In any event, journalists must behave as civilians. If they go on their m

der heavily armed guard, and attempt to pull heroic feats (using, if neces

escorts), they are liable to lose their protection.

Treatment of Prisoners of War

Judging by media reports, a number of Coalition soldiers captured by Ir

forces may have been executed. If so, this was in direct contravention to 

fundamental rule of Geneva Convention (III) Relative to the Treatme

oners of War, encapsulated in Article 13 (first Paragraph).43 Willful killi

oners of war constitutes a “grave breach” of the Convention, as per Art

namely, a war crime.

The Iraqis also interrogated American prisoners of war on television 

ner that many people in the United States found objectionable. Such int

may have amounted to a violation of Article 13 (second Paragraph) of th

tion, which mandates the protection of prisoners of war against insults a

curiosity.45 However, even assuming that that was the case, it is notew

such an act (unless amounting to torture or inhuman treatment) does n

tute a grave breach of the Convention under Article 130. Moreover, int

on television at least attested that the prisoners of war in question were al

tivity. The appearance on television therefore substantially reduced the 

the subsequent execution of the prisoners of war. It is a matter of reco

American prisoners of war seen on television were in fact, eventually, fou

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The Applicability of the Law of Belligerent Occupation

The Coalition was very eager to present its forces in Iraq as an army of 

But notwithstanding the fact that the overthrow of the Saddam Husse

brought liberation to the Iraqi people, it must be appreciated that—purs

ternational law—the legal status of the Coalition forces in Iraq is not tha

tors but that of belligerent occupants. Belligerent occupation is go

Articles 42–56 of the Hague Regulations of 1899/1907,46 as well as Genev

tion (IV) of 1949.47 It is true that, following the unconditional surrender

tal collapse—of Nazi Germany and Imperial Japan at the close of World 

May and August 1945, respectively), the Allied countries did not regard t

as subject to the application of the Hague Regulations in running the 

tries.48 However, that was before the adoption of Geneva Convention (IV

Article 2 (second Paragraph) of Geneva Convention (IV) makes it cle

Convention applies to “all cases of partial or total occupation of the ter

High Contracting Party.”49 It is also noteworthy that the Security Counci

refers to the Coalition forces in Iraq as “Occupying Powers” in two Ch

resolutions adopted unanimously (initiated, in fact, by the United Stat

United Kingdom): Resolution 1472 (2003) and, even more significantl

tion 1483 (2003). Resolution 1472 refers to the duty of the Occupying Po

sure the food and medical supplies of the population of Iraq.50 Resolu

mentions the responsibilities and obligations under applicable internatio

the United States and the United Kingdom as occupying powers; and cal

concerned to comply fully with their obligations under international law

in particular the Geneva Conventions of 1949 and the Hague Regulations o

The application of the Hague Regulations and Geneva Convention (I

is liable to raise a number of issues, such as:

(a) The duty, under Article 43 of the Hague Regulations, to “resto

ensure, as far as possible, public order and safety, while respecting

absolutely prevented, the laws in force in the country.”52 Article 43 

reaching repercussions.53 It should be emphasized that the Occupying 

must ensure, as far as possible, that life in the occupied territory 

paralyzed by armed bands and saboteurs. A state of anarchy, 

characterized at least parts of Iraq for a number of weeks following th

major hostilities, could not be allowed to continue.

(b) While regime change in Iraq—i.e., the overthrow of the dic

regime of Saddam Hussein and the Ba’ath Party—was merely a 

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consequence of the Coalition

s victory in the Gulf War, American no

changing the structure of Iraq, for instance, transform it from a unita

to a federal State, may run into difficulties (unless gaining the 

expressed consent of the local population). Much depen

circumstances. It is noteworthy that, during World War I, Germa

accused of a breach of Article 43 when it tried to change the r

organization of occupied Belgium into two administrative parts (F

and Walloon).54 On the other hand, when the British divided occupie

into two administrative districts (Cyrenaica and Tripolitania) during 

War II, there was no complaint.55

(c) Pursuant to the Hague Regulations, there are many issues relatin

handling of public and private property in occupied territorie

Regulations are not necessarily draconic for the Occupying Power. Th

Coalition forces could have kept the billions of dollars of cash an

bullions found in caches left behind by the leaders of the Saddam H

regime. Article 53 (first Paragraph) of the Regulations expressly all

army of occupation to take possession of cash, funds etc. which 

property of the State.56 The rule is similar to that governing the captur

enemy’s State cash and funds on the battlefield: these constitute b

war.57 In the event, notwithstanding the preceding provisions, the Co

owing to its self-perception as a liberator of Iraq, chose to take the al

step of preserving the troves found for the benefit of the Iraqi people

(d) However, in other instances the Hague Regulations may tie the h

the Coalition. There are questions spawned by the principle th

Occupying Power, under Article 55, can only be regarded as “admin

and usufructuary” of public immovable property.58 One such p

affects the drilling of oil, especially in light of a rather controversi

opinion of the Department of State—offered when Israel developed 

fields in the Gulf of Suez—but now liable to haunt the Coalition in I

Having said all that, it should be noted that under Article 6 of Geneva 

tion (IV), the application of most—albeit by no means all—of the pro

the Convention ceases one year after the general close of military op

The general close of major combat operations has already been announ

perhaps somewhat prematurely. In any event, it is generally hoped 

pected) that the full application of the Geneva Convention would pro

tively temporary matter.

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Notes

1. Professor Dinstein is Yancowicz Professor of Human Rights and Pro-President 

University (Israel).

2. See Yoram Dinstein, Unlawful Combatancy, 32 ISRAEL YEARBOOK ON HUMAN 

(2002).

3. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 1

4(A)(2)(b), 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in THE LAWS OF ARMED CO

COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 507, 5

Schindler and Jiri Toman eds., 4th ed. 2004).

4. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 140–147 (3d ed. 2

5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 11

3, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 3, at 711, 730.

6. Id. at 733.

7. Jean de Preux, Article 44, in COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 

TO THE GENEVACONVENTIONS OF 12 AUGUST 1949, at 519, 537 (Yves Sandoz et al. e

8. The wearing of civilian clothes lies at the core of the problem. Some sui

(epitomized by Japanese kamikaze pilots in World War II, flying properly marked 

come within the ambit of lawful combatancy.

9. See Article 33 (first Paragraph) of Geneva Convention (IV) Relative to the P

Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, repr

LAWS OF ARMED CONFLICTS, supra note 3, at 575, 590.

10. Geneva Convention (II) for the Amelioration of the Condition of Wounde

Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U

reprinted in THE LAWS OF ARMED CONFLICTS, supra note 3, at 485, 496.

11. The official ICRC Commentary refers to “individual portable weapons, such a

revolvers or even rifles.” COMMENTARY, II GENEVACONVENTION 194 (Jean Pictet et al. 

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

13. See Law of War Workshop 7-30–7-31 (US Army, Judge Advocate General, 199

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

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

16. See JUDITH G. GARDAM, NON-COMBATANT IMMUNITY AS A NORM OF INTE

HUMANITARIAN LAW 153 (1993).

17. Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/C

(1998), reprinted in 37 INTERNATIONAL LEGAL MATERIALS 999, 1008 (1998).

18. See William J. Fenrick, Article 8(2)(b)(xxiii), in COMMENTARY ON THE ROME 

THE INTERNATIONAL CRIMINAL COURT 253, id. (O. Triffterer ed., 1999).

19. See Chistopher D. Booth, Prosecuting the ‘Fog of War?’: Examining the Legal Im

an Alleged Massacre of South Korean Civilians by U.S. Forces during the Opening 

Korean War in the Village of No Gun Ri, 33 VANDERBILT JOURNAL OF TRANSNATION

972 n.301 (2000).

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

21. See Louise Doswald-Beck, The Civilian in the Crossfire, 24 JOURNAL OF PEACE 

251, 257 (1987).

22. SeeW. Hays Parks,Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 162–

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f q

Biological Weapon Storage and Production Facilities,7EMORY INTERNATIONAL LAW R

663–664 (1993).

24. For a full treatment of the subject of military objectives, see Yoram Dinstein, Legitim

Objectives under the Current Jus in Bello, 31 ISRAEL YEARBOOK ON HUMAN RIGHTS 1 (

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

26. See Waldemar A. Solf, Article 52, in NEW RULES FOR VICTIMS OF ARMED 

COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA CONV

1949, at 318, 327 (Michael Bothe, Karl J. Partsch and Waldemar A. Solf eds., 1982)

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

28. Id. at 721.

29. Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, [199

226, 587.

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

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

32. Cf. W. Michael Reisman, The Lessons of Qana, 22 YALE JOURNAL OF INTERNAT

381, 395–396 (1997).

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

34. See Michael N. Schmitt, State-Sponsored Assassination in International and Dom

YALE JOURNAL OF INTERNATIONAL LAW 609, 674 (1992).

35. Burrus M. Carnahan, Correspondent’s Report,2YEARBOOK OF INTE

HUMANITARIAN LAW 423, 424 (1999).

36. Hague Regulations Respecting the Laws and Customs of War on Land, Annex

Convention (II) of 1899 and Hague Convention (IV) of 1907, THE LAWS OF ARMED 

supra note 3, at 66, 74,

37. Id. at 78.

38. Cf. Armin A. Steinkamm, Pillage, in 3 ENCYCLOPEDIA OF PUBLIC INTERNAT

1029, id. (Rudolf Bernhardt ed., 1997).

39. Hague Convention for the Protection of Cultural Property in the Event of Arm

May 14, 1954, 249 U.N.T.S. 240, reprinted in THE LAWS OF ARMED CONFLICTS, sup

999, 1002.

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

41. See Hans-Peter Gasser, Article 79, in COMMENTARY ON THE ADDITIONAL P

supra note 7, at 473, 476.

42. See Hans-Peter Gasser, Protection of the Civilian Population, in THE HAN

HUMANITARIAN LAW IN ARMED CONFLICTS 209, 228 (Dieter Fleck ed., 1995).

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

44. Id. at 557.

45. Id. at 517.

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

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

48. See GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 276–86 

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

50. S.C. Res. 1472, U.N. SCOR, 58th Sess., 4732d mtg., U.N. Doc. S/RES/1472 (200

in 42 INTERNATIONAL LEGAL MATERIALS 767, id. (2003).

51. S.C. Res. 1483, U.N. SCOR, 58th Sess., 4761st mtg., U.N. Doc. S/RES/1483 (200

in 42 INTERNATIONAL LEGAL MATERIALS 1016, 1017 (2003).

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

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pf gp

43 of the Hague Regulations, 25 ISRAEL YEARBOOK ON HUMAN RIGHTS 1 (1995).

54. See E. H. FEILCHENFELD, THE INTERNATIONAL ECONOMIC LAW OF B

OCCUPATION 89 (1942).

55. See G. T. Watts, The British Military Occupation of Cyrenaica, 1942–1949, 37 TRA

OF THE GROTIUS SOCIETY 69, 72–73 (1951).

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

57. See Yoram Dinstein, Booty in Land Warfare,1ENCYCLOPEDIA OF PUBLIC INTE

LAW 432, id. (Rudolf Bernhardt ed., 1992).

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

59. See Monroe Leigh, Department of State Memorandum of Law on Israel’s Right to D

Oil Fields in Sinai and the Gulf of Suez, 16 INTERNATIONAL LEGAL MATERIALS 733 (

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

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V

Marco Sassòli1

Introduction

The argument of the United States administration that those indivi

tured during the “global war on terror”2 are unlawful combatant

tled to prisoner of was status may be summed up as follows.3 First, t

States is engaged in an international armed conflict—the “war on terror

is, second, one single worldwide international armed conflict against a 

actor (al Qaeda) or perhaps also against a social and criminal phenom

rorism). That armed conflict started—without the United States so char

it at that time—at some point in the 1990s and will continue until victo

while the United States claims in this conflict all the prerogatives that int

humanitarian law (IHL) applicable to international armed conflicts conf

party to such a conflict, in particular the right to detain enemy combatan

any judicial decision in Guantanamo; it denies these detainees the prot

most of that law by claiming that their detention is governed neither b

rules applying to combatants nor by those applicable to civilians. Fifth

considered to be enemies in the “war on terrorism,” even those denied t

of IHL’s full protections, are not dealt with under domestic criminal leg

under any other new or existing legislation, nor do they benefit from int

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human rights law. The US administration claims that their treatment 

and exclusively ruled by some mysterious rules of customary IHL.4

In this paper I will address the approach of the US administration to

persons held in the “war on terrorism” from the point of view of IHL. 

when IHL is applied, this implies, first, that the situation in which those p

involved must be examined to determine whether it is an armed conflict 

whether it is international or non-international in character. Second, for 

sons who are covered by IHL, their status under IHL has to be determin

The Status of the “War on Terrorism” under International Humanita

IHL is today largely codified in treaties, in particular the four 194

Conventions5 and the two 1977 Additional Protocols.6 The United State

to the former, but not to the latter. It recognizes, however, Additional Pro

desirable or even as restating existing law, and most, but not all, provisi

ditional Protocol I as reflecting customary international law.

The four Geneva Conventions and Additional Protocol I apply to int

armed conflicts. Article 2 common to the Geneva Conventions states 

“shall apply to all cases of declared war or of any other armed conflict w

arise between two or more of the High Contracting Parties.” Only Sta

parties to the Geneva Conventions. Al Qaeda and terrorism are not Sta

fore, the law of international armed conflict does not apply to a conflic

the United States, a State, and them. There is no indication that State pr

opinio juris go further and apply the law of international armed conflict t

between States and some non-State actors. On the contrary, and in c

with the basic construct of the Westphalian system, States have alwa

guished between conflicts against one another, to which the whole of IH

and other armed conflicts, to which they were never prepared to apply 

rules, but only more limited humanitarian rules. Even a conflict sprea

borders remained a non-international armed conflict. “[I]nternal confli

tinguished from international armed conflicts by the parties involved r

by the territorial scope of the conflict.”7

If the aforementioned principles are applied to the “war on terrorism,” 

international armed conflicts covered the conflict in Afghanistan, becaus

rected against the Taliban, representing de facto government of that Stat

Qaeda, where it is acting de facto under the global or effective direction or 

the Taliban, the conflict against al Qaeda may also be qualified as inte

Such direction and control exists, however, only in Afghanistan and not els

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Each component of the 

war on terrorismand every situation in w

sons were arrested—has to be examined and its status determined separa

now, it was regretted that once there was an international element to a co

given territory, the whole conflict could not, under consistent State practi

sified as wholly international, but had to be split off into its components.

could a worldwide conflict be determined to be international simply becau

its components were international. No one claimed during the Cold W

IHL of international armed conflicts applied to internal conflicts such a

Greece, Angola, El Salvador, and Nicaragua, or even to political tensions 

in Germany, Italy or Latin America, simply because those were part of the 

the “war against communism,” or because there were international arme

between proxies of the two superpowers in the Near East, Korea, or Vietn

Components of the “war on terrorism” that do not qualify as int

armed conflicts may be non-international armed conflicts covered by 

common to the four Geneva Conventions and by Additional Protocol 

under those provisions they must, however, be armed conflicts. Criteria p

such classification are the intensity; number of active participants; num

tims; duration and protracted character of the violence; organization 

pline of the parties; capability to respect IHL; collective, open and co

character of the hostilities; direct involvement of governmental armed 

opposed to law enforcement agencies); and de facto authority by the non

tor over potential victims.10

Other situations are not armed conflicts at all. Additional Protocol I

“situations of internal disturbances and tensions, such as riots, isolated 

radic acts of violence and other acts of a similar nature, as not being ar

flicts.”11 Terrorist actions by private groups have not customarily been 

creating armed conflicts.12 The United Kingdom stated when it ratified A

Protocol I “that the term ‘armed conflict’ of itself and in its context deno

tion of a kind which is not constituted by the commission of ordinary 

cluding acts of terrorism whether concerted or in isolation.”13 The B

Spanish campaigns against the IRA (Irish Republican Army) and ETA (

Askatasuna) have not been treated as armed conflicts under IHL.14

If IHL applies, each conflict has its own beginning and its own end. At 

active hostilities in an international armed conflict, prisoners of war (n

of or sentenced for a crime) must be repatriated. The detention, such as 

fighters captured in Afghanistan, cannot be prolonged simply because i

ippines or in Iraq the “war on terrorism” goes on.

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The Status of Persons Held in the 

War on Terrorism

under International Humanitarian Law

Under the Law of International Armed Conflict

In international armed conflicts, there are two categories of “protected 

that are subject to two very different legal regimes—combatants, who be

oners of war protected by Geneva Convention III if they fall into the po

enemy, and civilians protected by Geneva Convention IV when in enem

“Unlawful combatants?”

The US administration claims that the persons it holds in the “war on t

are neither combatants nor civilians but “unlawful combatants.” Presi

himself made this argument concerning the status of Taliban fighters.15 

ministration officials extend it to members of al Qaeda and others qualifi

rorists.”16 According to the text, context and goals of Geneva Conventio

IV, however, no one can fall between the two conventions and therefo

tected by neither.17

The first paragraph of Article 4 of Geneva Convention IV states as foll

sons protected by the Convention are those who, at a given moment a

manner whatsoever, find themselves, in case of a conflict or occupati

hands of a Party to the conflict or Occupying Power of which they are n

als.” According to the fourth paragraph of that article, persons pro

Geneva Convention III “shall not be considered as protected persons 

meaning of the present Convention.” This clearly indicates that anyon

the requirement for protected person status18 that is not protected by 

Convention falls under the Fourth Convention. The Commentary publis

International Committee of the Red Cross (ICRC) provides:

Every person in enemy hands must have some status under international la

either a prisoner of war and, as such, covered by the Third Convention, a 

covered by the Fourth Convention, or again, a member of the medical personn

armed forces who is covered by the First Convention. There is no intermediat

nobody in enemy hands can be outside the law. We feel that that is a sat

solution – not only satisfying to the mind, but also, and above all, satisfactory 

humanitarian point of view.19

The preparatory work for Article 4 confirms this interpretation. The 

first suggested referring to “persons who take no active part in hostil

XVIIth International Red Cross Conference criticized this phrasing bec

not “cover those who commit hostile acts whilst not being regular co

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such assaboteurs and franc

tireurs.This problem was reported to the D

Conference that was negotiating the four conventions, which then ad

present wording. Moreover, Article 5 of Geneva Convention IV allow

derogation from the protective regime of that Convention for persons e

hostile activities. If such persons were not covered by the Convention, s

vision would not have been necessary.

From a humanitarian perspective, it is dangerous to revive such an e

category for detaining powers as “unlawful combatants.” No one should f

the law and in particular not outside the carefully built up protective syst

by the Geneva Conventions. They are the minimum safety net in the prof

humane situation that is war, in which most of the other legal safeguards t

appear. The US administration has declared that it treats all captured “

humanely. First, such a vague commitment is not sufficient. The law c

those who commit the most horrible crimes; only this allows us to judge 

Second, other, less scrupulous States may take advantage of such a new lo

for example, denying the protection of the conventions to US personnel.

In conclusion, all persons who are covered by the IHL of internatio

conflicts and fulfill the nationality requirements must perforce be eithe

ants or civilians.

Combatants

Combatants are defined as members of the armed forces of a party to th

tional armed conflict. The United States argues that the Taliban 

Guantanamo, who are members of the armed forces of the de facto gove

Afghanistan, are not prisoners of war, because they “have not effectiv

guished themselves from the civilian population of Afghanistan. More

have not conducted their operations in accordance with the laws and c

war.”21 This allegation may astonish those who remember that during 

Enduring Freedom, the United States stressed that it attacked Taliban 

and control centers and did not complain that it was impossible to disti

Taliban from civilians.22 If the allegation were true, the legal consequenc

that the Taliban are indeed denied prisoner of war status if they are con

“members of other militias [or]... volunteer corps, including... resista

ments,” but not if they are “members of the armed forces of a Party to the 

It is at least arguable that the Taliban belong to the latter category. For regu

forces, however, it would be dangerous to require respect for the laws o

precondition for prisoner of war status. In all armed conflicts, the enemy 

of not complying with IHL, and such accusations are all too often accur

violations by regular armed forces were permitted to deprive all their 

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independently of their individual behavior, of prisoner of war status, 

could frequently not provide its protective effect. Historically, the Un

never invoked such an argument concerning the German Wehrmacht, w

not be considered to have regularly complied with the laws of war.

As for the al Qaeda members captured in Afghanistan, there may be 

tion to deny them prisoner of war status on two bases. First, al Qaeda w

rate entity that was distinct from the military forces of the enemy St

international armed conflict, Afghanistan. Second, even if conside

Afghan militia, it is highly doubtful whether al Qaeda complied with th

ments to distinguish itself from the civilian populace and conduct its o

in compliance with the law.24

In case of doubt as to whether persons who have committed a belliger

combatants, Geneva Convention III prescribes that they must be treated 

ers of war “until such time as their status has been determined by a com

bunal.”25 The United States established such tribunals in the Vietnam w

1991 Gulf War,26 but it argues that in the case of those detained in Gua

there is no doubt that they are not entitled to prisoner of war status.27 If th

bility of the clause merely depended on whether the detaining power h

the latter could always escape from its obligation, which would make 

practically useless.28

If a person fallen into the power of the enemy is determined to be a c

he or she is a prisoner of war. Prisoners of war may be interned, not as 

ment, but to prevent them from rejoining the fighting. Therefore no indi

cision needs to be taken in order to detain them. The mere fact that t

enemy combatant is sufficient justification for their detention until the 

tive hostilities in that conflict.29 Classification as a prisoner of war prev

specialis for combatants, over human rights law and domestic law requi

dividual judicial detention determination. While in detention, prison

benefit however from the protections of Geneva Convention III, a detai

that ensures they are treated not only humanely, but also not as prison 

since they are not serving a sentence and have committed no unlawful a

Civilians

During an international armed conflict, civilians who fulfill certain 

requirements31 are protected if they fall into the hands of a belligerent and 

this case Afghan, nationals are always protected. In an occupied territory

of a third country other than an ally of the occupier are equally prote

party’s own territory, only neutral nationals are protected, and then only 

not benefit from normal diplomatic protection.32 Protected civilians m

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detained, except under two circumstances. First, detention may be author

domestic legislation (or security legislation introduced by an occupying 

the prosecution and punishment of criminal offenses (including direct pa

in hostilities). Second, civilians may be interned for imperative securit

upon individual decision made in a regular procedure (which must includ

appeal) prescribed by the belligerent concerned.33 Such civilians are civi

whose treatment is governed by extremely detailed provisions of Genev

tion IV and their cases must be reviewed every six months.34

Under any circumstances, civilians who fell into US hands in Afghan

not be held in Guantanamo, but only in Afghanistan. While combatan

held as prisoners of war in every corner of the earth, civilians protected 

Convention IV may indeed never be deported out of an occupied terri

ghanistan was an occupied territory because it came under the cont

United States and its allies during an international armed conflict.

Surprisingly, and much to my relief, the Legal Adviser of the US Sta

ment has admitted that “unlawful combatants” are protected by Genev

tion IV.36 Nevertheless the US administration has not yet compreh

practical consequences of this acknowledgement, as it still detains those 

Guantanamo and denies them individual judicial or administrative d

tions of the basis for their detention.

It may appear ironic to classify heavily armed “terrorists” captured in 

national armed conflict who are not entitled to benefit from combatan

oner of war status as “civilians.” Borderline cases never correspo

category’s paradigm of the individual who has taken no part in the hostil

ertheless these persons fall within the parameters of the law. What is im

that “civilian status” does not produce absurd results. As “civilians,” un

combatants may be attacked while they unlawfully participate in hostil

arrest, Geneva Convention IV does not bar their punishment for unlawf

pation in hostilities; it even prescribes such punishment for war crime

tion, it permits administrative detention for imperative security reaso

derogations from protected substantive rights of civilians within the ter

State and from communication rights within occupied territory.37 Gen

vention IV was not drafted by professional do-gooders or academics, bu

rienced diplomats and military leaders who fully appreciated the n

concluding an agreement that addressed the security needs of a State c

with dangerous people.

Some may find it shocking that unprivileged combatants classified a

have an advantage over captured lawful combatants in that the former a

to individual judicial or administrative status determinations, while the 

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not. But combatants are normally easily identified and given prisoner of 

based on objective criteria. Additionally, members of a State’s military f

erally will acknowledge that they are in the armed forces. In contrast, the 

tional membership and past behavior of an unprivileged combatant and 

threat he or she represents can only be determined individually.

Under the Law of Non-international Armed Conflicts

The international humanitarian law applicable to non-international ar

flicts does not provide for combatant or prisoner of war status, contain

rules on the status of persons detained in connection with the conflict, 

the circumstances under which civilians may be detained. The ques

whether “unlawful combatants” are combatants or civilians simply doe

in non-international armed conflicts. In such conflicts, IHL cannot p

seen as providing a sufficient legal basis for detaining anyone. It simpl

for guarantees of humane treatment and, in prosecutions for criminal of

certain judicial guarantees of independence and impartiality. Possible ba

rest, detention or internment are entirely governed by domestic legislati

human rights law requirement that no one be deprived of his or her libe

on such grounds and in accordance with procedures as are established b

State practice too, governments confronted by non-international arme

base arrests, detentions, and internment of rebels, including rebel fight

on domestic criminal law or on special security legislation introduced 

conflict. They never invoke the “law of war.”

Outside Armed Conflicts

IHL applies only to armed conflicts. It offers no protection to those held 

tion with those components of the “war on terrorism” that do not meet t

old of a non-international armed conflict. Because IHL has no appl

conduct falling below this threshold, it certainly cannot provide a legal ba

taining in Guantanamo or elsewhere those that engage in such conduct

Conclusion

Meant as the branch of international law providing protection to all tho

by or involved in armed conflicts, IHL has become for the US administra

tification for denying such individuals and others detained under the ru

“war on terrorism” any of the protections provided by human rights la

domestic legislation. However, while the United States thus invokes IH

ready to provide those detained the full benefit of this law. In effec

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administration argues that they are covered by no law except for those 

fined and mysterious rules of customary IHL.

To properly apply IHL, every component of the “war on terrorism,” th

stances of each individual’s arrest or capture, and the basis of each deten

be examined and classified separately. Many of those held in the “war 

ism” do not fall within the parameters of persons covered by IHL. Oth

from the fundamental guarantees of IHL applicable to non-internatio

conflicts. Again, however, that law provides no legal basis for their deten

sue dealt with by domestic law. Those persons who were captured in A

are protected by the IHL of international armed conflicts. Under that 

those who are prisoners of war may be held in Guantanamo. Those w

prisoners of war are civilians. As such, they may only be detained in A

and only after individual judicial or administrative determinations. 

vinced that the “war on terrorism” can be won—and victory may even b

if the carefully drafted standards of IHL are respected.

Notes

1. Professor Marco Sassòli is Professor of International Law at the University o

Montreal, Canada.

2. The Bush administration uses this phrase as well as the phrase “war on terror” to 

campaign against terrorism. In this paper, I will use the phrase “war on terrorism.” I

to be synonymous with the terms used by the US administration.

3. For a legal explanation of the US position, see Anthony Dworkin, Crimes of W

Excerpts from an Interview with Charles Allen, Deputy General Counsel for Internati

US Department of Defense (Dec. 16, 2002) available at http://www.crimesofwar.o

news-pentagon-trans.html (last visited Oct. 31, 2003), and, with a more moderat

William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 YA

OF INTERNATIONAL LAW 319 (2003). That position was partly accepted by the courts 

Rumsfeld, 296 F.3d 278 (4th Cir. 2002), and Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 

critical assessment, see Joan Fitzpatrick, Speaking Law to Power: The War Against T

Human Rights, 14 EUROPEAN JOURNAL OF INTERNATIONAL LAW 241, 249 (2003); M

Sweeney, Detention at Guantanamo Bay—A Linguistic Challenge to Law, 30 HUMAN 

(2003); Jordan J. Paust, War and Enemy Status after 9/11: Attacks on the Laws of W

JOURNAL OF INTERNATIONAL LAW 325 (2003); Luisa Vierucci, Prisoners of War or Prot

qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees a

JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 284 (2003); Catherine Moore, 

Humanitarian Law and the Prisoners at Guantanamo Bay, 7:2 INTERNATIONAL JOURNAL 

RIGHTS 1 (2003); Manooher Mofidi & Amy E. Eckert, “Unlawful Combatants” or “Priso

The Law and Politics of Labels, 36 CORNELL INTERNATIONAL LAW JOURNAL 59 (2003

Wilson, United States Detainees at Guantanamo Bay: The Inter-American Commission 

Rights Responds to a “Legal Black Hole,” 10:3 HUMAN RIGHTS BRIEF Spring 2003, at 2

http://www.wcl.american.edu/hrbrief/10/3detainees.cfm (last visited Oct. 31, 2003); Ne

& Scott Sullivan, Rational Interpretation in Irrational Times: the Third Geneva Conven

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()

Interesting Times for International Humanitarian Law: Challenges from the War on 

FLETCHER FORUM OF WORLD AFFAIRS 55 (2003).

4. See in particular United States: Response of the United States to Request for Pr

Measures—Detainees in Guantanamo Bay, Cuba (Apr. 12, 2002), reprinted in Amer

of International Law, International Law in Brief (June 4, 2002), http://www.

ilib0508.htm#r2 (last visited Oct. 31, 2003).

5. Geneva Convention [I]for the Amelioration of the Condition of the Wounded and Si

Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, reprinted in DOCUME

LAWS OFWAR 197 (Adam Roberts and Richard Guelff eds., 3d ed. 2000); Geneva Conve

the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members o

Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, reprinted in DOCUMENTS O

OF WAR, supra, at 222; Geneva Convention [III] Relative to the Treatment of Prisoners 

12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF W

244 [hereinafter Geneva Convention III]; and Geneva Convention Relative [IV] to the P

Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, 

DOCUMENTS ON THE LAWS OF WAR, supra, at 301 [hereinafter Geneva Convention IV

6. Protocol Additional[I] to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S

in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 422; Protocol Addition

Geneva Conventions of 12 August 1949, and Relating to the Protection of Victi

International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, reprinted in DOC

THE LAWS OF WAR, supra note 5, at 483 [hereinafter Additional Protocol II].

7. LIESBETH ZEGVELD, ACCOUNTABILITY OF ARMED OPPOSITION GROUPS IN INTE

LAW 136 (2002).

8. See Prosecutor v. Tadic, Judgment, No. IT-94-1-A, International Criminal Trib

Former Yugoslavia, Appeals Chamber, July 15, 1999, ¶¶ 116–144, reprinted in 38 INTE

LEGAL MATERIALS 1518 (1999).

9. Dietrich Schindler, The Different Types of Armed Conflicts According to 

Conventions and Protocols, in 163/II COLLECTED COURSES 117 (1979); Hans-P

Internationalized Non-international Armed Conflicts: Case Studies of Afghanistan, 

and Lebanon, 33 AMERICAN UNIVERSITY LAW REVIEW 145 (1983); James G. Stewar

Single Definition of Armed Conflict in International Humanitarian Law: A 

Internationalized Armed Conflict 85 (No. 850) INTERNATIONAL REVIEW OF THE RED 

(2003); ERIC DAVID, PRINCIPES DE DROIT DES CONFLITS ARMÉS 153–160 (3d ed. 20

10. See LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 30–52 (2002).

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

12. “[A]cts of violence committed by private individuals or groups which are regard

terrorism . . . are outside the scope of [IHL].” LESLIE C. GREEN, THE CONTEMPOR

ARMED CONFLICT 56 (2d ed. 2000).

13. Reservation by the United Kingdom to Article 1.4 and Article 96.3 of Additiona

reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 510, availab

www.icrc.org/ihl.nsf (last visited Oct. 31, 2003).

14. HILAIRE MCCOUBREY & NIGEL D. WHITE, INTERNATIONAL LAW AND ARMED 

318 (1992).

15. White House, Office of the Press Secretary, Statement by the Press Secretary on 

Convention (May 7, 2003), available at http://www.whitehouse.gov/news/releas

20030507-18.html (last visited Oct. 31, 2003).

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ppp

Petition for a Writ of Habeas Corpus at 7, Padilla v. Bush, 233 F. Supp. 2d 564 (S.D

available at http://news.findlaw.com/hdocs/docs/padilla/padillabush82702grsp.pd

visited Aug. 21, 2003).

17. Knut Doermann, The Legal Situation of ‘Unlawful/Unprivileged Combatants,’ 8

INTERNATIONALREVIEW OF THERED CROSS 45 (2003). That “unlawful combatants” a

by Geneva Convention IV is also recognized by Richard R. Baxter, So-called ‘

Belligerency’: Spies, Guerillas and Saboteurs, 28 BRITISH YEARBOOK OF INTERNATIONA

328, 344 (1951). When the concept of “unlawful combatants” was used by the US Sup

in Ex Parte Quirin et al., 317 U.S. 1 (1942), Geneva Convention IV did not yet exist.

18. The International Criminal Tribunal for the Former Yugoslavia (ICTY) r

nationality standard laid down in Article 4 by an allegiance standard. (See Prosecu

supra note 8, ¶¶ 163–69 and our criticism Marco Sassòli & Laura Olson, Case Repor

The Prosecutor v. Dusko Tadic, Case No. IT-94-A, ICTY Appeals Chamber (July 1

AMERICAN JOURNAL OF INTERNATIONAL LAW 571, 576–77 (2000)).

19. COMMENTARY, IV, GENEVA CONVENTION RELATIVE TO THE PROTECTION O

PERSONS IN TIME OF WAR 51 (Jean S. Pictet ed., 1958).

20. International Committee of the Red Cross, Revised and New Draft Convent

Protection of War Victims, Remarks and Proposals Submitted by the ICRC 68 (194

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

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

8, 2002), available at http://www.defenselink.mil/news/Feb2002/t02082002_t0208s

visited Nov. 22, 2003).

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

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

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

26. United States Military Assistance Command, Vietnam, Directives No. 381-

Intelligence: Combined Screening of Detainees, 27 December 1967,reprinted in MAR

& ANTOINE BOUVIER, HOW DOES LAW PROTECT IN WAR? 780–783 (1999) and U

Department of Defense, Report to Congress on the Conduct of the Persian Gul

1992), reprinted in 31 INTERNATIONAL LEGAL MATERIALS 612, 629 (1992).

27. Donald Rumsfeld, Fiscal Year 2003 Department of Defense Budget Testimony

http://www.defenselink.mil/speeches/2002/s20020205-secdef2.html (last visited Feb

28. Cf. United States v. Percheman, 32 U.S. 51, 69–70 (1833) (“It is one of the adm

of construction, that interpretations which lead to an absurdity, or render an act 

be avoided.”).

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

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

31. Supra note 18.

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

33. Id., arts. 41–43 and 78.

34. Id., arts. 79–135.

35. Id., arts. 49 and 76.

36. Taft, supra note 3, at 324, refers to Article 64 of Geneva Convention IV, which 

the part of the convention covering protected civilians in occupied territories.

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

38. International Covenant on Civil and Political Rights, opened for signature Dec. 1

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

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Tuesday, August 22, 2006 2:44:02 PM
VI

Special Forces’ Wear

of Non-Standard Uniforms

W. Hays Parks1

n February 2002, newspapers in the United States and United King

lished complaints by some nongovernmental organizations (NGOs) 

and other Coalition Special Operations Forces operating in Afghanistan i

clothing.”2 The reports sparked debate within the NGO community an

judge advocate ranks about the legality of such actions. At the US Special O

Command (USSOCOM) Annual Legal Conference May 13–17, 2002, the 

vocate debate became intense. While some attendees raised questions of 

and the right or obligation of special operations forces to refuse an “illega

wear “civilian clothing,” others urged caution. The discussion was unclas

many in the room were not privy to information regarding Operation 

Freedom Special Forces,3 its special mission units, or the missions assign

The topic provides lessons and questions for consideration of futur

judge advocates. The questions are:

(a) What are the facts?

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

(c) What is the relevant law of war?

(d) What is State practice?

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What Are The Facts?

Thirty years ago it was my privilege to serve as the first Marine Corps R

tive at The Judge Advocate General’s School, US Army, in Charlottesville

As the lone Marine on the faculty, I was expected to attend all major pu

monies, including the graduation of each Judge Advocate Officers Basic 

the accession course for new lawyers entering the Army. Course gradu

ranted a speech by one of the Army JAG Corps’ flag officers. Regardless 

graduation speaker was, the speech was the same. Written by The Assis

Advocate General of the Army, the late Major General Lawrence H. W

was called “the facts speech.” Its message was simple and straightforwa

charging off to tilt at windmills, be sure you have the facts.

There is much to be said for this admonition and its application in 

hand. Condemning certain actions or declaring them a law of war viola

upon news accounts is not a sound basis for analysis. No lawyer would p

case based solely upon news accounts. Indeed, media reports generally 

missible as evidence. Regrettably, there was a rush to judgment by some 

less-than-reliable source.

The facts surrounding the issue were two-fold. The first had to do with wh

ing worn, and by whom. The second concerned the motive for the NGO c

In response to the September 11, 2001 al Qaeda terrorist attacks a

World Trade Center and Pentagon, US and coalition Special Forces beg

tions in Afghanistan in late September 2001. At the request—initially in

of the leaders of the indigenous forces they supported, they dressed in i

attire. For identification purposes within the Northern Alliance, this in

Massoud pakol (a round brownish-tan or gray wool cap) and Massoud 

scarf, each named for former Northern Alliance leader Ahmad Shah Ma

sassinated days before the al Qaeda attacks on the World Trade Center a

gon. This attire was not worn to appear as civilians, or to blend in with t

population, but rather to lower visibility of US forces vis-à-vis the forces 

ported. Al Qaeda and the Taliban had announced a $25,000 per head b

uniformed US military personnel. Placing a US soldier in Battle Dres

(BDU) or Desert Camouflaged Uniform (DCU) in the midst of a Nort

ance formation would greatly facilitate al Qaeda/Taliban targeting of U

Forces.5 As will be seen in review of the law, dressing in this manner more 

may be described as wearing a “non-standard uniform” than “dressin

ians.” Special Forces personnel who had served in Afghanistan with who

stated that al Qaeda and the Taliban had no difficulty in distinguishing 

Alliance or Southern Alliance forces from the civilian population.6

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The fall of Kandahar in early December 2001 was followed by the c

the Taliban regime and the swearing-in of Hamid Karzai as Prime Min

other aspect of US Special Operations Forces—Army Civil Affairs—be

ter Afghanistan. In November 2001, US Army Forces Central C

(USARCENT) had established the Coalition and Joint Civil Military O

Task Force (CJCMOTF) using soldiers from the 377th Theater Supp

mand (TSC), the 122nd Rear Operations Center, and the 352nd Civil Aff

mand. By January 3, 2002, the CJCMOTF was established in Kabul. It 

liaison with local officials of the Interim Government and supervised th

itarian assistance from US Army Civil Affairs (CA) teams from the 96t

fairs Battalion, who were beginning to operate throughout Af

CJCMOTF also was the liaison with the US Embassy, and coordinated 

humanitarian assistance contributions.

The USARCENT Commanding General made the uniform decision

civilian clothing over DCU. His rationale was based on two factors: (a

soldiers to perform humanitarian assistance operations; and (b) safety o

fairs personnel, that is, force protection.7 A strong desire existed at the U

Command (USCENTCOM) headquarters (Tampa) to present a non-c

tional face, as well as a sentiment expressed that NGO would be reluctant 

working with uniformed soldiers. Additionally, 96th Civil Affairs Battalio

nel, who initially operated in Islamabad, Pakistan, were ordered by the U

sador to Pakistan to wear civilian clothing rather than their uniforms, ref

sensitive and unique political environment in which US Army forces we

ing. This order was not clarified or countermanded on entry into Af

Civil Affairs personnel continued to wear Western civilian attire. Eventu

adopted Afghan native attire.8

Other reasons existed for continued wear of civilian attire. In some a

governors would not talk to uniformed Civil Affairs personnel. In Decem

the UN-sanctioned International Security Assistance Force (ISAF) bega

in Kabul in accordance with the Bonn Agreement. United Nations repre

refused to meet with US Army Civil Affairs leaders if they were in unifo

US Army Civil Affairs units have a long, distinguished history. They pla

dispensable role in the European Theater of Operations during and after W

II, and in the postwar occupation of Japan. US Army and Marine Corps C

units played an equally indispensable humanitarian assistance role durin

nam War. NGO involvement during those conflicts was virtually no

(World War II) or extremely limited (Vietnam).

Under the terms of the 1949 Geneva Convention Relative to the Pro

Civilian Persons in Time of War (GC), NGOs operate subject to the 

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relevant States parties to a conflict.

The GC also contemplated a linear 

in which NGOs could operate in secure areas, a combat environmen

from Afghanistan. Legally and operationally, military operations an

ments take priority over NGO activities. However, NGOs provide valuab

that the military might be expected or required to perform were NGOs n

Military commanders must give due consideration to this, as the absenc

could add other responsibilities (such as refugee care) to a military com

burden. At the same time, NGOs cannot expect a risk-free work environm

itary commanders are entitled to make lawful mission-supporting decis

if those decisions might place NGOs or other civilians at greater risk.

Service NGOs have become a more significant player in areas of armed co

the past decade. NGO emphasis is on mission performance following the p

humanity, impartiality, independence and neutrality. NGOs feel obliged t

independence from the agendas of both the donors that fund them and go

and local authorities that allow them to operate in their territory. In contr

see CA engaged in assistance activities as driven by political and security ob

The US military leadership was not entirely successful in seeking a 

much less a working relationship, with NGOs in Afghanistan. The relatio

particularly bad as US Army Civil Affairs arrived in Afghanistan. Civil A

sonnel were denied access to NGO meetings, while some NGOs refused 

CJCMOTF-hosted meetings. A senior on-scene Army Civil Affairs of

cluded that the key issue was NGO image and market share. NGOs 

worked in Afghanistan since the 1980s feared being upstaged by the Ar

Humanitarian and Liaison Cells (CHLC). The NGOs also objected to h

ian projects being used in support of a military campaign.

The CJCMOTF served as liaison with the Interim Government and 

the humanitarian assistance for US Army Civil Affairs teams beginning 

throughout Afghanistan. Civil Affairs personnel deployed across Afgh

provide assessments and identify projects for some $2 million in initial a

The money went directly to local contractors. NGOs wanted to be subc

Based on limited money, a need to have an immediate impact, and conc

whether such use of these funds was permissible, US Army Civil Affairs 

informed the NGOs that it would not subcontract to NGOs. Moreover, 

curity concerns, NGOs were in the main cities but not in the villages w

Affairs teams conducted business. Going directly to local contractors inc

fear of some NGOs that they would be cut out of their “market share.”

Friction also existed with respect to fiscal accountability. US Army C

are expected to account for 100% of funds allocated to it. A substantial 

money provided NGO—as much as 60%—is directed to “overhead,” p

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its allocation toward the designated project, and full accountability. NG

scrutiny of their financial accountability shortcomings and amounts att

overhead. This increased tension between US Army Civil Affairs and th

Social reform was another Civil Affairs/NGO point of tension. C

claims of neutrality and impartiality, many NGOs in Afghanistan move

vocacy of women’s rights and human rights. This caused friction with 

Civil Affairs, whose role is to provide humanitarian relief without inter

local customs, however objectionable they may be. Civil Affairs work st

agendas on non-humanitarian issues.

A better than average, although uneven, relationship evolved betwe

NGOs at the working, “grassroots” level. This contrasts with a poor re

at higher levels due to the conflicts identified above. NGO resentm

Army Civil Affairs and market share concerns apparently prompted the N

plaint—led by Médecins sans Frontières—regarding Civil Affairs wear 

clothing.10 Philosophical differences between NGOs and the military are 

The uniform/civilian clothes issue was symptomatic of a larger issue. It 

noted that not all NGOs agreed with the complaint made byMédecins sans F

In early March 2002, the CJCMOTF commander, desiring to broker 

mise, directed all Civil Affairs personnel in Kabul and Mazar-e-Sharif to 

full uniform. Some Civil Affairs personnel in remote locations (where NG

not work due to the risk) were permitted to stay in civilian attire. On Mar

lowing its review, USCENTCOM supported CJCMOTF’s decision. Gui

authority was provided to ground force commanders to establish unifor

based upon local threat conditions and force protection requirements.

As a result of the NGO complaint, the issue of military wear of civilia

was reviewed within the Department of Defense (DOD). Following D

Chiefs of Staff (JCS) coordination, guidance was forwarded to USCEN

May 2002 that was consistent with CJCMOTF guidance issued April 7, 

result of CENTCOM/CJCMOTF guidance, the number of Civil Affairs 

SOF personnel in civilian clothing had diminished substantially prior to 

action or the aforementioned USSOCOM Legal Conference.11

What Are The Legal Issues?

Considering an issue in the public sector, including the military, is sim

vate practice or a law school examination. The legal issues have to be iden

addressed. In weighing the situation at hand, the following legal is

identified:

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Is it lawful for combatants to wear civilian clothing or non

uniforms in combat?

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

• Are there unique law of war considerations, such as risks, a co

should balance in making his decision?

Other questions had to be answered prior to answering these questions

What is the nature of the armed conflict, and its armed participants? Th

the armed conflict in Afghanistan was an issue that prompted considerable 

within and outside the government, in large measure due to the nature of the 

References to al Qaeda and the Taliban as separate entities constitu

complete and inaccurate picture. The enemy consisted of a loose amalga

at least three groups: the Taliban regime (until its December 2001 collap

ing which it reverted to its tribal origins), the al Qaeda terrorist group, u

Praetorian Guard for the Taliban leadership (both for internal security p

following commencement of US/Coalition operations), and foreign Ta

picture was further complicated by the tendency of some to refer to the 

the de facto Government of Afghanistan because it exercised rough co

eighty per cent of the country. This was open to debate until colla

Taliban, at which time it ceased to be an issue. Up to the time of the Talib

collapse in December 2001, a strong case could be made that this was a

conflict between non-State actors in a failed State.12 By the time of US A

Affairs entry into Afghanistan, the case was absolute.

Another factor was that the United States and its coalition partner

gaged in military operations in a foreign nation. Hence regardless of th

the Taliban, an argument could be made that for certain purposes this wa

national armed conflict. However, by the time the uniform issue was 

non-government organizations and considered in Washington, th

against the Taliban and al Qaeda looked more like a counterinsurgency 

or counter-terrorist operation than an international armed conflict. Wh

Administration chose to apply the law of war applicable in internatio

conflicts as a template for US conduct,13 it would be incorrect to conclu

of the law of war for international armed conflicts was applicable. For 

neither the Taliban nor al Qaeda personnel were regarded as entitled to p

war status.14 Nonetheless, the Geneva Convention Relative to the Tre

Prisoners of War15 (GPW), proved a useful template for their treatmen

This issue was not entirely new. US and other military forces engaged 

ious peacekeeping and other peace operations during the 1990s frequen

to ascertain where they were along the conflict spectrum. From the stan

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US military conduct, the issue made little difference. Department of Defe

is that US military personnel will comply with the law of war during all a

flicts, however such conflicts are characterized, and with the principles an

the law of war during all other operations.16 The primary issue in US and 

operations against al Qaeda and the Taliban was entitlement of capture

and Taliban to prisoner of war status under the GPW. That, as indicated

decided.

What Is The Relevant Law?

In a speech at the United States Institute of Peace on March 1, 2001, 

Roberts declared “Lawyers stick to the safe anchor of treaties.”17 This p

more erudite way of expressing the adage, “If the only tool you have is a 

every problem is viewed as a nail.” So it was in the debate over SOF we

standard uniforms. The argument against non-standard uniforms prim

cast in terms of the Geneva Convention Relative to the Treatment of Pr

War (GPW).18 The author frequently heard critics argue that “in a

with” the GPW, (a) SOF were required to wear uniforms; (b) failure to 

forms was a war crime; and (c) SOF had to wear uniforms and treat c

Qaeda and Taliban as enemy prisoners of war in the hope of reciproc

any SOF fall into enemy hands. A closer examination of the law revea

(b) to be legally incorrect, while (c) was highly speculative at best with 

al Qaeda and Taliban conduct.

The GPW and its predecessors contain no language requiring milita

nel to wear a uniform, nor fight in something other than full, standard 

Nor does it make it a war crime not to wear a uniform. Article 4, GPW, lis

entitled to prisoner of war status and subject to the protections set fo

GPW. It states in part:

A. Prisoners of war, in the sense of the present Convention, are persons belo

one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as mem

militias and volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, in

those of organized resistance movements, belonging to a Party to the con

operating in or outside their own territory, even if this territory is occupied, p

that such militias or volunteer corps, including such organized re

movements, fulfill the following conditions:

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(

) g y pp

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

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and c

of war.19

Differing views as to whether regular force combatants are expected o

to meet the four criteria contained in Article 4A(2) are beyond the sc

presentation. While history, the negotiating history of article 4 and pr

treaties, other provisions in the GPW, and recognized experts strong

that regular force combatants are entitled to prisoner of war status onc

identified as members of the regular forces (however attired when ca

other experts argue that the 4A(2) criteria are prerequisites for prisoner 

tus for regular force personnel as well as militia members.21 Court cases, 

ited in number, tend to support the latter point of view.22 Article 46 o

Additional Protocol I23 denies prisoner of war protection to spies, even i

been identified as regular members of the military.

Historical State practice, provided infra, suggests that denial of priso

status is not automatic, while the experience of US military personne

even when in uniform has been one of refusal of the captor to provide p

war status and/or suffer serious abuse.24 Past abuses of captured US milit

vilian personnel do not constitute either justification or an argument fo

personnel to abandon standard uniforms. In international armed con

dard uniforms should be the norm; non-standard uniform, the rare exc

vilian attire, even rarer. But risk of denial of prisoner of war status, whil

consideration, does not answer the commander’s question: Is wearing 

less than the standard uniform illegal? The answer in treaty law and State 

clear: Wearing a partial uniform, or even civilian clothing, is illegal only if 

perfidy, discussed infra. Military personnel wearing non-standard uniform

ian clothing are entitled to prisoner of warstatus if captured. Those captur

civilian clothing may be at risk of denial of prisoner of war status and trial 

There is no doubt that in an international armed conflict any comm

and should, weigh a decision to authorize the wearing of civilian clothing 

That being said, military personnel are in a high-risk profession, and com

often must make life-and-death decisions. Under most circumstance

mander ordering a frontal infantry assault on a heavily fortified positi

stands that in doing so, he has accepted that some soldiers are likely to 

lives in carrying out his order. Similarly, individuals who join the milit

be under no illusion as to the attendant risks. As British Special O

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Executive historian M. R. D. Foot acknowledged, 

The truth is that war

gerous, and people who fight them are liable to be killed.”25

The decision to wear something other than a standard uniform fir

military necessity. At issue then is what constitutes a “non-standard unif

commander provides military necessity for a Special Forces team to con

ations in an international armed conflict in something other than the 

uniform, what steps are necessary to comply with the law of war? What g

any does the law of war provide as to what might constitute a “non-stan

form?” Second, what is “treacherous” killing, prohibited by Article 23(b)

the 1907 Hague IV?

At the heart of the issue is the law of war principle of distinction. The 

divides the population of nations at war into the belligerent forces and ci

taking an active or direct part in hostilities.26 With a single, limited ex

only military forces may engage directly or actively in hostilities, that is, i

ant-like activities. Hostile acts by private citizens are not lawful, and a

able, in order to protect innocent civilians from harm.28 Civilians, and t

population, are protected from intentional attack so long as they do not 

tive or direct part in hostilities. In turn, military forces are obligated to ta

able measures to separate themselves from the civilian population an

objects, to distinguish innocent civilians from civilians engaged in hostil

to distinguish themselves from the civilian population so as not to place t

population at undue risk. This includes not only physical separation o

forces and other military objectives from civilian objects and the civilia

tion as such, but also other actions, such as wearing uniforms. An 

century law of war scholar observed: “The separation of armies and pe

habitants into two distinct classes is perhaps the greatest triumph of Int

Law. Its effect in mitigating the evils of war has been incalculable.”29

Another law of war scholar summarizes the principle of distinction 

lowing way:

It may be said that the principle . . . of distinction between belligerents and 

population, had found acceptance as a self-evident rule of customary law in th

half of the 19th century. Indeed, it seems no more than a reflection of pr

demonstrated in many of the wars fought in Europe in that period. Soldiers w

merely distinguishable; they were conspicuous in their proud uniforms; and 

fought each other, and preferred the civilian population not to mingle in their bu

State practice and treaty development make it clear that the princi

ther absolute nor rigid. Wearing civilian clothing for intelligence collec

knowledged in treaty law as a lawful military activity. SOF wearin

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clothing while serving with partisans was common State practice in Wo

and codified in subsequent treaties or their negotiating records, as will 

The ancillary law of war prohibition on “killing treacherously”31 doe

clude lawful ruses or Special Forces’ wearing non-standard uniforms, 

fighting in civilian attire with no intent to conceal their combatant sta

Wearing of Uniforms

Military wear of uniforms during conventional combat operations in int

armed conflict reflects the general customary practice of nations, subject 

exceptions discussed infra. State practice of uniform wear is extensive

least to the Peloponnesian Wars (431 to 404 B.C.).33

The customary principle of distinction is applicable to the regula

forces. Conventional military forces should be distinguishable from th

population in international armed conflict between uniformed milit

of the belligerent States. It is an expectation, with codified exception

other exception acknowledged in the negotiating record of the 1977 A

Protocol I.34 The criteria set forth for militia and partisan forces not a 

regular military had as their intention recognition of the generally acce

tice of nations with respect to the characteristics of conventional forces

No rule exists stating that a complete, standard uniform is the on

which regular armed forces may make themselves distinguishable from t

population.36 Historically it has been the predominant way by which mi

sonnel, including special operations forces, have distinguished themse

the civilian population. But it has not been the exclusive way.

A difficulty lies in the lack of definition. There is no international stan

what constitutes a “uniform.”37 Neither the 1907 Hague Convention I

GPW offers a definition or precise standard. In the International Comm

Red Cross (ICRC) Commentary on Article 4, GPW, its author states:

The drafters of the 1949 Convention, like those of the Hague Conventions, co

it unnecessary to specify the sign which members of armed forces should 

purposes of recognition. It is the duty of each State to take steps so that memb

armed forces can be immediately recognized as such and to see to it that they a

distinguishable from... civilians.38

Similarly, reporting on discussions of the same issue at the 1974-1977 D

Conference that promulgated Additional Protocol I, the ICRC Comment

What constitutes a uniform, and how can emblems of nationality be distin

from each other? The Conference in no way intended to define what cons

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[]y y y g

wearing it from a non-member should suffice.” Thus a cap or an armlet etc. w

standard way is actually equivalent to a uniform.

The uniform and other emblems of nationality are visible signs. Although certa

of battle dress of different countries are very similar nowadays, it is nev

possible to distinguish allied armed forces from enemy armed forces by m

characteristics of outfitting and other signs of nationality. Furthermore, this 

possible to distinguish members of the armed forces from the civilian populatio

The ICRC Commentary indicates that a State should ensure that it

tional military forces be distinguishable from the civilian population. I

specify the manner in which this may be accomplished, nor state that the 

standard uniform is the only way in which this requirement may be me

In spite of the clear treaty language in Article 4A(2)(b), GPW (“fixed 

sign”), the device need not be permanent or fixed. What “fixed distinctive si

remains unresolved. In commenting on this, Professor Howard S. Levie no

The ICRC has made several statements attempting to offer acceptable interpr

of the meaning of the term “fixed distinctive sign” [contained in Article 4A(2)

In 1960 it stated that the sign “must be worn constantly”; but in 1971 it back

somewhat when it said that the sign must be “fixed, in the sense that the 

[partisan or guerrilla] should wear it throughout all the operation in which 

part.” Moreover, at that same time the ICRC stated that the sign “migh

armband, a headdress, part of a uniform, etc.” During World War II the list

were, on various occasions, used by resistance groups; but they were fr

removed and disposed of at critical moments in order to enable the indiv

escape being identified as a member of the resistance.... 40

Given the generally accepted understanding of the term “distinctive d

a hat, a scarf, or an armband—a device recognizable in daylight with un

vision at reasonable distance would meet the law of war obligation to 

guishable from the civilian population.41

There are at least five categories of clothing: (a) a uniform as such, suc

(b) a uniform worn with some civilian clothing;42 (c) civilian clothing 

with a distinctive emblem to distinguish the wearer from the civilian p

(d) civilian clothing only, with arms and other accoutrements (such as 

ing equipment, body armor) that, combined with actions and circu

clearly manifest military status; and (e) civilian clothing, with weapon 

and no visual indication that the individual is a member of the militar

upon historical practice and treaty negotiation records, the first three co

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uniform.The fourth should protect the individual from charges of spy

tured provided he is distinguishable from the civilian population by phy

ration, clearly military duties, and other characteristics.44 The last is 

intelligence gathering or other clandestine activities. As will be indicated

of the law of war occurs only when there is treacherous use of civilian clo

is the proximate cause of death or injury of others. The 1974-1977 D

Conference45 did not regard it as serious enough to be classified as a Grav

The United States is not a State party to Additional Protocol I. Foll

tensive military, legal and policy review, the United States decided ag

mission of Additional Protocol I to the United States Senate for its a

consent to ratification.46 However, the United States acknowledged 

bound by Additional Protocol I provisions that constitute a codificati

tomary international law.47

Most paragraphs of Article 44, Additional Protocol I, amended the 

law of war with respect to entitlement to prisoner of war status for priv

(so-called “liberation movements”). For policy, humanitarian and mi

sons these provisions are regarded as unacceptable by the United States, 

major reason for the US decision against ratification.

With respect to conventional forces, Article 44, paragraph 7, states: “T

is not intended to change the generally accepted practice of States with 

wearing of the uniform by combatants assigned to regular, uniformed ar

of a Party to the conflict.” [Emphasis added.]

An authoritative commentary on Additional Protocol I—prepare

viduals directly involved in its drafting and negotiation—offers an expl

this provision:

Within the Working Group the initial enthusiasm for a single standard applica

to regular and independent armed forces was dampened when concern was e

that the... [new rules] might encourage uniformed regular forces to dress in 

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

of the Working Group, however, states that “regulars who are assigned to task

they must wear civilian clothes, as may be the case . . . with advisers assigned t

resistance units, are not required to wear the uniform.” The implication of 

construed in the light of the Working Group report is that uniforms continue 

principal means by which members of regular uniformed units distinguish th

from the civilian population . . . , but that members of regular armed forces ass

attached to duty with the forces of resistance or liberation movements may con

the manner in which irregulars conform to the requirements of para. 3....48

That being said, another Diplomatic Conference participant offered t

ing comment as to uniform requirement in light of Article 44, paragra

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should be noted that it is apparently not intended to exclude all regular fo

the application of the previous paragraphs of the article. What it does im

ever, is that regular forces whenever possible (notably in “conventiona

hostilities), should continue to wear uniforms.”49

Thus, commentaries by participants in the 1974-1977 Diplomatic C

confirm the Additional Protocol I acknowledgement that, where warrant

itary necessity, it may be permissible in international armed conflict50 f

military forces to wear civilian clothing. At issue is whether the action 

mate ruse or perfidy.

Ruses and Perfidy

Ruses of war are lawful deceptive measures employed in military operat

ternational armed conflict for the purpose of misleading the enemy.51 T

war prohibits “killing or wounding treacherously individuals belonging 

tile nation or army,” 52 commonly known as perfidy.53

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

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

(a) To kill or wound treacherously individuals belonging to the hostile 

of army.54

This article, along with Articles 29 and 31, were re-codified with non-s

changes in the Annex to the 1907 Hague IV Convention. They are imp

several reasons. They constitute recognition of the general obligation fo

forces to fight in uniform. However, it is not a war crime for military pe

wear or fight in civilian clothing unless it is done for the purpose, and w

sult of killing treacherously. What constituted “killing treacherously” w

as “perfidy” in Article 37 of Additional Protocol I:

It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts 

the confidence of an adversary to lead him to believe that he is entitled to, or is 

to accord, protection under the rules of international law applicable in armed 

with intent to betray that confidence, shall constitute perfidy. The following 

examples of perfidy:

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

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

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

(d) the feigning of protected status by the use of signs, emblems or uniform

United Nations or of neutral or other States not Parties to the conflict.55

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In order to be perfidy, the act must be the proximate cause of the kill

or capture of the enemy.56 But while the Diplomatic Conference codified 

limited criminal liability. Perfidy was made a Grave Breach only if it inv

perfidious use . . . of the distinctive emblem of the red cross, red crescent 

and sun.”57 Wearing civilian attire or feigning civilian status was not de

Grave Breach.

Each differs from US and coalition Special Forces operating in non-sta

forms as part of heavily armed units clearly known and identifiable by t

and al Qaeda in the war in Afghanistan. Special Forces wear of non-stan

forms, whether partial BDU or indigenous apparel of their Northern Alli

ners, including their distinctive pakol hats and/or tribal scarves, did not 

perfidy. US Army Civil Affairs wear of Western-style civilian clothing or i

attire in Afghanistan would not have constituted perfidy unless it had bee

the purpose, and with the result of, killing treacherously. The NGO comp

no such allegation, and no evidence has been surfaced to suggest such co

That being said, the devil always has been in the details in balancing the 

for military personnel to operate in enemy denied areas in civilian attire, an

At the heart of the balance is the law of war principle of distinction. State p

which more will be said, suggests that the lines between the two are far fr

There is logic to this history. State tolerance of Special Forces fighting 

clothing in limited, special circumstances, such as support for partisans

tent with humanitarian tolerance for captured guerrillas. It follows 

many, including the International Committee of the Red Cross, to pro

oner of war protection to all and not to prosecute except in the most egr

cumstances, such as terrorism and treacherous use of civilian cloth

drafters of Article 44 had a better sense of State practice than did critics 

coalition Special Forces wear of non-standard uniforms.

Into the midst of this discussion steps the global war on terrorism. Ter

not entitled to law of war protection, and the law of war is not applicable 

counter-terrorist operations.59Counter-terrorist units have been author

hollow-point or other expanding ammunition,60 for example, and have w

ian clothing or non-standard uniforms on missions.61 President Bush’s 

dress to the nation and the world on September 29, 2001, in response to the 

11th terror attacks on the World Trade Center and Pentagon, may have 

some in the military to err initially and assume that law of war rules relating 

wear were not applicable in the military operations that followed in Afghan

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

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What Is State Practice?

State practice is important to answering legal questions because it forms 

determining customary international law.62 State practice—a synonym 

tary history—reveals how governments interpret, apply and/or enforce 

treaty provisions.

State practice in international armed conflict and other military opera

tains a significant record of Special Forces wear of civilian attire, non-stan

forms, and/or enemy uniforms as a ruse or for other reasons. Begin

Colonel T. E. Lawrence, the celebrated Lawrence of Arabia, State practice 

overt tolerance bordering on admiration for special forces wearing civilia

when working with indigenous persons in enemy denied areas, whether 

gence gathering or combat operations.63 Special forces personnel captu

wearing civilian clothing have been treated as spies rather than charged 

crime, while Special Forces who fought in civilian clothing and returned 

been honored as heroes.

The actions of Colonel Lawrence in all likelihood were not the first in 

digenous attire was worn, but one of the more influential. An apprecia

list that follows necessitates a brief historical overview.

Germany’s annexation of Austria in 1938 sparked interest within t

military in the potential necessity for irregular operations. Recalling th

guerrillas in Wellington’s campaign against the French in the Penin

(1807-1809), Boer commando success against the British in the 1899-19

Boer War, Colonel Lawrence’s success, the British experience in facing Si

Ireland 1919-1921,64 Chinese guerrilla operations against Japan in the S

nese War, and other guerrilla activities in other conflicts, in 1938 the 

Branch of the British General Staff (GS(R)) began research that led to p

of Field Service Regulations entitled The Art of Guerrilla Warfare, Th

Leader’s Handbook, and How to Use High Explosives, all subsequently 

GS(R) Report No. 8 ‘Investigation of the Possibilities of Guerrilla Activitie

Commencement of the Second World War with the German invasion 

on September 1, 1939, revealed Germany’s first use of Special Forces 

clothing, enemy uniforms, or non-standard attire as a ruse to seize crit

tives. British focus on partisan warfare and Special Forces was renewed 

many’s invasion of Western Europe, the fall of France, and Brit

evacuation from Dunkirk in May 1940. Standing alone, the British leader

tified several means for action. In addition to traditional means suc

blockade and aerial bombing, it directed commando raids and “the un

of enemy morale and production possibilities through close co-oper

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exile governments and through them

or without themwith Resistan

ments in enemy occupied territory.” The Charter for the British Special O

Executive (SOE) received War Cabinet approval on July 22, 1940. At 

Prime Minister Winston S. Churchill offered his oft-quoted edict: “An

Europe ablaze.” Working closely with exile governments, the British Go

began making contact with potential resistance movements throughou

cupied Europe, ultimately providing them personnel and material supp

quently coordinating their actions to link them directly to the British 

war effort.

It is important to understand what SOE was, and what it was not. SO

independent secret service. It was not a military service. But SOE reli

upon assignment of military officers to it, coordination of operations wi

itary chiefs of staff, and was dependent on the military services for perso

port, supply and transportation. Although intelligence was sometim

product of its activities, SOE was not an intelligence collection agency. 

tended for its operatives to engage in clandestine, subversive operations 

clothing. The dagger lay concealed beneath the cloak. In Prime Minis

chill’s words, this was “‘ungentlemanly warfare’ in which the ‘Geneva Co

rules do not apply and the price of failure was often a slow and terribl

Thus the British Government and SOE operatives consciously entered 

form of operations fully cognizant of its law of war implications.

The “Geneva Conventions” baby had not been tossed out with the b

As was the case with US Special Forces in Afghanistan in 2002, restric

placed on wearing civilian attire. Military personnel providing transpo

personnel to and from an operation were required to be in uniform, fo

while late-war operations enabled some to wear uniforms. For post-D-D

tions, SOE personnel were provided armbands for partisans and Britis

personnel not in uniform. Prior to and after D-Day, a clear showing of m

cessity as it related to the mission was necessary for authorization to we

clothing. For example, on May 30, 1943, the British War Office informed 

mander-in-Chief, India, that the Chief of Staff had decided: “No mem

armed forces . . . should be sent on military operations, however hazard

vilian clothes, except in the case of subversive activities for which civili

are essential.”67

Germany invaded Russia on June 22, 1941. In response, Russian Pre

Stalin declared that day:

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

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

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pg gy

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

Soviet partisan warfare differed from that of Great Britain and (subseq

United States, if perhaps only slightly. Whereas Great Britain and the United 

ported support for underground movements in Axis-occupied nations, the 

ion supported partisan warfare within its own territory occupied by 

operating along interior lines. The partisan movement, organized, train

rected by Soviet Army personnel, was substantial. In the month of July 194

forces carried out 10,000 separate demolitions of track to impede German 

efforts. During the night of July 4, 1944 alone, partisans laid 4,110 separate d

charges on rail lines; on June 19, partisans planted over 5,000 mines on the 

railroads behind the Second and Fourth German Armies. While it was esti

250,000 people were directly engaged in partisan operations by 1944, Soviet 

boasted that every Soviet civilian in Nazi-occupied territory was at least in

volved in partisan activities, and on September 6, 1942, the partisan 

achieved the nominal status of a separate branch of the Soviet military—

thought about in the United Kingdom by some, but never achieved in 

United Kingdom or the United States. Like underground operations suppo

United Kingdom and United States, Soviet partisan operations—with civ

military personnel fighting in civilian attire—were State approved and dire

United States’ movement into partisan operations closely followed R

British actions. Early in World War II, the Roosevelt Administration estab

Office of Strategic Services (OSS). Forerunner of the Central Intelligence A

OSS was a hybrid organization led by Major General William A. Donova

guished, decorated former Army officer. OSS was under the administra

zance of the Joint Chiefs of Staff but under operational control of t

commander.69 It was an organization focused on espionage, sabotage an

support. US Army personnel provided a major part of the OSS streng

reached its maximum of 13,000 in December 1944. US Army Special Force

lineage to OSS. 70

By the spring of 1944, SOE and OSS were operating together in a vari

sions.71 Some OSS units operated in uniform, while others did not un

cumstances. In one of its major efforts, France, OSS operational units 

Nazi-occupied territory in direct support of the French Resistance. As 

history notes:

The first group consisted of seventy-seven Americans who wore civilian c

organizers of secret networks, as radio operators, or as instructors in th

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ppygp 

before 6 June 1944, D-Day. . . .[Emphasis added.]

The largest OSS group in France consisted of 356 Americans who were mem

Operational Groups (OG). All recruits for the OGs were French-speaking vo

from US Army units, primarily infantry and engineer (for demolition expe

Working in uniform, these teams parachuted behind the lines after D-Day to 

a variety of missions....72

In addition to its Operational Groups, OSS worked with SOE in 

teams. These teams were intended to be composed of an Englishman, 

can, and a continental Europe member, each military, two of whom we

the third was the communications specialist.73 The initial core containe

officers fluent in French who were to parachute in uniform to resistan

initially throughout France during the weeks following the Allied landin

6, 1944. They would provide liaison with the underground, arm and tra

quis, boost “patriotic morale,” and coordinate resistance activity with A

tary strategy. Ninety-three Jedburgh teams parachuted into France t

Maquis after D-Day, numbering three hundred French, British and U

Eventually they served in other Nazi-occupied territory.

While the Jedburghs normally operated in uniform, this was not alw

ble. In an operation in Nazi-occupied France, Major Horace Fulle

avoided capture as a result of accepting the advice of his French contact 

vilian clothing, including during combat operations.74

Similar operations occurred in other theaters. On May 4, 1942, a US 

cer formed Naval Group China. Composed of Navy and Marine Corps 

its mission was to establish radio intelligence posts, weather-gathering an

stations, form, supply and train indigenous sabotage units, and conduct 

Japanese units and equipment. Also known as the Sino-America Coope

ganization, it executed its operations successfully for the duration of the 

of them in non-standard uniform or indigenous civilian attire, depend

mission and situation.75

This is not the time to recount Allied support for partisan operation

War II, nor what then were termed “commando” operations. However, s

servations are relevant to the issue at hand. First, partisan operations we

sal, occurring in every Axis-occupied nation, actively supported by e

major Allies—United Kingdom, United States and Russia—and each go

in exile. Second, they were significant in their breadth and longevity. Fo

the French Resistance Movement began shortly following German co

1940 and continued through the war. By 1944, approximately three m

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and women were associated with the various French Resistance organi

Yugoslavia, 400,000 were involved in partisan operations.

Resistance activity was dependent upon volunteers—whether parti

the civilian population of Axis-controlled nations, civilian and military 

serving with the SOE or OSS, or members of Special Forces. All were aw

possible consequences if they were caught, whether in uniform or othe

the same time, execution as a spy if captured in something other than stan

form was not a certainty.

Partisan sabotage operations were regarded as a valuable alter

highly inaccurate strategic bombing in Nazi-occupied territory, as 

sought to reduce collateral civilian casualties to friendly populations.7

sabotage was the “smart bomb” of World War II. In its employment o

cise means, it was the epitome of the second facet of the fundamental 

principle of distinction.77 In some cases, the evidence was clear that 

Special Forces sabotage often was more effective than air operations a

same targets,78 while in other instances OSS-lead partisans were able 

heavily defended targets that had resisted air attack.79 While the rat

partisan or Special Forces attacks may have been selected over aer

more for political than law of war reasons,80 it offers evidence of wh

ments chose not to condemn attacks in civilian clothing as a Grave 

Additional Protocol I. Special Forces/partisan unconventional warfa

tions tied down Axis units that could have been used more effectively 

Allied forces but for the partisan threat,81 and significantly impaired 

efforts to reinforce their defenses at Allied points of offensive grou

tions.82 Special Forces and their partisan allies performed other life-

tions, such as the rescue of downed Allied aircrew and assistance in 

escape routes.83 Special Forces served as on-the scene ambassadors wh

combat operations killed innocent civilians.84

Partisan operations, including sabotage and direct attacks on Axis 

were executed primarily in civilian attire, occasionally (after the Allied ret

rope on June 6, 1944) wearing a distinctive device, sometimes in a partia

but seldom in full uniform. “Uniform” varied, often being more like mod

colors than a traditional military uniform. The same was true for SOE and 

tary personnel serving with resistance movements and, in some cases, Spec

Finally, partisan operations were successful. Danish historian Jørgen 

concludes “The Resistance Movements, seen in their entirety, deeply 

the course of the war, psychologically, militarily and politically.”85 I

thereof, he quotes Russian historian E. Boltin: “History has never known 

fight of such huge dimensions as was apparent during the 1939-

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Furthermore the masses had never before taken so directly a part in th

combat, as was the case in the last war in Europe.”86

The preceding comments are offered to show that the wearing of civ

by partisans or military personnel in Special Forces units or in the SOE o

neither unique, occasional, nor limited in time and space. In the exampl

low, it is clear that the wearing of civilian attire or non-standard unifor

some cases, enemy uniform) was a deliberate act based upon a decision m

highest levels of government.

The list set forth in the Annex (infra) is illustrative rather than exhaus

offered for historical purposes rather than necessarily with approval or c

tion of the missions listed. With the exception of US action in Ex parte Qu

the unsuccessful prosecution of Otto Skorzeny,88 the list reveals that Sta

in international armed conflict has tended not to treat wear of civilian a

standard uniforms, and/or enemy uniforms by regular military force

crime. Personnel caught in flagrante delicto in civilian attire or enemy 

have been treated as spies, sometimes (but not always) with severe con

However, those who returned safely were decorated rather than punish

festing an endorsement of their actions by their government.

The wearing of enemy uniforms is not directly within the scope of the i

consideration. However, State practice is germane regarding the proh

“killing treacherously” contained in Article 23(b) of the Annex to the 19

Convention IV.89 State practice shows that governments have been willing 

Special Forces in civilian attire or enemy uniforms where a major advantag

pated, and where the gain is greater than the risk to the deployed personne

tions have not been regarded as a war crime either by the government ord

or the government against which the forces were employed.90

State practice provides several points for fine tuning a general princi

(a) Colonel Lawrence wore indigenous attire while leading the Ara

against the Ottoman Empire in the Hejaz. Coalition Special Forces ali

Northern Alliance and Southern Alliance forces in Afghanistan, suggestin

in the law of war principle of distinction: an armed military group recogn

distance and readily identifiable to the enemy by its size and other char

even when wearing indigenous attire with or without distinctive device

lawfully. In essence, there is no “treacherous killing” or perfidy because 

been no treacherous use of civilian clothing.

(b) Non-standard uniforms or indigenous attire may be adopted fo

reasons rather than with intent to commit perfidy. The British/Comm

Long Range Desert Group (LRDG), operating behind enemy lines in No

from 1940-1943, adopted the kaffiyeh and agal as a standard part of the

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for utilitarian purposes, for example. The LRDG wore native sheep o

coats to ward off the nighttime desert cold, as did British and US Special 

erating behind Iraqi lines in the 1991 coalition effort to liberate Kuwai

the latter by the LRDG served partially as a ruse against casual observatio

by enemy aircraft. However, their identity clearly was recognizable at a d

enemy ground forces.91

(c) Law of war compliance with something as simple as wearing a distinc

may not be practical where the enemy is known to punish rather than rewa

ance. For example, immediately prior to D-Day (June 6, 1944), British ai

supplies included armbands for partisan and supporting Special Forces

Allied conventional forces returned to the continent. However, distinctiv

wear was viewed with skepticism in light of Hitler’s Commando Order deny

to any partisans or Special Operations Forces.92

(d) Perfidy requires mens rea, that is, the donning of civilian attire wit

intent to deceive. A group of alert, fit young men, heavily and openly ar

rounding an individual in military uniform, and themselves surround

nation military personnel in uniform, clearly are a personal protection 

are not attempting to mask their status nor gain an advantage over so

pecting enemy soldier.

The law of war regards a uniform as the principal way in which con

military forces distinguish themselves from the civilian population in int

armed conflict. State practice (including US practice), treaty negotiatio

and the views of recognized law of war experts reveals (i) that the law of w

tion is one of distinction that otherwise has eluded precise statement in a

stances; (ii) there is no agreed definition of uniform; (iii) the 

“requirement” is less stringent with respect to Special Forces working w

nous forces or executing a mission of strategic importance; and (iv) a law 

olation occurs only where an act is perfidious, that is, done with an 

deceive, and the act is the proximate cause of the killing, wounding or 

the enemy. My review of State practice found no enforcement by a go

against its own personnel. Enemy combatants captured in flagrante d

prosecuted as spies rather than for law of war violations, with the excep

parte Quirin and the unsuccessful post–World War II US prosecuti

Obersturmbannführer Otto Skorzeny.

Summary

In international armed conflict, the wearing of standard uniforms by con

military forces, including Special Operations Forces, is the normal and 

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standard. Wearing civilian attire or a non

standard uniform is an exce

should be exercised only in extreme cases determined by competent au

In international armed conflict, military necessity for wearing non

uniforms or civilian clothing has been regarded by governments as ext

stricted. It has been limited to intelligence collection or Special Forces o

in denied areas. No valid military necessity exists for conventional milit

whether combat (combat arms, such as infantry, armor or artillery), co

port (such as Civil Affairs), or combat service support personnel, to 

standard uniforms or civilian attire in international armed conflict.

The codified law of war for international armed conflict does not pr

wearing of a non-standard uniform. It does not prohibit the wearing 

clothing so long as military personnel distinguish themselves from th

population, and provided there is legitimate military necessity for wear

thing other than the standard uniform. The generally recognized man

tinction when wearing something other than the standard uniform is 

distinctive device, such as a hat, scarf, or armband, recognizable at a dis

Violation of the law of war (perfidy) occurs when a soldier wea

clothing—not a non-standard uniform—with intent to deceive, and th

proximate cause of the killing, wounding or capture of the enemy. Pe

not exist when a soldier in civilian attire or non-standard uniform rem

tifiable as a combatant, and there is no intent to deceive.

Discussion of the issue raises an appearance of a double standard in co

Taliban militia/al Qaeda (in Afghanistan) or Saddam Fedayeen (in Iraq) 

vilian clothing while justifying SOF wear of Western civilian attire or i

attire. A “double standard” exists within the law of war for regular forces 

nized government vis-à-vis unauthorized combatant acts by private ind

non-State actors. The issue was complicated by the unique nature of op

Afghanistan, that is, counter-terrorist operations against non-State a

failed State, and the increased role of NGOs in a non-linear combat envir

The law of war principle of distinction cannot be taken lightly. Th

military field uniform should be worn absent compelling military ne

wear of a non-standard uniform or civilian clothing. Military convenien

not be mistaken for military necessity. That military personnel may be 

risk in wearing a uniform is not in and of itself sufficient basis to justify w

vilian clothing. “Force protection” is not a legitimate basis for wearing a 

dard uniform or civilian attire. Risk is an inherent part of military mis

does not constitute military necessity for the wear of civilian attire. But 

war requirement to wear a complete, “standard” uniform is not as absolu

have recently suggested.

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To summarize:

(a) The law of war requires military units and personnel to distingu

selves from the civilian population in international armed conflict. Artic

the 1949 Geneva Convention Relative to the Treatment of Prisone

(GPW)93 sets forth standards all combatants are expected to satisfy. How

tary personnel may distinguish themselves from the civilian populatio

ways, such as physical separation.

(b) Standard US military uniforms satisfy the requirements of GPW A

“Standard military uniform” refers to battle dress uniform (BDU), dese

flage uniform (DCU), official flight suit, or other obvious military app

presumption should be that all US armed forces operate in standard unif

ing military operations in international armed conflict.

(c) When authorized, the requirements of GPW Article 4(A)2 may b

by other than the complete standard military uniform. For example, a v

of the standard military uniform, or a fixed, distinctive sign will satisfy th

ments provided that the forces are recognizable as combatants with un

vision at a distance.

(d) Neither the Global War on Terrorism nor the fact that one is a m

Special Operations Forces offerscarte blanchefor military personnel to w

thing other than the full, standard uniform. The wearing of a partial u

non-standard uniform with fixed, distinctive sign should be reserved 

tional circumstances when required by military necessity. Force prote

not constitute military necessity. Authority should be regarded as extre

ited, mission and unit specific, and decided by a senior commander or hi

as (in the US military) the Combatant Commander responsible for the 

(e) While a hat, scarf or armband would meet the fixed distinctive sig

ment, a permanently affixed distinctive sign such as an American flag 

body armor or clothing is more prudent.

(f) Forces operating in other than the complete standard uniform 

ceive training in the law of war to ensure that they understand the requir

distinction and are fully aware of the risks they may face if captured if t

comply with the law of war.

(g) Captured US military personnel (other than escaping prisone

wearing civilian apparel without a fixed distinctive sign and without vis

ons may be considered spies by their captor. The captor may try them fo

law violations (e.g., spying). Unless they otherwise commit an independ

war violation (e.g., perfidy), history indicates that the acts will not be r

violative of the law of war.

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ANNEX

TABLE OF HISTORICAL STATE PRACTICE95

Who What When Where Disp

(if 

Japan Japanese officers in

Chinese civilian attire

on sabotage mission.

1904 Manchuria

(Russo-Japanese

War)

Capture

executed

Russia Russian soldiers in

Chinese civilian attire attacked Japanese units.

1904 Manchuria

(Russo-Japanese

War)

Japanes

matic pr

Col. T. E.

Lawrence

(Lawrence

of Arabia)

British Army

Wore Arab attire

while leading Arab

uprising against the

Ottoman (WWI)

Empire, fighting

Turkish Army.

1916–

1918

Hejaz Province

Arabia (Syria)

Lawrenc

decorate

Germany SF dressed as Polish

civilians fake raid on

customs house as

pretext for German

invasion of Poland.

1939 Germany None.

France Free French commander wore indigenous attire in attack

on Italian fort at

Murzuk, Jan 11, 1941.

1941 Libya Killed in 

United Kingdom Special Operations

Executive (SOE) personnel in civilian

clothing supported

partisan operations in

Axis-controlled

Nations.

1940–

1945

Europe, Asia SOE age

tured in 

delicto w

cerated, 

executed

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Who What When Where Disp

(if 

Germany Danish-speaking SF

dressed as Danish

soldiers seize key

bridge to initiate

invasion.

1940 Denmark None

Germany SF dressed as Dutch

military policemen

seize key bridge at

start of German

invasion.

1940 Netherlands None

Germany SF wearing Belgian

Army overcoats over

their uniforms seize

key bridge at start of

German invasion.

1940 Belgium None

United Kingdom Long Range Desert

Group wore Arab

kaffiyeh and agal,

sometimes wore indigenous coats over

uniforms.

1940–

1943

Libya None. K

agal ado

LRDG a

uniform

Germany SF wearing Russian

Army overcoats, carrying Russian weapons, driving Russian

vehicles, spearhead

German invasion.

1941 Russia None

Germany SF dressed in British

Army uniforms and

indigenous attire,

driving British vehicles, attempt reconnaissance to Suez.

1941 Libya None

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Who What When Where Disp

(if 

United Kingdom SF in German uniforms infiltrated

Tobruk as part of

Operation Agreement. Mission executed with

infiltration by another officer in indigenous attire.

