Professional Documents
Culture Documents
Tat
Rcport did not indccd proposc thc intcrprctation ol thc UN Chartcr and intcr
national law advanccd by Stonc, somc othcr writcrs, and hcrc, rathcr it urgcd thc
Sccurity Council, in vcry strong tcrms, to livc up to its rcsponsibility to protcct
thc victims ol gravc and systcmatic violcncc and injusticc, such as gcnocidc and
cthnic clcansing, putting asidc irrclcvant political considcrations, and cxcrcis
ing its powcrs undcr chaptcr \!! ol thc Chartcr. Howcvcr, thcrc arc implications
in thc Rcport that point in thc dircction ol imagining a justication lor thc usc
ol lorcc bcyond thc limits acccptcd by orthodox intcrprctation. Failurc ol thc
Sccurity Council, whcthcr its mcmbcrship is rcdcsigncd in thc luturc or not, to
hccd its rcsponsibility would, according to thc Commission scnd thc lollowing
mcssagcs:
Tc rst mcssagc is that, il thc Sccurity Council lails to dischargc its rcspon
sibility in conscicnccshocking situations crying out lor action, thcn it is unrc
alistic to cxpcct that conccrncd statcs will rulc out othcr mcans and lorms ol
action to mcct thc gravity and urgcncy ol thcsc situations. !l collcctivc organi
zations will not authorizc collcctivc intcrvcntion against rcgimcs that out thc
most clcmcntary norms ol lcgitimatc govcrnmcntal bchaviour, thcn thc prcs
surcs lor intcrvcntion by ad hoc coalitions or individual statcs will surcly intcn
sily. And thcrc is a risk thcn that such intcrvcntions, without thc disciplinc and
constraints ol UN authorization, will not bc conductcd lor thc right rcasons or
with thc right commitmcnt to thc ncccssary prccautionary principlcs.
Tc sccond mcssagc is that il, lollowing thc lailurc ol thc Sccurity Council to
act, a military intcrvcntion is undcrtakcn by an ad hoc coalition or individual
For a discussion ol thc UN Chartcr as a constitutional tcxt scc V. Fricdmann, Te
Changing Structure of International La. (Stcvcns, London, .6) ...
J. Stonc, Legal Controls of International Conict (Maitland, Sydncy, .) a; ggression
and !orld Order (Maitland, Sydncy, .) , , Of La. and Nations (Hcin, 8ualo
NY, .,) a.
Te Fesponsibility to Protect. Rcport ol thc !ntcrnational Commission on !ntcrvcntion
and Statc Sovcrcignty. (!ntcrnational cvclopmcnt Rcscarch Ccntrc, ttawa, acc.).
Tc Rcport is also acccssiblc on thc wcbsitc ol thc !ntcrnational Crisis Group: www.
icg.org.
3 1 Fe.i.al of the Just !ar Teory?
statc which does lully obscrvc and rcspcct all thc critcria wc havc idcnticd,
and il that intcrvcntion is carricd through succcsslully and it is sccn by world
public opinion to havc bccn carricd through succcsslully thcn this may havc
cnduringly scrious conscqucnccs lor thc staturc and thc crcdibility ol thc UN
itscll.
6
Tc rclcrcnccs in thcsc paragraphs to prccautionary principlcs and critcria
arc to thc scctions ol thc Rcport that discuss at lcngth six critcria lor military
intcrvcntion: right authority, just causc, right intcntion, last rcsort, proportional
mcans, and rcasonablc prospccts ol succcss.
crck 8owctt,
8
and Anthony Amato.
A justi
cation lor thc intcrvcntion by NAT in Kosovo in ., bascd on articlc a(),
was also advanccd by 8clgium in thc casc brought by Yugoslavia against NAT
mcmbcrs bclorc thc !ntcrnational Court ol Justicc.
o
V Te Attack on Iraq, aoo
Taking thc orthodox vicw, thc attack by thc US and its allics against Alghanistan
in acc. was lawlul, and thc attack against !raq in acc was unlawlul. Tc attack
on Alghanistan was a lawlul mcasurc ol sclldclcncc bccausc, lollowing thc
cvcnts ol .. Scptcmbcr acc., which wcrc quickly attributcd to AlQacda and not
dcnicd by that organisation, thc Taliban govcrnmcnt ol Alghanistan was callcd
on to hand thc groups lcadcrs ovcr to thc US. Tc Taliban rcluscd. Tcy not only
rcluscd, but madc statcmcnts supportivc ol sama bin Ladcn, thc lcadcr ol Al
Qacda, thcrcby cndorsing his actions. Tus thc attack by thc US and allicd lorccs
was madc altcr duc warning and an opportunity lor thc Taliban to avoid thc usc
ol lorcc against it.
!t is not ncccssary lor thc Sccurity Council to authorisc actions in scll
dclcncc. Tis is acknowlcdgcd by thc Chartcr to bc an inhcrcnt right ol statcs,
and onc, morcovcr, that may havc to bc cxcrciscd immcdiatcly and with no timc
to rclcr thc situation to thc Sccurity Council. 8ut actions in sclldclcncc must bc
rcportcd to thc Sccurity Council, which may thcn authorisc subscqucnt mcas
urcs, including, il applicablc, a nding that thc purportcd action in sclldclcncc
6 Tcsc vicws arc critically discusscd by Chcstcrman, abovc n.., at ,,.
, J. Stonc, ggression and !orld Order (Stcvcns, London, .) .