1942 Libya None

United Kingdom SOE-trained,

equipped and transported partisans kill

Obergruppenführer

Reinhard Heydrich,

Reichsprotektor for

Nazi Governor of

Czechoslovakia.

1942 Czechoslovakia Partisan 

commit 

rather th

surrend

Soviet Union Russian partisans and

military operative

groups deployed to

support them fought

in civilian clothing.

1941–

1945

German occupied territory in

Soviet Union.

Partisan

were exe

Survivo

rated by 

postwar

Soviet Union Naval Spetsnaz conduct operations in civilian clothing,

enemy uniforms.

1942–

1945

German-occupied

territory in Soviet

Union.

Same as 

Japan Used English-speaking Germans (French

Foreign Legion) captured in Thailand in

Feb. 1941 dressed in

uniforms resembling

British Khaki to penetrate British lines.

1942 Malaya None.

Germany97 Eight Germans on

sabotage mission

captured in civilian

clothing.

1942 US Tried by 

Commi

violation 

law of w

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Who What When Where Disp

(if 

UK/Australia Operation Jaywick,

combined SOF team

navigated to Singapore in Japanese fishing boat Kofuku

Maru, flying Japanese

flag and dressed in

native sarongs. Attacked and sank seven

ships (38,000 tons).

1943 Singapore Particip

commen

Poland SOE-trained partisans, one dressed in

SS uniform, raided

Pinsk prison near

Brest-Litovsk, freed

prisoners, killed

commandant.

1943 Poland None.

United Kingdom SOE-trained,

equipped and transported partisans sabotaged German heavy

water plant at

Vermok.

1943 Norway None.

Japan98 Formed Indian National Army from

captured Indian

Army personnel, who

fought in Indian

Army uniforms

against British and

Commonwealth

forces in Burma.

1943 Burma Post-wa

soldiers 

Army Ac

Penal Co

than cha

war crim

United Kingdom LT. B.J. Barton, No. 2

Commando, penetrated German defenses wearing

indigenous attire,

killed German

commandant.

1944 Brac (Ageaen) Awarde

Cross.

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Who What When Where Disp

(if 

United Kingdom British officers

dressed as German

soldiers, with partisan assistance, abduct

Major General Karl

Kreipe, Commander,

22nd Panzer Division

on Crete.

1944 Crete None.

United Kingdom SAS wore mixed dress

of British, German

and Italian uniforms,

and civilian clothing.

1944 Aegean None. O

ria Cros

ous othe

United Kingdom,

Australia

Operation Rimau,

combined SF team in

uniform to attack

Japanese ships.

1944 Singapore Capture

from ille

cal expe

tion, or 

executed

United Kingdom Special Boat Squadron(SBS) officer

dressed as priest led

successful attack on

German units.

1944 Nisiros (Aegean) None.

United Kingdom SOE-trained/

equipped partisans

sabotage and sink

ferry carrying German heavy water.

1944 Norway None.

United States Office of Strategic

Service (OSS) teams

enter Nazi-occupied

Europe, conduct operations in civilian

clothing.

1944 France, Yugoslavia, Albania, Bulgaria, Rumania

None.

United States US Naval Group

China wearing civilian clothing collected

intelligence and executed direct action

missions against

Japanese.

1944 China None.

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Who What When Where Disp

(if 

United States Army Rangers dress

as German soldiers to

penetrate and fight in

Aachen (OSS

operation).

1944 Germany None.

United States

United Kingdom/

Host nation

Jedburgh teams operate post–D-Day in

support of partisans,

not always in uniform.

1944–

1945

France, Italy, Yugoslavia, Albania,

Netherlands

None.

Germany German Kommando

unit dressed in US

uniforms, driving US

vehicles, penetrate

US lines in Ardennes.

1944 Belgium Membe

in US un

executed

comman

Skorzen

others a

war crim

United Kingdom Operation Tombola

SAS operation with

Italian partisans. Civilian attire with

mixed uniform.

1945 Italy None.

Germany Partisan operations

by German SF in civilian clothing.

1944–

1945

Germany None.

United States OSS team in German

uniforms to conduct

Operation Iron Cross

to execute subversion

missions and capture

or kill senior Nazi

officials.

1945 Germany Mission 

by end o

United States OSS Operations

Groups operate in US

uniforms, indigenous

attire, Chinese Puppet Army uniforms.

1945 China None.

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Who What When Where Disp

(if 

Indonesia (I)99 Soldiers dressed in civilian attire while attacking civilian

objects.

1965 Singapore Capture

tried un

mestic l

Indonesia (II)100 Soldiers in civilian attire captured while

on mission to attack

civilian objects.

1965 Singapore Capture

tried un

mestic l

United States MACV (SOG) teams

wore non-standard

uniforms operating

in denied areas.

1965–

1971

Southeast Asia None.

United States101 SF soldier fought in

civilian clothing in

response to Tet Offensive assaults.

1968 South Vietnam Awarde

Honor.

United States102 Navy SEAL officer

switched from uniform to indigenous

attire to fight way in

and out of encircled

aircrew to rescue him.

1972 South Vietnam Awarde

Honor.

Israel Operation Aviv

Neurim, IDF SF team

dressed in civilian

clothing raids PLO

Beirut targets.

1973 Lebanon Team co

Ehud Ba

tually be

IDF Chi

Israel Pr

Ministe

Israel Entebbe rescue force

includes commandos

dressed as Uganda

soldiers.

1976 Uganda Mission 

in rescui

aircrew a

gers held 

United States Team for rescue of

US hostages in

AMEMB Tehran

wore non-standard

uniforms approved

by Joint Chiefs of

Staff, President.

1980 Iran Mission 

due to h

failures.

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Who What When Where Disp

(if 

Soviet Union, East

Germany (GDR)

Spetsnaz dressed in

civilian clothing or

NATO uniforms

trained/planned to

penetrate/operate in

NATO rear, attack

high-value targets.

Cold

War

NATO nations Never ex

Soviet Union Spetsnaz dressed in

civilian clothing neutralized senior

Afghan officers, then

secured Kabul airport

wearing Afghan

Army uniforms.

1979 Afghanistan None.

North Korea Special Forces infiltrate South Korea

wearing Civilian

clothing or ROK

uniforms.

1950–

1988

Republic of

Korea

Treated 

when ca

Israel Sarayet Maktal wearing non-standard uniforms carry out

successful direct action

mission to kill Abu Jihad, PLO military

commander, in Tunis.

1988 Sidi-bou-Said,

Tunisia

None.

Panama 7th Infantry Company

(Macho de Monte),

Panamanian Defense

Forces (PDF), fought

in civilian attire of

shorts, t-shirts, and

straw hats.

1989 Panama (Operation Just Cause)

Capture

treated a

of war b

United States CINC’s SF personal

security detail wore

civilian attire.

1990–

1991

Saudi Arabia None.

United Kingdom/

United States

SF wore kufiyah/agal

and indigenous coats

over uniforms during

operations in Iraq.

1991 Iraq None.

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Notes

1. Professor Parks holds the Law of War Chair, Office of General Counsel, Dep

Defense. He is a former Charles H. Stockton Professor of International Law at the 

College. A version of this paper was published in 4 Chicago Journal of Internationa

2003). The views expressed herein are the personal views of the author, an

necessarily reflect an official position of the Department of Defense or any other a

United States Government.

2. See, for example, Michelle Kelly & Morten Rostrup, Coalition soldiers in Afgh

endangering aid workers, THE GUARDIAN (London), Feb. 1, 2002, at 19.

3. This article offers a subtle distinction. Special Forces is limited to US Army Sp

assigned to Special Forces Groups or detachments, Naval Special Warfare (SEALs 

Boat units), and Air Force Special Tactics Units, and their coalition counterparts, w

Operations Forces includes Special Forces, Psychological Operations units, and 

Affairs units. There are members of Army Civil Affairs Units who are Special Forces s

distinction offered in this article is one of unit assignment and mission(s).

4. The section that follows was prepared from personal interviews with Special Forc

and materials provided by the Department of Military Strategy, Planning and Ope

Army War College, US Army Peacekeeping Institute, and the Department of Stat

documents are in the author’s personal files. In particular, see US Army Peacekeepi

Civil Military Operations: Afghanistan (2003).

5. Special Forces’ wear of Northern Alliance attire was undertaken at the insistence 

Alliance General Abdul Rashid Dostum, commander of its 8,000-man Junbish-e-Milli

Northern Alliance army. President William J. Clinton ordered the prompt withdrawal 

from Somalia following the October 3, 1993 Battle of Mogadishu in which eighteen 

Task Force Ranger died. See MARK BOWDEN, BLACK HAWK DOWN:ASTORY OF MO

(1999). General Dostum feared US withdrawal from Afghanistan if confronted with U

Multiple Northern Alliance bodyguards were assigned to each US Special Forces soldier

days of fighting, General Dostum told some of his subordinates in Mazar-e-Sharif that h

them if they allowed their US charges to be hurt or killed. Once US and coalition forces 

they were not casualty averse, the bodyguard standards were relaxed. SF wear of th

Alliance pakol, tribal scarves, and beards prevented them from being singled out for ta

Qaeda/Taliban personnel. Wearing indigenous attire also aided SF rapport with th

Alliance forces it supported. Special mission unit Special Forces, whose identities are cl

wore beards to reduce risk of media/public identification.

The risk is not new. In 1915, serving in the Arabian Peninsula as a military advise

chief Abdul Aziz Ibn Saud, British Army Captain William H. I. Shakespear eschewed 

attire. During a battle between the forces of Ibn Saud and pro-Turkish tribal leader 

Shakespear was killed by an enemy sniper when his British Army uniform singled h

identified him as a high-value target. See JEREMY WILSON, LAWRENCE OF ARABIA 1

Knowledge of the circumstances of Captain Shakespear’s death prompted T.E. Lawr

Arab clothing as he lead the Arab Revolt against Ottoman rule that began June 5, 

incorporate the lesson into his “Twenty-Seven Articles” (Articles 18–20) publishe

1917 as lessons learned. Id. at 1043, n.4.

Indigenous personnel over-protection of US Special Forces personnel is not ne

Strategic Services (OSS) Operational Team Muskrat/Bear experienced the same phe

China in 1945. FRANCIS B. MILLS, ROBERT MILLS,&JOHN W. BRUNNER, O

OPERATIONS IN CHINA 300, 321 (2002).

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Pashtun (Taliban) versus Tajik/Uzbek (Northern Alliance) differences in attire. Sp

supporting Southern Alliance forces were confronted with a more difficult situatio

Alliance soldiers looked and dressed exactly like the Taliban. Afghan Taliban dressed 

attire since they were from the Pashtun tribes. Other Taliban, from Pakistan pre

wore Pakistani attire.

In the south, Special Forces wear of indigenous attire and its distinguishing 

encouraged by Hamid Karzai, again to lower US visibility. Accordingly, these Sp

wore native tops over their DCU. After three days, the Special Forces abandoned the 

tops for the balance of their tenure, their leader having convinced Karzai that as eve

they were American, there was no reason to pretend otherwise. It also gave the so

access to their DCU pockets and load-bearing equipment.

6. Because neither Taliban/al Qaeda nor Northern or Southern Alliance forces wor

visual friend or foe identification at a distance was a challenge. Third Battalion, F

Forces Group, The Liberation of Mazar-e Sharif: 5th SF Group UW in Afghanistan, 

WARFARE 34, 36 (June 2002). However, this differs from dressing as civilians for th

using the civilian population or civilian status as a means of avoiding detection o

status. From the standpoint of possible violation of the law of war, the issue is one 

indicated in the main text, use of non-standard uniform (Massoud pakol and/or sca

Special Forces personnel was to appear as members of the Northern Alliance rat

conspicuous as US soldiers and, as indicated in the preceding footnote, high-value 

7. In Are Soldiers in Civilian Clothes Protected Under Geneva-Hague? (unpublished pa

31, Lieutenant Colonel H. Allen Irish provided the following official rationale for the d

The need to reduce the potential for violence that may be directed at CJC

personnel engaged in humanitarian relief efforts in Afghanistan was the critica

mandating the decision [to operate in civilian clothing]. In uniform, [CJC

personnel may be targeted since they could be confused as being engaged in o

combat operations instead of providing humanitarian assistance. . . . The tra

wear of civilian clothes by unconventional forces for the purpose of human

assistance is time-proven.

This rationale is historically inaccurate and legally flawed. Civil Affairs person

unconventional forces. Civil Affairs personnel performing humanitarian as

operations short of international armed conflict have been authorized to wear civili

Civil Affairs personnel in international armed conflict have worn standard uniform

Army and Marine Corps Civic Action (Civil Affairs) personnel operating in the 

Vietnam (1964–1971) wore standard field uniforms in threat circumstances simi

faced by Civil Affairs personnel in Afghanistan. US Army Civil Affairs operating in 

Operation Just Cause (Panama, 1989–1990) and Operations Desert Shield/De

Provide Comfort (1991) wore standard BDU. These operations were significantly di

Special Forces missions in denied territory.

From a law of war standpoint, neither “force protection” nor a desire to distingu

performing “offensive duties” from those engaged in humanitarian assistance 

military necessity for soldiers to wear civilian attire in international armed conflict

With respect to the force protection argument, US Army Civil Affairs doctrine in 

at the time of the “force protection” decision (and subsequently approved) is to the c

Army Field Manual 3-05.401, Civil Affairs Tactics, Techniques and Procedures, Tab

40, indicates that Civil Affairs personnel in less than full Battle Dress Uniform, co

combat equipment, to include Kevlar load bearing vest and individual weapon, r

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fratricide.”

8. Unlike their Special Forces counterparts, Civil Affairs personnel in indigenous a

necessarily wear the Massoud pakol or scarf. Whether wearing western attire or 

attire, some concealed their weapons.

9. Convention Relative to the Protection of Civilian Persons in Time of War, Gene

1949, art. 10, 75 U.N.T.S. 287; reprinted in DOCUMENTS ON THE LAWS OF WAR 

Roberts & Richard Guelff eds., 3d ed. 2000). Article 10 provides: “The provisions of 

convention constitute no obstacle to the humanitarian activities which the In

Committee of the Red Cross or any other impartial humanitarian organization ma

the consent of the Parties to the conflict concerned, undertake for the protection of civi

and for their relief.” [Emphasis added.]

10. The NGO civilian clothing complaint was directed at Civil Affairs units and per

Speaking at a Harvard University Carr Center Symposium, Army-Navy Club, W

October 18, 2002, Nicolas de Torrente, representative of the NGO Médecins san

(Doctors Without Borders [MSF]), made it clear that the NGO complaint was directe

Army Civil Affairs personnel operating in proximity to NGO. He emphasized that MS

objection as to the attire of US or Coalition Special Forces engaged in counter-terroris

against Taliban/al Qaeda. [Personal knowledge of the author, who was present.]

During the question and answer period, this author offered the counterargumen

personnel working in proximity to uniformed CA personnel might be at greater r

targeted because of an appearance of overt support for US operations, or as collater

incidental to al Qaeda attacks on uniformed Civil Affairs personnel performing hu

relief operations. Mr. Torrente acknowledged the counterargument before statin

objected to the presence of any military personnel in proximity to MSF activities.

11. Six months later the Commanding General, US Army Special Forces Command 

issued an order re-enforcing standard uniform and grooming practices that received 

coverage. See, for example, Kitty Kay, Close shave for special forces, TIMESONLINE, (Sep

available at http://www.timesonline.co.uk/article/0,,3463-413550,00.html; Mike Moun

for special ops forces in Afghanistan, CNN.COM/WORLD, (Sept. 13, 2002), availab

www.cnn.com/2002/WORLD/asiapcf/central/09/12/afghanistan.clean/; and Headquar

Afghanistan Memorandum (Sept. 6, 2002), Subject: Uniform and Appearance Stand

Rescinding of Relaxed Grooming Standards. According to the Staff Judge Advocate f

Special Forces Command, the commander's intent was for field commanders to 

appropriateness of continued wear of non-standard uniforms and beards, particularly 

personnel not engaged in combat missions. This is borne out by reports the author re

special mission units judge advocates, who advised that bearded special mission unit 

non-standard uniforms subsequently briefed the Combatant Commander (C

USCENTCOM). The USASFC order was a general tightening of discipline and unifor

where there was no military necessity for wearing either beards or non-standard unifor

Special Mission unit personnel operating against al Qaeda grew beards for seve

(1) a dearth of water for daily shaving; (2) for rapport with and to appear like the 

personnel with whom they were serving; and (3) to prevent their identification and 

them, and their families, from terrorist attacks. The latter rationale is not new. In 

Lieutenant Colonel T.E. Lawrence was publicly identified as a leader in the Arab 

biographer explains:

As soon as these reports began to appear, the Censorship and Press Comm

London issued a warning to editors which read: “The Press are earnestly reques

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officer is not known by sight to the Turks, who have put a price upon his head, 

photograph or personal description of him may endanger his safety.

WILSON, supra note 5, at 552.

In Lawrence's case and the World War II cases, identification risks were lim

battlefield. With ease of travel and the global threat of terrorism, the identity of spe

personnel is classified to protect them and their families. This practice has existed fo

see, for example, photographs contained in PETER RATCLIFFE, NOEL BOTHAM 

HITCHEN, EYE OF THE STORM (2000), where the faces of current members of 22 Br

Air Service (SAS) are obscured.

12. The section that follows (including the text of this footnote) was prepared fro

provided by the Department of Military Strategy, Planning and Operations, US 

College, US Army Peacekeeping Institute, the Department of State, and AHM

TALIBAN: MILITANT ISLAM, OIL AND FUNDAMENTALISM (2001).

Arguments with respect to the Taliban militia (as they called themselves) dep

slightly on who and when. The Taliban was a loose amalgamation of occasional and dis

and other factions. It was a faction engaged in a civil war in a failed State that owed 

strength and origin to the Pakistani Intelligence Service. It exercised none of the usual a

government, other than the negative one of closing down all schools. The Taliban m

claimed to be the Afghanistan government or armed forces. The Taliban had no unifo

forces. The Taliban was structured around tribes rather than as a military unit, re

allegiance of other tribes or personnel from other tribes and private citizens through 

alliances, defections, bribery, and conscription, while also relying on foreign voluntee

Since the collapse of the Soviet Union and the break-up of Yugoslavia, the intern

has been whether an entity is permitted to sit behind the nameplate in the United N

in other international fora) rather than the previous test of whether it controls 

territory, etc. The Taliban was never permitted to represent Afghanistan at the Unite

in other international fora.

The UN Security Council never recognized the Taliban as the representative of A

In a number of UN Security Council resolutions issued against the Taliban, there wa

as to whether a binding resolution could be issued against a non-State entity. Th

Council resolutions included 1189 (1999), 1267 (1999) and 1363 (2001). Secur

resolution 1189 referred to “the continuing use of Afghan territory, especially areas c

the Taliban;” hence the Security Council distinguished between the Taliban and Af

Prior to September 1, 2001, the Taliban was recognized only by Saudi Arabia, P

the United Arab Emirates. All three withdrew their recognition following the terr

Stated another way, 98.5% of governments, including the United States, did not re

Taliban as the government of Afghanistan prior to the September 11, 2001, al Qaeda 

was it recognized by the League of Islamic Nations, nor by Switzerland (depositary o

Conventions). The Taliban was not invited to the 1999 Conference of Red Cro

Crescent Societies as the Afghanistan representative. Had it been invited, it is likely 

other governments would have prevented it from occupying the Afghanistan delega

was the case with respect to the FRY in Yugoslavia. By the time coalition operatio

Afghanistan, no government recognized the Taliban as the Government of Afghani

Once US and allied operations began in Afghanistan in October 2001, al Qae

command of most Taliban militia units. As the battle continued, most Taliban withd

normal areas of Afghanistan, leaving the fighting to al Qaeda and foreign members of 

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abandonment of Kabul (November 12, 2001) and US capture of Kandahar (December 

A leading authority, in discussing guerrillas, summed up the Taliban militia and al Qa

The law of nations, apart from the Hague Regulations . . . denies belligerent qualif

to guerrilla bands. Such forces wage a warfare which is irregular in point of ori

authority, of discipline, of purpose and procedure. They may be constituted at the 

a single individual; they lack uniforms; they are given to pillage and destruction; th

few prisoners and are hence disposed to show slight quarter.

CHARLES CHENEY HYDE, INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APP

UNITED STATES 1797 (2d ed. 1951).

13. See, e.g., the President’s Military Order of Nov. 13, 2001, Detention, Treatment, 

Certain Non-Citizens in the War on Terrorism, § 1(a), 66 Fed. Reg. 57,833 (2001), also 

www.whitehouse.gov/news/releases/2001/11/20011113-27.html (“Military Order”).

14. Press Briefing by Ari Fleischer, Feb. 7, 2002, available at http://www,whit

news/releases/2002/02/20020207-6.html; Katherine Q. Seelye, In Shift, Bush Says G

Fit Taliban Captives, NEW YORK TIMES, Feb. 8, 2002, at A1. The issues are summar

C. Yoo & James C. Ho, The Status of Terrorists, 44 VIRGINIA JOURNAL OF INTERNAT

207 (2003).

15. Convention Relative to the Treatment of Prisoners of War, Geneva, Aug. 1

U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 9, at 244

16. DOD Directive 5100.77 (Dec. 9, 1998), Subj: DOD Law of War Program, para. 

5810.01A (Aug. 27, 1999), Subject: Implementation of the DOD Law of War Program, 

this reason, the decision was announced that the United States would apply the law of w

in international armed conflict to non-State actors in Operation Enduring Freedom. 

from interview with Charles Allen, Deputy General Counsel for International 

Department of Defense, Dec. 16, 2002, Crimes of War Project, available at: http://www

.org/onnews/news-pentagon-trans.html. This announcement was greeted with aston

some international law experts. See, for example, Marco Sassoli, Query: Is There a Status 

Combatant”?, which is Chapter V in this volume, at 57. Comments similar to Professor S

offered privately to the author by his foreign military counterparts. As will be indicated, t

was to use the law of war applicable in international armed conflicts as a template for U

Operation Enduring Freedom.

17. Enforcement of International Humanitarian Law: Challenges for the UN Secu

and the USA, US Institute of Peace, Mar. 1, 2001. [Personal knowledge of the auth

present.]

18. Supra note 15.

19. Id. at 245–46.

20. Historically, regular military force entitlement to prisoner of war status was a

unqualified. Article 49 of US General Orders No. 100, Instructions for the Gov

Armies of the United States in the Field (1863)(the Lieber Code), states: “All 

whatever species of arms . . . all disabled men or officers on the field or elsewhere, if 

are prisoners of war, and as such exposed to the inconveniences as well as ent

privileges of a prisoner of war.” Reprinted in THE LAWS OF ARMED CONFLICT: A COL

CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 1 (Dietrich Schindler & 

eds., 4th ed. 2004) [hereinafter THE LAWS OF ARMED CONFLICT]. Similarly, COMM

THE GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, 

1949 46–47 (Jean S. Pictet ed., 1960) states: “Once one is accorded the status of bellig

bound by the obligations of the laws of war, and entitled to the rights which they 

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to be treated accordingly.”

Entitlement to prisoner of war status for members of the armed forces existed w

condition in treaty law. Article 1 to the Annex to Convention (IV) Respecting th

Customs of War on Land, The Hague, Oct. 18, 1907, 36 Stat. 2277, T.S. 539, 1 Beva

reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 9, at 73, and Article 4

supra note 15. WILLIAM E. S. FLORY, PRISONERS OF WAR 27–28 (1942) states: “Perso

the regular army, navy and air force of a belligerent state have rights as prisoners o

they fall into the hands of the enemy. This rule is part of customary international la

treaty law.”

Similarly, G.I.A.D. Draper, The Present Law as to Combatancy, in REFLECTIONS O

ARMED CONFLICTS: THE SELECTED WORKS ON THE LAWS OF WAR BY THE LATE 

COLONEL G.I.A.D. DRAPER, OBE 197 (Michael A. Meyer & Hillairie McCoubrey 

comments:

Article 1 of the Hague Regulations, and its four express and two implicit st

conditions for volunteer and militia corps, represented a triumph for the “m

faction at the Hague Peace Conference. Those four express conditions

commander responsible for his subordinates; (ii) distinctive sign; (iii) open car

arms and (iv) compliance with the Laws of War in their operations, enable an ex

of the class of the privileged belligerent by way of identification to the normal f

of military armed forces. This identification is not absolute. Members of the arme

who persistently violate the Law of War do not lose their POW status upon captu

effect of Articles 4, 5 and 85 of the Geneva (POW) Convention, 1949, makes th

[emphasis provided].

Denial to regular forces (including special operations forces) of prisoner of war st

protections of the Convention Relative to the Treatment of Prisoners of War, Gen

1929, reprinted in THE LAWS OF ARMED CONFLICT, supra, at 421, predecessor to 

GPW, were held to be war crimes by post–World War II tribunals, including in 

British and American military personnel were summarily executed. On October 

response to British special forces missions, Adolf Hitler issued his Führerbefehl (“

Order”), which declared that Allied special forces, even if uniformed members o

forces, were to be “slaughtered to the last man” (that is, denied quarter, in violatio

23(d), Annex to the 1907 Hague Convention IV) or, if captured, denied prisoner o

and summarily executed. The “Commando Order” was declared a war crime at 

International Military Tribunal, Nazi Conspiracy and Aggression, Opinion and J

(1947). Its implementation resulted in war crimes convictions by US military trib

Dostler, 1 Law Reports of Trial of War Criminals, 22–34 (HMSO, 1945), and by Bri

courts (In re Falkenhorst, VI War Crimes Reports (HMSO, 1946), and Trial of Ka

Ten Others, 5 Law Reports of Trials of War Criminals, 39–44 (HMSO, 1946).

In the Dostler case, two officers and thirteen enlisted men from Unit A, 1st Cont

Operational Group, Italy) were captured March 22, 1944, and executed under the 

Major General Dostler, even though they had been captured in uniform. Dostle

convicted and executed by firing squad following World War II; In re Dostler, and p

evidence in author’s possession. Other OSS Operational Groups sewed Seventh 

patches on their left shoulder to conceal their OSS identity. Ian Sutherland, The OSS 

Groups: Origin of Army Special Forces, 3 SPECIAL WARFARE 2, 3 (June 2002).

21. Yoo & Ho, supra note 14, argue that the four criteria contained in Article 4A(2

prerequisites to prisoner of war status for regular force combatants. That view is no

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Draper, supra note 20, at 29; and Jiøí Toman, The Status of Al Qaeda/Taliban Detaine

Geneva Conventions, 32 ISRAELI YEARBOOK ON HUMAN RIGHTS 271 283, 285 (2002

22. An element of inconsistency with customary and treaty law evolved within the U

during World War II as a result of dicta in the opinion by the United States Supreme 

parte Quirin, 317 US 1 (1947), involving the trial of eight Nazi saboteurs capture

clothing in the United States. Changes in treaty law and US practice since Quirin f

part have returned US interpretation to the pre-Quirin position, albeit mudd

experience and two subsequent Singapore cases that followed Quirin.

Quirin is lacking with respect to some of its law of war scholarship. Review of 

citation of paragraphs of War Department, Field Manual 27-10, Rules of Land W

Department, 1914 and 1940) suggests that the Court apparently confused provision

civilians taking a direct part in hostilities, who would be unprivileged belligerent

related to actions by military personnel, who remain entitled to prisoner of war statu

correctly stated, citing paragraphs 83 and 84 of US Army General Orders No. 100 

soldiers “disguised in the dress of the country . . . if found lurking about the lines o

are treated as spies, and suffer death.” This provision is consistent with Article 29 of t

Hague Convention IV. However, the Court failed to note paragraph 203 of Field Ma

Rules of Land Warfare (1940), which states that spies are not punished as “violators 

war.” Rather, the Court erred in stating “the absence of uniform...renders the offen

trial for violation of the laws (sic.) of war.” The statement has no basis in the law 

contrary to Article 31 of the Annex to the 1907 Hague Convention IV (a treaty t

United States was a party during World War II), which states that “A spy who, after r

army to which he belongs, is subsequently captured by the enemy, is treated as a pris

and incurs no responsibility for his previous acts of espionage.” Were absence o

violation of the law of war, criminal liability would remain even after a soldier return

his own lines. Similarly, a commander who orders military personnel to carry out 

civilian clothing would incur no criminal liability for his order. JAMES MALONEY SP

POWER AND WAR RIGHTS 287 (1924).

For a summary of the German operation, trial of the saboteurs, and critical analys

see LOUIS FISHER, NAZI SABOTEURS ON TRIAL (2003).

Two cases from Singapore follow the reasoning of Quirin. The facts of each ar

peacetime, Indonesian Marines in civilian clothing entered Singapore on sabotage m

courts determined that while entitled to prisoner of war status under Article 4A(

dubious finding in and of itself, that entitlement was forfeited when the soldiers ex

missions in civilian clothing. In both cases the defendants were charged with d

violations rather than violation of the law of war. Stanislaus Krofan & Anoth

Prosecutor, Federal Court of Criminal Appeal, 1966, 1 Malayan Law Journal (1967), 

bin Haji Mohamed Ali and Another v. Public Prosecutor, Privy Council, 1968, 1 A

23. Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflict (Protocol I), 1125 U.N.T.S. 3

DOCUMENTS ON THE LAWS OF WAR, supra note 9, at 422..

24. See, for example, Trial of Lieutenant General Shigeru Sawada and Three Others, 

(HMSO, 1948) (denial of prisoner of war status to and execution of eight US Arm

personnel); and In re Dostler, supra note 20.

US military personnel captured in uniform during the Vietnam war were ille

prisoner of war status by their captors and routinely tortured. GUENTHER LEWY, A

VIETNAM 332–34 (1978); Howard S. Levie, Maltreatment of Prisoners of War in Viet

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() (

ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICAN PR

WAR IN SOUTHEAST ASIA, 1961–1973, at 188–194, 199–207 (1998); and VERNON E. 

LONG ROAD HOME: US PRISONER OF WAR POLICY AND PLANNING IN SOUTHEAST A

(2000). Three representative personal accounts detailing the torture and other viola

GPW are ROBINSON RISNER, THE PASSING OF THE NIGHT (1973); JEREMIAH A. DEN

HELL WAS IN SESSION (1976); and GEORGE E. DAY, RETURN WITH HONOR (1989).

US and coalition prisoners of war captured by Iraq during the 1991 war to libe

were not provided prisoner of war treatment, and were routinely tortured. US De

Defense, Final Report to Congress: Conduct of the Persian Gulf War 619–620 (1992

of the Army, Report on Iraqi War Crimes (Desert Shield/Desert Storm), (1993); Un

Security Council S/25441 (Mar. 12, 1993).

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

26. For example, US War Department Field Manual 27-10, Rules of Land Warfar

4, states: “The enemy population is divided in war into two general classes, known a

forces and the peaceful population. Both classes have distinct rights, duties, and disa

no person can belong to both classes at one and the same time.”

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

The division of the enemy population into two classes, the armed forces a

peaceful population, has already been mentioned. It is one of the purposes of th

war to ensure that an individual must definitely choose to belong to one clas

other, and shall not be permitted to enjoy the privileges of both. . . .

Similarly, see War Office, The Law of War on Land, being Part III of the Manua

Law, 30, paragraph 86 (War Office, 1958), which is the current British law of w

“Belligerent” is the classical term. More recently “belligerents” have been ref

“combatants,” as medical personnel and chaplains are part of the belligerent forces b

combatants.

27. The levée en masse which, as defined in Article 2, Annex to Hague Convention 

supra note 20, is “the inhabitants of a territory not under occupation who, on the app

enemy, spontaneously take up arms to resist the invading troops without having 

organize themselves.” Treaty recognition of the levee en masse constituted a f

relaxation of the principle of distinction.

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

29. JAMES MALONEY SPAIGHT, WAR RIGHTS ON LAND 37 (1911).

30. FRITS KALSHOVEN, THE LAW OF WARFARE 31 (1973).

31. Article 23, paragraph (b) of the Annex to the 1907 Hague Convention IV, sup

states that it is prohibited “to kill or wound treacherously individuals belonging to 

nation or army.”

32. Article 24, 1907 Hague Convention IV, id., states: “Ruses of war and the emp

measures necessary for obtaining information about the enemy and the country are 

permissible.” See also Paragraph 51, US Army Field Manual 27-10, at 101–102 (195

of War on Land.

33. Where soldiers in international armed conflict lacked proper uniforms through 

their own, they were expected to wear a distinctive emblem to distinguish themselv

civilian population. OPPENHEIM, supra note 28, at 429–430.

34. The negotiating record exception is discussed infra. Two treaty exceptions exis

GPW, supra note 15, states in part:

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and which do not entail any violence against life or limb, such as offenses agains

property, theft without intention of self-enrichment, the drawing up or use 

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

[Emphasis added].

35. Richard R. Baxter, The Juridical Basis of the Distinction between Lawful Com

Unprivileged Belligerent 47–51 (1959) (unpublished thesis, The Judge Advocat

School, US Army).

GPW, Article 4A(2) constituted acknowledgement of the legitimacy of World Wa

warfare in its amendment of previous treaty categories to “Members of other 

members of other volunteer corps, including those of organized resistance move

[Emphasis added.] This was a further relaxation of the principle of disti

COMMENTARY , supra note 20, at 52–61.

36. US Department of War Manual, Rules of Land Warfare (1914, Corrected to Apr

paragraph 22, states: “The distinctive sign.—This requirement will be satisfied by the 

uniform or even less than a complete uniform.” See also ALLAN ROSAS, THE LEGAL 

PRISONERS OF WAR:ASTUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABL

CONFLICT 349 (1976).

37. ROSAS, supra note 36, at 349. (“[T]he concept of uniforms has never been expli

in international law.”)

38. COMMENTARY, supra note 20, at 52. SPAIGHT, supra note 29, at 57, emph

‘distinctive device’ does not mean a uniform.”

39. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO TH

CONVENTIONS OF 12 AUGUST 1949, at 468 (Yves Sandoz et al. eds., 1987). The ICRC C

does not reflect the complexity of the discussions within the Working Group. As three 

Conference participants indicate in their separate commentary, the Working Group 

considerable difficulty with the practical details of this issue. See MICHAEL BOTHE, KA

& WALDEMAR SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 205–206 (198

40. HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLIC

(Vol. 59, US Naval War College International Law Studies). SPAIGHT, supra not

argued that the distinctive device “must be fixed—externally, so as not to be 

concealed at will.” This is not consistent with prior or subsequent practice. The o

regarding a distinctive device was expressed by Francis Lieber in his “Guer

Considered with Reference to the Laws and Usages of War.” In it he noted “Nor 

difficult to adopt something of a badge,easily put on and off, and to call it a uniform”. 

HARTIGAN, LIEBER’S CODE & THE LAW OF WAR 40 (1983). [Emphasis added.]

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

At what distance should the sign be recognizable? The German authorities dem

in 1870 that French irregulars should be distinguishable at rifle range. This, 

eminent English jurist, is “to ask not only for a complete uniform but for a consp

one,” [citing WILLIAM EDWARD HALL, INTERNATIONAL LAW 523 (5th ed. 

When rifles are sighted to 2,000 yards and over, the German requirement is 

unreasonable. If the sign is recognizable at a distance at which the naked 

distinguish the form and color of a person’s dress, all reasonable requirements 

to be met.

At the commencement of the Russo-Japanese War, the Russian Government ad

a note to Tokio (sic), stating that Russia had approved the formation of cert

corps composed of Russian subjects in the seat of war, and that these corps wou

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Government cannot consider as belligerents the free corps mentioned in the 

Note, unless they can be distinguishable by the naked eye from ordinary people o

the conditions required for militia or volunteers by the Hague Réglement.” [Em

in SPAIGHT]. Similarly, US War Department Manual, Rules of Land Warfar

note 36, followed the Japanese Government’s test:

The distinctive sign.—This requirement will be satisfied by the wearing of a unif

even less than a complete uniform. The distance that the sign must be visibl

vague and undetermined and the practice is not uniform. This requirement 

satisfied certainly if the sign is “easily distinguishable by the naked eye of ordinary 

at a distance at which the form of the individual can be determined. [Emphasis a

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

The term “unenhanced vision” is utilized in Article 1 of the Additional Protocol 

Laser Weapons (Protocol IV) to the Convention on Prohibitions or Restrictions on 

Certain Conventional Weapons Which May be Deemed to be Excessively Injurious 

Indiscriminate Effects, Oct. 12, 1995, Doc. CCW/CONF.I/7 (1995), 35 INTERNATIO

MATTERS 1218. It means normal vision without enhancements, such as binocula

corrected to 20/20. For its negotiating history, see Headquarters, Department of the A

of The Judge Advocate General, DAJA-IO Memorandum of Law (Dec. 20, 1996), Subj

Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol. The memora

notes the intent of its drafters:

Unenhanced vision means “the naked eye or . . . the eye with corrective eyesight d

such as glasses or contact lens. It does not mean binoculars, a telescopic sight, nigh

goggles or similar devices used to increase visual capability above that require

ordinary person to perform routine tasks, such as reading or driving an automobi

42. As noted at the text accompanying note 99, infra, British Special Forces in Nor

World War II, and British and US Special Forces operating behind enemy lines in Ira

1990–1991 war to liberate Kuwait, frequently wore indigenous overcoats over th

counter one of the coldest winters on record, but also as a ruse to reduce immedi

identification at a distance by Iraqi military units.

43. Treaty negotiation records suggest participants did not rely upon “carrying ar

for regular forces. This is one of the four prerequisites for militias or partisans seeking 

and prisoner of war status. The phrase “carrying arms only” has itself been plagued 

agreement as to its meaning. See, for example, W. Hays Parks, Air War and the Law 

AIR FORCE LAW REVIEW 1, 84 (1990) (the debate with regard to Article 44(3)

Protocol I). It also was of limited to no value in Afghanistan, as most Afghan civ

military weapons. Similarly, following cessation of formal combat operations in I

2003), private Iraqi citizens were permitted to retain Kalashnikov AK-47 or AK-7

weapons in their homes for personal protection. Coalition Provisional Authority Or

3 (May 23, 2003). [Copy in author’s personal files.]

44. As summarized in this memorandum, there is substantial State practice of Sp

wear of civilian clothing or non-standard uniforms. As an example of the fourth c

personal security detail for Commander in Chief, US Central Command 

Commander], during Operations Desert Shield and Desert Storm (1990–91), wore c

on the basis that VIP protection from terrorist attack is not a traditional milita

(Attack by conventional Iraqi forces was not regarded as a viable threat.) The perso

detail worked in close proximity to the Combatant Commander, who wore standar

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y y p

soldiers. The civilian attire of the personal security detail was dictated in large mea

nation concerns. Their immediate proximity to the commander and uniformed Sau

and their physical separation from the civilian population was consistent with the 

distinction. No reasonable case could be made that their actions were tantamoun

[Personal knowledge of author and photograph in author’s files.]

45. Diplomatic Conference on the Reaffirmation and Development of In

Humanitarian Law Applicable in Armed Conflicts. Convened by the Swiss Governm

the Conference formally adopted Additional Protocols I and II on June 8, 1977.

46. On January 28, 1987, President Ronald Reagan informed the United States 

Additional Protocol I would not be submitted for Senate advice and consent to 

Message of the President of the United States Transmitting the Protocol II Addit

Geneva Conventions of August 12, 1949, and Relating to the Protection of 

Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, 100th C

Session (1987); 26 INTERNATIONAL LEGAL MATERIALS 561 (1987).

47. US Department of State, 3 Cumulative Digest of United States Practice in Intern

1981–1988, at 3434–3435. See also DOD Law of War Working Group, Memorandum 

Counsel (International), OSD (May 9, 1986), Subject: 1977 Protocols Additional to 

Conventions; Customary International Law Application. See also Michael J. Matheson

States Position on the Relation of Customary International Law to the 1977 Protocols Add

1949 Geneva Conventions,” 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONA

POLICY 419 (1987), based upon a speech Mr. Matheson made at an American Universit

Mr. Matheson’s statements with regard to the provisions of Additional Protocol I reg

United States as customary law are based upon the DOD Law of War Wor

memorandum, cited above. Thereafter he expresses his personal opinion that othe

“should be observed and in due course [may be] recognized as customary law, even if t

already achieved that status and their relationship to the provisions of Protocol I.” Id. a

48. BOTHE, PARTSCH & SOLF, supra note 39, at 256–257. The new rules set forth i

paragraph 3, were among those found unacceptable to the United States in taking 

against ratification. Paragraph 3 provides:

In order to promote the protection of the civilian population from the ef

hostilities, combatants are obliged to distinguish themselves from the civilian 

population while they are engaged in an attack or in a military operation prepar

an attack. Recognizing, however, that there are situations in armed conflicts 

owing to the nature of the hostilities an armed combatant cannot so dist

himself, he shall retain his status as a combatant, provided that, in such situat

carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while he is engaged in a m

deployment preceding the launching of an attack in which he is to particip

Acts which comply with the requirements of this paragraph shall not be consid

perfidious. . . .

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

[T]his provision does not seem to imply that all members of regular forces have 

uniforms in all situations in order to benefit from prisoner-of-war status. On th

hand it serves as a reminder that the uniform continues to be the normal way for

combatants to distinguish themselves from the civilian population. [Emphasis a

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In the 1976 report of Committee III [of the Diplomatic Conference] it is stat

“regulars who are assigned to tasks where they must wear civilian clothes, as ma

case, for example, with advisers assigned to certain resistance units, are not requ

wear the uniform when on such assignments.” CDDH/236/Rev. 1, at 29.

See also, PROTECTION OF WAR VICTIMS: PROTOCOL I TO THE 1949 GENEVA CO

(Vol. 2) 475 (Howard S. Levie ed., 1980).

50. The uniform requirement has not been codified for military operation

international armed conflict.

51. Article 24, Annex to the 1907 Hague IV Convention, supra note 20; SPAIGHT

29, at 152–156; OPPENHEIM, supra note 28, at 428; War Office Manual, Part III, su

at 101.

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

53. The distinction between a ruse and perfidy is offered as “whenever a bel

expressly or tacitly engaged, and is therefore bound by a moral obligation, to speak 

an enemy, it is perfidy to betray his confidence, because it constitutes a breach of 

OPPENHEIM, supra note 28, at 420; see also FM 27-10 (1956), supra note 32, ¶¶ 49–

54. Convention (II) with Respect to the Laws and Customs of War on Land and 

Regulations Respecting the Laws and Customs of War on Land, The Hague, Ju

reprinted in THE LAWS OF ARMED CONFLICT, supra note 20, at 60–82.

55. Supra note 23.

56. BOTHE, PARTSCH & SOLF, supra note 39, at 203–04. As neither Afghanistan no

States is a State party to Additional Protocol I, the United States is bound by this ar

the extent that it codifies customary law.

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

58. This approach, taken by the United States in Vietnam, was praised by the In

Committee of the Red Cross; see GEORGE S. PRUGH, LAW AT WAR: VIETNAM 19

66–67 (1975).

This legal approach is not new. During the American Civil War (1861–186

Anglo-Boer War (1899–1902), rebel soldiers captured wearing either enemy u

civilian clothing were treated as prisoners of war and not prosecuted unless th

involved treachery. See, for example, SPAIGHT, supra note 29, at 105–109. Boer c

wearing of portions of British uniforms produced one of the more sensatio

examples. In 1902 three Australian officers serving with the Bushveldt Carbineers w

British court-martial for murder of captured Boers and murder of a civilian. The

regard to the murder of the captured Boers was one of superior orders on the bas

Kitchener had ordered the execution of Boers wearing “British khaki.” The 

argued that Boer punishment was authorized only if the captured Boers had w

khaki with intent to deceive. Convicted, two of the three—Captain Harry “Break

and Lieutenant Peter Handcock—were executed by British firing squad, res

controversy between Great Britain and Australia that remains to this day; see, f

NICK BLESZYNSKI, SHOOT STRAIGHT, YOU BASTARDS! (2002). (This title is b

Morant’s last words.) The incident was the basis for the 1979 Australian movie Bre

starring Edward Woodward and Bryan Brown. Its screenplay was based upon KI

THE BREAKER (1973). Subsequently, Denton authored the non-fiction CLOSED 

TRUE STORY BEHIND THE EXECUTION OF BREAKER MORANT AND PETER HANDCO

less sympathetic to Morant than THE BREAKER. Comprehensive, authoritative a

contained in BREAKER MORANT AND THE BUSHVELDT CARBINEERS (Arthur Dave

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HORSE (2000).

59. Toman, supra note 21, at 287.

60. Headquarters, Department of the Army, Office of The Judge Advocate Gener

Memorandum 1985/7026 (23 Sept. 1985), Subject: Use of Expanding Ammun

Military Forces in Counterterrorist Incidents. Hollow point or expanding 

ammunition is prohibited in international armed conflict by Declaration (IV, 3) 

Expanding Bullets, The Hague, July 29, 1899, reprinted in DOCUMENTS ON THE LAW

supra note 9, at 64. The United States is not a State party to this treaty, but has taken 

that it will adhere to its terms in its military operations in international armed co

extent that its application is consistent with the object and purpose of article 23(e) o

to the 1907 Hague Convention IV, supra note 20, which prohibits employmen

projectiles, or material calculated to cause unnecessary suffering.” See, fo

Headquarters, Department of the Army, Office of The Judge Advocate Genera

Memorandum (May 19, 2000), Subject: 5.56mm, 77-grain Sierra MatchKingTM B

Review.

61. For example, German counterterrorist Grenzschutzgruppe 9 (GSG-9) and British 

Service soldiers wore civilian clothing in the October 18, 1977 hostage rescue of Luft

181 in Mogadishu, Somalia; BARRY DAVIES, FIRE MAGIC (1994), photographs betw

ROLF TOPHOVEN, GSG9: THE GERMAN RESPONSE TO TERRORISM 66–73 (1985). Th

non-standard, fireproof uniforms during its hostage rescue operation in the Iranian 

Princes Gate in London on May 6, 1980; MICHAEL PAUL KENNEDY, SOLDIER ‘I’ 

which contains photographs between pages 116–117; and SIR PETER DE LA BILLIER

FOR TROUBLE 319–337 (1994) and photographs between 296–97. Other examples a

in the State practice section of this paper, infra.

62. As the United States Supreme Court stated in The Paquette Habana, 175 U.S. 

“International law is part of our law, and must be ascertained and administered by t

justice. . . [W]here there is no treaty and no controlling . . . judicial decision, resort 

to the customs and usages of civilized nations. . . .”

63. In an experience similar to that of US Special Forces in Afghanistan eighty-five 

Lawrence donned indigenous attire at the request of the Arab forces he joined, in p

the only soldiers many Arabs had seen wearing khaki were Turkish, the enemy. Mi

death of Captain William Shakespear the previous year because he wore his Briti

Lawrence obliged his hosts. WILSON, supra note 5, at 334–335.

As noted by James Maloney Spaight, Colonel Lawrence was not alone in wea

clothing on combat missions during World War I. SPAIGHT, supra note 29, at 273–

64. M. R. D. Foot, The IRA and the Origins of SOE, in WAR AND SOCIETY, HISTORICA

HONOUR AND MEMORY OF J. R. WESTERN, 1928–1971, at 57–69 (1973); M. R

RESISTANCE: EUROPEAN RESISTANCE TO NAZISM 1940–45, at 7 (1977).

65. These two publications were distributed free in the hundreds of thousands 

Europe and Southeast Asia during World War II, either in English or in transla

Burmese, Chinese, Czech, Danish, Dutch, French, German, Greek, Italian, Malay, 

Polish, Serbo-Croat, Slovak, Slovene, and Thai. M. R. D. FOOT, SOE: THE SPECIAL O

EXECUTIVE 14 (1984).

The association of British thinking with Lawrence’s success, the Anglo-Boer W

War, and the Sino-Japanese War is acknowledged in JØRGEN HÆSTRUP, EUROPE AB

(1978); FOOT, SOE IN FRANCE, supra note 25, at 2–4; FOOT, SOE: THE SPECIAL O

EXECUTIVE, supra this note, at 11–15; DAVID STAFFORD, BRITAIN AND EUROPEAN R

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(1993); W. J. M. MACKENZIE, THE SECRET HISTORY OF SOE: THE SPECIAL O

EXECUTIVE, 1940–1945, at 10, 38–39 (2000). The Mackenzie volume, the official 

history of the British Special Operations Executive, was compiled in the late 1940s. 

classified until 1998, and reached open publication in redacted form in 2000.

66. HÆSTRUP, supra note 65, at 36, 76, 198. The “Geneva Conventions” were refe

general reference to the law of war. Churchill’s reference to the “Geneva Convention

would have been to the Convention Relative to the Treatment of Prisoners of War, G

27, 1929, reprinted in THE LAWS OF ARMED CONFLCITS, supra note 20, at 421. Arti

incorporated by reference Article 1 of the Annex to the 1907 Hague IV, supra note 20

criteria for prisoner of war status.

67. India Office Records L/WS/1/1296, as cited in CHARLES CRUICKSHANK, SOE O

IN THE FAR EAST 249 (1983).

68. STAFFORD, supra note 65, at 68.

69. Presidential Military Order (June 13, 1942), Subject: Office of Strategic Services

(June 21, 1942), Subject: Office of Strategic Services. The latter stated in part that “Under 

the Joint US Chiefs of Staff...[OSS will] prepare plans for and... execute subversive a

also R. HARRIS SMITH, OSS: THE SECRET HISTORY OF AMERICA’S FIRST CENTRAL IN

AGENCY (1972); EDWARD HYMOFF, THE OSS IN WORLD WAR II (1972); RICHAR

BEHIND JAPANESE LINES: WITH THE OSS IN BURMA (1979); WILLIAM CASEY, THE S

AGAINST HITLER (1988); ROGER HILSMAN, AMERICAN GUERRILLA (1990); TOM MOON

AND SAVAGE GAME (1991); FRANKLIN LINDSAY, BEACONS IN THE NIGHT: WITH TH

TITO’S PARTISANS IN WARTIME YUGOSLAVIA (1993); MILLS, MILLS & BRUNNER, supra 

DAN PINCK, JOURNEY TO PEKING:ASECRET AGENT IN WARTIME CHINA (2003).

70. Colonel Aaron Bank, in a paper done at The Presidio in 1986 entitled From O

Beret [on file with author], traces the OSS to US Army Special Forces lineage, as doe

PADDOCK, JR., US ARMY SPECIAL WARFARE: ITS ORIGINS (Rev. ed., 2002); and Ian 

The OSS Operational Groups: Origin of Army Special Forces, 25 SPECIAL WARFARE 2

2002). As indicated in the main text, the OSS also was a forerunner of the Central 

Agency. See THOMAS F. TROY, DONOVAN AND THE CIA (1981) and RICHAR

DONOVAN: AMERICA’S MASTER SPY (1982).

71. SOE/Special Operations (SO) became Special Forces Headquarters on May 1, 1

SOE and US OSS components in the United Kingdom were amalgamated into the Spe

Operation Center (SPOC) on May 23, 1944. FOOT, SOE IN FRANCE, supra note 25, a

72. PADDOCK, supra note 70, at 28.

73. This nationality mix became more the exception more than the rule. Of the 1

teams deployed to France, only ten were so composed. Sutherland, supra note 20, 

ARTHUR LAYTON FUNK, HIDDEN ALLY: THE FRENCH RESISTANCE, SPECIAL OPERA

THE LANDINGS IN SOUTHERN FRANCE, 1944, at 141, 145 (1992).

74. ROBERT MATTINGLY, HERRINGBONE CLOAK-GI DAGGER: MARINES IN THE OSS 

Another Marine, Captain Peter J. Ortiz, followed the SOE practice of parachutin

clothes, but carried his Marine Corps uniform. In a touch of bravado, he frequent

populated areas, thereby alerting the Germans and forcing his team to remain on the m

SOE IN FRANCE, supra note 25, at 357. On one occasion Captain Ortiz entered a café 

long (civilian) cape. Hearing a German soldier denigrate Americans, Ortiz drew his we

.45 pistols—then threw back his cape to reveal his Marine uniform before opening 

Germans. MATTINGLY, supra at 116. For his OSS service, Captain Ortiz was awarde

Crosses, a Legion of Merit, made a member of the Order of the British Empire, and 

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Museums Division Historical Bulletin), XVIII, 2 (Fall 1988); Benis Frank, “Colonel 

Ortiz, US Marine,” unpublished manuscript. [On file with author.]

75. MILLS, MILLS & BRUNNER, supra note 5, at 9; MILTON E. MILES,ADIFFERENT K

274, 371 (1967); PINCK, supra note 69, at 134; Dale Andrade, Every Man a Tiger, NAV

(VII, 6, Nov./Dec. 1994), at 16–21.

76. The French, Dutch, Belgian and Norwegian governments-in-exile express

over collateral civilian damage and injuries resulting from Allied air attacks. HEN

THE SHADOW WAR: EUROPEAN RESISTANCE, 1939–1945, at 212, 216–217 (19

author notes, “The Allies undoubtedly committed a major error in disrega

appeals and in persisting to bomb Europe—including their friends in the Resista

217. Sabotage vis-à-vis air attacks did reduce civilian casualties. An example is th

SOE attack on the SCNF (French national railways) locomotive works at Fives, d

one of the largest and most important in France, on June 27, 1943. The facto

heavily populated area, and bombing would have caused many collateral civilian 

Dressed as gendarmerie with the raid leader disguised as Gestapo, the factory w

successfully with no loss of life. FOOT, SOE IN FRANCE, supra note 25, at 26

example—the Peugeot factory at Sochaux near Montbéliard, which manufac

turrets—was taken out of action by an SOE-delivered satchel charge after an e

Air Force attack missed the target and resulted in heavy civilian casualties nea

SOE: THE SPECIAL OPERATIONS EXECUTIVE, supra note 65, at 219–220. For a list 

industrial sabotage, see FOOT, SOE IN FRANCE, supra note 25, at 505–517. Benjam

The Moon is Down: The Jedburghs and Support for the French Resistance

(unpublished MA thesis, University of Nebraska), describes the Resistance 

infiltrating and attacking these targets. [Copy in author’s files.] FOOT, SOE: T

OPERATIONS EXECUTIVE, supra note 65, at 505, notes that the industrial sabotag

accomplished with a total of approximately 3,000 pounds of explosive. In contr

Royal Air Force Lancaster bomber could carry 14,000 pounds of bombs, with som

to carry the 22,000 pound Grand Slam bomb. SIR CHARLES WEBSTER & NOBLE F

THE STRATEGIC AIR OFFENSIVE AGAINST GERMANY, 1939–1945, Vol. I, 452–53 

heavy bomber accuracy, see W. Hays Parks, “Precision” and “Area” Bombing

Which, and When?, 18 JOURNAL OF STRATEGIC STUDIES 147 (March 1995). In 

SOE accuracy through industrial sabotage, it took 9,070 bombs dropped by 3,02

bomber aircraft to achieve a 90% probability of a single hit on a target 60 by 100 

RICHARD HALLION, STORM OVER IRAQ 283, Table 2 (1992).

77. Distinction is the customary international law obligation of parties to a confli

only in military operations the effects of which distinguish between the civilian po

individuals not taking a direct part in hostilities), and combatant forces or militar

directing the application of force solely against the latter.

The principle of distinction was acknowledged in Articles 20–23 of the 186

General Orders No. 100 (the Lieber Code), supra note 20.

78. MACKENZIE, supra note 65, at 599, provides the following report from a Fre

engineer who reached England in December 1943:

Aircraft attacks on Locomotives. Since the beginning of 1943 650 locomotives ha

hit (an average of 70 a month) out of 10,200 in service. The damage is very slight 

average period of repair is a fortnight. There are therefore on an average 35 locom

under repair, about 0.34% of the total. In order to achieve this derisory re

railwaymen have been killed and 378 wounded. . . .

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the repairs required were much more serious. The average time required has 

been established. But if we take it as six months, this means 240 locomotive

repair, 2.40% of the total, eight times as many as those damaged by aircraft.

See also MICHEL, supra note 76, at 215–216, describing the SOE attack on the Ver

water facility in Norway.

79. MILLS, MILLS & BRUNNER, supra note 5, at 45, 47, 186–203 describe one such ca

The Yellow River Bridge carrying Ping-Han railway traffic had been attacked rep

unsuccessfully by the 311th (US) Air Force, with heavy friendly losses. OSS Opera

Jackal severed the bridge on August 9, 1945.

80. As a matter of policy, Great Britain prohibited area bombing attacks in Na

territories. WEBSTER & FRANKLAND, supra note 76, at Vol. I, 463; ROBIN NEILL

BOMBER WAR, 288–289 (2001).

81. See, for example, MICHEL, supra note 76, at 289, who notes that in Russia in t

of 1942, it was necessary for Germany to employ fifteen divisions in count

operations.

82. FOOT, SOE: THE SPECIAL OPERATIONS EXECUTIVE, supra note 65, at 225–227; STA

note 65, at 153–154; HAESTRUP, supra note 65, at 434–435. The latter notes at 435, for e

“On D-Day itself, about 950 actions were carried through, out of a planned 1,050, 

Divisions which relied upon railway transport were delayed in their movements toward

bridgehead at Normandy for up to two weeks, by which time the bridgehead had been con

83. HÆSTRUP, supra note 65, at 373–374; AIREY NEAVE, ESCAPE ROOM (1970); M. R

J. M. I. LANGLEY, MI9: ESCAPE AND EVASION 1939–1945 ( 1979).

84. For example, on August 13, 1944, a US Fifteenth Air Force heavy bomber attack 

across the Drôme River in southern France missed the bridge and struck the tow

killing 280 civilians, wounding 200, and destroying 480 buildings in Crest. OSS 

Group ALICE arrived on the scene, and reported:

Upon arriving they were greeted by a very downhearted and somewhat bell

group of people. The damage consisted of destruction of about one-fourth 

town. . . . Lt. Barnard and Lt. Meeks talked with the people, visited the hosp

encouraged the people that the bombing was a mistake and would not occur a

FUNK, supra note 73, at 79, 153; THE ARMY AIR FORCES IN WORLD WAR I

CHRONOLOGY 1941–1945, at 424 (Kit C. Carter & Robert Mueller eds., 1973).

85. HÆSTRUP, supra note 65, at 9, 421–431.

86. Id. at 7. At 42–43, the same author attributes emphasis on partisan warfare to sev

not the least of which were technical advances in aircraft and radios that facilita

operations.

87. Supra note 22.

88. Trial of Otto Skorzeny and Others, IX LRTWC (HMSO, 1949), at 

Obersturmbannführer (Lieutenant Colonel) Otto Skorzeny commanded a comman

during the last-ditch December 1944 German Ardennes Offensive to infiltrate US lines 

Army uniforms. Eighteen members of his forty-four man team were captured in US un

was executed as a spy. Skorzeny was arrested in 1947. As he was not captured in flagran

could not be charged as a spy. Article 31, Annex to 1907 Hague IV, supra note 20. N

was he charged with violation of Article 23(b) of that Annex, that is, “killing treacher

The court delivered its acquittal without explanation. Popular speculation has b

court accepted Skorzeny’s claim that his men did not fight in US uniforms. Skorze

was less that he and his men did not fight in US uniforms nor necessarily tu quoque(

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to Skorzeny’s acquittal was the testimony of Royal Air Force Wing Commander 

Thomas, a highly decorated veteran of British Special Operations Executive s

acknowledged that British Special Operations Executive engaged in similar con

evidence was offered of similar US, Russian and British operations. OTTO SKO

COMMANDO OPERATIONS 450–451 (1995) and James J. Weingartner, Otto Skorz

Laws of War, 55 JOURNAL OF MILITARY HISTORY 207, 217–18 (1991).

89. Supra note 20.

90. Special Forces’ wear of enemy uniforms is more common than generally 

example, summarizing the practice of the German special operations Brandenbur

one study concluded: “Throughout the period 1941–1943, the usual operational tec

the use of disguise in enemy uniforms.” [Emphasis in original.] Edward N. Luttwa

Canby & David L. Thomas, A Systematic Review of “Commando” (Special) Opera

1980, II-188 (C&L Associates unpublished report). [On file with author.] Efforts at su

pre-Protocol I law as to the wearing of enemy uniforms are Valentine Jobat III, W

Enemy’s Uniform, 35 AMERICAN JOURNAL OF INTERNATIONAL LAW 435 (July 194

HINGORANI, PRISONERS OF WAR 28–30 (1963).

Article 39, paragraph 2 of Additional Protocol I, supra note 23, states: “It is prohib

use of the flags or military emblems, insignia or uniforms of adverse Parties while engagi

or in order to shield, favor, protect or impede military operations.” This new law has not 

In addition to the list, infra, there is considerable historical evidence to the contrary, inc

1977. See Parks, supra note 43, at 77 n. 259. The list that follows shows that this provisio

rather than a codification of customary practice. Canada took a reservation to Article 39

ratification of the Protocol. The Canadian reservation, available at http://www.icr

677558c021ecf2c141256739003e6370/172ffec04adc80f2c1256402003fb314?OpenDocu

“Article 39—Emblems of nationality (Enemy uniforms). The Government of Cana

intend to be bound by the prohibitions contained in paragraph 2 of Article 39 to 

military emblems, insignia or uniforms of adverse parties in order to shield, favor

impede military operations.”

One may speculate on why the Diplomatic Conference supported this provision

reason is that State practice was neither acknowledged nor well known. Aside fro

accounts and the official works of M. R. D. Foot and Charles Cruickshank cited 

records were not declassified until 1985, and the official SOE history (MACKEN

HISTORY OF SOE, supra note 65) was not declassified until 1998. Speaking from t

experience, a “wall” between special operations forces and the negotiating process 

does not exist within the US government today. While US negotiation guidance was 

within the Department of Defense, in all likelihood it did not reach the closed-doo

special operations environment that prevailed at that time. Even if it had, it is entir

that the decision was taken not to comment. The author’s work with counterpa

governments suggests that this wall persists to this day within many governments.

91. See also supra note 42.

92. FOOT, SOE: THE SPECIAL OPERATIONS EXECUTIVE, supra note 65, at 98; DOUG

PARKER, SETTING EUROPE ABLAZE 85, 124 (1983). This pessimism was confirmed i

of cases. Four uniformed British soldiers captured during a failed attack on the Ge

water plant at Vermork, Norway, were executed in compliance with this order on N

1942. RICHARD WIGGAN, OPERATION FRESHMAN: THE RJUKAN HEAVY WATER R

81–82 (1986). During the night of March 22, 1994, a uniformed US Army specia

team landed along the Italian coast about 60 miles north of La Spezia. Captured tw

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Führerbefehl (Commando Order) of October 18, 1942, which ordered all SOF to b

even if captured in uniform. Dostler was tried and convicted by a US Military Comm

October 1945, sentenced to death, and executed. In re Dostler, supra note 20, (cited 

The background to Hitler’s Führerbefehl is contained in FOOT, SOE IN FRANCE

25, at 186–187. The Führerbefehl declared:

All enemies on so-called commando missions in Europe or Africa challen

German troops, even if they are to all appearances soldiers in uniforms or dem

troops, whether armed or unarmed, in battle or in flight, are to be slaughtered to 

man. . . . Even if these individuals when found should apparently be prepared 

themselves up, no pardon is to be granted them.

At a minimum, the Commando Order violated Article 23(d) (prohibiting denial 

of the Annex to the 1907 Hague Convention IV, supra note 23. The Comman

contained in its entirety in United States v. Wilhelm von Leeb, et al. (“High Comm

XI TWC (GPO, 1951), at 73–75, 525–527, with additional implementing orders at 

Court’s judgment that the Führerbefehl was “criminal on its face” is at 527. The F

also is discussed in 11 International Military Tribunal (1946), at 26, and 15 Internatio

Tribunal (1946), at 296–306, 403–410, the trial of major German war criminals.

In Operation Cold Comfort, two members of a British SAS team captured in unifor

February 1945 were executed. ROY FARRAN, OPERATION TOMBOLA 7–8 (1960); JOHN 

A HISTORY OF THE S.A.S. REGIMENT 275 (1984). Similarly, German Security Forces 

Josef Keiffer was tried and executed for the murder of captured uniformed British 

Service troops. FOOT, SOE IN FRANCE, supra note 25, at 305. See also Trial of Karl Buck

20, at 39–44, and Trial of Karl Adam Golkel and Thirteen Others, V LRTWC, at 45–53 

captured uniformed SAS pursuant to Führerbefehl); Trial of Generaloberst Nic

Falkenhorst, XI LRTWC (HMSO, 1949), at 18–30, and VI WCT (William Hodge, 19

of captured uniformed British commandoes pursuant to Führerbefehl); and Tria

Rohde and Eight Others, V LRTWC, at 54–59 (murder of captured female SOE).

The Japanese issued similar orders directing the execution of aviators and/or S

members of a combined British–Australian SOF team captured in uniform were 

died as a result of illegal medical experimentation, pursuant to such an order. A

postwar proceedings, Japanese General Dihihara was hanged, while other participa

lesser sentences. LYNETTE RAMSAT SILVER, THE HEROES OF RIMAU: UNRAVE

MYSTERY OF ONE OF WORLD WAR II’S MOST DARING RAIDS 225 (1990). See also Th

Case, 1 LRTWC (HMSO, 1947), at 71–80, and Trial of Lieutenant General Shigeru 

three others, V LRTWC (HMSO, 1948), at 1–24 (execution/murder of three c

airmen); Trial of Lieutenant General Harukei Isayama and Seven Others, V LRTW

1948), at 60–65 (murder of captured US aircrew).

93. Supra note 15.

94. For example, a heavily-armed Navy SEAL attired in a wet suit, fins and face ma

distinctive from the civilian population except, perhaps, in the annual zany Bay-to-B

race in San Francisco.

95. Examples contained in this Table are documented in the Chicago Journal of In

Law version of this paper, supra note 1.

96. Where captured SOE personnel were executed without trial, those respo

prosecuted following World War II. See, for example, Trial of Wolfgang Zeuss, 

Natzweiler Trial), V WCT (HMSO, 1949).

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ppg

German naval uniforms when they boarded the submarine, and again at the ti

landings in the United States. After landing, they changed into civilian clothing. Th

were sent back to the U-boat. FISHER, supra note 22, at 23, 26, 35.

98. A detailed and fascinating account is contained in LESLIE C. GREEN, ESSAYS ON TH

LAW OF WAR 41–434 (2d ed. 1999) based upon Professor Green’s participation in t

trials. Later in his long and distinguished career, Professor Green was the Charles 

Professor of International Law at the Naval War College. See INTERNATIONAL LAW A

CONFLICT SPECTRUM: ESSAYS IN HONOUR OF PROFESSOR L. C. GREEN (Michael N. 

2001) (Vol. 75, US Naval War College International Law Studies).

99. Stanislaus Krofan & Another v. Public Prosecutor, [1967] 1 Malayan L J 133 Fe

1966 (Singapore).

100. Osman bin Haji Mohammed Ali and Another Appellant v. The Public, Privy Co

E.R. 488, 3 W.L.R. 1076, 112 S.J. 802 (1968).

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

Learning that a nurse was trapped in a house near the center of the city, Staff S

Dix organized a relief force, successfully rescued the nurse, and returned he

safety of the Tactical Operations Center. Being informed of other trapped c

within the city, Staff Sergeant Dix voluntarily led another force to rescue eight 

employees located in a building which was under heavy mortar and small ar

Staff Sergeant Dix then returned to the center of the city. Upon approaching a b

he was subjected to intense automatic rifle and machine gun fire from an un

number of Viet Cong. He personally assaulted the building, killing six Viet Co

rescuing two Filipinos (sic). The following day Staff Sergeant Dix, still on h

volition, assembled a twenty-man force and under intense enemy fire cleared t

Cong out of the hotel, theater, and other adjacent buildings within the city. Dur

portion of the attack, Army Republic of Vietnam soldiers inspired by the heroi

success of Staff Sergeant Dix, rallied and commenced firing upon the Viet Con

Sergeant Dix captured twenty prisoners, including a high-ranking Viet Cong 

He then attacked enemy troops who had entered the residence of the Deputy P

Chief and was successful in rescuing the official’s wife and children. Staff Sergea

personal heroic actions resulted in fourteen Viet Cong killed in action and p

twenty-five more, the capture of twenty prisoners, fifteen weapons, and the re

fourteen United States and free world civilians. The heroism of Staff Sergeant D

in the highest tradition and reflects great credit upon the US Army.

Citation available at http://www.army.mil/cmh-pg/mohviet.htm (under Drew Den

102. This was the famous rescue by Lieutenant Thomas R. Norris, USN, of Lieuten

Iceal E. Hambleton, USAF, commonly referred to as Bat 21, the designation of 

which Lieutenant Colonel Hambleton served as navigator. (Lieutenant Colonel 

actually was Bat 21B.). See DARREL D. WHITCOMB, THE RESCUE OF BAT 21 

Vietnamese mentioned in Norris’ citation was Nguyen Van Kiet, a South 

frogman. For his actions, he became the only Vietnamese in the war to be awarded t

Cross. T.L. BOSILJEVAC, SEALS: UDT/SEAL OPERATIONS IN VIETNAM 213 (1990

movie Bat-21 starring Danny Glover and Gene Hackman errs in depicting this as s

Force rescue. Lieutenant Norris’ Medal of Honor citation clearly acknowledges hi

civilian clothing, and the US Government’s approval of his actions:

Lieutenant Norris completed an unprecedented ground rescue of two downe

deep within heavily controlled enemy territory in Quang Tri Province. Lieutenant 

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enemy territory, located one of the downed pilots at daybreak, and returned 

Forward Operating Base (FOB). On 11 April, Lieutenant Norris led a three-man t

two unsuccessful rescue attempts for the second pilot. On the afternoon of th

forward air controller located the pilot and notified Lieutenant Norris. Dr

fisherman disguises and using a sampan, Lieutenant Norris and one Vietnamese 

through the night and found the injured pilot at dawn. Covering the pilot with b

and vegetation, they began the return journey, successfully evading a North Viet

patrol. Approaching the FOB, they came under heavy machinegun fire. Lie

Norris called in an air strike which provided suppression fire and a smokescreen, a

the rescue party to reach the FOB. By his outstanding display of decisive lead

undaunted courage, and selfless dedication in the face of extreme danger, Lie

Norris enhanced the finest traditions of the US Naval Service [Emphasis added.]

Citation available at http://www.army.mil/cmh-pg/mohviet2.htm (under Thoma

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VII

Strategic Targeting and International L

The Ambiguity of Law Meets the Real

of a Single-Superpower World

Jeffrey K. Walker1

Strategic Targeting in Recent Conflicts

My charge is to address strategic targeting and the law of war. An

an ironic moment in history for such a discussion? For just at th

when the evolution of the technology of aerial bombardment allows for 

ment of Billy Mitchell’s vision, we stand on the verge of jettisoning his u

theory as anachronistic and redundant. For 60 years, airmen have bemoa

they but had pinpoint accurate, survivable, and reliable all-weather day/n

ons, the vision of the strategic bombardment gurus would inevitably and 

be proven correct. We now have the technology, but no longer the need.

As is surely evident in Afghanistan and Iraq, strategic bombardmen

the main event anymore. Kosovo was the seeming fruition of the airman

toil—a campaign limited from the outset to a purely air operation and th

necessity heavily focused on strategic targets. The problem is that air po

win the Kosovo campaign. The bombing showed little effect on Serbi

forces and the will of the Serb regime showed little signs of cracking in 

around-the-clock bombing—in fact, just the opposite. And ultimately, th

tating event that caused Slobodan Milosevic to fold his tents was the v

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withdrawal of the support

brought about by diplomacy more than by 

of his long-time patron, Russia.

So in Kosovo, airmen hit the apparent high-water mark for strategic 

theory, but at the same time many failed to notice that the plug in the bot

doctrinal bathtub had already been pulled. Which brings us to Afghan

Afghan campaign brought unreconstructed airmen face-to-face with 

problem: how do you draw Colonel Jack Warden’s concentric circles2 wh

nothing attackable to draw them around? What do you do when strategic 

doctrine meets an enemy that would like nothing more than to be bom

few centuries? To the Taliban, there wasn’t much of value we could bo

ghanistan, since they placed little or no value on the technological, ind

economic trappings so dear to Western notions of modernity and pr

Qaeda traveled light and could easily disperse and regroup after air atta

air war in Afghanistan took a decidedly different turn for air planners. W

arm of Operation Enduring Freedom became was that much-maligne

signed them by Heinz Guderian, father of the blitzkrieg. Air forces becam

doctrine purists most dreaded—“flying artillery” for the very thin, very 

very agile special operations ground forces supporting whatever indigen

could be allied with us.

Iraq seemed to offer airmen a reprieve from this ignominy, but it d

pan out that way. Operation Iraqi Freedom became something of a labo

the future non-strategic uses of air power, with five distinct and geograp

fined air sub-campaigns.

First, with the quick capitulation of all but a few pockets of resista

southern quarter of Iraq, air forces assumed the role of airborne SWAT 

what was essentially peacekeeping work. Second, there was the Scud hun

der patrol of the Western desert. Like in Afghanistan, this was a special o

show, with air power acting as an airborne surgeon—precise applicatio

sured amounts of force against emerging or fleeting targets with tight 

ground forces with eyes on target or from low and slow tactical drones. T

was the Kurdish northern front. Reduced to a wait-and-see role by Tu

tishness and the lightness of US forces in the area, the role of air pow

mostly that of airborne cavalry, providing rescue as needed and exploita

emy missteps when possible. Fourth, there was the Big Show—the dua

thrusts up the river valleys. This was classic close air support and what 

called battlefield air interdiction. In this area of operations, air power w

ably cast in the role of airborne artillery—and to very great effect.

Finally, there were bombs over Baghdad. This was the classic strategi

role for airpower wistfully dreamt of in its idealized form from Giulio 

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Jack Warden. However, this piece of Iraqi Freedom was, in comparison 

tion Desert Storm in 1991, a very small sideshow. Why was this? Unlik

stan, Iraq was a modern country with a government and population 

grown accustomed to the infrastructure of a modern economy—electri

effective transportation, good telecommunications, urban living—so t

certainly strategic targets available. However, Iraqi Freedom presented i

cus the second tectonic shift that if not exactly sounding the death knell 

gic bombardment has served notice that airmen better start rethinkin

doctrine. The primary reason why the strategic bombing campaign ove

was not more vigorous was because from the beginning of planning, ever

ized that it would be foolhardy to break any more china than absolutely 

since we would be expected to fix most everything we broke. And high on 

the plates we wanted to remain unbroken was the good will of the Iraqi po

Military Objectives and Collateral Injury in a Non-Strategic W

So where does all this get us in terms of the law of war? On the one ha

campaign is fragmenting and over-specializing, with the result that 

fewer targets are now planned through the target planning cycle and air t

der (ATO). As a result, the opportunity for systematic review and analy

lateral damage effects and law of war compliance is rapidly fading. In t

campaign, less than 20% of all targets struck ever appeared on an ATO. T

that the business of operations lawyers is getting more complicated wit

and more uncertainty. Lawyers will need to think outside the “JAG sign

review line on the target folder” box—those days are mostly gone. And 

enormous amount of work being done right now on strategy tools, col

software, and other air campaign planning tools that offer many opport

innovative new approaches to target review and law of war compliance i

paigns. The legal community must take advantage of these opportuni

velop future procedures.

On the other hand, the legal equation is being somewhat simplified 

portant respect. Since the strategic bombing campaigns of World War II, 

messiest and most intractable questions to dog the law of war has been t

dual-civilian/military use targets. Unfortunately, modern industrial wa

upon essentially the same infrastructure as the modern industrial econo

roads, ports, marshalling yards, highways, telecommunications, and, 

electricity and oil. Therefore, striking strategic targets for maximum im

the enemy’s war-making capacity by necessity impacts greatly upon the e

vilian population. In addition, much of this dual-use infrastructure tend

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in and around urban areas

for completely logical reasonsand there

ing these targets in densely populated areas heightens the risk of civilian 

injury and damage. More accurate weaponry helps to reduce collateral in

misdirected bombs, but the blast, heat, and fragmentation from a perfe

bomb cannot be completely contained, so adjoining structures and nearb

cannot be completely spared from collateral effects. With the eclipse of t

tance of “going downtown” and of the traditional infrastructure-centri

bombing in general, we will be granted some relief from these thorny l

lems. It is a pity that after having finally gotten some serious tools for ana

ficult urban and infrastructure targets—I am thinking of Bug Splat,3 JM

tiered analysis,4 and the ready availability of sophisticated computer m

weapons effects—the need for them is declining.

Expanding the Notion of Lawful Targets?

However, the frustration borne from the slow realization of how ineffec

important strategic bombing was in Kosovo and Afghanistan and Iraq h

some airmen to suggest that the problem lies not with the limitations o

bombing itself, but rather with the artificial restrictions of international 

should the will of the enemy’s population not be a lawful target? Some 

gested that the parameters of lawful objectives should be expanded to in

jectives that if struck would discomfort or distress the civilian populati

fair, everyone stops well short of advocating directly killing civilians.) Fo

why not target symbols of cultural pride like the national soccer stadium

acknowledge that making life difficult for the civilian population in the e

ital is a lawful objective in that it will undermine political support for 

leadership and sap their desire to continue the war? Of course, this was 

publicly articulated—and more regrettable—reasons why the electric

Baghdad in 1991 and in Belgrade in 1999 were attacked early in those 

campaigns. Some commanders from Desert Storm have stated at var

that one goal of the initial wave of bombing over Baghdad was to impres

Iraqi people that they were now at war—most obviously evidenced by the 

ing out for both the Iraqi military and civilians all over the city.

There is, of course, a problem with this expansive approach. First, it i

illegal. Second, it should remain illegal. There are several reasons why.

First, targeting the will of the people—explicitly illegal but tacitly acc

least a collateral purpose of nearly every bombing campaign—doesn’t w

has and probably never will. Killing, wounding, or displacing civilians j

them angry and generally more resolved to resist—it’s a tragic-comic 

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human nature that the more we get hurt the more we are willing to get h

spite the one who’s doing the hurting. Even carpet bombing and fire bom

man and Japanese cities didn’t really break the resolve of the civilian po

We saw no evidence of this in Serbia in 1999 either.

Second, even a weak declarative norm is still better than nothing in 

least default to not attacking civilians. Eliminating or even reversing th

could easily put us on the infamous slippery slope and become a race t

tom. If selecting targets to make the enemy population uncomfortable is 

parameters of just what constitutes discomfort will inevitably expand. If 

to sap the population’s will without directly killing them—our conscien

hardly allow that—then why not attack irrigation systems or grain el

hospitals or mosques? Some commentators have even suggested this 

what the United States did in the first Gulf War by hard killing the electric

tion systems in Iraq, resulting in prolonged famine. We have already eng

advised expansions of the definition of “military object” even under th

rules—television and radio stations and the infamous “crony targets” in 

good examples. It would be disastrous were we completely to jettison the 

tion that civilians—and the will of the people—are immune from direc

Third, allowing direct targeting of the enemy civilian population in a

sumes some sort of collective responsibility on the part of the enemy p

This completely ignores the nature of totalitarian or authoritarian regim

itarian regime exercising a stern monopoly over the levers of power c

place for a very, very long time with little or no direct support from the p

In such States, the opportunities for dissent and resistance are generally 

ited. In fact, the very regimes we most want to remove are generally thos

least direct popular support—the Ba’ath regime in Iraq and the commun

in North Korea spring to mind. (Recall that even in the raucously d

United States, the first Bush “regime” initially enjoyed the support of a b

half of the 52% of the population that even bothered to vote.) Deliberat

ing the will of the civilian population in these circumstances constitut

more than collective punishment and random reprisal.

The final and most significant reason why we must avoid loosening th

tive norm against directly targeting the civilian population is that we su

want any further weakening of the admittedly less-than-effective exi

standards protecting civilians from the effects of armed attack. It is the s

of the documents that compromise the law of war that they were written 

nantly by soldiers (or diplomatic surrogates afraid to offend soldiers) to 

whelming benefit of soldiers.

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Let us take the example of an important law of war concept, propo

The law of war states “indiscriminate attacks are prohibited” and that 

criminate attack includes one which “may be expected to cause inciden

civilian life, injury to civilians, damage to civilian objects, or a co

thereof, which would be excessive in relation to the concrete and direct m

vantage anticipated.”5 Thus says Additional Protocol I on the rule of pr

ality in the attack.

The problem of course is that the rule implicitly accepts that it is th

who decides what is and is not excessive injury, damage, or death. And th

nation of excessiveness turns on the equally ambiguous term “milita

tage”—or as further obfuscated in US practice, military advantage “wh

in the context of the campaign as a whole,”6 whatever on Earth that mea

in the most obvious or ludicrous marginal cases, this studied ambigui

systemic default to rendering any military advantage thrown into the b

the attacker as not excessive in relation to resulting civilian injury and 

The baby elephant in the room that most of us choose to ignore is th

and completely irreconcilable subjectivity built into this so-called bala

I vividly recall reading the Kosovo post-conflict report by Human Righ

while working in the Pentagon. This thorough and well-substantiated r

mated that 500 civilians had been killed during the 78-day bombing c

The reaction of my colleagues and me was “not bad.” The reaction o

Rights Watch was substantially different. In the report prepared for th

tional Criminal Tribunal for the former Yugoslovia prosecutor in resp

legations of NATO war crimes in the Kosovo air war, the rapporteur st

The main problem with the principle of proportionality is not whether or not 

but what it means and how it is to be applied . . . . For example, bombing a 

camp is obviously prohibited if its only military significance is that people in t

are knitting socks for soldiers. Conversely, an air strike on an ammunitio

should not be prohibited merely because a farmer is plowing a field in t

Unfortunately, most applications of the principle of proportionality are not 

clear cut . . . . It is unlikely that a human rights lawyer and an experienced 

commander would assign the same relative values to military advantage and t

to noncombatants . . . . It is suggested that the determination of relative values 

that of the “reasonable military commander.”8

So we are stuck with a rule of paramount importance that rests on c

two incomparable concepts, purports to subjectively quantify the bas

quantifiable notion of “military advantage,” and defers all decision-mak

party in interest with the least personal and most amorphous stake (sold

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enormous expense of the other party in interest with the greatest and ve

personal stake (civilians). To quote the immortal Yul Brenner, “Is a puzz

Sadly, I have come to believe this was a knowing and deliberate proces

The agenda worked by the major powers—led by the interests of their m

tablishments—during the negotiation of all the major law of war conve

to find a way to present a humane face to the world while avoiding any m

restrictions on the use of military force. It is poignantly ironic to note tha

historically effective niches in the law of war explicitly protect soldiers

ians—bans on dum-dum bullets, glass projectiles, poison gas, and provi

cerning the protection of the wounded and prisoners of war.

As a result of this studied creation of irreconcilable ambiguity into t

concept of proportionality, it will remain little more than an aspiratio

The very ambiguity of the rule has the perverse effect of offering signifi

protection to the innocent victims than to those who enjoy a monopoly 

of force. Until such time as the law explicitly reapportions the greater ris

and death—as a normative legal concept and a moral prescription—to 

wield armed force and have voluntarily assumed the risks attendant up

civilians will continue to receive scant protection from the laws of war.

Why Does It Matter Who Bears the Risk?

Why, it may well be asked, am I distressed by the notion that the law of w

portionately benefits soldiers at the expense of civilians? Quite simply, be

has willingly assumed the risk of death, injury, or capture and the othe

This requires a little explanation.

As the great British military historian John Keegan persuasively argue

advent of means and methods of warfare that allow the application of for

tance—basically gunpowder weapons—the mark of a great and valorou

officer has ceased being the ability to inflict injury on the enemy with 

right arm. Rather, with distant means of killing, the mark of the courage

has become an indifference to personal safety, a scorn for injury or d

reached its most ludicrous extreme in World War I, when young lieuten

from Oxford or Cambridge went over the top with nothing but an umbr

ing crop or soccer ball. However, this is a very clear manifestation of the 

damental characteristic of the profession of arms—the willingness to 

self-sacrifice up to and including death. Military men and women ofte

not about the money.” The military profession has traditionally and still 

itself a unique calling. It must not be all about the money, otherwise you 

ply contract out for infantry to the lowest bidder.

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As the United States continues to engage in conflict marked by its vast t

cal superiority and with its leadership’s aversion to friendly casualties—

ways at the expense of higher civilian casualties—what will it mean to this 

self-sacrifice, to the ultimate defining characteristic of the profession of 

chael Ignatieff, in a New Yorker article soon after the end of the Kosovo air 

in 1999, asserted, “It was a virtual war, fought in video teleconference roo

target folders flashed on screens... [it] never reached deep into the psych

ple . . . [did] not demand blood and sacrifice.”10 Even the wars of the po

have demanded little of the American people—indeed, immediately afte

President’s call for “blood and sacrifice” consisted for most people of sho

in airports and an enjoinder to spend more money shopping. Hardly th

will render us the next “Greatest Generation.”

Assumption of the Risk

So soldiers have willingly assumed the heightened risk of death or 

members of the profession of arms. This is not to say that I am all-over 

fuzzy about every civilian. Just as soldiers assume risk, there has long b

but universal acceptance within the law of war regime that in some circ

civilians also assume a heightened risk. For example, although the blanke

tion against making civilians the direct object of attack still applies, the

who would argue that the killing of war workers busily assembling tan

munitions factory is a war crime. Likewise, the torpedoing of civilian 

vessels laden with war materiel is not a war crime. On the other hand, few 

so bold as to assert that night area bombing of the housing estate wher

factory workers sleep is lawful—although soldiers asleep in their barrac

this risk. The difference is that the law of war tacitly acknowledges tha

willingly present within a lawful military target assume the risk of being 

The concept seems to be that although one should not go out of your 

them, this category of civilian quite simply weighs quite lightly in the pro

ity equation when attacking an otherwise lawful military target. Again, 

no explicit statement of this in law—it just seems to be a generally accep

ple of application.

Voluntary human shields are another category of persons that assume 

death or injury by willfully placing themselves in harms way at a lawful m

jective. Of course, the law is only the law, and as we saw in Kosovo, policy 

ations can render immune from attack otherwise lawful targets pro

volunteer civilians.

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Perhaps of more moment for US forces, contractor or civilian emp

companying US forces in the field logically fall into the category of assum

risk. The law of war hints at this in 1949 Geneva Convention III11 by 

some protections to these civilians if they fall into the hands of an ene

Both defense contractors and the government have tacitly acknowledg

paying significantly higher wages to such civilians. As more and more 

heretofore performed by uniformed soldiers are contracted out—and l

be uninformed on this subject, huge swathes of traditional military fun

being contracted—the very notion of what constitutes a combatant ver

ian is being thoroughly muddled.

The Issue of Impunity

One final factor—and this is a big one—is rapidly undermining what w

taught as the positivist legal regime regulating armed conflict. From t

conferences in St. Petersburg, there was a very rough equivalency of threa

the major powers who created the law of war treaty regime. Be it the Gre

of the 19th century, Democracies versus Fascists in the inter-war years, 

bloc versus the Soviet bloc of the Cold War, there was always a rough eq

in the damage each could do to the other. This more or less balanced mili

produced a mutuality of self-interest amongst the major players who m

enced the development of the law of war treaties. If all your potential ene

the wherewithal to do to you what you can do to them—be it take prison

tegically bomb or sink merchant shipping—then everyone faced a som

nished Golden Rule: don’t do some things unto others or they just mi

same unto you. And this was until recently the positivistic enforceme

nism—admittedly less than totally effective—that underpinned whatev

the law of war regime may have enjoyed in theory and application.

But with the emergence of the United States as the last superpower lef

we are faced with a significant threat to this implicit enforcement mec

impunity. Now I don’t intend to use this word with any of its negative 

tions. I mean plain old impunity—the ability to act without constraint. T

all what the Holy Grail of air campaign planners, air supremacy, means—

ity to act with impunity over the entire area of operations. And in 

sense—although not a political one—the United States and its usual 

themselves in this position. Militarily, we can pretty much do whateve

with little reciprocal risk of an enemy doing much back at us.

That said, any positivist notions—and you will notice that I don’t 

marginally effective international criminal tribunals in this mix—of the l

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are basically gone. They have become what the more cynical among us h

suspected—merely an admirable collection of declaratory and aspiration

tive statements, to be obeyed or not as the exigencies of the situation di

Where Do We Go from Here?

So I have painted us into a corner—the law is inherently ambiguou

aspirational than effective, and was never really intended to protect civil

in the first place. With one enormous military power now ruling the int

roost, the self-interest and reciprocity of threat that served to shore up w

pliance there was has evaporated. But the law of war regime as it exists t

we’ve got. Can we do any better with it?

I’m not really sure, although I’m willing to give it some serious th

hope the readers will as well. The law of proportionality is hardly uniqu

herent ambiguity—a lot of domestic law falls into the same category. 

full-blown critical legal studies disciple, all law is inherently ambiguou

law is a creature of language and all language is inherently ambiguous. 

ternational law we get the added confounding factor of equally authen

several languages. What’s a lawyer to do?

Step one may be to simply acknowledge that we need to make cl

choices rather than tortured legal justifications as to the allocation of risk

use of military force. As lawyers, we need to stop hiding behind pseudo

“black letter” arguments—there really is very little if any truly black le

this area. And in modern democracies, there is already a mechanism f

these policy-driven allocations of risk—political control of the military

soldiers grind their teeth at what is often perceived as niggling interfer

the political masters, this is the most effective way to allocate risk in an 

coherent fashion. And as professional soldiers doing the dirty work of d

you might as well stop carping about it and acknowledge this is not on

things are, it is the way things should be.

Notes

1. Lieutenant Colonel Walker is a retired US Air Force judge advocate.

2. John A. Warden, The Enemy as a System, AIRPOWER JOURNAL 40 (Spring 199

Warden’s five rings are (1) the command ring—the enemy command structure, w

a civilian at the seat of government or a military commander; (2) the enem

essentials—those facilities or processes without which the State cannot maintain i

many instances, electricity and petroleum products; (3) the infrastructure ring con

enemy State’s transportation system, including rail lines, airlines, highways, bridg

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p

y() y pp() 

military forces.

3. A mathematically based software program that predicts a munition’s fragmenta

based on the angle and direction at which the munition is falling.

4. The Joint Munitions Effectiveness Manuals provide methodologies to permit s

comparison of weapon effectiveness against a variety of targets.

5. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts, art. 57.2(b), June 8, 1977, 11

3,reprinted in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Gu

ed. 2000).

6. See Chairman, Joint Chiefs of Staff, Standing Rules of Engagement for U.S. Force

3121.01A (series).

7. Human Rights Watch, Civilian Deaths in the NATO Air Campaign (Feb. 2000), 

www.hrw.org/reports/2000/nato/.

8. Final Report to the Prosecutor by the Committee Established to Review the NAT

Campaign Against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL 

1257, ¶ 48 (2000), available at www.un.org/icty/pressreal/nato061300.htm.

9. Yul Brenner in Oscar Hammerstein and Richard Rogers’ The King and I (1951).

10. Michael Ignatieff, The Virtual Commander: How NATO Invented a New Kind 

NEW YORKER, Aug. 2, 1999, at 31.

11. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 19

3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 

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VIII

Air Power, Accuracy,

and the Law of Targeting:

Why No Brave New World?

Adam Roberts1

effrey Walker’s paper on “Strategic Targeting and International Law

punchy, and splendidly heretical. I agree with much of it. It is indee

focus a discussion of targeting on one dimension of warfare. Today it is 

edly air power that is the driver of revolutionary changes in the conduct o

that presents some of the most difficult and challenging problems as r

implementation or adaptation of existing legal norms. As Mr. Walker 

generations airmen have yearned for accurate, survivable and reliable a

day/night weapons. Now they have got them. He and I agree that this s

strewn with hazards, and that there is no brave new world of precise and 

controversial bombing. I suspect that this situation reminds both of us 

cient and clever curse: “May your wishes be granted.”

However, as will be seen from what follows, I disagree with his main co

Specifically, I disagree with him about why, despite improvements in acc

role of bombing in contemporary warfare remains costly in civilian liv

struction. In addition, I do not share his extreme pessimism about the role 

of war in imposing some limits on bombing. As regards his proposed 

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more effective political control of the military

I am all in favor of it, but f

indicated below it does not solve the particular problems he identifies.

In responding to his paper I will focus on four main issues relating to 

First, the significance of the technical developments that have made 

greater degree of accuracy and discrimination in bombing than in earlier 

ond, the provisions of the laws of war that relate to targeting, and the way

they have shaped and reinforced the tendency toward discrimination in 

Third, certain problems that remain, that help to explain why air bomba

far from achieving perfect precision and discrimination. Fourth, the sp

culties that have arisen regarding the obligations on the defender to d

military activities from civilian objects. Finally I will attempt to d

conclusions.

In each of the sections below, my discussion of the issues, like Mr. Wa

focus on four wars:

• The War over Kuwait (1990–1)

• The War over Kosovo (1999)

• The War in Afghanistan (2001–)

• The War in Iraq (2003–)2

These wars have certain similarities. In all of them there have been Uni

led coalitions—though the coalitions have involved combat forces from 

sively fewer countries.3 In all, the US–led forces had more or less complete 

of the air, and used air power (including precision-guided munitions) exte

all, they were fighting against one essentially third-world State that was m

isolated diplomatically and had been subject to economic sanctions. In all

at some stage a civil war or regional rebellion ongoing in the country con

well as an international war. In short, these were all thoroughly unequal 

The bombing in these wars has been a mixture of strategic (intende

about change on its own) and tactical (in support of ground operat

Walker says of strategic bombardment: “We now have the technology b

ger the need.”4 If one interprets this to mean, as much of his paper sugges

actual uses of air power in recent wars have been very different from any 

sic visions such as those of Giulio Douhet and Billy Mitchell, I have n

with his statement. However, if he takes this to suggest that air power 

would-be solution in search of a non-existent problem, then while I s

with the spirit of his remarks I have difficulty in accepting the analysis. 

that there is a danger of using air power as a default option in situations 

whatever reason, it is not appropriate. However, for better or for worse, 

ations arise in which the application of air power is capable of achieving 

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results

usually in combination with other armed forces, whether on t

or at sea. Further, we live in an age in which the implementation of int

norms, including resolutions of the UN Security Council, sometimes dep

capacity for strategic coercion, i.e., the use of military and other pressure

State to secure its compliance with specific demands: in this process, the 

actuality of air power may have some part to play.

As in Mr. Walker’s paper itself, the main focus here is on the laws of 

bello) aspects of these wars. The focus is not on the lawfulness of the reso

(jus ad bellum). This subject, while in principle entirely separate, is not al

practice. As regards the use of air power, there is particular cause for conc

a possible overlap between jus ad bellum and jus in bello. If air power wer

(even if erroneously) to be a precision surgical instrument that can be 

low risk to the United States and with a strong likelihood of success, tha

cline the government to use it in circumstances in which, in earlier 

would have hesitated to use force. In actual cases, of course, other cons

have entered in to decisions to use force. In the first three wars under 

ation, the resort to force by the US-led coalitions was widely viewed as ju

the circumstances, the most contentious of these three being Kosovo. Th

in 2003 was and remains much more problematical. In this case the Un

and partners relied on one principal legal justification for the action: im

tion of earlier UN Security Council resolutions. This justification for th

force in Iraq was based on serious considerations, but its application w

mined by several difficulties: flawed assessments of Iraqi capabilities, a 

able denigration of the ongoing inspection process, failure to secu

Security Council support, and a failure to plan for the occupation of Ir

ever, in principle any problems that may exist under the jus ad bellum reg

international legal validity of an intervention do not affect consideration 

in bello aspects.

Because air power in general, and bombing in particular, played a s

part in these four wars, it does not follow that they are necessarily keys 

in all modern wars. For example, in the 1982 Falklands War the United 

used air power in a much more restricted and limited way than in these 

recent wars. A major bombing campaign against Argentina and its arm

would have been hard to sustain, of limited relevance to the situation, a

questionable on moral and political grounds. Such considerations wi

many future campaigns. The extensive use of air power is particularly 

able in pacification operations, for example in support of a friendly go

or an occupation regime, because it risks antagonizing the very peo

support or neutrality is needed. In these and other cases, the reasons fo

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the use of air power, or for exercising discrimination in how it is use

narrowly legal in character: they also involve considerations of interest

sense and prudence. As Mr. Walker notes, everyone involved in pla

bombing of Baghdad in 2003 “realized that it would be foolhardy to 

more china than absolutely necessary.”6 Taking all these reasons into 

Mr. Walker’s skepticism about the use and utility of strategic bomb

even if presented in broad-brush terms, is a healthy antidote to Douh

cesses in devotion to bombing.

The Impact of Technical Developments

Since the Second World War there has been a slow evolution of the mean

ery of so-called conventional weapons. The United States has been at the 

of this process. At the same time, concern about the indiscriminate 

power, including by the United States, has endured. The US bombing 

Vietnam from 1964 to 1972, and also the use of air power within South 

reflected certain improvements in technology but also reinforced thi

That was one basis for the development of the law of targeting contain

Geneva Protocol I.

At first glance, the dramatic improvement in the accuracy of air-delive

ons would appear to have improved the prospects of certain air campa

conducted in a manner that is compatible with long-established law-of-w

ples, especially the principle of discrimination.7 It has even encouraged 

that, at least in some instances, air war can comply with the more spe

about targeting contained in Protocol I. Indeed, engineers could be seen 

contributed at least as much as international lawyers to improving the p

of discrimination in the use of air power.

The principle that the use of air-delivered weaponry should be discrim

frequently repeated in all four wars, particularly by senior US governmen

itary decision-makers. The remarkable improvement in accuracy compa

lier eras was widely noted in the 1991 Iraq War. Subsequent US 

campaigns, right up to the 2003 Iraq War, reflected both quantitative an

tive developments in the use of accurate air-delivered weapons. The wa

many citizens of Baghdad went about their business in the midst of a ma

ing campaign in March-April 2003 indicates that they seemed to have so

standing of the US attempt to apply the principle of discrimination.

In all four wars, civilian casualties among the population of the ter

ing bombed were significantly lower than many forecasts made before 

mencement of military hostilities. For example, in the United Kin

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Stop the War Coalitionpublished an advertisement in March 2003 

it stated: “We want to stop a war which will result in an estimated 50

ian deaths, 500,000 injured and 2 million refugees.”8 In the subseq

War—at least in its intense phase in March–April 2003—casualties an

movements were, by any count, far below these levels. This is not t

they were not worryingly high, and cause for major concern.9 In su

agree with Mr. Walker that civilian casualties in these wars, and in par

sualties of bombing, have been comparatively low by historical standa

also agree with him that this fact does not change everything. Thus 

need to explore why, despite developments in the law and in weaponr

damage and casualties have continued. These themes are explored in 

two sections.

The Law on Targeting

Probably the law’s most important contribution in these four wars ha

part it has played in the larger overall process of improving discrim

targeting, especially targeting of airborne weapons. Since at least 186

of war have required that only armed forces and military targets sho

tacked. This apparently simple rule is in fact hugely problematical. I

been given much greater specificity in the rules on targeting containe

Geneva Protocol I.

On this matter, my emphasis differs from Mr. Walker’s. He is a skeptic 

value of the rules on targeting. There is still, as he says, an “inherent and c

irreconcilable subjectivity”10 built in to the balancing test when decisio

be made as between military advantage and protection of civilian lif

Rights Watch sees certain issues one way, while the Pentagon has a diff

on them. He even implies that there may have been a deliberate and ongo

sive process by which we have ended up with a body of combat law that 

ostensibly to balance the two “incomparable concepts”11 of military adva

civilian protection. As he puts it:

Sadly, I have come to believe this was a knowing and deliberate process all alo

agenda worked by the major powers—led by the interests of their 

establishments—during the negotiation of all the major law of war convention

find a way to present a humane face to the world while avoiding any me

restriction on the use of military force. It is poignantly ironic to note that t

historically effective niches in the law of war explicitly protect soldiers, not civ

bans on dum-dum bullets, glass projectiles, poison gas, and provisions concer

protection of the wounded and prisoners of war.12

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This is quite an accusation, but it neglects a basic fact. It is in the very 

things that combat is extremely hard to regulate; and therefore that so

more effective parts of the laws of war should be those that deal, not with 

such, but with the treatment of individuals who are hors de combat or h

into the hands of the adversary. Against this background, it is remarkable 

is any significant body of law at all that regulates combat. The most detail

this type are those in 1977 Geneva Protocol I. The fact that the United Sta

rious disagreements with parts of this treaty, which it has not ratified, do

gate the importance of these rules.

Mr. Walker’s analysis is short of concrete examples. He is not to b

for this. To prove beyond doubt that the law has a benevolent influen

geting, it would be necessary to report in detail on the process by whi

cision was made whether or not to attack particular targets; and, if so, 

weapon, at what time, and in what way. Most people, even specialists 

gic matters, simply do not have access to such information. Informat

kind might confirm the substantial positive contribution of law in the 

making process. In this context, there is a particular need for evidenc

or missions that were abandoned or modified because of undue risk t

and civilian objects.

What are the main rules of law that are applicable to targeting? The ru

Protocol I are contained in its Part IV, which is on “Civilian Populatio

particular in its Section I on “General Protection Against the Effects of H

Within this section, eleven articles—48 to 58—contain all the main ru

52.2 is particularly important:

Attacks shall be limited strictly to military objectives. In so far as objects are con

military objectives are limited to those objects which by their nature, location, 

or use make an effective contribution to military action and whose total o

destruction, capture or neutralization, in the circumstances ruling at the time

definite military advantage.

Article 52 has to be read, and implemented, in conjunction with ot

sions of Protocol I. Among the most important of these is Article 57 on p

in attack, which establishes a strong set of procedures and criteria that m

isfied in the conduct of all military attacks. For example, as regards so-ca

use” facilities—a term not used in the conventions—Article 57.2(b) sets 

gent criteria on the basis of which many planned attacks on such facili

have to be canceled or suspended.13

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These rules on targeting in 1977 Protocol I are well known to pres

lems for certain States. For example, Article 52, cited above, has bee

ject of interpretative declarations by a number of parties to the Proto

UK’s sixteen statements made at the time of ratification of the Protoc

no less than eight that relate to Articles 50 to 57. All eight articles, an

UK statements, relate in one way or another to targeting. A key them

eight UK statements is that the commander must necessarily act on th

the knowledge that was available at the time, as distinct from inform

might have been available to others, or might have emerged later. In 

commander should not be judged by an unrealistic standard. Oth

member States have made some similar interpretative statements ab

cles 51 to 57.

What is the official US line on the rules on targeting in 1977 Protoc

though it is not a party to the Protocol, the United States has indicated 

cepts and applies many of its provisions. In one major official publica

stated: “The US views the following GP I articles as either legally bindi

tomary international law or acceptable practice though not legally b

The US list includes the following articles that relate directly to targeti

• Article 51 except paragraph 6

• Article 52

• Article 54

• Articles 57–60

The fact of US acceptance in principle of these articles does not mean 

are no problems regarding the US understanding of them. US interp

while basically along similar lines to some of the statements made by NA

bers when ratifying Protocol I, sometimes go further. For example, offici

nitions of “military objectives” use language that is significantly broade

of Article 52.2 as quoted above. One US version (with italics added here f

sis) reads:

Military objectives are combatants and those objects which, by their nature, l

purpose, or use, effectively contribute to the enemy’s war-fighting or war-su

capability and whose total or partial destruction, capture or neutralization 

constitute a definite military advantage to the attacker under the circumstanc

time of the attack.16

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In one subsequent US version of this definition, namely Military Co

Instructions issued in 2003, the word ‘definite’ has been omitted.17 This 

pear to represent a further departure from the text of Article 52(2).

Some legal experts in the US armed forces have expressed serious 

about Article 52. For example, Major Jeanne Meyer, co-editor of the O

Law Handbook, stated in 2001 that this article “tries to constrict the use o

to the specific tactical military effort at hand” and “ignores the reality 

tion’s war effort is composed of more than just military components.”18 

suggesting total rejection of the provision, she urged the United States to 

pressure to accept restrictive interpretations of Article 52.2.”19 In ge

United States is anxious to retain some legal justification for attacks on c

gets that may not themselves be purely military, but which may, for exam

tribute to the military effort or constitute key parts of a regime’s infrast

All in all, it is not surprising that some commentators have indicate

about US interpretations of what constitutes a military objective. They 

interpretation as differing significantly from Article 52, and as tending 

more permissive definition.20 Are such expressions of concern well foun

could question the extent to which the current US position really repre

sometimes claimed, a shift as compared to earlier US positions; and als

the US positions generally have not been similar in their meaning to som

terpretative declarations on Article 52 made by certain other States. How

clear beyond doubt that the definition of military targets in Article 52 po

problems for the United States despite its general acceptance of this arti

over, there are some differences of national approach on these matters, 

between the United Kingdom and the United States; and these can cause 

during coalition military operations.

Is the law as it stands satisfactory? Mr. Walker suggests that it is not. H

right that the provisions of 1977 Protocol I are not as strong as many w

and that when it comes to actual decisions on actual targets, they somet

considerable scope for interpretation and even for a necessarily subjecti

ing process. However, he does not suggest specific changes, and he go

when he states that “there really is very little if any truly black letter l

area.”21 The real problem may be, not the weakness of the law itself, bu

broad official US interpretation of it. Although Mr. Walker is critical o

tice, especially the danger it poses to civilians, he does not explicitly 

above-quoted US statements that, arguably, stretch almost to breaking 

very scope for interpretation of which he is critical. There are serious a

both for and against the US emphasis on concentrating attacks on the 

gime’s sources of power and war-sustaining capability—and the debate 

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adequacy or otherwise of the existing law needs to take account of thi

important debate.

My main disagreement with Mr. Walker’s treatment of the law on ta

lates, not to the law’s content or interpretation, but to its effect. In the fou

der consideration there is evidence that, so far as the United States is conc

effect of all the provisions on targeting contained in Protocol I, and even o

restricted list of those provisions accepted by the United States, has been m

than the vague and subjective requirement for proportionality mention

Walker’s paper. This is not the place to elaborate on this point, or go into 

relevant sources.22 At this stage it may be enough simply to assert that the 

identifying and attacking targets in these four wars has been influenced b

quirements, including those of 1977 Protocol I. The fact that the US arm

have to defend their actions by the criteria established in the law of war has 

effect on target selection and on policy generally than Mr. Walker allows. H

has had less effect in mitigating the horrors of war than might have be

Some of the reasons for this are explored in the next section.

Continuing Problems in the Use of Air Power

The increased accuracy of air-delivered weapons, while undoubtedly 

tous development in the history of war, is no cure-all. Even when cou

attempts to observe legal restrictions on targeting, it cannot guarantee e

cess or no deaths of innocents. In the course of these four wars, figures f

deaths have apparently not decreased in proportion to the increase in 

precision-targeted weapons. Why is this so?

Despite the improvements in accuracy, all four bombing campaigns a

ternational concern, largely on account of the danger to non-combata

were reports of many attacks causing significant civilian casualties an

Accuracy in hitting the intended target area did not itself necessarily elim

problems. The US bombing of the Amiriya bunker in Baghdad on Fe

1991 caused approximately 300 civilian casualties. In the Kosovo war 

railway bridge was bombed when a passenger train was crossing it, with 

of life. In Afghanistan, the International Committee of the Red Cross wa

Kabul was hit twice, on October 16 and 26, 2001; and there were numer

quent incidents in which large numbers of villagers were killed.

The question is: what are the specific reasons why the combination of 

accuracy of air-delivered weapons and increased acceptance of certain r

ing to targeting have not produced a more dramatic change for the b

Walker suggests that the main problem is that the relevant body of la

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especially as regards protection of civilians; and that the United States, 

superpower left standing, is in a situation of impunity.23 However, a bro

of factors is at work, many but not all of which are recognized in his pa

hostile relations between adversaries in the four wars, at least eleven type

tional problems can be identified:

1. No weapon is more accurate than the intelligence on which its use is 

this may sometimes be wrong or out of date, resulting in civilian damage an

2. Many targets are selected at very short notice, for example by grou

personnel in radio contact with aircraft overhead. This can mean that 

sometimes attacked without being subjected to cross-checking of inform

lengthy legal and policy consideration. As Mr. Walker states, “fewer targe

planned through the target planning cycle and air tasking order.”24

3. Precision-guided weapons are generally better at hitting fixed objec

buildings, than moving objects that can be concealed, such as people 

This could lead to a perverse prioritization in favor of targeting buildin

ever, preliminary evidence from the 2003 war suggests effective use of 

even against tanks that had been concealed under tree cover.)

4. In all countries, some military targets, whether fixed or mobile, are l

in close proximity to civilians and civilian objects. Thus, even when a m

get is accurately hit, there may be significant “collateral” damage, incl

struction of houses and deaths of civilians.

5. As a response to the increased accuracy of targeting, the “receiving S

deliberately co-locate military objects close to civilians and civilian obj

making it harder to attack them without harming civilians and incurrin

tional criticism on that account. (This problem is discussed further belo

6. So-called “dual-use targets,” such as a power station producing ele

both military and civilian uses, are sometimes attacked—often with seri

and long-term effects on the infrastructure of society.

7. Weapons, even if delivered with great precision, may themselves b

nature as to cause serious and indiscriminate damage. For example, it is 

that cluster bombs frequently pose a hazard to civilians, including child

may continue to do so long after a war is over.

8. Malevolence, callousness, incompetence, and poor or inappropria

can also lead to attacks on the wrong places or people.

9. The greater accuracy of weapons risks creating a high level of ang

those individuals and States responsible for target selection. If it is 

(whether rightly or wrongly) that what is hit is what a targeter intended to 

may be a greater sense of outrage among the population of the target St

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international opinion generally. There is ample scope for conspiracy the

why a particular target was attacked.

10. The greater accuracy of bombing makes possible certain forms 

such as targeted killings of individuals, that may be exposed to a wide ran

and other criticisms. One example is a targeted killing that risks death

numbers of civilians (e.g., the Baghdad restaurant attack intended to ki

Hussein at the start of the 2003 Iraq War). Another example that could i

cism, mainly on human rights and jus ad bellum grounds, would be a tar

ing (e.g., of an alleged terrorist) in the territory of a foreign country wh

no state of war with, or within, that country. Absence of formal consent 

ernment would aggravate the problem.

11. In an era marked by frequent threats of “strategic coercion” agai

States to change their policies or even their regimes, there is sometimes t

tween the perceived need to make an impressive threat (such as that of “

awe” against Iraq in the run-up to the 2003 war) and then, if force is actuall

need to observe certain limitations on its use. An actual military campaign 

risk of conforming more to the preceding threats than to the legal and oth

erations that might point in the direction of using force discriminately.

The problem of “friendly fire” confirms that the reasons for disaster

late particularly to poor intelligence and hasty decision-making. In man

the two wars in Iraq and in the Afghan war, US bombings led to casualt

coalition forces. It appears that in most instances the target was incorrec

fied or a weapon incorrectly “locked on” to the wrong target. “Friendly fi

laws-of-war issue as such. However, it is a legal issue under the national 

States concerned, and can lead to national legal action—as it has do

United States as a result of an incident involving the death of Canadian 

Afghanistan.25 Incidents of US “friendly fire” have also caused conside

cern in the United Kingdom, especially as a result of the 2003 Iraq War.

quency of such incidents confirms the thesis of this commentary, tha

means of war can lead to disaster not because the law is weak, but becau

chaos, confusion and sheer malevolence of war have survived into a new 

A further problem with the new type of US bombing campaign con

ceptions of the balance of risk. In the eyes of third parties, it can easily lo

United States puts a lower value on the lives of Iraqis, Serbs or Afghans—

vilian—than it does on its own almost-invulnerable aircrews. Mr. Walke

share this view when he refers to “conflict marked by its [the United St

technological superiority and its leadership’s aversion to friendly casu

most always at the expense of higher civilian casualties.”27 I am skeptical 

proposition. It is far from proven that there is any straightforward link b

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safety of US aircrew and higher civilian casualties. It might just as easily 

that the capacity to make decisions and to release (or refrain from releasi

ons in relative safety may contribute to the careful and discrimin

airpower. However, the hostile perception has some plausibility. Bom

high altitude must sometimes increase the risk of a target being inaccurat

fied; and must also increase the time a weapon takes to reach its tar

ground—by which time, for example, a previously empty bridge may h

senger train running across it. The perception of invulnerable warriors 

lives of civilians underneath feeds those hostile views of the United States 

a background against which terrorism can flourish.

Perhaps the most profound problem of all regarding the use of bomb

the United States and its allies have developed a concept of war aimed a

the sources of an adversary’s power, not all of which may be strictly and 

military in character. Mr. Walker appears to equate this with “targeting 

the people.”28 He is rightly opposed to the idea of a policy aimed at civil

cizing it on both legal and practical grounds. However, the US doctrine 

essarily one of targeting the will of the people. Rather, it aims prin

targeting the key sources and instruments of a regime’s power—some

may in particular cases be very different. This is the biggest single challe

existing legal regime on targeting.

The debate about the bombing of the TV station in Belgrade in 1999 e

the difficulty of determining what is a legal target. Mr. Walker calls this a

of “ill-advised expansions of the definition of ‘military object’ even und

rent rules.” However, it is not clear that what is involved is an expansion o

nition of military object. On the basis of the pre-1977 law, especially 

Hague Cultural Property Convention, Article 8(1)(a),29 a serious argum

made that attacks on a broadcasting station are not necessarily illegal. Th

is rather whether 1977 Protocol I drastically changed this situation by 

the definition of “military object.” It may or may not be relevant that in 

slav revolution of September/October 2000 the resisters to the Milose

treated the same TV station as a high-priority target. One thing is certain

ways, and quite properly, be difficult to persuade TV reporters that tele

tions are legitimate targets!

The Kosovo War raised many other issues indicating how easily a 

campaign can conflict with the targeting provisions of the laws of war. 

ple, there were debates about what NATO should do when it started to 

military targets: should it then abandon the bombing campaign, or m

other targets? There is also the closely related analytical question: did 

dual-use targets, and/or a perceived threat of further attacks directed at ci

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civilian objects, play a major part in the Yugoslav decision of June 3, 199

the terms that were being pressed upon it?30 It is difficult to provide a defin

to that last question. One can certainly doubt whether any “single-factor

tion is adequate. However, while agreeing with Mr. Walker that Russia’s 

ment of Serbia was of crucial importance, I cannot agree with his stron

that “air power didn’t win the Kosovo campaign.”31 At the very least it w

portant contributory factor. The more difficult question is whether the 

threat to specifically civilian objects and people was a part of the equation 

tributed to Serbia’s defeat.

Defender’s Obligation to Distinguish Military Activities from Civilia

There are extensive requirements that apply as much to defenders as to 

including the requirement not to locate military forces and equipment 

areas or in protected buildings such as hospitals or mosques.32 In these 

it appears that these legal requirements were deliberately violated by a

in order to induce the US-led coalition to engage in an attack that caus

casualties and destruction. On several occasions the United States ass

its opponents had faked civilian damage or, by illegally locating militar

or close to civilian ones (for example putting gun emplacement

mosques), had willfully created a situation in which US bombing, 

ahead, would be likely to cause civilian damage and incur international 

Some evidence from the 2003 Iraq War in particular suggested that this 

been happening systematically.

In this reading of events, the laws of war are being cynically misused i

make the attacker’s actions appear indiscriminate and disproportionate. 

duct, if it were proved to have the intention imputed here, would of course 

a tribute of sorts to the practical importance of the principles of proportio

discrimination. Such conduct is all part of what Brigadier General Charl

has called “lawfare,” or “the strategy of using—or misusing—law as a sub

traditional means to achieve an operational objective.”33

Why is there such a tendency of States subjected to coalition bombin

military assets in or near civilian objects such as schools and mosques? 

answer may be that it is a logical if deplorable reaction to the situation 

effective US dominance of the air. If the United States and its partners c

strike anywhere, or at least it is believed that they can do so, it is not surp

its adversaries should locate their military assets in a place where any 

would be open to condemnation in the court of world opinion. Similarl

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dominance the United States exerts on the battlefield generally may ind

saries to other illegal forms of response, including international terroris

Conclusions

There is no denying some obvious truths about the impact of technolog

opments. The increased accuracy in the delivery of weapons has had sign

fects; ought to improve possibilities that bombing can bear a reasonable 

the law of armed conflict; and may contribute to a reduction in numbers 

casualties in the territory being bombed. However, as this survey has 

none of this means that we are in a brave new world of casualty-free w

deed, the new accuracy in bombing poses a range of difficult and even th

problems, many of which relate to the rules on targeting in the laws of 

problems contribute to Mr. Walker’s pessimistic conclusion that “any 

notions . . . of the laws of war are basically gone. They have become wha

cynical among us have always suspected—merely an admirable collect

claratory and aspirational normative statements, to be obeyed or not as t

cies of the situation dictate.”34

I cannot agree with this conclusion. Mr. Walker admits that he has “

into a corner.”35 Yet his account of the corner is not completely convin

right to focus on the uniqueness of the situation where there is only 

Power. However, what he says about the supposed impunity of the Un

and its allies does not reflect accurately the full range of constraints on 

makers. True, US decision-makers are protected from the attentions of 

national Criminal Court (though in theory their British counterpart

and in some measure they are protected from military reprisals as ther

versary of remotely equal military power. However, US decision-m

volved in such matters as targeting must always have in mind the poss

wide range of adverse consequences. Any actions which fly in the face 

cent opinions of humankind, or which plainly violate the laws of war, ma

adverse publicity, internal US legal procedures, local opposition in the a

erations, and a loss of support both domestically and internationally that 

dermine ongoing US policies. In the twentieth century the United States 

unique international role thanks largely to its success in building, maint

leading coalitions of States. That success is now in jeopardy, as the di

number of member States in the coalitions between the 1991 and the 

wars perhaps indicates.

What, if anything, can the United States and allies do in regard to th

(and admittedly modest) body of law as it applies to the use of air power 

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principle three courses of action are possible. All three have strengths, an

dent conduct of policy must involve elements of all of them.

1. Adhere strictly to the existing black-letter law on targeting, especially 

outlined in 1977 Geneva Protocol I. This course has serious merits, and M

despite his conclusion that there is “very little black letter law,” shows his 

for it, advocating strongly a default rule of not attacking civilians.36

2. Recognize some right to interpret and adapt the rules in practice. Th

many States have made interpretative declarations in respect of some of 

suggests the strength of this approach. It indicates that the rules can prop

terpreted to take account of changing circumstances and the legitimate i

States. In principle some degree of flexibility in treaty interpretation ca

important function if the law is not to be seen as rigid and irrelevant. 

there is a difference between a legitimate interpretation of the rules and 

ceptable departure from them. Any actual departure needs to be manage

if it is to be accepted by other States. A purely unilateral US departure fro

geting provisions of Protocol I would be problematical. A possible diffic

course is that different States might want to adapt or weaken the rules i

ways, until very little was left of the treaty regime.

3. Revise the law. In general, there is remarkably little pressure to 

amend the basic rules on targeting, including those in 1977 Geneva P

There has been a dearth of specific proposals for formal agreement on t

ters—whether to strengthen the law by making it more restrictive, or alt

to dilute it in order to bring regime-supporting activities and institution

plicitly into the category of legitimate targets. The main impetus for new 

as the use of weapons is concerned, is focused on such highly specific task

ing or prohibiting the use of cluster bombs.

Perhaps because he senses the difficulty of all these courses, Mr. W

cludes with a plea for political control of the military, which he sees as “th

fective way to allocate risk in an open and coherent fashion.”37 I am all 

political control of the military, but to imagine that it is a solution to the 

addressed in his paper is sheer escapism. The track record, including rec

gests that on the particular issue that concerns us here—effective imple

of the law of armed conflict—political control often leads to confusion a

We have heard eloquent testimony at this conference suggesting that in 

it was political control that contributed to the remarkable failure of the 

to make plans for the occupation phase in Iraq. Similarly, in January 2

largely at the political level that a number of confusing statements w

about the status and treatment of detainees at Guantanamo. Unfortun

the US and UK governments are somewhat distrustful of their own bur

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and those in the bureaucracies with specialist skills (including the law) s

suffer in consequence.

My conclusions are that despite dramatic improvements in accuracy 

in an era in which the use of air power offers an escape from the cruelties 

ters of war; that, albeit alongside a wide range of other considerations, th

currently exists does offer a useful practical guide to targeting; that no co

even the United States, can afford to ignore basic legal provisions applica

geting; that the interpretation to be placed on the law of targeting poses 

for many countries, and not just the United States; that the law faces a m

lenge in doctrines based on attacking the adversary regime’s sources of p

implementation of the laws of war, while certainly a matter for politic

must also remain central to the activities, planning and ethos of the arm

and, finally, that recent air campaigns show how complex and paradoxi

mentation of the law can be—but not that it has ceased to be an impor

dard for guiding the conduct of military operations.

Notes

1. Sir Adam Roberts is Montague Burton Professor of International Relations 

University and Fellow of Balliol College.

2. I have deliberately not followed the common and ethnocentric practice of refe

events of 1990–91 as “the first Gulf War” and those of 2003 as “the second Gulf W

was a “first Gulf War,” it was the Iran-Iraq War of 1980–88, which was a more catastr

for both societies than either of the subsequent wars. It is hard to justify the use of t

that appears to ignore that war completely.

3. The term “coalition forces” is used here as convenient shorthand for the Unite

forces in all four wars. As regards Iraq in March–April 2003, it is questionable whethe

appropriate to describe what was principally a “coalition” of only two armed forc

United States and United Kingdom, with the addition of a few Scud-hunting 

commandos in the western desert, and Polish troops assisting US Navy Seals in the 

use of the term was much criticized, mainly because it was seen as implying 

involvement in the conflict of a larger grouping of countries than was in fact the ca

4. See Mr. Walker’s article, Strategic Targeting and International Law, which is Ch

this volume, at 121.

5. On international legal aspects of the decision to use force in Iraq, see Adam Robe

the Use of Force After Iraq, 45 SURVIVAL 31 (Summer 2003).

6. Walker, supra note 4, at 123.

7. The principle of discrimination, which is about the selection of weaponry, m

targets, includes the idea that non-combatants and those hors de combat sho

deliberately targeted.

8. Half-page advertisement for Stop the War Coalition, THE GUARDIAN (London), M

at 17.

9. An independent US think-tank has estimated that between 3,200 and 4,300 c

combatants died as a result of the military operations in Iraq between March 19 a

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gq

2003 Conflict, Project on Defense Alternatives Research Monograph no. 8, at 2–3 (

10. Walker, supra note 4, at 126.

11. Id.

12. Id. at 127.

13. Mr. Walker cites part of Article 57.2(b) of 1977 Protocol I in his paper, id. at 1

14. Declarations made by States that have a bearing on their understanding of 1

Protocol I, Article 52, include those by Australia, Belgium, Canada, Germany, Ir

Netherlands, Spain and the United Kingdom. Texts in DOCUMENTS ON THE LAWS O

11 (Adam Roberts and Richard Guelff eds., 3d ed. 2000).

15. Judge Advocate General’s School, Operational Law Handbook, JA 422, ch. 2, p

16. US Navy/Marine Corps/Coast Guard, The Commander’s Handbook on the L

Operations, NWP 1-14M, MCWP 5-2.1, COMDTPUB P5800.7 ¶ 8.1.1 (1995). For a

text, see ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW 

OPERATIONS 402 (A. R. Thomas and James C. Duncan eds., 1999) (Vol. 73, US 

College International Law Studies).

17. US Department of Defense, Military Commission Instruction No. 2, Crimes an

for Trials by Military Commission, April 30, 2003, available at www.defenselin

May2003/d20030430milcominstno2.pdf.

18. Jeanne M. Meyer, Tearing Down the Facade: A Critical Look at the Current Law on 

Will of the Enemy and Air Force Doctrine, 51 AIR FORCE LAW REVIEW 143, 166, 181 (

19. Id. at 182.

20. See, e.g., Bofaxe No. 256E of May 15, 2003, issued by the Institute for Internati

Peace and Humanitarian Law of the Ruhr-University Bochum, available at http://ww

21. Walker, supra note 4, at 130.

22. On the relevance of legal considerations in the bombing campaign in the 1991 G

Adam Roberts, The Laws of War in the 1990–91 Gulf Conflict, 18 INTERNATIONAL SE

(Winter 1993/94).

23. Walker, supra note 4, at 129.

24. Id. at 123.

25. On September 13, 2002, two US pilots, Major Harry Schmidt and Maj

Umbach, were charged by the US Air Force following an incident in which they 

bombed and killed Canadian troops in Afghanistan on April 17, 2002. These w

criminal charges against US pilots in connection with the events in Afghanistan. In 

of 2003 Major Umbach announced plans to retire from the military with a reprim

file. Meanwhile Major Schmidt initially declined an offer of administrative punis

later agreed to accept a nonjudicial hearing. At that hearing, on July 6, 2004, he 

guilty of dereliction of duty and was punished with a reprimand and a forfeiture o

in pay. He lost his final Air Force appeal on August 3, 2004. News report in 

(London), Sept. 14, 2002, at 16; and Associated Press reports of June 25 and Octob

and July 7 and August 3, 2004.

26. In October 2003 a UK soldier, Trooper Christopher Finney, was awarded 

Cross—the second highest honor for gallantry—for his bravery under US “friendly 

2003 Iraq War. In November 2003 the BBC’s World Affairs Editor published an 

another such incident in Iraq in which at least 16 people were killed and 45 injure

SIMPSON, THE WARS AGAINST SADDAM: TAKING THE HARD ROAD TO BAGHDAD (

27. Walker, supra note 4, at 128.

28. Id. at 124.

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gpy 

May 14, 1954, 249 U.N.T.S. 240, reprinted in DOCUMENTS ON THE LAWS OF WAR, su

at 373.

30. Re the factors that led Milosevic to back down, see Adam Roberts, The Laws o

Kosovo, in LEGAL AND ETHICAL LESSONS OF NATO’S KOSOVO CAMPAIGN 416–1

Wall ed., 2002) (Vol. 78, US Naval War College International Law Studies). As ment

for a challenging argument that the NATO bombing was a key factor in leading to th

back down, and that one element was a belief that the bombing would become less d

if Milosevic did not settle, see Stephen T. Hosmer, The Conflict Over Kosovo: Wh

Decided to Settle When He Did, RAND report MR-1351-AF, at 91–107 (2001).

31. Walker, supra note 4, at 121.

32. Geneva Convention Relative to the Protection of Civilian Persons in Time of W

1949, art. 18, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAW

supra note 14, at 301; Protocol Additional (I) to the Geneva Conventions of 12 Augu

Relating to the Protection of Victims of International Armed Conflicts, June 8, 1

1125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 14, 

States against which the United States fought in recent wars—Afghanistan and Iraq

parties to 1977 Protocol I.

33. Brigadier General Charles Dunlap, US Air Force, Air and Information Op

Perspective on the Rise of “Lawfare” in Modern Conflicts, presentation prepared for th

War College Conference on Current Issues in International Law and Military 

Newport, Rhode Island, June 25–7, 2003.

34. Walker, supra note 4, at 130.

35. Id.

36. Id.

37. Id.

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IX

Targeting and Humanitarian Law:

Current Issues

Michael N. Schmitt1

n the 21st century, the art and science of targeting, particularly in 

environment, has become extraordinarily complex. So too has co

with humanitarian law. Battlefields of centuries past were linear in 

with opposing forces facing each other across a FEBA (forward edge o

tle area). This positioning, together with the limited range and m

weapons systems, rendered civilian populations relatively immune to 

effects of warfare. Civilians were either distant from the battlefield 

hostilities drew near.

The advent of long-range strike capability led to a revolution in mil

affairs.2 Civilian populations and objects were not only placed at greater 

their proximity to lucrative, and now viable, military and infrastructu

but civilians and civilian objects became objectives themselves in variou

bombing doctrines.3 Humanitarian law reacted by affirming their immu

direct attack, most notably with the 1977 codification of the distinction p

Protocol Additional I to the Geneva Conventions.4

Today, technological advances in range, precision, and stealth, as well a

parency resulting from advanced C4ISR technologies,5 have again transf

nature of warfare. Entire countries now comprise the battlespace. And the t

cal “haves” can strike the assets of their ill-equipped adversaries with 

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impunity. For instance, during Operation Iraqi Freedom, coalition forces lo

fixed wing aircraft to enemy fire.6 Such asymmetry has momentous consequ

only for combat operations, but also for the application of humanitarian la

This article explores several of the more pressing legal issues invo

geting during 21st-century armed conflict—targeting doctrine, target

ponent’s leadership, targeting terrorists, the use of human and civil

shields, treating military installations as a unitary target, and comp

work attack. Each is especially relevant given the likely use of “lawfa

ponents of the United States and its coalition partners, most 

demonstrated during Operation Iraqi Freedom.7 Humanitarian la

come a permanent fixture on the modern battlefield. Those who igno

ality do so at their own risk.

Targeting Doctrine, Compellance Campaigns, and Military Obje

Effects-based operations (EBO) have replaced attrition targeting in US 

In attrition warfare, extensive pre-planned target lists are developed a

are then destroyed serially, while engaging targets of opportunity as lo

duced to basics, the enemy is defeated by progressively weakening it

forces. In contrast, effects-based operations represent “the maturati

technologies merged with the theory of targeting for systematic effect r

absolute destruction.”8 The confluence of three factors makes EBO po

vanced technologies; effects-based planning; and parallel warfare, a ne

of operations.9

Technological advances enable effects-based operations by generatin

tions for attack. For example, the use of low-observable (stealth) techn

the F-117 Nighthawk or B-2 Spirit aircraft permits smaller attack packag

stealth aircraft need no escorts.10 This frees systems that would otherwise 

for escort duties to conduct attacks themselves. It also heightens the lik

mission success by making attacks less detectable than would be the case 

etration by a large package.

Advances in precision also facilitate effects-based operations. The Jo

Attack Munition (JDAM) constitutes the great leap forward in this regar

are guidance tail kits that use an inertial navigation system and global p

system satellite (GPS) linkage to achieve a CEP (circular error probable—

a circle within which 1⁄2 of the bombs will strike) of approximately 20 fee

tached to free-fall 1,000 and 2,000-pound bombs.11 A 500-pound varian

the inventory will improve accuracy and allow aircraft to carry more we

sortie. Nearly all attack aircraft can carry the JDAM, and each w

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independently targetable. Thus, even single

seat fighters such as the F1

strike multiple targets during a single sortie. JDAM’s bargain price tag o

mately $21,000 per tail kit makes it an affordable option against the vast m

targets. Combined, these characteristics dramatically increase the num

gets that can be struck in a very short period with a high degree of accur

net result is the capability to conduct “shock and awe” campaigns, i.e., c

that stun opponents into confusion and dismay.

Advances in information technology also enable effects-based oper

formation systems now make it possible to “rapidly collect, share, acces

nipulate information,” while sometimes linking the sensor directly t

system.13 By doing so more quickly and comprehensively than an oppo

by using information technology to blind the enemy), friendly forces c

inside his OODA (observe, orient, decide, act) loop.14 Paralysis eventuall

The second element of EBO is effects-based planning. This method o

seeks to achieve specific effects with the least risk, in the shortest time po

with minimal expenditure of resources by considering both direct and i

fects. Direct effects are “immediate, first order consequences,”15 i.e., th

directly caused by the weapon. Classic attrition warfare emphasizes dir

However, effects-based planning also factors in indirect effects—“the de

or displaced second- and third-order consequences of military action.”1

example is loss of support for a regime that appears inept or impotent in 

repeated enemy attacks.17

Both direct and indirect effects have three fundamental characteristic

is the cumulative nature of individual effects. This occurs when the over

of various attacks is greater then the sum of the individual attacks them

attacks operate synergistically. Loss of support for the regime in the exa

above exemplifies this phenomenon.

Cascading effects are “indirect effects [that] ripple through an adver

system, often influencing other target systems as well.”18 Typically, t

when striking targets at a higher level of conflict. For instance, damaging 

level command and control net will influence lower levels of the conflict 

ity to receive intelligence and direction from above, and to coordinate o

with other units, diminishes. Targeting leadership represents perhaps th

of a cascading effects focused mission.

Collateral effects are the unintended consequences of an attack.19 To 

that foreseeable collateral effects affect civilians or civilian objects, the hum

law principle of proportionality requires balancing them against the milit

tage that accrues from attacking the target.20 Further, although it is s

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questioned whether reverberating effects must be assessed during prop

calculations, US doctrine affirmatively requires planners to consider them

Effects-based planners deconstruct target systems to identify tha

thereof the neutralization or destruction of which best achieves the des

Sensitivity to the typology of effects expands the universe of possible att

to yield that result. Moreover, targeting only components of the target sy

erating the desired effect means tasking fewer sorties, thereby increasing 

ability of weapons systems for missions against other targets. EBO a

opportunities to avoid causing collateral damage and incidental inju

words of one Pentagon briefer, “The best way to mitigate collateral dam

strike the stuff you need to strike—or affect the stuff you need to affect

As to the objects or individuals against which EBO is most effective, 

understand that the effect sought determines the precise target; catego

gets cannot be assessed in the abstract. That said, because Colonel John 

strategic rings concept continues to resonate in airpower circles, politi

ship, economic systems, supporting infrastructure, population, and mili

remain attractive targets to planners. 23 Focusing on these key target set

imply that civilians or civilian objects should be attacked directly, althou

be discussed later, some commentators are suggesting exactly that. Ins

creatively identifies targets likely to affect, but not necessarily harm, thes

centers of gravity.

In addition to a fresh planning approach, EBO leverages a new concep

tions, Parallel Warfare and Simultaneous Attack.24 Traditionally, warfare 

and sequential. In an oversimplified example, because planners usually de

sential to establish air superiority before conducting a concentrated bom

paign against other targets, the enemy air defense system typically dom

tasking orders in the early days of a conflict. Within that target set, the a

tended to be sequential—early warning radars, then interceptor operatio

followed by airfields and surface-to-air missiles. To a measurable degre

proach dominated planning during Operation Desert Storm in 1991.

Serial and sequential attack evolved into parallel and sequential attack

elements of a single target system are struck simultaneously, but systems 

quentially. For instance, Operation Allied Force, the 1999 NATO confl

Yugoslavia, was planned as a phased air campaign: Phase 0—deploy; Ph

superiority over Kosovo; Phase 2—military targets in Kosovo; Phase 3—

military and security forces in the Federal Republic of Yugoslavia; and 

redeploy. Once operations began, however, the seemingly bright lines fa

air superiority attacks underway, political pressure mounted to stop th

slaughter of the Kosovar Albanians. When the weight of attack shifted t

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targets in Kosovo in response to such pressure, calls for attacking regi

grew louder in the belief that Milosevic held the key to ending the conf

ceptable terms.

Inevitably, a new concept of operations emerged, one that leverages th

logical superiority of US forces and fits neatly with effects-based pla

proaches—parallel and simultaneous attack. Illustrated by Opera

Freedom, this concept calls for simultaneous attack on every element 

system, as well as on all systems, from the initiation of hostilities. The be

concept is that it encourages treating the enemy as a single system, ther

advantage of cascading and cumulative effects occurring across what 

merly treated as separate systems. This frees up weapons systems for oth

which in turn increase the intensity and speed of the campaign.

The dilemma with EBO from the humanitarian law point of view is th

cides with an era in which technological advances and dramatic asym

military capabilities make possible coercive strategies that seek to 

compellance strategy) an opponent to engage in, or desist from, a particu

of conduct.25 The archetypal example was Operation Allied Force, whic

signed to compel President Milosevic to return to the bargaining table an

tematic mistreatment of the Kosovar Albanian population.

If one is trying to conquer an enemy absolutely, destroying its militar

attrition warfare, albeit less efficient and effective than EBO, makes so

given the objective, the military is a logical center of gravity. But if the o

compellance, force must be applied surgically, striking at centers of gravi

alter the opponent’s cost-benefit analysis, without imposing costs so g

render him either intransigent or irrational.26 Because the objectives u

the use of force determine centers of gravity, they may shift from th

armed forces to non-military targets dear to the civilian population or lea

Indeed, as Allied Force demonstrated, striking military targets may ac

bolden the civilian population.28

Since effects-based targeting involves precisely this sort of search for 

to both military and political objectives, it subtly suggests an expansive v

appropriate targets and target sets in a conflict. For instance, dual-use fa

come particularly appealing targets because the attacker not only benefit

struction or neutralization of the target’s military value, but also from c

effects on the civilian population.

Lieutenant General Michael Short, Air Component Commander for 

Allied Force, made it clear that this is how commanders tasked with co

missions think. In a controversial interview, General Short was reported a

felt that on the first night the power should have gone off, and major bridg

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Belgrade should have gone into the Danube, and the water should be cu

next morning the leading citizens of Belgrade would have got up and aske

we doing this?’ and asked Milosevic the same question.”29 A crescendo o

followed, for he seemed to be suggesting that in a compellance campaign 

propriate to attack civilian targets because this would hasten victory.

General Short backtracked somewhat at a 2001 US Naval Wa

conference on the Kosovo campaign. After stating that the center of g

“Milosevic and the men and women around him who depend upon him 

he, in turn, depends upon,” he stated,

I do not think that you are so naïve that I do not say to myself and to my plan

this will also make the Serb population unhappy with their senior leadership 

they allowed this to happen. But that is a spin off—a peripheral result—of me t

a valid military objective.30

The problem is that Article 57 of Protocol Additional I, which the Un

accepts as reflective of customary international law, provides that “[w]he

is possible between several military objectives for obtaining a similar m

vantage, the objective to be selected shall be that the attack on which m

pected to cause the least danger to civilian lives and to civilian objects

collateral damage and incidental injury are only lawful when they are un

consequences of an otherwise proportionate attack selected as the most 

tarian” option from among equally militarily advantageous alternatives

In fact, we are seeing these sorts of fissures in the guise of both interp

agreement and revisionist claims of the inadequacy of the humanitarian l

tion of “military objectives.” Article 52 defines military objectives as “obj

by their nature, location, purpose or use make an effective contribution 

action and whose total or partial destruction, capture or neutralization, 

cumstances ruling at the time, offers a definite military advantage.”32 P

and III of the Conventional Weapons Convention33 and the Second Prot

Cultural Property Convention,34 as well as many military manuals an

material (including those of the US),35 repeat this formula.

While even the United States accepts this as the correct articulation o

concept of “military objective,” explanations of the standard differ. Mo

the United States takes an expansive stance. For instance, the author

Navy’s The Commanders Handbook on the Law of Naval Warfareinclude

taining” activities within the scope of the phrase.36 Similarly, US joint doc

vides that “[c]ivilian objects consist of all civilian property and activities 

those used to support or sustain the adversary’s warfighting capability.”

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This interpretation has generated some negative reaction, particula

the non-governmental organization (NGO) community and academi

stance, one respected academic has opined that

Acts of violence against persons or objects of political, economic or psych

importance may sometimes be more efficient to overcome the enemy, but a

necessary, because every enemy can be overcome by weakening sufficiently its 

forces. Once its military forces are neutralized, even the politically, psycholog

economically strongest enemy can no longer resist.38

Such assertions are overly simplistic. First, they assume that both side

flict are willing to commit the resources necessary to conquer the enemy. 

Allied Force demonstrates that this is not always the case. It may well be th

is seeking limited objectives and therefore only prepared to employ (or r

necessary to achieve those specific objectives. In the campaign against t

Republic of Yugoslavia, NATO explicitly ruled out the use of ground forc

effectively pre-announcing its unwillingness to commit all the resources 

posal to fully neutralize the Yugoslavian military. Instead, NATO’s strat

successively impose costs on Milosevic until his cost-benefit calculatio

enough to force him into compliance with its demands.39 Indeed, given 2

attitudes towards the use of force, and despite the conquest of both Afgha

Iraq by the United States and its partners, most States initiating a conflict a

seek limited objectives not involving conquest, and therefore will be unwil

the forces that would be required to fully “neutralize” its opponent. Any 

convince States to narrowly interpret “military objective” because “eve

can be overcome by sufficiently weakening its military forces (albeit prob

fails to take cognizance of the realities of modern conflict.

The explanation offered above also rather optimistically assumes th

ization of enemy forces is sufficient to achieve one’s objectives. Howev

States and coalition forces have suffered more casualties in Iraq since 

Bush declared hostilities at an end than during the preceding period in w

“neutralized” the Iraqi military as an organized armed force. Clearly, v

quires much more than simply defeating one’s opponents on the field o

Humanitarian concerns may actually auger against an overly restrict

tion of military objective. Consider, again, Operation Allied Force. H

limited its attack to Yugoslavia’s military forces, Milosevic might n

yielded, for he could have simply sheltered his forces while waiting for 

solve to dissolve. In the process, identifying and destroying military for

have become more difficult as attacks reduced the number of unambi

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vulnerable targets. The likelihood of collateral damage and incidental inj

resultantly have increased. Many analysts feared exactly this would ha

the decision not to mount a ground campaign became public—that 

would wait out NATO while his centers of gravity remained intact and 

slav population suffered (and his support grew). Without doubt, limiting 

sets to enemy military forces can paradoxically sometimes be less hum

than embracing a broader interpretation of military objectives.

Although few States explicitly accept the overt US extension to “war s

targets, the definition of military objectives is nevertheless generally ap

textually. The Report to the Prosecutor of the International Criminal Tr

the former Yugoslavia (ICTY) on the NATO bombing campaign provid

stance, that

When the definition is applied to dual-use objects which have some civilian 

some actual or potential military use (communications systems, transp

systems, petrochemical complexes, manufacturing plants of some types), o

may differ. The application of the definition to particular objects may al

depending on the scope and objectives of the conflict. Further, the scope and o

of the conflict may change during the conflict.40

That there is a gray area regarding the meaning of military objective

haps best illustrated in the controversy generated by the NATO attack o

grade’s Radio Televisija Srbije (RTS) facility. The ensuing litigatio

European Court of Human Rights focused on whether the facility was a c

ject.41 Although the Court eventually dismissed the case on jurisdictiona

and despite the fact that the ICTY prosecutor found that there was insuf

sis to indict,42 many in the humanitarian law community believe the atta

lawful under the circumstances. This despite a prominent military la

inclusion of “broadcast and television stations” in an illustrative list of m

jectives in his award-winning book,43 something the ICRC had done de

lier in a proposed list of military objectives it offered in 1956.44

Application of the concept of military objective clearly expands or 

based on the scope and goals of the conflict. Interestingly, when one com

academic commentary on the subject to application of the principle, th

differences narrow. For instance, a premier legal thinker in the field has 

the US approach “goes too far.” But, a review of air campaigns conduc

United States, the country that coined the term “war-sustaining,” re

strikes in which the military nature of the target is questionable are extra

rare. Instead, criticism of US attacks tends to center on their proport

compliance with the requisite duty of care. 45 That said, EBO has the capa

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greater substance into the debate. After all, if one, in a Clausewitzian m

cuses on effects during a conflict intended to coerce and compel an 

rather than conquer him, the war sustaining verbiage looks very attract

Interestingly, it is arguably not interpretive disagreement that pr

greatest threat to humanitarian law, but rather revisionism on the par

who argue that the principle itself needs to be adjusted. Most significant 

gard are the fascinating writings of Brigadier General Charles Dunlap

Force judge advocate who serves as senior legal adviser for the Air Force’s 

bat Command. In a very thoughtful—and very provocative—2000 St

view article, he argues that

We need a new paradigm when using force against societies with ma

propensities. We must hold at risk the very way of life that sustains their depre

and we must threaten to destroy the world as they know it if they persist. Th

the air weapon should be unleashed against entirely new categories of prop

current conceptions of LOAC put off-limits.46

General Dunlap limits this deviation from current principles of hum

law to conflicts with “societies whose moral compass is wildly askew.” M

he does not advocate targeting either noncombatants or objects that a

inely indispensable to the survival of the noncombatant,” although “a

erything else would be fair game.”47 As an example, he suggests “red

middle and upper classes to a subsistence level through the destruction 

essential goods” might pressure the very groups best positioned to effe

sired change.48 In General Dunlap’s view, doing so is just because the p

bears some culpability for supporting the government, or at least failin

a duty to oppose it.49 To an extent, he is a 21st-century adherent to th

Giulio Douhet, the Italian air war theorist who, in his 1921 classic Co

the Air, suggested that the civilian population and its morale were impo

ters of gravity.50

Although not addressing it directly, the Dunlap proposal takes EBO 

treme. Indeed, General Dunlap suggests that the purpose behind the use 

not punishment, but rather “eviscerating the disposition of the adversary 

objectionable activities.”51 His views resonate with many. For instanc

thoughtful active duty officer, in a 2001 Air Force Law Review article, has 

that it might be more humane to attack civilian property if doing so would 

ize the population and contribute to conflict termination, than to protect p

the expense of prolonging hostilities.52 What General Dunlap and his sup

calling for appears to be nothing less than a fundamental rejection o

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element of the principle of distinction, a principle that the Internationa

Justice labeled “intransgressible” in its Nuclear Weapons Advisory Opinio

Effects-based operations, focused as they are on effects vice targets, e

debate over the distinction principle’s effectiveness in infusing humanit

into armed conflict. But suggesting civilian objects can be legitimate tar

tack risks the spiral of violence against innocents that humanitarian la

that prohibiting certain reprisals, seeks to prevent. Moreover, suggestin

tacking civilian objects is appropriate when there is a moral imbalanc

belligerents would effectively mean malevolent leaders could deprive 

among their population of humanitarian law’s protection against the il

war. Although an “ends justify the means” philosophy may be appeal

short term, it will ultimately prove a very slippery slope.

The appropriate balance lies between the extremes. As General Shor

noted above, there is nothing wrong with striking legitimate military 

in a manner intended to affect the enemy’s will to continue the fight o

ian population’s support for the government. For instance, in order t

strate that they controlled the air during the Korean conflict, US force

leaflets pre-announcing strikes on legitimate military targets.54 US air f

cessfully employed this tactic again during Operation Desert Storm, w

ings of impending B-52 strikes led to mass surrender by Iraqi forces

nothing inherently immoral or illegal about targeting the will of the 

their leader. That said, humanitarian law does, and should, dictate how 

be accomplished.

Moreover, one must be careful what one wishes for. Opponents of 

militaries have far more to gain from a relaxation of the distinction stan

those capable of fielding state-of-the-art forces. The disadvantaged 

asymmetrical fight has every incentive to strike at civilians and civili

because it cannot hope to prevail on the field of battle. Thus, its sole 

victory (or chance of fending off defeat) lies in striking a center of gra

than the military. This being so, a restrictive reading of military objectiv

benefits the advantaged side by allowing it to leverage its superior mili

bilities. It is only when mixing ad bellum and in bello principles by lab

belligerent malevolent (as suggested by General Dunlap), that it makes 

for the militarily advantaged side to adopt a less restrictive standard; so 

cause is just, it need not fear attacks against its civilians or civilian obje

naïve. The difficulty of objectively determining that a belligerent is in 

(consider the case of Iraq) means that in practice any shift in the law 

equally to both sides.

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Relaxing the principle of distinction would also deprive the advantag

the opportunity to use what General Dunlap has labeled “lawfare.”55 To 

the enemy begins targeting civilians and civilian objects, it can be publicl

criminal, thereby potentially undercutting both domestic and internat

port. Thus, lawfare can impose costs on an adversary’s attempt to comp

military weakness by shifting the center of gravity he is attacking. What p

of relaxing humanitarian law norms seem to have missed is that the ques

a purely practical point of view, is not whether relaxation of a norm ben

side; rather, it is the relative costs and benefits of doing so vis-à-vis lik

nents. Therefore, adopting an effects-based operations doctrine should 

sarily lead to support for any relaxation of the principle of distinctio

doing so might well enhance the opponent’s ability to achieve enhan

with his own operations.

Targeting Leadership

Always an appealing target set, EBO doctrine and the growing eme

compellance as a campaign objective have heightened the desire to strike 

enemy leadership. During Operation Allied Force, for instance, governm

istries were included as strategic targets, ostensibly because of the “longe

broader impact on the Serb military machine.”56 Of late, killing the ene

himself has become an open objective of military operations; failure t

sometimes even deemed operational failure—consider the survival of O

Laden. During Operation Iraqi Freedom, the media was actually rep

tempts to kill Saddam Hussein in nearly real time.57 Contrast this with th

of the US Air Force Chief of Staff in 1990 for suggesting Saddam’s death w

of the Operation Desert Storm air campaign.58

Targeting leadership is often mislabeled “assassination.” In fact, the 

the humanitarian law prohibition on assassination (e.g., Article 148 o

Lieber Code) demonstrates that the term is best interpreted as the “tr

killing of one’s enemy,”59 for example by perfidiously feigning protected 

is not the target’s status that determines whether a wartime assassinatio

conducted, but rather the method by which he or she is attacked.

Recall that humanitarian law requires distinguishing between comba

illegal noncombatants) and civilians in conducting attacks. With regard 

ing enemy leadership, therefore, the determinative issue is the status of th

ual in question; those who are combatants or wrongfully taking a dir

hostilities, i.e., illegal combatants, may legally be attacked.

Article 51 of Protocol Additional I sets forth the relevant principle:

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pp, , 

object of attack....

Art. 51.3. Civilians shall enjoy the protection afforded by this section, unless 

such time as they take a direct part in hostilities.

Violations are grave breaches under Article 85 of the Protocol, and, 

States party to the Protocol are obligated to search for individuals alleg

targeted civilians (or ordered them to be targeted) and either try them 

fense or turn them over to another State party willing to do so.61 An anal

for non-international armed conflict appears in Protocol Additional II,6

Statute of the International Criminal Court contains prohibitions along 

for both international and non-international armed conflict.63

Since “civilians” enjoy immunity from attack, it is necessary to define 

Under Article 50 of Protocol Additional I, a protected civilian is someone 

not fall into the categories enumerated in Article 4 of the Third Geneva C

of 1949 and Article 43 of Protocol Additional I.64 Excluded as civilians are 

of the armed forces; militia, volunteer corps, or members of an organized 

commanded by a person responsible for subordinates, who wear a distinct

uniform, carry weapons openly, and are subject to a disciplinary system 

enforcing the law of armed conflict; and members of a levee en masse. Ar

duces the requirement to carry arms openly and wear distinctive emblem

ing, but not in situations likely to have much bearing on whether a mem

enemy leadership can be targeted.65 Combatant organizations can include 

tary or armed law enforcement agencies when incorporated into the arm

other parties to the conflict have been formally notified of the integration

There is little doubt that any member (except chaplains and medical p

of such organizations can be targeted, although not directly applying fo

selves. For instance, a public affairs officer in the military is a legitimate 

spite the fact that he or she does not perform typically military functio

heads of State or government who are active members of the armed forc

targeted; humanitarian law provides them no specially protected status

Senior leaders who are not members of the armed forces, but lie in th

command, are more difficult to categorize. Their legitimacy as a target m

sessed contextually and holistically. For instance, wearing military unifor

ing weapons, or using military rank suggest combatant status, but are not d

The Queen of England wears a uniform and carries a ceremonial dagger 

“trooping of the colours,” but is hardly a combatant by virtue of doing so

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A more telling indication is the proposed target

s role in the comm

armed forces. Civilians often fill de jure positions relative to the armed fo

example, by Article II of the US Constitution, the President is the “Comm

Chief.”69 Similarly, the Queen of England is the British Commander-in-Ch

ant to the unwritten constitution of the United Kingdom, and each of 

serves as a regimental “Colonel-in-Chief.” In fact, British officers swear an 

legiance to the Queen, not the State, and it is the Queen who issues their co

It would be incongruous to suggest that all such individuals are legitim

Obviously, if a post is purely ceremonial, or otherwise solely de jurein natu

involves no military decision-making, then the incumbent is a civilian w

protected status. State practice would also suggest that decision-making at 

gic level of war does not render the participant a combatant (legal or illega

such decisions are in essence political. As an example, attempting to buil

national coalition would not alone suffice. However, if an individual occu

jure position makes decisions affecting the operational or tactical level of 

she is sufficiently involved in military operations to become legitimately ta

At times, individuals without a de jure position in the chain of com

exercise influence over military operations. For example, Congress mu

all military funding in the United States. This makes Senators and Con

particularly those on committees dealing with the military, enormously 

vis-à-vis defense policy. Or consider individuals tied to a dictator wh

great influence over particular aspects of a conflict, such as certain m

Saddam Hussein’s family or other highly placed members of his tribe from 

In such cases, the critical issue is whether they are taking a direct part 

ties as envisaged by Article 51.3 of Protocol Additional I (see text above)

meaning of the term “direct part,” the Commentary to the Protocol 

“[d]irect participation in hostilities implies a direct causal relationship b

activity engaged in and the harm done to the enemy at the time and place 

activity takes place.”71 If a leader makes combat decisions at the tactical 

as target selection, then he or she would certainly be directly participat

ably, the same is true for those who act in a like manner at the operationa

sentially, leaders who decide how and where to use military force a

participating in hostilities.

As an aside, note the Article 51.3 “unless and for such time” quali

have suggested that this allows direct participants who are not forma

the armed forces to opt in and out of “direct participant” status, and, a

susceptibility to attack. This position runs counter to the underlying p

humanitarian law because it would encourage a lack of respect for the 

of distinction on the part of the victims of those moving back and fort

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the revolving door. A much more logical and practical standard pro

once an individual has opted into the hostilities, he or she remains a val

objective until unambiguously opting out. This may occur through 

non-participation or an affirmative act of withdrawal.72 Since the indiv

directly participated did not enjoy any privilege to engage in hostilities 

place, it is reasonable that he or she assumes the risk that the other side i

of such withdrawal.

Obviously, gray area situations exist in which the sufficiency of the c

tionship to the conduct of hostilities is unclear. Indeed, the issue of the s

rect participation is the subject of an ongoing international project spo

the International Committee of the Red Cross. In uncertain cases, it is p

interpret the concept narrowly, since striking directly at an opponent’s 

can be highly destabilizing. This is especially so where the proposed targ

the chain of command, for the absence of a position in an armed force or 

control structure creates a rebuttable presumption that he or she enjoys 

status as a civilian.

As should be apparent, applying the humanitarian law bearing on 

targeting can prove difficult in practice. With the exception of situation

the leaders are members of the armed forces, decapitation operations 

risk condemnation on legal, or even moral, grounds. Consider the Israe

killing strategy.73 Although the operations are clearly legal in many cases

widely condemned as violations of international law.75

Non-legal reasons also militate against mounting decapitation str

may strengthen enemy resolve or morale, particularly if the target becom

tyr in the eyes of the enemy population. Leadership attacks also risk 

against one’s own leadership or other high value targets like the civilia

tion. When the target has ties to terrorist groups, this possibility is espec

Targeting leadership may further be perceived as escalation, an upp

stakes which increases the level of violence and complicates conflict ter

Indeed, an individual aware of being targeted may become intransigent, 

tional, thereby rendering his military operations less predictable.

Of course, there is always the chance that targeted individuals may b

by less acceptable alternatives. And if they had civil responsibilities, their 

limit the ability of the State to recover from conflict, thereby presenting t

ous occupying forces with greater occupation challenges. The simple f

quite aside from normative barriers, targeting an enemy leader may be 

from a practical point of view.

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Targeting Terrorists

In the aftermath of the tragic attacks of September 11, the use of force a

rorists has been fervently debated, particularly as the preferred response 

shifted from law enforcement to military action. Unfortunately, the an

tended to be overcomplicated.

During armed conflict, whether international or non-international 

the issue of terrorism is irrelevant vis-à-vis targeting. All combatants and 

als taking direct part in hostilities are targetable regardless of their mo

object or persons they attack.

The quandary surfaces in cases of terrorism occurring outside armed co

matter of law, the issue is one of self-defense. Article 51 of the UN Charte

the codified law on the subject. It provides, in relevant part, that “[n]oth

present Charter shall impair the inherent right of individual or collective s

if an armed attack occurs against a Member of the United Nations . . . .”76 

tion is whether non-State actors such as terrorists can commit an “armed a

allows the victim State to respond with military force as if it had been attac

other State.

It is incontrovertible that since 9/11 the international communi

cepted just such an interpretation of the law of self-defense. Virtuall

voiced any opposition to the US and coalition attacks on al-Qaeda for

ghanistan that began October 7, 2001. Indeed, two pre-October 7t

Council resolutions specifically cited the right to self-defense with re

the 9/11 attacks,77 NATO and other international organizations invoke

lective defense provisions of their constitutive treaties,78 and many States e

tributed forces to the effort or provided other forms of support.79 Follow

mencement of hostilities in Afghanistan, international support for the 

operations remained strong and widespread.80 Clearly, international l

interpreted as permitting military operations in self or collective defen

terrorist acts committed by non-State actors. However, when may those 

operations occur?

Self-defense is obviously permissible in response to an ongoing a

much is clear from Article 51 on its face. When armed action follows an 

legality becomes murkier. Some have suggested that since the attack is ov

propriate responses are law enforcement (vis-à-vis the terrorists) or diplo

sanctions (vis-à-vis State support). Negative reaction to past responses t

attacks, such as the near universal criticism of Operation El Dorado Ca

followed the 1986 bombing of the La Belle discothèque in Berlin,81 dem

that States have tended to be uneasy with counter-terrorist actions tha

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retaliation or retribution. Yet, denying the possibility of post

attack milit

would surrender the initiative to non-State terrorist actor’s intent on c

their campaign of violence against the target State and its citizens.

A much more effective and appropriate way to analyze terrorism an

responses thereto is to ask whether an attack was part of a continuing 

conducted by the terrorist group against the responding State. If so, the 

actions constituting it are no more separate and distinct than tactical en

in a military campaign. For instance, al-Qaeda has been attacking US 

over a decade in a regular and very violent campaign. In the face of such c

defensive actions may continue until it is reasonable to conclude the terr

paign has ended.

By this approach, the defending State may conduct strikes against those w

carry out subsequent attacks, not in retaliation or retribution and not in anti

future acts of terrorism, but rather because the terrorist campaign is underw

all defensive actions, the two requirements of self-defense apply. First, defen

has to be necessary, i.e., non-forceful measures (such as law enforcement, d

economic sanctions, etc.) would not suffice to deter further attacks making 

rorist campaign. Second, the use of force must be proportional.82 Proportio

not refer to the relationship between the force against which one is defendin

used in self-defense. Rather, proportional force is that amount of force nece

fectively defend against the attack, and no more. Assessed on a case-by-ca

may either exceed or fall short of that used by the attacker.

Characterizing individual terrorist attacks as a part of a single integrated 

clarifies the legality of responses thereto. For instance, when a CIA-controlle

attacked a car carrying Qaed Senyan al-Harthi, al-Qaeda’s senior operative 

in 2002, there was much discussion about targeted killings, the nature of th

and so forth. Yet, al-Harthi had been tied to the October 2000 attack on th

and was still active in a terrorist group against which law enforcement had p

fective and which had vowed to carry out more terrorist strikes against 

States in the aftermath of their highly successful attacks of September 1

tionally, the CIA conducted the operation with the cooperation of the Yem

gence service.84 The only debatable issue from a self-defense perspective w

al-Harthi could have been arrested instead of killed. Although ultimately a q

fact, it appears reasonable for US officials to have concluded that there was a 

he would elude capture, thereby necessitating the lethal attack.

An analogous analysis applies to Israel Defense Force operations targeti

Palestinians. To the extent the targets are clearly involved in an ongoing ca

terrorism, and in the absence of other reliable means of neutralizing them

be attacked in self-defense when there is a “specific and imminent” threat

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such cases, the operations are legal quite aside from the separate issues of w

armed conflict is underway and, if so, its character under humanitarian l

A third possibility is mounting counter-terrorist strikes before the ini

ist attack has taken place. The seminal legal issue here is neither necessit

portionality, but rather imminency, for the weight of authority in interna

requires that an attack be imminent before acting in self-defense. In the 

words of Secretary of State Daniel Webster in correspondence with 

burton following the 1837Carolineincident, the need for defensive actio

“instant, overwhelming, leaving no choice of means, and no moment fo

tion.”86 Webster’s verbiage has matured over time into a requirement th

fending party wait until the last possible moment before acting anticipa

Professor Yoram Dinstein has rejected the term “anticipatory” in fav

terceptive” on the basis that Article 51 requires an armed attack, not the 

thereof. He propounds a standard that requires the attacker to have “com

self to an armed attack in an ostensibly irrevocable way.” As Professor D

plains, “[t]he crucial question is who embarks upon an irreversible 

action, thereby crossing the Rubicon.”88 By this approach, no shot nee

prior to the defensive action, but the attack operation must have been l

Professor Dinstein’s analysis is an insightful balancing of the practic

deliver a defensive blow before the opponent strikes (lest it be too late to 

effective defense) with the apparent clarity of the Article 51 requireme

armed attack have occurred. The one difficulty with his approach is th

ment of irrevocability, a criterion that may be too difficult to judge exc

facto. A more workable tack may be to appraise the attacker’s commitm

low through, the nature of the acts already performed, and the extent to 

defensive action occurs during the last viable window of opportunity to 

effective defense.

If a State initiates defensive action before being attacked, the evide

pending attack (or follow-on attacks in case of a terrorist campaign), t

militarily defend oneself, and the perpetrator’s identity, must be very cre

was the unambiguous lesson of the widespread criticism of the US strik

dan in 1998 following terrorist bombings of its embassies in Dar-es-S

Nairobi. Compare the muted criticism of related strikes against terroris

Afghanistan. Since the two operations were conducted simultaneously 

sponse to the same terrorist attacks, the logical explanation for the dr

different international reactions was a pervasive belief that in the case of 

into Khartoum, the United States got it wrong by striking a pharmaceu

with no ties to terrorism.

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Evidentiary issues again surfaced in the aftermath of US and allied op

Iraq in 2003. Failure to locate convincing evidence of any Iraqi weapo

destruction programs or Iraqi ties to al-Qaeda generated significant critic

decision to attack.89 As in the Sudanese case, concern that the attack wa

insufficient and faulty intelligence was pervasive.

Given that terrorists intentionally seek to mask their activities, evide

rorism cases will seldom be unassailable; therefore, to demand perfect e

future attacks and their source would be to render victims defenseles

threshold is one that requires evidence on which counterterrorist oper

justified to be “clear and compelling.” The United States proffered this s

its notification to the Security Council that it was acting in self-defense 

tacking al-Qaeda and Taliban assets in Afghanistan. It articulated the s

rion when briefing the North Atlantic Council on the complicity of the t

in the 9/11 attacks.90 Both the Security Council and North Atlantic Coun

to have accepted the standard as sufficiently high, for neither criticized th

military operations. A mere preponderance standard would certainly be 

justify resort to military force, the most significant act in international 

whereas a beyond a reasonable doubt standard would clearly be too h

shadowy world of terrorism.

Finally, the issue of who can legally conduct counterterrorism oper

volving armed force has drawn some attention. Specifically, must ope

mounted by combatants or can others, such as members of intelligence a

law enforcement personnel, conduct them?

If the operations are conducted during an international armed confli

terrorists are taking part in the conflict, then combat operations may be 

only by combatants. Article 43 of Protocol Additional I codifies this po

tomary international law.91 As noted earlier, combatants are memb

armed forces and paramilitary or armed law enforcement agencies inc

into the armed forces.92

No such limitation applies in a non-international armed conflict. O

trary, intelligence and law enforcement agencies are regularly involved in 

ing to maintain law and order during an internal conflict. The latter are 

lead agencies in such conflicts, as was the case, for example, during t

bances in Macedonia in 2001.

In cases of violence between a State and transnational terrorists unre

ongoing armed conflict, humanitarian law, with the exception of general 

pervading all uses of force (such as discrimination, proportionality, unnec

fering), does not apply. The applicability of the humanitarian law to in

armed conflict depends on the participation of at least one State on each si

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that applicable to non

international armed conflicts requires a situation r

classic civil war. With respect to the latter, Common Article 3 to the Genev

tions envisions a “Party in revolt against the de jure Government [that] pos

ganized force, an authority responsible for its acts, acting within a d

territory.”94 Protocol Additional II requires a conflict “which takes place in 

tory of a high contracting Party between its armed forces and dissident arm

[that]... exercise control over part of its territory.”95 In any case, and as no

the humanitarian law of non-international armed conflict imposes no lim

the participation of other than members of the armed forces.

Therefore, except in an international armed conflict, intelligence o

forcement agents may conduct counter-terrorist strikes such as occur

men. Thus, President Bush’s authorization to the Central Intelligence 

target specific al-Qaeda members outside the confines of armed conflict 

olate humanitarian law,96 nor did the creation of a CIA Special Operatio

of several hundred officers to conduct this type of missions.97

Finally, where may operations in other than an armed conflict be c

Obviously, they may take place on the territory of the State conducting t

in the case of the strike in Yemen, on the territory of any State that has c

The more difficult question is when may counterterrorist operations be 

without the consent of the State of situs.

States enjoy the right of territorial integrity under international law, 

ary right enshrined within Article 2(4) of the Charter.98 At the same tim

tional law recognizes a right of self-defense, itself enshrined within Articl

Charter. When legal rights appear to conflict, an effort must be made t

ance them in the context in which they are to be applied.