. 8owctt, Self-Defence in International La. (Manchcstcr Univcrsity Prcss,
Manchcstcr, .) .a.
A. Amato, International La.: Process and Prospects (Transnational, obbs Fcrry
NY, .,) ,,.
c onc cc ncst pas unc intcrvcntion dirigcc contrc lintcgrit tcrritorialc, lindpcn
dancc pour lcxRpubliquc dc Yougoslavic, ccst unc intcrvcntion pour sauvcr unc
population cn pril, cn dtrcssc prolondc. Ccst la raison pour laqucllc lc Royaumc
dc 8clgiquc cstimc quc ccst unc intcrvcntion humanitairc armc qui cst compatiblc
avcc larticlc a, paragraphc , dc la Chartc qui nc visc quc lcs intcrvcntions dirigcs
contrc lintcgrit tcrritorialc ct lindpcndancc politiquc dc ltat cn causc. Case
Concerning the Legality of the Use of Force (Yugoslavia v. 8clgium), \crbatim rccord,
.c May ., oral plcading ol Mr. Ruscn rgcc, counscl lor 8clgium, acccsscd at
http://www.icjcij.org/icjwww/idockct/iybc/iybclramc.htm.
12 I.an Shearer
was not justicd in thc circumstanccs. !n thc casc ol Alghanistan, thc Sccurity
Council, through its subscqucnt rcsolutions, has in ccct validatcd thc US and
allicd actions.
!t is othcrwisc in rclation to !raq. Tc buildup to thc invasion ol March
acc was markcd by cxtrcmc rccalcitrancc on thc part ol Saddam Husscin in
his rclusal to coopcratc with thc wcapons inspcctions mandatcd by thc Sccurity
Council. !t is somctimcs lorgottcn in thc toldyouso condcmnations ol thc
invasion lollowing thc lailurc to nd thc suspcctcd wcapons ol mass dcstruc
tion (VMs), that !raq, lor a long pcriod bctwccn .. and carly acc, bchavcd
as though it had somcthing to hidc. !t was playing a vcry dangcrous gamc. Tat
alonc might not havc bccn sucicnt to warrant a conclusion that an armcd attack
by !raq on thc US and its allics was about to occur, warranting immcdiatc action
in sclldclcncc, although it was indccd ocrcd by Prcsidcnt 8ush in broad jus
tication.
Vhat is disappointing to an intcrnational lawycr is that thc Unitcd Statcs,
unlikc its allics thc Unitcd Kingdom and Australia, did not nd it ncccssary to
dcclarc thc lcgal grounds lor its actions in tcrms ol thc UN Chartcr. !t ocrcd
only thc political justication that thc rcgimc ol Saddam Husscin and his posscs
sion ol VMs constitutcd a thrcat to itscll and to thc rcst ol thc world.
Tc Unitcd Statcs Administrations attitudc towards intcrnational law in this
instancc was cxprcsscd by John 8olton, thcn UndcrSccrctary lor Arms Control
and !ntcrnational Sccurity at thc Statc cpartmcnt, and now US Ambassador
to thc UN. !n a spccch to thc National Lawycrs Convcntion, sponsorcd by thc
Fcdcralist Socicty, on . Novcmbcr acc, hc ccctivcly dismisscd intcrnational
law as a ncccssary clcmcnt in thc justication ol lorcign policy. Hc sccs thc basis
ol statc powcr as lying in thc conscnt ol thc pcoplc govcrncd, cxprcsscd through
national not intcrnational law:
!ndccd, thcrcs a lundamcntal problcm ol dcmocratic thcory lor thosc who
contcnd, implicitly or othcrwisc, that thc propcr opcration ol Amcricas insti
tutions ol rcprcscntativc govcrnmcnt arc not ablc to conlcr lcgitimacy lor thc
usc ol lorcc. Makc no mistakc: not asscrting that our constitutional procc
durcs thcmsclvcs conlcr lcgitimacy will rcsult ovcr timc in thc atrophying ol
our ability to act indcpcndcntly.Tis has bccn lundamcntally misundcrstood
in thc UN systcm. Many in thc UN Sccrctariat and many UN mcmbcr gov
crnmcnts in rcccnt Sccurity Council dcbatcs havc argucd dircctly to thc con
trary. !ncrcasingly, thcy placc thc authority ol intcrnational law, which docs
not dcrivc dircctly lrom thc conscnt ol thc govcrncd, abovc thc authority ol
national law and constitutions.
!t is dicult lor intcrnational lawycrs to cngagc with opinions ol this kind. !t has
to do with dccpscatcd rcscrvations in US govcrnmcnt circlcs, transccnding party
13 1 Fe.i.al of the Just !ar Teory?
loyaltics, rcgarding thc rclcvancc ol intcrnational law.