In this situation, recall that States have a duty to “use due diligence 

the commission within its dominions of criminal acts against another 

people.”99 This duty plainly includes keeping one’s territory free from u

rorist ends.100 In light of this obligation, the only sensible balancing of t

rial integrity and self-defense rights is one that allows the State exerc

defense to conduct counterterrorist operations in the State where the 

are located if that State is either unwilling or incapable of policing its 

tory. A demand for compliance should precede the action and the State 

permitted an opportunity to comply with its duty to ensure its territory 

ing used to the detriment of others.101 If it does not, any su

nonconsensual counterterrorist operations into the country should 

limited to the purpose of eradicating the terrorist activity (purpose an

tionality), and the intruding force must withdraw immediat

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accomplishment of its mission since the necessity for these specific def

erations evaporates at that point.102

Human Shields and Shielding with Civilian Objects

The US Defense Intelligence Agency has framed this issue as “the placem

category of non-combatant personnel, or of civilian equipment, vehicle

rial at or near a recognized or suspected military or government facility 

ately before or during hostilities.”103 It would also include placing milita

or personnel near protected individuals, objects, or locations. In techn

such activity falls into the category of “counter-targeting,” i.e., “prevent

grading detection, characterization, destruction, and post-strike asses

The goals of using human or civilian object shields include complicating 

nent’s military planning, reducing the effectiveness of its strikes, pres

military forces and facilities such as command and control assets, and/o

ing a strategic incident by creating the impression that the attacker is ca

competent, or, most significantly in the CNN age, lawless.105

Sadly, there have been many instances of the use of human or civil

shields in recent history. All have been uniformly condemned. For 

Iraq’s use of human shields during the first Gulf War was labeled by the 

eral Assembly as a “most grave and blatant violation of Iraq’s obligati

international law.”106 A dozen years later, Human Rights Watch, in Off 

report on the conduct of the second Gulf War, condemned Iraqi use o

both to protect Iraqi forces during hostilities and to advance on US a

forces.107 Similarly, the use of human shields was widespread during 

NATO bombing campaign against the Federal Republic of Yugoslavia

peacekeepers have been used as human shields, most infamously with t

of United Nations Protection Force (UNPROFOR) personnel by t

Serbs in 1995.108

As a matter of law, the use of shields presents two issues: Can shields b

directly (discrimination) and, if not, how do they factor into the proportio

culation? In considering these questions, it is useful to note that US targ

trine closely tracks the principles set forth in Protocol Additional I. Fo

Joint Publication 3-60 (discussed above) adopts the proportionality for

tained in Articles 51.5(b) and 57.2 verbatim.109 With regard to discrimin

Joint Publication requires US forces to “engage only in military operations 

of which distinguish between the civilian population (or individual civilia

ing a direct part in hostilities) and combatant forces, directing the app

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force solely against the latter. Similarly, military force may be directed o

military objects or objectives, and not against civilian objects.”110

Without question, using human or civilian object shields violates hum

law. Article 28 of the Fourth Geneva Convention provides that “[t]he pr

protected person may not be used to render certain points or areas imm

military operations.”111 The analogous Protocol Additional I provisio

more explicit.

The presence or movements of the civilian population or individual civilians 

be used to render certain points or areas immune from military operat

particular attempts to shield military objectives from attacks or to shield, fa

impede military operations. The Parties to the conflict shall not direct the mo

of the civilian population or individual civilians in order to attempt to shield 

objectives from attacks or to shield military operations.112

The International Criminal Court Statute includes these prohibitio

crimes in Article 8.113

Uncertain, though, are the effects of such misconduct on an opponent

operations. To address this issue, it is necessary to distinguish between in

shields and those who volunteer to serve in this role. Beginning with th

Article 51 of Protocol Additional I explicitly provides that “[a]ny violatio

prohibitions [which includes the prohibition on shielding] shall not r

Parties to the conflict from their legal obligations with respect to the civi

lation and civilians. . . .”114 Therefore, an attacker continues to be boun

the prohibition on directly attacking civilians and the proportionality 

Taking these requirements together, the attacker must consider the deat

juries shields might suffer when determining whether the military adv

cruing from attack on the military objective they are shielding outwe

collateral damage and incidental injury.

Few have suggested that an attacker should be released from the obli

to directly target human shields. However, there is far less satisfaction 

application of the principle of proportionality, for some are concerned 

levolent opponent might turn the use of human shields into a significan

advantage. Specifically, by using shields, an opponent could so alter th

likely civilian death and injury resulting from a strike, that the military o

rendered immune from attack. Thus, the 1976 US Air Force law of arm

manual states that “[a] party to a conflict which places its own citizens in 

of danger by failing to carry out the separation of military activities fro

activities necessarily accepts, under international law, the results of 

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lawful attacks upon valid military objectives in their territory.

And no 

tinguished scholar and practitioner than A.P.V. Rogers has suggested th

. . . a tribunal considering whether a grave breach has been committed [a dispropo

attack] would be able to take into account when considering the rule of proportion

extent to which the defenders had flouted their obligation to separate military o

from civilian objects and to take precautions to protect the civilian population

proportionality approach taken by the tribunals should help to redress the balan

would otherwise be tilted in favour of the unscrupulous.116

Despite such calls, the prevailing practice appears to be unqualified 

the principle of proportionality; this is the position taken in US doctri

dressing use by the enemy of human shields, Joint Publication 3-60 s

“Joint force responsibilities during such situations are driven by the p

proportionality.... When an adversary employs illegal means to shield 

targets, the decision to attack should be reviewed by higher authority 

military considerations, international law, and precedent.”117 The US Ai

its own doctrine, acknowledges the shields dilemma, but likewise retain

tection civilians enjoy under humanitarian law. Air Force Pamphlet 14-

out that

[a] state’s failure to segregate and separate its own military activities and 

placing military objectives in or near a populated area may greatly weaken pr

of its civilian population. Such protection is also compromised when civilian

direct part in hostilities or are used unlawfully in an attempt to shield attack

military objectives.118

Note that protection is “weakened,” not canceled; in other words, 14-2

nizes that such practices have a de facto effect of weakening protection 

and civilian objects because their proximity to military objectives increases 

lihood of being incidentally injured or collaterally damaged—but there is 

relaxation of the proportionality standard.

Perhaps the best guidance on the subject is that set forth in the Air For

ations and the Law text:

[S]tandards of conduct should apply equally to the attacker and defender. 

words, that the responsibility to minimize collateral injury to the civilian po

not directly involved in the war effort remains one shared by the attacker 

defender; and that the nation that uses its civilian population to shield its own 

forces violates the law of war at the peril of the civilians behind whom it hides. . 

same time, however, targeteers and judge advocates should consider the nec

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g pg, pp

and ways to minimize civilian casualties, if possible.”119

An approach which refuses to release one side from its full obligations 

manitarian law when the other violates it is consistent with the underlyin

of that body of law—protection of those who are not engaged in the confl

effects. While humanitarian law takes account of the practicalities of w

principle of proportionality being perhaps the best example), it is not int

designed to ensure a “fair fight.” Suggestions that the wrongful behavior 

justify a revision of the other’s obligations under humanitarian law in o

dress the balance between the two appear under girded by concerns over th

of the malevolent side achieving de facto immunity for its military obje

even the highly controversial law of reprisals is justified solely on the basis 

sals (otherwise unlawful acts) can compel the other side back into compl

its humanitarian law obligations; it has never been justified on the basis th

fair for one side to be limited by humanitarian law when the other ignore

The issue becomes more contentious when human shields voluntee

the use of involuntary shields, there has been a marked increase in the re

civilians to willingly shield military objectives. Recent examples incl

flocking to various locations when coalition forces threatened force to e

UN weapons inspection regimes in 1997;121 Serb civilians standing on br

ing Operation Allied Force in 1999; and international volunteer shields t

Iraq in anticipation of Operation Iraqi Freedom.122

Although there is no explicit distinction between voluntary and in

shields in targeting doctrine, some States, including the United States, a

ference. In their view, voluntary shields of military objectives lose their 

status as civilians.123 Human Rights Watch, inter alia, takes the opposit

In a February 2002 Briefing Paper, it opined that

[l]ike workers in munitions factories, civilians acting as human shields, 

voluntary or not, contribute indirectly to the war capability of a state. Their ac

not pose a direct risk to opposing forces. Because they are not directly en

hostilities against an adversary, they retain their civilian immunity from atta

may not be targeted, although a military objective protected by human shields 

open to attack, subject to the attacking party’s obligations under IHL to w

potential harm to civilians against the direct and concrete military advantag

given attack, and to refrain from attack if civilian harm would appear excessiv

The more defensible view is that adopted by the United States. Hum

Watch wrongly equates voluntary human shields with munitions workers, 

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correctly characterize as only indirectly contributing to the war

making cap

a State. The contribution of human shields is, by contrast, very direct—t

tempting to deter an actual attack on a valid military objective. In a sense, t

less involved in defending a potential target than air defenses.

As discussed earlier, civilians may lose their protected status by, in 

nology of Protocol Additional I, taking “a direct part in hostilities.” W

do, immunity from attack vanishes for such time as that participatio

ues.125 The Statute of the International Criminal Court adopts this st

making it a war crime to intentionally attack civilians unless they are “

rect part in hostilities.”126

There is much uncertainty regarding the meaning of direct particip

Commentary to Protocol Additional I states that the term “implies a di

relationship between the activity engaged in and the harm done to the en

time and place where the activity occurs.”127 Elsewhere, the Commentary 

direct participation as “acts which by their nature and purpose are in

cause actual harm to the personnel and equipment of the armed forces.

ingly, these comments support the Human Rights Watch position th

must pose an immediate risk to the enemy before they can be directly a

Such a narrow position does not fit well into the architecture of hum

law. Recall the definition of military objective. Military objectives ar

which by their nature, location, purpose, or use make an effective contr

military action and whose total or partial destruction, capture or neutral

the circumstances ruling at the time, offers a definite military advanta

acting to render a military objective immune from attack (or contribu

enemy’s hesitancy to attack it), voluntary human shields contribute to th

of an object that by definition contributes to military action; thus, they t

contribute to that action in a very direct way. Indeed, by immunizing th

objective against attack as a matter of law, in many cases shields would m

tively defend it than would traditional defenses such as anti-aircraft artill

face-to-air missiles, which have proven highly ineffective against 

equipped with state of the art weaponry.

When viewed in the context of humanitarian law generally, the most r

characterization of voluntary shields is that they are directly participatin

ities and, resultantly, lose their protected civilian status.130 Consequen

tary human shields can be legitimate targets. Further, because they no lo

protected status, death or injury to voluntary shields should not be con

any proportionality analysis. Practically speaking, though, their military 

tion only emerges at the point that they are shielding the military objec

they enjoy no military significance distinct from the objective itself. Thi

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there is no military necessity for attacking them when they are not e

shielding. Further, even when they are shielding a target, there is no mili

nale for attacking them directly instead of, or in addition to, the actual m

jective. Therefore, the only practical impact of their willingness to serve a

that they need not be included in proportionality calculations.

An exception to this analysis involves children. For instance, Palesti

tants have used child shields to protect themselves because they know 

Defense Forces have been ordered not to use live ammunition against c

As a matter of law, children should be deemed incapable of forming the i

essary to “directly participate” in hostilities, particularly in light of hum

law’s increasing recognition of their unique predicament in armed confli

beyond the legal aspects of the phenomenon, as a practical matter it wou

be impossible to determine whether a child present at a prospective targ

of his or her own volition.

Finally, there is the issue of using civilian objects to shield military 

What is often forgotten in the debates is that civilian objects can become m

jectives when their use makes an effective contribution to military action 

total or partial destruction or neutralization offers a definite military ad

the circumstances.133 When one side intentionally places military objectiv

vilian objects or places civilian objects close to military objectives in orde

them (a wrongful act as discussed above), those objects may take on a sta

gous to “military objective.” Their use contributes directly to defense of 

and if their role as shields could be neutralized, a military advantage would 

the attacker. That said, and like voluntary shields, because their sole use i

tary shield, there is no need to attack them directly unless they physically 

tack on the intended target. Of course, they are vulnerable to damage du

on the target, but, having taken on the character of a military objective th

such damage should not be included within the proportionality calculati

Note that the case of intentionally using civilian objects as shields di

that of the civilian object unintentionally located near a military objectiv

gest otherwise would create an exception that would swallow the rule o

tionality. Obviously, objects near the intended target incur the heaviest 

damage. Therefore, if mere proximity to a target transforms a civilian ob

military objective, there would be no need for the rule because there wo

civilian objects to protect.

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Area Targets

An emerging issue in targeting involves attacking military installations 

civilian facilities exist. In the past, this issue rarely presented itself. First, 

cilities seldom existed at military bases. However, with the demise of con

the average age of military personnel has increased, and a greater per

married. Thus, military installations increasingly contain facilities m

needs of military families. Further, in the era of all-volunteer forces, qu

has become an important factor in recruiting and retaining military pers

day, for instance, the typical US base offers family housing, schools, child 

ters, youth sports fields, stores, post offices, pools, and even the 

American fast food restaurant.

Second, weapons systems of the past did not have the range to strike 

bases far from the front. Today, by contrast, some systems have global ca

Globalization itself, with increasingly borderless travel, has made it p

conduct special operations thousands of miles from the front. Simply p

21st century most military installations lie “within range” of enemy act

The question is whether an entire area or installation can be treated 

unitary whole during an attack. To some extent, this defense was mounted 

of Major-General Stanislav Galic, former commander of the Sarajevo 

Corps, before the ICTY. The case involved allegations that troops unde

mand conducted a sniping and shelling campaign against the civilian pop

Sarajevo intended to spread terror. The defense argued that the presenc

40,000 Bosnian Muslim troops spread throughout the city rendered the en

target and the fact that only 3,000 civilians died out of an original popula

proximately 300,000 meant the attacks were not disproportionate. After ca

viewing the facts, the Trial Chamber determined that the attacks on the civ

intentional and sentenced the general to 10 years imprisonment.134 While 

out the possibility of treating an entire area or installation as a unitary 

Chamber’s meticulous focus on the facts of individual deaths demonstra

its view, questions of discrimination are resolved on a case-by-case basis.

This approach comports well with Article 51’s characterization of “an 

bombardment... which treats as a single military objective a number 

separated and distinct military objectives located in a city, town, villag

area containing a similar concentration of civilians and civilian objects

criminate.136 By parallel logic, the presence of a clearly distinct civilian ar

a shopping complex or housing area, on a military installation preclud

the entire installation as targetable.

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Further, Article 57 requires belligerents to employ reasonable steps to 

the target is military in nature and to “take all feasible precautions in th

means and methods of attack with a view to avoiding, and in any event m

incidental loss of civilian life, injury to civilians and damage to civilian o

Therefore, whether an attack is discriminate enough depends both on th

which the attacker used information assets to confirm the nature of the 

selected weapons and tactics designed to avoid causing harm to civilians 

ian objects. Again, these requirements auger against treating military in

as a single entity for targeting purposes.

At any rate, military planners are now able to more accurately refine th

targets and aimpoints. Intelligence, surveillance, and reconnaissance (ISR) 

provements have made it far easier to distinguish between military and civili

whereas advances in precision have made striking the intended target with g

more practicable.138 In fact, since installations are fixed, most missions ag

will be preplanned. This allows a highly complex and in-depth planning p

considers such factors as maximum effective range of weaponry and their c

ror probable, likely collateral damage, and aim point, fusing, and azimuth o

ternatives. Perhaps most importantly, it is poor airmanship (or soldierin

areas in which discrimination is possible as a single target because doing so, i

precision, would be wasteful; it violates the principle of economy of force.

That said, in those cases where it is impossible to verify that individu

on an installation are military objectives (e.g., does the warehouse cont

tions or school supplies?), a presumption that they are military attachés. 

cause the Protocol Additional I, Article 52, presumption that a prospecti

not making an effective contribution to military action, and ther

targetable, applies only to objects “normally dedicated to civilian purpos

a place of worship, a house or other dwelling, or a school.”139 The presen

cility on an active military installation, combined with the fact that it doe

reasonable steps have been taken to ascertain its status, appear to be norm

cated to civilian purposes, makes striking it consistent with the principle 

tion. For instance, hangar facilities often line runways. In most cases, the

for traditional military purposes such as aircraft maintenance. Howeve

the community gymnasium, as is the case at an actual US military faci

tacker should be permitted to strike it after exhausting reasonable measu

the circumstances to determine its nature. The attack may, ex post facto

to have been a mistake, but that mistake will have been reasonable.

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Wednesday, December 13, 2006 8:25:29 AM
Computer Network Attack

Targeting one’s enemy through computer networks is a relatively new 

warfare that raises a number of complex legal issues.140 Many derive from 

bellum and have been addressed elsewhere.141 With regard to the jus in 

specifically the law of targeting, three merit mention.142

The first centers on the requirement of precautions in attack. As no

humanitarian law imposes a duty on the attacker to select methods and 

warfare “with a view to avoiding, and in any event to minimizing, incide

civilian life, injury to civilians and damage to civilian objects.”143 This i

cant obligation because it means that even if a target is a lawful military 

that can be attacked with a particular weapon without causing dispro

collateral damage or incidental injury, a different weapon must be emp

could achieve a comparable military advantage with less. Of course, th

ment is subject to a rule of reason that would take into account such fac

inventory of available weapons, particularly in light of the anticipated len

conflict, and any increased risk to those executing the mission.

This obligation may increasingly drive armed forces possessing CNA c

to employ them in lieu of kinetic weapons. The precision of computer n

tack (in which particular systems can be isolated and attacked), the genera

to the attacker, and the fact that attacks do not expend “ordnance” tha

needed later in the conflict, all lend themselves to selecting CNA in place o

ditional weaponry. For instance, typical goals in air campaigns include des

defense networks, blinding intelligence capabilities, and disrupting com

control. Doing so might involve hundreds of sorties by aircraft dropping 

ing explosive munitions with significant risk of collateral damage and inc

jury. However, all such target systems now rely heavily on computers of 

thereby making them vulnerable to computer network attack.

A related humanitarian law requirement is that “[w]hen a choice is av

tween several military objectives for obtaining a similar military advanta

jective to be selected shall be that the attack on which may be expected to 

least danger to civilian lives and civilian objects.”144 Again, the fact that m

spective targets rely on computer systems in some fashion opens up opp

to avoid striking targets in ways that might cause harm to civilians and c

jects. As an example, one might wish to destroy an enemy air force by bo

bases. However, in an age of computer network attack, it may be less c

destructive to feed the enemy false information that causes enemy airc

knowingly travel into aerial ambushes. Alternatively, consider the bomb

media station in Belgrade during Operation Allied Force that resul

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Bankovic litigation before the European Court of Human Rights.

Usin

might have been possible to target that aspect of the electrical grid pro

station electricity, thereby simply taking it off the air during offending 

ming. In an increasingly networked age, the possibilities of computer n

tack grow exponentially.

The second issue posed by computer network attack is that of the targ

which it may legally be directed. The requirement that parties to a conflict 

eration only against military objectives”146 would seem to imply that CNA 

against civilians or civilian objects would be unlawful. A careful reading o

Additional I, most of which is characterized by even non-Party States as r

customary law, reveals that it is “attack” on civilians which is forbidden, 

tions directed against them writ large. Thus, the “civilian population... s

the object of attack”;147 “civilian objects shall not be the object of attack”

criminate attacks are forbidden”;149 “attacks shall be limited strictly to m

jectives”;150 and so forth.

In Article 49, the Protocol defines “attacks” as “acts of violence again

versary, whether in offense or defense.”151 The Commentary on Article 

the centrality of violence by describing the term “operations” as “milit

tions during which violence is applied.”152 Utilizing this definition, the p

is actually on attacking other than military objectives through the applica

olence, that is, force which injures, kills, damages, or destroys.

This interpretation does not imply that all CNA is lawful merely beca

force is absent. Instead, the term “attack” can best be understood as p

shorthand for a particular set of consequences, specifically the type of con

violence would cause—injury to humans and damage to objects.153 The p

would also reasonably extend to intentionally creating severe mental angu

ularly in light of humanitarian law’s prohibition on terrorizing the civilia

tion.154 However, conducting computer network attacks that merely incon

the civilian population, harasses them, or causes a decline in their quali

permissible. This interpretation does not represent a relaxation of human

in any way; indeed, the law already countenances such results through, fo

non-violent psychological operations directed at the civilian population.

Finally, there needs to be greater sensitivity to who can conduct com

work attacks. Obviously, military personnel who possess the privilege to 

netic force during an armed conflict may do so. However, many countr

either civilian defense employees or contractors for their computer netw

capabilities. Any civilian who launches a CNA “attack,” as that term ha

described, is directly participating in hostilities and thus an unprivilege

ent. So too are those who conduct computer network attacks that do n

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or injure, but nevertheless affect the enemy

s immediate warfighting ca

Typical examples would include directing a computer network attack a

emy command and control facilities, air defense networks, and combat c

cations nets. Simply put, to the extent that a computer network attack n

or diminishes the capabilities of a military objective, the individual laun

directly participating in hostilities.

Concluding Thoughts

In A Man for All Seasons, Sir Thomas More and William Roper engage 

lowing now familiar exchange on the law.

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after th

Roper: I’d cut down every law in England to do that.

More: Oh? And when the law was down—and the Devil turned round on you

would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sak

To some degree, each of the targeting issues addressed in this article 

similar contradictions. Targeting doctrine that seeks particular effe

incentivizes attacking protected persons or objects when facing a male

ponent or when doing so might operate to lessen likely collateral dama

cidental injury. Similarly, many argue that it is acceptable to strike a

leader, even if he or she does not meet the requirements for combatan

direct participation. Others suggest that humanitarian law should be 

meeting the new phenomenon of catastrophic transnational terrorism

concerns underlie suggestions that involuntary shields should be trea

ently from civilians or that military installations or other areas where t

has positioned military and civilian objects in close proximity may be t

unitary whole when targeting. Finally, computer network attack open

new targeting options, some which enhance the protections of humanit

others that challenge them.

What is remarkable throughout the discussions of these complex iss

ever, is the extent to which humanitarian law resolves them. In the vast m

cases, application of the law, interpreted with sensitivity to both the 

which it is to be applied and its underlying purposes, meets the conce

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William Ropers who assert its insufficiency in meeting the challenges of 2

conflict. The law hardly needs to be “cut down”; on the contrary, it still 

shelters non-participants from the effects of hostilities, while adequate

the practical concerns of the warfighters. Most importantly, Sir Thom

words remain prescient, for in these troubling times we must preserve t

for our own sake.

Notes

1. Professor Schmitt is Professor of International Law, George C. Marshall Europea

Security Studies, Garmisch-Partenkirchen, Germany. The views expressed herein 

the author in his personal capacity and do not necessarily represent those of any Uni

German government agency.

2. For an introduction to the concept of revolutions in military affairs, see Jeffrey M

al., The Revolution in Military Affairs (Sept. 1995), www.airpower.Maxwell.af.mi/ai

battle/chp3.html.

3. Most notably, Giulio Douhet, an Italian air power strategist who argued that “w

crushing the resistance of the enemy; and this can be done more easily, faster

economically, and with less bloodshed by directly attacking that resistance at its wea

For Douhet, that point was the population itself. GIULIO DOUHET, THE COMMAND 

196 (Dino Ferrari trans., 1942).

4. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts, June 8, 1977, arts. 48–52, 11

3, reprinted in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts and Richard 

3d ed. 2000) [hereinafter Protocol Additional I].

5. Command, control, communications, computers, intelligence, surveillance, and reco

6. Between March 19 and April 18, 2003, during which 41,404 sorties were flown 

special operations and Army helicopter flights). The Iraqis also downed 6 heli

Central Command Air Forces (CENTAF), Assessment and Analysis Division, Ope

Freedom—By the Numbers (Apr. 30, 2003), www.globalsecurity.org/military/lib

2003/uscentaf_oif_report_30apr2003.pdf.

7. Lawfare refers to the effort to undercut an opponent’s support by making it appe

international humanitarian or human rights law (or publicize actual violations). That 

be either domestic or international. For a discussion of lawfare, see Charles J. Dunlap, 

Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts, paper 

Humanitarian Challenges in Military Intervention Workshop, Carr Center, Harvar

(Nov. 29–30, 2001), http://www.ksg.harvard.edu/cchrp/UseofForcePapers.shtml.

8. Gary L. Crowder, Department of Defense Effects-Based Operations Briefing (Ma

http://www.defenselink.mil/transcripts/2003/t03202003_t0319effects.html.

9. Chairman of the Joint Chiefs of Staff, Joint Publication 3-60, Joint Doctrine for T

I-4 (2002) [hereinafter Joint Pub 3-60].

10. Escorts perform such missions as defense suppression of ground air defense 

defense of the attacking aircraft against enemy fighters.

11. A description of these and other weapons and weapon systems can be found 

Force Link website, http://www.af.mil/factsheets/.

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gy g p

precision-guided, by Operation Iraqi Freedom that figure had grown to nearly 70%

13. Joint Pub 3-60, supra note 9, at I-5.

14. The term was coined by Colonel John Boyd, United States Air Force. Operatin

opponent’s OODA loop is a decision-making concept in which one party, maintain

situational awareness, assesses a situation and acts on it more rapidly than his opponen

happens, the opponent is forced into a reactive mode, thereby allowing the first party 

the initiative. As the process proceeds, the opponent eventually begins to react to act

longer bear on the immediate situation. The resulting confusion results in paralysis.

15. Joint Pub 3-60, supra note 9, at I-6.

16. Id.

17. Joint Publication 3-60 offers the following example: “For example, the plane de

direct effect of an attack on an airfield, combined with similar attacks on all the 

adversary’s air defense system, over time may ultimately degrade the legitimacy of th

portraying them as incapable of protecting the populace.” Id.

18. Id.

19. In humanitarian law, the proper term for unintended injury or death of 

“incidental injury.” Technically, the term “collateral damage” refers only to uninten

or destruction of civilian objects. However, many lay publications, such as Joint Pu

60, group the two under the general category of “collateral damage.”

20. Protocol Additional I, supra note 4, arts. 51.5(b), 57.2(a)(iii), & 57.2(b).

21. Joint Pub 3-60, supra note 9, at I-7.

22. Crowder, supra note 8.

23. John A. Warden, The Enemy as a System, AIRPOWER JOURNAL 40 (Spring 1

commentary on Warden’s theory, see DAVID R. METS, THE AIR CAMPAIGN: JOHN W

THE CLASSICAL AIRPOWER THEORISTS (1998).

24. Department of Defense Effects-Based Operations Briefing, Briefing Slides (Ma

www.defenselink.mil/news/Mar2003/g030318-D-9085.html.

25. Interestingly, both Operation Enduring Freedom and Operation Iraqi Freedom 

campaigns of conquest, rather than compellance. Nevertheless, compellance cam

likely to remain a prominent feature in the 21st-century strategic landscape.

26. United States Air Force, Air Force Basic Doctrine (AFDD 1) (Sept. 1997), at 79

gravity are “those characteristics, capabilities, or localities from which a military forc

freedom of action, physical strength, or will to fight.” Department of Defense, D

Military and Associated Terms, Joint Publication 1-02 (as amended through Jun

available at www.dtic.mil/doctrine/jel/doddict [hereinafter Joint Pub 1-02].

27. A dynamic entirely consistent with Clausewitz’s assertion that war is “a tr

instrument, a continuation of political intercourse, carried on with other means.” 

CLAUSEWITZ, ON WAR 87 (Michael Howard and Peter Paret trans., 1989).

28. Out of a sense of latent patriotism.

29. Craig R. Whitney, The Commander; Air Wars Won’t Stay Risk-Free, Genera

YORK TIMES, June 18, 1999, at A1.

30. Michael Short, Operation Allied Force from the Perspective of the NATO Air Com

LEGAL AND ETHICAL LESSONS OF NATO’S KOSOVO CAMPAIGN 29 (Andru E. Wa

(Vol. 78, US Naval War College International Law Studies).

31. Protocol Additional I, supra note 4, art. 57.3. Although not a Party to the Pro

United States considers many its provisions to be declaratory of customary intern

For a non-official, but generally considered authoritative, delineation of those 

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y

Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Co

AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419 (198

International & Operational Law Division, Office of the Judge Advocate General, De

the Air Force, Operations Law Deployment Deskbook, tab 12 (no date), and comm

then State Department Legal Advisor Abraham D. Soafer in Agora: The US Decision N

Protocol I to the Geneva Conventions on the Protection of War Victims, 82 AMERICAN J

INTERNATIONAL LAW 784 (1988).

32. Protocol Additional I, supra note 4, art. 52.2.

33. Convention on Prohibitions or Restrictions on the Use of Certain Convention

Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, O

1342 U.N.T.S. 137, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 

Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and O

(Protocol II), Oct. 10, 1980, as Amended, May 3, 1996, art. 2.6, reprinted in id. at 536; 

Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), Oct. 1

1.3, reprinted in id. at 533.

34. Second Protocol to the Hague Convention of 1954 for Protection of Cultural 

Event of Armed Conflict, Mar. 26, 1996, art. 1f, 38 INTERNATIONAL LEGAL MATERIALS 

35. See, e.g., Judge Advocate General’s School, Operational Law Handbook 10 (2003

Marine Corps/Coast Guard, The Commander’s Handbook on the Law of Naval 

NWP 1-14M, MCWP 5-2.1, COMDTPUB P5800.7 ¶ 8.1.1(1995), reprinted in it

version as volume 73 of the US Naval War College’s International Law Studies serie

36. Id. ¶ 8.1.1. This assertion is labeled a “statement of customary internationa

Handbook cites General Counsel, Department of Defense, Letter of Sept. 22, 1972, rep

AMERICAN JOURNAL OF INTERNATIONAL LAW 123 (1973), as the basis for this charac

37. Joint Pub 3-60, supra note 9, at A-2.

38. Marco Sassoli, Legitimate Target of Attacks Under International Humani

International Humanitarian Law Research Initiative Brief 3 (Jan. 2003), a

www.ihlresearch.org/portal/ihli/Session1.pdf.

39. NATO’s demands were set forth in a Statement of the Extraordinary Meeting o

Atlantic Council on April 12, 1999, and reaffirmed by the Heads of State and Go

Washington on April 23. They included a cessation of military action, as well as end

and repression of the Kosovar Albanians; withdrawal from Kosovo of military, 

paramilitary forces; an international military presence in Kosovo; safe return of r

displaced persons and unhindered access to them by humanitarian aid organizatio

establishment of a political framework agreement on the basis of the Rambouillet Ac

Release M-NAC-1(99)51 (Apr. 12, 1999), available at www.nato.int/docu/pr/1999/p9

Press Release S-1(99)62 (Apr. 23, 1999), available at www.nato.int/docu/pr/1999/p99

40. Final Report to the Prosecutor by the Committee Established to Review 

Bombing Campaign Against the Federal Republic of Yugoslavia, 39 INTERNATIO

MATERIALS 1257, ¶ 37 (2000), available at www.un.org/icty/pressreal/nato

[hereinafter Report to the Prosecutor].

41. Bankovic & Others v. Belgium, the Czech Republic, Denmark, France, Germa

Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Port

Turkey and the United Kingdom, European Court of Human Rights Application no. 

42. The attack was addressed in the Report to the Prosecutor, supra note 40, at ¶¶ 

Prosecutor announced her decision not to proceed to the Security Council on June 

Doc. S/PV.4150 (2000).

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book was published in 2004.

44. Draft Rules for the Limitation of the Dangers incurred by the Civilian Populat

of War, Annex (1956). The list, which is not included with the ICRC o

(www.icrc.org/ihl/nsf), is reprinted in paragraph 39 of Report to the Prosecutor, su

The Report to the Prosecutor failed to take a firm position on the attack (and on att

media facilities generally).

The media as such is not a traditional target category. To the extent particula

components are part of the C3 (command, control and communications) netwo

are military objectives. If media components are not part of the C3 network th

may become military objectives depending upon their use. As a bottom line, c

civilian objects and civilian morale as such are not legitimate military objectiv

media does have an effect on civilian morale. If that effect is merely to foster sup

the war effort, the media is not a legitimate military objective. If the media is used t

crimes, as in Rwanda, it can become a legitimate military objective. If the med

nerve system that keeps a war-monger in power and thus perpetuates the war e

may fall within the definition of a legitimate military objective. As a general statem

the particular incidents reviewed by the committee, it is the view of the commit

NATO was attempting to attack objects it perceived to be legitimate military obj

Id. ¶55.

45. See supra note 38. Coalition forces dropped over 29,000 guided and unguided mun

Operation Iraqi Freedom. Operation Iraqi Freedom—By the Numbers, supra note 

Human Rights Watch report on the operation found only the destruction of media 

electrical power distribution facilities “questionable.” Instead, it criticized an “unsou

methodology... compounded by the lack of an effective assessment both prior to the a

risk to civilians . . . and following the attacks of their success and utility” as the primar

causing civilian casualties. Human Rights Watch, Off Target: The Conduct of the War 

Casualties in Iraq (Dec. 2003), available at www.hrw.org/reports/2003/usa1203/ [he

Target] . The Human Rights Watch, Amnesty International, and ICTY Prosecutor’s O

on the 1999 air campaign in Yugoslavia are consistent, with over 28,000 combat sortie

handful of targets questioned as legitimate military objectives. See, respectively, Hu

Watch, Civilian Deaths in the NATO Air Campaign (Feb. 2000), available at www.hrw

2000/nato/; Amnesty International, “Collateral Damage” or Unlawful Killings?: Viola

Laws of War by NATO during Operation Allied Force (June 6, 2000), available atwww.a

library/index/ENGEUR700182000; Report to the Prosecutor, supra note 40.

46. Charles J. Dunlap, Jr., The End of Innocence: Rethinking Noncombatancy in the 

Era, STRATEGIC REVIEW 14 (Summer 2000). He further suggests that current techn

the United States to apply “tremendous destructive power . . . discreetly and efficien

wide range of objects that opportunistic, materialistic societies like Yugoslavia valu

47. Id.

48. Id. He continues,

[a]dditional targets under this proposal could include selected c

educational, and historical sites whose existence provides support—to 

psychological sustenance—to the malignant ideology that stimulates the be

the use of force is intended to support.. Furthermore, resorts, along with 

entertainment, sports, and recreational facilities could be slated for destruct

course, government offices and buildings of every kind would be sub

eradication, even if they do not directly support military activities (excep

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noncombatant survival). Finally, to the extent it is feasible to do so, the p

property of the sentinent, adult population ought to be held at risk so long 

not, again, indispensable to human survival. Milosevic’s bank accounts wo

high on the target list under the revised model.

Id.

49. Id.

This proposal openly acknowledges an intent to inflict hardship upon the s

adult (albeit putatively noncombatant) populace who must be held responsible 

deeds of their military forces. It includes even those who may oppos

government’s policies. Given the tremendous scale of atrocities that are infec

world, not to mention the globalization of WMD technology, ethical norms 

place an affirmative duty on a nation’s citizenry to actively frustrate their govern

actions when they become patently inhumane.

Id.

50. DOUHET, supra note 3.

51. Dunlap, supra note 46, at 15. Arguably he contorts the principles of ne

proportionality to support this effects-based objective: “The scope and severity of the 

bear a reasonable relationship to the egregiousness of the conduct sought to be preven

level of force necessary to purge the enemy society of its perverse beliefs.” The classic ar

military necessity is drawn from the case of United States v. List: “The destruction of pr

lawful must be imperatively demanded by the necessities of war.... There mu

reasonable connection between the destruction of property and the overcoming o

forces.” United States v. List, 11 Trials of the Major War Criminals before the 

Tribunals 1253 (1950).

52. Jeanne M. Meyer, Tearing Down the Façade: A Critical Look at the Current Law 

the Will of the Enemy and Air Force Doctrine, 51 AIR FORCE LAW REVIEW 143 (2001

53. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1

79 (July 8). He partially rejects the principle of distinction by treating civilian objects 

objective and the principle of necessity is transformed by measuring it against need 

the enemy population. Doing so ignores the preambular language of the 1868 St

Declaration, a foundation of modern humanitarian law: “The only legitimate o

States should endeavour to accomplish during war is to weaken the military fo

enemy.” St. Petersburg Declaration Renouncing the Use, in Time of War, o

Projectiles under 400 Grammes Weight, Dec. 11, 1868, 18 Martens 474–5, 

DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 54. It also flies in the face of Art

1863 Lieber Code, the manual for Union forces during the American Civil War

foundational document of humanitarian law:

Nevertheless, as civilization has advanced during the last centuries, so has l

steadily advanced, especially in war on land, the distinction between the 

individual belonging to a hostile country and the hostile country itself, with its 

arms. The principle has been more and more acknowledged that the unarmed c

to be spared in person, property and honor as much as the exigencies of war will 

War Department, Adjutant General’s Office, Instructions for the Government of A

United States in the Field, General Orders No. 100, art. 22 (Apr. 24, 1863),reprinted i

OF ARMED CONFLICTS 3 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004).

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Additional I requirement that Parties “shall direct their operations only agai

objectives.” Protocol Additional I, supra note 4, art. 48. Of course, this principle ass

fiction, albeit a defensible one, because if the civilian population opposes the war ef

little doubt that the State’s ability to wage war will be seriously degraded.

54. ROBERT F. FUTRELL, THE UNITED STATES AIR FORCE IN KOREA 1950–1953, at 

55. See supra note 7.

56. Lord Robertson, Kosovo One Year On: Achievement and Challenge 13 (Mar

www.nato.int/Kosovo/repo2000/index.htm.

57. Indeed, the first attack sortie of Operation Iraqi Freedom was an attempt to 

Hussein. Mark Kinkaid, The First Shot, AIRMAN MAGAZINE, July 23, 2003, 

www.af.mil/news/airman/0703/air.html.

58. Bruce van Voorst, Ready, Aim, Fired, TIME, Oct. 1, 1990, at 55. Also recall the 

surrounding Operation Phoenix, the CIA’s program to neutralize the Vietco

infrastructure (resulting in nearly 20,000 deaths). Michael Ratner, The Bob Kerry Ca

War Expert Analysis (July 2001), www.crimesofwar.org/expert/rather.html. The Hig

Case of 1948 was based in part on Hitler’s order to kill Soviet Commissars (political l

judgment labeled the order “notorious” and the case yielded multiple convictions. U

v. Von Leeb (High Command Case), 11 Trials of War Criminals before the Nuremb

Tribunals under Control Council Law No. 10, at 1 (1950).

59. Lieber Code, supra note 53, art. 148. For a fuller explanation of this analysis, see 

Schmitt, State Sponsored Assassination in International and Domestic Law, 17 YALE J

INTERNATIONAL LAW 609 (1992). See also W. Hays Parks, Memorandum of Law: Exe

1233 and Assassination, THE ARMY LAWYER 4 (1989).

60. The British Manual of 1958 is illustrative: “assassination, the killing or wo

selected individual behind the line of battle by enemy agents or partisans . . . and t

wounding by treachery of individuals belonging to the opposing nation or army, ar

acts of war.” War Office, The Law of War on Land, Being Part III of the Manual of M

art. 115 (1958), reprinted in 10 DIGEST OF INTERNATIONAL LAW (1968).

61. Protocol Additional I, supra note 4, art. 85.3(a).

62. Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Re

Protection of Victims of Non-International Armed Conflicts, June 8, 1977, art. 4.2, 11

609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 483 [hereinaf

Additional II].

63. Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/C

(1998), arts. 8.2(b)(i) & (e)(i) reprinted in DOCUMENTS ON THE LAWS OF WAR, sup

671 [hereinafter ICC Statute].

64. Protocol Additional I, supra note 4, art. 50.1.

65. The exception applies in “situations in armed conflict where owing to the nature 

an armed combatant cannot so distinguish himself.” In such cases, he need only 

himself during each military engagement and while engaged in “a military deployme

the launching of an attack” during such time as he is visible to the adversary. Id., art. 

66. Id., art. 43.3.

67. The Commentary to Article 43 of Protocol Additional I makes it clear that only r

medical personnel enjoy a special status in the armed forces:

In fact, in the army there are numerous important categories of soldiers 

foremost or normal task has little to do with firing weapons. These include a

services, administrative services, the military legal service and others. Wheth

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does not apply to either medical or religious personnel . . . .

COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO TH

CONVENTIONS OF 12 AUGUST 1949, ¶ 1677, at 515 (Yves Sandoz, Christophe Swina

Zimmerman eds., 1987) [hereinafter PROTOCOLS COMMENTARY].

68. The Rome Statute specifically makes them subject to prosecution, another ind

humanitarian law carves out no special regime for heads of State. ICC Statute, supra 

27. On targeting heads of States, see also Thomas Wingfield, Taking Aim at R

Assassination, Tyrannicide, and the Clancy Doctrine, 22 MARYLAND JO

INTERNATIONAL LAW 287 (1999); Robert F. Turner, It’s Not Really “Assassination

Moral Implications of Intentionally Targeting Terrorists and Aggressor-State Regim

UNIVERSITY OF RICHMOND LAW REVIEW 787 (2003); Nathan Canestaro, Americ

Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Sta

BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW 1 (2003); L

Assassinating Saddam Hussein: The View from International Law, 13 INDIANA INTERN

COMPARATIVE LAW REVIEW 847 (2003).

69. US Constitution, art. II, sect. 2, cl. 1. Casper Weinberger has suggested that a hea

government who serves as commander of the armed forces is a combatant. As a matt

overreaches. Casper Weinberger, When Can We Target the Leaders?, STRATEGIC 

(Spring 2001). See also Chris A. Anderson, Assassination, Lawful Homicide, and th

Baghdad, 13 HAMLINE JOURNAL OF LAW AND PUBLIC POLICY 306 (1992).

70. The Department of Defense Dictionary of Military and Associated Term

following definitions for the levels of war:

Strategic Level of War: The level of war at which a nation, often as a member of a g

nations, determines, national or multinational (alliance or coalition) security ob

and guidance, and develops and uses national resources to accomplish these ob

Activities at this level establish national and multinational military objectives; se

initiatives; define limits and assess risks for the use of military and other instrum

national power; develop global plans or theater war plans to achieve these objecti

provide military forces and other capabilities in accordance with strategic plans.

Operational Level of War: The level of war at which campaigns and major operat

planned, conducted, and sustained to accomplish strategic objectives within the

other operational areas. Activities at this level link tactics and strategy by esta

operational objectives needed to accomplish the strategic objectives, sequencing e

achieve the operational objectives, initiating actions, and applying resources to brin

and sustain these events. These activities imply a broader dimension of time or spa

do tactics; they ensure the logistic and administrative support of tactical forces, and 

the means by which tactical successes are exploited to achieve strategic objectives.

Tactical Level of War: The level of war at which battles and engagements are p

and executed to accomplish military objectives assigned to tactical units or task 

Activities at this level focus on the ordered arrangement and maneuver of 

elements in relation to each other and to the enemy to achieve combat objectiv

Joint Pub 1-02, supra note 26.

71. PROTOCOLS COMMENTARY, supra note 67, ¶ 1678, at 515. In the conte

international armed conflict, the Commentary to Protocol Additional II provi

participation in hostilities implies that there is a sufficient casual relationship betwe

participation and its immediate consequences.” Id. ¶ 4787, at 1453.

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“Direct Participation in Hostilities” and 21st Century Armed Conflict, in FESTSCHRIFT 

FLECK 505 (Horst Fischer et al. eds., 2004), available at www.michael

Publications.html. Israel takes the position that Protocol Additional I, Article 5

provides that civilians taking part in the hostilities can only be targeted “for such t

take a direct part in hostilities,” should be broadly construed such that those who 

remain targetable throughout the entire period of their involvement in the conflict. Y

Israeli Counter-Terrorism Measures: Are They “Kosher” under International Law, in 

AND INTERNATIONAL LAW: CHALLENGES AND RESPONSES 96, 104 (Michael N. Sch

Luca Beruto eds., 2003).

73. Although Israel has acknowledged killing over 30 Palestinians pursuant to the 

governmental organizations estimate that nearly three times that number have be

Techniques include using snipers, bombs, and airstrikes. Most of the strikes have 

Palestinian controlled territory and have been mounted against mid- or high-lev

involved in attacks against Israeli targets. Id. at 103. On the policy of targeted killings, s

Ben-Naftali and Keren R. Michaeli, “We Must not Make a Scarecrow of the Law”: A Leg

the Israeli Policy of Targeted Killings, 36 CORNELL INTERNATIONAL LAW JOURNAL 23

74. The Israel Defense Forces Judge Advocate General has set four conditions for cond

strikes:

1) well-supported information showing the terrorist will plan or carry out 

attack in the near future; 2) after appeals to the Palestinian Authority calling 

terrorist’s arrest have been ignored; 3) attempts to arrest the suspect by use 

troops have failed; 4) the assassination is not to be carried out in retribution fo

of the past. Instead, it can only be done to prevent attacks in the future which a

to toll multiple casualties.

HA’ARETZ, Feb. 4, 2002.

75. See, e.g., Amnesty International, Israel, and the Occupied Territories: State Assass

Other Unlawful Killings (Feb. 21, 2001), atwww.amnesty.org/library/index/ENGMDE

76. UN CHARTER, art. 51.

77. S.C. Res. 1368, UN SCOR, 56th Sess., 4370th mtg., UN Doc. S/RES/1368 (200

1373, UN SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001).

78. NATO—North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U

246; North Atlantic Treaty Organization (NATO), Press Release No. 124, Statem

North Atlantic Council (Sept. 12, 2001), www.nato.int/docu/pr/2001/p01-124e.htm

OAS—Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, art. 3

1681, 1700, 21 U.N.T.S. 77, 93; Terrorist Threat to the Americas, Res. 1, Twe

Meeting of Consultation of Ministers of Foreign Affairs Acting as Organ of Con

Application of the Inter-American Treaty of Reciprocal Assistance, OEA/Ser.F/II

RES.1/01 (Sept. 21, 2001).

ANZUS—Security Treaty between Australia, New Zealand, United States, Sept. 

IV, 3 U.S.T. 3420, 3423, 131 U.N.T.S. 83, 86; (by Australia), Prime Minister Joh

Government Invokes ANZUS Treaty—Press Conference (Sept. 14, 2001), 

australianpolitics.com.au/foreign/anzus/01-09-14anzus-invoked.shtml.

79. Russia, China, and India agreed to share intelligence with the United States, whi

South Korea offered logistics support. The United Arab Emirates and Saudi Arab

diplomatic relations with the Taliban, and Pakistan agreed to cooperate fully with 

States. Twenty-seven nations granted overflight and landing rights and 46 

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Overview, Oct. 1, 2001, www.state.gov/s/ct/rls/fs/2001/5194.htm.

80. In addition to United Kingdom participation in the initial strikes, Georgia, Oma

the Philippines, Qatar, Saudi Arabia, Tajikistan, Turkey and Uzbekistan provided a

facilities. China, Egypt, Russia, and the European Union publicly backed the opera

even the Organization for the Islamic Conference limited itself to urging the Unit

restrict its campaign to Afghanistan. Australia, Canada, the Czech Republic, Ger

Japan, the Netherlands, New Zealand, Turkey, and the United Kingdom offered gro

Sean D. Murphy, Terrorism and the Concept of “Armed Attack” in Article 51 of the U

43 HARVARD INTERNATIONAL LAW JOURNAL 41, 49 (2002); Sean D. Murphy, Co

Practice of the United States Relating to International Law, 96 AMERICAN JO

INTERNATIONAL LAW 237, 248 (2002).

81. With the exception of the United Kingdom and Israel, many of the close

criticized the airstrikes against government and terrorist targets in Libya. The Gener

passed a condemnatory resolution following the attack. GA Res. 41/38, UN GAOR

78th plen. mtg. at 34, UN Doc A/RES/41/38 (1986). See W. Michael Reisman, Interna

Responses to Terrorism, 22 HOUSTON JOURNAL OF INTERNATIONAL LAW 3, 33–34 

detailed description of international reaction. See also Stuart G. Baker, Comparing 

Airstrike on Iraq to the 1986 Bombing of Libya: The New Interpretation of Article 51, 

JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 99 (1994).

82. Proportionality and necessity have specifically been cited as customary internat

the International Court of Justice. Military and Paramilitary Activities (Nicar. v. US

¶ 194 (June 27); Case Concerning Oil Platforms (Iran v. US), Judgment (Merits) 

(Nov. 6, 2003), www.icj-cij.org.

83. Profile: Ali Qaed Senyan al-Harthi, BBC News World Report, Nov. 5

news.bbc.co.uk/2/hi/middle_east/2404443.stm.

84. Anthony Dworkin, The Yemen Strike, Nov. 14, 2002, at www.crimesofw

news-yemen.html.

85. Ministry of Foreign Affairs, Israel: Targeting Terrorists—Background (Aug. 

www.mfa.gov.il/mfa/go.asp?MFAH0k9d0.

86. Letter from Daniel Webster to Lord Ashburton (Aug. 6, 1842), in 29 BRITISH AN

STATE PAPERS 1840–1, at 1129, 1138. The incident involved the Caroline, a vessel us

Canadian rebels fighting British rule during the Mackenzie Rebellion. British forces 

the United States (after asking the United States, without result, to put an end to reb

on its territory), captured the Caroline, set it ablaze, and sent it over Niagara Fa

citizens perished. An exchange of diplomatic notes ensued in which Secretary of 

Webster articulated the standard. Lord Ashburton, his British counterpart, ac

formula as the basis of their exchange. Letter from Lord Ashburton to Daniel W

Secretary of State (July 28, 1842), in 30 BRITISH AND FOREIGN STATE PAPERS 

available at www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm.

87. In addition to acceptance of the standard by the International Court of Justic

note 82), the Nuremberg Tribunal cited the case approvingly when rejecting the ar

Germany had attacked Poland in 1939 and Norway in 1940 in (anticipatory) 

International Military Tribunal (Nuremberg), Judgment, 41 AMERICAN JO

INTERNATIONAL LAW 172, 205 (1947).

88. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 172 (3d ed. 2001).

89. On January 8, 2004, Secretary of State Powell, referring to “evidence of a connect

Saddam Hussein and al-Qaida and...a likelihood that he would transfer weapons t

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the possibility of such connections did exist and it was prudent to consider them at t

we did.” Colin L. Powell, Secretary Powell’s Press Conference (Jan. 8, 2004), www

secretary/rm/28008.htm.

90. Letter from the Permanent Representative of the United States of America to 

Nations Addressed to the President of the Security Council (Oct. 7, 2001), UN Doc. 

www.un.int./usa/s-2001-946.htm; Secretary General Lord Robertson, Statemen

Headquarters (Oct. 2, 2001), www.nato.int/docu/speech/2001/s011002a.htm.

91. “Members of the armed forces of a party to a conflict (other than medical pe

chaplains covered by Article 33 of the Third Convention) are combatants, that is 

have the right to participate directly in hostilities.” Protocol Additional I, supra note 4

92. Law enforcement incorporation must be notified to the other side for combat

attach. Id. art. 43.3.

93. Common Article 2 to the four Geneva conventions provides that “the present 

shall apply to all cases of declared war or of any other armed conflictwhich may arise be

more of the High Contracting Parties, even if the state of war is not recognized by on

(Emphasis added). Geneva Convention for the Amelioration of the Condition of th

and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 

in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 197; Geneva Conven

Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members o

Forces at Sea, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 75 U.N.T.S. 85,reprinted in DOCUME

LAWS OF WAR, supra note 4, at 222; Geneva Convention Relative to the Treatment of 

War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS O

OF WAR, supra note 4, at 244; and Geneva Convention Relative to the Protection 

Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287, 

DOCUMENTS ON THE LAWS OF WAR,supra note 4, at 301. Article 1.2 of Protocol Addit

that it applies to “situation referred to in Article 2 common.” It then controversi

coverage to armed conflicts in which “people are fighting against colonial dominatio

occupation and against racist regimes in the exercise of their right of self-determinatio

Additional I, supra note 4, arts. 1.3 & 1.4.

94. COMMENTARY ON THE GENEVA CONVENTION FOR THE AMELIORATION OF THE 

OF THE WOUNDED AND SICK OF THE ARMED FORCES IN THE FIELD 49 (J. Pictet ed., 

95. Protocol Additional II, supra note 62, art 1.1.

96. James Risen & David Johnston, Threats and Responses: Hunt for Al Qaeda, 

TIMES, Dec. 15, 2002, at 1.

97. See report of the group’s activities in Douglas Waller, The CIA’s Secret Army, T

2003, www.time.com/covers/1101030203/.

98. UN CHARTER, art. 2(4): “All Members shall refrain in their international relatio

threat or use of force against the territorial integrity or political independence of any st

other manner inconsistent with the Purposes of the United Nations.” This prohibition 

only to seizure of territory, but also to non-consensual penetration. Albrecht Randelzh

2, in I THE CHARTER OF THE UNITED NATIONS:ACOMMENTARY 112, 123 (Bruno Si

ed. 2002). See also Declaration on Principles of International Law Concerning Friend

and Cooperation Among States in Accordance with the Charter of the United Nation

Every State has a duty to refrain in its international relations from the threat o

force against the territorial integrity or political independence of any State, or 

other manner inconsistent with the purposes of the United Nations. Such a th

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Nations and shall never be employed as a means of settling international issues

G.A. Res. 2625 (XXV), UN GAOR , 25th Sess., annex, UN Doc. A/Res/2625 (1970), 

65 AMERICAN JOURNAL OF INTERNATIONAL LAW 243 (1971) and in KEY RESOLUTI

UNITED NATIONS GENERAL ASSEMBLY, 1946–1996, at 3 (Dietrich Rauschning, Katja 

& Martin Lailach eds., 1997) [hereinafter Declaration on Friendly Relations]. The res

adopted by acclamation.

99. Noted by John Basset Moore in his dissent in the Lotus case. S.S. Lotus (Fr. v. 

P.C.I.J. (ser. A) No. 10, at 4, 88 (Sept. 7)(Moore, J., dissenting).

100. See, e.g., Declaration on Friendly Relations, supra note 98; Declaration on 

Eliminate International Terrorism, G.A. Res. 49/60, UN GAOR 6th Comm., 49th Sess

mtg., UN Doc. A/49/743 (1994); Declaration to Supplement the 1994 Declaration on 

Eliminate International Terrorism, G.A. Res. 51/210, UN GAOR 6th Comm., 51s

plen. mtg., UN Doc. A/51/631 (1996); S.C. Res. 1363, UN SCOR, 56th Sess., 4352

Doc. S/RES/1363 (2001); S.C. Res. 1267, UN SCOR, 54th Sess., 4051st mtg., UN D

1267 (1999).

101. In the case of Afghanistan, the United Nations had demanded that the Taliban p

terrorist activities on territory it controlled both before and after September 11. S

Res. 1267, supra note 100; S.C. Res. 1363, supra note 100; S.C. Res. 1378, UN SCOR

4415th mtg., UN Doc. S/RES/1378 (2001); S.C. Res. 1390, UN SCOR, 57th Sess., 445

Doc. S/RES/1390 (2002). After 9/11, President Bush made the demand explici

George W. Bush, Address Before a Joint Session of Congress on the United States 

the Terrorist Attacks of September 11, 37 WEEKLY COMPILATION OF PR

DOCUMENTS 1347 (Sept. 20, 2001). The United States also made back-chann

through Pakistan.

102. Perhaps the most significant case of a State crossing into another to deal with a

Caroline case itself, since the correspondence between Webster and Ashburton is 

cited as the source of the requirements of self-defense.

103. Defense Intelligence Agency, Saddam’s Use of Human Shields and Deceptive 

Special Briefing for the Pentagon Press Corps (Feb. 26, 2003), www.defenselin

Feb2003/g030226-D-9085M.html. On this subject, see also Central Intelligence Age

Noncombatants at Risk: Saddam’s Use of Human Shields, January 2003, www

reports/iraq_human_shields/; Emanuel Gross, Use of Civilians as Human Shields: 

and Moral Restrictions Pertain to a War by a Democratic State against Terrorism

INTERNATIONAL LAW REVIEW 445 (2002).

104. Defense Intelligence Briefing, supra note 103.

105. For a version of these points, see id.

106. G.A. Res. 46/134, UN GAOR, 46th Sess., ¶ 2(c), UN Doc. A/RES/46/134 (1991

107. Off Target, supra note 45.

108. In May 1995, Bosnian Serbs seized UNPROFOR peacekeepers and used them 

shields against NATO airstrikes. In response, the United Nations condemned 

demanded release, and authorized the creation of a rapid reaction force to h

situations. S.C. Res. 998, UN SCOR, 3543d mtg., UN Doc S/RES/998 (1995).

109. Joint Pub 3-60, supra note 9, app. A.

110. Id.

111. Geneva Convention Relative to the Protection of Civilian Persons in Time of 

note 93, art. 28.

112. Protocol Additional I, supra note 4, art 51.7.

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p()()g p

other protected person to render certain points, areas or military forces im

military operations.”

114. Protocol Additional I, supra note 4, art. 51.8.

115. Department of the Air Force, International Law—The Conduct of Armed Con

Operations (AFP 110-31), at ¶ 5-4b (Nov. 19, 1976).

116. ROGERS, supra note 43, at 79. See also W. Hays Parks, Air War and the Law of 

FORCE LAW REVIEW 1, 163 (1992).

117. Joint Pub 3-60, supra note 9, at A-2–A-3.

118. Department of the Air Force, USAF Intelligence Targeting Guide, at A4.2.1.2 (Feb

119. Department of the Air Force, Judge Advocate General’s Department, Air Force 

and the Law 293 (2002).

120. Abelligerent reprisal is an unlawful, but proportionate, act taken to compel one’s 

desist in its own unlawful course of conduct. On reprisals, see FRITS KALSHOVEN, B

REPRISALS (1971). Protocol Additional I went far beyond prior humanitarian law in 

reprisals, a fact that led to US opposition to the treaty. See Protocol Additional I, supra 

51.6 (civilians and civilian population), 52.1 (civilian objects), 53 (cultural objects a

worship), 54.4 (objects indispensable to the survival of the civilian population), 55.2 

environment), and 56.4 (dams, dykes and nuclear electrical generating stations).

121. CNN Interactive, Iraqis Volunteering as Human Shields (Nov. 14, 1997), at ww

WORLD/9711/14/iraq.al.sahhaf.presser. They used force for that purpose during 

Desert Fox in December 1998.

122. Although most came to shield civilian objects, the Iraqi government urged th

military objectives.

123. Department of Defense, Background Briefing on Targeting (Mar. 5, 200

.defenselink.mil/news/Mar2003/t03052003_t305targ.html.

And then, the other target category that is a challenge for us is where the human 

that we’ve talked of before might be used. And you really have two types of 

shields. You have people who volunteer to go and stand on a bridge or a power p

a water works facility, and you have people that are placed in those areas not 

own free will. In the case of some of the previous use of human shields in Iraq, S

placed hostages, if you will, on sensitive sites in order to show that these were 

shields, but, in fact, they were not there of their own free will. Two separate prob

deal with that, and it requires that we work very carefully with the inte

community to determine what that situation might be at a particular location.

124. Human Rights Watch, International Humanitarian Law Issues in a Potential 

(Feb. 20, 2002), http://www.hrw.org/backgrounder/arms/iraq0202003.htm#1.

125. Protocol Additional I, supra note 4, art. 51(3).

126. ICC Statute, supra note 63, art. 8. The notion of direct participation also ap

humanitarian law pertaining to non-international armed conflict. Common Article 

1949 Geneva Conventions specifically applies to “persons taking no active part in 

Geneva Conventions, supra note 93, art. 3(1). The very limited nature of the article’s 

were augmented in 1977 by Protocol Additional II to the Geneva Conventions, wh

far more extensive protection to civilians “unless and for such time as they take a d

hostilities.” Protocol Additional II, supra note 62, art 13.3. Although Common A

Protocol II employ different terminology (“active” and “direct” respectively), the In

Criminal Tribunal for Rwanda reasonably opined in the Akayesu judgment that the 

similar they should be treated synonymously. ICTR, Prosecutor v. Jean-Paul Ak

ICTR-96–4-T, Judgment, 2 Sept. 1998, ¶ 629.

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p

128. Id. ¶ 1942, at 618.

129. Protocol Additional I, supra note 4, art. 52.2.

130. This is arguably consistent with US doctrine. Joint Publication 3-60 provides,

The protection offered civilians carries a strict obligation on the part of civilian

participate directly in armed combat, become combatants, or engage in acts 

Civilians engaging in fighting or otherwise participating in combat operations, sin

or as a group, become unlawful combatants and lose their protected civilian stat

Joint Pub 3-60, supra note 9, at A-2.

131. Justus R. Weiner, Co-existence Without Conflict: The Implementation of Legal S

Israeli-Palestinian Cooperation Pursuant to the Interim Peace Agreements, 26 

JOURNAL OF INTERNATIONAL LAW 591, 679 n.407 (2000).

132. For instance with the entry into force on February 12, 2002 of the Optional Pro

Convention on the Rights of the Child on the Involvement of Children in Armed Co

Res. 54/263, Annex I, 54 UN GAOR Supp. No. 49, UN Doc. A/54/49 (2000).

133. Protocol I, supra note 4, art. 52.2.

134. Prosecutor v. Stanislav Galic, Judgement, Dec. 5, 2003, Case No. IT-98-29-T, w

icty/galic/trialc/judgement/index.htm.

135. The Report to the Prosecutor on the NATO bombing campaign usefully addres

reus and mens rea of the offense of unlawful attack under Article 3 of the ICTY Stat

Attacks which are not directed against military objectives (particularly attacks d

against the civilian population) and attacks which cause disproportionate 

casualties or civilian property damage may constitute the actus reus for the off

unlawful attack under Article 3 of the ICTY Statute. The mens rea for the of

intention or recklessness, not simple negligence. In determining whether or 

mens rea requirement has been met, it should be borne in mind that comm

deciding on an attack have duties:

a) to do everything practicable to verify that the objectives to be attacked are 

objectives,

b) to take all practicable precautions in the choice of methods and means of 

with a view to avoiding or, in any event to minimizing incidental civilian ca

or civilian property damage, and

c) to refrain from launching attacks which may be expected to cause dispropo

civilian casualties or civilian property damage.

Report to the Prosecutor, supra note 40, ¶ 28.

136. Protocol Additional I, supra note 4, art. 51.5(a).

137. Id., art. 57.2. The Report to the Prosecutor on the NATO bombing campaign e

this obligation:

The obligation to do everything feasible is high but not absolute. A military com

must set up an effective intelligence gathering system to collect and e

information concerning potential targets. The commander must also direct hi

to use available technical means to properly identify targets during operations. B

commander and the aircrew actually engaged in operations must have some r

discretion to determine which available resources shall be used and how they 

used. Further, a determination that inadequate efforts have been made to dist

between military objectives and civilians or civilian objects should not necessari

exclusively on a specific incident. If precautionary measures have worked adequ

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y gpgy 

number of cases does not necessarily mean they are generally inadequate.

Report to the Prosecutor, supra note 40,¶ 29.

138. Indeed, the International Criminal Tribunal for the Former Yugoslavia ad

failure to use discriminate weapons where civilians were collocated with the mi

Blaskic case. The case involved shelling of the village of Ahmici and several others in 

Valley with “baby-bombs,” home made mortars that are difficult to aim accuratel

Chamber found this to be a deliberate attack on civilians with “blind weapons.” P

Blaskic, Judgment, March 3, 2000, Case No. IT-95-14.

139. Protocol Additional I, supra note 4, art. 52.3.

140. Information warfare consists of “information operations conducted during tim

conflict to achieve or promote specific objectives over a specific adversary or adversaries

network attacks (CNA), a form of information warfare, are “operations to disrupt, deny

destroy information resident in computers and computer networks, or the computers a

themselves.” Joint Pub 1-02, supra note 26. The essence of CNA is that, regardless of th

which it occurs, a data stream is relied on to execute the attack. Methods include, inter 

access to a computer system so as to acquire control over it, transmitting viruses to de

data, using logic bombs that sit idle in a system until triggered on the occasion of 

occurrence or at a set time, inserting worms that reproduce themselves upon entry 

thereby overloading the network, and employing sniffers to monitor and/or seize data.

141. On CNA and the jus ad bellum, see Michael N. Schmitt, Computer Network At

of Force in International Law: Thoughts on a Normative Framework, 37 COLUMBIA J

TRANSNATIONAL LAW 885 (1999).

142. On CNA and the jus in bello, see Michael N. Schmitt, Wired Warfare: Compu

Attack and International Law,” 84 (No. 846) INTERNATIONAL REVIEW OF THE RED 

(June 2002). On the subject generally, see COMPUTER NETWORK ATTACK AND INTE

LAW (Michael N. Schmitt & Brian T. O’Donnell eds., 2002) (Vol. 76, US Naval W

International Law Studies).

143. Protocol Additional I, supra note 4, art. 57.2 (a)(ii).

144. Id., art. 57.3.

145. See Bankovic, supra note 41.

146. Protocol Additional I, supra note 4, art. 48.

147. Id., art. 51.2.

148. Id., art. 52.1.

149. Id., art. 51.4.

150. Id., art. 52.2.

151. Id., art. 49.

152. PROTOCOLS COMMENTARY, supra note 67, ¶ 1875, at 600.

153. See Schmitt, Wired Warfare: Computer Network Attack and International Law

142, at 375–78.

154. See discussion at id. at 377.

155. Robert Bolt, A Man for All Seasons, act. I, scene 6 (1954).

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X

Coalition Operations and the Law

M. H. MacDougall1

his paper addresses the practical side of the application of the law 

conflict and domestic law requirements during coalition comb

tions; highlighting areas where different legal structures or divergent n

terpretation of the applicable international framework may have 

impact. I am going to do this by briefly canvassing three such areas in the 

Operation Enduring Freedom. Two of these are directly related to th

combatants and civilians. The third is a completely distinct topic—the c

coalition investigatory boards.

Coalition Boards of Inquiry

The first area I would like to discuss is coalition boards, using the Coalit

that was convened by the United States Air Force to investigate the Tar

Range friendly fire incident and the Canadian Board of Inquiry that was o

the Minister of National Defence (MND) to investigate the same incide

cus. I do not intend, however, to comment on any substantive finding

board. Rather, my emphasis will be on the procedural issues that arose 

conduct of the concurrent boards that were investigating the incident an

lution of those issues.

The facts are undisputed. On the evening of April 17, 2002, soldiers fr

Company, Third Battalion, Princess Patricia’s Canadian Light Infa

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engaged in a night live fire training exercise at Tarnak Farms Range jus

Kandahar, Afghanistan. While the Canadian soldiers were training, tw

fighter aircraft were returning from an on-call mission to support coaliti

forces. As the aircraft passed south of Kandahar, the flight leader observe

described as fireworks coming from an area a few miles south of Kand

ceiving this as surface-to-air fire, the pilot asked for and received permis

the mission crew of a US Airborne Warning and Control System (AWAC

to determine the precise coordinates of the surface-to-air fire. While atte

obtain the coordinates, the pilot of the second aircraft, the wingman, 

permission to fire on the location with his 20-millimeter cannon. Th

crew told him to stand by, and later requested that the wingman provide 

information on the surface-to-air fire while directing him to hold fire

immediately responded “I’ve got some men on a road and it looks like a p

tillery firing at us. I am rolling in in self defense.” The pilot then calle

away” as he released one 500-pound GBU-12 laser-guided bomb. The bo

a Canadian fire position at Tarnak Farms. Four Canadians were killed, 

wounded.

As a result of this tragic incident, two boards, one exclusively Canadia

American with a Canadian co-chairman (Coalition Board), were conve

vestigate the incident.

However, although each Board was investigating the same incident, th

purpose for the respective investigations was quite different. As will be h

later, this difference in purpose had significant impact on the procedura

applicable to each board.

The primary purpose for the Coalition Board was of a disciplinary na

board was convened with the specific mandate to make disciplinary reco

tions, if such were warranted. The Canadian Board of Inquiry was conve

Section 45 of the National Defence Act whereby the MND may convene su

when it is appropriate for the MND to be informed on a matter connecte

Canadian Forces or that affects a member thereof. The primary purpose of 

dian board was quite different than that of the Coalition Board. It was co

administrative/safety purposes and was designed to meet the Canadian pu

tation that this tragic incident would be investigated in a balanced and t

manner. Recommendations as to potential disciplinary action were neve

plated and under Canadian jurisprudence, the conduct of the investiga

have, in fact, prejudiced future criminal/disciplinary action.

The conduct of simultaneous investigatory boards into the same inci

different purposes, poses unique challenges. The first is that of sharing and 

of information. This issue has two facets: first, how to ensure both boards 

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to the necessary information to reach informed conclusions and recomm

and second, what information could be publicly disclosed once the respect

had completed their investigation and made their recommendations.

Because the co-chairman of the Coalition Board was Brigadier Gen

Dumais, a Canadian, one obvious option for the sharing of the requisite in

would have been to use General Dumais as a conduit of information betwe

boards. This option was not a viable one because of the significant impact s

rangement could have on the perceived independence and impartiali

board. The second option, and the one that was utilized, was the establish

protocol for the release of information to the boards. This protocol estab

process for requesting documentary evidence and witnesses and set out th

ters under which the information could be released. In the case of requests 

nadian Board of Inquiry for information from US authorities, these p

formed part of the legal basis for the determination of what information c

leased publicly. In light of the raison d’etre(a balanced and transparent inv

for the Canadian Board of Inquiry and the fact that it had been Canadi

who had been injured or died, as much public disclosure as possible was o

portance. Equally important, however, was the desire not to release classi

mation, personal information protected from release under privacy leg

information the release of which could impact on potential disciplinary pr

Balancing these conflicting priorities takes a great deal of coordination an

tion between national authorities to ensure consistent and coordinated 

lease of information. One of the most important lessons learned in 

process is never assume full knowledge of the legal and political constrain

tion partner may be operating under, particularly when dealing with suc

tion charged issue as the death of coalition soldiers as a result of friendly fir

Canada and the United States, who share such similar legal, political an

foundations, reaching a compromise that addressed both countries con

significant effort and coordination and, I might add, a lot of late nights, l

panics and very senior intervention.

Returning to the initial theme of the impact of procedural processes a

the respective boards as a result of their differing primary purposes, 

touch briefly on the issue of compellability of witnesses. As I understand 

ness could be compelled to testify before the Coalition Board. In contra

nadian board could compel anyone subject to Canadian law to testify

testimony could not be used as evidence in a legal proceeding (civil, disc

criminal), save for perjury charges. This striking difference in procedura

directly linked to the primary purpose for the convening of the board. In 

dian context, because no evidence given to a Board of Inquiry can be use

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legal proceedings, witnesses can be compelled to testify because it does n

on their fundamental right “not to be compelled to be a witness in pr

against oneself.” Because the purpose of the investigation is an administ

tied primarily to safety issues, the balance is tipped in favor of compellin

nesses to testify in the interests of a full exploration of the facts.

Having now identified in a very cursory manner some of 

interoperability issues related to coalition boards let me close this issue 

that I believe that none of these challenges are insurmountable. In fact, 

stance I believe these differences in process, dictated largely by differen

legal standards, actually enhanced the credibility of the findings and reco

tions of the respective Boards. In the case of the Tarnak Farms tragedy, 

tured process that evolved for disclosure of information to the respecti

ensuring that there was no collusion or collaboration between the boa

the public perception that there had been a balanced and transparent inv

into the matter. A closer relationship between the two boards during the 

tive process may not have resulted in the same perception.

Transfer of Detainees

The second area where different legal structures or divergent national i

tion of the applicable international framework may have an impact on o

is that of the transfer of detainees to another coalition partner. Let me ag

brief background of the issue in the context of Operation Apollo, Canad

bution to Operation Enduring Freedom. Throughout the campaign agai

ism, the tasks and capabilities of Canadian Forces (CF) units, as well as s

coalition partners, deployed in the theater of operations did not permi

term detention of persons detained by the CF. Persons detained by the C

ther released or evacuated from the point of capture to a facility whe

screening, long-term treatment and security could be ensured. For Ope

during Freedom, the United States assumed the responsibility of establ

maintaining the coalition’s short- and long-term detention facilities in 

stan and Guantanamo Bay, Cuba. The Government of Canada has not

times that Canada, as a coalition partner, will, as a general rule, transfer p

tained by the CF, and who are suspected members of the Taliban and al

the United States.

I would like to highlight some of the legal issues that may impact on th

of a coalition partner whether or not to transfer detainees to another 

partner. As with so many other issues related to international law the

“black letter law” issues and different coalition partners will likely hav

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interpretations of the applicable law or even what is the applicable law

course, is one of the significant challenges of coalition operations.

Before addressing the specifics of these legal issues, let me provide an e

how fundamental these different interpretations can be. As part of t

campaign against terrorism, Canada and its coalition partners are eng

armed conflict and are exercising their inherent right of collective and 

self-defense against the al-Qaida and the Taliban. But what is the legal r

plicable to these hostilities? Generally, where a State is entitled to use f

armed conflict, it must conduct hostilities in accordance with internat

particularly the law of armed conflict. However, al-Qaida is a non-State 

qualifying as a “national liberation movement”) and prior to September 

States rejected the Taliban as the legitimate government of Afghanistan 

legitimate governments of Afghanistan had signed and ratified the Gen

ventions of 19492). This has led to a debate as to whether the coalition p

engaged in an international or non-international armed conflict and, if o

that it is an international armed conflict, whether the Geneva Conventio

1977 Additional Protocol I3 apply as a matter of conventional law to the co

example, on February 7, 2002, the United States announced that altho

never recognized the Taliban as the legitimate Afghan Government, the 

determined that the Taliban members are covered by the Geneva Conve

cause Afghanistan is a party to them. Other coalition partners may have 

view that the Geneva Conventions and the 1977 Additional Protocol I ma

nically apply to the conflict as a matter of strict conventional or treaty law

regardless of the legal position adopted by coalition partners, all coalitio

are applying the same standards, either as a matter of law or policy.

What is the legal authority for one coalition partner to transfer de

another coalition partner?

Turning now to the specific issue of transfer of detainees from one coal

ner to another, one issue that legal advisors may have to analyze prior to 

being made is whether there is legal authority for such a transfer. Genev

tion (III) Relative to the Treatment of Prisoners of War provides for the 

prisoners of war to other nations who are willing and able to abide by th

tion’s obligations for the handling and treatment of such persons. In 

Article 12 states: “Prisoners of war may only be transferred by the Detain

to a Power which is a party to the Convention and after the Detaining 

satisfied itself of the willingness and ability of such transferee Power to 

Convention.” (Emphasis added.) There are no specific provisions for 

tained persons who have taken part in hostilities but are not entitled to p

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war status (i.e., unlawful combatants) and therein may be the rub for so

tion partners.

In the context of Operation Enduring Freedom, a review of US treatm

tainees at Kandahar and Guantanamo Bay and statements made by 

Bush, indicate the United States is willing and able to apply the appropr

national law standards. In particular, on February 7, 2002, the White H

fied the US position on the applicability of the Geneva Conventions to m

the Taliban and al-Qaida.4 The White House Spokesman’s comments ca

marized as:

• The United States is committed to applying the principles of th

Conventions;

• The United States applied the Geneva Conventions (including A

Convention III) to the Taliban and made a blanket determination that 

of the Taliban are not prisoners of war;

• The United States has decided not to apply the Geneva Conv

members of al-Qaida because they do not represent any State that is a p

Geneva Conventions. Accordingly, they cannot have prisoner of war sta

the Geneva Conventions;

• The United States will treat all detainees humanely and consisten

principles of the Geneva Conventions; and

• The International Committee of the Red Cross (ICRC) has bee

and will continue to have, access to facilities and detained persons.

In circumstances such as this, it may be reasonable to argue that a coaliti

can transfer these unlawful combatants to the United States in accord

standards analogous to the provisions of Article 12 of Geneva Conventi

Are blanket determinations of PW status permissible under internati

Even if a coalition partner is satisfied that the receiving State is willing a

apply the Geneva Conventions and other appropriate international 

dards, the issue of the reasonableness of a blanket determination that me

group are not entitled to prison of war status may be problematic. This w

tially an issue for coalition partners during the campaign against terroris

one hand, you have the position that such blanket determinations are su

under international law if based on appropriate evidence. (The Uni

decided that members of the Taliban and al-Qaida are not entitled to p

war status. This was based on its determination that al-Qaida met none 

quirements for prisoner of war status—a responsible commander, a 

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and visible insignia, the open bearing of arms and compliance with th

customs of war. The Taliban failed to meet the last requirement.)

On the other hand, you have the argument that Article 5 of Geneva C

III requires a case-by-case evaluation of the status of detained persons if p

war status is not being conferred, based on the plain reading of Article 5

addresses the issue of the legal status of a captured or detained person 

committed a belligerent act. It notes that a person who is classified as a 

ant” under Article 4 will be treated in all respects as a prisoner of war. If t

doubt about whether a detainee is entitled to prisoner of war status, Artic

eates the requirement to conduct a status determination tribunal as foll

Should any doubt arise as to whether persons, having committed a belligeren

having fallen into the hands of the enemy, belong to any of the categories enum

Article 4 [i.e., combatants], such persons shall enjoy the protection of the 

convention until such time as their status has been determined by a competent tr

One could argue that a simple way for a coalition partner to solve this d

conduct its own status determination hearing prior to transfer, but ther

quirement at law to do so and this approach ignores the reality of the o

situation where it may be impossible to do so in a timely and effective m

What is the impact on the decision to transfer if it is known at th

transfer that a detainee is likely to be charged and may be subject to 

penalty and/or judicial proceedings that may not meet minimal 

guarantees under international or domestic law?

This, of course, is the thorny issue of transferring detainees to a State wh

code authorizes the death penalty or has a judicial system with less p

guarantees than those found under the coalition partner’s law. Interna

including the law of armed conflict, contemplates that detainees, includi

ers of war and unlawful combatants, may be subject to judicial proceedin

timately sentenced to death.5 International law imposes minimum legal 

on the conduct of these proceedings. Unlawful combatants may be pro

criminals for having taken part in hostilities. Prisoners of war could be 

prosecution if they committed violations of the laws of war.

The real legal issue for coalition operations, however, is likely to be ho

mestic law of the respective coalition partners impacts on the transfer o

to a coalition partner, who could potentially subject the detainee to the d

alty. Unlike the United States, most other western nations’ domestic hum

standards have some extraterritorial application to aliens. For example

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of Canada

s Charter of Rights and Freedoms guarantees individuals the r

be deprived of their life, liberty or security of the person except in accord

the principles of fundamental justice. The Supreme Court of Canada ha

extradition to face the death penalty6 or immigration removal where the

stantial risk of torture7 would violate Section 7 in all but exceptiona

stances. Arguably the issue of transfer of detainees in the context of 

operation abroad is quantifiably different than the extradition or immig

moval of a person who is on Canadian territory, but the application of th

to such operations has yet to be addressed by Canadian courts. In a simila

European Court of Human Rights ruled in Bankovic8 that while Article 1 

ropean Convention on Human Rights9 contemplates the ordinary and 

territorial notion of jurisdiction, extra-territorial jurisdiction by a contra

is possible in exceptional circumstances depending on the particula

stances of each case.

Additional Protocol I—Article 51(3)

The final issue I would like to touch on today is what Hayes Parks calls th

ing door” for certain civilians provided by Article 51(3) of Additional P

As a trade-off for the protection they enjoy against the dangers arising 

tary operations, civilians should not directly participate in hostilities. Ac

Article 51(3) of Additional Protocol I, their direct participation in hostil

matically entails loss of immunity from attack “for such time as they ta

part in hostilities.” In principle, the trade-off does not appear to be pr

particularly in the context of those armed conflicts where there is no d

precisely defining combatant and civilian status. But in the context of 

Enduring Freedom, the practical application of this temporal limitation 

problematic, particularly from a targeting perspective. How can the per

which a civilian who directly participates in hostilities loses immunity fr

be defined in practical terms? Does it mean that civilians only lose their 

status and become lawful targets while they carry a weapon and they rev

protected status once they throw down their weapon or return home fro

the trenches? Or do they continue to be lawful targets so long as they pe

functions of combatants, such as planning and command as well as the a

duct of operations? There is no international consensus on this issue an

not academic questions, the answer to which is of no practical import. N

only relevant to those nations who are parties to Additional Protocol I. 

decisions will remain subject to legal review as part of the accountabili

that is integral to the principle of command responsibility. There will b

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on the whole coalition as a result of each partner

s interpretation on th

each nation’s position on this issue may have a direct impact on the 

signed to each partner by the coalition commander.

Notes

1. Captain M. H. (N) McDougall, Canadian Forces, is the Deputy Judge Advocate/O

2. Geneva Convention (I) for the Amelioration of the Condition of the Wounded 

Armed Forces in the Field, Geneva, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Conven

the Amelioration of the Condition of Wounded, Sick and Shipwrecked Member

Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to th

of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention Rel

Protection of Civilians Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287; all 

DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2

222, 244 and 301, respectively.

3. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (hereinafter Additional Prot

8, 1977, 1125 U.N.T.S. 3, reprinted in id. at 422.

4. See the White House statement on the applicability of the Geneva Conventions, 

www.CBC.CA “US Guarantees Rights to Taliban Detainees,” Feb. 8, 2002 and at 

.Com “Bush: Geneva Treaty Applies to Taliban Detainees,”Feb. 7, 2002.

5. For example, see Geneva Convention (III), Articles 99–107 of Part III (Judicial P

and Geneva Convention (IV), Articles 64–68 of Part III, Section III (Occupied 

DOCUMENTS ON THE LAWS OF WAR, supra note 2.

6. United States v. Burns [2001] 1 S.C.R. 283.

7. Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3.

8. Bankovic and Others v. Belgium and 16 Other Contracting States, 2001-XII Eur. 

(Grand Chamber).

9. Convention for the Protection of Human Rights and Fundamental Freedoms, N

ETS No. 5, 213 U.N.T.S. 222.

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PART III

MARITIME OPERATIONAL CHALLENG

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XI

Current Legal Issues in Maritime Opera

Maritime Interception Operations in 

Global War on Terrorism, Exclusion Zo

Hospital Ships and Maritime Neutral

Wolff Heintschel von Heinegg1

Preliminary Remarks

With the adoption of the UN Law of the Sea Convention in 1982

a strong belief that with that “constitution of the world’s ocea

disputed issues relating to coastal State rights on the one hand, and to f

navigation on the other hand, had been settled for good. Since 1982

coastal State legislation has frequently had a negative impact on the latt

Freedom of Navigation Program gives ample proof of excessive mariti

ranging from restrictions of the rights of innocent passage, transit pa

archipelagic sea lanes passage, to the establishment of illegal baselines 

time security zones, all of which have no basis in either the LOS Conven

customary international law.3 The problem of “creeping jurisdiction” h

ally been reinforced by national legislation on the protection of the ma

ronment. Many coastal States have understood that when a deviation 

established rules and principles of the law of the sea is justified on envi

grounds, it creates enormous difficulties for those States that are prepare

ter these claims. The general public will all too easily accept them as reaso

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legitimate. Still, for countries like the United States and the member St

European Union,4 in view of their dependence on the freedom of navigat

curity and economic reasons, it is of tantamount importance to pr

achievements of the LOS Convention.

At the same time, these very States are confronted with new challenges

ready exists reliable intelligence information that transnational terrorist

get ships and ports. Moreover, transnational terrorism may well se

advantage of navigational freedoms by transporting weapons, includin

of mass destruction, by sea. In order to prevent them from reaching the

tion it is necessary not only to establish effective control mechanisms in 

also to interfere with international shipping on the high seas if there is n

fective control mechanism in the port of origin, or if the flag State is un

comply with its obligations under treaties in force6 or under the respect

tions of the UN Security Council.7

The dilemma the target States of transnational terrorism find themselv

to be obvious. On the one hand, there is a necessity to interfere with foreign 

thus restricting the freedom of navigation. On the other hand, these mea

be precedents for a modification of the law which would, if going too far, b

to the vital interests of these States whose economies depend on the fr

goods by sea and whose security interests presuppose that their navies r

position to exercise power projection whenever and wherever necessary.

The first section of this paper will deal with the question of whether an

extent the law as it stands provides a sufficient legal basis for Maritime 

tion/Interdiction Operations (MIO)8 in the Global War on Terrorism (

If the answer to this question is affirmative, the said dilemma will prove 

dramatic than it seems to be at first glance.

The second part of this paper will be devoted to three further current l

in maritime operations that, although dealing with the law of naval w

neutrality at sea, are not in toto unrelated to the issues dealt with in the 

Firstly, the establishment of “exclusion/operational zones” during an int

armed conflict will, in any event, interfere with the freedom of navigatio

tral” and innocent shipping. Secondly, the threat posed by transnational 

will not vanish or even decrease during an international armed confli

transnational terrorists may consider warships and hospital ships perfe

be it only for propaganda reasons.10 Hence, the question arises as to w

sures belligerents may take in order to effectively protect their units. Th

finally, in view of the persisting terrorist threat during an international a

flict, the traditional rules and principles of the law of (maritime) ne

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applied in a strict manner, may prove to be a considerable obstacle for n

erent States in their contribution to the GWOT.

War on Terrorism

Developments following the terrorist attacks of September 11, 2001, ha

broader understanding of the right of self-defense.11 It not only applie

tions where a State, either with its armed forces or in some other way attri

it, has attacked another State. It also comes into operation if an arme

launched against a State from outside its borders12 by persons whose ac

or for the time being cannot, be attributed to another State. Moreover, 

State, or the potential target State, and its allies do not have to adopt a wa

policy but they may take all measures reasonably necessary to prevent 

tacks as early and as effectively as possible.

MIO in the GWOT

In the maritime context such preventive measures may comprise, inter 

• Surveillance and control of sea traffic;

• Providing for freedom and safety of navigation;

• Protection of endangered vessels;

• Disruption of lines of communication;

• Visit, search (boarding) and capture;

• Diversion;

• Establishment of security zones and of restricted sea areas;

• Capture/arrest of cargos and persons.

Self-defense

However, if maritime interception/interdiction operations13 are solely b

the right of self-defense there needs to be a sufficiently clear link to the th

by transnational terrorism. This will, for example, be the case if there a

able grounds for suspicion that a given vessel is involved in the carrying 

ists and/or of weapons destined for an area known to serve as a hidin

training ground for terrorist groups. In any event, the generally accepted 

tations of the right of self-defense—immediacy, necessity, proportiona

to be observed.14 Indiscriminate MIO exercised in vast sea areas would 

portionate and, hence, not justified by the right of self-defense.

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It may be added in this context that if a vessel can be connected to the 

threat posed by transnational terrorism no further conditions have to b

pecially, any form of consent—be it by the flag State or by the ship’s mas

relevant. The right of self-defense has never been made dependent upon 

third States or of individuals. The UN Security Council alone would be 

tion, by taking effective measures, to terminate the exercise of that inhere

Law of the Sea

While MIO could be based upon the rules of the law of naval warfare on p

sures (measures short of attack)16 and on targeting17 this would presupp

istence of an international armed conflict. While the United States is, at 

party to an international armed conflict (Iraq), the exercise of the right o

search and the targeting of vessels could be based on these rules. Howeve

tional terrorism poses an ongoing threat that will not disappear with th

tion of the hostilities in Iraq. Hence, the question is whether there are—a

the right of self-defense and the law of naval warfare—other rules of int

law that could serve as a legal basis for MIO on the high seas.

Of course, the law of the sea, as embodied in the LOS Conventi

customary international law, recognizes the right of warships and of o

ships to take measures against a merchant vessel, including visit and sea

• the vessel is flying the same flag as the intercepting warship;

• the vessel is “stateless”;

• there are reasonable grounds for suspicion that the vessel is enga

(a) piracy,19

(b) slave trade, or

(c) unauthorized broadcasting.

Accordingly, the boarding of the So San20 was justified not merely ac

the right of collective self-defense, but also according to Article 110 of the 

vention because, at the time of the interception, it could be considered st

because it did not give satisfactory information about its origin and about 

tion. Hence, all measures, including visit and search (boarding, includin

boarding), undertaken for the purpose of verifying the true character, fun

destination of the vessel were admissible.21 The fact that, after the boardi

tionality of the vessel proved to be North Korean and that it was engaged 

nocent” shipping of missiles does not justify a different legal evaluation.2

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Against allegations to the contrary it is, however, doubtful whether it 

admissible to draw an analogy between transnational terrorists and pirate

some cases acts of transnational terrorism may be characterized as pira

least similar to piracy, it must be remembered that, according to the co

States, there still is a clear distinction between terrorism on the one hand 

on the other.23Therefore, according to the law as it stands, the rules on pira

be applied to terrorists, unless their acts qualify as piracy proper.

It may be added that, according to the LOS Convention, coastal State

action against foreign merchant vessels to enforce their domestic laws. Th

enforce varies and decreases with the sea area in question. While it w

accordance with international law to enforce domestic immigration an

regulations in the internal waters, in the territorial sea and in the c

zone,24 especially if the vessel affected is believed to be involved 

transnational terrorism, the law of the sea does not provide for such en

measures in the costal State’s sea areas beyond the 12-nm territorial sea 

nm contiguous zone. In the exclusive economic zone (EEZ) coastal Stat

entitled to prescribe and enforce rules that are designed to regulate the e

and exploitation of the natural resources and to protect the marine envir

that sea area.25 With regard to activities of foreign vessels not affec

“sovereign rights” nor resulting in severe damage to the marine environ

flag State principle has precedence over the coastal State’s rights. Hen

110 of the LOS Convention provides a legal basis for MIO on the high s

Other Legal Bases for MIO?

There remains one legal aspect that seemingly has not been made use of 

rent discussion on the legality of MIO in the GWOT, i.e., countermeasu

reprisals. In this context, it is of great importance that the UN Security C

Resolution 1373,26 has decided—in a legally binding way (!)—that with 

transnational terrorism States shall, inter alia:

Prohibit their nationals or any persons and entities within their territori

making any funds, financial assets or economic resources or financial or othe

services available, directly or indirectly, for the benefit of persons who com

attempt to commit or facilitate or participate in the commission of terrorist 

entities owned or controlled, directly or indirectly, by such persons and of per

entities acting on behalf of or at the direction of such persons;

....

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(

) pg y pp, p, 

persons involved in terrorist acts, including by suppressing recruitment of m

of terrorist groups and eliminating the supply of weapons to terrorists;

(b) Take the necessary steps to prevent the commission of terrorist acts, inclu

provision of early warning to other States by exchange of information;

(c) Deny safe haven to those who finance, plan, support, or commit terroris

provide safe havens;

(d) Prevent those who finance, plan, facilitate or commit terrorist acts fro

their respective territories for those purposes against other States or their ci

(e) Ensure that any person who participates in the financing, planning, prep

or perpetration of terrorist acts or in supporting terrorist acts is brought t

and ensure that, in addition to any other measures against them, such terro

are established as serious criminal offences in domestic laws and regulations 

the punishment duly reflects the seriousness of such terrorist acts;

. . . .

(g) Prevent the movement of terrorists or terrorist groups by effective 

controls and controls on issuance of identity papers and travel docume

through measures for preventing counterfeiting, forgery or fraudulent use of 

papers and travel documents.

Hence, if a State either assists transnational terrorism or has knowledge t

tionals or merchant vessels are engaged in such assistance, etc., but still rem

tive, that State is in clear violation of its obligations under the UN Charte

Of course, if the assistance rendered amounts to direct participat

armed terrorist attack or if the terrorist attack is in some other way attri

the sponsoring State, the target State will be entitled to take self-defense 

Whether the armed response qualifies as an “on-the-spot reaction” or a 

armed reprisal”28 is merely a matter of the modalities of the exercise of t

self-defense. In any event, the target State will have the right to respond 

of armed force.

But what if the assistance by the sponsoring State or its inactivity 

amount to assistance in an armed attack? On the one hand, the spon

inactive State would still be in violation of its obligations specified in R

1373. Even more, the inactivity would be supportive of acts of transnationa

and could, therefore, constitute a prohibited use of force, not amounting, h

an armed attack or an act of aggression (“smaller scale use of force”). 

situation the target State, on the other hand, would not be under an ob

remain inactive. Rather it would be entitled to take all necessary counterm

reprisals in response to the illegal acts of the sponsoring State. To some surpr

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recently been expressly acknowledged by Judge Simma who is far fro

supporter of a broad understanding of the law governing the use of fo

separate opinion to the Court’s judgment in the Oil Platforms case29 Jud

stated, inter alia:

In my view, the permissibility of strictly defensive military action taken agains

of the type involving, for example, the Sea Isle City or the Samuel B. Roberts ca

denied. What we see in such instances is an unlawful use of force “short of” a

attack (‘agression armée’) within the meaning of Article 51, as indeed “the mo

form of the use of force.” Against such smaller-scale use of force, defensive act

force also “short of” Article 51—is to be regarded as lawful. In other words, 

suggest a distinction between (full-scale) self-defence within the meaning of A

against an “armed attack” within the meaning of the same Charter provisio

one hand and, on the other, the case of hostile action, for instance against in

ships, below the level of Article 51, justifying proportionate defensive measure

part of the victim, equally short of the quality and quantity of action in self

expressly reserved in the United Nations Charter.30

Applied to the GWOT, the target State of acts of transnational terror

be entitled to take defensive countermeasures “short of Article 51” again

that is, actively or passively, assisting or otherwise furthering tra

terrorism. Accordingly, countermeasures/reprisals involving visit a

could be taken against vessels for the mere reason that they are flying t

flag (genuine link). However, in view of the importance of the fr

navigation such measures must be necessary and strictly proportionate

only be the case if there are reasonable grounds for suspicion that t

affected are indeed engaged in activities of—or in assistance of—tra

terrorism, e.g., if the State in question fails to prevent the merchant vesse

flag from transporting terrorists or objects that are designed t

transnational terrorism.

The Use of “Zones” in the Context of Anti-Terror/Force Protection

When it comes to “zones” in a maritime context there are a number of 

standings due to connotations to “war zones” known from the two Wo

or to “exclusion zones” known from the Falklands/Malvinas War (19

from the Iran-Iraq War (1980–1988).33As a method of naval warfare suc

whatever its purpose or legality may be—cannot be made use of in times 

international armed conflict.

“Defense bubbles” or rather warning zones established around w

naval units are also to be distinguished from “operational,” “exclusion

zones. Such warning zones merely serve to protect the naval vessels from 

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from other illegal activities and are generally recognized as in accord

international law.34 Shipping and aviation are notified of potentially 

conditions and are requested to clearly identify themselves if they are ap

the warning zone. The extent of these zones and the measures taken 

determined in abstracto. Rather, it will depend on the circumstances of e

case, especially on a known threat and on the location of the ships c

whether the extent of the warning area may be reasonable or excessiv

attack on the USS Cole clearly demonstrates, the threat posed by terroris

is obvious but will vary according to the region of operation and to t

security environment. If, however, the extent of the defensive/protectiv

zone is proportionate to that threat, the inconveniences imposed upon 

traffic will not amount to a violation of the freedom of navigation. This 

for times of peace and during periods of international armed conflict. St

to be kept in mind that, unless the threat is overwhelming and leaves no 

deliberations, such warning zones will have to be based upon some f

agreement with the respective coastal State, if the warships or nava

deployed, or are operating, in the internal waters or territorial sea of th

In addition, warning zones are not to be equated with “special warnin

are merely a tool for implementing the warning zone and for notifying 

States and to international shipping and aviation. For example, US 

presently operating under a heightened state of readiness. Ac

approaching aircraft and ships are requested to maintain radio conta

warned that the US forces will exercise appropriate self-defense measure

however, impeding freedom of navigation.36

The question remains whether zones may also be made use of in the G

purposes other than force protection. Certainly, in view of the importa

freedom of navigation for international trade and security, the closure of l

of the high seas to international navigation and aviation would be illegal

present, assertions by some States of a right to extend their sea areas f

reasons beyond the 12-nm territorial sea have regularly met protests and h

never been recognized.37 Older concepts, like the so-called “pacific block

singular precedents, like the “quarantine” of Cuba,39 would not justif

reaching infringements of the freedom of navigation either. Although, 

the establishment of an “exclusion zone” could be based upon the rig

defense there is but one realistic scenario this author can conceive of in w

a measure would meet the test of immediacy, necessity and proporti

group of transnational terrorists gains control over a submarine with 

capabilities for intermediate-range missiles and there is sufficient in

information that they will attack from a given sea area. Then it m

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accordance with the right of self

defense of the threatened State to clo

area to all underwater vehicles.

Apart from such a scenario, however, the extensive use of a given sea 

GWOT will always be in conformity with international law, when approa

a different perspective. If the target States of terrorist attacks and their al

lowed to conduct MIO worldwide on the high seas, clearly a decision to re

operations only to certain limited seas areas is lawful, particularly if the sea 

cerned are known to be used for the transport of terrorists and of weapon

to terrorist groups. The States cooperating in the framework of Operation 

Freedom have been doing exactly this by restricting MIO to the sea areas 

ing the Arabian Peninsula. Up to the present, no State seems to have pr

otherwise contested the legality of these measures. Accordingly, and sub

principles of necessity and proportionality, an operational area—that is to 

guished from any form of “zone”—may be established in the context o

against transnational terrorism in order to enable the target States and th

identify and control international shipping and aviation or, if reasonable g

suspicion of an activity supportive of transnational terrorism exist, to pre

from approaching the coastline of a State that has proved to be either un

unable to comply with its obligations under the UN Security Council reso

transnational terrorism.

Law of Naval Warfare and Maritime Neutrality

While the San Remo Manual in most of its parts reflects customary int

law, three aspects of the law of naval warfare addressed therein either re

puted or, in view of new threats and exigencies, seemingly need to be rec

maritime exclusion/operational zones, technical equipment of hospital 

maritime neutrality.

Maritime Exclusion/Operational Zones

There is general agreement that the “war zones” established by the belliger

two World Wars were, and remain, illegal.40 No zone, whatever its denom

alleged purpose relieves the proclaiming belligerent of the obligation und

of naval warfare to refrain from attacking vessels and aircraft which do not 

legitimate military objectives.41 In other words, a zone amounting to a 

zone” has no basis in the existing law. Considerations of military nece

from a submariner’s point of view—do not justify a conclusion to the co

Still, in view of State practice, the discussion on the legality of some oth

“zone” has not ceased. On the one hand, modern weapons are 

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discriminating than any means of naval warfare used during World War 

other hand, modern weapons have brought about over-the-horizon 

capabilities. At the same time, naval platforms, in view of their constru

technical equipment, are rather vulnerable and can suffer severe damag

by comparatively “primitive” means. Moreover, the number of th

merchant vessels has increased considerably. They may be engaged in 

trade but they may also be integrated into the enemy’s war-fightin

sustaining effort, thus constituting a threat to the overall effort to bring 

conflict to a successful end without suffering unreasonable damage. 

naval armed forces are forced to control large sea areas in order to re

position to effectively protect their units and to achieve their military g

Before dealing with the legality of such exclusion/operational zones 

law of naval warfare it needs to be stressed that they must be distingui

warning zones43 and from the customary belligerent right to control the i

area or vicinity of naval operations. It is generally acknowledged that b

are entitled to take all measures necessary against neutral vessels and airc

presence may otherwise jeopardize naval operations in that area.44 Whi

cases such measures will consist of a belligerent’s control over the comm

of these vessels and aircraft, they may, depending on the circumstances, i

closure of the sea area in which naval operations are conducted.45

State Practice

After the condemnation of unrestricted submarine warfare by the Nurem

bunal, the first precedent of an exclusion zone obviously occurred d

Falklands/Malvinas conflict of 1982. On April 7, the United Kingdom pro

“maritime exclusion zone” around the islands. Argentina followed on 

proclaiming a “maritime zone.” On April 23, the British Government pro

“defensive bubble”46 limited to the protection of the British forces again

tine warships and Argentine military and civilian aircraft. However, on 

the United Kingdom proclaimed a “total exclusion zone” (TEZ) that cam

fect on April 30:

[T]he exclusion zone will apply not only to Argentine warships and naval au

but also to any other ship, whether naval or merchant vessel, which is oper

support of the illegal occupation of the Falkland Islands by Argentine Forces. T

will also apply to any aircraft, whether military or civil, which is operating in su

the Argentine occupation. Any ship and any aircraft, whether military or civil, 

found within the zone without authority from the Ministry of Defence in Lon

be regarded as operating in support of the illegal occupation and will ther

regarded as hostile and will be liable to be attacked by British Forces.

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In view of the wording of the proclamation that clearly indicates the B

prepared to attack any vessel or aircraft encountered within the TEZ, 

astonishing that one commentator has characterized the TEZ as a “r

temporary appropriation of a limited area of the high seas.”47 This con

mainly based on the fact that the zone had been adequately notified, t

been established in a remote sea area without significant sea traffic, and 

not resulted in any casualties to neutral ships or aircraft.48 While these a

are without doubt reflecting reality, they do not alter the wordi

proclamation. On the other hand, due to other rather obscure stateme

British government it may well be that, in reality, the British forces 

allowed to target just any contact within the TEZ—at least not with

authorization from the highest political level. Therefore, the United Kin

either lucky that its naval units were not forced to really enforce the TE

neutral vessels and aircraft or, what is more likely, the proclamation of th

nothing but a most effective ruse of war because it obviously induced the 

forces to avoid the area. If the latter holds true, the British measure was 

under the law of naval warfare. At the same time, however, the British TE

serve as a legal precedent for the—alleged—legality of exclusion zones as 

of naval warfare.

During the Iran-Iraq War both belligerents made use of zones. Th

government issued guidelines for the safety of merchant shipping in t

Gulf obliging vessels to transit the Strait of Hormuz south and east of a d

line, declaring a “war zone” covering all Iranian waters, and proh

transportation of cargo to Iraqi ports.49 The Iraqi government declare

North of 29-30N a prohibited war zone and warned all vessels appearing 

zone to be liable to attack. The Iraqi government further warned that a

regardless of nationality, docking at Kharg Island were targets for th

force.50 In contrast to the practice of the Falklands/Malvinas con

belligerents of the Iran-Iraq conflict, by attacking neutral tankers, did en

zones thus providing sufficient evidence that they regarded them as 

zones.” Since the attacks were not directed solely against legitimat

objectives,51 the zones of that conflict are generally considered illegal.52

Military Manuals and Expert Opinions

In view of the general condemnation of the zones established and enforc

the two World Wars and during the Iran-Iraq War, States that are p

characterize exclusion zones as a legitimate method of naval warfare tak

cautious approach. The respective parts of their military manuals53 all s

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the establishment of such a zone does not relieve the proclaiming 

of the obligation under the law of armed conflict to refrain from attack

and aircraft which do not constitute lawful targets,

• the zone may not unreasonably interfere with neutral commerce, a

• the geographical area covered, the duration, and the measures tak

the zone should not exceed what is strictly required by military necessi

principle of proportionality.

Accordingly, those States agree that the same body of law applies both 

outside the zone and, moreover, that the establishment of an exclusion 

conformity with the law as an exceptional measure only. If all these con

met, exclusion zones are accepted as in conformity with the law of nav

both in the San Remo Manual54 and in the International Law Associat

sinki Principles.55

Still, the question remains what object and purpose an exclusion zone is t

that end, the San Remo Manual is ambiguous.56 According to the 

Commander’s Handbook on the Law of Naval Operations an exclusion 

either contain the geographic area of the conflict or it may keep neutral sh

safe distance from areas of actual or potential hostilities.57A similar approac

the German Navy Commander’s Handbook that refers to “comprehens

rights” and to the denial of access to a given sea area “in order to protect [

aircraft] from the effects of armed conflicts.”58 The Helsinki Principles also 

reference to particular risks to which neutral shipping is exposed.59 He

designed to contain or restrict the area of naval operations60 and if not a—le

ruse of naval warfare, an exclusion zone may either serve the protection 

navigation and aviation or it may imply that a belligerent, in a given 

extensively exercise the control rights already conferred on it by the law 

warfare and of maritime neutrality. Then, however, the zone will rather 

geographical restriction of belligerent rights of control—the establishment 

would merely indicate that in sea areas not covered by the zone the bellig

refrain from exercising these rights. Be that as it may, if serving these purp

the further conditions set out above are met, there can be no doubt about th

exclusion zones.

Hospital Ships: New Necessities and Threats

At the time of their adoption, the rules on hospital ships laid down in Ar

seq. of the 1949 Second Geneva Convention (GC II) were a well-balanced 

mise between considerations of humanity and of military necessity and we

to the weapons technology of that time. However, the rapid tec

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development soon gave rise to concerns. At first, the rules on the marking 

ships proved no longer sufficient to ensure their effective identification a

protected platforms under the law of naval warfare.61 Then it became cle

rules regulating the technical equipment of hospital ships for communic

poses had become outdated in view of modern forms of communication v

and other means. Today there is a realistic danger that a hospital ship, alt

clusively employed in its humanitarian role, may be attacked by transnatio

ists who will consider it an easy and very effective target. Therefore th

arises whether and to what extent hospital ships, during an international a

flict, may be equipped with secure communications devices and with an 

enabling them to effectively defend themselves against illegal attacks.

Secure Communications

Article 34, paragraph 2, of GC II emphasizes that “hospital ships may not 

use a secret code for their wireless or other means of communication.” T

sion appears to imply a prohibition on possession and use of secure co

tion equipment for both sending and receiving encrypted commu

However, the English version is not the only authoritative text of the Co

The equally authentic French and Spanish texts prohibit only the send

crypted traffic (“les navires-hôpitaux ne pourront posséder ni utiliser d

cret pour leurs émissions par T.S.F. ou par tout autre moyen de commun

According to Article 33, paragraph 3, of the Vienna Convention on t

Treaties, “the terms of the treaty are presumed to have the same meani

authentic text.”62 Therefore, the conclusion is justified that only the pos

use of secure communications equipment for transmitting, not for recei

sages in secret code is prohibited.

While some States, like the United Kingdom during the Falklands

conflict,63 hesitate to share this interpretation, others, like the United St

Germany,65 obviously are prepared to provide hospital ships with equip

would enable them to receive messages in secret code. Indeed, that woul

be in accordance with the generally accepted rules on the interpr

multilingual treaties, it would also guarantee the effective performan

genuinely humanitarian function of hospital ships. If hospital ships 

allowed to receive encrypted messages, the enemy would be in a p

intercept messages sent to them and to deduce from that message the lo

possible naval or military operation.66 If a “Red Cross Box” is not 

alternative, the hospital ship would be prevented from perfo

humanitarian function because the respective flag State would be forced 

delay the message in order not to jeopardize the military operation in que

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view of the overall importance of the protection of the wounded, 

shipwrecked, an interpretation leading to such a result would be manifes

or unreasonable. Hence, it is no surprise that the San Remo Manual p

paragraph 171: “In order to fulfill most effectively their humanitarian 

hospital ships should be permitted to use cryptographic equipm

equipment shall not be used in any circumstances to transmit intelligenc

in any other way to acquire any military advantage.”68

This statement implies that hospital ships should be permitted t

cryptographic equipment for the sending of messages. Indeed, in the ex

to the San Remo Manual,69 the commentators state:

The participants were of the opinion that as the inability to receive encrypted info

jeopardises the ability of hospital ships to operate effectively, the rule ought to con

on the sending of military intelligence. Therefore, in order to fulfil their hum

mission effectively, hospital ships should be permitted to use cryptographic eq

(modern terminology for a secret code) which in modern technology is an integr

most communications systems. This cryptographic equipment may not be used 

purpose other than the humanitarian tasks of the vessel, obviously not to 

intelligence data, nor for any other incompatible purpose.

Seemingly, according to the San Remo Manual, hospital ships wou

prohibited from sending encrypted messages as long as they are strictly 

the humanitarian function of the hospital ship and not used for any 

useful purposes. In view of the importance of the humanitarian functi

view of modern communications technology, it would indeed make sens

34, paragraph 2, GC II could be interpreted in that way. In this context 

be kept in mind that the prohibition of a “secret code” is solely d

reinforce the prohibition of committing acts harmful to the enemy in 

paragraph 1, GC II. Moreover, according to Article 35 (1) GC II, a ho

have on board an “apparatus exclusively intended to facilitate nav

communication.” Today, however, modern means of communication n

the use of equipment that could be considered as violating the “sec

prohibition of Article 34, GC II. The same holds true for navigation e

e.g., if using the military Global Positioning System (GPS). The rules o

aircraft in Article 28.2 of the 1977 Additional Protocol I take that develop

account. While medical aircraft are prohibited to “be used to collect o

intelligence data” this implies that they are allowed to receive and 

messages in a secret code as long as the data are not of a military nature

Hence, an extensive interpretation would certainly be in accordanc

object and purpose of Article 34, paragraph 2, GC II. Howev

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interpretation finds its limits in the 

ordinary meaning to be given to th

the treaty.” These terms merely justify an interpretation allowing hospita

use of equipment for the receiving, not for the sending, of encrypted mes

San Remo Manual together with the explanations does not serve as evid

view to the contrary. In the explanations it is made clear that paragraph 

not reflect the law as it stands. Rather, the majority view was that “the p

still prohibits the use of such equipment and that this law has not fallen into 

[Therefore the majority was] of the opinion that the text needed to reflect th

that the participants were encouraging a change in the law.”70

Since the sending of encrypted messages by hospital ships cannot be b

the lex lata, States whose interests are specially affected should en

contribute to a modification of the law. While a codification conferen

realistic option, those States should focus on convincing other States to r

deviating practice as reasonable in order to safeguard the specially 

humanitarian function of such ships under lex ferenda. Numerous stat

that effect would certainly contribute to a modification of the law as it no

Protective Arming of Hospital Ships

The provisions of GC II on hospital ships neither expressly prohibit the 

hospital ships for self-defense purposes nor expressly provide for such 

or defense. Article 35(1), according to which a hospital ship is not depr

special protection if the “crews of ships or sick-bays are armed for the ma

of order, for their own defense or that of the sick and wounded,” is restr

exclusively personal scope of protection. As such it does not seem to allow 

clusion with regard to the protection or defense of the hospital ship itse

the said provisions are based on the assumption that the special prote

vided for hospital ships is sufficient to ensure that they will not be captu

tacked. That may have been true in the past but it is more than doubtfu

under present conditions that assumption is still valid.71

Still, the manuals of the US Navy and of the German Navy,72 as well 

Remo Manual, reflect a strict position with regard to the protective/defens

of hospital ships. While they either expressly or implicitly refer to Article 3

they prohibit all arms other than light, portable, individual weapons such 

and rifles.73 Only the German Manual and the San Remo Manual ackno

right of hospital ships to take defensive measures against erroneous or ar

tacks, especially by missiles, and they conclude that they “may be equi

purely deflective means of defence, such as chaff and flares.”74

Indeed, it is more than likely that the respective enemy belligerent w

prepared to any longer respect the special protection of a hospital ship w

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is armed with other than small pistols and rifles. And as the provision 

Remo Manual referred to above clearly shows it would be nearly imp

reach consensus on the criteria that would make possible a distinction be

offensive or defensive character of such arming. The reference to chaff 

was the utmost the participants felt able to agree upon.

The United Kingdom, during the Iraq-Kuwait conflict, decided that 

unable to effectively protect hospital ships and that it was preferable to 

the special protection altogether. Hence, RFA Argus, which was equi

light air defense systems, was not a hospital ship proper but a “primari

receiving ship” that also served for the transportation of troops.75

If the British practice were copied by other States the special pro

hospital ships would become obsolete. This, however, would be detrime

humanitarian function of such ships and certainly politically inopportu

feeling unable to directly contribute to a multinational military operat

be deprived of the possibility of indirectly participating by deploying 

ship. The deployment of a hospital ship would not be a merely symb

would imply a most valuable contribution for all States and parties inv

the one hand, the belligerents would equally profit from making u

impartial humanitarian service. On the other hand, the deploying State 

in a position to prove its credibility and to contribute to confidence bu

would facilitate a future return to normal relations.

These considerations do not, of course, rule out the basic legal prob

admissibility of the defensive arming of hospital ships, the interest in wh

cently increased considerably in view of the worldwide terrorist threat. 

it is quite probable that in an asymmetric war environment at least one 

the conflict” will disrespect the fundamental protection of such vessels 

law of naval warfare.

It is doubtful whether the drafters of GC II were at all aware of this new 

already stated above, they started from the assumption that all par

international armed conflict will respect and protect hospital ships as long 

employed in their normal role and as long as they do not commit acts harm

enemy. Then, however, an attack against a hospital ship will in any e

violation of the law. The drafters of GC II may have been under the bel

belligerent would consider such illegal behavior and that, if it occurred a

parties to the conflict would find a solution ex post facto. If one party to th

or the attacker, is not a State or other recognized subject of internationa

as transnational terrorists, any remedy provided for by the law of naval w

be void. Moreover, the law of naval warfare contains no rule or other pro

would justify the conclusion that a belligerent is obliged to suffer an illega

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other illegal act and to remain passive. In other words, the inherent rig

defense that is not abolished by any known legal order is also implicitly r

by the law of naval warfare. Accordingly, if there exists reasonable gr

suspicion that hospital ships will be the target of an illegal attack, a be

entitled to take all necessary measures to effectively prevent or counter t

If the only means available to achieve that aim is the—defensive—ar

hospital ship, then this would not constitute a violation of the law of nava

This, however, is a solution to the problem that is far from having pass

of practice. As already indicated above, the enemy belligerent may we

the arming of a hospital ship a hostile act. Hence, even if the arming of 

ship is, in the circumstances ruling at the time, a necessary measure of 

or of self-defense there is no guarantee for a continuing respect and pro

the opposing belligerent. In addition, it would imply a deviation from 

settled interpretation of the existing law76 that only provides for smal

weapons for strictly personal protection. Any State that is willing to de

that interpretation must be prepared to take the consequences and “to liv

precedent.” This may lead either to the total abolishment of the pro

hospital ships or to the deployment of hospital ships whose “employm

innocent role” and, consequently, whose specially protected status, 

longer be determined with the certainty necessary.

(Maritime) Neutrality

The Law of Neutrality is laid down in two of the Hague Conventions o

18, 1907:

• Convention V Respecting the Rights and Duties of Neutral Powe

of War on Land [hereinafter Hague V];77

• Convention XIII Concerning the Rights and Duties of Neutral 

Naval War [hereinafter Hague XIII].78

There is no international treaty—apart from the 1977 Additional Prot

I)79—dealing with aerial warfare, neutrality in aerial war or with the leg

neutral airspace. The only authoritative document dealing with these is

Hague Rules on Air Warfare of 192380—a private draft whose customary 

remains an unsettled matter.

In view of the limited time and space available we do not intend to dea

the law of neutrality in a comprehensive way. Still, it is clear that, if app

international armed conflict, such as the current hostilities in Iraq, that b

would imply far-reaching obligations of abstention and of prevention 

those States that have decided not to take part in the hostilities.81 It n

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emphasized, however, that allegations of an absolute duty of neutra

intern all members of belligerent armed forces present on their territor

basis in the traditional law of neutrality. According to Article 11, parag

Hague V, such an obligation presupposes that the neutral State “rece

territory troops belonging to the belligerent armies.” This does, ther

apply to members of the belligerent armed forces whose presence on t

State’s territory is due to a status of forces agreement. Additionally

prisoners of war and prisoners of war “brought by troops taking ref

territory of a neutral Power” shall be left at liberty. Finally, according to 

paragraph 1 (in conjunction with Article 2) of Hague V, a neutral State 

allow” the movement of belligerent “troops or convoys of either muniti

or supplies” across its territory. This means that the neutral State is 

obligation to prevent such movements but it does not necessarily 

obligation to intern the persons engaged in such transports. Hence, th

internment only applies to members of the belligerent armed forces 

already actively taken part in the hostilities and who, thus, have to be 

from reentering the war from the territory of the neutral State concerne

Scope of Applicability of the Law of Neutrality

It is a well-known fact that the applicability of the law of neutrality has al

a highly disputed issue. While some assert that it applies only in the co

state of war,82 others maintain that that determination depends upon th

less unrestricted decision of the non-participating States.83

There is, however, only one situation in which the law of neutrality c

not apply—the authoritative determination by the UN Security Counc

party to an international armed conflict is the aggressor.84 If the Securi

merely refers to its powers under Chapter VII, without expressly iden

aggressor, it will remain unclear which State has breached the law and w

is the victim of an act of aggression or of a breach of the peace. A fortiori, 

true if the Security Council remains inactive.

Still, despite the unsettled scope of applicability of the law of neutrality

from situations in which the Security Council has identified the aggre

practice since 1945 gives sufficient evidence that that body of law has not b

solete. That very State practice also reveals, however, that there is no longer 

for an automatic application of that law to every international armed con

sense of common Article 2 of the four Geneva Conventions of 1949.

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Current State of the Law of Neutrality

The parties to post–World War II international armed conflicts, as we

States not actively taking part in those conflicts have, by their actual 

shown that they were not prepared to accept the automatic and compreh

plicability of the law of neutrality, even if the situation in question, eith

ally or formally, amounted to a “war” proper.85 On the other hand, int

armed conflicts that were not characterized as “wars”—either by the pa

conflict or by non-participating States or by international legal scholars—

tainly had an influence on the conduct of States not being parties to 

flicts.86 Therefore, the doctrine of the necessity of a state of war proper

the doctrine of “status mixtus,” lack authoritative substantiation by Stat

During international armed conflicts since 1945, the conduct of non-pa

States at least indirectly gives evidence of their belief that the law of peac

toto replaced but is partially modified by the law of neutrality. It is also 

that conduct that the legally binding effects of that body of law does n

upon an individual decision of the non-participating States but upon th

istence of an international armed conflict. Either those States have refra

providing arms and other war material to the belligerents altogether, ha

providing such supplies officially, or have provided them clandestinely.

Hence, modern State practice gives proof of a functional and diffe

proach. As far as the relationship between States (that is to be distinguishe

relations between belligerents and neutral nationals) is concerned, the la

trality automatically comes into operation only insofar as the applicability 

is strictly necessary for the achievement of the very object and purpose of 

of law. Accordingly, during an international armed conflict, non-participa

are obliged to refrain from any act that may escalate that conflict. Especial

prohibited from assisting one party to the conflict in a way that may lead t

ral, territorial or other expansion of the armed hostilities.87 The delivery o

and of other war material by States is prohibited. Activities of private perso

tempt such deliveries must be prevented according to domestic laws and r

already in effect. The territory, including the territorial sea and archipela

and the superjacent national airspace, may not be made available as a bas

tions to any party of the conflict.88 Moreover, non-participating States m

measures necessary to prevent one of the belligerents from gaining milit

tages by abusing their neutral status. Any permissions or restrictions with 

the use of neutral territory must be applied and enforced impartially. T

to the conflict, on their part, are obliged to respect the sovereignty o

participating States, as well as their territorial integrity and their econ

tions with other States. The economic relations with the opposing bellige

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conflict may be interfered with only according to, and within the limits of

maritime neutrality. In other words, the law of neutrality sets an upper l

rights of the belligerent States.89

As far as these essentialia neutralitatis are concerned, there is no r

facultative stance on behalf of a non-participating State if, and as long 

not wish to become directly involved in the armed hostilities. Neither 

applicability presuppose the existence of a “war” or of a “state of w

fundamental obligations apply to every international armed conflict. I

kept in mind, however, that in case of a violation of these fundamental o

of the law of neutrality by a non-participating State, the aggrieved b

remains free to assert its rights.90

The functional and differential approach, which leaves aside the admi

belligerent measures under the law of neutrality, is based on the conside

an effective prevention of unlawful activities of non-participating States

of an escalation of an ongoing international armed conflict, can be achie

these upper legal limits are observed by all States concerned. As regards t

rights and duties of neutral States, their applicability will not depen

unilateral decision but rather on whether the belligerents are willing a

enforce the law of neutrality that goes beyond the said essentialia neutrali

belligerents decide—for whatever reason—not to enforce the law of neu

comprehensive manner, that abstention will have no impact upon th

contents of that body of law. Modern State practice has merely l

abolishment of a comprehensive automatism regarding its applicability

approach enables us to explain why States continue to maintain that th

contents of the traditional law of neutrality have not been modified.

Concluding Remarks

While there can be no doubt about the “reactive” character of any legal o

been one of the purposes of the present paper to show that an early call f

fication of the existing rules in view of new threats and necessities is not 

correct way of approaching the solution of—allegedly—new problems

sober and not too formalistic scrutiny of the law as it stands will in most 

identify the way in which a given situation should be addressed. Of cour

always comfortable or convenient to comply with the law. Consideratio

tary or political necessity and the need to rapidly react to new threats m

and justify a deviation from the law. It is, however, one of the most 

achievements of civilized nations that they adhere to the law and, thus, 

respect for the rule of law even in situations in which this complicates thi

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context of international law it should, moreover, not be left out of con

that any deviation from the law will be a precedent closely observed by o

which may, in the near future, adopt a similar conduct. Although the 

may have served a different, and legitimate, purpose, it may prove imp

prevent those other States from referring to it and claiming their condu

conformity with the modified law.

Notes

1. Professor Wolff Heintschel von Heinegg is a Professor of International Law 

University in Frankfurt (Oder) Germany. He is a former Charles H. Stockton P

International Law at the US Naval War College.

2. United Nations Convention on the Law of the Sea, New York, Dec. 1

INTERNATIONAL LEGAL MATERIALS 1261 [hereinafter LOS Convention]. 145 memb

entities are parties as of November 13, 2003. See also Agreement Relating to the Imp

of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1

1994, UN Doc. A/RES/48/263, August 17, 1994, 33 INTERNATIONAL LEGAL MATE

117 member States and entities are parties as of November 13, 2003.

3. For a comprehensive study of such claims, see J. ASHLEY ROACH & ROBERT 

UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS (2d ed. 1996).

4. While the United States has continuously pursued the “Freedom of Navigatio

which had been introduced to respond to excessive maritime claims, the European 

not yet decided on a similar program, although there have been private initiatives 

See, e.g., Ger Teitler, Enforcing UNCLOS: A Discussion of Means and Ends, in TH

EUROPEAN NAVAL FORCES AFTER THE COLD WAR 171–84 (Gert de Nooy ed., 1996

5. For recent US practice, see J. Ashley Roach, Container and Port Security: 

Perspective, 18 THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW 341–3

6. The first treaty dealing with terrorism was adopted in 1963, followed by other trea

1973, 1977, 1979, 1980, 1988, 1991, and 1998. Of special interest in the present 

Convention for the Suppression of Unlawful Acts against the Safety of Navigation, Ro

1988, 1678 U.N.T.S. 221, 27 INTERNATIONAL LEGAL MATERIALS 668; Protocol for the 

of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf, Rom

1988, 1678 U.N.T.S 304, 27 INTERNATIONAL LEGAL MATERIALS 685; International Co

the Suppression of the Financing of Terrorism; New York, Dec. 9, 1999, UN Doc. A/

27 INTERNATIONAL LEGAL MATERIALS 270.

7. UNSCR 1368 of September 12, 2001; UNSCR 1373 of September 28, 2001; UN

November 12, 2001.

8. While it is common to speak of “Maritime Interdiction Operations,” it seems p

rather speak of Interception Operations in view of the wide spectrum of measures i

9. The term “GWOT” is of a purely political nature. According to the position ta

does not imply the existence of a “state of war” or of an “international armed con

military measures are directed against another State.

10. The attack on the USS Cole, although not committed during an internati

conflict, has demonstrated the propaganda effects of such attacks: some persons eq

rather cheap and unsophisticated means are capable of inflicting harm to a warshi

remaining superpower.

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g y pg 

view of UNSCRs 1368, 1373, and 1377 (supra note 7), it is not shared by the in

community as a whole. See Wolff Heintshel von Heinegg, The Legality of Maritime 

Operations/Interdiction Operations Within the Framework of Operation ENDURING 

in INTERNATIONAL LAW AND THE WAR ON TERROR 255–73 (Fred L. Borch & Pau

eds., 2003) (Vol. 79, US Naval War College International Law Studies). See also Wolf

von Heinegg & Tobias Gries, Der Einsatz der Deutschen Marine im Rahmen der 

Enduring Freedom,” 40 ARCHIV DES VÖLKERRECHTS 145–182 (2002).

12. Accordingly, acts of domestic or internal terrorism do not trigger the right of 

under public international law. Note that in its resolutions the Security Council 

referred to “international” terrorism.

13. Note that the above list of measures is rather comprehensive. In practic

“Leadership Interdiction Operations” (LIO) is also used in order to distingui

measures taken against persons and those taken against objects. This is not usefu

implies that there are two distinct (legal) concepts. However, when it comes to inter

foreign vessels it does not make a difference whether this is aimed at persons or at o

14. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 207 (3d ed. 200

15. See Article 51 UN Charter: “[U]ntil the Security Council has taken measures 

maintain international peace and security.” For an evaluation, see DINSTEIN,supra not

16. It suffices here to refer to SAN REMO MANUAL ON INTERNATIONAL LAW APP

ARMED CONFLICTS AT SEA ¶¶ 112–117 (Louise Doswell-Beck ed., 1995) [hereinafte

MANUAL]. For a detailed analysis, see the commentary in Explanations, id., at 187–

17. ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW 

OPERATIONS, chap. 8 (A. R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US 

College International Law Studies) [hereinafter ANNOTATED SUPPLEMENT]. 

MANUAL, supra note 16, ¶ 38–77.

18. LOS Convention, supra note 2, art. 110. See also UNITED NATIONS CONVENT

LAW OF THE SEA 1982, A COMMENTARY (Vol. III) 237 (Myron H. Nordquist ed., 1

19. It needs to be stressed that “piracy” is rather narrowly defined in Article 101 

Convention and does not cover any form of “armed robbery at sea.”

20. On December 11, 2002, the So San, was seized by a Spanish frigate—acting on 

from US sources—600 miles (965 km) off the Horn of Africa in the Indian Ocean. Th

found to be carrying 15 Scud missiles that were being shipped from North Korea to 

21. See LOS Convention, supra note 2, art. 110.2.

22. Note that Article 110.3 of the LOS Convention provides: “If the suspicions 

unfounded, and provided that the ship boarded has not committed any act justifying t

be compensated for any loss or damage that may have been sustained” (emphasis a

23. As for the treaties on terrorism, see supra note 6. In view of those treaties, it i

doubtful whether there exists a lacuna at all. Moreover, being consensual in chara

international law only in rare cases is open for analogies.

24. Note that in its contiguous zone the coastal State, according to LOS Conven

33.1(a), may only “punish infringements of [its] laws and regulations committe

territory or territorial sea.”

25. LOS Convention, supra note 2, arts. 73 and 213.

26. UNSCR 1373 of September 28, 2001, at ¶ 1(d) and ¶¶ 2 (a) and (e).

27. The Security Council has been criticized for having acted as a “quasi-legislator

in view of the wide margin of discretion it undoubtedly has when it comes to 

responsibility for international peace and security and to enforcement measures un

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jgy g 

the UN Charter, therefore allows no conclusion to the contrary.

28. For these concepts, see DINSTEIN, supra note 14, at 192.

29. Oil Platforms (Iran v. US), 2003 I.C.J. (Nov. 6) (Judgment (Merits)).

30. Separate Opinion of Judge Simma, id. ¶ 12.

31. For an overview of the practice of “war zones” during the two World Wars, se

Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 24 CANADIAN YE

INTERNATIONAL LAW 91 (1986); E. Schmitz, Sperrgebiet im Seekrieg,8ZEITSC

AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT 641–71 (1938); L.F

Maritime War Zones & Exclusion Zones, in THE LAW OF NAVAL OPERATIONS 156

Robertson ed., 1991) (Vol. 64, US Naval War College International Law Studies); Ka

War Zones, in ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (VOL. 4) 337 (R. Be

2000); JURGEN SCHMITT, DIE ZULASSIGKEIT VON SPERRGEBIETEN IM SEEKRIEG (19

P. Politakis, Waging War at Sea: The Legality of War Zones, 38 NETHERLANDS INTE

LAW REVIEW 125–172 (1991/2); Wolff Heintschel von Heinegg, Exclusion Zones, Mi

Neutral Flags and Insignia, Booty in Naval Warfare, in THE GLADISCH COMMITTEE O

OF NAVAL WARFARE 39–59 (Dieter Fleck ed., 1990).

32. R. P. Barston & P. W. Birnie, The Falkland Islands/Islas Malvinas Conflict—A 

Zones,7MARINE POLICY 14–24 (1983); T. Orford, Exclusion Zones at Sea: Some Obs

the Conduct of the Falkland War 1982, 2 SEA CHANGES 91–120 (1985).

33. M. Jenkins, Air Attacks on Neutral Shipping in the Persian Gulf: The Legality 

Exclusion Zone and Iranian Reprisals,7BOSTON COLLEGE INTERNATIONAL AND CO

LAW REVIEW 517–549 (1985); R. Leckow, The Iran-Iraq Conflict in the Gulf: The 

Zones, 37 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 629–644 (1988).

34. See, inter alia, ANNOTATED SUPPLEMENT, supra note 17, ¶ 2.4.4; KOMM

HANDBUCH (Commander’s Handbook of the German Navy), no. 115 (2002).

35. The US Navy established a 5nm warning zone around its warships in the P

during the Tanker War in the 1980s to contend with suicide craft laden with high ex

GEORGE K. WALKER, THE TANKER WAR, 1980–88: LAW AND POLICY 57–8 (2000) 

Naval War College International Law Studies). Following the Iraqi air-to-surface m

on USS Stark on May 17, 1987, the fixed distance criterion (i.e., 5nm) was delet

warning zone published in the Notice to Mariners. Id. at 61–2. While a 5nm zone in 

may be reasonable vis-à-vis a small craft suicide threat, a zone broad enough to de

with an air-to-surface missile threat would likely have been excessive in that setting

explain why the 5nm criterion was deleted rather than expanded.

36. International shipping and aviation was informed about this condition by th

“special warning”:

1. Due to recent events in the Middle East and the American homeland, US 

worldwide are operating at a heightened state of readiness and taking ad

defensive precautions against terrorist and other potential threats. Conseque

aircraft, surface vessels, and subsurface vessels approaching US Forces are requ

maintain radio contact with US Forces on bridge-to-bridge channel 16, intern

air distress (121.5 MHZ VHF) or MILAIR distress (243.0 MHZ UHF).

2. US Forces will exercise appropriate measures in self-defense if warranted 

circumstances. Aircraft, surface vessels, and subsurface vessels approaching US 

will, by making prior contact as described above, help make their intentions cl

avoid unnecessary initiation of such defensive measures.

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py pg 

navigational considerations of aircraft, surface vessels, and subsurface vessels 

immediate vicinity.

4. Nothing in the special warning is intended to impede or otherwise interfere w

freedom of navigation or overflight of any vessel or aircraft, or to limit or exp

inherent self-defense rights of US Forces. This special warning is published s

advise of the heightened state of readiness of US Forces and to request tha

contact be maintained as described above (162045Z NOV 2001).

37. See ROACH & SMITH, supra note 3, and F. C. Leiner, Maritime Security Zones: Pr

Perpetuated, 24 VIRGINIA JOURNAL OF INTERNATIONAL LAW 967–992 (1984).

38. This concept was made use of in the 19th and beginning 20th centuries and pre

served to evade the consequences that would have arisen if a “state of war” had been r

39. If at all, the Cuban Quarantine was a legitimate measure of self-defense. See, inte

Christol & C. R. Davis, Maritime Quarantine: The Naval Interdiction of Offensive W

Associated Matériel to Cuba, 1962, 57 AMERICAN JOURNAL OF INTERNATIONAL LAW 525

40. See the references cited at supra note 31.

41. SAN REMO MANUAL, supra note 16, ¶ 105; ANNOTATED SUPPLEMENT, supra no

KOMMANDANTEN-HANDBUCH, supra note 34, no. 304; The Helsinki Principles o

Neutrality, ¶ 3.3, in International Law Association (ILA), Report Of The S

Conference 497 (1998) [hereinafter Helsinki Principles]; AUSTRALIAN BOOK OF RE

ABR 5179—MANUAL OF INTERNATIONAL LAW—Nov. 3, 1998.

42. Hence it is contrary to the law of naval warfare to claim: “There are two thing

submarines and targets.” It needs to be stressed, however, that most of the doubts s

the employment of submarines during armed conflict have now been settled. The on

vessels—enemy and neutral—exempt from attack are those that are innocently e

their normal role. If, e.g., a neutral merchant vessel is transporting enemy troop

attacked on sight. There is no duty to first provide for the safety of passengers, c

vessel’s documents.

43. See supra note 34 and accompanying text.

44. SAN REMO MANUAL, supra note 16, ¶ 108; ANNOTATED SUPPLEMENT, supra no

KOMMANDANTEN-HANDBUCH, supra note 33, no. 303. See also, Helsinki Principles

41, ¶ 3.3, which expressly recognizes the “rights of commanders in the zone of imm

operations.”

45. ANNOTATED SUPPLEMENT, supra note 17, ¶ 7.8: “A belligerent may not, howe

to deny access to neutral nations, or to close an international strait to neutral shippin

to this authority unless another route of similar convenience remains open to neut

46. The language was as follows:

Her Majesty’s Govt wishes to make clear that any approach on the part of Ar

warships, including submarines, naval auxiliaries or military aircraft which 

amount to a threat to interfere with the mission of British Forces in the South A

will encounter appropriate responses. All Argentine aircraft, including civil 

engaging in surveillance of these British Forces will be regarded as hostile and a

to be dealt with accordingly.

THE TIMES (London), Apr. 26, 1982, at 5.

47. Fenrick, supra note 31, at 92.

48. See also references cited supra note 32.

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p

November 4,1980; 22/59 of January 21, 1981; and 23/59 of January 21, 1981.

50. See the documentation in THE IRAN-IRAQ WAR (1980–1988) AND THE LAW 

WARFARE 83 (Andrea de Guttry & Natalino Ronzitti eds., 1993).

51. Note, however, that if a “contribution to the war-sustaining effort” is consider

to render an object a legitimate military objective, the illegality of the attacks on tan

the Iran-Iraq War may not be that clear after all. Both belligerents were able to conti

for eight years because the revenues of oil sales enabled them to purchase weapons 

52. See R. Danziger,The Persian Gulf Tanker War, 111 UNITED STATES NAVAL 

PROCEEDINGS 160–167 (May 1985); B. A. Boczek, Law of Warfare at Sea and Neutra

from the Gulf War, 20 OCEAN DEVELOPMENT AND INERNATIONAL LAW 239–264 (19

references cited at supra note 33.

53. Australia: OPERATIONS LAW FOR RAAF COMMANDERS—DI (AF) AAP 

AUSTRALIAN BOOK OF REFERENCE, supra note 41; United States: THE CO

HANDBOOK ON THE LAW OF NAVAL OPERATIONS (NWP 1-14M/MCWP 5-2.1/CO

P5800.1) ¶ 7.9 [hereinafter COMMANDER’S HANDBOOK], in ANNOTATED SUPPLEM

note 17; Germany: KOMMANDANTEN-HANDBUCH, supra note 34, no. 304.

54. SAN REMO MANUAL, supra note 16, ¶¶ 105–108.

55. Helsinki Principles, supra note 41, ¶ 3.3:

Subject to Principle 5.2.9 and without prejudice to the rights of commanders in t

of immediate naval operations, the establishment by a belligerent of special zon

not confer upon that belligerent rights in relation to neutral shipping which it wo

otherwise possess. In particular, the establishment of a special zone cannot confer 

belligerent the right to attack neutral shipping merely on account of its presenc

zone. However, a belligerent may, as an exceptional measure, declare zones where 

shipping would be particularly exposed to risks caused by the hostilities. The 

location and duration must be made public and may not go beyond what is requ

military necessity, regard being paid to the principle of proportionality. Due rega

also be given to the rights of all States to legitimate uses of the seas. Where such 

significantly impedes free and safe access to the ports of a neutral State and th

normal navigation routes, measures to facilitate safe passage shall be taken.

56. Paragraph 106 merely refers to an “exceptional measure” without specif

measures a belligerent may take within the zone.

57. COMMANDER’S HANDBOOK, supra note 17, ¶7.9.

58. KOMMANDANTEN-HANDBUCH, supra note 34, no. 304.

59. Helsinki Principles, supra note 41, ¶ 3.3.

60. Note that the British TEZ during the Falklands/Malvinas conflict was misun

being such a geographical restriction. It may be that it originally was meant to serve th

However, in the course of the armed conflict the General Belgrano was sunk outsi

This clearly shows that a belligerent making use of the exclusion zone device ought t

as possible as regards his intentions.

61. Accordingly, the States parties to Additional Protocol I to the Geneva Conve

August 1949, and relating to the Protection of Victims of International Armed Co

8, 1977, 1125 U.N.T.S. 3, agreed on Annex I “Regulations concerning Identifica

Annex was revised and now also allows for underwater identification. See Philip

Underwater Acoustic Identification of Hospital Ships, 229 INTERNATIONAL REVIEW 

CROSS 202–215 (July/August 1982). However, these modern means designed to f

identification of hospital ships are far from being effective.

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y 

consideration of the other authentic texts, see J. Ashley Roach, The Law of Naval W

Turn of Two Centuries, 94 AMERICAN JOURNAL OF INTERNATIONAL LAW 64, 

COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO TH

CONVENTIONS OF 12 AUGUST 1949, at 1262–63 (Yves Sandoz et al. eds., 1987).

63. The British did not want to send messages in the clear because they did n

Argentine forces to get advance information about the possible movements of 

Instead, they created so-called “Red Cross Boxes” where the hospital ships were d

where they waited to receive wounded soldiers.

64. COMMANDER’S HANDBOOK, supra note 17, ¶ 8.2.3: “Use or possession of cryptogr

of transmitting message traffic by hospital ships is prohibited under current law” (emph

65. KOMMANDANTEN-HANDBUCH, supra note 34, no. 357: “Devices designed for th

of encrypted messages should also be permitted when they are employed solely for 

performance of humanitarian tasks.”

66. As early as 1970 the late Professor D. P. O’Connell noted that dilemma. See D. P

International Law and Contemporary Naval Operations, 64 BRITISH YEAR 

INTERNATIONAL LAW 19, 59 (1970).

67. During the Falklands/Malvinas conflict the “Red Cross Box” created considerab

because the hospital ships were not informed prior to the arrival of the wounded an

not well prepared to treat them efficiently. See S. S. Junod, La protection des victim

armé des îles Falkland—Malvinas (1982), in DROIT INTERNATIONAL HUMANITAIRE 

HUMANITAIRE 26 (2d ed. 1985).

68. SAN REMO MANUAL, supra note 16, ¶ 171.

69. Id. ¶ 171.4.

70. Id. ¶ 171.5. Therefore, the participants could not agree on the formulation 

merely on the formulation “should be allowed to.”

71. For an early analysis of this problem, see S. L. Oreck, Hospital Ships: The Righ

Self-Defense, 114 UNITED STATES NAVAL INSTITUTE PROCEEDINGS 62–66 (Nov. 19

72. COMMANDER’S HANDBOOK, supra note 53, ¶ 8.2.3: “Hospital ships may no

although crew members may carry light individual weapons for the maintenance o

their own defense and that of the wounded, sick and shipwrecked.” Accord KOMM

HANDBUCH, supra note 33, no. 357.

73. See also THE GENEVA CONVENTIONS OF 12 AUGUST 1949: COMMENTARY, II G

THE AMELIORATION OF THE CONDITION OF WOUNDED, SICK AND SHIPWRECKED M

ARMED FORCES AT SEA 194 (Jean S. Pictet et al. eds., 1960).

74. SAN REMO MANUAL, supra note 16, ¶ 170; KOMMANDANTEN-HANDBUCH, su

no. 357.

75. D. Foxwell & R. Jolly, The RFA Argus—A Gas-Tight, Floating Field 

INTERNATIONAL DEFENSE REVIEW 116–117 (1991); A. Bouvier, Fighting Hospi

INTERNATIONAL DEFENSE REVIEW 246 (1992).

76. See references, supra note 72.

77. Convention (V) Respecting the Rights and Duties of Neutral Powers and Person

War on Land, The Hague, Oct. 18, 1907, 36 Stat. 2277, reprinted in DOCUMENTS ON 

OF WAR 87 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).

78. Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Nav

Hague, Oct. 18, 1907, 36 Stat. 2415, reprinted in id. at 128.

79. Note, however, that AP I regulates aerial warfare only in part. According to 

paragraph 3, Articles 48–67 apply to air warfare only if it “may affect the civilian 

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jg

on land.” Neutral air space is dealt with in the context of medical aircraft alone in A

80. Hague Draft Rules of Aerial Warfare, reprinted in DOCUMENTS ON THE LAW

supra note 77, at 141.

81. For an overview of the rights and duties of neutral States under the traditional 

law of neutrality, see, inter alia, ERIK CASTRÉN, THE PRESENT LAW OF WAR AND N

421 (1954); L. OPPENHEIM & H. LAUTERPACHT, INTERNATIONAL LAW (Vol. II) 6

1963); C. J. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 627 (6th ed. 1968).

82. Then, however, the question arises of how to define “war” or a “state of war

claiming a “state of war” to be a necessary precondition for the applicability of the law o

see L. KOTZSCH, THE CONCEPT OF WAR IN CONTEMPORARY HISTORY AND INTERNAT

141 (1956); D. Schindler, State of War, Belligerency, Armed Conflict, in THE NEW HUM

LAW OF ARMED CONFLICT 3–20 (A. Cassese ed., 1979); CASTRÉN, supra note 81, at 3

83. In that context, some of those authors refer to a status mixtus, i.e., a 

international armed conflict not amounting to “war” proper. See G. Schwarzenberg

ac Belli?, 37 AMERICAN JOURNAL OF INTERNATIONAL LAW 460–479 (1943); C. Gree

Concept of War in Modern International Law, 36 INTERNATIONAL AND COMPAR

QUARTERLY 298, 300 (1987); P. GUGGENHEIM, TRAITÉ DE DROIT INTERNATIONAL P

II) 510 (1954); J. STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 313 (1959

Jessup, Should International Law Recognize an Intermediate Status between Peace a

AMERICAN JOURNAL OF INTERNATIONAL LAW 98–103 (1954).

84. Helsinki Principles, supra note 41, Principle 1.2: . . . In particular, no State may r

Principles stated herein in order to evade obligations laid upon it in pursuance o

decision of the Security Council. . . .” SAN REMO MANUAL, supra note 16, ¶ 7: “Notw

any rule in this document or elsewhere on the law of neutrality, where the Secur

acting in accordance with its powers under Chapter VII of the Charter of the United 

identified one or more of the parties to an international armed conflict as resp

resorting to force in violation of international law, neutral States : (a) are bound 

assistance other than humanitarian assistance to that State; and (b) may lend assis

State which has been the victim of a breach of the peace or an act of aggression by t

85. Schindler, supra note 82, at 14; D. Schindler, Transformations in the Law of Neu

1945, in HUMANITARIAN LAW OF ARMED CONFLICT—CHALLENGES AHEAD—

HONOUR OF FRITS KALSHOVEN 367–86 (A. J. M. Delissen & G. J. Tanja eds., 1991); G

supra note 83, at 297–300.

86. See references cited at supra note 85.

87. The validity of this obligation is confirmed by the statements of the United K

BRITISH YEAR BOOK OF INTERNATIONAL LAW 638 (1987); United States: 88 US Departm

Bulletin 61 (1988)—during the Iraq-Iran War; and by the resolutions of the UN Secu

(UNSCR 540 of October 31, 1983; UNSCR582 of October 8, 1986; and UNSCR 598 of Ju

88. The United States attack against Cambodia was, inter alia, justified by the viola

law of neutrality by that State. See the statement by the legal advisor of the Departmen

R. Stevenson of May 28, 1970, 62 US Department of State Bulletin 765 (May 1970). S

Falk, The Cambodian Operation and International Law, in THE VIETNAM 

INTERNATIONAL LAW (Vol. 3) 35–57 (R. A. Falk ed., 1972).

89. For a similar approach, see Greenwood, supra note 83, at 299.

90. See P. M. Norton, Between the Ideology and the Reality: The Shadow of the Law o

17 HARVARD INTERNATIONAL LAW JOURNAL 249, 276 (1976).

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XII

The Legal Efficacy

of Freedom of Navigation Assertion

Dale Stephens1

he 1982 Law of the Sea Convention2 (1982 LOS Convention) is a q

tial product of the modernist period. The emphasis of the 1982 LO

tion is decidedly communitarian and its content is fully influenced by a

institutionalization of process. It is thus typical of the co-operative prag

current approaches to international law.3 The interaction of sovereign i

exploiting and utilizing the sea and its resources are “managed” within 

work, and potential conflicts concerning such rights are intended to b

through emphatic utilization of dispute settlement mechanisms which wi

regard” to the sovereign participants.4 The 1982 LOS Convention continu

ification process of its antecedents, especially the 1958 Conventions,5 thou

“progressive” course with the inclusion of new concepts hitherto not reco

der the law including, in particular, the archipelagic concept as a juridica

Given the holistic character of the 1982 LOS Convention, it is ironic

not surprising, that security issues are not directly tackled. When it com

issues, the potential for a clash of sovereignty, or at least conceptions o

trinal substance of sovereignty, is likely. It is within this context that ques

cerning the efficacy of freedom of navigation rights are, natura

pronounced. The United States, a notable absentee6 from the Convent

most significant proponent of exercising navigational freedom through 

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naval and air forces. This has been driven from a measured agenda to en

is instrumental in creating advantageous customary norms.7 Additiona

Freedom of Navigation Program is designed to influence interpretations 

uous provisions of the 1982 LOS Convention as a whole. In this latter res

cially, the concerns of the United States are shared by a number of other 

powers who have either commenced their own navigational assertion 

or have otherwise relied upon US practice.9

It is a critical time for preserving international navigational freedom

creasing ratification of and accession to the 1982 LOS Convention mean

igational regimes are being established that will have a permanent im

political and strategic realities. The “game” is not necessarily being play

ing to established rules by many coastal States. There are discordant vo

position to maritime State strategies and the stakes for all remain impos

thus the need for precise and resolute action. Naval and air forces rem

forefront of this critical campaign and are the principal instruments fo

effective and peaceful resolution of these threats.

The Freedom of Navigation Program which was first authorized by t

States Government in the late 1970s has been criticized in both legal and 

terms. 10 Arguments have been rendered which criticize the legal effic

program and question the apparent provocative nature of such asserti

necessary exercises of hegemonic power projection. Moreover, such crit

tends that the preservation of navigational freedom can be more 

achieved through other, less invasive, means.11 Indeed these argumen

that the exercise of the operational assertions may offend general princi

ternational law concerning “abuse of rights.”12 It is contended that such a

are misplaced and that the freedom of navigation assertions undertak

United States and others do provide the most effective means of preservi

ance of interests reflected in the legal architecture of the 1982 LOS Co

The current cacophony of claims made by some coastal States collective

navigational freedom is strident in both frequency and depth. In thi

world of strategic norm creation and suppression, it is contended that na

assertions are an essential means of addressing these suspect claims. M

cally, such assertions are undertaken in concert with the jurisprudence of 

national Court of Justice that has repeatedly endorsed the principle of na

freedom and recognized the legitimacy of asserting such rights. This pa

for the continued maintenance of the Freedom of Navigation Program a

tial means of preserving the integrity of the 1982 LOS Convention an

demonstrate the risks involved in failing to be vigilant to contrary stra

signed to limit the freedoms so desperately won.

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Law of the Sea Legal Regime

The 1982 LOS Convention is a very well subscribed treaty. As of this w

States have ratified or acceded to the Convention,13 which list includes f

permanent five members of the Security Council. Following the resolutio

associated with Part XI of the Convention dealing with deep seabed minin

dent Clinton submitted the 1982 LOS Convention, together with the 19

ment Relating to the Implementation of Part XI, to the United States 

October 7, 1994 for its consent, respectively, to their accession and rat

Notwithstanding its broad acceptability, the 1982 LOS Convention is not y

sally subscribed and thus is not, in its terms, binding on all. Moreover, 

United Nations Conference on the Law of the Sea (UNCLOS III)16 debates 

the drafting of the 1982 LOS Convention were conducted under the aegi

sensus negotiation practice that ensured that the convention was, in many 

“package deal” of concessions which resulted in a number of constructiv

ities in the text.17 Unlike the previous 1958 Conventions dealing with mari

lation,18 the 1982 LOS Convention does not permit the making 

reservations19 and was intended to be a discrete enunciation of maritime r

thus further ensuring a compromised language in the text. Indeed, a re

mentary has identified over 60 terms, a dozen of which are critical, inclu

the 1982 LOS Convention that are either ambiguously used or not fully 

Significantly, the issue of the use of force in the maritime environment is b

led, which is not altogether surprising given the cold war environment pr

the time of negotiation. Accordingly, military subjects do not loom large 

text of the Instrument and assessment of State actions must be undertaken 

cifically under general principles of international law.21

The Issue of Sovereignty

Article 2 of the 1982 LOS Convention confirms that coastal States exer

eignty over their territorial sea “subject to [the] Convention and other r

ternational law.”22 That article provides a reliable touchstone 

conceptualization of nuanced “sovereignty” applicable in the territoria

lowing the conclusion of the negotiating process it was evident that co

sovereignty over newly expanded territorial sea limits would be “subjec

the positively stated terms of the Convention, especially the rights of inn

sage, and other, more general rules of international law. Internationa

course does not admit to a unified theory of sovereignty.23 Since the 

Westphalia in 1648, both courts and publicists have wrestled with the si

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of the concept. The writings of Henry Wheaton

in the nineteenth cen

the determination of the Permanent Court of Justice of the early twentie

in the Lotus case,25 have recognized an absolute quality to the concep

eignty, upon which infringements could not be presumed.26 Alternative

risprudence of the US Supreme Court of the early nineteenth century27 a

in the current period28 equate “sovereignty” more with a collection or “b

rights to which there are concomitant rights enjoyed by other “sovereign

Within this paradigm, the enduring challenge of international law is the r

tion of such rights. Modern theoretical conceptions seek to demystify the 

of sovereignty in order to address questions of international community 

comprehensively. Hence, the theorist Hans Kelsen tackled the nature 

eignty by positing that it was a conception premised upon an authorit

and nothing more.30 However, as a manifestation of order he was able t

the international community equally possessing the mechanics of 

through an expression of collective will and thus was able to conclude 

upon its coercive predicate, international law exists as an equally bindin

der by which State sovereignty is necessarily limited. 31

The monolithic and “mystical” nature of sovereignty expressed in th

lary of defense of measures to restrict and hamper navigational freedom

of warships, can be seen as representative of a particular schism of abso

tudes towards the legal nature of sovereignty. This essentialism seems to 

heresy on the character of such claims. Notwithstanding this approach, it 

that the sovereignty expressed to exist in the territorial sea of a coastal 

accordance with Article 2 of the 1982 LOS Convention, a disaggrega

eignty. International law is now replete with authoritative expressions o

tured nature of this sovereignty.32 It was this realization within the Corf

case that prompted Judge Alvarez to acknowledge the social interdepen

tween States and to conclude that sovereignty carried with it both right

gations, stating in his individual opinion that “we can no longer regard s

as an absolute and individual right of every State as used to be done und

law founded on the individualist regime.”33 The relationship between t

State and the navigating State is thus a relationship of intersecting right

gations. Accordingly, it is not possible to conclude that under either cust

or the 1982 LOS Convention, there is necessarily a “weighted” signific

accorded the sovereign status of the territorial sea of a coastal State based 

peals to mystical conceptions of what underpins the nature of sovereignty,

with respect to international straits and archipelagic sea lanes.

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The 1982 Law of the Sea Convention

UNCLOS III was ambitious in its goals. Addressing age old doctrinal an

concerning theories of mare clausum and mare liberum naturally meant 

would be deep divisions between coastal State preferences, which sought 

maritime jurisdiction, and those of the maritime States who sought to 

more liberal navigational regimes.35 The 1982 LOS Convention itself is a 

par excellance in affirming a general theme of “balance” throughout its p

The Convention pits one principle against another in repeated provision

out its text. Thus coastal States were able to win consensus for a greatly 

territorial sea limit (from three to twelve nautical miles) in exchange fo

concisely defined innocent or transit passage. Similarly, the archipelag

was recognized in exchange for rights of archipelagic sea lane passag

rights of high seas navigation and freedoms within the newly established 

economic zone (EEZ). It is this thematic goal of “balance” that especia

pins the nature of the freedom of navigation programs.

Excessive Claims

As a result of the ambiguity in the language contained within the 1982 

vention, and in conjunction with independent strategies designed to sha

velopment of the law, there have been a multitude of claims made by coa

concerning their sovereign or jurisdictional rights within maritime area

basis of which is suspect. Thus, the broad language of the Convention reg

drawing of baselines36 has led a number of States to adopt an excessively 

approach to designating such co-ordinates. In this regard, for example

draws it baselines in a manner that extend up to 50nm37 around islands 

South China Sea and cannot, under any reasonable interpretation, be r

“generally following the direction of the coastline” as provided for in A

the 1982 LOS Convention38 and supporting customary international la

larly, a United Nations publication from 199440 identified a number of 

acted inconsistently with the terms of the 1982 LOS Convention. Such 

included Myanmar which adopted excessively long straight baselines 

one 222 nautical miles long),41 as well as the Democratic People’s Repub

rea which had drawn straight baselines that did not follow the direct

coast.42 Moreover, the report noted a number of States that purported 

prior notification or authorization pending the exercise of innocent p

vessels, especially warships. Such countries included, inter alia, Banglade

India, Iran and Maldives.43 Critically, the report noted that such restr

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navigational freedom were inconsistent with the right of innocent pass

vessels as guaranteed under the 1982 LOS Convention.44

States such as North Korea45 assert that special “security zones” may be i

adjoining maritime areas which purportedly enable them independently 

tively to restrict navigational freedom on self-conceived terms relating to 

Countries such as Brazil, India, Malaysia and Pakistan all seek to restrict nav

within their EEZ’s in terms not readily recognized under the 1982 LOS Con

The catalogue of “excessive maritime claims” is quite large. The following no

tive list provides a representative outline of the types of claims made:

• Excessive and very broad claims for historic bay status,47

• Territorial sea limits beyond the 12nm range,48

• Imposition of a multitude of environmental or safety cond

“innocent passage” which effectively denies the right,49 and

• Denied transit passage rights within international straits.50

Perhaps the most striking challenge to navigational freedom comes fr

cent adoption of legislation by the Indonesian Government in December 

purported to restrict all passage through its archipelago to three n

archipelagic sea lanes. Passage from east-west through the Indonesian arc

permitted, on the face of the legislation, to be with Indonesian Governme

sion only.52 The legislation also provided that archipelagic sea lanes passag

exercisable within a limited number of north-south archipelagic sea lane

been partially designated with the International Maritime Organization.5

Such legislation is inconsistent with a general right to engage in innoce

through archipelagic waters as outlined in the 1982 LOS Convention.54 

with respect to both innocent passage and the partial designation of archi

lanes, the legislation is contrary to the terms of the 1998 Resolution of the 

Safety Committee of the International Maritime Organization (IMO) whi

spectively, that “[e]xcept for internal waters within archipelagic waters, 

States enjoy the right of innocent passage through archipelagic waters and 

torial sea”55 and “[w]here a partial archipelagic sea lanes proposal has com

fect, the right of archipelagic sea lanes passage may continue to be exercise

all normal passage routes used as routes for international navigation or ov

other parts of archipelagic waters in accordance with UNCLOS.”56 The Ex

Note to the Indonesian Regulations declared that designation of routes un

innocent passage could be exercised was a right reserved to the Indonesia

ment notwithstanding the provisions of the 1982 LOS Convention.57

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US Freedom of Navigation Program

The US Freedom of Navigation Program was established in 1979 and h

bipartisan political support since that time.58 Developed against the back

the debates at UNCLOS III, the program was conceived as a means to sha

velopment of the law in a manner consistent with ensuring the maint

navigational freedoms so desperately won through the negotiations.59 

economic and strategic policy goals are ad idem in relation to ensuring m

tion of maritime freedom60 and such coalescence of interests are natura

with other maritime State goals. Such freedom critically underpins61 e

and coalition military strategy of deterrence, forward defense and allian

ity.62 The Freedom of Navigation Program is a composite policy of both d

exchange and physical operational assertion.63 Moreover, the program is 

as an important element in an overall process of US supported bilateral a

lateral military efforts to foster consistency in recognition of maritime 

Such efforts are contextualized in the transparency of the international m

ercise programs which are conducted in all regions of the world. 64 The ag

itime legal framework and associated rules of engagement issued for the c

such exercises seek to reinforce the strategic balance of interests reflect

the 1982 LOS Convention and equivalent customary law. 65

The thematic focus of the Freedom of Navigation Program is to cons

and, collaterally, coalition rights of global maritime mobility, particularly in 

contentious “choke points” within strategic waterways (e.g., Strait of Malac

Hormuz, etc.). The program is mandated by Presidential Directive to be “no

ative,” “even-handed” and “politically neutral” in its application.66 In t

“non-provocative” does not necessarily equate with “non-confrontational” 

essence of the program is to contest excessive claims.67 As will be subsequen

such actions do not in themselves constitute a violation of United Natio

prohibitions under Article 2(4)68 nor other norms proscribing intervention 

domestic jurisdiction of a State.69

The Freedom of Navigation Program is a critical part of an overall stra

of US policy with respect to maritime freedom. While not a party to the 

Convention, President Reagan declared in 1983 that the United States 

consistently with the provisions of the Convention with respect to navig

overflight rights, acknowledging that they were representative of customa

tional law.70 Significantly, President Reagan counseled that the “United 

not . . . acquiesce in unilateral acts of other States designed to restrict the 

freedoms of the international community in navigation and overflight an

lated high seas uses.”71 Critically, US policy perceives its Freedom of N

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Program as an instrumental aspect of preserving the integrity of the 1982 

vention. Thus the actions of US naval forces are rationalized as representin

US strategic interests but also those of the international community gen

the commentator Richard Grunawalt has opined, “[t]o that end, the F

Navigation Program encourages nations to modify their domestic laws a

tions so as to bring them into conformity with the Convention.”73

Australian Freedom of Navigation Program

In the mid-1990s, the Royal Australian Navy (RAN) adopted an informa

asserting lawful navigational rights under the 1982 LOS Convention. Th

this policy was specifically within the South Pacific/Southeast Asian regio

the US program, the Australian approach is an amalgam of navigationa

coupled with coordinated diplomatic exchange.

Australia’s geographic proximity demands that it have free regional 

mobility capacity. A key feature of that mobility is assured access through 

nesian Archipelago so as to access important regional ports within Southe

well as North Asia. While access through the Indonesian Archipelago is ne

critical aspect, it is not the sole focus of the Australian program. In Apr

Australian naval task force of three ships transited the Taiwan Strait in ord

efficiently between Hong Kong and South Korea. The Taiwan Strait lies 

so-called Chinese “security zone” which led to a non-violent confront

Chinese naval units.74 Australian diplomatic responses to Chinese prot

upon conventional rights contained within the 1982 LOS Convention an

ter was not permitted by either side to escalate beyond an oral diplomatic e

Legal Critique of Freedom of Navigation Program

The approach taken by the United States in undertaking freedom of nav

sertions seeks to achieve two principal legal goals. Firstly, as a non-party t

LOS Convention, the United States is bound to ensure that customary int

law develops in a manner consistent with its own strategic interests. The s

rity goals of the United States in ensuring free access through maritim

points” and unencumbered exercise of navigational freedom do accor

goals of almost all maritime States. To that end, such navigational assertio

create a “practice” necessary to shape the evolution of customary norms 

able in accordance with Article 38 (1) (b) of the Statute of the Internation

Justice.75 Such practice is accompanied by statements concerning US con

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to the state of opinio juris concerning the establishment of a permissive 

transit through contested areas.76

The actions taken by those coastal States that maintain excessive 

claims or that otherwise seek to impose restrictions on free navigation 

pear to have been taken in concert. The International Court of Justice (IC

clared that freedom of navigation, in the form of a right of innocen

through territorial seas and more generally through other foreign marit

is a right possessed under customary law.77 The Court has opined that t

guaranteed to include “all the freedom necessary for maritime navigation

was not to be hindered by the coastal State. The 1982 LOS Convention, in 

ion of the Court, “does no more than codify customary international l

point.”79 Having regard to the ICJ’s pronouncements therefore, it see

tirely vacuous process for such countries to be seeking to set a contrary 

which should crystallize into a rule of customary international law. Cont

theory posits that in the face of a generally established rule of customar

tional law (as has been declared by the ICJ in this instance), there is a 

“great quantity of practice to overturn existing rules of customary int

law.” 80 With a strong presumption against the change in law81 there wou

be demonstrated an extremely widespread and uniform82 practice in opp

the existing rule for there to be any opportunity for even beginning an a

as to the emergence of a contrary rule. The brief survey of the multifari

by some coastal States indicates that there is no such uniformity, but rat

radic and somewhat disjointed array of challenges. It is notable that duri

ter stages of the UNCLOS III debates there was an unsuccessful a

approximately 29 States to impose a requirement for prior notification a

thorization for innocent passage into the Convention.83 Had such coun

uniform in their continued insistence on this requirement in subsequ

there may well have been afforded a basis to assert that such a proposition 

tallized into a rule of customary law (assuming, of course, evidence of o

and acquiescence by other States) but this has not been the case. While so

persist with claims for either prior notification or authorization, there i

spread uniformity in practice on either element or indeed any particula

principle of law that would act to undermine the guarantees of navigat

dom contained within the 1982 LOS Convention relating to warships.

Alternatively an argument might be advanced that rather than rely

specificity of claims regarding the restriction on navigation (i.e. security z

permission etc.), opposing States may be able to frame a broader enuncia

opposing “rule”84 to collectively bring it within a single normative framew

it might be contended that the rule is simply that “navigational f

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constrained by a number of factors

and the multifarious actions by coa

would all be consistent with such a broadly stated rule. Such an approa

however, be disingenuous. The reasoning employed by the ICJ in the Nort

tinental Shelf case insisted that a level of exacting uniformity was required 

termining the existence of a new rule, especially one that seemed to be 

with an existing rule.85 In the current scenario, coastal States which seek 

navigational freedom do so in widely inconsistent ways. Thus, some Stat

to have discretion to deny innocent passage where others simply seek to b

with information beforehand of an impending passage so as to “ensure” 

passage is innocent while not denying outright the “right” of innocent pas

analysis of customary law formation, Michael Akehurst has noted “practi

marked by major inconsistencies at all relevant times is self defeating and c

rise to a customary rule.”86 On any level of analysis therefore, the develop

general customary rule contrary to the existing customary status quo c

freedom of navigation is fraught with considerable difficulty.

Persistent Objectors

If there is little likelihood that there will develop a contrary general custo

restricting navigational freedom, what then is the efficacy of the US F

Navigation Program? Given that navigational freedom exercised in a

with the terms of the 1982 LOS Convention is not yet a norm of peremp

(“jus cogens”) the existing international legal structure does permit 

States the right to opt out of the application of prevailing general interna

tomary law. While strictly defined, the so-called “persistent objector” t

mits a particular State the opportunity to resist the application of 

international law but only in relation to that State. To qualify, a State mu

a protest to a developing rule during its formulative stages (i.e., protest 

and must be vigilant in maintaining its opposition to a developing rule

In view of the “persistent objector” principle, the utility of the US F

Navigation Program can best be understood as testing the resolve of th

who may seek to develop opposition to the application of customary int

law to them. It is notable that the 2000 International Law Association (I

mittee Report on the Formation of Customary (General) International 

upon the actual physical actions of States in the maritime environment 

the most effective demonstration of State intent. Hence, the ILA uses th

of a State purporting to restrict navigational rights through its territoria

illustration of the general need to discern the nature of the express or imp

and response as to the applicability of a norm of international law. 

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authors of the report note that 

if State A expressly claims the right to ex

eign warships from passing through its territorial sea, and State B sends 

through without seeking the permission ofA... [and]...A fails to prot

this infringement, this omission can, in its turn, constitute a tacit admis

existence of a right of passage after all.”88

It is in this context that “actions” do indeed speak louder than “wor

interpreters of sources doctrine have traditionally been insistent on p

“deeds” over “words” as the critical “practice” of a State for determin

gitimacy of a new rule of customary international law. In support of thi

tion, the publicist Anthony D’Amato notes that “acts are visible, 

significant; it crystallizes policy and demonstrates which of the man

rules of law the acting State has decided to manifest.”89 Such argum

been diluted by other commentators who have opined that more gene

are available to gauge State practice.90 Akehurst, for example conc

statements, in either abstract or concrete contexts, may also be cons

State practice.91 This latter view is surely the correct one, indeed it ha

served that the ICJ in the Nicaragua case itself appeared to conclude 

State practice and sufficient opinio juris can be gauged from public s

made by States, or even international organizations in circumstances w

entities are purporting to declare the state of the law.92

While diplomatic statements may be acceptable for discerning the form

norms, the principal difficulty remains in identifying the specificity of the 

ated. It is as much a matter of probative value than anything else in disc

quality and content of a rule, and in the absence of a clearly directed public 

there is little value in its evidentiary effect.93 Blanket verbal protests by 

States could be met with equally blanket ripostes from coastal States conten

enduring resistance. In this flurry of statements and counter-statements 

difficult to assess the cogency of any new rule or exception to a rule. As rec

the ILA Committee, the matter only becomes truly tested when a transi

taken through contested waters and reactions gauged. Such a practical d

tion is necessary to determine the coherency of claims, especially in circ

where a well subscribed multilateral instrument has established a rule in c

deed, as the ILA Committee report notes, the persistent objector rule is u

exceptional sense by allowing “the convoy of the law’s progressive develo

[to]. . . move forward without having to wait for the slowest vessel.”94 Su

proach can be supported upon a utilitarian basis in the maritime context

given the sophisticated level of the balance struck in the 1982 LOS Conv

tween coastal and maritime State rights and obligations.

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It is in this context that the 

relative normativitytheoryof interpr

international legal “sources” finds useful application. The developme

“hard” and “soft” arguments within customary normative discourse c

coastal State/maritime State interaction does require attention to the 

less” calculus so resisted by traditional approaches. Accordingly, specif

State action and counter-action in a very public and concrete mann

much more compelling role in the establishment of international legal 

essence, navigational assertions do carry with them greater normati

cance with respect to this issue than only diplomatic exchange of note

The 1982 Convention and Legal Framework of Navigational Rig

As outlined in the introduction of this paper, the 1982 LOS Convention is a 

scribed treaty. Given the widespread nature of its support, it may be won

the rights concerning freedom of navigation that are contained within th

tion are sought to be denied by some coastal States. The answer to this q

varied. Plainly, in the face of “constructively ambiguous” provisions, a co

may seek an interpretation that is advantageous to that State. Hence, argum

be proffered in the case of innocent passage, for example, that read muc

terms of Article 19(1) that “Passage is innocent so long as it is not prejud

peace, good order or security of the coastal State.” Such terminology is on 

stract enough96 to permit a wide array of challenges, especially to warships

soning is, however, quite disingenuous. Article 31 of the Vienna Convent

Law of Treaties97 prescribes that “A Treaty shall be interpreted in good fait

dance with the ordinary meaning to be given to the terms of the treaty in 

text and in light of its object and purpose.”98 With respect to the issue o

and innocent passage, it is evident that the abstract propositions concerni

good order or security” are necessarily informed by the detailed terms 

19(2) of the 1982 LOS Convention which provides a very specific context

of those activities that a warship must observe to come within the definit

nocent.”99 As with the remainder of the treaty, this prescriptive catalog

necessary “price” for expanded territorial sea jurisdiction and obviously 

reliable basis for legal interpretation. As the Indian commentator Shekhar 

knowledged at the time of the UNCLOS III debates, “[t]he scope of coastal 

has been undeniably reduced to an unavoidable minimum”100 under this 

In essence, the rights of navigational freedom were “won” in the context o

a necessary balance with coastal State interests.