+
8clatcdly, and in a law
journal, not an ocial govcrnmcnt pronounccmcnt, thc Lcgal Adviscr to thc US
Statc cpartmcnt gavc a lcgal opinion
:
csscntially bascd on thc tcxt ol Sccurity
Council Rcsolution .. which had thrcatcncd !raq with scrious conscqucnccs
il wcapons inspcctions continucd to bc lrustratcd. Ncarly all intcrnational law
ycrs havc lound this basis lor action scriously dccicnt, not lcast bccausc thc
Sccurity Council rcmaincd scizcd ol thc mattcr and intcndcd that a lurthcr rcso
lution was rcquircd bclorc cnlorccmcnt action was takcn. Tis was madc clcar
lrom statcmcnts madc in thc Council at thc timc.
Tc Unitcd Kingdom govcrnmcnt sought thc opinion ol its Attorncy
Gcncral as to thc lcgality ol thc attack prior to it.
6 C. ncmark and C. Michaclscn considcr thc invasion ol !raq against thcsc princi
plcs: Just war doctrinc and thc invasion ol !raq, . ustralian Journal of Politics and
History 6 (acc). Vhilc willing to givc thc US and its coalition thc bcnct ol
doubt on right intcntion, and conccding thc critcria ol rcasonablc prospcct ol suc
ccss and proportionatc causc might just arguably bc satiscd, thcy concludc that it
was clcarly unjust against thc critcrion ol last rcsort.
, Spccch to thc Forcign Policy Association, Prccmptivc Forcc: Vhcn Can it bc
Uscd:, acccsscd at www.lpa.org.
15 1 Fe.i.al of the Just !ar Teory?
Notc thc prudcntial charactcr ol thc words ovcrwhclming, immincnt and
catastrophic. Although not statcd to bc in accordancc with intcrnational law,
thc proposition is consistcnt with a conscrvativc rcading ol thc right ol scll
dclcncc in an cra ol wcapons ol mass dcstruction, whcthcr wc arc spcaking ol
actions against tcrrorists as such, or against hostilc statcs.
!n thc casc ol actions against tcrrorists opcrating lrom bascs (as thcy must)
within sovcrcign statcs, in thc rst placc onc should rcly on thc adhcrcncc ol thosc
statcs to thc intcrnational convcntions prohibiting various lorms ol tcrrorism,
8
including thc obligation to cxtraditc or prosccutc ocndcrs against intcrnational
criminal law, and thc rulc ol customary law that lorbids a statc lrom allowing its
tcrritory to bc uscd in ordcr to launch attacks on othcr statcs. Vhcrc that rcli
ancc provcs inccctivc, thcrc is highly pcrsuasivc lorcc in thc proposition that
victim statcs may rcsort to a spccics ol sclldclcncc dcscribcd by Yoram instcin
as cxtratcrritorial law cnlorccmcnt.
Tcsc arc:
right authority,
just causc,
right intcntion,
last rcsort,
proportional mcans,
rcasonablc prospccts.
To thc rst ol thcsc critcria thc Rcport dcvotcs an cntirc chaptcr,
sincc it is ncc
cssary to discuss at lcngth thc rolc ol thc Sccurity Council as thc suprcmc body
to authorizc thc usc ol lorcc (othcrwisc than in immcdiatc sclldclcncc). !n that
chaptcr, thc rcsponsibility ol thc Sccurity Council to act in a principlcd manncr,
objcctivcly wcighing thc cvidcncc, is strcsscd, as mcntioncd abovc.
Just causc is sct lorth as a thrcshold critcrion. !n thc Commissions vicw,
military intcrvcntion lor human protcction purposcs is justicd in two broad scts
ol circumstanccs, namcly in ordcr to halt or avcrt largc scalc loss ol lilc which
is thc product cithcr ol dclibcratc statc action, or statc ncglcct or inability to act,
or a lailcd statc situation, or largc scalc cthnic clcansing, actual or apprchcndcd,
whcthcr carricd out by killing, lorccd cxpulsion, acts ol tcrror or rapc.
6
Right intcntion is discusscd as bcing satiscd whcrc thc primary purposc ol
thc intcrvcntion is to halt or avcrt human sucring. vcrthrow ol rcgimcs is not,
as such, a lcgitimatc objcctivc, although disabling that rcgimcs capacity to harm
its own pcoplc may bc csscntial to discharging thc mandatc ol protcction .
Tc Rcport sccs grcatcr cvidcncc ol right intcntion whcrc thc intcrvcntion takcs
placc on a collcctivc or multilatcral basis. Tc intcrvcntion must also bc supportcd
by thc pcoplc lor whosc bcnct thc intcrvcntion is intcndcd.
and Kuwait
8oth ol thcsc
cxpansivc rcintcrprctations ol Articlc .s right ol sclldclcnsc a right cxcrcis
ablc unilatcrally by thc thrcatcncd statc and its allics constitutc a laudablc cort
to kccp thc Chartcr lrom bccoming obsolctc by making it rcsponsivc to statcs
nccd to rctain thcir lrccdom ol action whcn, as has happcncd too lrcqucntly, col
lcctivc mcasurcs havc not bccn takcn, or havc bccn takcn too latc, to dctcr a crcdi
blc thrcat to thcir sccurity or to thc sccurity ol a largc part ol thcir populations.