Beyond a textual interpretation of the terms of the 1982 LOS Conve

open to a coastal State to observe the positively stated obligations while s

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upon 

gapsin the terms of the Convention to advance a restrictive agen

context so called rights to insist upon prior notification before undertak

cent passage might be asserted consistently with primary obligations 

Convention. Thus, under this paradigm, the “right” of innocent passa

been infringed by insisting upon prior notification, rather it is conten

merely a procedural “condition precedent” necessary to give effect to 

Such an approach would, however, deny, in practical terms, a substantiv

In asserting such a claim, a coastal State may seek to rely upon Article 3

the Vienna Convention102 that provides that interpretation of a treaty’s 

be determined by “subsequent practice in the application of the treaty wh

lishes the agreement of the parties regarding its interpretation.” Compl

“prior notification” demands might therefore constitute a “practice” wh

ment an interpretation of the 1982 LOS Convention that necessarily un

navigational freedom by indirectly denying a unilateral right of passage

tions would be akin to the process of customary norm formulation, thou

not require the demonstration of opinio juris, merely acquiescence with 

“subsequent practice.” This article’s reliance upon “practice” anticipate

State interaction. Accordingly, the demands of a coastal State in limitin

of navigation through its maritime zones if met with indifference by o

parties could conceivably permit the establishment of a specific interpr

the Convention. While diplomatic protest is obviously a means of challen

a development, the normally bilateral and confidential nature of su

means that there is a lack of visibility by all States party to the process. Th

of navigational rights in a contentious zone remains a publicly visible ev

tangibly constitutes a “subsequent practice” that other States parties m

or tacitly support, thus shaping an interpretation consistent with the u

balance of preserving navigational freedom.

Criticism of the US Freedom of Navigation Program

In his analysis of US navigational assertions, William Aceves103 takes 

the manner in which the United States undertakes these assertions. Hi

stems from a reading of the constituent elements of customary norm gene

he argues that the program is overly provocative and inconsistent with mo

requirements of international law to settle disputes peacefully.104 He ci

quirements of Article 279 of the 1982 LOS Convention that in turn refer

2(3) of the United Nations Charter, which mandates that all internation

are to be settled in a peaceful manner. Additionally, he contends that US 

tions undertaken in the context of a freedom of navigation assertion 

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potential to offend general principles of international law, particularly 

of rights” doctrine105 by adopting an unnecessarily militarily confronta

proach to the resolution of points of law.

The critique by Aceves that navigational assertions are unduly confro

and thus potentially violative of Article 279 of the 1982 LOS Convention

Articles 2(3) and (4) the UN Charter, is curious. As Aceves himself note

sue of navigational assertions and innocent passage was considered by 

the Corfu Channel case which determined that a British transit of a naval 

in full battle readiness in order to assert a right of innocent passage th

had sought to resist was justified as a mission designed to affirm a right 

been unjustly denied.107 Admittedly, the Court subsequently condemn

British transit through the channel to sweep for mines, however the reas

ployed by the Court was not predicated upon the fact of the transit, but ra

centrated upon the number of ships and the manner in which the transi

undertaken. Indeed, the Court expressly noted that the British governm

admitted that the transit was not innocent and thus the Court found tha

sit was an impermissible intervention.108

The broader implications of the decision have been subject to signif

troversy in subsequent years. While it may be fairly argued whether the r

decision is broad enough to permit a general exception to the prohibit

use of force, there does seem to be a consensus as to the significance of th

affirm rights operationally in the maritime context. Thus, the eminen

Ian Brownlie, who rejected any general implication of the decision, did 

strained to acknowledge the import of the decision as to its facts, namel

to use force to assert a right unjustly denied in the maritime context.10

even on its narrowest construction, the case stands as a specific precede

port of the legality of the Feedom of Navigation Program, at least in circ

where “innocent passage” is sought to be unlawfully denied.

The issue received indirect consideration some 40 years following the del

judgment in the Corfu Channel case, in the 1986 decision of the ICJ in the 

case.110 The decision of the Court in the Nicaragua case reviewed contempo

prudence concerning the prohibition against intervention under internation

has significance for assessing the confrontational nature of navigational ass

The majority opinion of the Court in the Nicaragua decision confirm

principle of “non-intervention” did relate to the question of the use of for

cantly, the Court determined that the central criterion for determining w

prohibition had been violated turned upon a determination of the existen

ercion.”111 The Court’s assessment of this concept was somewhat holistic 

an objective assessment of whether the internal choices made by a State 

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influenced as a result of 

coercionby another State.Such a formulatio

deed have an impact upon a navigational assertion and thus come within 

of objections raised by Aceves in circumstances where it is the intent

transiting State to “coerce” or intimidate a State to adopt behavior that it 

would not freely adopt. Such an interpretation does not arise, however, i

text of a “normal” freedom of navigation assertion. The purpose of such a

is not to intervene in the manner contemplated by the Court where it spok

soring armed bands or financing internal disruption.113 The interplay o

and coastal States, particularly those that have ratified the 1982 LOS Con

quite the opposite, relating to an “external” settlement of rights concerning 

areas. This is not to suggest that the maritime State should not be cognizan

nal political machinations at the time of a programmed transit, as such an 

may have a destabilizing significance in the context of specific internal fra

contended though that such circumstances are not typical. Moreover, wh

does have internal concerns regarding security issues, it may (if a party t

LOS Convention) temporarily and legitimately suspend all innocen

through its territorial sea on a non-discriminatory basis.114

The criticisms raised as to the inherently threatening behavior of a na

assertion are imprecise. This was particularly reinforced in the Nicar

where the majority opinion determined not only that innocent passage 

established right of customary international law, but so were other na

freedoms extending beyond the territorial sea. Indeed, the Court in tha

determined that the conduct of US naval exercises just beyond the terr

limits of Nicaragua was not, in itself, a violation of the prohibition of th

use force which Nicaragua had expressly contended, but rather was cons

the exercise of maritime freedoms.115

Abuse of Rights

A further criticism of the Freedom of Navigation Program relates t

frontational nature of such assertions as potentially constituting an 

right” contrary to both Article 300 of the 1982 LOS Convention116 and m

ally under “general principles” of international law, of a type recognized 

ticle 38(1)(c) of the Statute of the International Court of Justice.117

The general principle of “abuse of rights” may reasonably be regarded 

a settled place within the doctrine of sources comprising international l

principle essentially seeks to restrict a State from exercising its rights in 

which significantly impedes the enjoyment by other States of their own 

exercised for an end different from that which the right was created in 

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that causes injury to another State. The doctrine is an essential one to the 

ing of international legal society if the notion of sovereignty is not to be r

being absolute. In his separate opinion in the Corfu Channel case, Jud

was able to give judicial expression to his theory of disaggregated sovere

he had been advocating for some twenty years. Hence, if sovereignty i

cepted as a “bundle” of rights and duties, then a method for their reco

among States was essential. Premised upon a foundation of “social justi

Alvarez advanced a theory of limitation on the “absolute nature” of the 

untrammeled sovereignty and considered that such an approach was ma

the authority of the United Nations Charter.119

In the context of navigational freedom, it is unclear how the doctrine 

of rights” might apply in a manner to impinge the assertion of navigatio

prescribed by the 1982 LOS Convention and reflected in customary int

law. As has been outlined above, the jurisprudence of the ICJ has provide

work for testing whether such transits could violate more general princi

ternational law concerning the prohibition on intervention which is d

on the basis of coercion. This element is singularly lacking in the con

simple exercise of innocent passage or transit passage provided the criter

methods of passage are observed. Ironically, during the drafting of the p

Article 38 of the Statute of the Permanent Court of International Justice 

has been noted that the Italian commissioner to the negotiations express

ered that the doctrine of “abuse of rights” had its place in the context o

that coastal States actually recognized the principle of freedom of the sea

been observed that the doctrine of “abuse of rights” is based upon conc

reasonableness in the exercise of rights.121 In that regard, it seems to be 

able invocation of the doctrine to assert the legality of actions designed 

the breadth of maritime zones beyond what the 1982 LOS Convention 

or to otherwise impose unilateral conditions on the exercise of navigatio

contrary to the terms of the Convention. While positivist theory does no

formal hierarchy among sources of international law,122 principles of 

(pacta sunt servanda) in accepting the balance of rights and duties unde

LOS Convention surely dictate that the exercise of navigational rights 

dance with the tenor of the Convention must be accepted and cannot of t

be a violation of the principle of “abuse of rights.”

Conclusion

It is possibly an irresistible human impulse that compels States to be extre

tective about the sanctity of their maritime areas. Most assuredly what is “

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distant water is another man

s maritime backyardand this has created 

author has termed “psycho-legal boundaries”124 in popular perception. Su

ment does not accord with modern legal analysis of the nature of the “so

exercisable in offshore areas, which is of a disaggregated kind and which is 

limited by equally compelling rights of navigational freedom. This histo

trinal struggle between freedom of the seas and protection of sovereign in

found its most recent incantation within the terms of the 1982 LOS Conv

supporting, indeed largely identical, customary international law.

The 1982 LOS Convention does reflect the necessary balance of c

maritime interests throughout its composition. It provides for an exten

eign range for coastal States through their adjacent maritime areas, yet 

the necessary freedoms sought by maritime States to traverse these a

achieving the economic and security priorities that were necessary for su

The entry into force of the 1982 LOS Convention does provide a level o

for the realization of goals, yet notwithstanding high hopes125 on the norm

tential of the Convention, it was never going to be the last word on the r

tion of interests.126 As a result of both the ambiguity within the ter

Convention and the determination of some States to press claims that 

contrary to its terms, it is necessary for those relying upon the integrity 

rights of free navigation to demonstrate an equal resolve. The operationa

the Freedom of Navigation Program has its place, indeed as has been arg

paper, its critical place in the dynamic of international legal rule deter

The Program draws considerable support from ICJ jurisprudence and 

successful in ensuring conformity to legal standards.127 It is ironic tha

tional law is sometimes derided as being too ephemeral for realist approa

ternational relations theory, yet the operational assertion aspect of the F

Navigation Program reflects the very vibrancy of international legal disc

ultimately is a testament to the power of the law.

Notes

1. Commander Dale Stephens is a Legal Officer in the Royal Australian Navy. The view

in this article are those of the author alone and do not necessarily represent the 

Australian Government, the Australian Defense Force, or the Royal Australian Navy.

2. 1982 United Nations Convention on the Law of the Sea, Montego Bay, Decemb

UN Doc. A/CONF.62/122 (1982), reprinted in 21 INTERNATIONAL LEGAL MATE

[hereinafter 1982 LOS Convention].

3. David Kennedy, When Renewal Repeats: Thinking Against The Box, 32 

UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 335, 389 (2000).

4. DAVID KENNEDY, INTERNATIONAL LEGAL STRUCTURES 204 (1987).

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g g g

Apr. 29, 1958, 559 U.N.T.S. 285; Convention on the Continental Shelf, Geneva, Ap

499 U.N.T.S. 311; Convention on the High Seas, Geneva, Apr. 29, 1958, 450 U

Convention on the Territorial Sea and Contiguous Zone, Geneva, Apr. 29 1958, 5

205 [hereinafter 1958 Conventions].

6. The United States did not sign the 1982 LOS Convention during the two-year p

was open for signature (December 10, 1982 – December 9, 1984) and has yet to acc

text infra notes 14 and 15.

7. William J. Aceves, The Freedom of Navigation Program: A Study of the Relations

Law & Politics,9HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW 259, 3

8. Australia has an informal policy of asserting lawful rights of navigational freedo

discussed infra.

9. Professor Wolff Heintschel von Heinegg notes “the member States of the Europ

even though heavily dependent upon free sea lanes, have shown but a minor 

upholding the achievements of UNCLOS. Rather, they have relied upon the Unite

the US Navy’s Freedom of Navigation program.” Paper, Current Legal Issues i

Operations, delivered at US Naval War College, June 26, 2003 (on file with author)

10. Aceves, supra note 7, at 264.

11. Id. at 318.

12. Id. at 321.

13. As of November 13, 2003. For current status of State parties see a consolida

ratifications/accessions, available at http://www.un.org/Depts/los/convention_

convention_overview_convention.htm.

14. UN General Assembly Resolution A/RES/48/263 of 17 Aug 1994 and accompan

“Agreement Relating to the Implementation of Part XI of the United Nations Conventio

of the Sea of 10 December 1982,” reprinted in 33 INTERNATIONAL LEGAL MATERIALS 13

15. Letter of Transmittal and Letter of Submittal Relating to the UN Convention o

the Sea and “Agreement,” reprinted in ANNOTATED SUPPLEMENT TO THE CO

HANDBOOK ON THE LAW OF NAVAL OPERATIONS 32–42 (A. R. Thomas & James C. D

1999) (Vol. 73, US Naval War College International Law Studies).

16. UNCLOS III debates extended from 1973 to 1982.

17. Richard J. Grunawalt , Freedom of Navigation in the Post–Cold War Era, in NAV

RIGHTS AND FREEDOMS AND THE NEW LAW OF THE SEA 16 (Donald R. Roth

Bateman eds., 2000).

18. 1958 Conventions, supra note 5.

19. 1982 LOS Convention, supra note 2, art. 309

20. See George K. Walker & John E. Noyes, “Words, Words, Words”: Definitions for t

of the Sea Convention, 32 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 343 

George K. Walker & John E. Noyes, Definitions of the 1982 Law of the Sea Convention

CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 191 (2003).

21. Article 298(1)(b), 1982 LOS Convention, supra note 2, permits exclusion 

activities from compulsory procedures entailing binding decisions and there is very l

concentration on these activities within the 1982 Convention.

22. Id., art. 2.

23. David Kennedy, Some Reflections on the Role of Sovereignty in the New Internatio

STATE SOVEREIGNTY: THE CHALLENGE OF A CHANGING WORLD, PROCEEDINGS O

CONFERENCE OF THE CANADIAN COUNCIL OF INTERNATIONAL LAW 236 (1992).

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(

ed. 1866).

25. S.S. Lotus (France v Turkey), 1927 P.C.I.J. (ser. A) No 10.

26. Id. From an inter-jurisdictional perspective, see also Judgment of Holmes J. i

Banana Company, Plff. Err v. United Fruit Company, 213 US 347, 353; 29 S. Ct. 51

27. The Antelope, 23 US (10 Wheaton) 66 (1825). See also Corfu Channel (Mer

Alb.), 1949 I.C.J. 4 (April 19) (individual opinion of Judge Alvarez), at 40–44 [herein

Channel case].

28. Alejandro Alvarez, The New International Law, 15 TRANSACTIONS OF TH

SOCIETY 35–51 (1929), whose views were given greater legal import in subsequent d

his election to the International Court of Justice.

29. Elisabeth Mann Borgese, Sovereignty and the Law of the Sea, in OCEAN GO

STRATEGIES AND APPROACHES FOR THE 21ST CENTURY 37 (Thomas A Mensah ed., 

30. HANS KELSEN, LAW AND PEACE IN INTERNATIONAL RELATIONS 72 (1942).

31. Id.

32. Borgese, supra note 29.

33. Individual opinion of Judge Alvarez in Corfu Channel case, supra note 27, at 43

34. See Alfred P. Rubin, Enforcing the Rules of International Law, 34 HARVARD INTE

LAW JOURNAL 149 (1993) where the author examines appeals to “naturalist” au

provides an effective template of analysis in addressing arguments based upon this a

traditional source category of positivism.

35. KEN BOOTH, LAW, FORCE AND DIPLOMACY AT SEA 95 (1985).

36. Article 7, 1982 LOS Convention, supra note 2, provides general and somewha

criteria for the drafting of straight baselines.

37. Grunawalt, supra note 17, at 17.

38. 1982 LOS Convention, supra note 2.

39. See generally Fisheries (U.K. v. Nor.), 1951 I.C.J. 116.

40. Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Unit

The Law of the Sea: Practice of States at the Time of Entry into Force of the Uni

Convention on the Law of the Sea, (United Nations) (1994) [hereinafter United Nati

of States].

41. Id. at 65.

42. Id.

43. Id. at 66.

44. Id. at 34.

45. Grunawalt, supra note 17, at 17.

46. George Galdorisi & Alan Kaufman, Military Activities in the Exclusive Econ

Prevailing Uncertainty and Defusing Conflict, 32 CALIFORNIA WESTERN INTERNAT

JOURNAL 253, 282–283 (2002).

47. The United States has protested historic bay claims made by, inter alia, 

Australia, Cambodia, Canada, Dominican Republic, India, Italy, Libya, Panama, 

Vietnam. See Table A1-4, “Claimed Historic Bays” in ANNOTATED SUPPLEMENT

15, at 96.

48. As of 1997, there were 15 States that claimed a territorial sea in excess of 12 na

See Table A1-6 “The Expansion of Territorial Sea Claims” in id. at 100.

49. Donald R. Rothwell, Innocent Passage in the Territorial Sea: The UNCLOS Regi

Pacific State Practice, in NAVIGATIONAL RIGHTS AND FREEDOMS, supra note 17, at 9

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pgp

strait including prior authorization. See United Nations Practice of States, supra note 

51. Indonesian Government Regulations Numbers 36 and 37 of 2002 which 

respectively, “Rights and Obligations of Foreign Vessels When Exercising An Innoc

Via the Indonesian Waters” and “Rights and Obligations of Foreign Ships and Ai

Exercising Right of Archipelagic Sea Lane Passage Via The Established Archipelagic 

(translated copies of the Indonesian legislation in the author’s files).

52. Article 2 of Regulation 36, id., provides:

(1) All foreign vessels may exercise the right to Innocent Passage via the Ter

Waters and Archipelago Waters for the purpose of passing from a part of the o

or exclusive economic zone to the other part of the open sea or exclusive ec

zone. . . . (2) The exercise of Innocent Passage Right as referred to paragraph (1) 

carried out only by using the Sea Lanes commonly used for international sa

compliance to Article 11.

Article 11 details a number of north-south routes only.

53. Article 3 of Regulation 37, id., provides:

(1) The Right of Archipelagic Sea Lane passage . . . can be exercised via a sea lan

the air above a sea lane which has been described as an archipelagic sea lane 

purpose of the Right of Archipelagic Sea Lane Passage as described in paragraph 

In accordance with this regulation, the Right of Archipelagic Sea Lane Passage 

exercised on other Indonesian waters after those waters have been establi

archipelagic sea lanes which can be used for the purpose of Right of Archipela

Lane Passage.”

Article 11 of the Regulation designates only three main north-south sea lanes.

54. 1982 LOS Convention, supra note 2, art. 52,

55. Resolution MSC.71(69)(adopted on May 19, 1998)—Article 6.5

56. Id., art. 6.7.

57. The second paragraph of the Explanatory Note provides “Although foreign v

innocent passage . . . in compliance to the provisions of the United Nations 

concerning Law of the Sea of 1982, Indonesia reserves the right to determine the se

may be used by such foreign vessels to exercise innocent passage.”

58. Grunawalt, supra note 17, at 15.

59. Id.

60. Bernard H. Oxman, Panel on the Law of Ocean Uses: United States Interests in 

the Sea Convention, 88 AMERICAN JOURNAL OF INTERNATIONAL LAW 167, 168 (19

61. Dennis Mandsager, David Grimord & Patricia Battin, Cooperative Engagem

Ocean: Policy and Process, in OCEAN GOVERNANCE, supra note 29, at 39.

62. Grunawalt, supra note 17, at 11.

63. Id. at 17.

64. The RIMPAC biennial military exercise involves over 20,000 individual partic

the Pacific Rim region, including from Australia, Canada, Chile, Japan, South Ko

United States.

65. For example, the Combined Exercise Agreement for the RIMPAC Exercise inclu

ROE that are reviewed by participating legal representatives for ongoing accur

designed to be reflective of the navigational freedoms and obligations existing und

LOS Convention and at customary law.

66. Grunawalt, supra note 17, at 18.

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68. Article 2(4) of the Charter of the United Nations, San Francisco, June 26, 1945

xvi, [hereinafter UN Charter] provides “All members shall refrain in their internatio

from the threat or use of force against the territorial integrity or political independ

state, or in any manner inconsistent with the Purposes of the United Nations.”

69. Id., arts. 2(3) and 2(7).

70. “United States Ocean Policy,” Statement by the President, March 10, 1983:

[T]he Convention also contains provisions with respect to traditional uses 

oceans which generally confirm existing maritime law . . . the United States will 

and assert its navigation and overflight rights and freedoms . . . in a manner 

consistent with the balance of interests reflected in the Convention.

Reprinted in 22 INTERNATIONAL LEGAL MATERIALS 464 (1983).

71. Id.

72. Grunawalt , supra note 17, at 15.

73. Id.

74. See generally, Fia Cumming, The Day Our Boys Stared Down China, SYDNEY SU

Apr. 29, 2001, at 7 and also Tom Allard, PM Defends “Innocence” Of Ships In China R

MORNING HERALD, Apr. 30, 2001, at 5.

75. The Statute of the International Court of Justice is annexed to the UN Charter,sup

76. Michael Akehurst, Custom as a Source of International Law, 47 BRITISH YEA

INTERNATIONAL LAW 1, 36–37 (1974–75).

77. Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 14 (June 

[hereinafter Nicaragua case].

78. Id.

79. Id.

80. Akehurst, supra note 76, at 19.

81. Id.

82. North Sea Continental Shelf (FRG v. Den., FRG v. Neth.), 1969 I.C.J. 3 (Feb. 20

[hereinafter North Sea Continental Shelf case].

83. E. D. BROWN, THE INTERNATIONAL LAW OF THE SEA 67–68 (1994) details tha

UNCLOS III deliberations two amendments were proposed, one explicit on this p

other more indirect. Both were withdrawn.

84. The 2000 Final Report of the Committee of the International Law Association’s 

on Formation of Customary (General) International Law does accept that legal “pri

constitute customary rules but that there needs to be evidence of a high degree of c

uniform practice (at 8) [hereinafter ILA Report].

85. North Sea Continental Shelf case, supra note 82, at 42–43.

86. Akehurst, supra note 76, at 21.

87. Id. at 24; ILA Report, supra note 84, at 27–28.

88. ILA Report, supra note 84, at 10.

89. ANTHONY A. D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 8

90. LEO GROSS, ESSAYS ON INTERNATIONAL LAW AND ORGANIZATION (Vol.1) 393 

that “auto interpretation” is a fact of international discourse and as there exists 

institutionalized procedure to declare or formulate the will of the family of nation

mechanism of customary norm assertion, identification and acceptance is a necessa

the decentralized character of the international legal order.

91. Akehurst, supra note 76, at 53.

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y g

YEAR BOOK OF INTERNATIONAL LAW 28 (1991).

93. ILA Report, supra note 84, at 5.

94. Id. at 28.

95. Prosper Weil, Towards Relative Normativity in International Law? 77 AMERICA

OF INTERNATIONAL LAW 413 (1983).

96. Shekhar Ghosh, The Legal Regime of Innocent Passage Through the Territorial Sea

JOURNAL OF INTERNATIONAL LAW 216, 228 (1980).

97. Convention on the Law of Treaties,Vienna, May 23, 1969, 1155 U.N.T.S. 331, 

Vienna Convention].

98. Id.

99. Rothwell, supra note 49, at 80.

100. Ghosh, supra note 96, at 238.

101. Rothwell, supra note 49, at 75.

102. Vienna Convention, supra note 97.

103. Aceves, supra note 7.

104. Id. at 324.

105. Id. at 323.

106. Id. at 309.

107. Corfu Channel case, supra note 27, at 30.

108. Id. at 33–35.

109. IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 287 

also the general discussion of the competing academic arguments in Dale Stephens

of the 1982 Law of the Sea Convention on Peacetime Naval/Military Operations, 29 

WESTERN INTERNATIONAL LAW JOURNAL 283, 295–296 (1999).

110. Nicaragua case, supra note 77.

111. Id. at 107–8.

112. Id. See also Stephens, supra note 109, at 298–9.

113. Id.

114. 1983 LOS Convention, supra note 2, art. 25(3).

115. Nicaragua case, supra note 77, at 118.

116. 1982 LOS Convention, supra note 2. Article 300 mandates that States Partie

exercise the rights, jurisdiction and freedoms recognized in this Convention in a ma

would not constitute an abuse of right.”

117. Aceves, supra note 7, at 323.

118. Michael Byers, Abuse of Rights: An Old Principle, New Age, 47 MCGILL LAW JO

431 (2002). SeeINTERNATIONAL LAW: CASES AND MATERIALS 129–30 (Lori Damros

4th ed. 2001).

119. Individual Opinion of Judge Alvarez, Corfu Channel case, supra note 27, at 40

120. Byers, supra note 118, at 402.

121. Id. at 411.

122. INTERNATIONAL LAW, supra note 118, at 107.

123. BOOTH, supra note 35, at 44.

124. Id. at 117.

125. GEORGE V. GALDORISI & KEVIN R. VIENNA, BEYOND THE LAW OF THE 

DIRECTIONS FOR US OCEANS POLICY 85 (1997).

126. BOOTH, supra note 35, at 88.

127. Susan Biniaz, The US Freedom of Navigation Program, in THE LAW OF THE 

WORLDS, NEW DISCOVERIES 59 (Edward L. Miles & Tullio Treves eds., 1993).

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XIII

Military Activities in the

Exclusive Economic Zone:

Preventing Uncertainty and Defusing Co

Hyun-Soo Kim1

oastal States have jurisdiction over the establishment of artificial i

stallations and structures under the 1982 United Nations Conv

the Law of the Sea (hereinafter the LOS Convention).2 On the other han

States enjoy freedom of navigation, freedom of overflight, and freedom 

marine cables and pipelines in the exclusive economic zone (EEZ) 

States.3 The contemporary issue in the LOS Convention is whether fore

have the right to conduct military activities, including naval task force m

ing, flight operations, military exercises, surveillance, intelligence gath

weapons testing or firing, in coastal States’ EEZs.

It is argued that the foreign States’ military and missile exercises may r

olating the LOS Convention in two fundamental respects: first, it will inte

reasonable use of the high seas by others; and, second, it will violate the p

against use of the high seas for non-peaceful purposes.4 Thus, foreign St

tary activities in the EEZs of coastal States would be inconsistent with the 

and norms governing States’ military actions at sea under internationa

tions or customary law.5

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As a result, the legal question concerning military activities conducted 

become much more complicated since the establishment of the legal reg

EEZ. This is so mainly because Article 58 of the LOS Convention provi

1. In the exclusive economic zone, all States, whether coastal or land-locked

subject to the relevant provisions of this Convention, the freedoms referred to 

87 of navigation and overflight and of the laying of submarine cables and pipeli

other internationally lawful uses of the sea related to these freedoms, such 

associated with the operation of ships, aircraft and submarine cables and pipeli

compatible with the other provisions of this Convention. (Emphasis added)

2. Articles 88 to 115 and other pertinent rules of international law apply to the e

economic zone in so far as they are not incompatible with this Part.

During the negotiation of the LOS Convention, agreement on the a

cized wording was perceived as vital by the maritime powers because in t

pretation it implied the legality of naval maneuvers in a coastal State’s 

activity “associated with the operation of ships.” The cross-reference to 

is also important to the maritime nations because it lists the major freed

high seas, which include freedom of navigation, freedom of overflight

dom to lay submarine cables and pipelines. Accordingly, other States’ fr

a coastal State’s EEZ are the same as those in the high seas. Moreover, 

“and other internationally lawful uses of the sea related to these freedom

that other States may enjoy other, unspecified freedoms in a coastal Stat

addition to the ones listed in Article 58.1.

Furthermore, Article 58.2 makes a general cross-reference to Articl

and other pertinent rules of international law as applying to the EEZ i

they are not incompatible with Part V (the EEZ articles) of the LOS Co

However, some coastal States interpreted Article 58 much more narrow

that it does not authorize other States to carry out military activities in 

State’s EEZ, and that the consent of the coastal State is required before c

such activities.6

The question of whether a foreign country has the right to conduct m

tivities in a coastal State’s EEZ was a controversial issue in the negotiati

text of the LOS Convention and continues to be in State practice.7 The 

powers argued for a broad range of military activities consonant with t

high seas freedoms. Consequently, they believe the right to naval maneu

EEZ of a coastal State is implied in the freedom of navigation and overfl

is, they interpret the phrase “other internationally lawful uses of the sea 

these freedoms” contained in Article 58.1 as including military activiti

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task force maneuvering, flight operations, military exercises, naval surve

gence gathering, and weapons testing and firing.

During the negotiations, some States9 expressed strong opposition t

activities10 in the EEZ because such activities can result in threats to coa

However, nowhere in the LOS Convention does it clearly state wheth

State may or may not conduct military activities in the EEZ of a coastal S

sent clarity in the text of the Convention, resolution of this issue is ver

cated and controversial. Despite the apparent ambiguity, it seems that t

understanding of the text of the LOS Convention would permit such a

be conducted.12

Nevertheless, due to the ambiguity found in Article 59, and the abse

compulsory judicial settlement of disputes concerning military activi

EEZ, it is very difficult to render an authoritative legal interpretation whe

putes arise. The question of whether naval maneuvers and exercise

coastal State’s EEZ are permissible under international law will remain. N

itative legal rulings will be made unless actual international disputes ari

parties contest the issue before the International Court of Justice or th

tional Tribunal for the Law of the Sea.

The question concerning the legality of laying military-related subm

bles, pipelines, and/or devices by a State in another State’s EEZ is also sub

ferent interpretations of, and application to, the relevant provisions o

Convention. The coastal State should have the exclusive right in its EE

struct, and to authorize and regulate the construction, operation and us

cial islands, installations and structures for economic purposes, and in

and structures which may interfere with the exercise of the right of the co

in the EEZ. Accordingly, other States should obtain consent before layin

related submarine cables, pipelines, and/or devices in the EEZ of the co

Therefore, the subsequent practices of States will become particularly 

for determining the proper interpretation of the LOS Convention’s pro

Some States argued that “the right of the coastal State to build and to 

the construction, operation and the use of installations and structures i

and on the continental shelf is limited only to the categories of such in

and structures as listed in Article 60 of the LOS Convention.” According

gue that it is not necessary to obtain consent from a coastal State if anothe

tends to lay military-related submarine cables, pipelines, and/or devices 

or on the continental shelf of the coastal State. It should be remembered 

Article 58.3 “other” States, when exercising their rights in the EEZ of a co

are required to “have due regard to the rights . . . of the coastal State” in a

with the provisions of the LOS Convention. If the military activities cond

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foreign country in a coastal State

s EEZ interfere with the lawful resource 

interests of that coastal State, the latter’s rights and interests would prev

In the future, no matter how international disputes concerning the is

val maneuvers and other military activities conducted in the EEZ of a co

might be generated, or how the disputes are settled, the possibility of th

dispute arising could be avoided entirely or at least reduced. This is pos

State conducting military activities in the coastal State’s EEZ shows “reas

gard” for the interests of that coastal State and other States.13 In other w

coastal State’s rights and interests in relation to exploration, exploitatio

vation and management of natural resources; the establishment and us

cial islands, installations and structures; marine scientific research; the 

and preservation of the marine environment in its EEZ; and other States’ 

interests in the coastal State’s EEZ, such as freedoms of navigation and 

and freedom to lay submarine cables and pipelines,14 are not affected b

tary activities of another State, these kinds of military activities are perm

der the LOS Convention.

Article 58 of the LOS Convention should be applied in order to answe

tion of whether foreign States have the right, under international law, t

military-related activities in the coastal State’s EEZ. The answer will dep

nature and purposes of the activities. Because the operation of foreign St

ligence gathering ships in the coastal States’ EEZ involve no use of weapo

plosives, and is thus considered to be “associated with the operation of th

exercising freedom of navigation in the coastal State’s EEZ, it can hardly 

tained that the foreign States’ activities violate international law. As a ma

if “due regard” indeed has been given to the coastal States’ rights and int

foreign States do have the right to conduct military activities, includin

testing or firing, in the coastal State’s EEZ. Of course, if any live-fire mil

cises are to be conducted, the establishment of a warning or exclusion zo

tect others using the affected ocean area is required because engaging in 

fire military exercises creates dangers.15

In addition, military intelligence-gathering is different, because it is n

to the construction, operation and the use of installations in the EEZ 

would not normally be published or disseminated. Intelligence-gatherin

can also take many forms, and activities that involve “drilling into the c

shelf, the use of explosives, or the introduction of harmful substances in

rine environment”16 would certainly implicate concerns of the coastal 

should require its consent.

In light of the foregoing analysis, foreign States are allowed, under int

law, to conduct military activities in the EEZ, provided that the coas

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resource rights and interests are not affected by the activities, and provid

purpose for conducting the activities is not to intimidate the coastal State

or use of force. However, it would be considered a violation of internati

foreign States were to fire missiles into a water area in the coastal State’s EE

giving due regard to the resource rights and interests of the coastal States 

affected other States’ freedoms of navigation and overflight in the coastal S

or had an adverse impact on other States’ national interests concerning ma

of peace and stability in the coastal States’ region. In these circumstances, 

of the foreign State’s military activities should be examined in accordanc

relevant provisions of the LOS Convention, in particular Articles 58 an

other international legal instruments, such as the Charter of the United N

In conclusion, even if all States have navigational and overflight rig

EEZ of a coastal State under the LOS Convention, these rights should b

against the resource interests of the coastal State. If there is interfere

coastal State’s economic utilization of its EEZ, limitations on the above m

freedom of navigation and overflight should be accepted. Conflicts betwe

and maritime States regarding military activities in the EEZ “should be r

the basis of equity and in the light of all relevant circumstances, taking in

the respective importance of the interests involved to the parties as well a

ternational community as a whole.”17

Notes

1. Captain Hyun-Soo Kim of the Republic of Korea Navy is Professor of Internatio

Director of the Law of the Sea Research Division of the Republic of Korea Naval W

2. United Nations Convention on the Law of the Sea, Dec.10, 1982, art. 56.1(b), 18

3, 21 INTERNATIONAL LEGAL MATERIALS 1261 [hereinafter LOS Convention].

3. Id., arts. 58, 87.

4. Id., arts. 301.

5. Id., arts. 56(1).

6. Brazil (1982 declaration), Cape Verde (1997 declaration), India (1995 declaratio

(1996 declaration), Pakistan (1997 declaration) and Uruguay (1992 declaration). Pe

also prohibit foreign military activities and practices within their EEZ. See Marit

Reference Manual, US Department of Defense 2005.1-M, http://www.dtic.mil/wh

corres/html/20051m.htm (Apr. 2, 2001).

7. FRANCISCO ORREGO VICUNA, THE EXCLUSIVE ECONOMIC ZONE: REGIME 

NATURE UNDER INTERNATIONAL LAW 309 (1989).

8. Germany (1994), Italy (1995), the Netherlands (1996) and the United Kingd

declared in general that the Convention does not authorize the coastal states to proh

exercises in the EEZ and the rights and jurisdiction of the coastal states in the EEZ do 

the right to require either prior notification or permission for the conducting 

exercises or maneuvers. The text of these declarations is available at http://www.un

los/convention_agreements/convention_declarations.htm.

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ppp

Portugal, Senegal, Somalia, and Uruguay. UNCLOS III Official Records, Vol. II, 28 (19

10. For example, the use of weapons, the launching of aircraft, espionage, interf

coastal communications, and propaganda aimed at the coastal communities.

11. See VICUNA, supra note 7, at 108; TULLIO SCOVAZZI, THE EVOLUTION OF INTE

LAW OF THE SEA: NEW ISSUES, NEW CHALLENGES 162 (2001).

12. See CONSENSUS AND CONFRONTATION: THE UNITED STATES AND THE LAW 

303–304 (Jon M. Van Dyke ed., 1985).

13. See LOS Convention, supra note 2, art. 56.1.

14. Id., art. 87.

15. Jon M. Van Dyke, Military Exclusion and Warning Zones on the High Sea, 15 MAR

164 (1991).

16. J. ASHLEY ROACH & ROBERT W. SMITH, UNITED STATES RESPONSE TO 

MARITIME CLAIMS 426 (1996).

17. LOS Convention, supra note 2, art. 59.

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XIV

The Unique and Protected Status of Hos

Ships under the Law of Armed Confl

D. L. Grimord

and G. W. Riggs1

ospital ships have long enjoyed a unique position under t

armed conflict. The Geneva Convention for the Ameliorat

Condition of Wounded, Sick, and Shipwrecked Members of the Arm

at Sea (GWS-Sea)2 codifies the protection afforded hospital ships tha

ing in an area of hostilities during international armed conflict. In li

deployment of USNS Comfort(T-AH 20) in support of Operation Iraq

(OIF), the protected status of hospital ships and the maintenance of t

remain important topics. The import is even more pronounced in li

sweeping changes in technology since the 1949 Geneva Convention

modern-day terrorist threat from non-State actors who do not adh

law of armed conflict.

Background

Article 22 of GWS-Sea provides that military hospital ships may in n

stances be attacked or captured, but shall at all times be respected and 

This provision extends to hospital ships the immunity conferred on the 

sick and shipwrecked.3 Article 31 of GWS-Sea provides the means by wh

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to a conflict can verify that hospital ships are abiding by the provision

Sea, specifically that they are not committing acts outside their humani

ties and harmful to the enemy. It includes the right for parties to the con

control and search the vessels, direct their movement or even detain t

limited period of time. Parties may place a commissioner on board to en

pliance. Additionally, the parties may also arrange for the placement o

neutral observers who shall verify “the strict observation of the provi

tained in the present Convention.”4 Article 34 of GWS-Sea provides tha

tection to which hospital ships are entitled shall not cease unless they a

commit, outside their humanitarian duties, acts harmful to the enemy.

hospital ships must refrain from all interference, direct or indirect, in m

erations.6 In addition, the second paragraph of Article 34 provides tha

ships may not possess or use a secret code for their wireless or other mea

munication. Article 35 of GWS-Sea enumerates conditions that shall n

sidered as depriving hospital ships of the protections afforded. Speci

arming of crews for the maintenance of order or self-defense, the pr

board of apparatus exclusively intended to facilitate navigation or comm

and the storage of arms taken from the sick and wounded are not action

prive a hospital ship of its protected status. Two points that must be rea

light of modern conditions are the use of secure communications aboar

ships and the arming of hospital ships beyond the traditional “small arms” p

Secure Communications

Article 34 of GWS-Sea has been viewed as prohibiting the use of secure c

cations equipment on hospital ships during international armed 

Changing technology and the practical necessity to communicate in a ma

sistent with present-day technology requires that the prohibition again

ships using secure communication equipment be reevaluated. While th

the prohibition (the right of belligerents to be assured that hospital sh

commit “acts harmful to the enemy”) must be maintained, the realities 

communications and navigation technology should also be taken into 

ation. In today’s highly technological environment where most comput

ellite communications are routinely encrypted, hospital ships should 

utilize these state-of-the-art communications assets in order to operate 

accomplish their humanitarian mission.7 In today’s highly technological 

environment, the ship’s capacity to operate safely and fulfill its humanit

sion during armed conflict would be degraded without access to 

communications.

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Since 1949, discussions among international legal authorities have r

the need to reevaluate the use of secure communications equipment tha

late, or appear to violate, the “secret code” prohibition of Article 34.

As early as the close of the Diplomatic Conference of Geneva of 1949

concern among the Conference participants that the ability of hospit

communicate efficiently with warships and military aircraft was in jeo

needed further study.8

More recently, paragraph 171 of the 1994 San Remo Manual on Int

Law Applicable to Armed Conflicts at Sea9 recommends a different rule 

cle 34. Paragraph 171 provides: “In order to fulfill most effectively thei

tarian mission, hospital ships should be permitted to use cryp

equipment. The equipment shall not be used in any circumstances to tr

telligence data nor in any other way to acquire any military advantage.”

The Explanation to the San Remo Manual10 details the reasons for thi

that being, the general wording of Article 34 has caused difficulties. T

during the Falklands War, found that transmitting to or from their hos

in the clear risked giving away the positions or planned movements 

forces. The participants in the San Remo process evidently thought that, 

cle 34 jeopardizes the ability of hospital ships to operate effectively, the 

to concentrate on the sending of military intelligence and that in orde

their humanitarian mission effectively, hospital ships should be permit

secure communication equipment that in modern technology is an integ

most communications systems.11

Given the interpretation of Article 34 of GWS-Sea, the use of encrypted 

cations equipment on board hospital ships is problematic. It is clear that as t

has changed, the terms of paragraphs 2 of GWS-Sea Article 34 have been ren

solete. Nonetheless, States parties to the GWS-Sea arguably remain bound b

One possible approach to effecting a change in the law is the premise that a

change in practice by parties can be utilized to further interpret and modi

This concept is reflected in Article 31 of the Vienna Convention on the Law 

which states, “any subsequent practice in the application of the treaty which 

the agreement of the parties” can be used to interpret the meaning of that 

The prohibition against the use of secret codes by hospital ships was bo

gone era. In the past, use of encrypted communications was not needed fo

gation or for affecting the humanitarian mission of hospital ships, rather, on

tary operational reasons such as receiving or transmitting intelligence. Para

of the San Remo Manual, as well as varied other international sources,13 ill

widespread recognition that, in concert with the necessities of modern techn

use of encrypted communication equipment on hospital ships in furtheran

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humanitarian mission and safe navigation should be permitted. Encrypted 

cation equipment necessary for safe operation and efficient long-range co

tion is now in common use at sea. The necessity for this now commonp

encrypted communications equipment should apply equally to hospital sh

as they commit no act harmful to the enemy. The modification of existing 

gations between parties envisioned by Article 31 of the Vienna Conventio

applied to the practice of using encrypted communications by hospital shi

Accordingly, use of encrypted communications should be permissibl

purpose is to facilitate the navigation14 or communication15 of the hosp

furtherance of its humanitarian mission and is not employed in a man

harmful to the enemy. Under such circumstances, the presence and u

equipment violates neither the spirit nor the intent of GWS-Sea.

Defensive Arming of Hospital Ships

The arming of a hospital ship for self-defense against terrorists and other 

actors must also be reconsidered. The Geneva Conventions by their o

only apply during “declared war or any other armed conflict which ma

tween two or more of the High Contracting Parties.” Terrorists and their 

tions (the threat against which hospital ships are now defending them

not States party to the Geneva Conventions and their tactics (attacking 

gets normally protected under the law of armed conflict (LOAC)) fall o

traditional definition of international armed conflict. Although it is dou

the Geneva Conventions apply to self-defense measures that hospital 

take against terrorist acts, an analysis of this issue is required based on the 

position reflected in Department of Defense(DoD) Directive 5100.77 (D

War Program) that US forces will apply the LOAC to all military operati

GWS-Sea does not directly address weapons systems for hospital ships

above, Article 34 provides that the “protection to which hospital ships 

bays are entitled shall not cease unless they are used to commit, outside 

manitarian duties, acts harmful to the enemy.” Article 35 provides that t

crews of ships or sick-bays are armed for the maintenance of order, for 

defense or that of the sick and wounded, shall not be considered as depr

pital ships or sick-bays of vessels of their protected status.

While it is clear that crews of hospital ships may be armed for their ow

GWS-Sea does not specify what are permissible weapons. The accepted 

arming medical personnel ashore has been “small arms” such as pistols 

and that norm was equally applied to the crews of hospital ships. Tradi

was thought that light, portable, individual weapons such as pistols and 

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all that was needed for personal defense on hospital ships.

Crewserved 

such as machine guns, were presumed to go beyond the need for use 

fense, given that belligerents were bound to not attack hospital ships 

provisions of GWS-Sea.

However, current-day suicide-style terrorist tactics against so-called 

gets,” exemplified by the attacks on the World Trade Center, the Pen

embassies in Africa, and on the USS Cole, demonstrate the need for enh

fenses against individuals or groups not complying with the law of armed 

this new threat environment, where large-scale, deadly, and indiscrimin

on civilians and civilian objects have become part of terrorists’ modus 

mounted machine guns have become by necessity standard elements of 

force protection systems for naval vessels. Such weapons have offensive 

when installed on helicopters and small boats, but in the contex

mounted on board a large, relatively slow and not-easily-maneuverable 

offensive capability is greatly diminished (if not lost altogether) and th

becomes purely defensive in nature. To that end, hospital ships should 

employ machine guns and similar armament solely for self-defense agai

ists and other persons who do not recognize or follow the law of arme

This interpretation is consistent with the long-standing US Army interp

self-defense permissible under Article 22 of Geneva Convention I17 (per

wounded and sick forces on land) as “personal defense and for the pro

the wounded and sick under their charge against marauders and other pe

lating the law of war.”18 Such weapons would not be used in an offensiv

nor against lawful belligerents complying with the law of armed conflic

are exercising their rights under GWS-Sea. It is only as a result of the 

threat to targets traditionally protected under the law of armed conflict 

hospital ship) that it is necessary to enhance the defensive measures a

these protected platforms. Although the Geneva Conventions would no

ply, the use of machine guns in self-defense against non-State actors is 

with Articles 34 and 35 of GWS-Sea, as well as the underlying principles 

the protected status of hospital ships under the law of armed conflict.

Notes

1. Captain Grimord is the Deputy Assistant Judge Advocate General, Navy Intern

Operational Law Division. Major Riggs is the Head of the Operational Law Br

International and Operational Law Division. The opinions expresses herein are those o

and do not necessarily reflect thsoe of the Department of the Navy or Department of D

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() 

Members of Armed Forces at Sea, Geneva, Aug. 12, 1949, 75 U.N.T.S. 85,reprinted in D

ON THE LAWS OF WAR 222 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).

3. COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949, 

CONVENTION FOR THE AMELIORATION OF THE CONDITION OF WOUNDED, 

SHIPWRECKED MEMBERS OF ARMED FORCES AT SEA 157 (Jean S. Pictet et. al. eds., 

4. This provision dates from the draft Additional Articles Relating to the Cond

Wounded in War, Geneva, Oct. 21, 1868, which did not enter into force. See TH

ARMED CONFLICTS:ACOLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER D

369 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004). The wording was onl

modified to take its present form as found in GWS-Sea.

5. Additionally, hospital ships must be warned of the offending action and given a 

amount of time to comply before their protected status can be violated. Harmful 

example, transporting combatants or arms, transmitting military intelligence v

providing cover for a warship.

6. COMMENTARY, supra note 3, at 191.

7. A secondary, but important additional consideration, is the current standards re

privacy of medical records pursuant to the requirements of the Health Insurance Po

Accountability Act of 1996 (HIPAA). The Standards for Privacy of Individually 

Health Information (“Privacy Rule”) establishes, for the first time, a set of national s

the protection of certain health information. The US Department of Health and Hum

issued the Privacy Rule to implement the requirement of HIPAA. The Privacy Ru

address the use and disclosure of individuals’ health information—called “prote

information” by organizations subject to the Privacy Rule—called “covered entitie

standards for individuals’ privacy rights to understand and control how their health 

is used.

8. See Resolution 6 of the Diplomatic Conference of Geneva, 1949, reprinted in TH

ARMED CONFLICTS, supra note 4, at 691.

9. Sponsored by the International Committee of the Red Cross (ICRC) and compl

1994 by a group of legal scholars and naval practitioners, the Manual serves as a co

restatement of international law applicable to armed conflict at sea and comp

addresses the subject for the first time since the 1913 Oxford Manual. In most r

Manual correctly states the law and, with the exception of some portions, is consist

practice. The San Remo Manual is reprinted in Schindler & Toman, supra note 4, a

1913 Oxford Manual is reprinted in id. at 1123.

10. SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFL

236–37 (Louise Doswald-Beck ed., 1995).

11. It is important to note that the San Remo Manual recommendation is consist

rules regarding the use of secure communications equipment by medical aircraft a

See Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (Protocol I), Geneva, June 

28, 1125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra no

Unlike hospital ships, other medical transports are not restricted from using 

equipment. They are, however, bound by the same requirement that they com

harmful to the enemy. International law permits medical aircraft and vehicles to pos

encrypted communications equipment “solely to facilitate navigation, commun

identification.” Hospital ships have the same or similar navigation, communi

identification requirements as medical transport aircraft.

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y 

13. In THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICT, the Germa

to the US ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON T

NAVAL OPERATIONS (A. R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US 

College International Law Studies), Professor Heintschel von Heinegg recommends 

Remo rule be adopted. International Committee of the Red Cross (ICRC) senior l

Louise Doswald-Beck notes that the San Remo Manual’s recommended change i

derives from the British experience during the Falklands conflict. See Louise Doswal

Remo Manual on International Law, 309 INTERNATIONAL REVIEW OF THE RED CRO

(1995). Phillip Eberlin, Merchant Navy and Maritime Security Officer, ICRC, in 

Commentary to the 1923 Hague Rules for the Control of Radio in Time of War, argu

should be clarified to allow the use of modern communications equipment by hosp

14. Military Global Positioning System (GPS) is encrypted.

15. Video teleconferencing of real time medical procedures and other patient inform

by necessity have to be encrypted in order to utilize the necessary satellite communic

16. SeeCOMMENTARY, supra note 3, at 194. See also ANNOTATED SUPPLEMENT, supr

¶ 8.2.3.

17. Convention (I) for the Amelioration of the Condition of the Wounded and Sic

Forces in the Field, Geneva, 12 Aug. 1949, 75 U.N.T.S. 31, reprinted in DOCUMEN

LAWS OF WAR, supra note 2, at 197.

18. US Army Field Manual 27-10 ¶ 223b (1956).

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PART IV

THE FUTURE OF LAW IN WAR:

DIFFERENT APPLICATION

OR DIFFERENT RULES?

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XV

Legal and Tactical Dilemmas Inhere

in Fighting Terror:

Experience of the Israeli Army

in Jenin and Bethlehem

(April–May 2002)

1

Introduction

ne of the major challenges presently facing the international co

is the extent to which the laws of armed conflict, as understo

may be applied to conflict scenarios of today’s world realities, and speci

situation in which the international community finds itself in a concer

campaign against terror.2 In other words, is the law of armed conflict, 

lated, understood and applied in what we have grown up to understan

day’s world, capable of guiding States in the fight against today’s terro

When faced with legal issues arising in a “standard situation” of ar

flict—whether in regard to ground operations, air or naval targeti

tions—the legal parameters are usually relatively clear. This is becaus

and customs of war and international humanitarian law—which const

gral components of international law—set out the norms and standard

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States are obligated to act and armed forces required to operate. The te

dard situation” assumes that the clearly-defined armed forces of the tw

usually belonging to States—confront one another on a defined or cl

field, and engage in such actions as are necessary to conduct the armed c

The term “armed conflict,” as understood up to now, thus serves as a c

or form of algebra, indicative of a series of norms, rules, articles, princip

prohibitions and requirements, obligating the forces, and the governm

ing them, in guiding the military conduct of the war. The assumption 

cases, that armed forces—on both sides—will indeed conduct themselve

dance with such rules and norms. More important, the assumption is also 

relies on the fact that the other will indeed observe the requisite norms 

That is, perhaps, the underlying assumption of any logical and viable a

flict situation in today’s international legal system.

This is a somewhat idealistic and even simplistic description of any no

system—both civil and international—in which the individual compone

the system are able to live and conduct themselves within the orderly par

the system, on the assumption that the other components of the system 

port themselves in the same way. Departure from such parameters and b

violation of such a normative system undermines and threatens the very 

of the system and raises the question as to the need to review the system, 

norms or adapt them to meet the new realities or developments.

Thus, as long as the conduct of armed conflict includes the accepte

nents and follows the accepted normative guidelines—whether from th

view of the parties to the conflict or as to the modes of behavior and the 

war—then the “standard situation” prevails. To conduct a war in Iraq a

Iraqi army, or in Afghanistan against organized armed forces fighting 

gime in Afghanistan, or even a collective NATO action against organiz

military forces in Yugoslavia, would generally fall within the paramet

“standard situation,” even if, during the course of such conflict, the neces

arise to deal with exceptional occurrences, including terror, violations of 

armed conflict, war crimes, crimes against humanity and other irregula

Today’s international community is faced with a dichotomy, because w

rently known and acknowledged to be “the law of armed conflict,” by w

and their armed forces are supposed to function, developed over the year

set out in clear terms in the late 1800’s and early 1900’s,3 amended in the 

ond World War years (1949),4 and again in the 1974–7 timeframe5 in 

ground of the Vietnam War, and has since not really been touched (a

specific instruments to reflect the need for protection of cultural property 

war,6 as well as instruments reflecting technological developments in con

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and non

conventional warfare.) However, it is questionable whether 

armed conflict as it exits today, incorporating as it does, international hum

law, is really capable of providing legal as well as operative answers to the p

sues arising out of today’s struggle, directed not necessarily against a d

identifiable armed force of a State, but rather against terror as a concept 

nomenon. This may not necessarily be confined to the territory of a partic

and certainly, by its very definition, is not necessarily directed against mili

of a State in the reality of today.

“Global War on Terror”

While the concept of “war” or even “global war” may be clear, while the 

non of “terror” is rapidly and ever-increasingly becoming understood to 

more countries, and while the challenge placed before the internationa

nity may be patently evident, the concept of a “global war on terror” i

tional legal terms nevertheless raises innumerable questions. Can such a 

take place? Is the existing law of armed conflict, based as it is on well-def

ria, capable of identifying, categorizing and recognizing the needs and co

of such a war, especially when considering that the parties to the confl

necessarily States, and the geographical boundaries of the war are not n

within the confines of one State? Similarly, as the tactics and the weapons 

deal with terror are not necessarily the same as those used vis-a-vis a con

enemy in a standard war, are the law of armed conflict and internationa

tarian law equipped to deal with this?

To fight against Iraqi or Afghani armed forces, or in Israel’s case, a 

Lebanese army, is theoretically and legally relatively simple, and can ind

dressed in terms of the existing rules and sanctions of warfare. But as h

evident, to fight against al Qaeda, Hamas, Hezbollah, Islamic Jihad and 

Saddam, and other such nebulous and vague terrorist opponents, may 

different kettle of fish for a number of very significant reasons:

• They openly and demonstratively shun and violate the accepted n

rules of armed conflict. Their very modus operandi and inherent fu

philosophy are built, and rely as a tactical assumption, on the fac

organized, western armies—as well as the society that they defend—w

abide by the norms and rules. Thus, they utilize civilian locations, homes

mosques, medical facilities and ambulances, and schools as shields for 

and concealing of weapons, bases, headquarters, laboratories and traini

assuming that an organized army of a State obligated by the law of arm

and international humanitarian law, will not risk causing collateral civilia

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to civilians and civilian facilities by responding and targeting such blatan

objects, and will not wish to be accused of using disproportionate mil

against groups of apparently unorganized civilians.

• They target civilians as a distinct, deliberate and concerted 

demoralize and terrorize the civil population and to pressure 

governments and society. This is their tactical modus operandi.

• In so doing, they knowingly violate, and operate outside the law 

conflict and thereby place themselves outside the bounds of any accep

entitling them to protection or combatant status and privileges. Th

undermines and abuses the basic assumption of an organized society, fu

pursuant to legal norms and obligations—both in its civil legal system a

of its international conventional and customary obligations.

• Such modus operandi undermines and abuses the humanitaria

responsibility and obligation instilled into the psyche of soldiers, w

military training and academies, or whether stemming from the basi

decency and morality emanating from home, childhood, family values, e

Sunday school, church, synagogue and upbringing.

• This phenomenon produces the impossible and paradoxical predi

which, on the one hand, organized armed forces or police forces of th

obliged to function within the limitations of the law and the accept

while on the other hand, the terrorists openly, deliberately and proud

such law and norms. This is perhaps the essence of terror.

Israel Defense Force (IDF) Case Studies—Jenin and Bethlehe

Following are two pertinent case studies and other examples from Israel

periences of the blatant abuse by Palestinian terrorists of the laws and 

norms of armed conflict, and the sometimes tragic moral and human

lemma that this creates in the psyche of the field commanders, soldiers

the political leadership that holds responsibility. This is no less of a dilem

judiciary that is often called upon to judge the actions of the governm

armed forces during real time conflict.

These studies are also indicative of a certain element of hypocrisy and 

dards within parts of the international community, which to a cert

would, for reasons of political interest, appear to prefer to sit on the sid

to judgment rather than seek to unify efforts and engage in the fight again

The situations covered are:

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The IDF operation, between April 310, 2002 to overcome an a

fortified terrorist infrastructure in the Jenin refugee camp and to p

conversion into a training and exit base for suicide terrorism.

• The 37-day occupation and violation by Palestinian terrorists of 

holiest sites to Christianity—the Church of the Nativity in Bethlehem

April 2 and May 8, 2002.

• Other pertinent examples.

Scenario

The refugee camp in Jenin occupied a corner of the south-eastern outsk

town. The refugee institutions (schools, clinics and related facilities) w

the administration and responsibility of the United Nations Refugee a

Agency (UNRWA), within the general context of the United Nations’ re

ity for handling refugees.9

In fact, this camp (together with others in the West Bank and the G

had, for a considerable period of time prior to the hostilities in the area, b

run and controlled by the Hamas and Islamic Jihad terror organizatio

had established a series of terror training centers, explosive-producing 

ries, suicide-belt sewing workshops, metal-working facilities and foundr

duce, cut and sharpen metal shavings, ball bearings, screws, bolts a

objects comprising part of the “suicide kits,” and related equipment. Th

clear United Nations requirements prohibiting use of refugee camps un

ministration for military purposes, including a call by the United Nati

tary-General establishing that “[r]efugee camps should be free of an

presence or military equipment, including weapons and munitions . . . th

ity and the humanitarian nature of the camps must be meticulously ke

despite a series of very clear obligations undertaken by the Palestinian 

and witnessed by the international community, to dismantle terrorist i

ture and arrest and prosecute those involved in all forms of terror.11

The schools and kindergarten facilities—ostensibly under the admini

the United Nations—were used to train terrorists, replete with posters co

classrooms and nurseries depicting the shaheeds (“martyrs”) suicide bo

folk heroes, and as role-models for the children. Children’s playing card

the faces of these “folk-heroes.”12

The presence and control by the various terror organizations was no 

was not done in a covert manner.13 Jenin was proudly dubbed in the P

propaganda apparatus as “capital of the shaheeds,” having produced ov

cessful suicide bombings within Israel.

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During the course of the armed activities prior to the entry of ID

camp, the terror organizations had evacuated the majority of the refugee

them into the town of Jenin, and proceeded to booby-trap buildings 

camp, disperse small mines connected to piping along the narrow st

booby-trap doorknobs, toys, household utensils and other objects.

The Legal Situation

In strict legal terms, in the context of the law of armed conflict, the Jen

camp had been turned into a military objective/location, which openly a

served and rendered an effective contribution to the Palestinian uniqu

military action. The camp served as a purveyor and chief supply depot an

base for acts of terror—predominantly suicide bombings both during th

mediately preceding the military action, as well as having supplied an 

number of potential future suicide bombers, the neutralization of w

clearly required in order to gain military, psychological and tactical adv

Despite the obvious factors pointing to this case as being a classical “m

jective” by all criteria of international humanitarian law, and despite the 

doubt that might place it within the “grey area” set out in paragraph 3 of 

of Additional Protocol I,15 the legal and moral dilemma facing the IDF w

indeed to treat it as such, or whether, in light of its overall denomination 

gee camp and the protected status to which such camps are entitled, neve

grant it immunity as a civilian object.

The Action

In reaching the decision to enter the camp, consideration was given to th

most of the civilian population had been sent out of the camp and virtu

maining persons were presumed to be terrorists (about 200). The extent 

tification of the camp as ascertained through intelligence and aerial pho

subsequently became evident from a series of statements made by the P

terrorists who fought in the camp:

• “The fighting forces, from all the factions in the camp, have been 

with explosive belts and grenades.”16

• “Our fighters are blowing themselves up in front of the soldiers an

explosive devices on the roads.”17

• “We had more than 50 houses booby-trapped around the camp. 

old and empty buildings and the houses of men who were wanted 

because we knew the soldiers would search for them. . . .” “We cut off 

main water pipes and packed them with explosives and nails. Then 

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them about four meters apart throughout the houses

in cupboards, un

and in sofas. . . .” “They were lured there. We all stopped shooting and t

went out to tell the soldiers that we had run out of bullets and were lea

women alerted the fighters as the soldiers reached the booby-trapped a

However, due to the cramped nature of the building, the narrow an

streets and the possibility that some refugees remained, or were neverth

held as hostages or human shields within the camp, a tactical decision 

not to use artillery, tank or aerial targeting, with their concomitant pote

discriminate or collateral damage to civilian life and property, but rath

ground forces into the camp and to move from house to house with a vie

ing offensive action strictly to armed terrorists and to military objective

During the action, IDF forces suffered heavy casualties as a result of t

trapped buildings and suicide bombers who exploded themselves within 

to buildings that collapsed on to the soldiers. 23 soldiers were killed 

house). This required introduction of heavier equipment to enable acq

control by widening the narrow routes for heavier military equipment. 

of the action, a total of 59 terrorists had been killed in the entire action

whom were discovered together with their weapons.

International Reaction

In the immediate aftermath of the action, Israel and its forces were wide

of carrying out a “massacre” and of killing hundreds of innocent civilia

United Nations officials came out with televised statements describing 

tion in such terms as “horrific” and “morally repugnant.”19 The Unite

Human Rights Commission, Amnesty International, Human Rights W

others determined that Israel had committed war crimes.20

Pursuant to consultations between the Israeli leadership and the US 

tration, Israel agreed to the sending of a team composed of US military ex

der United Nations auspices, to ascertain the situation on the ground a

the terrorist infrastructure prevalent in the camp and the terrorist activit

dered the camp a military target. The Secretary-General of United Nation

the United Nations Security Council, converted this into a fully-fledge

tional fact-finding commission21 with the substantive components of a

tional tribunal (headed by the ex-President of Finland who had previousl

an Under–Secretary-General of the United Nations, ex-President of the In

Committee of the Red Cross, ex-United Nations High Commissioner fo

and a US retired general, with legal, political and technical staff and advise

extended mandate to interview witnesses and officers, to attribute bla

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responsibility, and to extend the commission to cover other areas of the Wes

ritory, rather than the initial intention to analyze the Jenin situation.

The Government of Israel objected to the extended format of the Fa

Commission. The team was subsequently disbanded by the Secretary-Gen

cially after it became publicly and internationally evident that no massacr

perpetrated; that those killed were terrorists; and that the camp had becom

object to all intents and purposes. The Secretary-General subsequently issu

acknowledging the misuse by the Palestinian terrorists of the civilian infras

the camp and affirming the fact that only 59 Palestinians had been killed, 

rejecting the claim by Palestinian leaders and echoed by several senior Unit

and other international personalities that 300–500 had been massacred.22

IDF Operation in Bethlehem—the Church of the Nativity (2 April–8 M

Scenario

The Church of the Nativity is one of the major holy sites for all of C

(Catholics, Greek Orthodox, Armenians and others). It is the site at whi

tivity scene, as described in the New Testament, took place. It is the site 

nual pilgrimage by all the various Christian sects and general public to B

to conduct the Christmas Eve midnight mass. It contains a complex of ch

altars serving the various Christian sects.23

The Abuse

On April 2, 2002, some 220 armed Palestinian terrorists belonging to th

Palestinian Islamic Jihad, Popular Front for the Liberation of Palestine 

Aksa Martyrs group, entered the main church areas with weapons and 

tion, barricaded themselves inside the Church, used the roofs and ba

shooting positions, held priests, monks, religious officials serving in the 

well as ordinary citizens who happened to be there, as hostages and hum

and abused holy artifacts (chalices, baptismal fonts, altars, carpets, tape

The Moral, Military and Legal Dilemma

Clearly this was not merely a simple combat situation of the use of a mu

local holy site for shielding hostile action, or the occupation by enemy 

neighborhood church or mosque (which in itself is no less a violation of 

armed conflict). This situation centered within one of the world’s major 

revered by over one billion Christians throughout the world, from as fa

Italy, Spain, Greece, Russia, Germany, Scandinavia, Central and South 

the Philippines, South Korea, Ireland, and Africa. The Holy See immedia

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stern warnings to Israel to ensure the integrity and holiness of the site.

any admonishment was passed on to the Palestinian authorities for en

and supporting the terrorist overrunning of the site, is unknown.

The moral and tactical dilemma faced by the IDF and the Israeli go

was clear. Both Article 4 of the 1954 Hague Convention for the Protecti

tural Property in the Event of an Armed Conflict,26 as well as Article 5

tional Protocol I to the Geneva Conventions,27 regarding the protection 

objects and places of worship, prohibit acts of hostility against the histo

ments, works of art or places of worship which constitute the cultural o

heritage of peoples, and prohibit the use of such objects in support of th

effort and as objects of reprisals. While indeed the immunity of the site, a

worship, had been clearly prejudiced and abused, and technically and 

circumstances (including the intense publicity worldwide and concom

chological warfare) were such that there existed an imperative element 

necessity as a criterion for active intervention against those who had oc

Church, in order to bring the stand-off to an end, could Israel, the Jewis

all countries, nevertheless afford to bring upon itself the ire of all of Ch

by responding to this provocation and undertaking any military action 

prejudice the status of or damage the Church?

Action by the Israeli Army

Apart from responding to sniper fire emanating from the terrorists using t

as cover (sometimes leading to casualties), and pressuring the terrorists th

withholding of supplies, the matter was handled by negotiation betwe

comprising a special negotiating unit, and a group of priests held hostage 

Church who negotiated—principally by cell phone—on behalf of the ter

Ultimately, after twenty five days, an agreement was negotiated, with 

from such foreign actors as the Italian government and the Vatican, wh

majority of those occupying the Church were able to leave for their home

cinity of Bethlehem, while twenty six were transferred to Gaza and thirte

men were deported to a number of European countries that underto

them in restrictive conditions.

Additional Examples of Abuse

While the case studies analyzed above clearly exemplify on a large scale 

operandi of terror organizations in utilizing and abusing accepted civil an

itarian norms and institutions, other less grandiose, but no less serious ex

such abuses abound on a daily basis, all of which involve some manner 

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shielding and perfidy in violation of, and abuse by, the terrorists of centr

nents of international humanitarian law norms and instruments. The u

ian ambulances for carrying arms and terrorists under recognized hum

emblems; the use of mosques, churches and schools as storage space for we

explosives; travel by wanted terrorists in vehicles accompanied by children a

location of offices and headquarters in dense residential areas; and the use o

vehicles to approach and attack roadblocks are illustrative examples.

The techniques developed for rendering the weapons of terrorism m

cynically and blatantly utilize normal civilian objects in order to enhance 

of the damage caused by a suicide bomber. For instance, sharpened meta

rusty screws and ball bearings are added to the “concoction” of explosive 

and placed into the suicide belts in order to increase the damage to inter

and to increase infection, germ impregnation and other such inventive an

means—all clearly in violation of basic humanitarian principles.

Legal Dilemma

The irony of the situation is that despite the fact that the accepted ration

terms as “combatant,” “legitimate target,” “defended locality” and 

shield,” as well as the situation of “military necessity,” have become blu

context of a war on terror, the international community is still geared to 

anachronistic conceptions of armed conflict between States, and pr

judge those fighting terror by such criteria and standards. Hence, in som

action in international fora to actions by Israel and the United States 

others) takes a more critical view of the actions taken against the terror

overlooking the terrorist acts that have themselves given rise to the ne

sponse. This dilemma is compounded by a situation in the various int

political fora in which automatic majority resolutions are adopted co

those that fight terror while unwittingly (or deliberately) giving encoura

those supporting and perpetrating the terror, instilling them with the c

that their actions are indeed achieving their intended political ends.

Conclusion

Clearly, the international community must come to terms with the ex

modern-day terror and the need to deal with it both militarily and legally

requires addressing the motivation driving terror—especially the religio

tional and social element inherent in the vast rate of incitement feeding t

the youngest of ages. This might require some reevaluation of human right

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in the context of dealing with terrorist infrastructures. It also requires add

capability of terrorists to act, including dealing with those States and organiz

finance, support, encourage, and glorify terror, and thereby grant the ter

green light to continue with their activities.

Here the international community in its most developed and organized 

United Nations and its related organs, as well as the major human rights an

tional humanitarian law bodies—political, social, as well as legal—must 

the way in which they address the problem. Rather than systematically crit

that fight terror through allowing a parliamentary majority to dictate resol

are viewed as encouraging terrorism, this community must tackle that as

problem and not allow itself to be abused and utilized for furthering terror

Both from the case studies and situations examined in this article, it i

the international community is presently experiencing a period of acu

and evolution in what has up to now been accepted morality and b

armed conflict and warfare. The enemy is different—in nature, definitio

phy, modus operandi, and in terms of morality and responsibility.

In order to be capable of dealing with international terror, and over

the civilized world is going to have to adapt legal concepts and modes o

to the exigencies and challenges that modern-day terrorism poses.

Tragically,—so far—this is being achieved by a system of default an

error. Sometimes it works and lives are spared. Sometimes it does not. P

the trial and error is taking on the character of a new mode of internation

that is obliging the international community to adjust itself accordin

consider reviewing the old rules with a view to their possible rejuvenati

of today’s terrorism. The question remains if the international commun

ble and prepared to take up the challenge.

Time—and terror—will tell.

Notes

1. Ambassador Alan Baker is Legal Adviser to the Israel Ministry of Foreign Affair

expressed in this article are solely those of the author.

2. See the statement by President George W. Bush to the United Nations General Ass

10, 2001, available at http://www.whitehouse.gov/news/releases/2001/11/print/20011

3. Convention (IV) Respecting the Laws and Customs of War on Land an

Regulations, The Hague, Oct. 18, 1907, reprinted in DOCUMENTS ON THE LAWS 

(Adam Roberts & Richard Guelff eds., 3d ed. 2000).

4. Convention for the Amelioration of the Condition of the Wounded and Sick in A

in the Field, Geneva, Aug. 12 1949, 75 U.N.T.S. 31, reprinted in id. at 197; Conven

Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Arm

Sea, Geneva, Aug. 12, 1949, 75 U.N.T.S. 85, reprinted in id. at 222; Convention Re

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gp

Convention Relative to the Protection of Civilians Persons in Time of War, Gene

1949, 75 U.N.T.S. 287, reprinted in id. at 301.

5. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (hereinafter Additional 

Geneva, June 8, 1977, 1125 U.N.T.S. 3, reprinted in id. at 422; Protocol Additiona

Geneva Conventions of 12 August 1949, and Relating to the Protection of Victi

International Armed Conflicts (hereinafter Additional Protocol II), Geneva, June 8

U.N.T.S. 609, reprinted in id. at 483.

6. Convention for the Protection of Cultural Property in the Event of Armed C

Hague, May 14, 1954, 249 U.N.T.S. 240, reprinted in id. at 373; Second Protocol to 

Convention of 1954 for the Protection of Cultural Property in the Event of Armed C

Hague, Mar. 26, 1999, reprinted in id. at 700.

7. Convention on Prohibitions or Restrictions on the Use of Certain Convention

Which May be Deemed to be Excessively Injurious or to Have Indiscriminate 

Protocols I–III thereto, Geneva, Oct. 10, 1980, reprinted in id. at 520 and Protocol 

1995, reprinted in id. at 535.

8. Convention on the Prohibition of Development, Production and Sto

Bacteriological (Biological) and Toxin Weapons and on Their Destruction, London

Washington, Apr. 10, 1972, 1015 U.N.T.S. 164.

9. See United Nations General Assembly Resolution 302(IV), Dec. 8, 1949, on Assis

Palestinian Refugees, and subsequent annual resolutions adopted by the United Nati

Assembly renewing and extending the functions and mandate of UNRWA.

10. United Nations Doc. A/52/871, Apr. 1998. See also United Nations Secur

Resolutions 1208 (1988) and 1296 (2000) emphasizing the importance of safeguard

and humanitarian nature of refugee camps, prohibiting the arming of refugee 

“situations where refugees and internally displaced persons are... vulnerable to in

armed elements and where such situations may constitute a threat to internationa

security.”

11. 1995 Israeli-Palestinian Interim Agreement and related documentation.

12. See for instance BBC report by correspondent Barbara Plett, August 7, 2002: “I

blues and yellows, in murals and sweeping Arabic script, the graffiti celebrates suici

as heroes, along with other Palestinian fighters. Their attacks are called martyrdom o

Available at http://news.bbc.co.uk/2/hi/middle-east/2179609.stm.

13. See Mohammed Dajani, Palestinian Coverage of Jenin, PALESTINE ISRAEL JOURN

No. 2, June 2003.

14. Article 52(2) of Additional Protocol I, supra note 5, to the 1949 Geneva C

requiring the distinction between civil and military objectives, and limiting attack

objectives, described as “those objects which by their nature, location, purpose or u

effective contribution to military action and whose total or partial destruction, 

neutralization, in the circumstances ruling at the time, offers a definite military 

Neither Israel nor the United States are party to this Protocol, but several of its centra

widely viewed as representing customary international law.

15. Id.

16. See AL SHARK AL AWSAT (London), Apr. 9, 2002.

17. See AL-HAYAT (London), Apr. 9, 2002.

18. See AL-AHRAM (Cairo), Apr. 19–24, 2002, statements by the main bomb-maker 

of Jenin. See also additional statements by Palestinian terrorists, quoted in Anato

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p

June, 2002.

19. UNRWA press release, Jerusalem/08/2002; available at http://cnn.worldne

.clickability.com; BBC, http://news.bbc.co.uk./2/hi.middle-east/1937387.stm. See als

press release of April 12, 2002 regarding the statement by the Special Rapporteur on E

Summary or Arbitrary Executions, Ms. Asma Jahangir, as well as the report of Un

Commissioner on Human Rights, Mary Robinson to the 58th Session of the Com

Human Rights, Apr. 15, 2002.

20. Physicians for Human Rights press release Apr. 30, 2002; Amnesty Internationa

the Occupied Territories Shielded from Scrutiny: IDF Violations in Jenin and Nabl

at http://web.amnesty.org/library/Index/engMDE151432002; Human Rights Watch

Military Operations, available at http://hrw.org/reports/2002/israel3.

21. United Nations Security Council Resolution 1405 (2002), dated Apr. 19, 2002.

22. See A/ES-10/186 dated July 30, 2002 at paragraph 56. This report include

description of the extent of Palestinian fortifications in the refugee camp (paragra

and a description of the battle within the built-up area of the camp (paragraphs 50–

23. For a detailed description of the history and structure of the Church of the N

Qustandi Shomali, Church of the Nativity, available at www.unesco.org/arc

shomali.pdf.

24. See ABC, CBC, and BBC reporting, May 1–10, 2002.

25. On April 8, 2002, Vatican spokesman Joaquin Navarro-Valls issued a stern warn

to respect religious sites and stated that the Holy See was following the events wi

apprehension.”

26. Supra note 6.

27. Supra note 5.

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XVI

International Humanitarian Law:

Should It Be Reaffirmed,

Clarified or Developed?

Jean-Philippe Lavoyer1

Introduction

The aim of this paper is to give an overview of some concrete probl

plication of international humanitarian law (IHL) and then to loo

possible future remedies. This will be done from the practice oriented, o

perspective of the International Committee of the Red Cross (ICRC).

The ICRC is mandated by States, in particular through the 1949 Ge

ventions and their 1977 Additional Protocols, as well as the Statutes of th

tional Red Cross and Red Crescent Movement, to act as promoter and “

of IHL. This role has many facets. It ranges from the promotion of IHL tr

monitoring of respect of IHL by the parties to armed conflicts, the dissem

IHL, to preparing developments of IHL.2

For the ICRC, an institution present in almost all the “hot spots” of the 

main challenge is without any doubt the proper application of IHL in tod

conflicts. Extensive research into recent armed conflicts has led the ICRC t

that, on the whole, the existing rules are adequate enough to deal with tod

conflicts. While the main problem is therefore not a lack of rules, this does 

that the law is perfect. Like any law, IHL is the result of careful and difficu

mises, in this case between considerations of humanity, military necessity an

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to protect the security of the State. It must be stressed that the ICRC

s con

the adequacy of IHL does not mean that it would in any way ignore the m

lenges with regards to the application of the law, including those relating t

against terrorism, nor the need for IHL to evolve together with the realities 

Especially following the attacks of September 11, 2001, questions 

raised about whether IHL was still adequate to respond to today’s challe

debate has taken various forms. At the beginning of 2003, the Swiss Go

and the Harvard Program on Humanitarian Policy and Conflict Rese

nized an informal expert meeting on contemporary challenges of IHL f

of States and independent experts, as well as the United Nations and 

The experts identified a number of topics deserving further examin

clarification. But at the same time they also strongly reaffirmed the 

current humanitarian law and the necessity to apply it.3 A second me

held in June 2004.4

The ICRC for its part has taken a number of initiatives that will be m

later in this paper, with a view to reaffirm, clarify or develop IHL.

The first part of this paper will highlight some of the current challen

address two aspects: first, some important general obligations under IHL 

called, and second, some special challenges linked to the “war on terro

briefly discussed.

Challenges Of A General Nature

The more general challenges facing IHL can be subdivided very roughly 

to the following timeline: obligations in peacetime, obligations during a

flict and obligations after the armed conflict. Even if these different pha

ten overlap, these distinctions provide a useful analytical framework.

Before addressing some concrete obligations, a word should be said 

importance for States to widely ratify IHL treaties. Indeed, broad rati

IHL treaties confirms the validity of the rule and, therefore, contributes t

ing compliance. A look at the list of the State parties to the main IHL trea

that there is still a great effort to be undertaken to promote these treaties 

obtain—ideally—universal adherence.5

Obligations in Peacetime

Many States have still not fully incorporated IHL treaties into their dome

is not sufficient to ratify a treaty; it must also be implemented, i.e., integra

national level. One particularly important area is the adoption of domest

makes it possible to prosecute grave breaches and other serious violatio

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based on the principle of universal jurisdiction. There is also a need to a

protect, inter alia, the red cross and red crescent emblems.

The ICRC’s Advisory Service on International Humanitarian Law, cr

suant to a proposal by the 26th International Conference of the Red Cro

Crescent in 1995, promotes national implementation and gives technica

States through its legal advisers based in Geneva and in several field del

Practice in the last few years has shown that “National Committees on 

a very successful tool for the promotion of IHL generally, and for natio

mentation measures in particular. There are at present more than 70 s

ministerial committees.

In order to assist States, the ICRC has put many examples of national 

on its website.6 In addition, it has recently set up an electronic forum o

tional committees on IHL. Its aim is to facilitate contacts between nati

mittees and between them and the ICRC. This forum will also al

committees to engage in an interactive debate.

Another important obligation even in peacetime is the dissemination 

ing of IHL, especially to the armed forces. It should be acknowledged tha

years, States have undertaken increasing efforts in this respect. At the sam

also obvious that much more needs to be done. It is indeed crucial that the 

and rules of IHL are fully incorporated into military courses and training

Obligations during Armed Conflict

If we look at the different phases—obligations in peacetime, during arm

and after the conflict is over—it is clearly respect of IHL during arme

that is the most important challenge. It is on this phase that States shoul

trate their efforts, whether or not they are involved in an armed conflic

In this regard, special attention should be drawn to the obligation not 

spect, but also to “ensure respect” for IHL, as stated in Article 1 comm

1949 Geneva Conventions and Article 1 of 1977 Additional Protocol I.7 

reference should be made to Article 89 of Additional Protocol I.8

However, the notion of “ensuring respect” is vague and its substanti

difficult to grasp. This notion definitely needs to be clarified. This issue 

dressed in more detail in the second part of this paper.

How to apply the law in internal armed conflicts is likely to remain a m

lenge in the future, especially in situations where the conflict is exacerbat

gious and ethnic components. Furthermore, particular challenges for 

IHL are situations where State structures have disintegrated, where chain

mand are disrupted, where there is a general breakdown of law and 

where law in general has ceased to be a relevant reference.

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In the recent past, a new challenge has emerged, a challenge refe

“asymmetric warfare,” i.e., situations where due to the availability of hig

ogy weapons in the hands of one of the parties to an armed conflict, ther

imbalance between the belligerents. This situation tends to force the adv

is overwhelmed by the other party to the conflict to use means and metho

fare that are prohibited under IHL. The implications of this challenge m

fully examined, but it is likely that in future military operations, this im

power will tend to increase.

Finally, it has to be recognized that all too often, violations of IHL are 

a lack of knowledge of IHL, but rather to lack of political will to apply tha

difficult challenge ahead of us will be how to generate political will amon

ties to armed conflicts.

Obligations after the Armed Conflict

The prosecution of those suspected to have committed grave breaches of 

sential. It is regrettable that States have only rarely applied the principle 

sal jurisdiction, although it was established through the Geneva Conv

1949.9 In the last ten years, important developments have taken place at 

national level, with the creation of the ad hoc tribunals for the former Y

and Rwanda, of the mixed tribunals for Sierra Leone and Cambodia, as 

the International Criminal Court.

As already indicated, the prosecution of war crimes at the national lev

to the existence of appropriate domestic legislation.

States have additional obligations once the hostilities are over: prison

must be released and repatriated without delay after the cessation of act

ties.10 Likewise, civilian internees must be released after the close of hos

States shall endeavor to facilitate their repatriation.11

A Special Challenge: The “War on Terror”

The use of force by groups operating transnationally is certainly anothe

lenge. What legal qualification must be given to terrorist acts committed 

national groups on the one hand—and to counter-terrorist activities on 

hand? Regrettably, this debate has led to some confusion and uncerta

IHL. This body of law has been criticized for not being adequate to dea

“war on terror.” It has to be acknowledged that violent activities by tra

groups raise many difficult challenges—including in the legal field.

It has been asserted that terrorist attacks—including the attacks of S

11, 2001—as well as counter-terrorist activities were part of a glob

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conflict

in the legal sense, an armed conflict that started years ago an

continue until the end of terrorist activities. Such a conclusion would ha

erable consequences in practice, especially if it is used to justify that St

theoretically strike the transnational group at any time and everywhere

having to obtain any kind of approval, e.g., from those States on whose 

the military interventions take place.

This debate has shown that there is all too often confusion between j

and jus ad bellum. This confusion is extremely regrettable, as jus in bello 

tional humanitarian law) has to be separated from the question of the jus 

(use of force). The latter is not regulated by IHL, but by the United Nati

ter. It therefore becomes problematic if the notion of armed conflict—

IHL notion—is employed to justify the use of force. This justification, 

brushing aside the traditional law enforcement paradigm, is a risky un

that could adversely affect international relations.

The ICRC has done considerable legal research into the question of w

“war against terror” should be considered in toto as an armed conflict in 

of IHL. For the time being, and based on its long practice of IHL throu

world, it feels uncomfortable with the notion that the different attacks 

tions thereto are part of a worldwide armed conflict. The “war on terror

fit well into the existing categories of armed conflict.