8
A sccond altcrnativc lor ovcrcoming institutional stasis is to rccognizc thc
right ol rcgional organizations and coalitions ol thc willing to takc collcctivc
mcasurcs lor thc protcction ol an immincntly thrcatcncd statc, cvcn without thc
rcquisitc prior authorization ol thc Sccurity Council
!n a prcvious
agc, wc would havc rclicd on thc conccpt ol war as thc unilying lramc ol rclcr
. Yoram instcin, V~v, Accvvssiox ~xb Svivvvvxcv (th cd., acc). Tc sccond
cdition ol this work appcarcd in ., thc third in acc. but all rclcrcnccs which
lollow shall bc to thc lourth cdition.
a Yoram instcin, Tnv Coxbuc: ov Hos:iii:ivs uxbvv :nv L~w ov !x:vvx~:iox~i
Av:vb Coxviic: (acc).
See Rosalyn Higgins, Legal Limits to the Use of Force by So.ereign States United Nations
Practice, , 8vi:isn Yvnx. !x:i L~w a6 (.6.).
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. :,-,,.
30 Dino Kritsiotis
cncc lor both thc jus ad bellum and thc jus in bello, cvidcnccd by such rclrains as
rccoursc to war, or mcasurcs short ol war or thc laws (and customs) ol war.
For intcrnational law, thc conccpt ol war that is, an ocial statc ol war or
war as a lcgal condition bccamc thc ccntral prism through which wc vicwcd
and govcrncd thc physical might or violcncc ol statcs.
ur
intcntion will bc to cxaminc thc cxtcnt to which thcsc conccpts (or conccptual
vocabularics) sharc common substantivc ground csscntially to givc somc scnsc
ol thc possiblc dclincations bctwccn thc jus ad bellum and thc jus in bello. Vc
shall thcn procccd, in Part !!!, to cxplorc thc conccptual vocabularics ol thc jus
ad bellum, whcthcr thcy havc lormcd part ol its traditional corpus (such as thc
conccpt ol aggrcssion)
6
or much likc thc conccpt ol lorcc itscll arc morc
rcccnt invcntions or innovations (such as thc conccpt ol armcd attack). How arc
thcsc conccpts mcant to rclatc to onc anothcr: Vhat arc thcir intcndcd lunc
tions within thc jus ad bellum: o thcy rcprcscnt dicrcnt lcgal coda lor idcntical
phcnomcna or arc thcy intcndcd to dcpict dierent phcnomcna within intcrna
tional law:
Troughout our navigation ol thc ncr contours ol this dispcnsation, wc will
locus on what might bc callcd thc topographies of force, or thc broadcr normativc
landscapc that constitutcs lorcc within intcrnational law. To this cnd, Part !\ ol
thc cssay cngagcs thc conccpt ol intcrvcntion a conccpt ol much longcr stand
n this dcsignation, scc, spccically, Nccati Polat, International La., the Inherent
Instability of the International System and International !iolence, . x. J. Lvc~i
S:ubivs ., (.) (rclcrring to institutionalizcd violcncc within thc intcrna
tional systcm: see H. 8ull, Te States Positi.e Fole in !orld airs, .c ~vb~ius ...,
.. (.,)).
Philip Allott, uxo:i~: Nvw vbvv vov A Nvw Vovib (rcv. cd., acc.), a66
(...6).
6 Art. 6 (a) ol thc Nurcmbcrg Chartcr idcnticd crimcs against thc pcacc as onc ol
thc crimcs within thc jurisdiction ol thc !ntcrnational Military Tribunal, which it
dcncd as planning, prcparation, initiation or waging ol a war ol aggrcssion, or a
war in violation ol intcrnational trcatics, agrccmcnts or assuranccs, or participation
in a common plan or conspiracy lor thc accomplishmcnt ol any ol thc lorcgoing. See,
also, infra notc .c.
31 l Topographies of Force
ing within thc disciplinc but onc that has bccn so lrcqucntly ncglcctcd in ordcr
to dctcrminc points ol coordination and comparison within thc law conccrn
ing lorcc. 8y rcgular rccoursc to a burgconing jurisprudcncc principally ol thc
!ntcrnational Court ol Justicc in thc Nicaragua Case (.6),
Tis dcvclop
Govcrnmcnts having rcsponsibility lor such action. All rcmaining rclcrcnccs arc to
thc Sccond Vorld Var: Art. (a), Art. ,, (.) (b) and Art. .c,.
a See ino Kritsiotis, !hen State Use rmed Force, in Tnv Poii:ics ov !x:vvx~:iox~i
L~w , a6. (acc) (Chris RcusSmit, cd.).
a !ntroduction to thc rst cdition ol V~v, Accvvssiox ~xb Svivvvvxcv. See, also,
supra notc ., at xii.
c And, as such, dcncs thc tcrrain ol Prolcssor instcins companion volumc ol Tnv
Coxbuc: ov Hos:iii:ivs uxbvv :nv L~w ov !x:vvx~:iox~i Av:vb Coxviic:,
supra notc a.
. Supra notc a.
a See instcin, supra notc ., at ..