First, in the ICRC’s view, terrorist and counter-terrorist activities 

viewed as an international armed conflict. Such a conflict can occur onl

States.12 Second, could the “war on terror” be a non-international armed 

This would raise a number of questions—when and where does the co

place? Who are the parties to the conflict? What is the beginning and w

end of such conflict? In the view of the ICRC, no satisfactory answers h

been given to these and other questions.

One fundamental requirement of IHL should be recalled here: during 

conflict, all the parties to the conflict have the same rights and obligation

ify the “war on terror” as an armed conflict would give legitimacy to th

tional groups as a party to the armed conflict, with rights and obligation

that is probably not intended by States. So far in the debate on the “war o

those advocating that it represents an armed conflict have indeed given th

sion that this balance no longer exists.

The “war on terror” can very well take the form of an armed conflict in 

tional IHL sense. The military operations that started in Afghanistan on 

2001 were clearly an international armed conflict, and generally unders

causally related to terrorism. Likewise, no one questioned the qualification o

recent military campaign in Iraq as an international armed conflict, al

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relationship to terrorism and counter

terrorism has been controversial. In 

time, the armed conflicts both in Afghanistan and Iraq became non-inter

character after the establishment of national authorities.

Terrorism is a complex issue that must be faced with a variety of tools, 

on the results to be achieved. Experience has shown that armed conflict—a

are usually not the best tool to fight terrorism, since force as such will ofte

to the most adequate solution to the problem. Among the more effective to

ternational cooperation between States, e.g., sharing of intelligence, polic

cial cooperation, domestic law enforcement, financial investigations and 

assets belonging to terrorist groups, and improved control of arms trade 

proliferation of weapons of mass destruction. Finally, it has to be said tha

is unlikely to disappear if its root causes are not properly addressed.

Terrorist acts are foremost crimes that a series of international co

have criminalized. The further development of international law in this 

be an important contribution to the fight against terrorism.

This question of legal qualification has, of course, implications on th

tus of those captured during the fight against terrorism. This issue will be 

only very briefly here.

First, there is a presumption of prisoners of war (POW) status for co

captured on the battlefield in an international armed conflict.14 If there 

about that status, competent tribunals as foreseen in the Third Geneva C

should come into action.15 To make a blanket determination and to 

from the start all captured combatants from POW status raises serious 

Rather, a case-by-case examination must take place if there is a doubt 

person is a POW or not. Therefore, it would be logical to have given POW 

all combatants captured by coalition forces in the war in Afghanistan,16 

cided otherwise by competent tribunals.

Such tribunals may have had good reason to recognize POW status for 

of the Taliban armed forces, but the situation may be different for mem

Qaeda, even though one would have to take into account the factual s

what was the exact relationship between al Qaeda and the Taliban? Co

members of al Qaeda be attributed to the Taliban armed forces?17

The extent of legal protection to which “unlawful combatants” are en

become an important issue. For the ICRC, IHL provides a comprehe

tection—a person is protected either by the Third Geneva Convention 

Fourth Geneva Convention. And in addition to IHL, international hum

law and domestic law also provide protection to all those detained. The

gal vacuum.

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If an 

unlawful combatantor better, unprivileged belligerent

ered by the Fourth Geneva Convention (e.g., because of his or her nati

there exist additional safeguards, which are common Article 3 to the Ge

ventions and Article 75 of Additional Protocol I,19 which is regarded as 

customary law, including by the United States.

One further challenge of the “war on terror” is the question of how 

lawful combatants” may be detained. As already indicated above, both 

and the Fourth Geneva Conventions contain specific rules about relea

patriation. To detain persons that are protected under IHL not just un

of hostilities with Afghanistan or with other countries, but until the 

“war on terror” (that could easily be many years ahead of us) would 

raise serious difficulties.

To come back to the more general question of how to qualify the “w

ror,” it is suggested that IHL applies to terrorism and counter-terrorism 

level of force used amounts to an armed conflict. This approach limits th

IHL to those situations it has been intended to regulate. Acts of terroris

responses thereto must therefore be qualified on a case-by-case basis.

IHL is well equipped vis-à-vis terrorist activities committed in the con

armed conflict. It prohibits all acts commonly considered as “terrorist.” 

ample, both Additional Protocols of 1977 prohibit “acts or threats of vi

primary purpose of which is to spread terror among the civilian populati

also prohibits attacks against the civilian population, be they direct or i

nate.21 It protects goods that are indispensable to the survival of the civi

lation (like food, agricultural areas, livestock, drinking water ins

irrigation works), cultural objects and places of worship, works and in

containing dangerous forces, as well as the natural environment.22 The 

hostages is prohibited.23 Furthermore, persons that find themselves in th

the enemy enjoy special protection.24

If an attack is carried out by a civilian—who thus becomes an “unla

batant”—that person loses his/her protected status as a civilian during t

the “direct participation” in the hostilities and becomes a legitimate milit

Also, civilians having participated directly in the hostilities can be pu

having done so. IHL is by no means an obstacle to justice, as some com

have asserted. In fact, quite the opposite is the case.

These are difficult questions, and there is no doubt that more work 

done on the different facets of the “war on terror.” The dialogue must co

the meantime, it is extremely important that persons suspected of havin

ted terrorist acts are not denied individual basic rights and due process 

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Any development of IHL at present or in the future should build o

standards and should not undermine a solid body of law that has taken m

century to develop.

Having said this, it would seem that the solution to the legal questio

the “war on terror” has to be looked for not so much within IHL, but ra

jus ad bellum, as it appears that the fundamental problem is about the r

force. To change the rules in that field would, however, necessitate an am

of the UN Charter.

The Future of International Humanitarian Law

The second part of this paper deals with challenges in three very spe

which parts of IHL need to be either reaffirmed, clarified or developed? 

supposed to be an exhaustive enumeration, but rather, a suggestion of 

that could provide a useful basis for discussion.

The Need for Reaffirmation of IHL

Generally speaking, existing IHL needs to be vigorously reaffirmed. As a

dicated, IHL is not perfect, but its rules represent a careful balance betw

tary imperatives and considerations of humanity. It is of utmost imp

reaffirm in particular the obligations referred to earlier. However, reaffi

also urgent in some more specific fields that will be enumerated below.

In the ICRC’s opinion, it is for example important to strongly re

prohibition of use of poisons or infectious disease in armed conflict. 

cern is based on the fact that important and rapid advances are taking p

sciences and in particular in the field of biotechnology. These advances 

fit humanity in several ways, like the production of new vaccines, of new 

diseases or for increasing food production. But at the same time, there 

ing risk that the same advances could be used for hostile purposes, to 

deliberately spread disease. These concerns have increased following t

of September 11, 2001 and also by the failure of States to strengthen the 

logical Weapons Convention through the adoption of a compliance m

mechanism. The implication of the misuse of biotechnology could be d

for humanity.

In response to its grave concerns about the capacity of misuse of new 

in biotechnology and the lack of effective controls at an internationa

ICRC launched an Appeal called “Biotechnology, Weapons and Huma

launch took place in Montreux, Switzerland on September 23, 2002, 

with an informal meeting of government and independent experts.25 Th

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addressed to the political and military authorities, to the scientific an

communities, and to the biotechnology and pharmaceutical industries.

The Appeal focuses on the risks, rules and responsibilities in relat

vances in biotechnology being used for poisoning or deliberate spread of 

describes the risks by giving concrete examples, calls for the reaffirmati

mentation and reinforcement of the 1925 Geneva Protocol and the 1972 

Weapons Convention, and calls on governments, the military, the scie

medical communities as well as the pharmaceutical and biotechnologi

tries to ensure that advances in biotechnology are not diverted for use a

or for other hostile purposes.

In addition, the Appeal calls for a high-level political declaration, to b

at a ministerial level. In January 2004 the ICRC hosted a meeting with St

beginning a process to explore how the international community could a

a declaration. At the same time the ICRC has started to reach out to the 

groups, i.e., medical researchers, academic scientists, scientists working 

tries, defense scientists, etc.

Another issue that in the view of the ICRC needs to be reaffirmed is t

tion of cultural property in situations of armed conflict. It is important 

become party to the relevant instruments, in particular the 1954 Conve

its 1999 Protocol, which further develops the Convention. Recent con

shown that the protection of cultural property is crucial in the sense th

attacking cultural property, the attacker destroys the very heart of a civi

Concerning the need to reaffirm the validity of IHL, the 28th Interna

Cross and Red Crescent Conference that took place in Geneva from Dece

2003 was an important opportunity. The International Conference is a 

rum to discuss humanitarian issues. It meets every four years. The partic

the States party to the Geneva Conventions, the National Red Cross or 

cent Societies, their International Federation and the ICRC.26 This m

tween States and non-State entities is certainly one of the noteworthy 

the International Conference.

The International Conference adopts resolutions that are as such n

binding. They are nevertheless important documents that are often cite

example are the Statutes of the International Red Cross and Red Cresc

ment that describe the tasks of the components of the Movement. T

adopted by consensus and have therefore become a very authoritative 

IHL is always high on the agenda of the International Conference.

The overall theme of the last International Conference was “Protectin

Dignity.” It was attended by more than 1,700 delegates from 153 State

National Red Cross or Red Crescent Societies, by the International Fede

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the ICRC. There were also 64 observers. Never before had their particip

so important.

The Conference opened with a welcoming ceremony, followed by plen

ings and meetings in commissions. In parallel, the Drafting Committee m

end of every day, workshops took place that were not part of the officia

but that allowed informal discussions. The participants also had the po

make individual or collective pledges. More than 360 such pledges were m

reinforcing the impact of the International Conference.

The 27th International Conference in 1999 had adopted a Plan of Act

Years 2000 to 2003. This time, the Conference adopted two important d

a Declaration highlighting the continued relevance of IHL and an Agend

manitarian Action.27

The Declaration with the title “Protecting Human Dignity” is a short 

and a half pages. It reaffirms forcefully what “protecting human dignity

means. This makes this document so important. The Declaration conta

reaffirmation of States’ obligation to respect and ensure respect for hum

law. It calls upon the parties to an armed conflict to make all efforts to re

dental, and prevent deliberate injury, death and suffering of civilian po

The need to protect women and children is highlighted.

The Declaration recalls that IHL is applicable to all situations of arm

and foreign occupation. It vigorously condemns all acts or threats o

aimed at spreading terror among the civilian population. Furthermore

that all detainees must be treated with humanity and that all persons 

have committed crimes must be granted due process of law and fair trial

laration also firmly states that humanitarian workers must be respected 

tected in all circumstances. Their independence from political and mili

must be reaffirmed.

Finally, the Declaration commits the participants to reduce the risks 

of disasters on vulnerable populations, as well as to reduce their vulne

disease due to stigma and discrimination, particularly that faced by pe

with and affected by HIV/AIDS.

Whereas the Declaration is held in a rather general way, the Agenda fo

itarian Action is very focused and deals with concrete issues. It comprise

duction, 4 General Objectives, 15 Final Goals and 64 Proposed Actio

paper, only highlights of some aspects of IHL will be provided.

The first two General Objectives deal with humanitarian law: the first is a

ing persons, whereas the second deals with weapons.

The title of the first General Objective is “Respect and restore the dign

sons as a result of armed conflicts or other situations of armed violence a

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families.

This objective is based on the observations and recommendat

international conference that the ICRC had organized in Geneva in Febr

The Agenda for Humanitarian Action covers a broad range of activitie

missing persons, starting with the prevention of persons becoming mi

Agenda then recalls that Article 32 of Additional Protocol I of 1977 re

right of families to know the fate of their relatives.

In addition, the following topics are covered by the Agenda: the mana

information and process files on missing persons; the management of h

mains and information about the dead; the support of families of missin

and an encouragement of organized armed groups to resolve the proble

ing persons, assist their families and prevent persons from becoming m

The title of the second General Objective is “Strengthen the protectio

ians in all situations from the indiscriminate use and effects of weapon

protection of combatants from unnecessary suffering and prohibited 

through controls on weapons development, proliferation and use.” The 

issues are dealt with in this General Objective:

• End the suffering caused by antipersonnel mines. States, in partne

the components of the Movement, will provide assistance for 

rehabilitation, social and economic reintegration of war wounded, 

mine victims, as well as for mine-awareness and clearance programs. 

also pursue the ultimate goal of the eventual global elimination of anti

mines. They are encouraged to consider adhering to the Ottawa Co

States party to the Convention should develop in time for the Fir

Conference that will take place in Nairobi, national programs for 

stockpile destruction, mine awareness and victim assistance consisten

Convention’s deadlines. The Agenda also reaffirms the ICRC’s lead r

implementation of the Movement Strategy on Landmines. National so

partnership with the ICRC and States, will maintain mine action am

priorities and develop their capacity in this regard.

• Minimize suffering from weapons that may be extremely injurio

indiscriminate effects. The Agenda warmly welcomes the adoption 

Protocol on “Explosive Remnants of War” to the 1980 Convention o

Conventional Weapons, and encourages States to consider its ratificati

as possible. States are encouraged to adhere to the 1980 Convention 

extension of the Convention’s scope of application to non-internatio

conflict that occurred in 2001. States are also encouraged to consider m

minimize the risk of explosive ordnance becoming explosive remnants 

to reduce the human costs of mines other than anti-personnel mines. In 

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States will rigorously apply the rules on distinction, proportion

precautions in attack, in order to minimize civilian deaths and injurie

from certain munitions, including sub-munitions.

• Reduce the human suffering resulting from the uncontrolled availa

misuse of weapons. States should take concrete steps to strengthen co

arms and ammunition. In particular, States should urgently enhance 

prevent the uncontrolled availability and misuse of small arms and light 

They should make respect for humanitarian law one of the fundamen

on which arms transfer decisions are assessed. States, with the support o

and national societies, should ensure that armed, police and security for

systematic training in international humanitarian law and human righ

particular concerning the responsible use of weapons.

• Protect humanity from poisoning and the deliberate spread of dise

party to the 1972 Biological Weapons Convention are encouraged to 

their efforts to reduce the threat posed by biological weapons. They are 

work with the ICRC to develop a ministerial-level declaration that wou

efforts within the framework of the 1972 Biological Weapons Conve

preventing the hostile use of biological agents as called for in the ICRC 

Biotechnology, Weapons and Humanity. States are encouraged to 

becoming party to the 1925 Gas Protocol, the 1972 Biological 

Convention and the 1993 Chemical Weapons Convention. They are ca

to monitor closely advances in the field of the life sciences, taking pract

to effectively control biological agents that could be put to hostile u

improve international cooperation.

• Ensure the legality of new weapons under international law. States ar

establish review procedures to determine the legality of new weapons, m

methods of warfare in accordance with Article 36 of Additional Protoco

Reviews should involve a multidisciplinary approach, including milit

environmental and health-related considerations. States are encouraged 

with particular scrutiny all new weapons, means and methods of wa

cause health effects with which medical personnel are unfamiliar.

The titles of the third and fourth General Objectives are “Minimize t

of disasters through implementation of disaster risk reduction measure

proving preparedness and response mechanisms” and “Reduce the incr

nerability to diseases arising from stigma and discrimination and from 

access to comprehensive prevention, care and treatment.”

This Agenda for Humanitarian Action is the continuation of the Plan 

that was adopted by the 27th International Conference in 1999.

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The ICRC submitted to the 28th International Conference a report 

tional Humanitarian Law and the Challenges of Contemporary Armed 

containing its analysis of some major challenges in the field of interna

manitarian law.28 This report provides the ICRC’s analysis on the follow

IHL applicable in international armed conflicts, IHL applicable in no

tional armed conflicts, IHL and the fight against terrorism, and how t

compliance with IHL. Many of the comments made in this paper also 

that report.

The Need for Clarification of IHL

There are a number of domains where there exist rules of great signifi

that are formulated only in a very general way. This can make it difficu

the rule. There may be cases where the law should be further developed in 

to such situations. However, this may often not be the most appropriat

(risk of difficult and lengthy negotiations, uncertainty about the outco

bility that the result undermines existing standards, etc.).

To try to clarify a provision can be more promising, but also raises qu

particular concerning the concrete form a clarification should take. In s

clarification could also lead at a later stage to a normative development

amples will be given here, where attempts for clarification are being ma

The basic concepts underlying the rules concerning the conduct of ho

in particular the rules on targeting—are phrased in a rather general way 

to be therefore difficult to apply. The ICRC does not see a need to chang

which have kept their relevance since they were incorporated into the 1

tional Protocols. However, to clarify the provisions about the definition 

tary objective,” the principle of “proportionality” and the “precautio

taken in an attack would render these rules more operational.29 Such cl

would assist the belligerents in their concrete implementation. It would 

be very useful if a consensus on the interpretation of these notions could 

Particular attention could be given to “high-tech” warfare, as well as a

warfare. The ICRC plans to conduct consultations in order to clarify if i

useful to work on these concepts.

Another example is the notion of “direct participation in hostilities”

discussed at the beginning of June 2003 in The Hague, during a meeting 

ganized by the ICRC and the Asser Institute with the participation of 

IHL experts. This seminar showed the need for clarification of this impo

cept—especially having in mind the debate about “unlawful combatant

and 2005 the ICRC organized two other expert meetings in The Hag

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Geneva with a view to find a shared understanding of 

direct participati

tilities.” A further meeting is planned in Geneva later in 2006.

In addition, at the beginning of 2004, the Harvard Program on Hum

Policy and Conflict Research launched an important initiative on “Air a

Warfare.” Its aim is to clarify and to restate the applicable law and to draf

similar to the San Remo Manual on International Law Applicable to Ar

flicts at Sea, which was adopted in June 1994. A series of expert meetings 

sequently held in Lucerne, Heidelberg, Oslo, and Brussels between 2004 a

The ICRC is also promoting and clarifying mechanisms of IHL im

tion. In 2003, it organized five regional expert meetings on how to imp

pliance with IHL, with the active participation of government repre

academics, National Red Cross and Red Crescent Societies and other 

tions. These meetings took place in Cairo, Pretoria, Kuala Lumpur, M

and Bruges between April and September 2003.31

In particular, the ICRC wanted to make common Article 1 to the Ge

ventions more operational. What does “ensure respect” mean concret

can be expected from States? The regional expert meetings have gener

ideas about how to improve compliance with IHL. During these meetin

ance by organized armed groups was also high on the agenda.

The participants in the regional meetings regretted that existing IH

nisms suffer from a lack of use. The International Fact-Finding Comm

considered to have a very promising potential.32 The participants were

divided on the question of whether new mechanisms should be created

some interesting proposals were made (e.g., periodic reporting, indivi

plaints mechanism, IHL Commission). Participants in all the regiona

commended the ICRC for its work, including its multi-faceted role as 

and “guardian” of IHL. It was even proposed that the role of the ICRC 

strengthened, more particularly in non-international armed conflicts.

Concerning common Article 1, the participants in these regional me

acknowledged that there was an obligation not to encourage a party to a 

violate IHL nor to assist in such violations. It was also recognized that Sta

volved in an armed conflict had a positive obligation to take action—uni

collectively— against parties to an armed conflict that were committing 

This would not entail an obligation to obtain specific results, but rather an 

to take all appropriate measures with a view to ending violations. Concret

of possible measures were discussed, such as diplomatic pressure, public 

tion, renouncing exports of weapons that are or could be used to commit 

of IHL, sanctions, and coercive measures, including lawful reprisals 

retorsion.33 The ICRC has continued to work on compliance mechanism

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emphasis on improving respect for IHL in non

international armed c

should also be noted that at the end of 2005, the European Union adopte

lines on promoting compliance with international humanitarian law,” thu

ing the obligation contained in common Article 1 into practice.

Furthermore, the ICRC organized in September 2003—together with 

national Institute of Humanitarian Law—that year’s San Remo Round 

the theme: “International Humanitarian Law and Other Legal Regimes

in Situations of Violence.” This event has helped to clarify which legal r

plies in a given situation, in particular IHL and human rights law. This q

particularly relevant with regards to terrorist and counter-terrorist activ

In December 2003, the ICRC convened an expert meeting to disc

linked to multinational forces. When does IHL apply to them? Is it the la

national armed conflict or internal armed conflicts? Does the law of occu

ply to them? De jure or de facto?

More generally, the ICRC plans to look into some aspects of the ques

cupation, having in mind, in particular, the recent armed conflicts in A

and Iraq. Besides situations of occupation in the traditional sense, ther

need to develop a more functional approach in order to ensure the comp

protection of persons. The existing rules on occupation are based on effe

trol of a territory and on the premise that the occupying power will adm

territory. However, practice has shown that there can be situations whe

erent exercises control only to a limited extent or where persons are c

territory that is not occupied in the traditional sense.

Future work on clarification of IHL will benefit from the ICRC stu

tomary IHL. The ICRC was asked to conduct this study by the 26th 

tional Red Cross and Red Crescent Conference in 1995. Work was c

by the ICRC’s Legal Division and almost 50 national research teams, s

by a Steering Group. In addition, government and academic expert

reputation have contributed to the study. The study, which has rev

great amount of practice in the area of IHL, will be useful inter al

teaching of IHL, the drafting of military manuals, as well as for inte

and domestic courts.

The study—published in March 2005—will be particularly useful fo

ternational armed conflicts. Maybe the most important result of the st

fact that many rules of the 1977 Additional Protocol I relating to the c

hostilities also apply to internal armed conflicts on a customary law basi

more States not party to certain IHL treaties will be bound by their 

rules. The ICRC intends to update the study as needed. It is hoped that 

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through the clarification and extension of the applicability of IHL rul

timately improve the protection of war victims in the field.

Another issue where some clarification is needed in the ICRC’s view is 

chemical weapons. Both the 1925 Gas Protocol and the 1993 Chemical 

Convention prohibit the use of toxic chemicals, including incapacitati

However, the Chemical Weapons Convention permits the use of chem

for law enforcement. This could lead to the proliferation of incapacitat

for law enforcement and could eventually undermine the existing proh

the use of such agents in warfare. It is therefore important that States 

meaning of the Convention’s law enforcement exemption.

The important role of national and international tribunals in the inte

and clarification of IHL should also be mentioned here.

The Need for Development of IHL

Finally, should IHL be further developed? Should a complete revisi

Geneva Conventions or their Additional Protocols take place, or shou

developed only in certain domains? For its part, the ICRC believes that a 

overhaul of the basic IHL treaties is neither necessary nor realistic. To op

Geneva Conventions could easily mean opening a Pandora’s box, with v

tain results at the end of the day. There would even be a real risk that th

standards could be undermined. In any event, it would seem that the cur

national climate does not allow major normative developments.

However, the ICRC is of the opinion that there is space for developme

tain specific areas of IHL. In that respect, it is useful to review briefly som

ments in the last ten years or so. The record is quite impressive when on

the list of adopted treaties, which are testimony of a very dynamic deve

1993 Chemical Weapons Convention

1995 Prohibition of Blinding Laser Weapons (Protocol 4 to the 1980 C

on Certain Conventional Weapons (CCW))

1996 Amendment to Protocol II to the CCW

1997 Ottawa Convention prohibiting antipersonnel mines

1998 Rome Statute on the International Criminal Court

1999 Protocol on the protection of cultural property

2000 Optional Protocol strengthening the protection of children in arme

2001 Extension of scope of the CCW to non-international armed confl

2003 New protocol to the 1980 Convention on “Explosive Remnant

(Protocol 5).

2005 Protocol on the adoption of an Additional Distinctive Emblem.

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One very good example of successful work in the field of developmen

the question of “explosive remnants of war,” which are a serious conse

modern armed conflict. Explosive remnants of war are the unexploded 

doned ordnance that remain after the end of active hostilities. In Septem

the ICRC launched an initiative to reduce the human suffering cause

weapons at an expert meeting held in Nyon, Switzerland.35 Following d

at the 2001 Review Conference, States party to the Certain Conventiona

Convention agreed to establish a Group of Governmental Experts to n

new instrument on explosive remnants of war.

The negotiations came to a fruitful conclusion when the State parti

vember 28, 2003 adopted—by consensus—a “Protocol on Explosive 

of War.”36 This protocol—Protocol 5 to the CCW—is an importan

ment of IHL. It is the first multilateral agreement to address the generic 

of unexploded or abandoned ordnance. While the existing treaties hav

on specific weapons, Protocol 5 applies to all explosive ordnance not c

earlier instruments.

The new Protocol requires each party to an armed conflict to:

• Clear the explosive remnants of war in territory it controls after 

active hostilities.

• Provide technical, material and financial assistance to facilitate th

of unexploded or abandoned ordnance in areas it does not control resu

its operations. This assistance can be provided directly to the party in 

the territory or through a third party such as the United 

nongovernmental organizations or other institutions.

• Record information on the explosive ordnance employed by 

forces and to share that information with organizations engaged in the 

of explosive remnants of war or conducting programs to warn civili

dangers of these devices.

• Provide warnings to civilians of the dangers in specific areas.

• The protocol also creates future meetings of State parties in wh

with explosive remnants of war predating the entry into force of the pr

seek and receive assistance to help them address the problem.

The obligations to provide technical and material assistance to fac

clearance of explosive remnants of war in territory a party does not cont

record and share information on the explosive ordnance used during 

conflict are of particular importance. Implemented correctly, these oblig

make an important contribution to the rapid removal of explosive re

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war, the establishment of risk education programs and the provision o

to civilians. The adoption of these rules reflects recognition by the int

community that the parties to an armed conflict cannot ignore the post-c

fects of the weapons they use and that they must take measures before, d

after a conflict to reduce the impact on the civilian population.

The new protocol has, of course, several limitations. Qualifica

“where feasible” were necessary if an agreement was to be concluded b

sus. These qualifications are in part compensated by the protocol’s vas

application.

In addition to concluding the new protocol, State parties agreed that th

Governmental Experts would continue its work on anti-vehicle mines a

sub-munitions in 2004. Work on these issues was indeed conducted in the 

years, so far without tangible results.

Concerning cluster bombs and other sub-munitions areas of work 

technical features to prevent these weapons from becoming explosive re

war, as well as proposals to strengthen the regulations on their use in a

flict, such as the ICRC proposal for a prohibition on the use of sub-

against any military objective located in a civilian area. Such a ru

strengthen the restrictions on targeting contained in 1977 Additional Pro

The Group of Governmental Experts met regularly in Geneva du

2005, and 2006. The Review Conference of the CCW will take place at 

2006 and will be an important point in time to assess the whole CCW p

lay the ground for future work.

One area that would certainly need further analysis with a view to po

velopment are the rules that apply in non-international armed confli

rules are quite rudimentary, at least in treaty form. To put it in a provoc

has the time come to have a fresh look at the feasibility of a normativ

ment? Such a development would at last narrow down the difference

the law of international and of non-international armed conflict. Wh

possible in 1977, would it be possible today? Can the study on custo

give some momentum to such an idea? The ICRC for its part has not pl

initiative going into that direction. However, if the general mood were 

to a normative development, the ICRC would be pleased to carry the 

ward, together with governmental and other experts. In the past, the 

actively contributed to the development of IHL by organizing expert 

and submitting draft proposals.

The extension of the scope of application of the CCW to non-int

armed conflicts in 2001 was relatively easy. A few years before that, the R

ute of the International Criminal Court also contributed to narro

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difference in treatment between international and internal armed confl

examples seem to indicate that today’s atmosphere is quite different fro

that prevailed during the diplomatic conference from 1974 to 1977 tha

the 1977 Additional Protocols.

One particular issue that the ICRC has been discussing during its regio

meetings is whether organized armed groups could be given incentives 

IHL.38Could this aspect be included in the discussion of a possible new ins

Speaking about non-international armed conflicts, the issue of missin

should be briefly mentioned. If a new instrument was to be developed o

conflicts, it would be important to include rules related to missing pe

rather rules that could help prevent persons from becoming missing

many of the existing rules apply formally only in international armed c

Finally, how not to mention the adoption, in December 2005, of a 

Protocol additional to the Geneva Conventions creating a new distinctiv

the “Red Crystal?” This emblem will be at the disposal of those States an

societies that have difficulties with the present red cross or red crescent em

The adoption of the additional emblem was the culmination of a lo

that started more than ten years ago. In 2000 a draft protocol was elabo

due to the deterioration of the situation in the Middle East, its adoption 

postponed. The 28th International Conference of the Red Cross and Re

in December 2003 adopted an important resolution on this question, fol

commitment of the International Red Cross and Red Crescent Mov

achieve, with the support of States, a comprehensive and lasting solut

question of the emblem. The resolution also requested the Standing Co

to continue to give high priority to securing, as soon as circumstances 

comprehensive and lasting solution. The Standing Commission set up a 

Group to continue work on the emblem issue.

Early in 2005 Switzerland, as depository of the Geneva Conventions a

Additional Protocols, initiated new consultations. Since they turned out 

tive, Switzerland convened an informal meeting in Geneva on Septemb

13, 2005 and later on sent out invitations for a Diplomatic Conference, w

place in Geneva from December 5 to 8, 2005. The Diplomatic Conferenc

the text of the Third Additional Protocol that had been drafted in 2000

The adoption of the additional emblem was facilitated by the conc

November 28, 2005, of a Memorandum of Understanding signed be

Magen David Adom in Israel and the Palestine Red Crescent Society. Th

randum was signed “in en effort to facilitate the adoption of a Third Prot

tional to the Geneva Conventions of 1949 and to pave the way for the m

of both societies in the Red Cross and Red Crescent Movement.”

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On the same day, the two societies also concluded an operational a

This second agreement aims at enhancing their cooperation when ca

their humanitarian mandate. It should be noted that these two agreem

also signed by the Swiss Minister of Foreign Affairs, as well as by the ICR

ternational Federation of Red Cross and Red Crescent Societies, and th

Commission.

It should be made clear that the additional emblem does not in any w

the existing emblems. Most importantly it does not have any religious

ethnic, cultural, or other connotations. It is also recognizable at a distan

shown during visibility tests conducted by Switzerland. The new Proto

lates that all distinctive emblems shall enjoy the same legal status.

The new emblem does so far not have an official name, but the name “

tal” has been proposed and has received considerable support. This na

be made official in the course of this year. There is no doubt that the addi

blem will promote unity and universality within the International Red 

Red Crescent Movement.

Conclusion

Existing IHL on the whole adequately responds to the challenges of prote

erated by today’s armed conflicts. It represents a careful balance betwee

imperatives and the protection of human dignity. It is therefore import

orously reaffirm the existing principles and rules of IHL, in peacetim

armed conflict and after the armed conflict is over.

However, it is at the same time necessary to work on the clarification 

concepts and provisions in order to make them workable in practice. The

specific domains where it is desirable that the law be developed, as has a

curred in several respects in the past few years. When developing the law

should be taken not to weaken existing standards of protection.

The “war on terror” represents a particularly difficult challenge. Ter

complex issue where IHL can only play a limited role. Other tools like do

enforcement and cooperation between States are usually much better 

reach the desired results. It must be determined which law applies in a g

tion. IHL applies when the fight against terrorism amounts to an armed 

IHL itself clearly prohibits acts of terrorism when committed during 

conflict. Those committing violations of IHL must be punished. “Unla

batants” enjoy the protection of IHL, even though they can be punish

mere participation in the hostilities. Persons in the hands of the adversa

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treated humanely, which includes due process of law, and benefit from t

sally recognized judicial guarantees.

Finally, a clear distinction must be made between jus ad bellum and j

To develop the former—through an amendment of the UN Charter—co

sent an important contribution to the fight against terrorism. This w

avoid invoking IHL to justify the use of force.

Notes

1. Head of the Legal Division, International Committee of the Red Cross, Geneva. This pa

revised since its presentation at the conference to incorporate developments since June 2

slightly revised version of the paper published in 34 Israel Yearbook on Human Rights in 

2. For a detailed description of the role of the ICRC, see Article 5 of the Statutes of the I

Red Cross and Red Crescent Movement, that were adopted in 1986 (and amended in 

States party to the Geneva Conventions and by the ICRC, National Red Cross and R

Societies and their International Federation.

3. The meeting took place in Ashland, Massachusetts from January 27–29, 2003. 

papers and a summary report of the meeting can be found at www.ihlresearch.org.

4. The meeting took place in Cambridge, Massachusetts from June 25–27, 2004. 

report of this meeting is available at id.

5. Number of State parties to the major IHL treaties (as of March 20, 2006): 1

Conventions, 192 States; 1977 Additional Protocol I, 164 States; 1977 Additional Pro

States; 1980 Convention on Certain Conventional Weapons, 100 States; 1954 Conven

protection of cultural property in the event of armed conflict, 114 States; 1972 Biologic

Convention, 152 States; 1993 Chemical Weapons Convention, 178 States; 1

Convention, 150 States; 1998 Rome Statute of the International Criminal Court, 100 

6. Available at http://www.icrc.org/ihl-nat.

7. Common Article 1: “The High Contracting Parties undertake to respect and to en

for the present Convention in all circumstances.” The same language, substituting “th

for “the present Convention,” appears in paragraph 1 of Article 1 of Additional Proto

8. “In situations of serious violations of the Conventions or of this Protocol, the High 

Parties undertake to act, jointly or individually, in co-operation with the United Na

conformity with the United Nations Charter.” Protocol Additional (I) to the Geneva C

of 12 August 1949, and Relating to the Protection of Victims of International Arme

June 8, 1977, art. 89, 1125 U.N.T.S. 3,reprinted in DOCUMENTS ON THE LAWS OFWAR 

Roberts and Richard Guelff eds., 3d ed. 2000) [hereinafter Additional Protocol I].

9. Geneva Convention for the Amelioration of the Condition of the Wounded and Si

Forces in the Field, Aug. 12, 1949, art. 49, 6 U.S.T. 3114, 75 U.N.T.S. 31, reprinted in D

ON THE LAWS OF WAR, supra note 8, at 197 [hereinafter First Geneva Conventio

Convention for the Amelioration of the Condition of the Wounded, Sick and S

Members of the Armed Forces at Sea, Aug. 12, 1949, art. 50, 6 U.S.T. 3217, 75 U

reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 8, at 222 [hereinafter Sec

Convention]; Geneva Convention Relative to the Treatment of Prisoners of War, Au

art. 129, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF 

note 8, at 244 [hereinafter Third Geneva Convention]; and Geneva Convention Re

Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 146, 6 U.S.T. 3516, 

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pp

Geneva Convention].

10. Third Geneva Convention, supra note 9, art. 118.

11. Fourth Geneva Convention, supra note 9, arts. 133 and 134.

12. Article 2 common to the four 1949 Geneva Conventions provides that each conve

apply to all cases of declared war or of any other armed conflict which may arise bet

more of the High Contracting Parties” as well as to “all cases of partial or total occup

territory of a High Contracting Party, even if the said occupation meets with no armed 

13. Article 3 common to the four 1949 Geneva Conventions: “In the case of armed 

of an international character occurring in the territory of one of the High Contrac

each Party to the conflict shall be bound to apply, as a minimum, the following provis

14. See Article 45.1 of 1977 Additional Protocol I: “A person who takes part in ho

falls into the power of an adverse Party shall be presumed to be a prisoner of war, an

shall be protected by the Third Geneva Convention, if he claims the status of prison

if he appears to be entitled to such status, or if the Party on which he depends claim

on his behalf by notification to the detaining Power or to the Protecting Power.”

15. Third Geneva Convention, supra note 9, art. 5.

16. When Article 4.A(1) is read in conjunction with Article 4.A(3), both o

Geneva Convention.

17. According to Article 4 of the Third Geneva Convention, persons entitled to pri

status are “members of the armed forces of a Party to the conflict as well as member

or volunteer corps forming part of such armed forces” (paragraph A(1)), as well as “

other militias and members of other volunteer corps... belonging to a Party to the 

provided that such militias or volunteer corps . . . fulfill the following conditions

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

distinctive sign recognizable at a distance; (c) that of carrying arms openly; 

conducting their operations in accordance with the laws and customs of war” (parag

(Emphasis added.)

18. Fourth Geneva Convention, supra note 9, art. 4, para. 2.

19. Article 75 of 1977 Additional Protocol I contains a detailed list of judicial guar

20. Additional Protocol I, supra note 8, arts. 51.2 and Protocol Additional (II) to 

Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-In

Armed Conflicts, June 8, 1977, art. 13.2, 1125 U.N.T.S. 609, reprinted in DOCUME

LAWS OF WAR, supra note 8, at 483 [hereinafter Additional Protocol II].

21. Additional Protocol I, supra note 8, arts. 48, 51 and 52.

22. Id., arts. 35.3 and 53–56.

23. See Article 3(1)(b) common to the four Geneva Conventions. See also Fou

Convention, supra note 9, art. 34; Additional Protocol II, supra note 20, art. 4.2(c).

24. Prisoners of war are protected by the Third Geneva Convention; civilians, inclu

internees, by the Fourth Geneva Convention. In non-international armed confli

captured for reasons related to the armed conflict also enjoy special protection.

25. See ICRC Summary Report of the informal meeting of government and i

experts held at Montreux, Switzerland on September 23–24, 2002, available at http

.org/Web/eng/siteeng0.nsf/htmlall/5TFGZZ/$File/Montreux_report.pdf.

26. At the time of writing, there were 192 State parties to the 1949 Geneva Conventi

recognized National Red Cross or Red Crescent Societies.

27. These documents can be found at http://www.icrc.org/web/eng/siteeng0.nsf/h

!Open.

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gpg

at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5XRDCC/$File/IHLcontemp_ar

_FINAL_ANG.pdf.

29. Additional Protocol I, supra note 8, arts. 52.2, 51.5 and 57.

30. Id., art. 51.3; Additional Protocol II, supra note 20, art. 13.3.

31. An analysis of these five regional meetings can be found in Annex 3 to 

submitted by the ICRC to the 28th International Red Cross and Red Crescent C

available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5XRDCC/$File/IH

_armedconflicts_FINAL_ANG.pdf.

32. Additional Protocol I, supra note 8, art. 90. The Commission shall be competen

into grave breaches or other serious violations of the Geneva Conventions or 

Protocol I and to facilitate, through its good offices, the restoration of an attitude o

those treaties.

33. For a detailed description of the regional meetings, see note 31 supra.

34. See ICRC report of the Round Table, at http://www.icrc.org/Web/eng/siteeng0

5UBCVX/$File/Interplay_other_regimes_Nov_2003.pdf.

35. SeeICRC Report of the Expert Meeting on Explosive Remnants of War (Sept. 18–1

the ICRC report Cluster Bombs and Landmines in Kosovo: Explosive Remnants of Wa

36. The text of the protocol is available on the ICRC website at http://www.icrc

385ec082b509e76c41256739003e636d/c110d2926d08a892c1256e280056b275?OpenD

37. Additional Protocol I, supra note 8, art. 48 et seq.

38. Under IHL armed groups have the same rights and obligations as the State. How

domestic law members of organized armed groups can be punished for the mere fa

participated in the hostilities, even if they have fully respected their IHL obligation

could include amnesties for the participation in hostilities (but not for violatio

mitigation of punishment, or combatant immunity by analogy with international arm

39. For concrete proposals, see International Conference of Governmental 

Governmental Experts, Conference Acts (Feb 19–21, 2003), available at http://www.i

eng/siteeng0.nsf/htmlall/5M9LDV/$FILE/TheMissing_Conf_03.2003_EN_90.pdf?Op

This international conference was organized by the ICRC.

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XVII

Enforcing the Law

John F. Murphy1

he focus of this panel, as well as that of most panels in this confer

the jus in bello, the law regulating the way armed force is applied

haps worth noting parenthetically, however, that participants at the D

Oaks and San Francisco conferences determined that, unlike the Coven

League of Nations, the United Nations Charter should outlaw war.2 As 

hostilities phase of the conflict in Iraq dramatically demonstrates, we 

way from achieving the goal of the founders of the United Nations. In

highly unlikely that we shall ever reach the goal of outlawing armed confl

theless, as recent events also demonstrate, there is an overriding need for 

good will to recommit themselves to the pursuit of this goal.

During this conference most of the discussion and debate has revolv

four international armed conflicts of the 1990s and the early 2000s: the 

Kosovo, Afghanistan, and Iraq. But it is important to remember that int

armed conflict is not the primary kind of armed conflict today, but rath

ternal or civil wars. In the main, these wars are being fought with no conc

jus in bello and are largely ignored by the great powers. This is especially 

Africa. A major reason for the failure to deal effectively with these war

political will. But it appears clear as well that the jus in bello applicable 

wars—Common Article 3 of the Geneva Conventions of 1949 and Prot

inadequate; yet efforts to improve this law are strongly resisted.

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Jean

Philippe Lavoyer suggests in his paper that the jus in bello we 

have is not the major problem but the failure to implement it in good 

seems clear, but as the debates at this conference have clearly shown, th

the least major differences as to interpretation of the existing rules, even 

leading experts of Western developed States, much less on a worldw

Ideally these ambiguities would be resolved by international negotiation

the existing law. However, as Dr. Lavoyer also notes in his paper, the r

route is that it might open Pandora’s box and result in a much less rat

more satisfactory jus in bello. This is also a problem with the jus ad bellu

of resort to the use of force, and efforts to revise the UN Charter. There ar

member States of the United Nations, and more and more of them, espec

from the so-called “third-world,” are demanding to be heard.3

Under a rule of law paradigm,4 courts would play a major role in reso

biguities in the law of armed conflict and in prosecuting and punishing 

trators of war crimes.5 Courts have usually not played such a role, but th

changing. As Ambassador Alan Baker reported in his presentation, Israel

tion and enforcement of the law of armed conflict is supervised by it

court. In his presentation, Colonel Charles Garraway noted that, especi

rope, there is an overlap between international human rights law and 

armed conflict. This overlap was dramatically demonstrated by the claim 

before the European Court of Human Rights by several Yugoslav nati

various North Atlantic Treaty Organization countries had violated the 

Convention on Human Rights and Fundamental Freedoms (European 

tion) by their 1999 intervention in Kosovo. The European Court never r

merits of the challenge because it decided that the applicants did not co

the jurisdiction of the respondent States for purposes of Article 1 of the 

Convention, which provides: “The High Contracting Parties shall sec

eryone within their jurisdiction the rights and freedoms defined in Se

this Convention.”6 Nonetheless, the stage had been set for possible fu

lenges to the use of armed force based on international human rights la

gested by Colonel Garraway, at the least, there would seem to be co

need to ensure that international human rights law and the law of arme

are compatible.

At this writing there are in existence three international criminal trib

International Criminal Tribunal for the Former Yugoslavia (ICTY), th

tional Criminal Tribunal for Rwanda (ICTR), and the International 

Court (ICC). Although both the ICTY and the ICTR have had their sha

cism, it is generally agreed that the two tribunals, especially the ICTY, hav

significant role in interpreting and applying the law of armed conflict. 

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while the International Criminal Court has not yet started any proceedin

well do likewise, especially with respect to the jus in bello of internal war

ing to media reports, the ICC’s first cases are likely to arise from situati

Congo and other conflicts in Africa.

Also, as Professor Adam Roberts suggested during this conference, th

stimulate national law enforcement authorities and courts to do a better 

forcing the law of armed conflict. The failure to prosecute such crimes as 

war crimes and crimes against humanity at the national level has often be

a primary reason for establishing the International Criminal Court.

Belgium has recently learned how difficult it can be for a national lega

prosecute these crimes. Belgium had legislation7 so wide-ranging in sc

resulted in Belgian courts being flooded with cases based on universal ju

and the Belgian government being involved in heated international con

One of these controversies, over a Belgian arrest warrant issued for t

minister of the Congo, resulted in a ruling by the International Court of J

Belgium had violated international law because the foreign minister en

munity from judicial process.8As a result of this ruling, Belgium had to d

cutions of officials such as Israel’s Prime Minister Ariel Sharon, who ha

object of a criminal complaint for war crimes filed by survivors of the 19

cres at the Sabra and Shatila refugee camps in Beirut, Lebanon. In the Sh

however, Belgium’s highest court ruled that Sharon could be tried for w

after he leaves office and that his co-defendant, Amos Yaron, the form

Army chief of staff, could be tried before Belgian courts.9 Later, as the 

Iraq was getting under way, representatives of seven Iraqi families wh

they had lost loved ones in the 1991 Gulf War, filed a criminal complai

former US President George H.W. Bush, as well as Secretary of State Co

(Chairman of the Joint Chiefs of Staff in 1991), Vice-President Dick Ch

retary of Defense in 1991) and Norman Schwarzkopf, the general in ch

forces during Operation Desert Storm.10 This apparently was the last stra

sulted in such strong protest from the United States that Belgium modif

islation to allow cases to be brought only if the victim or suspect is a Belg

or long-term resident at the time of the alleged crime. The revised law al

tees diplomatic immunity for world leaders and other government offici

Belgium.11

Recently, an important alternative to prosecution before an internatio

nal tribunal or a national court has begun to emerge, the so-called “hyb

In Kosovo, East Timor, and Sierra Leone, the United Nations has estab

brid courts, consisting of international and national elements, to prosec

ties committed in these regions. Also, on May 13, 2003, after long and 

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negotiations, the UN General Assembly approved an agreement with th

ment of Cambodia to establish a hybrid court to prosecute some of the 

tors of the crimes committed by the Khmer Rouge during the mid-to-late 

Although these hybrid courts have taken a variety of forms, perhaps the 

is the hybrid court for Sierra Leone.13 Under the court’s statute, there is a t

trial chamber and a five judge appellate chamber. The government of Si

appoints one judge to the trial chamber and the UN secretary-general app

The appellate chamber has two judges picked by the government of Sierra 

three selected by the secretary-general. Further, after consultation with th

ment of Sierra Leone, the secretary-general appoints the prosecutor and 

The court has jurisdiction over serious violations of the law of armed con

as certain crimes committed since November 30, 1996 under the nationa

erra Leone. The judges of the court as well as its prosecutor (an American 

and its registrar (a British national) have been selected, and accused pe

been brought before the court. The court has also indicted Charles Taylor, 

the president of Liberia but now enjoying asylum in Nigeria.

The arrangements for the hybrid court for Cambodia contrast sh

those for Sierra Leone and reflect five years of difficult negotiations be

United Nations and the Cambodian government. Under the agreement 

by the General Assembly in May 2003, Extraordinary Chambers will be e

in Cambodian courts under Cambodian law but will have subject matte

tion over several offenses defined under international law as well as certa

proscribed by Cambodian law when committed between April 16, 1975 

ary 6, 1979. In the two-tier system of the Extraordinary Chambers, a majo

judges must be Cambodian while the remaining judges are to be appoin

Cambodian government based upon nominations by the Secretary-Ge

vote of at least one UN-nominated judge is required for a judgment of gu

mains to be seen whether these arrangements will be both effective and 

The hybrid courts in Kosovo and East Timor present still another mo

judication. Under a UN Security Council resolution adopted at the con

the 1999 conflict between the North Atlantic Treaty Organization and 

via,15 Kosovo has been governed by the United Nations Mission i

(UNMIK), and this arrangement will continue until Kosovo’s final statu

mined. As the interim authority, UNMIK has established local courts t

cute both ordinary offenses and certain violations of the law of arme

Foreign lawyers have been appointed as prosecutors, and a majority of 

are foreign nationals.

Shortly after the people of East Timor voted for independence from 

sia in August 1999, the United Nations Transitional Administratio

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Timor (UNTAET) began its administration of East Timor, which la

the territory became an independent State on May 20, 2002.16 During 

UNTAET established a hybrid court system in East Timor. An UNTAE

tion adopted in March 2000 created special panels of the District Co

(the capital of East Timor) and granted them exclusive jurisdiction o

international crimes—genocide, war crimes and crimes against hum

well as crimes of torture, murder, and crimes of sexual violence when 

ted between January 1, 1999 and October 25, 1999. In 2001 ten defend

convicted of crimes against humanity.

After its independence, the United Nations established a Mission of S

East Timor (UNMISET) to assist the new nation for two years. As UN

previously, UNMISET administered the Serious Crimes Unit of the East 

judicial system.

In the aftermath of the US-led forces’ attack on Iraq, there has been s

debate about how to bring to justice, to the extent possible, the 55 mos

as well as other high ranking officials, of the Saddam Hussein regim

government has expressed its preference for prosecutions in reconstit

courts, operating with foreign assistance.17 Many commentators, inclu

ing human rights organizations, have called for the establishment of eit

ternational or hybrid court established under UN auspices, arguing 

decades of subservience to Ba’ath Party rule, Iraqi courts are not capa

pensing impartial justice.18 Other commentators, including this writer, 

ported the US position on the ground, among others, that the crea

impartial and professionally competent judiciary in Iraq is not a missi

sible and that, in any event, the ultimate decision on the kind of tribuna

nals to try the leaders of the Hussein regime should be made by 

government of Iraq.19 As of this writing no final decision has been ma

issue. The US government has indicated that it plans to prosecute Ir

military tribunals for war crimes committed against US forces during 

Iraq war, and perhaps also for war crimes against Americans committ

the 1991 Persian Gulf War.

A primary issue arising out of the “war on terrorism” is the appropria

gime to apply to efforts to control terrorism after the horrific events of S

11, 2001. Prior to September 11 international terrorism had been treated 

as a criminal law matter. Under this regime the perpetrators of terror

were prosecuted as common criminals in the civilian courts. After Sep

the situation is much less clear, as the debate over the proposed use o

commissions for prosecuting Taliban and Al Qaeda members de

Guantanamo Bay, Cuba demonstrates. The case against Zacarias Mo

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confessed member of al Qaeda and the only person so far charged in a 

with conspiring in the terrorist attacks of September 11, is especially s

cause the US government refused to allow Moussaoui to interview captu

bers of al Qaeda who might provide useful information for his defen

ground that it would endanger national security, a federal district court 

ruled that the government cannot seek the death penalty against him 

prosecutors would be barred at trial from trying to link him in any way t

tember 11 attacks. Although the government has appealed this ruling, the

ulation at this writing that, if it loses the appeal, the government ma

Moussaoui to a military commission, possibly at the US militar

Guantanamo Bay.20

Should such a transfer occur, it would likely be met with a firestorm 

“given the obvious implication that civilian courts—because of the p

rights they provide to criminal defendants—are no longer capable of de

defendants accused of terrorism.”21

Notes

1. John Murphy is a Professor of Law at Villanova University School of Law.

2. See Oscar Schachter, The Right of States to Use Armed Force, 82 MICHIGAN L

1620 (1984).

3. An example of the kind of problems that the increasing assertiveness of developing c

cause is the collapse of the “Doha round” trade negotiations at Cancun, Mexico, due in n

to the resistance of the developing countries to demands by the United States and th

Union that the negotiations add foreign investment, competition, and transparency to th

4. For an excellent discussion of the rule of law in the US constitutional order, see 

Fallon, The “Rule of Law” as a Concept in Constitutional Discourse, 97 COLUMBIA LA

(1997). For a skeptical view, see Morton J. Horwitz, The Rule of Law: An Unquali

Good?, 86 YALE LAW JOURNAL 561 (1977).

5. The United States and other countries have traditionally employed military c

during times of war to try violations of the law of armed conflict. However, Presiden

Bush’s Military Order of November 13, 2001 -Detention, Treatment, and Tria

Noncitizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001), a

authority to use military commissions to try members of al Qaeda and other persons 

acts of international terrorism against the United States, unleashed a storm of prot

the protests contended that such trials should take place in US courts rather than 

commissions, especially in light of the severely limited due process rights conta

President’s order. See e.g., Harold Hongju Koh, The Case Against Military Com

AMERICAN JOURNAL OF INTERNATIONAL LAW 337 (2002). For a general discussion 

on this issue, see Daryl A. Mundis, Agora: Military Commissions, 96 AMERICAN J

INTERNATIONAL LAW 320 (2002). Although the US Department of Defense subsequ

regulations substantially augmenting due process rights of an accused, Military C

Order No. 1 (Department of Defense Mar. 21, 2002), at http://defenselink.Mil/new

d200020321ord.Pdf., many critics still found the protections to be inadequate. See e

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g ggy 

International Tribunals, and the Rule of Law, 75 SOUTHERN CALIFORNIA LAW R

(2002). Foreign governments reportedly were unwilling to extradite terror susp

United States unless they received assurances that they would be tried before civilian 

Sam Dillon and Donald G. McNeil, Jr., Spain Sets Hurdle for Extraditions, NEW Y

Nov. 24, 2001, at A1, col. 1.

6. SeeBankovic et al. V. Belgium et al., No 52207/99 (Eur. Ct. H.R. 12, Dec. 2001) (Grand 

7. Belgian Act Concerning the Punishment of Grave Breaches of International Hu

Law (Act of June 16, 1993), reproduced in 38 INTERNATIONAL LEGAL MATERIALS 91

8. See Arrest Warrant of 11 April 2000 (Congo v. Belg.) ( I.C.J. Feb. 14, 2002), rep

INTERNATIONAL LEGAL MATERIALS 536 (2002).

9. See Marlise Simons, Sharon Faces Belgian Trial After Term Ends, NEW YORK TIM

2003, at A12, col. 1.

10. See Dan Bilefsky, Bushes on Trial in Belgium? It is Unlikely, but Brussels Still Wo

STREET JOURNAL, Mar. 28, 2003, at A11, col. 3.

11. See Belgium Scales Back Its War Crimes Law Under US Pressure, NEW YORK TIM

2003, at A6, col. 1.

12. Press Release, General Assembly Approves Draft Agreement Between UN, C

Khmer Rouge Trials, UN Doc. GA/10135 (May 13, 2003).

13. For discussion and analysis of the Sierra Leone tribunal, see e.g., Celina Sch

Special Court for Sierra Leone, 20 BERKELEY JOURNAL OF INTERNATIONAL LAW 436 

14. Details of the arrangement are set forth in Report of the Secretary-General on K

Trials, UN Doc. A/57/769 (Mar. 31, 2003).

15. S.C. Res. 1244, UN Doc.S/RES/1244 (1999).

16. This account of the establishment of the hybrid court system in East Timor is b

on LOUIS HENKIN ET AL., HUMAN RIGHTS: 2003 SUPPLEMENT 91.

17. See No Nuremberg: America says Iraq should try its own thugs, THE ECONOMI

2003, at 28.

18. See e.g., Human Rights Watch, Letter to US Regarding the Creation of a Criminal 

Iraq (Apr. 15, 2003), available at http://www.hrw.org/press/2003/04iraqitribunal04150

19. For my views, see John F. Murphy, Administering Justice in Iraq: Consider

LEGAL INTELLIGENCER, May 12, 2003, at 7. Compare Jose’ E. Alvarez, Crimes of St

of Hate: Lessons from Rwanda, 24 YALE JOURNAL OF INTERNATIONAL LAW 365, 

(arguing that “local criminal processes may make valuable contributions to the pre

collective memory, victim mollification, and the national and international rule 

that “absent local prosecutions, mass violence may reemerge” in a country recent

by mass atrocity).

20. See Philip Sheldon, Government Lawyers Fear 9/11 Ruling Threatens Al Qaeda 

YORK TIMES, Oct. 4, 2003, at A11, col. 3.

21. Id.

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XVIII

Protection of Cultural Property:

The Legal Aspects

Jan Hladík1

r. Jean-Philippe Lavoyer’s paper, Should International Humani

be Reaffirmed, Clarified or Developed?,2 provides an excellent o

international humanitarian law and touches briefly on the need for the 

of cultural property during armed conflict.

The principal law of war treaty provisions protecting cultural pr

found in the 1954 Hague Convention for the Protection of Cultural Prop

Event of Armed Conflict (Hague Convention)3; its First Protocol,4 also a

1954; and its Second Protocol of 1999.5 The following substantive ar

Hague Convention and the Second Protocol are, in my view, those tha

primary impact on the conduct of military operations:

• Safeguarding of cultural property (Article 3 of the Hague Conve

Article 5 of the Second Protocol);

• Respect for cultural property (Article 4 of the Hague Conve

Articles 6, 7 and 8 of the Second Protocol);

• Military measures (Articles 7 and 25 of the Hague Convention);

• Protection of cultural property in occupied territory (Article 5 of 

Convention and Article 9 of the Second Protocol);

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Special protection under the Hague Convention and enhanced p

under the Second Protocol (essentially Chapter II of the Hague Conve

Chapter 3 of the Second Protocol); and

• Sanctions (Article 28 of the Hague Convention and Chapter 

Second Protocol).

Safeguarding of Cultural Property

Under Article 3, States party to the Hague Convention are to undertak

guarding of cultural property through the taking of appropriate measure

time against the foreseeable effect of armed conflict. Such measures on

property situated in the territory of the State concerned. The Conventio

define the nature or scope of the measures; it leaves those questions to t

tion of the State in question. This omission is remedied by Article 5 of t

Protocol, which provides for the following preparatory peacetime mea

preparation of inventories, the planning of emergency measures for 

against fire or structural collapse, the preparation for the removal of mo

tural property or the provision for adequate in situ protection of such 

and the designation of competent authorities responsible for the safeg

cultural property. It should be stressed that the safeguarding measures 

helpful not only in case of armed conflict but also in the event of natural 

as a highly effective weapon against theft.

Respect for Cultural Property

Article 4 of the Convention provides for respect for cultural property. Su

consists in two mutually corresponding obligations of State parties: (1) 

from the use of cultural property and its immediate surroundings or of 

ances for its protection, situated both within their own territories as wel

the territory of other State parties, for purposes likely to expose it to dest

damage in the event of armed conflict; and (2) to refrain from any act o

directed against such property.6

The next paragraph of Article 4 introduces a very important except

rule —the waiver of these obligations when required by military neces

waiver is referred to in Article 4.2, which is applicable to generally prot

tural property as defined in Article 1 of the Convention. It permits a w

where required by “imperative military necessity.” Withdrawal of immu

dressed in Article 11.2 for cultural property under special protection (a 

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which I will return). Such withdrawal is permitted only in 

exceptional c

avoidable military necessity.”

Article 4.2 of the Convention permits the State parties to use cultura

and its immediate surroundings or of the appliances in use for its protec

ated within their own territory as well as within the territory of other Sta

for military purposes and to conduct hostilities against such property “w

tary necessity imperatively requires such a waiver.” The concept of “un

military necessity” in Article 11.2 has stricter conditions for its applicat

tural property under special protection. In particular, the immunity ma

drawn “only for such time as that necessity continues.” Article 11

provides that “Such necessity can be established only by the officer comm

force the equivalent of a division in size or larger.” Finally, whenever circ

permit, an advance warning is to be provided to the opposing party a r

time in advance of the withdrawal of immunity.

Regrettably, the lack of a universally accepted definition of military 

leaves room for a loose interpretation of these provisions or even their ab

interesting definitions illustrate this issue. The first is from the Instructio

Government of Armies of the United States in the Field, prepared b

Lieber. Known as the Lieber Code, they were promulgated as General O

100 by President Lincoln on April 24, 1863. They provide, in part, as fo

Article 14. Military necessity, as understood by modern civilized nations, co

the necessity of those measures which are indispensable for securing the end

war, and which are lawful according to the modern law and usages of war.

Article 15. Military necessity admits of all direct destruction of life or limb o

enemies, and of other persons whose destruction is incidentally unavoidab

armed contests of the war; it allows of the capturing of every armed enemy, a

enemy of importance to the hostile government, or of peculiar danger to the c

allows of all destruction of property, and obstruction of the ways and cha

traffic, travel, or communication, and of all withholding of sustenance or mea

from the enemy; of the appropriation of whatever an enemy’s country 

necessary for the subsistence and safety of the army, and of such deception as 

involve the breaking of good faith either positively pledged, regarding agr

entered into during the war, or supposed by the modern law of war to exist. M

take up arms against one another in public war do not cease on this accou

moral beings, responsible to one another and to God.

Article 16. Military necessity does not admit of cruelty – that is, the infli

suffering for the sake of suffering or for revenge, nor of maiming or woundin

in fight, nor of torture to extort confessions. It does not admit of the use of p

any way, nor of the wanton devastation of a district. It admits of decept

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py; , g, y y 

hostility which makes the return to peace unnecessary difficult.”8

The second definition comes from Morris Greenspan who defined m

cessity as “the right to apply that amount and kind of force which is ne

compel the submission of the enemy with the least possible expenditu

life and money.”9 Finally, Black’s Law Dictionary states that military n

“[a] principle of warfare that permits enough coercive force to achieve 

end, as long as the force used is not more than is called for by the sit

Black’s provides a background reference to the 1907 Hague Conventio

and Customs of War.

It is important to point out that military commanders were aware of 

guity and in this connection General Eisenhower’s order of Decembe

stated: “Nothing can stand against the argument of military necessity. Th

cepted principle. The phrase ‘military necessity’ is sometimes used wher

be more truthful to speak of military convenience or even of personal con

I do not want it to cloak slackness or indifference.”11 For this reason, t

Protocol amplifies the provisions regarding military necessity as it relat

cultural property under general protection and that under enhanced pr

What are the main substantive issues contained in the new definition 

necessity in the Second Protocol? In my opinion, Article 6 includes tw

ments: first, a waiver of the respect obligation on the basis of imperativ

necessity when cultural property has now been transformed, because o

ner in which it is being used, into a military objective (Article 6(a)(i)); an

tightening the circumstances under which the obligation not to use cult

erty for purposes likely to expose it to destruction or damage (Article 6(b

waived. The first provision concerns the attacker, while the second app

defender. In addition, Article 6(a)(i), which is based on Article 52.212 o

Additional Protocol I on the Protection of Victims of Internation

Conflicts to the four 1949 Geneva Conventions, thus makes a nexus be

Second Protocol and the definition of military objective under Protoco

13, which de facto develops the definition of “unavoidable military nece

der Article 11.2 of the Convention, brings in two new elements: the deci

tack must be ordered at the highest operational level of command 

obligation to provide advance warning. It is necessary to point out tha

tively implement these abstract definitions they must be further clarifie

tary manuals and rules of engagement and must be interpreted in good 

To conclude on the issue of military necessity, let me quote B

Carnahan, an acknowledged expert in the law of armed conflict:

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y, y y y gg 

ignored if international humanitarian law is to develop, and its original role a

on military action has been forgotten. As a result, the principle has not been ap

new situations where it could serve as a significant legal restraint until more 

treaty rules or customs are established.13

Article 4.3 of the Convention introduces the obligations to prohibit, p

put a stop to theft, pillage, misappropriation of, and acts of vandalism a

tural property. State parties are also required to refrain from requisitionin

property located in the territory of another party (Article 4.3) and from m

tural property the object of reprisals (Article 4.4). The prohibition of repris

historic monuments, works of art or places of worship constituting the 

spiritual heritage of peoples is reiterated in Article 53(c) of Additional Prot

waiver of military necessity is not applicable to those obligations.

Articles 7 and 8 of the Second Protocol provide for precautions in 

precautions against the effects of hostilities, respectively. Article 7 impos

ber of obligations on a military commander, such as verifying that objec

attacked are not cultural property, selecting means and methods of a

avoid or minimize incidental damage, abstaining from attacks that caus

incidental damage, and cancelling or suspending attacks if the objective 

property or the attack may cause excessive incidental damage to cultura

The first two obligations require the military commander to do everyth

feasible, in other words what is in his/her power, to fulfill those requirem

the Article 8 precautions against the effects of hostilities, State parties m

maximum extent feasible, remove movable cultural property from the 

military objectives or provide for adequate in situ protection, and avoi

military objectives near cultural property. Attention should be again dr

word “feasible.” The implementation of this obligation will depend on a 

factors such as the density of the population, the location of armament 

or economic potential of the State concerned. Finally, it should be stresse

ticles 7 and 8 mirror Article 57 (Precautions in attack) and Article 58 (P

against the effects of attack) of Additional Protocol I, thus ensuring cohe

implementation of both the Second Protocol and the Additional Protoc

Military Measures

Military measures are mainly embodied in Articles 7 and 25 of the Co

These, to a certain extent, complement each other. Article 7 provides for 

cipal categories of State party obligations: (1) introduction in peacetime 

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military regulations or instructions of provisions ensuring observance o

vention and fostering in their military personnel respect for the cultur

tural property of all peoples; and (2) the establishment, again in pea

services or specialist personnel whose purpose is to secure respect fo

property and to cooperate with the civilian authorities who are respons

safeguarding. In addition, Article 30.3(a) of the Second Protocol expr

gates States to incorporate guidelines and instructions on the protection 

property into their military regulations.

To facilitate the dissemination of the Second Protocol within the arm

the UNESCO Secretariat has prepared a series of inserts14 for training m

sonnel on the Protocol’s obligations. The main insert contains a detailed 

of the Protocol’s provisions. Other inserts provide a list of possible instru

tions for those providing training to officers and soldiers’ rules for the train

listed members of armed forces. It is up to each State’s armed forces to 

inserts to its military traditions, military doctrine and training methods.

Protection of Cultural Property in Occupied Territory

The 1954 Convention requires the occupying State to take the “most nece

sures” to preserve cultural property damaged by military operations that 

in the occupied territory if the competent national authorities of the occu

are unable to do so (Article 5.2). This Article’s obligations are complemen

ticle 9 of the Second Protocol requiring the occupying Party to prohibit an

(1) any illicit export or other removal or transfer of ownership of cultura

(2) any archaeological excavation, except when strictly required to safegua

or preserve cultural property; and (3) any alteration to, or change of use o

property which is intended to conceal or destroy cultural, historical or sci

dence. Furthermore, no archaeological excavation of, alteration to, or cha

of cultural property in occupied territory may be carried out without clos

tion with the competent national authorities of the occupied territory, 

cumstances do not permit such cooperation.

Finally, it should be stressed that the 1954 Protocol, a complementa

ment to the original Hague Convention, prohibits the export of cultura

from occupied territory. If export does occur, it requires each State party 

such property that is located within its territory to the competent author

territory from which it was illicitly exported. This is to occur when host

ended. The 1954 Protocol also expressly forbids the appropriation o

property as war reparations. This provision is of fundamental importan

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of its clear recognition that the unique nature of cultural objects makes t

propriate subjects of war reparations.

Special Protection under the Hague Convention

and Enhanced Protection under the Second Protocol

It should be noted that in addition to general protection15 under Ch

the Hague Convention, Article 8.1 provides that special protectio

granted to three categories of property: (a) refuges intended to shelte

cultural property in the event of armed conflict; (b) centers containi

ments; and (c) other immovable cultural property of very great im

Unlike the general protection which is attributed to all categories o

property, the granting of special protection is not automatic. The Co

subjects the granting of such protection essentially to two condition

cultural property in question must be situated at an adequate distance 

facto military objective; and (2) such property must not be used fo

purposes.

What is “an adequate distance?” The phrase is not defined by the 

tion and is, therefore, left to the discretion of each State party to the 

tion. Its definition will obviously depend on a number of factors, su

presence of military units or armament industry or requirements o

self-defense. The only exception to the requirement of the adequate d

found in Article 8.5. Under that provision, if the cultural property is s

the proximity of an important military objective, the special protectio

nevertheless granted if the State concerned undertakes not to use th

objective in the event of armed conflict. Finally, special protection 

upon request by the State where the cultural property concerned is s

Cultural property under special protection is listed in the “Inte

Register of Cultural Property under Special Protection,” a registry m

by the Director-General of UNESCO. At present, cultural propert

States (Germany, the Holy See, and the Netherlands) is entered in the 

The total property protected is four refuges for movable cultural pro

the whole of the Vatican City State. Two States (Austria and the Net

submitted registration requests but later withdrew them. Since o

States have placed five sites under special protection and the last en

Register took place in 1978, clearly the concept of special protection 

fully developed its potential.

Why have the vast majority of States abstained from placing their cu

under special protection? There may be several reasons. In parti

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impossibility of complying with the condition of adequate distance from 

dustrial center or military objective for densely-populated countries; tec

ficulties in submitting nominations; or the fear of designating cultural pr

special protection because of possible terrorist attacks; or, in fact, pro

eventual adversary with a ready made “hit-list.”

Because the special protection provisions of the Hague Convention ha

gain widespread usage, the Second Protocol in Chapter 3 establishes a ne

of “enhanced protection” that combines aspects of special protection 

Hague Convention and the criteria for listing of cultural property in 

Heritage List under the 1972 UNESCO Convention concerning the Pro

the World Cultural and Natural Heritage.16 Under the new concept of 

protection, three conditions are to be met: the cultural property in ques

be of the greatest importance for humanity; it must be protected by ade

mestic legal and administrative measures that recognize its exception

and historic value; and it may not be used for military purposes or to shie

sites. A declaration to this latter end must be provided. Enhanced pro

granted by entering the property in the List of Cultural Property under 

Protection provided for by Article 27.1(b).

The granting of enhanced protection is accorded by a twelve-mem

governmental Committee for the Protection of Cultural Property in th

Armed Conflict. As in the case of special protection, objections to the g

enhanced protection are permitted but they must be based only on the 

meet one or more of the three criteria described above. This prevents S

are party to the Second Protocol from making objections based purely 

cal animosity or mutual non-recognition, thus avoiding cases such 

Cambodia, which in 1972 requested the entry of several sites in the Re

cause of the objections filed by four States who did not recognize th

ment of Cambodia at that time, the entry was not made. Finally, u

granting of special protection which requires no objection from any o

party to the Hague Convention, enhanced protection may be granted b

ity of four-fifths of the above Committee.17

Sanctions

Article 28 of the 1954 Convention imposes an obligation on States to pro

punish those persons (regardless of their nationality) who commit breac

der the commission of breaches of the Convention. The deficiency of this 

is its general character—Article 28 does not contain a list of crimes or off

sanctioned nor does it sets forth the procedural aspects of sanctions.

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This deficiency is addressed in Chapter 4 of the Second Protocol. Art

tablishes a category of serious violations (which can be of either the 195

tion or the Second Protocol itself). Five offenses fall within this categor

• Making cultural property under enhanced protection the object o

• Using cultural property under enhanced protection or its i

surroundings in support of military action;

• Extensive destruction or appropriation of cultural property protec

the Hague Convention and the Second Protocol;

• Making cultural property protected under the Hague Conventio

Second Protocol the object of attack; and,

• Theft, pillage or misappropriation of, or acts of vandalism directe

cultural property protected under the Convention.

Article 16.1 establishes universal jurisdiction with regard to the first t

of offenses.

Chapter IV also addresses other aspects of criminal responsibility—

tional issues, extradition, mutual legal assistance, and the adoption of 

administrative, or disciplinary measures to address other violations of th

tion or Protocol. Again, each State party to the Second Protocol must ad

articles within its national penal legislation, either civilian or military o

To facilitate the domestic implementation of the provisions of Chap

UNESCO Secretariat commissioned and widely distributed a consultant

this issue. This study is composed of three parts: the first part introduce

vant provisions of Chapter 4 and compares them with other internationa

tarian law penal provisions by referring to the four 1949 Geneva Conven

1977 Additional Protocol I, and the 1998 Rome Statute of the Internatio

nal Court; the second provides twelve case studies related to six count

common law tradition (Australia, Canada, India, Nigeria, the United 

and the United States) and six countries with a civil law tradition (A

France, Japan, the Netherlands, the Russian Federation and Switzerland

part contains a summary of recommendations.18

Conclusion

It is important that there be close cooperation between UNESCO and na

itary forces in implementing and enforcing the body of cultural protectio

is set forth in the 1954 Hague Convention and its First and Second Pr

cause it is those forces that must ensure its application during the ex

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combat operations. Unless military forces are properly trained and infor

location of cultural property in the adversary’s territory and unless rules 

ment address the protection of cultural property, then cultural property 

accorded the necessary protection.

Notes

1. Jan Hladík, Program Specialist, International Standards Section, Division of Cultu

United Nations Educational, Scientific, and Cultural Organization (UNESCO). T

partly based on two previous presentations, the first made at the conference “Heritage 

The Protection of Cultural Property in Wartime” organized by the British Red Cross i

June 2001, and the second delivered at the conference “Conservation Law Her

organized by the University of Georgia in Athens in April 2002. The author is respon

choice and the presentation of the facts contained in this paper and for the opinion

therein, which are not necessarily those of UNESCO and do not commit the Organiz

2. See Dr. Lavoyer’s paper, which is Chapter XVI in this volume, at 287.

3. Hague Convention for the Protection of Cultural Property in the Event of Arm

May 14, 1954, 249 U.N.T.S. 240, reprinted in DOCUMENTS ON THE LAWS OF WAR 

Roberts and Richard Guelff eds., 3d ed. 2000) [hereinafter Hague Convention].

4. First Hague Protocol for the Protection of Cultural Property in the Event of Arm

May 14, 1954, 249 U.N.T.S. 358, reprinted in DOCUMENTS ON THE LAWS OF WAR, s

at 397 [hereinafter First Protocol].

5. Second Protocol to the Hague Convention for the Protection of Cultural Pro

Event of Armed Conflict, Mar. 26, 1999, 38 INTERNATIONAL LEGAL MATERIALS 769, 

DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 700 [hereinafter Second Prot

As of March 31, 2006, 114 States are party to the Hague Convention, 92 of wh

parties to the First Protocol. As of March 31, 2006, 38 States are party to the Secon

The text of the Hague Convention and its 1954 and 1999 Protocols together with the 

party thereto, as well as other relevant information on UNESCO’s standard-setting 

the protection of cultural property, is available on the UNESCO website 

www.unesco.org/culture/chlp (last visited Mar. 31, 2006).

The United States participated actively in the 1954 Hague Intergovernmental 

which negotiated and adopted the Convention and its 1954 Protocol, and signed the 

the Conference and the Convention. In January 1999, the then President Willi

transmitted the Hague Convention and the 1954 First Protocol to the US Senate f

and consent, a necessary prerequisite to the United States becoming a party to both. 

United States has not become party to either.

6. Hague Convention, supra note 3, art. 4.1.

7. For the notion of military necessity with regard to the Hague Convention, see m

1954 Hague Convention for the Protection of Cultural Property in the Event of Armed 

the notion of military necessity, 81 (No. 835) INTERNATIONAL REVIEW OF THE RED 

(Sept. 1999).

8. War Department, Adjutant General’s Office, Instructions for the Government o

the United States in the Field, General Orders No. 100, (Apr. 24, 1863),reprinted in T

ARMED CONFLICTS 3 (Dietrich Schindler and Jiri Toman eds., 4th ed. 2004).

9. MORRIS GREENSPAN, THE MODERN LAW OF LAND WARFARE 313-314 (1959).

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()

11. ANNOTATED SUPPLEMENT TO THE COMMANDER’S HANDBOOK ON THE LAW 

OPERATIONS 293 (A. R. Thomas and James C. Duncan eds., 1999) (Vol. 73, US 

College International Law Studies).

12. Article 52.2:

Attacks shall be limited strictly to military objectives. In so far as objects are con

military objectives are limited to those objects which by their nature, location, p

or use make an effective contribution to military action and whose total or 

destruction, capture or neutralization, in the circumstances ruling at the time, 

definite military advantage.

Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S

in DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 422, 450.

13. Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The Origins and L

Principle of Military Necessity, 92 AMERICAN JOURNAL OF INTERNATIONAL LAW 21

14. Available at http://www.unesco.org/culture/chlp (last visited Mar. 31, 2006).

15. General protection is granted to “movable or immovable cultural prope

importance to the cultural heritage of every people,” including works of art; manusc

other objects of artistic, historical or archaeological interest; scientific or importan

of artifacts; monuments; and archaeological sites. All such property is generally prot

the Convention, regardless of its origin or ownership. States need not take specifi

such as registration, for property entitled to general protection.

16. Convention concerning the Protection of the World Cultural and Natural He

23, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151.

17. The establishment of the Committee is one of the major achievements of the 19

because it provides a supervisory body to monitor its implementation. Such a bo

exist under the original Hague Convention. In addition to the supervis

implementation of the Second Protocol, the Committee will be essentially respon

granting, suspension or cancellation of enhanced protection, assistance in the iden

cultural property under enhanced protection, consideration and distribution of in

assistance, and the use of the resources of the Fund for the Protection of Cultural Pro

Event of Armed Conflict created by Article 29.

The Committee for the Protection of Cultural Property in the Event of Armed C

elected for the first time by the first meeting of States party to the Second Protocol t

in Paris at UNESCO Headquarters on October 26, 2005. The elected committee mem

a four-year term (until 2009) are Austria, El Salvador, Libyan Arab Jamahiriya, Peru

Montenegro, and Switzerland. The elected committee members having a two-year 

2007) are Argentina, Cyprus, Finland, Greece, the Islamic Republic of Iran, and Lit

18. The study is available upon request from the UNESCO Secretariat.

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XIX

The Law of Armed Conflict

and the War on Terrorism

David E. Graham1

n commenting on Mr. Lavoyer’s presentation, as well as his paper,2 a

begin with his concluding remarks and then move from there to sp

observations regarding whether there is a need to revise, amend, or suppl

existing law of armed conflict in light of the events of September 11, 2001

ensuing declaration by the United States that it is now engaged in a “war 

ism.” I would note that, contrary to Mr. Lavoyer, I will use the term “law 

conflict” (LOAC), as opposed to “international humanitarian law” (IH

again, as I have stated on a number of previous occasions, both at confer

in Newport and elsewhere, I have yet to hear a definitive explanation as t

for—or the body of law encompassed by—this latter term. If it is but a ki

tler synonym for the law of armed conflict, it is duplicative in nature—a

essary. If, on the other hand, it purports to embrace some undefined 

human rights law, I reject it as unclear, confusing, and fraught with peri

manders in the field.

In the draft of his paper, Mr. Lavoyer notes that, “The best guarantee 

[of the law of armed conflict] is to keep the law realistic.” With this statem

in complete agreement. Aspirational LOAC standards are inherently su

nature and bear little reality to the practice of warfare and modern we

tems. Moreover, they harm the credibility of the LOAC as a whole. A

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previously stated in many fora, this is a principal reason why the United 

rejected a number of the provisions of Protocol I Additional to the 19

Conventions3—and why it has chosen not to become a party to this Pro

Mr. Lavoyer notes that, “[T]he main challenge today is without any 

proper application of IHL in today’s armed conflicts. Extensive researc

cent armed conflicts has led the ICRC to conclude that, on the whole, th

rules are adequate enough to deal with today’s armed conflicts.”4 O

I agree completely with this statement. I do not number myself among 

now criticize the law of armed conflict “for not being adequate to deal wi

on terror.’”5 More on this particular point, later.

Now, lest you feel that I am being overly kind to Mr. Lavoyer, let m

number of areas of disagreement. In his paper, he makes reference to a 

ducted by the International Committee of the Red Cross (ICRC) regardin

tomary LOAC. (He refers to it as “customary IHL.”) In doing so, he sta

The study—published in 2005—will be particularly useful for non-inter

armed conflicts. Maybe the most important result of the study is the fact th

rules of the 1977 Additional Protocol I relating to the conduct of hostilities al

to internal armed conflicts on a customary law basis. Furthermore, States not 

certain IHL treaties will be bound by their customary rules.6

This, of course, is a significant overstatement of the effect of this study. 

national community, at large, has not been privy to the results of the ICR

However, I think that it is safe to say that, given the somewhat controver

of the study’s process—to include even the supposed mandate of the IC

gage in this endeavor, not all States will find themselves in full agreemen

conclusions which are drawn therein. It is always useful to remember t

sence of customary international law in general, and the customary LOA

ticular, is State practice, and—for better or worse—the principal prac

the LOAC is the United States.

Mr. Lavoyer refers to the ICRC as the “promoter and ‘guardian’ of IH

enough. However, in his draft paper he then goes on to declare that, “B

assessment of the needs of the victims of armed conflicts, it is well placed 

clarifications or developments of humanitarian law.” With this assert

agree. Clarifying and formulating the LOAC is the domain of the int

community—not that of the ICRC. The former does not respond to the 

of the latter. Such an arrangement would far exceed the ICRC’s charte

sion. While the ICRC can play a vital role in facilitating the efforts of th

tional community in addressing LOAC matters, it cannot unilaterally 

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agenda. A prime example of the ICRC

s attempt to aspire to the latter is 

ment in Mr. Lavoyer’s draft paper that, the “[d]evelopment of humani

has to continue in specific domains. The restriction or prohibition of we

good example.” I would submit, to you, that such decisions regarding w

tems lies with the community of States—not the ICRC.

Let me now turn my attention to the primary point of discussion—Di

the US Administration’s subsequent pronouncement of a “war on t

manifest the need for a fundamental revision of the LOAC in the belief th

rent body of law is simply incapable of effectively dealing with this “ne

conflict”? Mr. Lavoyer says, “No”—I agree. He notes that

It has been asserted that terrorist attacks—including the attacks of September 11

as well as counter-terrorist activities were part of a global “armed conflict” in 

sense, an armed conflict that started years ago and that will continue until th

terrorist activities. Such a conclusion would have considerable consequences in 

especially if it is used to justify that States could theoretically strike the trans

group at any time and everywhere—without having to obtain any kind of appro

from those States on whose territories the military interventions take place.8

I agree that if the war on terror were considered as a “global armed conf

would be considerable consequences. But those consequences are not re

cause, for good reasons, it’s not a “global armed conflict.”

From a legal perspective, the “global war on terrorism” is simply hype

tion—a good political sound bite, but nothing more. Is this “declaration 

the Executive branch, vice Congress, truly intended to advise the int

community that the President, acting unilaterally, will now deploy 

forces across any international boundary or boundaries, with or withou

sent of the State or States concerned, to engage in combatant activity a

terrorist organization—regardless of the cause purported by such an 

tion? Pause for a moment to consider not only the LOAC concerns that s

nouncement would invoke, but the broad range of jus ad bellum issue

Indeed, the US congressional and United Nations Security Council resol

thorizing the use of force against the Taliban government of Afghanistan 

tied such a use of force against only those who engaged in the 9/11 atta

World Trade Center and the Pentagon—and those who assisted these 

als in their efforts. In no way can these resolutions be cited as authority f

rent Administration to unilaterally declare that it is engaged in a “glo

conflict” against “terrorism,” which itself is an undefined phenomenon

For this reason, we must continue to draw a sharp distinction betwe

“terrorism” to which numerous international conventions are appli

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what can legitimately be perceived as an unlawful 

armed attacka

United States committed by “unlawful combatants” or “unprivileged bel

i.e., al Qaeda personnel, aided and abetted by the Taliban government

fined international conventions and State domestic laws apply to terr

while the LOAC applies to the use of force undertaken in self-defense in 

to an armed attack. The United States must choose: Does it view al Qaeda 

as “terrorists” to whom the law relevant to terrorism applies, or does it 

individuals as “unlawful combatants” engaged in an unlawful belligeren

attack) against the United States and its citizens to whom the LOAC 

ble? It cannot have it both ways. When viewed in this context, one mu

the conclusion, arrived at by Mr. Lavoyer, that, if the United States do

ongoing use of force against al Qaeda as a response to an armed attack, 

requires no significant revision; it need only be applied.

While the current Administration might assert the validity of its use 

force against al Qaeda personnel—and those who support them—whe

might be found, even this claim must realistically be tempered by the rig

ereign States under existing international law. How, for example, does t

States realistically apply the LOAC to a global war against al Qaeda? 