Co::vx:~vv :o Gvxvv~ Coxvvx:iox !!! Rvi~:ivv :o :nv Tvv~::vx: ov
Pvisoxvvs ov V~v aa (.6c) ( Jcan S. Pictct cd.).
Ibid., at a (which instcin attcmpts to achicvc by his bilurcation bctwccn war in its
tcchnical and matcrial scnscs: |t|hc jus in bello is brought into opcration as soon
36 Dino Kritsiotis
mcnt suggcsts that it is not only incumbcnt upon us to dicrcntiatc (as instcin
argucs) bctwccn war as a gurc ol spccch and as a lcgal tcrm ol art,
but also to
undcrstand thc import ol this tcrm ol art whcn comparcd with a chaptcr ol thc
history ol intcrnational law that is scparatc lrom our own (i.c. thc pcriod bclorc
thc . Gcncva Convcntions).
vcn though it is conccdcd that thc rclcvant norms ol thc jus in bello must
bc implcmcntcd in thc coursc ol intcrnational armcd conicts ol whatcvcr typc,
and not only whcn a statc ol war is in ccct,
6
it is tclling that, in !ar, ggression
and Self-Defence, thc promincnt linc that is takcn lor dclcnding thc lcgal mcan
ing ol war occurs on thc lront ol thc constraints ol warlarc,
it is in thc contcxt ol
thc jus in bello that thc thcorctical as wcll as practical distinctions ol this mcan
ing arc csscntially lorctold.
8
Vc nd, lor cxamplc, that considcrablc cmphasis is
awardcd to thc taxonomics ol armcd conict
Such
as thcy arc, thcsc signicanccs might bc rcgardcd as morc subtlc rcvclations lrom
thc tcxt ol !ar, ggression and Self-Defence. Tcy arc not as obvious or as cxplicit
as thc thcorctical as wcll as practical distinctions urgcd lor thc waging ol war
larc in thc opcning chaptcrs ol that volumc, but, rathcr, cmcrgc as thc work takcs
shapc and as its ovcrall argumcnt progrcsscs.
8
Vc shall idcntily and cxaminc
two hcrc.
Tc rst can bc asscrtcd in tcrms ol a choicc ol law impcrativc, whcrc thc
dcnitional bcrth awardcd to war in intcrnational law is sucicntly broad that
it will occasionally cclipsc thc importancc ol thc jus ad bellum. According to this
pcrspcctivc, wc arc invitcd to considcr !sracls strikc on thc nuclcar rcactor in !raq
on Junc ,, .. as part ol thc war bctwccn !raq and !sracl which startcd in .,
or as an act which rcprcscntcd anothcr round ol hostilitics in an ongoing con
Ibid., at .
As in thc . Unitcd Nations Convcntion on thc Prohibition ol thc cvclopmcnt,
Production, Stockpiling and Usc ol Chcmical Vcapons and on thcir cstruction,
which covcr|s| all armcd conicts ol whatcvcr scopc (not cvcn ncccssarily intcr
Statc): See ibid., at .,.
Ibid., at ...
6 Ibid., at aa.
, Ibid., at .
Tc lcgal naturc ol war would appcar to bc prcparatory to thc sccond part ol thc
volumc, on |t|hc illcgality ol war although thc third part considcrs |c|xccptions to
thc prohibition ol thc usc ol inter-State force (cmphasis supplicd). See ibid., at vix.
Ibid., at . See, lurthcr, ibid. at 6: A numbcr ol rounds ol hostilitics bctwccn !sracl
and gypt or Syria (most conspicuously, thc socallcd Yom Kippur Var ol ctobcr
.,) arc incorrcctly advcrtcd to as wars. Far lrom qualilying as scparatc wars, thcsc
wcrc mcrcly nonconsccutivc timclramcs ol combat, punctuatcd by cxtcndcd ccasc
rcs, in thc coursc ol a singlc ongoing war that had commcnccd in Junc .6,. Tis
raiscs thc qucstion ol thc cxtcnt to which a statc ol armed conict as opposcd to
a .ar in thc lcgal scnsc might bc tcrminatcd, cspccially givcn thc lact that its
dcnition rcsts on thc occurrcncc ol de facto hostilitics: supra notc . See, lurthcr,
instcin, supra notc ., at , (implicd mutual conscnt) and c (suspcnsion ol
hostilitics).
38 Dino Kritsiotis
ict.
o
!l this pcrspcctivc wcrc adoptcd, thc action would stand to bc adjudicatcd
according to thc jus in bello and not thc jus ad bellum:
+
Had !sracl bccn at pcacc with !raq |in Junc ..|, thc bombing ol thc sitc |at
siraq| would havc bccn prohibitcd, sincc (whcn cxamincd in itscll and out
ol thc contcxt ol an ongoing war) it did not qualily as a lcgitimatc act ol scll
dclcnsc consonant with Articlc . |ol thc Chartcr|. Tis is thc position de lege
lata, dcspitc thc undcrstandablc apprchcnsion cxisting at thc timc that nuclcar
dcviccs, il produccd by !raq, might ultimatcly bc dclivcrcd against !sracli tar
gcts.
:
Tc qucstion ol thc choicc ol law has a lundamcntal bcaring on how wc vicw thc
lawlulncss ol !sracls action bccausc, undcr thc rulcs ol thc jus in bello, a contrary
conclusion would havc to bc rcachcd. Tat is bccausc, undcr thc rclcvant rulcs ol
targcting during a war or armcd conict, thcrc would bc no qucstion conccrning
thc pcrmissibility ol thc action undcr intcrnational law. Articlc a (a) ol thc First
Additional Protocol ol .,, limits attacks strictly to military objcctivcs, which it
dcncs as thosc objccts which by thcir naturc, location, purposc or usc makc an
ccctivc contribution to military action and whosc total or partial dcstruction,
capturc ol ncutralization, in thc circumstanccs ruling at thc timc, ocrs a dcnitc
military advantagc. Against this standard, !sracls action ol Junc .. would bc a
comlortablc t.
and, thcn, it concludcd pcacc trcatics with gypt (March .,),
6
Lcbanon (May
.)
According to this lramcwork, thcn, |w|hcn a war ol sclldclcnsc is triggcrcd by
an allout invasion, thc issuc ol ncccssity usually bccomcs moot.
!n morc dra
matic languagc, it is said ol thc principlc ol proportionality:
Tc condition ol proportionality has a spccial mcaning in thc contcxt ol a
war ol sclldclcnsc. Vhcn onthcspot rcaction or dclcnsivc armcd rcpris
als arc involvcd, proportionality points at a symmctry or an approximation in
scalc and cccts bctwccn thc unlawlul lorcc and thc lawlul countcrlorcc.
Proportionality in this scnsc, albcit appropriatc lor thc purposcs ol onthcspot
rcaction and dclcnsivc armcd rcprisals, is unsuitcd lor an invcstigation ol thc
lcgitimacy ol a war ol sclldclcnsc. Tcrc is no support in thc practicc ol Statcs
lor thc notion that proportionality rcmains rclcvant and has to bc constantly
asscsscd throughout thc hostilitics in thc coursc ol war. ncc war is raging,
thc cxcrcisc ol sclldclcnsc may bring about thc dcstruction ol thc cncmys
6, Ibid., at a..
6 a 8.F.S.P. ..a, c 8.F.S.P. .. Although instcin considcrs that immcdiacy lorms
thc nal clcmcnt ol thc thrcc conditions spccicd in thc Caroline lormula: ibid., at
a (and at ac: |i|mmcdiacy signics that thcrc must not bc an unduc timclag
bctwccn thc armcd attack and thc cxcrcisc ol sclldclcnsc). Howcvcr, a closc rcad
ing ol thc Caroline corrcspondcncc would suggcst that an immcdiacy rcquircmcnt
lormcd part ol thc undcrstanding ol thc principlc ol ncccssity, and, in any cvcnt, was
not dcviscd in thc contcxt ol any rcquircmcnt ol an armcd attack. See, lurthcr, R.Y.
Jcnnings, Te Carolinc and McLeod Cases, a A:. J. !x:i L~w a (.).
6 See instcin, supra notc ., at a (cmphasis supplicd). Furthcr, ibid., at a: !t is
somctimcs put lorward that thc rulc cmcrging lrom thc Caroline incidcnt is no
longcr valid undcr thc UN Chartcr. 8ut thcrc is no corroboration ol this vicw in thc
tcxt ol thc Chartcr.
,c Ibid., at a (cmphasis supplicd).
,. Ibid., at a.c.
,a Ibid., at a.a.
, Ibid., at a.
, Ibid., at a,.
42 Dino Kritsiotis
army, rcgardlcss ol thc condition ol proportionality. 8y its naturc, war (as
a comprchcnsivc usc ol lorcc) is virtually bound to bc disproportionatc to any
mcasurc short ol war.
Tc ccct ol thcsc positions would appcar to cmpty thc Caroline principlcs ol any
lcgal valuc in asscssmcnts ol thc mcrits ol a war ol sclldclcnsc.
6
Tcy strongly
suggcst that thc dicrcncc in thc application ol thc principlcs to mcasurcs short
ol war is actually onc ol kind rathcr than ol dcgrcc a pcrccption that is casily
rcinlorccd by thc structural signicancc which this distinction assumcs in thc
composition ol !ar, ggression and Self-Defence.
Tc samc position was takcn by thc Unitcd Kingdom,
proportionatc countcrmcasurcs
(Nicaragua Case (.6), a)
ARM ATTACK
(Nicaragua Case (.6), .)
rcqucst ol Govcrnmcnt
(Nicaragua Case (.6), a6)
political/idcological intcrvcn
tion
(Nicaragua Case (.6), ac6)
proccss ol dccolonization
(Nicaragua Case (.6), ac6)
Prohibition ol !ntcrvcntion
.6 GA Rcsn. a.. (XX)
supply ol lunds
(Nicaragua Case (.6), aa)
armcd intcrvcntion
(GA Rcsn. a6a (XX\) (.,c))
Armcd
Attack
Scll
dclcnsc
(gure )
a Supra nn. aa.