United States targeted suspected al Qaeda members in Yemen, did it co

the applicable LOAC? With international law in general? Did the United 

the consent of the Yemeni government prior to its use of force within the la

ders? Absent the consent of any State in which al Qaeda personnel might 

ered, does the relevant Security Council resolution sanction the use of ar

by the United States within such a State? Does all of the LOAC apply to su

tions? If not, what provisions of the LOAC do apply? These are but a few o

tions associated with this subject that merit serious consideration—and re

The last issue I shall address among those discussed by Mr. Lavoyer 

status of those individuals captured by coalition forces in Afghanistan, a

ticular, those currently being detained at Guantanamo Bay. I agree with 

ment that the coalition military action taken against the Taliban governm

Qaeda operatives within Afghanistan clearly constituted an internation

to which the LOAC, in its entirety, applied—a fact belatedly and reluctan

to by the current US Administration. Given this fact, he questions why n

captured personnel have been afforded prisoner of war (POW) status—

fact, have been declared to be “unlawful combatants.” Again, he asserts 

not a matter that gives rise to a necessity for revising or amending the L

existing LOAC—the long established provisions of the Third 

Convention9—need only be applied. Once again I agree with Mr. Lavo

find myself in agreement with his contention that while he might under

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the relevant provisions of Article 4 of the Third Convention could be inte

such a way that POW status could be denied to all al Qaeda personnel, h

same be said to be true of members of the Taliban army as a whole? The q

the status of Taliban fighters deserves far more careful consideration tha

parently given it by the responsible US decision makers. While a case ca

for the decision not to accord POW status to the Taliban captives, som

gued that sound legal, as well as policy, considerations should have dict

ferent course of action.

Where I do disagree with Mr. Lavoyer, however, is with his contentio

US decision “To make a blanket determination and to disqualify from t

captured combatants from POW status raises serious concerns.”10 He s

contends that “If there is doubt about that status, competent tribunals a

in the Third Geneva Convention should come into action.”11 While this 

refers to Article 5 tribunals, he does not cite the text of this article, whic

part: “Should any doubt arise as to whether persons, having committed a 

act and having fallen into the hands of the enemy, belong to any of the 

enumerated in Article 4, such persons shall enjoy the protection of the pre

vention until such time as their status has been determined by a competent 

Mr. Lavoyer clearly implies that the United States had a LOAC obligat

Article 5 to employ tribunals to determine the status of both al Qaeda an

captives. Yet this is clearly not the case. An examination of Pictet’s Comm

veals that this provision was intended to apply only to deserters, and to 

sons who accompany the Armed Forces and who have lost their identi

Even more telling is the clear language of Article 5, itself: “Should any dou

to whether persons...belong to any of the categories enumerated in Art

(Emphasis added.) While one might argue with the Administration’s l

nale for determining that all al Qaeda and Taliban captives were to be 

“unlawful combatants,” one cannot posit the argument that there exist

gree of doubt on the part of the Administration as to the status of the ind

question. I would submit to Mr. Lavoyer—and to others who have rais

sue—that the “doubt” referred to in Article 5 must arise in the “mind” of 

turing Party,” not that of third States, the ICRC, or the collective psy

international community. When the President of the United States mak

mination as to the status of personnel captured by US armed forces on 

field, there would appear to be no doubt on the part of the Capturing Par

status of the individuals concerned, and, in the absence of such “dou

clearly exists no LOAC obligation to conduct Article 5 tribunals.

It is important, I think, that in the final analysis we are in agreeme

Lavoyer’s essential premise: The events of 9/11 do not call for r

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supplementing the LOAC. What is called for is a candid recognition of th

ture of the “conflict” in which the United States is engaged—and a goo

herence to both the law of armed conflict and the other controlling 

of international law.

Notes

1. Colonel David E. Graham, JA, USA (Ret.) is the Special Assistant to the Judg

General of the United States Army.

2. In advance of the conference, Mr. Lavoyer provided a draft paper for my review

my comments address the contents of that paper; others address the contents of his f

it appears in this volume. In this paper, I indicate to which I am referring.

3. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S

in DOCUMENTS ON THE LAWS OF WAR 422 (A. Roberts and R. Guelff eds., 3d ed. 2

4. Mr. Lavoyer’s paper, Should International Humanitarian Law Be Reaffirmed, 

Developed?, which is Chapter XVI in this volume, at 287.

5. Id. at 290.

6. Id. at 301.

7. Id. at 300.

8. Id. at 290, 291.

9. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 19

3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 

10. Lavoyer, supra note 4, at 292.

11. Id. at 292.

12. COMMENTARY, III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PR

WAR 77 (Jean S. Pictet ed., 1960).

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XX

Interoperability and the Atlantic Divi

A Bridge over Troubled Waters

Charles H. B. Garraway1

/11 has now passed into folklore. As everybody, in another generati

call where they were when they heard of the assassination of Presi

nedy, so for this, the first information of the terrible events that unfolded 

September day are indelibly engraved on the memory. I am a member of b

ations and just as I can recall standing in my school dormitory in Engla

with horror, at the news from Dallas, so I recall the cold shiver down my 

stood on the second tee of the famous Berkshire Golf Club, hearing on a ra

full volume on a local building site, the chilling account of what was hap

New York. By the time I returned to the Club House, the news from Washi

Pennsylvania was also in. The world would never be the same again.

The purpose of this article is to look at the effect of 9/11 on the field of in

and operational law, in particular on interoperability between the United 

Europe. For most of the last century, the United States and Europe (the Un

dom in particular), have worked together in the military field, to the grea

world peace. It has been like a marriage. We have been comfortable to

learned to work together, recognizing each others foibles. Difficulties have 

come with good will and a willingness to appreciate one another’s point of v

ever, I will be suggesting in this analysis that there seems now to be less und

and more talking across each other. I, like a good marriage guidance cou

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seek to go behind the rhetoric and try to look at what I see as the underlyin

this malaise. In medical terms, I will try to look at the root of the illness rath

symptoms. That may involve analyzing some difficult, and indeed sensitiv

I spent most of my career in the UK Army working in the field of int

and what we now call operational, law. To me, the former is the academ

the latter, in relation to the law of armed conflict, the practical applicatio

hand in glove. One of the advantages of being a military lawyer is that on

the academic and the practical, checking out the theory on the soundin

fact. The battlefield is a very practical place. There is no room for ivory tow

theories. Delays can cost lives. Decisions have to be instant. The law of go

often the lodestone. Over the years, I have learned that the law of armed c

vital tool in the commander’s tool box. However, just as with the myria

tools that can be found in that box, it must prove its usefulness if it is no

carded. Law that is impracticable will be disregarded on the battlefield. Th

and those of us involved in the negotiation of international treaties and th

ment of international law forget that at our peril. The law of armed conflict 

ways a Faustian pact between the interests of humanity and military rea

balance tilts too far in either direction the result is a breakdown in the whol

Much of my professional life has also been spent working with US fo

my early days as a young officer at the US Army JAG School at Charlotte

ginia, through a tour at Supreme Headquarters Allied Powers Europe in B

Operation Desert Shield/Storm, I have worked alongside my US colleague

ship and harmony. We have shared ideas and, on the surprisingly few 

when we have disagreed, we have worked together to find practical solut

practical problems that we have encountered. As a result, I have rarely fou

rious interoperability problems on the ground between UK and US force

But things are beginning to change. Since 9/11, there seems to have b

creasing disconnect between the United States and Europe. That appeare

its climax in the unseemly rows over the questions raised by Operation 

dom.2 The divide between the United States and what Secretary Rum

scribed as “Old Europe”3 opened into a chasm. The distrust, and in so

open dislike, that has developed will take a long time to overcome. Th

tente cordiale” appears to have broken down and even within the “sp

tionship,” there seem to be strains appearing. The United States and t

Kingdom appear at times to be moving along diverging tracks. Tony B

tempting to form a bridge between the United States and Europe has fo

self like a rider trying to sit astride two horses at the same time. At ti

horses have moved further apart than has been good for the health of 

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This divergence of political views has reached into other areas as well. W

law of armed conflict, stresses have appeared that are beginning to 

interoperability and hence operational efficiency. The United States is see

ingly as looking upon European forces as a liability rather than an asset 

tional terms. Traditional alliances are overlooked and there is growing em

“coalitions of the willing.”4 This began in Kosovo where the United Stat

impression of feeling constrained by its European allies, continued in A

where offers of assistance from European States (other than the United 

appeared to be declined, and culminated in Operation Iraqi Freedom. W

purported to be a coalition, it was one run very much on US terms. I h

been involved on the ground in Operation Iraqi Freedom working as part 

alition Provisional Authority and I have to admit that, in terms of interop

has been the hardest of all the operations in which I have participated.

Why is that? Where does this divergence spring from? I want to look at 

where problems have arisen and examine them in detail. What is the na

problems? How have they arisen and can they be overcome? Finally, I will 

to the future. Are the traditional alliances doomed to wither on the vine a

tual recriminations and increasing US isolationism? Or can these issues b

in such a way that the United States, acknowledged as the world’s only rem

perpower, will lead a willing, rather than recalcitrant, world in the pursuit o

I will start by jumping in the deep end of the pool. Probably the most 

agreement between the Atlantic allies has been over the question of 

combatants.” The issue of Guantanamo and its inmates has become 

sore. Yet, in my view, it need not be so. It has turned into a disagreeme

stance but in its early days, I would suggest that it was more a matter of l

As much as anything, it is the term “unlawful combatant” that has caused 

lem. It has confused the matter of combatant status and has led to som

facto lawyering that always, in my experience, leads to trouble.

In order to understand the problem, it is necessary to go back into the 

combatant status. By tradition, States had a monopoly on violence. O

could conduct wars and it was therefore for States to decide who could t

them. With the limited range of weaponry up until the last century, it wa

cult to have a clear division between those who were authorised by the St

part in warfare and those who were not so entitled. If these latter chose 

themselves in the hostilities, they were common criminals and could be p

for the acts that they carried out. Those who had official authorization h

munity which enabled them to carry out acts that would otherwise be 

without sanction. This immunity led to the development of “combatant 

represent those entitled to take part in hostilities. Those who were not 

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were 

noncombatants(though this distinction is somewhat confused 

3 of the Regulations attached to Hague Convention IV of 19075).

It is important to note that this concept, that combatant status arises 

entitlement of a State to authorize persons to take part in hostilities, is, o

limited to international armed conflict. There can be no “combatant imm

non-international armed conflict where one side—or in some situations s

malia, all sides—lack that essential authority. This previously accepted 

come under stress in recent years with attempts to bring together the law 

international and non-international armed conflict. There has been an 

tendency to use the term “combatant” in relation to participants in no

tional armed conflict. However, this loose use of language is, in my view, 

as the word is used in a separate sense from international armed conflict. P

in non-international armed conflicts remain subject to domestic law and 

forces have no immunity from that, even in respect of acts which would be 

under international law, such as attacks on military personnel or military 

There have, indeed, been some non-international armed conflicts where 

intensity has been such that a form of belligerent status has been accord

fighters, but these are the exception rather than the rule and such conces

usually been more for pragmatic than for legal reasons. The word “comb

always indicated a particular status and attempts to extend its use should b

In the arguments that have arisen out of Afghanistan and the Guantan

tion, similar loose use of language occurs and this can have an effect on so

mental tenets of international law as defined over the years. In the first in

“war on terror” raises the whole question of what is an international arme

By custom, this has been limited to conflicts between States. Under treat

defined in Common Article 2 of the Geneva Conventions6 as “all cases o

war or of any other armed conflict which may arise between two or more o

Contracting Parties, even if the state of war is not recognized by one of th

The inclusion of the words “High Contracting Parties” makes it plai

provision also involves States. Non-State entities fall outside its terms. Th

however well organised and however international their activities, cannot

ing State forces, create a state of international armed conflict so as to gain 

selves combatant status. They remain pirates and subject to the law 

piracy—not the law relating to armed conflict. Similarly, criminal org

such as the Mafia and drug cartels, despite having tentacles that reach acro

tional boundaries and often using levels of force that would in other circ

fall within the definition of “armed conflict,” cannot benefit by bringing t

out of the ambit of criminal law into the law of armed conflict. “Terroris

similar position, though in their case, the situation is complicated furth

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additional factors, the lack of an agreed definition of the term and the e

State sponsored terrorism. However, in this latter case, it is not the acts o

that may create an international armed conflict but the involvement of th

hind those acts. In cases where terrorists have no State sponsor, their a

criminal but cannot, in themselves, amount to international armed confl

The campaign in Afghanistan muddied the waters. It is beyond di

there was indeed an international armed conflict between the Coalitio

ghanistan. That meant that combatant status was an issue for those peop

in that conflict. But just because there was a specific armed conflict ta

does not mean that the status of “international armed conflict” extende

tivities in the “war against terror.” Even within the United States, som

“terrorists” were arrested and dealt with by the ordinary criminal justice 

follows that the first decision in relation to any attempt to obtain comba

is to identify the international armed conflict to which the claim relates

However, the mere identification of an international armed conflict i

cient. It is then necessary to examine the individual concerned to see if t

satisfies the definition of “combatant.” Not everybody to be found on 

field is necessarily a combatant.

Most examinations into the definition of combatant begin with Artic

Hague Regulations of 1907.7 This reads:

The laws, rights, and duties of war apply not only to armies, but also to mi

volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;

2. To have a fixed distinctive emblem recognizable at a distance;

3. To carry arms openly; and

4. To conduct their operations in accordance with the laws and customs of 

In countries where militia or volunteer groups constitute the army or form p

they are included under the denomination “army.”

The Hague Regulations were accepted as reflecting customary internati

Nuremberg and their terms have been relatively unchallenged. However, 

Article lie the seeds of a controversy that has surfaced in the first part of th

tury, one hundred years later. It will be noted that the four conditions only 

apply to militia and volunteer corps who do not “constitute the army or fo

it.” Does this mean that the “army” itself is exempt from these conditions? T

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is not as easy as it might seem. At the time, in 1907, the difficulties in distingu

tween combatants and non-combatants were not so severe. Battlefields w

most part linear and armies, almost by definition, wore distinguishing featu

of uniform. It was therefore not necessary to require armies to comply with 

ditions because it was assumed that they would. This view is supported b

both within the United States and the United Kingdom which made it clear 

bers of armed forces could not excuse themselves from compliance.8

The definition contained in the Hague Regulations would stand unti

spite huge changes in the nature of warfare. It was reinforced by the Thi

Convention of 1949 which dealt with prisoner of war status. This grante

of war status, inter alia, to:

(1) Members of the armed forces of a Party to the conflict as well as mem

militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, includ

of organized resistance movements, belonging to a Party to the conflict and ope

or outside their own territory, even if this territory is occupied, provided th

militias or volunteer corps, including such organized resistance movements, f

following conditions:

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

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

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and c

of war.”9

Apart from the wording specifically referring to organized resistance m

which I have highlighted, this is taken directly from the Hague Regulations

the same assumption is made in the distinction between armed forces and “

tias and members of other volunteer corps” which do not form part of 

forces. Anybody who had suggested in 1949 that armed forces were exempt 

pliance with the four conditions would have been looked at with considera

ment. Did the conditions not provide a definition of what armed forces we

This is made plain by the Commentary to the Third Geneva Conven

lished by the International Committee of the Red Cross (ICRC), which s

lation to Article 4:

The drafters of the 1949 Convention, like those of the Hague Convention, consid

it was unnecessary to specify the sign which members of the armed forces should 

the purposes of recognition. It is the duty of each State to take steps so that memb

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y gy 

distinguishable from members of the enemy armed forces or from civilians.10

In 1977, in Additional Protocol I to the Geneva Conventions,11 an at

made to bring together the separate strands of “Hague” and “Geneva” 

cles 43 to 47 deal with “Combatant and Prisoner-of-War Status.” Som

provisions are controversial and undoubtedly do not represent custo

However, others are uncontroversial and, whilst perhaps a restatement 

flect an international consensus. Amongst those provisions is Article 4

in part, reads:

1. The armed forces of a Party to a conflict consist of all organized armed 

groups and units which are under a command responsible to that Party 

conduct of its subordinates, even if that Party is represented by a governme

authority not recognized by an adverse Party. Such armed forces shall be su

an internal disciplinary system which, inter alia, shall enforce compliance 

rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical pe

and chaplains . . . ) are combatants, that is to say, they have the right to pa

directly in hostilities.

While this may seem to be a withdrawal from the Hague standards, Arti

makes it clear that: “. . . all combatants are obliged to comply with the rul

national law applicable in armed conflict. . . .” Article 44(3)14 lays down 

rule that: “. . . combatants are obliged to distinguish themselves from t

population while they are engaged in an attack or in a military operatio

tory to an attack. . . .” Article 44(7)15 states that: “This Article is not in

change the generally accepted practice of States with respect to the wea

uniform by combatants assigned to the regular, uniformed armed units 

to the conflict.” These provisions provide a general format little removed 

contained in the Hague Regulations. As the ICRC Commentary puts it: 

visions of Article 4 of the Third Convention are fully preserved.”16

Articles 44 to 47 of Additional Protocol I also deal with a number of u

uations, including that of spies and mercenaries. It is here that controve

particularly in Article 44(3) which deals with exceptional circumstances 

duty to distinguish can be relaxed. These provisions lay down that, in ce

of non-compliance, the combatant may forfeit his right to prisoner-of w

while in others he forfeits his right even to combatant status.

Additional Protocol I is also significant because, for the first time, it a

define the term “civilian.” Essentially, a civilian is anyone who is not a c

other than those who have lost their combatant status under Articles 

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The principle is clear. There is no gap; a person is either a combatant or 

However, just as it is possible to lose combatant status, and the immunit

with it, by failure to comply with the rules, so the protection given to civ

also be lost if “and for such time as they take a direct part in hostilities.”

While the drafting of Protocol I is hardly a model of clarity with diffe

being used almost interchangeably at times, one thing does appear to st

combatant who loses the right to combatant status does not become a c

the same way, a civilian who loses his right to protection as a civilian do

come a combatant. Each remains within their respective designation bu

rights and privileges attached to that designation.

How does this affect the situation in Guantanamo? It would appea

term “unlawful combatant” is being used in a generic sense to cover a m

different categories of people. First there are those who might be descri

armed forces of Afghanistan. Such people may well fall within the de

“combatant” within the law of armed conflict. Some may have c

breaches of the law of armed conflict. That will not necessarily deprive th

right to combatant status or to combatant immunity, and consequent

oner-of-war status.18 However, that immunity only extends to legitim

warfare and so they will be liable to trial and punishment for unlawful a

people can perhaps be described as “combatants acting unlawfully.”

Others may also fall within the definition of “combatant” but by th

have forfeited the right to that status or to combatant immunity.19 Th

can be tried not only for war crimes but, since they have forfeited their c

immunity, for acts that would otherwise be legitimate acts of war. It is th

of person for whom the title “unlawful combatant” is perhaps the clos

even then, it does not really adequately describe their position.

There are also those who do not begin to fit within the definition of c

but who choose to take part in the hostilities. These people can never be 

as “combatant” and therefore begin with the status of “civilian.” Ho

their acts, they have forfeited the rights and privileges that go with th

“civilian.”20 They do not become “combatants” but can be tried for th

they have taken in the hostilities since they have no entitlement to ta

part. It is misleading to describe such people as “unlawful combatant

never were combatants, whether lawful or unlawful. My preferred de

even if it seems somewhat dated to the modern ear, is that used b

Baxter, “unprivileged belligerents.”

It will be noticed that I have avoided such terms as “Taliban” or “al Q

not find such terms helpful in this analysis. The law of armed conflict 

factual situations rather than titles. Thus, there will be Taliban members 

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not be described as 

combatantsunder any circumstances and, possibl

Qaeda who could. That does not mean to say that such personnel nece

entitled to be treated as combatants but only that they fall on that side of 

ing line at the first assessment. Their subsequent conduct as combatant

disqualify them from being entitled to be treated as combatants, or to 

oner-of-war status.

I said at the start that this issue began as a matter of linguistics but is no

into an issue of substance. If the use of the term “unlawful combatant” 

nally loose language, it has now begun to take on a meaning of its own 

ments being advanced that there is indeed such a category of perso

summed up by the words of Professor Dinstein: “One cannot fight the e

remain a civilian.”21

The core of the argument here is that a civilian who takes a direct part 

ties not only loses his civilian protection, but also his status as a civilian. 

becomes a combatant. However, because he does not come within the de

a combatant as laid down in the law of armed conflict, he gains none of 

and privileges of a combatant but becomes, in effect, an “outlaw.” It is th

to whom the term “unlawful combatant” is most appropriately applied

As will be apparent, I can find no basis in law for this new category—

think it is necessary. Dinstein states: “Under the ius in bello, combatan

sons who are either members of the armed forces (except medical and 

personnel) or—irrespective of such membership—take an active part in h

an international armed conflict.”22 [My emphasis]. Cited as authority for 

ment is the Model Manual on the Law of Armed Conflict, published by the 

entitled “Fight it Right.”23 The same authority is cited in the Israeli respo

Mitchell Report where a similar proposition is put forward.24

I regret to say that I have been unable to find anything in that ICRC Man

would support this proposition. Certainly, the paragraphs of the Manual c

Israeli response25 fall some way short of that and it would indeed be surpr

ICRC, of all people, were to put forward such a view which would seem 

considerably the definition of “combatant,” whether lawful or unlawful.

Paragraph 601 of the Manual states:

a. Only combatants may:

(1) take a direct part in hostilities, and

(2) be attacked.

b. Combatants are members of the armed forces of a party to the conflict 

medical and religious personnel.

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Paragraph 601 goes on to describe activities prohibited to civilians bu

does it state that civilians, by taking a direct part in hostilities, become com

Similarly paragraph 1106c merely states: “Civilians are protected unl

such time as they take a direct part in hostilities.” Despite the grammati

sistency, this again does not in any way imply that civilians become co

merely that they lose their protection.

Dinstein goes on to say: “A civilian may convert himself into a comba

the same vein, a combatant may retire and become a civilian.”26 The 

drawn here are incomplete. Indeed, a civilian can convert himself into a co

by bringing himself within the definition of “combatant” by, for example, 

armed forces. The combatant, by retiring, has ceased to come within that 

and therefore has become a civilian. The combatant does not, however, beco

ian if he goes off to occupy himself in civilian pursuits. A soldier und

university course at a civilian institution remains a combatant even though 

indistinguishable from the civilian students surrounding him.

Dinstein further states: “Combatants can withdraw from the hostilitie

by retiring and becoming civilians, but also by becoming hors de combat.

But even hors de combat, the combatant retains his combatant status. 

gains extra protection in return for not taking part in the hostilities. H

change his status and become a civilian.

There is a justifiable concern about what is sometimes described as th

ing door syndrome”—the farmer by day and the fighter by night. This 

problem which needs addressing. However, I would suggest that it can b

better by looking again at the interpretation of Article 51(3) of Additional P

That provision reads: “Civilians shall enjoy the protection afforded by th

unless and for such time as they take a direct part in hostilities.” [My emp

here that the difficulty is to be found that leads to the “revolving door synd

it may be necessary to take a wider view of the period during which protec

It is clearly impracticable to argue that the civilian who takes part in a hos

gains his immunity as soon as that act is completed. However, the tempora

of the loss of protection needs to be limited in some way. International law 

allow for a permanent loss of protection so that, years after the act, the 

mains vulnerable, even if he has taken no part in the hostilities since.

On the other hand, the term “combatant” has always been narrowly 

and limited to international armed conflict. The current attempts to e

definition, and to widen the definition of “war” or “armed conflict,” am

slippery slope. It is difficult to come up with clear boundaries and giv

much freedom to interpretation. While the events of 9/11 pose a real ch

the forces of law and order all over the world, the solution arrived at by th

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of this new category of 

unlawful combatant,although understandable

view, unsound and, in less scrupulous hands, could be manipulated in s

as to remove to a large extent the protections built into the law for both co

and civilians.

The second area that I wish to look at is the question of war crimes and, 

lar, methods of trial. I want to move between the Scylla of international ju

as exemplified by international tribunals, and in particular the Internatio

nal Court, and the Charybdis of universal jurisdiction, particularly whe

bring charges against individuals in States with no links to the crime itse

tims or the alleged participants. These are both interesting subjects in 

right but I will concentrate primarily on the controversy caused by the U

als to hold military commissions to deal with alleged war crimes.29 I will 

self further to the nature of the commissions themselves, rather than th

issue of their jurisdiction which is primarily a question of US domestic 

I believe that the United States has been somewhat surprised by the s

the reaction by their European allies against the concept of military comm

While some of this antipathy is undoubtedly caused by specific detail suc

arising from the death penalty and the apparent limitations on the rights 

fense,31 there is a more fundamental objection which is rather a cultu

than a legal one. Again, only by appreciating this, can the two sides reach 

of modus vivendi.

There is no doubt that there is a duty upon States to deal with violat

laws of armed conflict. The ideal method of so dealing is by national ju

but that may not always be possible. The Afghan courts, for example, are 

a fit state to deal with such cases even if the United States were prepared 

people to be so tried. Furthermore, not all States have given themselves ju

to deal with the full array of international crimes arising out of armed co

quasi conflict situations. There is, therefore, no reason why the Coaliti

not be entitled to take action themselves. Indeed, it is not so much th

cases will be brought but rather the forum that has caused the disquiet.

Military tribunals have a long and distinguished record. After World W

majority of war crimes trials were dealt with by way of national military t

They had the advantage that they could sit anywhere in the world and n

ited by territorial considerations. In the Geneva Conventions, the use o

courts to try certain categories of offense was not only approved but m

Prisoners of war are made “subject to the laws, regulations and orders 

the armed forces of the Detaining Power.” Article 84 of the Third Conv

particular, provides that:

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py y y , g 

Detaining Power expressly permit the civil courts to try a member of the arme

of the Detaining Power in respect of the particular offence alleged to ha

committed by the prisoner of war.33

Similarly, in relation to occupied territories, Article 66 of the Fourth C

provides that, in respect of breaches of penal provisions of occupation la

Occupying Power may hand over the accused to its properly constituted, n

cal military courts, on condition that the said courts sit in the occupied c

In the light of this, why is there this visceral reaction by many Europeans 

by the United States of military commissions?

The answer lies in two separate areas, though there is a link between t

is historical and the other legal. In historical terms, since the end of Wor

military justice in general has earned a bad reputation. While in t

States—and the United Kingdom—we remain proud of our military an

as a bastion of our national freedom, this is not so in many other parts of 

The history of South America and the independent African States has b

military dictatorships and even in Europe, the military, in the old c

States, was seen as a symbol of repression rather than a flag carrier for free

jurisdiction of military courts was extended so that they became part o

system of control over the civilian population. “Security courts,” often m

military personnel, enabled these dictatorships to survive. “Military ju

came a contradiction in terms.

Linked to this is the rise of human rights, particularly in Europe. The 

Court of Human Rights, under the auspices of the Council of Europe, h

probably the most influential human rights body in the world.35 Its judge

binding on members of the Council of Europe and the Court has adop

gressive attitude to human rights in general. It sees the European Conv

Human Rights (ECHR) as a living document which may need to be rei

as circumstances change. One of the key rights embodied in the Conven

right to a fair and impartial trial.36

In recent years, particularly since the fall of the Berlin Wall and th

Eastern European judges on to the bench, the Court has been called upo

ingly to rule on matters relating to the military. Many of these rulings are 

as a result of cases brought in relation to military justice. The suspicions 

justice which have inevitably arisen out of the misuse of such systems b

ships of different types have been apparent in rulings by the Court. W

1949, when the Geneva Conventions were drafted, military justice was a

fair and impartial, now it is not necessarily so accepted and increasing r

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have been imposed upon its use. For example, over the last ten years both 

mary justice system and the court martial system used by the UK armed f

had to be utterly overhauled as a result of rulings by the European Court 

Rights.37 The assumption that military officers will conduct their dutie

partiality, favour or affection” has been replaced almost by an assum

other way. Any trace of possible bias or command influence has to be re

that justice is not only seen to be done but manifestly seen to be done.

In some countries, such as Belgium, there have been moves towards 

the military justice system altogether and in many other continental 

military personnel already are dealt with by civil tribunals. The trend is 

edly away from military justice and in particular to any exercise of milit

over civilians. It follows that what was acceptable in occupied Germany i

even in 1949, is not acknowledged as necessarily acceptable now. The Un

dom, for example, has legislation in the form of a Royal Warrant da

1945,38 permitting the establishment of military courts to try war crimes. 

the legislation is now effectively obsolete as it has not been updated for 

years and any attempt to do so would probably fail politically. The Roya

therefore has been left to wither on the vine.

The question of how to deal with war crimes is a very real one and n

addressed. It arises again in relation to Iraq, though in that case, it is likely 

cases will be tried before Iraqi courts. The correct disposal of such cases 

of international concern and it is therefore important that some degree 

sus is reached on a way forward. If war crimes trials, whether carried out 

tic civil courts or by military tribunals, are not seen as fair and im

international standards, then they will cause another running sore in t

tyrs” will be created and allegations of “victors’ justice” will again circu

Like most in the US or UK military, I am convinced that my nationa

military justice is as fair as it could be, and in many cases fairer than the c

which some would like to replace it by. However, that is in itself insuffici

is an inbuilt suspicion of military justice brought about by years of misus

Failure to appreciate that suspicion—and the reasons behind it—will sim

to increase the divide between the United States and Europe. On the othe

appreciation may lead to dialogue which can only serve to bridge the ga

becomes too great.

The third area with which I wish to deal is linked to this. It is the grow

of human rights law in general on operations. For decades, human rights l

law of armed conflict developed separately, partly because the United N

reluctant to involve itself in the law of armed conflict, seeing an inheren

tency in its role to abolish war as a means of dispute resolution. However, 

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more pragmatic approach was adopted and the updating of the law carried 

1977 Additional Protocols to the Geneva Conventions grew out of initiati

in the human rights community.39 Indeed, there are clear resonances 

rights law in some of the drafting, particularly in Additional Protocol II.4

However, there has never been an attempt to define the relationshi

the two legal systems, and as human rights law has increased both in sco

applicability, it was inevitable that the two would eventually run up ag

other. By tradition, human rights law has been seen as applicable in peac

the law of armed conflict in time of war, but in law that has never been so

man rights treaties do indeed have provisions allowing some form of der

time of war, but such derogation is usually limited and closely defined. 

ple, Article 15 of the European Convention on Human Rights provides

1. In time of war or other public emergency threatening the life of the nation a

Contracting Party may take measures derogating from its obligations un

Convention to the extent strictly required by the exigencies of the situation, provi

such measures are not inconsistent with its other obligations under internation

2. No derogation from Article 2 [Right to Life], except in respect of deaths 

from lawful acts of war, or from Articles 3 [Prohibition of Torture], 4(parag

[Prohibition of slavery] and 7 [No Punishment without Law] shall be mad

this provision.

3. Any High Contracting Party availing itself of this right of derogation shall 

Secretary General of the Council of Europe fully informed of the measures 

has taken and the reasons therefore. It shall also inform the Secretary Gener

Council of Europe when such measures have ceased to operate and the prov

the Convention are again being fully executed.41 [My emphasis.]

It follows from this that the Convention is indeed applicable in time of war 

any derogation. Such derogations cannot include certain articles and furthe

European Court of Human Rights has taken to itself the right to decide on w

particular derogation is indeed “strictly required by the exigencies of the situ

Despite this, it has only been in recent years that the Court has begun 

involved in operational matters. There have been a number of cases invo

ish military operations in Northern Ireland, including the McCann ca

with the shootings of IRA terrorists in Gibraltar.43 There have also been 

cases arising from the Kurdish insurgency in Eastern Turkey44 and som

occupation of Northern Cyprus.45 For the most part, in such cases the 

looking at domestic law issues and comparing them with the terms of th

tion. For example, in the McCann case, the British Government did not s

forward an absolute right to shoot the three terrorists but sought to justi

ings by the fact that the soldiers believed that the terrorists might be 

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explode a remote

controlled device. Indeed, the actions of the soldiers i

were specifically upheld by the Court though the United Kingdom was 

(by a majority of one) on other grounds. The Court has not yet had to e

any depth the interplay between the Convention and the law of arme

However, this can only be a matter of time.

In the Bankovic case,46 the Court was asked to rule on the legality of th

the TV station in Belgrade carried out by NATO forces during the Kosovo 

An action was brought by some of the survivors of that attack and relat

dead against all the European NATO States alleging a breach of Article 2, t

life. The case was dismissed on the technical grounds that the applicant

“within the jurisdiction” of any of the States concerned. However, had th

ceeded to arguments on the merits, some interesting points would have a

first and most important would have involved the applicability of the Co

The United Kingdom, for example, had not sought to derogate from the C

in relation to the Kosovo campaign. Would that have meant that they coul

taken advantage of the exemption for “lawful acts of war” under Article 

what would be the position if the action, even if legitimate under the law 

conflict, failed to meet the exacting standards of Article 2 of the Convent

Sooner or later, such issues are going to arise and the Court will have 

the relationship between the two legal systems. Will it defer to the law 

conflict or will it seek to impose some form of human rights supremacy? 

national Court of Justice in the Nuclear Weapons case47 referred to the law 

conflict as a “lex specialis” and it would seem the most sensible soluti

Court to defer to that law where there appears to be a conflict. This appe

the line taken by the Inter-American Commission on Human Rights in 

case.48 However, in the later Las Palmeras case,49 the Commission seem

cate that it could not take into account the law of armed conflict as its co

only entitled it to make decisions based on the human rights treaties und

was established. Such a line would appear to put the human rights comm

collision course with the law of armed conflict.

However, assuming that common sense prevails and that the lex specialis 

is upheld, there remains the question of the detailed interrelationship betwe

systems. For example, Article 5 of the Third Geneva Convention provides 

Should any doubt arise as to whether persons, having committed a belligeren

having fallen into the hands of the enemy, belong to one of the categories enu

in Article 4 [entitlement to prisoner-of-war status], such persons shall e

protection of the present Convention until such time as their status h

determined by a competent tribunal.”50 [My emphasis.]

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The Convention does not seek to define further what a 

competent t

or what procedures should be adopted by that tribunal. In the absence of 

gation, is the nature of the tribunal and its procedures governed by hum

law and if so to what extent? These are untested questions and while ten 

no one would have given them a second thought, they are now beginning 

very much on the radar. European governments increasingly have to ta

count the possible effects of the European Convention on military opera

at home and abroad.

This will inevitably affect interoperability between US and European f

United States is obviously not a party to the European Convention and w

its own human rights obligations, it would rightly not consider itself bo

terpretations laid down by the European Court of Human Rights. How

issues are not new. NATO has for many years operated with States being 

different legal obligations. Most NATO States are parties to Additional P

the United States and Turkey are not. In the past, this has caused few pro

result of close consultation leading to agreed procedures. Each side reco

obligations of the other and agreed to work round them.

A similar problem arises, I would suggest, with the European Conv

Human Rights. It does impose certain restrictions on European partner

more, because of the uncertainty as to its scope at the present time, Euro

likely to be cautious in areas where it could be held to be applicable.

And so what does the future hold? The United States has a number of 

could simply say, in relation to coalition operations, “We are the mos

and we don’t have to bother with this.” That would be understandable 

lead to an inevitable isolationism. The number of operations on which 

United Kingdom would be able to assist and support would be greatly re

it would leave the United States with no choice but unilateral action

friends and allies on the sidelines. Such a choice would be unfortunate.

The alternative is to sit down and try to work through these issues. I d

sider that any are insurmountable. What is required is a willingness to u

each others position and to be sensitive to that position. At the same tim

essary for the human rights and law of armed conflict communities to 

dialogue to ensure that the two systems remain complimentary. If the

contradictory, then I would suggest that nobody wins and the world will 

dangerous place. If the lawyers cannot agree, then the commanders 

plague on both houses and both systems will be discredited. On the battl

credited law amounts to no law at all.

I return to my theme of marriage guidance. Do I consider that the ol

are subject to irretrievable breakdown? Not at all. However, what is 

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greater communication between the parties and a willingness to talk 

other rather than at each other. Furthermore, each side needs to respect 

position and seek to accommodate it.

But then has any marriage guidance counselor ever said anything dif

Notes

1. Professor Garraway was the Charles H. Stockton Professor of International La

Naval War Collegefor academic year 2004–2005.

2. An interesting analysis of the “war of words” can be found in Nicole Mowbray’s r

Observer of 16 February 16, 2003, under the heading “Cheese-eating monkeys 

merde,” available at http://observer.guardian.co.uk/iraq/story/0,12239,896588,00.h

3. See “Secretary Rumsfeld Briefs at Foreign Press Center” on January 22, 2003, 

http://www.defenselink.mil/news/Jan2003/t01232003_t0122sdfpc.html.

4. For an interesting viewpoint, see John C Hulsman, Heritage Lecture No.777, F

2003, available at http://www.heritage.org/Research/Europe/hl777.cfm.

5. Regulations Annexed to Convention (IV) Respecting the Laws and Customs of W

The Hague, Oct. 18, 1907, reprinted in DOCUMENTS ON THE LAWS OF WAR 73 (Adam 

Richard Guelff eds., 3d. ed. 2000). Article 3 divided the armed forces into “combatan

combatants” (logisticians, etc.) but granted to both categories the right to be treated 

of war.

6. Convention for the Amelioration of the Condition of the Wounded and Sick in A

in the Field, Geneva, Aug. 12, 1949, 75 U.N.T.S .31–83 [Geneva Convention I]; Con

the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Membe

Forces at Sea, Geneva, Aug. 12, 1949, 75 U.N.T.S. 85–133 [Geneva Convention II]; 

Relative to the Treatment of Prisoners of War, Geneva, Aug. 12, 1949, 75 U.N.T

[Geneva Convention III]; and Convention Relative to the Protection of Civilian Pers

of War, Geneva, Aug. 12, 1949, 75 U.N.T.S. 287–417 [Geneva Convention IV]; all 

Roberts & Guelff, supra note 5, at 197, 222, 244 and 301, respectively.

7. Supra note 5.

8. See, for example, Mohamed Ali v. Public Prosecutor (1968), 1 All.E.R.488, a dec

Judicial Committee of the Privy Council arising out of the Malayan insurgency, 

United States, ex Parte Quirin, 317 US1 (1942).

9. Geneva Convention III, supra note 6, art. 4 (emphasis added).

10. THE GENEVA CONVENTIONS OF 12 AUGUST 1949: COMMENTARY, III GENEVA C

RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 52 (Jean S. Pictet et al., eds., 1

11. Protocol Additional to the Geneva Conventions of 12 August 1949, and Rel

Protection of Victims of International Armed Conflicts (Protocol I), Geneva, June 8

U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 422.

12. Id. at 444.

13. Id.

14. Id.

15. Id. at 445.

16. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO TH

CONVENTIONS OF 12 AUGUST 1949 ¶1686, at 522 (Y. Sandoz, C. Swinarski & B. Zi

eds., 1987).

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p

18. Id., art. 44(2).

19. A simple example of this is the position of mercenaries as defined in id., Articl

20. Id., art. 51(3).

21. Yoram Dinstein, Unlawful Combatants, 32 ISRAEL YEARBOOK ON HUMAN R

248 (2002).

22. Id. at 247

23. MODEL MANUAL ON THE LAW OF ARMED CONFLICT (A. P. V. Rogers & P

eds., 1999).

24. Sharm El-Sheikh Fact-Finding Committee: Second Statement of the Governm

March 20, 2001, at para. 46, available at http://www.israel.org/mfa/go.asp?MFAH0

25. ¶¶ 601 and 1106(c).

26. Dinstein, supra note 21, at 247–248.

27. Id. at 248.

28. Additional Protocol I, supra note 11.

29. See Military Order of November 13, 2001, “Detention Treatment and Trial of C

Citizens in the War Against Terrorism,” Federal Register: Nov. 16, 2001, Vol. 6

available at http://www.fas.org/irp/offdocs/eo/mo-111301.htm.

30. See Jim Lobe, “Britain, EU Set to Protest US Military Tribunals at Guantanam

Policy Forum, available at http://www.globalpolicy.org/empire/un/003/0707tribun

31. See Human Rights Watch Briefing Paper on US Military Commissions, Jun

available at http://www.hrw.org/backgrounder/usa/military-commissions.htm.

32. In the case of the United States, these were established under Military G

Ordinance No. 7. See Germany, 1947–1949: The Story in Documents, US Govt. P

Washington DC, 1950, at 112.

33. Geneva Convention III, supra note 6, art. 84.

34. Geneva Convention IV, supra note 6, art. 86.

35. Information about the Court can be obtained from the ECHR website, availab

www.echr.coe.int/Eng/General.htm.

36. Article 6, Convention for the Protection of Human Rights and Fundamenta

Rome, November 9, 1950 (European Convention on Human Rights), reprinted in L

EUROPEAN CONVENTION ON HUMAN RIGHTS 163–4 (D. J. Harris, M. O’Boyle & C

eds., 1995).

37. See, e.g., Findlay v. United Kingdom, 24 European Human Rights Reports 221

38. See Regulations for the Trial of War Criminals (Army Order 81/194), reprinted 

XXV, The Law of War on Land being Part III of the Manual of Military Law 347 (1

39. The momentum for the diplomatic process that lead to the adoption of the 

Protocols began with the 1968 International Conference on Human Rights held at 

40. See, in particular, Article 75, Protocol I, supra note 11, and Articles 4 to 6 

Additional to the Geneva Conventions of 12 August 1949, and Relating to the P

Victims of Non-International Armed Conflicts (Protocol II), Geneva, June 8, 

U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 483

41. European Convention on Human Rights, supra note 36, art. 15.

42. See Ireland v. UK (1978), 2 EHRR 25.

43. See McCann v. UK (1995), 21 EHRR 97.

44. See, e.g., Aksoy v. Turkey (1996), 23 EHRR 553 and Ergi v. Turkey (Application 

Judgment 28 July 1998 (1998-IV, 1751).

45. See, e.g., Loizidou v. Turkey, 23 EHRR 513.

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gg (

47. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 19

(July 8).

48. Juan Carlos Abella v. Argentina, Case 11.137, Report No 55/97, Inter-Am.C

Ser.L/V/II.95 Doc.7 rev at 271 (1997), available at http://heiwww.unige.ch/hum

1997/argentina55-97a.html.

49. See Las Palmeras v. Columbia, Judgement on Preliminary Objections, Inter

(Ser.C), No.67 (2000) of 4 February 2000, available at http://www.corteidh.or.c

index_serie_c_ing.html.

50. Geneva Convention III, supra note 6, art. 5.

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APPENDIX

CONTRIBUTORS

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Contributors

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

The Honorable Alan Bakeris the Legal Adviser to the Israel Ministry 

Affairs and is presently involved in the Middle East peace process negotia

the Palestinians. Ambassador Baker has participated in the negotiating 

ing of peace treaties and other agreements between Israel and Egypt, Jor

non and the Palestine Liberation Organization for nearly thirty years. H

participated in numerous international conferences and negotiations 

fields of international law including law of the sea, aviation law, human

and disarmament treaties. Ambassador Baker represented Israel in 

United Nations Diplomatic Conference on the Establishment of an Int

Criminal Court and the General Assembly’s Preparatory Committee on 

lishment of an International Criminal Court. He is the author of severa

international and humanitarian law.

Professor Yoram Dinstein is currently serving a second appointm

Charles H. Stockton Professor of International Law at the US Naval Wa

He is also a member of the prestigious Institute of International Law, to 

132 leading international lawyers in the world are elected by cooptation 

is a former Humbolt Fellow at the Max Planck Institute of Foreign, Co

and International Law in Heidelberg, Germany and has been a Visiting P

numerous universities including the University of Toronto, New York 

and the International Human Rights Law Institute, DePaul University 

Law. Professor Dinstein has also served as Professor of Internati

Yanowicz Professor of Human Rights, and President (1991–1998), Rect

1985) and Dean of the Faculty of Law (1978–1980) at Tel Aviv Universit

of Israel, Professor Dinstein has represented his country in various int

fora, including the UN Human Rights Commission, the International 

Conference, and Interpol. He is a member of the Council of the S

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International Institute of Humanitarian Law with which he helped pr

San Remo Manual on International Law Applicable to Armed Conflicts a

fessor Dinstein is the founder and Editor of the Israel Yearbook on Hum

and has written extensively on subjects relating to international law, hum

and laws of armed conflict.

Professor Thomas M. Franck is the Murry and Ida Becker Profess

Emeritus at the New York University School of Law. He has served as pr

the American Society of International Law, Editor-in-Chief of the Ame

nal of International Law and Director of the Center for International Stu

New York University School of Law. Professor Franck is also a mem

Board of Advisors to the European Journal of International Law, the Au

view of International and European Law and Transnational Publishers, In

sor Franck has advised or counseled several governments, includin

Zanzibar, El Salvador, Guatemala, Greece and Cyprus. As an advocate 

International Court of Justice (ICJ), he has successfully represented Ch

cently represented Bosnia in a suit brought against Yugoslavia under the 

Convention. In addition, he has served as an ad hoc judge at the ICJ. 

Franck has also been a visiting professor at numerous universities inclu

ford, Princeton and Cambridge and is a two-time recipient of the p

Guggenheim Fellowship. He is the author of numerous books and article

national and comparative law.

Colonel Charles H. B. Garraway, CBE, is currently serving in the M

Defence in London advising on issues of international law. Colonel G

previous tours of duty have included assignments in Cyprus, Germany

(SHAPE) and Hong Kong, and various tours in the United Kingdom. H

mer Visiting Fellow at the Research Centre for International Law, Camb

versity (now the Lauterpacht Centre) and a Member of the Internationa

of Humanitarian Law at San Remo where he has taught since 1994, as we

ing on various Committees of Experts. Colonel Garraway is also a mem

Board of Directors of the International Society for Military Law and t

War and was one of the General Rapporteurs for the 2003 Congress in 

served as Chairman of the General Affairs Committee. He has repre

United Kingdom at various international conferences, including the P

Committee for Amended Protocol II to the Conventional Weapons Co

the Diplomatic Conference on the Second Protocol to the Hague Cultura

Convention and negotiations on the establishment of an Internationa

Court. During the 1990–1991 Gulf War, he served as senior Army Leg

Officer where he was involved, in particular, with prisoner of war ha

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December of 2002, Colonel Garraway was appointed a Commander o

Excellent Order of the British Empire by Her Majesty The Queen.

Colonel David E. Graham, JA, US Army (Ret.), is the Special Assist

Judge Advocate General of the US Army. His previous duty assignmen

Chief, International and Operational Law Division, Office of the Judge 

General; Director, Center for Law and Military Operations at the Judge 

General’s School of the Army and Chief, Strategic Planning, Office of 

Advocate General. Colonel Graham also served as a legal advisor to the 

tional Force and Observers (MFO) in Sinai (1981–1982). Colonel Grah

a Bachelor of Arts in History from Texas A&M University, and Master 

International Affairs from the George Washington University and a Jur

ate from the University of Texas. He is also a Distinguished Graduate 

tional War College.

Captain David Grimord, JAGC, US Navy, is the Deputy Judge Advo

eral for International and Operational Law (Code 10) in the Office of the 

vocate General of the United States Navy. Prior to his current assignmen

Grimord was the Staff Judge Advocate, Headquarters, United States Pac

mand. Captain Grimord received his Bachelor of Arts from Albion Colle

Juris Doctorate from Ohio Northern University in 1978; Master of Law

national and Comparative International Law from George Washington 

in 1986; and Master of Arts in National Security Studies from the US N

College. He was commissioned in 1977 and admitted to the Supreme 

Ohio in 1978. Captain Grimord’s prior military assignments include I

Joint Military Operations Department, US Naval War College; Fleet Ju

cate for Commander, Seventh Fleet; and Deputy Staff Judge Advocate, 

Command. From 1991–1992, Captain Grimord served as an Internat

Advisor, Headquarters, Australian Defence Force.

Professor Wolff Heintschel von Heinegg is Professor of Public Int

Law at the University of Frankfurt-Oder and former Professor of Law a

versity of Augsburg, Germany. He was the Rapporteur of the Internation

sociation Committee on Maritime Neutrality and is currently the Vice

of the German Society of Military Law and the Law of War. Professor H

von Heinegg was among a group of international lawyers and naval ex

produced the San Remo Manual on International Law Applicable to Arme

at Sea. He is a widely published author of articles and books on the law 

and naval warfare.

Mr. Jan Hladík is a Programme Specialist, International Standards Se

vision of Cultural Heritage of the United Nations Educational, Scientifi

tural Organization (UNESCO) in Paris where he is responsibl

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implementation of the 1954 Hague Convention for the Protection o

Property in the Event of Armed Conflict and its two Protocols of 1954 

Before joining UNESCO, Mr. Hladik worked with the Czechoslovak Fed

istry of Foreign Affairs. Mr. Hladik graduated with honors from the Int

Law Faculty of the Moscow State Institute of International Relations (

and received his Juris Doctorate from Charles University in Prague, Cze

kia. He has published several articles on the 1954 Hague Convention an

lated issues in professional journals. He has also participated in a n

UNESCO’s official missions, including the March 1999 Hague Diplomat

ence on the Second Protocol to the Hague Convention.

Captain Hyun-Soo Kim of the Republic of Korea Navy is Professor o

tional Law and Director of the Law of the Sea Research Division of the R

Korea Naval War College. Prior to joining the Naval War College facult

Kim held numerous positions at the Republic of Korea Naval Academy, 

Chief, Department of System Development; Chief, Department of Ad

Chief, Department of Academic Affairs; and, Chair, Department of Int

Relations. Captain Kim has participated in over 40 international confere

inars, symposia and workshops and has published several books and num

ticles regarding the law of the sea, operational law and international 

currently a member of the Korea Association of International Law, the S

tute of International Law, the Korea Institute of Maritime Law and the 

Sea Forum. Captain Kim is also a legal advisor to the Ministry of Fore

and Trade, the Ministry of Maritime Affairs and Fisheries and the Minis

tional Defense.

Mr. Jean-Philippe Lavoyer has been the Head of the Legal Division of 

national Committee of the Red Cross (ICRC) since 2001. In addition to 

years of service in the Legal Division dating back to 1988, Mr. Lavoyer 

the ICRC on the Arabian Peninsula and in Kuwait, Afghanistan and 

Throughout his career, Mr. Lavoyer has participated in numerous int

negotiations and conferences including the Establishment of the Int

Criminal Court (Preparatory Committee and Diplomatic Conference 

conventions on international terrorism and Guiding Principles on Int

placement. He also participated in the UN General Assembly and Hum

Commission. Mr. Lavoyer speaks and publishes on a variety of subjects, 

refugees and internally displaced persons, protected zones/safe areas, th

and red crescent emblem, the legal status of the ICRC, the Centenary o

International Peace Conference, the (first) Gulf War, humanitarian law 

rorism and other issues related to international humanitarian law. Mr. La

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born in Berne, Switzerland and was admitted to practice law in 1976 fol

studies at Berne University.

Captain M. H. MacDougall, Canadian Forces, is the Deputy Judge 

General/Operations and is responsible for the Directorate of Law/Oper

Directorate of Law/International and the provision of legal advice by 

gional legal offices (AJAG offices). Her prior duty assignments include 

Directorate of Law, Human Rights and Information; Assistant Judge 

General, Pacific Region at Esquimalt, British Columbia; and Special A

the Judge Advocate General. Captain MacDougall was also the first 

Forces legal advisor to the Canadian contingent to the United Nations 

Force in the former Yugoslavia and Director of Law/Operations at th

Defence Headquarters where she advised on legal issues relating to all 

Forces operations, including the turbot dispute between Canada and 

Canadian contribution to the United Nations Missions in Rwanda, Ha

former Yugoslavia; the Stabilization and Implementation forces in Bosn

as the Canadian-led, United Nations-sanctioned humanitarian mission 

Captain MacDougall earned her Bachelor of Science and Bachelor of L

Dalhousie University and a Master of Laws in Military Law from the Ju

cate General’s School, US Army, in Charlottesville, Virginia.

Professor John F. Murphy received his Bachelor of Arts from Corne

sity and his Bachelor of Laws with specialization in international affairs 

nell Law School. At Cornell, he was a member of the Cornell Law Revie

an associate at Winthrop, Stimson, Putnam & Roberts in New York and 

Ellis, Hodson, Chaffertz & Masters in Washington, D.C., and an attorney 

the Legal Adviser’s Office of the US Department of State. Before joining 

of Villanova University in 1983 as a Visiting Professor, he was a Profes

Associate Dean at the University of Kansas School of Law, a Visiting P

Cornell Law School, and the Charles H. Stockton Professor of Internatio

the Naval War College. Professor Murphy’s research and teaching inte

on international law, international terrorism, international business tra

and European Union constitutional law. Since 2000, Professor Murph

tinued his affiliation with the Naval War College as a member of the Int

Law Department’s Advisory Board.

Mr. W. Hays Parks entered federal service as a commissioned officer 

Marine Corps. His initial service was as a reconnaissance officer. He served 

public of Viet Nam (1968–1969) as an infantry officer and senior pr

attorney for the First Marine Division. In 1979, Mr. Parks resigned h

commission to accept his present position as Special Assistant to The Judg

General of the Army. In that capacity he provides politico-legal advice to 

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Staff on matters ranging from special operations to directed energy warfar

legal adviser for the 1986 airstrike against terrorist-related targets in Liby

primary responsibility for the investigation of Iraqi war crimes during its 

occupation of Kuwait. He has served as a United States representative for 

negotiations in New York, Geneva, The Hague and Vienna. Mr. Parks oc

Charles H. Stockton Chair of International Law at the Naval War Colleg

1985. Mr. Parks has lectured on the law affecting military operations at the 

Army, Air Force and Naval War Colleges; the service staff colleges; and ot

schools. An adjunct professor of international law at the American Univer

of Law, he has published articles in a variety of military and legal journals. I

became the sixth person in the history of the United States Special Operat

mand to receive that command’s top civilian award, the US Special O

Command Outstanding Civilian Service Medal.

Major G. William Riggs, US Marine Corps, is currently the Head, O

Law Branch, Navy International and Operational Law. He has previousl

numerous Staff Judge Advocate (SJA) and Deputy SJA billets to inclu

SJA 2d Marine Expeditionary Force, SJA 2d Marine Expeditionary Briga

Force Service Support Group, SJA Special Purpose Marine Air-Ground T

Liberia and SJA Operation Eastern Access. A graduate of Nova Law Sch

Riggs additionally holds an LLM from The Judge Advocate General’s Sch

Army with a specialty in operational law.

Professor Sir Adam Roberts, KCMG, FBA, has been the Montague Bu

fessor of International Relations at Oxford University, and Fellow of B

lege, since 1986. From 1968 to 1981, Professor Roberts was Le

International Relations at the London School of Economics and Politic

From 1981 to 1986 he was Alastair Buchan Reader in International Rel

Fellow of St Antony’s College, Oxford. Professor Roberts was a Mem

Council of the Royal Institute of International Affairs (Chatham House

from 1985 to 1991 and a Member of the Council, International Institute 

gic Studies, London, from 2002 to the present. In 1990, he was elected Fe

British Academy (FBA). In 1997, he was elected Honorary Fellow, Lond

of Economics and Political Science. In 2002, Professor Roberts was 

Knight Commander of the Order of St. Michael and St. George (KCMG)

Sir Roberts has published several books on the theory and practice of terr

fense and international relations and articles in numerous journals an

newspapers, including the American Journal of International Law, British 

of International Law, International Affairs, International Security, Review 

tional Studies, Survival, The Times Literary Supplement, and The World 

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Dr. Nicholas Rostow is the General Counsel of the US Mission to t

Nations and Senior Policy Adviser to the US Permanent Representat

United Nations (Ambassador John D. Negroponte). He has held this pos

October 3, 2001. Before coming to the US Mission, he held the Charles H

Chair of International Law at the US Naval War College, Newport, Rho

Mr. Rostow’s previous Federal government experience included service a

rector of the Senate Select Committee on Intelligence, Counsel and De

Director of the House Select Committee investigating high technology t

China (also known as the Cox Committee), Special Assistant to Presiden

and George H. W. Bush and Legal Adviser to the National Security Cou

National Security Advisers Colin Powell and Brent Scowcroft. In ad

served as head of the Massachusetts Office of International Trade and I

under Governors William F. Weld and Argeo Paul Cellucci. Mr. Rostow 

Bachelor of Arts, Ph.D. (history), and law degrees from Yale. He has tau

Fletcher School of Law and Diplomacy at Tufts University and at the Un

Tulsa College of Law. His scholarly writing is in the fields of diplomatic h

international law.

Professor Marco Sassòli is Professor of International Law at the Un

Quebec in Montreal, Canada. Previously he has been registrar at the Swis

Court and Executive Secretary of the International Commission of Jurists 

He worked for 13 years for the International Committee of the Red Cross 

its headquarters in Geneva, in the Middle East and in the former Yugoslavi

the ICRC he served as Deputy Head of its Legal Division, led delegations 

and Syria, and was Protection Coordinator for the former Yugoslavia

Sarajevo. Professor Sassòli has published a book on the sources of interna

in German, casebooks on international humanitarian law in English and F

many articles on international humanitarian law, international human 

international criminal law and the law of State responsibility.

Professor Michael N. Schmitt is the Director of the Executive Program 

national and Security Affairs and Professor of International Law in the 

International and Security Studies, George C. Marshall European Cente

rity Studies, Garmisch-Partenkirchen, Germany. Professor Schmitt ser

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 was Deputy H

Department of Law at the Air Force Academy and served as Assistant D

Aerial Warfare in the Naval War College’s Center for Naval Warfare S

has been a Visiting Scholar at Yale Law School and lectures and teaches r

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the International Institute of Humanitarian Law and the NATO School

Schmitt holds Bachelor and Master of Arts (Political Science) degrees fro

west Texas State University, a Master of Arts (National Security Policy an

Studies) from the Naval War College, a Juris Doctorate from the Un

Texas, and a Master of Laws from Yale University. The author of many 

articles on law and military affairs and contributing editor for multiple v

the US Naval War College’s International Law Studies (“Blue Book”) 

works have been published in Belgium, Chile, Germany, Israel, Peru, t

Kingdom, and the United States. Professor Schmitt is a member of the 

Society of International Law and the Societe Internationale de Droit M

Droit de la Guerre. He is on the Advisory Board for the US Air Force A

Journal of Legal Studies and the Editorial Board of the International Law 

ries. Professor Schmitt also serves on the Executive Committee of the Li

ety. In 2002, Professor Schmitt was elected a member of the Internationa

of Humanitarian Law.

Commander Dale Stephens, Royal Australian Navy, is the Fleet Lega

Military Headquarters. His prior assignments include Chief Legal Off

Training Command; Legal Officer Naval Component Command INTER

Deputy Director Operations Law-Strategic Command Division. Co

Stephens also spent six months as the Head of the Civil Policy Divis

Northern Territory Attorney-Generals Department. He earned his B

Arts degree from Flinders University and his law degree, with Hon

Adelaide University. Commander Stephens is currently completing a M

gree at Melbourne University. He has published articles in a number o

tional law journals, including the Yale Human Rights and Develop

Journal, Naval Law Review, and Loyola of Los Angeles International and 

tive Law Journal.

Mr. Jeffery K. Walkeris a partner in and Company Counsel for BlueF

a defense consulting company that provides expertise to Department o

and industry partners on a wide variety of strategic, operational and le

Prior to his affiliation with BlueForce, Mr. Walker was a United States 

Judge Advocate. His active duty assignments included Legal Advisor dur

ation Enduring Freedom where he was instrumental in investigating fr

incidents, including one that resulted in the deaths of four Canadian so

another in which three US Special Operations soldiers and twenty Afgha

were killed. Mr. Walker also served as Chief of International Operat

United States Sixteenth Air Force, Aviano, Italy and the Staff Judge Ad

the 4100th Group during NATO Operation Joint Endeavour in 

Herzegovina. Mr. Walker earned his Bachelor of Arts degree in Politic

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from Tulane University, his Master of Social Science in International 

from Syracuse University, a Juris Doctorate from Georgetown Univer

LL.M from Harvard. He is currently working on his Ph.D. in Internati

tions at Georgetown.

Professor Ruth Wedgwood is a Professor of Law at Yale Law School 

Senior Fellow and Director of the Project on International Organization

at the Council on Foreign Relations. Currently on a leave of absence from 

School, she is serving as the Edward B. Burling Professor of Internatio

the Johns Hopkins University Nitze School of Advanced International 

Washington, D.C. Professor Wedgwood is Director of Studies at The Ha

emy for International Law, chairman of Research and Studies for the Am

ciety of International Law, and a member of the Secretary of State’s 

Committee on International Law. Professor Wedgwood is also a former 

Stockton Professor of International Law at the US Naval War College. Sh

ten and lectured widely on war crimes and the United Nations, includin

Council politics and peacekeeping. Professor Wedgwood is a former la

Justice Harry Blackmun of the US Supreme Court and Executive Editor 

Law Journal. She also served as amicus curiae in the case of Prosecutor v

the International Criminal Tribunal for the former Yugoslavia.

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Index

A

Aceves, William J. 247–249, 252, 256

ad bellum 15, 44, 135, 143, 160, 178, 194, 291, 294, 307, 312, 333

ad hoc tribunals 290

Additional Protocol I 44, 46, 58–59, 66, 76, 78, 80–81, 87, 109–111, 116, 126, 199, 

220, 223, 231, 278, 281, 284, 289, 293, 297–298, 301, 304, 307–309, 322–323

343, 346, 352, 354

Additional Protocol II 59–59, 66, 284, 307–309

Afghanistan 5, 11, 31, 43, 58–59, 61–63, 65–66, 69–74, 82, 84, 88, 90, 99–103, 109, 

121–124, 134, 141, 143, 149–150, 157, 165, 167–168, 189, 191, 196, 198–199

293, 301, 311, 333–334, 339–341, 344

Akehurst, Michael 244–245, 255

al Qaeda 3, 19, 29, 57–58, 60, 62, 70, 74–75, 82, 90, 100–104, 106, 122, 189–190, 19

292, 315–317, 334–335, 344–345

Alvarez, Alejandro 238, 250, 253, 256, 317

Angola 59

armed conflict 9–10, 15, 44, 51, 57–65, 69, 72, 74–78, 81, 83, 88–91, 101, 104, 107, 

129, 146–147, 152, 160, 162, 165, 167–169, 171, 175, 179, 186–187, 190, 192

201–202, 208, 210, 213–214, 216, 218–219, 222–227, 230–231, 233, 263–264

273–276, 278, 280, 282–283, 287–297, 299–309, 311–314, 316, 319–320, 322

333, 336, 338–341, 343–347, 349–352

Army Civil Affairs 71–74, 82, 100–102

Article 51 16, 47–49, 139, 161, 163, 165, 167, 169, 171, 176, 188–189, 202, 213, 228

assassination 161, 186, 188, 337

attrition 152–153, 155

B

Baghdad 3, 5–6, 8, 11, 17–18, 122–124, 136, 141, 143, 149, 187

Baker, Alan 189, 273, 283, 312

Bangladesh 19, 239

Bankovic 179, 183, 194, 202–203, 317, 351, 355

Belgrade 124, 144, 156, 158, 178, 351

belligerent 45, 48–52, 62, 77–78, 104–107, 109, 111, 115, 160, 177, 179, 192, 201, 2

215–218, 221–223, 225–226, 230–231, 264, 267, 290, 293, 299, 301, 334–335

351

Belo, Carlos Bishop 13

bin Laden, Osama 161

Biological Weapons Convention 294–295, 298, 307

Blix, Hans 5, 12, 21, 36–38, 161, 191, 253, 273, 283, 312, 316

Boer War 83, 111–112

Bonn Agreement 71

Booth, Ken 54, 253, 256

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Boutros–Ghali, Boutros 24, 34–35, 37

Bush, President George W. 18, 20–22, 28, 32–33, 36, 38, 47, 60, 65–67, 78, 82, 102–

112, 125, 141, 157, 164, 169, 191, 194, 200, 203, 219, 231–232, 268–269, 279, 

289, 295, 300–301, 305–309, 313, 316–317, 328, 332, 342

C

C4ISR 151

Cambodia 19, 233, 253, 290, 314, 317, 326

Canadian Board of Inquiry 195–197

Carnahan, Burrus M. 55, 322, 329

center of gravity 155–156, 160–161

Central Intelligence Agency (CIA) 85, 113, 166, 169, 186, 190–191

Chairman, Joint Chiefs of Staff 131

Chemical Weapons Convention 298, 302, 307

circular error probable (CEP) 152, 177

civilian population 125, 151, 296

CJCMOTF 71–73, 101

coalition forces 3, 5, 7, 11, 100, 143, 148, 152, 157, 173, 292, 334

Coalition Provisional Authority 9–10, 12, 109, 339

Cold War 7, 33, 59, 99, 116, 129, 227, 252

collateral damage 123, 154, 156, 158, 171, 173, 175, 177–178, 180, 182, 279

combat operations 23, 53, 78, 83, 86–87, 101, 109, 152, 168, 193, 195, 328

combatant status 44, 78, 81, 101, 162, 180, 190, 276, 339–341, 343–344, 346

combatants 44–50, 57, 60–64, 67, 74, 76, 80, 89, 91, 105, 107, 110, 126, 139, 141, 14

161, 165, 168, 190–191, 193, 195, 200–202, 268, 292–293, 297, 299, 306, 334–

340, 342–347, 353

Commando Order 89, 105, 117

Common Article 2 340

compellance campaign 156, 182

Congo 8, 313, 317

contractors 72, 129, 179

Corfu Channel 238, 248, 250, 253, 256

cultural property 50, 274, 295, 302, 307, 319–329

D

Dar–es–Salaam 167

Desert Fox 3, 26, 192

Desert Shield 101, 107, 109, 338

Desert Storm 23, 27, 38, 101, 107, 109, 123–124, 154, 160–161, 182, 313

deserters 335

Dinstein, Yoram 34, 43, 54–56, 65, 85, 167, 189, 228–229, 345–346, 354

direct participant 163

Doswald–Beck, Louise 48, 54, 268–269

Dworkin, Anthony 65, 189

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East Timor 5–6, 8, 10, 13–14, 313–315, 317

effects–based operations (EBO) 152–155, 158–159, 161

El Salvador 59, 329

enemy forces 157, 185, 280

European Court of Human Rights (ECHR) 158, 179, 183, 202, 312, 348–350, 352, 

F

Falk, R. A. 32–33, 105, 107, 117, 135, 213, 216–217, 219, 229, 231–233, 265, 269

Falklands War 135, 265

Fedayeen 90, 275

Federal Republic of Yugoslavia See Yugoslavia

Fenrick, William J. 54, 229–230, 233

fiscal accountability 72

fixed distinctive emblem 43–45, 341

force protection 71, 73, 90–91, 101–102, 213–214, 267

Fourth Geneva Convention 171, 292–293, 308

France 19, 21, 25, 30, 35, 38, 83, 85–86, 92, 96–97, 107, 112–115, 117, 183, 253, 327

fratricide 102

French Resistance Movement 86

G

GBU–12 196

Geneva Convention III 60, 62, 66–67, 129, 200–201, 353–355

Geneva Convention IV 9–10, 60–61, 63, 66–67, 353–354

Geneva Convention Relative to the Treatment of Prisoners of War (GPW) 74–76, 

104–108, 131, 190, 307, 336, 353

Geneva Conventions of 1949 52, 55, 199, 224, 305, 311

Germany 7, 9–10, 19, 52–53, 59, 83–85, 92–94, 97, 99, 114–115, 149, 181, 183, 189

231, 261, 280, 325, 349, 354

Global Positioning System (GPS) 152, 220, 269

Global War on Terrorism (GWOT) 91, 207–209, 211, 213–215, 227

Goldsmith, Lord 20, 25, 36–37

GPW See Geneva Convention Relative to the Treatment of Prisoners of War

Greece 59, 183, 280, 329

Grunawalt, Richard J. 242, 252–255

Guantanamo 57, 61–66, 147, 198, 200, 315–316, 334, 339–340, 344, 354

Gulf War 3–5, 9, 11, 17, 22–24, 27, 30, 53, 62, 67, 107, 125, 148–149, 170, 231, 311

GWOT See Global War on Terrorism

H

Hague Convention IV 78, 88, 105–107, 112, 117, 340

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gpy 

Hague Rules on Air Warfare of 1923 223

Hague V 223–224

Harvard Program on Humanitarian Policy and Conflict Research 288, 300

Hezbollah 275

hors de combat 45, 138, 148, 346

hospital ship 46, 208, 215, 218–223, 231–232, 263–269

hostilities 15, 17, 34, 43–45, 47–49, 51–52, 59–60, 62–63, 77, 81, 106, 110, 114, 136

157, 159, 161–165, 170, 172–175, 179–181, 186–188, 190, 192, 199, 201–202

223–226, 231, 263, 277, 290, 293, 299–301, 303, 306, 308–309, 311, 321, 323–

339–340, 343–346

Human Rights Watch 126, 131, 137, 170, 173–174, 184, 192, 279, 285, 317, 354

human shields 47–48, 128, 170–174, 191–192, 279–280

humanitarian law 57, 64, 151–153, 155–156, 158–164, 167–169, 171–175, 178–180, 1

187, 192, 273, 275, 278, 282–283, 287–288, 291, 296, 298–299, 301, 319, 323, 3

Hussein, Saddam 3–4, 8, 11–12, 16, 18–19, 21–23, 27–30, 32–33, 36, 38, 47–50, 52–5

138–140, 143, 149, 156, 161–163, 165, 167, 169, 171, 176–177, 186–189, 201–2

211, 213, 223–224, 228, 254, 258–260, 278, 281, 284, 307, 315, 319–324, 329, 3

hybrid court 313–315, 317

I

IAEA See International Atomic Energy Agency

ICJ See International Court of Justice

ICRC See International Committee of the Red Cross

Ignatieff, Michael 128, 131, 210, 263

in bello 15, 43–47, 49–50, 135, 160, 178, 194, 291, 307, 311–313, 345

in flagrante delicto 88–89, 92, 115

incidental injury 154, 156, 158, 171, 178, 180, 182

indigenous attire 70, 82–83, 88, 90, 92–95, 97–98, 100–102, 112

innocent passage 207, 237, 239–240, 243–244, 246–250, 254

interdiction 208, 227–228, 230

international armed conflict 44, 57–65, 74, 76–78, 81, 83, 88–91, 101, 104, 107, 11

168–169, 187, 192, 199, 208, 210, 213–214, 219, 222–227, 233, 263–264, 266

297, 299–302, 304–305, 308–309, 311, 332, 340–341, 345–346

International Atomic Energy Agency (IAEA) 26–27, 30, 36

International Committee of the Red Cross (ICRC) 45, 54, 60, 67, 78–79, 82, 102, 1

141, 158, 164, 184, 200, 268–269, 279, 287–289, 291–292, 294–309, 332–333

343, 345

International Court of Justice (ICJ) 49, 55, 160, 189, 236, 242–245, 248–251, 253, 2

313, 351

International Criminal Court 47, 54, 146, 162, 171, 174, 186, 290, 302, 304, 307, 31

327, 347

International Criminal Tribunal for Rwanda (ICTR) 192, 312

International Criminal Tribunal for the Former Yugoslavia (ICTY) 66–67, 126, 15

interoperability 337

IRA See Irish Republican Army

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q 

145–150, 152, 155, 157, 160–161, 168, 170, 173, 181–182, 184, 186, 189, 192, 2

217, 222–223, 229, 231, 233, 263, 274–275, 291–292, 301, 311, 313, 315, 317, 3

Iraq Survey Group 29, 37–38

Iraqi forces 109, 160, 170

Irish Republican Army 59, 112, 350

Israeli Army 273, 281, 313

Italy 59, 97, 105, 117, 149, 183, 189, 253, 261, 280

J

JDAM 152–153

Jedburgh teams 86, 97, 113

joint doctrine 156

Joint Publication 3–60 170, 172, 181–182, 193

jus ad bellum 15, 44, 135, 143, 178, 194, 291, 294, 307, 312, 333

jus in bello 15, 43–47, 49–50, 135, 178, 194, 291, 307, 311–313

K

Kandahar 71, 104, 196, 200

Kay, David 37–38, 102, 127

Korea 48, 54, 59, 99, 125, 160, 186, 188, 210, 228, 239–240, 242, 254, 261–262, 280

Kosovar Albanians 154, 183

Kosovo 14, 19, 37, 121–122, 124, 126, 128, 134–135, 141, 144–145, 150, 154–156, 1

186, 309, 311–314, 339, 351

Kuwait vi, 5, 17, 21, 23–24, 27, 30, 33–34, 89, 107, 109, 134, 222

L

Latin America 59

Lauterpacht 107, 233

Lavrov, Ambassador Sergi 26, 30, 37–38

law and order 168, 289, 346

law of good faith 338

Law of the Sea 207, 210, 227–228, 233, 235, 237, 239, 251–257, 259, 261–262

Law of War 54–55, 100, 104–105, 107–110, 118, 186, 192, 229, 231, 233, 266, 354

lawfare 145, 152, 161, 181

lawful combatancy 43–45, 54

Lawrence, T. E. (of Arabia) 70, 83, 88, 92, 100, 102–103, 112

levee en masse 107, 162

Levitte, Ambassador Jean David 26, 30, 36–38

lex specialis 62, 351

Lieber, Francis 83, 104, 107–108, 114, 161, 185–186, 233, 321, 329

LOS Convention 207–208, 210–211, 227–228, 235–254, 256–262

373

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maritime operations 208

maritime zones 243, 247, 250

medical aircraft 220, 233, 268

mens rea 89, 193

military necessity 77, 81, 84, 90–91, 101–102, 175, 185, 215, 218, 231, 281–282, 287

328

military objective 47–49, 55, 77, 114, 128, 138–140, 156–158, 160, 164, 171–180, 1

192–193, 215, 217, 231, 278–279, 284, 299, 304, 322–323, 325–326, 329, 340

Milosevic, Slobodan 121, 144, 150, 155–158, 185

Model Manual on the Law of Armed Conflict 345, 354

N

Nairobi 167, 297

NATO 7, 19, 99, 126, 131, 139, 144, 150, 154, 157–158, 165, 170, 182–184, 188, 19

274, 351–352

Naval Group China 86, 96

NGOs See non-governmental organizations

Nicaragua 59, 245, 248–249, 255–256

9/11 65, 128, 165, 168, 191, 317, 333, 335, 337–338, 346

non–governmental organizations (NGOs) 32, 69, 71–73, 90, 188

non–international armed conflict 58–59, 64–65, 162, 168–169, 187, 192, 199, 291, 

302, 304–305, 308, 332, 340

North Atlantic 168, 183, 188, 312, 314

Northern Alliance 11, 70, 82, 88, 100–101

Nuremberg Tribunal 185, 189, 216

O

observe, orient, decide, act (OODA) 153, 182

occupation law 348

occupying power 8–9, 52, 63, 301

OODA See observe, orient, decide, act

Operation Allied Force 154–155, 157, 161, 173, 178, 182, 184

Operation Apollo 198

Operation Desert Fox 3, 26, 192

Operation Desert Storm 23, 27, 123, 154, 160–161, 182, 313

Operation El Dorado Canyon 165

Operation Enduring Freedom 61, 69, 101, 104, 122, 182, 189, 195, 198, 200, 202, 2

Operation Iraqi Freedom 3, 23, 38, 53, 69, 78, 83, 85–87, 101, 107, 109, 122–123, 134

161, 165, 168, 173, 181–182, 184, 186, 189, 193, 195, 215, 233, 263, 273, 328, 3

Operational Law Handbook 140, 149, 183

Oppenheim 107, 111, 233

ordinary crime 44, 59

Ottawa Convention 297, 302, 307

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P

parallel warfare 152

partisan movement 85

perfidy 44, 46–47, 76, 81–82, 88, 90–91, 110–111, 282, 322

Philippines 59, 189, 262, 280

piracy 105, 143, 210–211, 228, 340

POW status 105, 292, 335

Powell, Colin 37, 189–190, 313

principle of distinction 45, 77–78, 82, 87–88, 90, 107–108, 110, 114, 160–161, 163, 

prisoner of war 43–46, 60–64, 74–76, 80, 82, 104–107, 109, 113, 200–201, 308, 334

prisoner of war status 43–46, 61–64, 74–76, 80, 104–106, 109, 113, 200–201, 308, 3

proportionality 48–49, 126–128, 130, 141, 145, 153–154, 158, 167–175, 185, 209, 2

218, 231, 298–299

proportionate attack 156, 172

protected places 5

protected status 81, 161–164, 173–174, 202, 223, 263–264, 266–268, 278, 293

Q

Qaed Senyan al–Harthi 166, 189

R

Radio Televisija Srbije (RTS) 158

Resolution 1373 4, 211–212

Resolution 1483 9

Resolution 6 of the Diplomatic Conference of Geneva 268

revolving door syndrome 346

Roach, J. Ashley 227, 230, 232, 262

Roberts, Sir Adam 14, 66, 75, 102, 131, 133, 148–150, 181, 186, 190, 203, 213, 229, 

283, 307, 313, 328, 336, 353

Rose, Don 4, 14, 21, 31, 33, 66–67, 75, 102, 131, 133, 148–150, 181, 203, 232, 268, 2

313, 328, 353

Rostow, Nicholas 4, 21, 31, 33

Royal Warrant 349

RTS See Radio Televisija Srbije

rule of law 19–20, 226, 312, 316–317

Rules of Engagement (ROE) 131, 254

Rumsfeld, Donald 65, 67, 338, 353

Russia 26, 29–30, 35, 37–38, 84–87, 92–94, 108–109, 115–116, 122, 145, 188–189, 25

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saboteurs 52, 61, 106, 118

Samuel B. Roberts 213

San Remo Manual 228, 265, 268, 300

Sassòli, Marco 57, 65, 67

Schindler, Dietrich 54, 66, 104, 185, 233, 268, 328

Schmitt, Michael N. 55, 118, 151, 181, 186, 188, 194, 229

Sea Isle City 213

Security Council 3–5, 9, 11, 13–14, 16–19, 21–37, 52, 103–104, 107, 135, 165, 168, 

208, 210–211, 215, 224, 228, 233, 237, 279, 284–285, 314, 333–334

Security Council Resolution 1441 37

Security Council Resolution 1483 9, 11

Security Council Resolution 687 5, 13, 23, 25, 27–28, 34

self–defense 16, 19, 23, 32–33, 165–169, 189, 191, 199, 209–210, 212, 214–215, 221

230, 266–267, 325, 334

Serbian 121, 274

Sharon, Ariel 313, 317

Shatila 313

Shawcross, William 32, 38–39, 54–55, 57, 65–67, 88–89, 97, 104, 115–116, 118, 15

185–186, 188, 194, 227, 235, 251, 256, 262, 268, 313, 328

Short, Lt Gen Michael 155–156, 160, 182, 314

simultaneous attack 155

Sinn Fein 83

Sino–Japanese War 83, 112

Skorzeny, Otto 88–89, 97, 115–116

Smith, Robert W. 113, 227, 230, 262

Special Forces 44–45, 69–70, 77–78, 82–85, 87–90, 99–102, 105, 109, 112–113, 116

State practice 58–59, 64, 69, 76–78, 82–83, 88–89, 109, 112, 116, 163, 215, 224–2

258, 332

stealth 151–152

strategic rings concept 154

Strategic Studies Institute 5

strategy 10, 86, 123, 145, 155, 157, 164, 187, 241

suicide bombers 46, 277–279, 284

surrender 47, 52, 81, 94, 160, 166

Syrian 275

T

Taft, William Howard 16–17, 20, 32–35, 37, 65, 67, 149, 228, 237, 239, 241, 243, 24

255, 262, 269, 314, 329

Taliban 58–61, 70–71, 74–75, 82, 90, 100–104, 106, 122, 168, 188, 191, 198–201, 20

315, 333–335, 344

targeting 5, 70, 100, 121, 124–125, 133–134, 136–139, 141–142, 144, 146–148, 151–

156, 159–161, 164–166, 170, 173, 176–178, 180, 184, 187, 202, 210, 216, 273

299, 304

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Taylor, Charles 314

terrorism 180, 208–213, 215

terrorists 5, 19–20, 60–61, 63, 152, 165, 168–169, 208–209, 211–215, 219, 222, 266–

284, 334, 341, 350

Third United Nations Conference on the Law of the Sea 237

Thucydides 15–16, 20

Tikrit 8, 163

transit passage 207, 239–240, 250

treacherous use of civilian clothing 80, 82, 88

U

Uganda 19, 98

uniform 43–46, 50, 70–71, 73–91, 93–113, 115–118, 129, 162, 170, 243–244, 255, 3

United Kingdom 3, 9, 24–28, 35, 38, 52, 59, 66, 69, 85–86, 92–97, 99, 107, 113, 135

143, 148–149, 163, 183, 189, 216–217, 219, 222, 233, 261, 327, 337–339, 342

351–352, 354

United Nations 3–5, 8–9, 11, 13–15, 19, 22, 28, 31–32, 34–39, 71, 81, 103, 107, 165

191, 213, 227–228, 233, 237, 239, 241, 247, 250–255, 257, 261, 277, 279–280

288, 291, 303, 307, 311–315, 328, 333, 349

United States 3, 5–7, 9–10, 13, 16–22, 24–35, 37–39, 45, 51–52, 57–58, 61–67, 69, 7

85–86, 96–100, 103–104, 106, 110–112, 117–118, 125, 128–129, 134–136, 13

150, 152, 156–158, 163, 166–168, 173, 181–186, 188–191, 195, 197–201, 203

219, 227–228, 231–233, 235–237, 241–242, 247, 252–255, 262, 282, 284, 293

317, 321, 327–328, 331–332, 334–339, 341–342, 347–349, 352–354

Universal Declaration of Human Rights 10, 14

universal jurisdiction 289–290, 313, 327, 347

unlawful combatants 44, 46, 50, 57, 60–61, 63–64, 67, 193, 200–201, 292–293, 299

339, 344

UN Monitoring, Verification and Inspection Commission 5

unnecessary suffering 112, 168, 297

unprivileged belligerent 106, 108, 179, 293, 334, 344

unprivileged combatant 63

Urquhart, Brian 8, 13, 196

US Army Field Manual 27–10 107, 269

US Central Command 71, 109, 181

US Constitution 163, 187

USARCENT 71

use of force 5, 3, 15, 17, 19–20, 22–24, 26–27, 29, 32–33, 35–37, 127, 155, 157, 159

184, 190–191, 212–213, 237, 248, 255, 261, 290–291, 307, 312, 333–334

USNS Comfort 263

USS Cole 46, 166, 214, 227, 267

V

Vienna Convention on the Law of Treaties 24, 219, 246, 265

377

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W

war crimes 63, 95, 97, 105, 126, 171, 274, 279, 290, 312–313, 315, 344, 347, 349

Warden, Col John (Jack) 122–123, 130, 154, 182

warning 160, 216, 281, 285, 303–304, 321–322

warning zone 213–214, 216, 229–230, 260

weapons of mass destruction (WMD) 5, 16, 18–19, 22, 26, 28–29, 37–38, 168, 185, 

Webster, Daniel 167, 189, 191

Wedgwood, Ruth 3, 13, 32

Wehrmacht 62

Westphalian system 58

WMD See weapons of mass destruction

World Bank 7

Y

Yugoslavia 87, 96–97, 103, 113, 131, 154, 157–158, 170, 183–184, 274, 290, 314

378

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