77 l Topographies of Force
V Conclusion
!n thc coursc ol this cssay, our cndcavor has bccn to dcpict what wc havc callcd
thc topographies of force, csscntially thc broadcr lay ol thc land with rcspcct to
lorcc in intcrnational law, by rclcrcncing its various conccptual guiscs or aliascs.
Vc havc attcmptcd to makc a provisional advancc on this topic, although, it is
clcar that, in our corts, wc havc sought to bc ncithcr cxhaustivc nor comprc
hcnsivc.
:
ur main motivation has bccn to makc a start at ctching thc broadcr
contours ol thcsc topographics so that, as is so oltcn thc casc with lcgal discoursc,
somc insights might bc shcd on thc minutiac ol thc law on lorcc, or somc causc
givcn to rccct on thc history or lunction ol a particular rulc as it rclatcs to thc
lcgal dctail ol lorcc. Tc outlinc ol thcsc topographics has comc to pass as wc
havc cxamincd thc rclationships ol lorcc with, rst, war and, thcn, armcd con
ict, lollowcd by armcd attack and aggrcssion and, nally, intcrvcntion. Tc
idca has bccn to cmphasizc thc broadcr contcxt in which thc laws on lorcc livc
and opcratc, rathcr than to run our horizons along thc sanguinc pcrimctcrs ol thc
Unitcd Nations Chartcr. !t is an cxcrcisc undcrtakcn vcry much in thc gcncral
spirit ol thc jurisprudcncc ol thc !ntcrnational Court ol Justicc and, in thc proc
css, it is hopcd that a bcttcr undcrstanding has bccn lorgcd ol thc conccpt ol lorcc
itscll, togcthcr with its importancc lor intcrnational law and lor thc (apparcntly)
scttlcd law ol thc Unitcd Nations Chartcr.
:6
a Vc havc not lor cxamplc givcn lull cxposition to thc doctrinc ol statc rcsponsibility
or thc impact ol bilatcral arrangcmcnts on lorcc (which consumcd a good sharc ol
thc Courts cncrgy in thc Case Concerning Oil Platforms, supra notc ).
a6 Supra notc ac.
Chapter 4
Claims to Prccmptivc Uscs ol Forcc:
Somc Trcnds and Projcctions and Tcir !mplications lor
Vorld rdcr
!. Michael Feisman and ndrea rmstrong
Tc Unitcd Statcs claim to a right ol what has comc to bc known as prccmptivc
sclldclcnsc has provokcd dccp anxicty and soulscarching among thc mcmbcrs
ol thc collcgc ol intcrnational lawycrs. Somc havc lcarcd that thc claim was sign
aling a dcmand to lcgitimizc Pcarl Harbor typcs ol actions, i.c., suddcn massivc
and dcstructivc military actions by onc statc against anothcr in thc abscncc ol a
statc ol war, out ol thc bluc as it wcrc, all undcrtakcn to ncutralizc militarily, or
cvcn climinatc, a latcnt or potcntial advcrsary. Sincc voiccs ol somc public intcl
lcctuals within thc Amcrican political systcm had, in thc midst ol thc Cold Var,
rccommcndcd such a stratcgy with rcspcct to thc Pcoplcs Rcpublic ol China,
+
thc anxicty could not bc dismisscd as cntircly unloundcd or cvcn hystcrical. Nor
could it bc dismisscd as somc sort ol Amcrican abcrration. From thc carlicst uni
latcral claims to a contincntal shcll, a copycat or mimctic dynamic in modcrn
intcrnational law has bccn cvidcnt whcncvcr an cnhanccmcnt ol statc powcr is
availablc, so thc possibility ol many othcr statcs making a similar claim to an
cxpandcd notion ol prccmptivc sclldclcnsc could not bc cxcludcd.
Tc Unitcd Nations Chartcrs prcscription with rcspcct to thc usc ol lorcc is
csscntially binary: a usc ol military lorcc is cithcr in sclldclcnsc, as that conccpt
is conccivcd in thc Chartcr, in which casc it is lawlul, or it is not, in which casc
it is unlawlul. As lor thc right to rcsort to military mcasurcs in sclldclcnsc, it
matcrializcs only upon thc statc invoking it, having sucrcd an armcd attack, a
stricturc that docs not cvcn cxtcnd to thc Caroline doctrinc.
:
. Villiam 8ucklcy, Noted Liberal grees: Lets Destroy Pekings -Treat No., L.A.
Ti:vs, cc .6, .6, at A6 a.ailable at ProQucst Historical Ncwspapcrs.
a Scc R.Y. Jcnnings, Te Caroline and McLeod Cases, a A:. J. !x:i L. a (.). Scc
also Rcisman, International Legal Fesponses to Terrorism, aa:. Hous:ox Jouvx~i ov
!x:vvx~:iox~i L~w (.).
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. ,,-zz:.
80 !. Michael Feisman and ndrea rmstrong
uring thc Cold Var, thc Chartcr rcgimc had comc undcr strcss lrom thc
practicc ol lowlcvcl protractcd conicts and it was obligcd to ignorc thc ovcrt
and cxplicit nuclcar thrcats which had comc to constitutc thc systcm ol stratc
gic dctcrrcncc. 8ut dcspitc thcsc problcms, thc !ntcrnational Court
and most
intcrnational lawycrs havc stcadlastly insistcd on a strict rctcntion ol thc Chartcr
rcgimc, most rcccntly in thc Congo .. Uganda dccision, which is discusscd bclow.
Vhcthcr customary intcrnational law is in thc proccss ol accommodating thc
Unitcd Statcs claim to a right ol prccmptivc action and thus brcaching thc doc
trincs dclcnsivc pcrimctcr is onc ol thc issucs wc addrcss.
I
Tc claim to prccmptivc sclldclcnsc is a claim to usc unilatcrally, and without
prior intcrnational authorization, high lcvcls ol violcncc to arrcst an incipicnt
dcvclopmcnt that is not yct opcrational and is not yct dircctly thrcatcning, but
that, il pcrmittcd to maturc, could thcn, in thc vicw ol thc potcntial prccmptor,
bc ncutralizcd only at a highcr and possibly unacccptablc cost to thc party con
tcmplating thc prccmptivc action.
Two ycars latcr, against thc continuing backdrop ol suspcctcd Libyan govcrn
mcnt support lor tcrrorist attacks, a classicd dircctivc raiscd thc prospcct ol uni
latcral attacks to prcvcnt tcrrorist attacks. National Sccurity ccision ircctivc
ac, cxplaincd:
Tc U.S. Govcrnmcnt considcrs thc practicc ol tcrrorism by any pcrson or
group a potcntial thrcat to our national sccurity and will rcsist thc usc ol tcrror
Extract of National Security Decision Directi.e z8, April ., at: http://www.gwu.
cdu/~nsarchiv/NSA88/NSA88/nsdd..pdl (thc lull dircctivc is still classi
cd).
82 !. Michael Feisman and ndrea rmstrong
ism by all lcgal mcans availablc. Tc Unitcd Statcs is opposcd to domcstic and
intcrnational tcrrorism and is prcparcd to act in conccrt with othcr nations or
unilatcrally whcn ncccssary to prcvcnt or rcspond to tcrrorist acts.
Statcs that practicc tcrrorism or activcly support it, will not bc allowcd to
do so without conscqucncc. Vhcncvcr wc havc cvidcncc that a statc is mount
ing or intcnds to conduct an act ol tcrrorism against us, wc havc a rcsponsibility
to takc mcasurcs to protcct our citizcns, propcrty, and intcrcsts.
6
Although initially conncd to classicd documcnts, thc ncw policy was cxplicitly
discusscd in ncwspapcr articlcs and in spccchcs by high administration ocials
,
a widcly uscd and intcrnationally lcgally notcd mcthod lor cstablishing national
positions.
8
!n what latcr bccamc known as thc Shultz octrinc, Sccrctary
ol Statc Gcorgc Schulz argucd lor thc right to takc limitcd military action to
addrcss tcrrorist thrcats whilc thcy arc still managcablc.
!n thc wakc ol thc rcccnt attacks at thc Romc and \icnna airports, wc havc
hcard it asscrtcd that military action to rctaliatc or prccmpt tcrrorism is con
trary to intcrnational law. Somc havc suggcstcd that cvcn to contcmplatc using
lorcc against tcrrorism is to lowcr oursclvcs to thc barbaric lcvcl ol thc tcrror
ists. ! want to takc this issuc hcad on.
Unlikc tcrrorists and communist gucrrillas, wc do not bclicvc thc cnd
justics thc mcans. Vc bclicvc in thc rulc ol law. Tis nation has long bccn a
champion ol intcrnational law, thc pcacclul scttlcmcnt ol disputcs, and thc UN
Chartcr as a codc ol conduct lor thc world community.
8ut thc Chartcrs rcstrictions on thc usc or thrcat ol lorcc in intcrnational
rclations includc a spccic cxccption lor thc right ol sclldclcnsc. !t is absurd to
arguc that intcrnational law prohibits us lrom capturing tcrrorists in intcrna
tional watcrs or airspacc, lrom attacking thcm on thc soil ol othcr nations, cvcn
lor thc purposc ol rcscuing hostagcs, or lrom using lorcc against statcs that
support, train, and harbor tcrrorists or gucrrillas. !ntcrnational law rcquircs no
such rcsult. A nation attackcd by tcrrorists is pcrmittcd to usc lorcc to prcvcnt
or prccmpt luturc attacks, to scizc tcrrorists, or to rcscuc its citizcns whcn no
othcr mcans is availablc. Tc law rcquircs that such actions bc ncccssary and
6 National Sccurity ccision ircctivc ac,, Te National Program for Combating
Terrorism, January ac, .6 (Top Sccrct), at: http://www.gwu.cdu/~nsarchiv/
NSA88/NSA88/nsddac,.pdl.
, See e.g. Robcrt C. Toth, Pre-empti.e nti-Terrorist Faids llo.ed, V~sn. Pos:., Apr.
.6, ., at A..
Nuclear Tests (Austl. v. Fr.), ., !.C.J. a, a6,a6 (cc. ac).
83 4 Claims to Pre-empti.e Uses of Force
proportionatc. 8ut this nation has consistcntly armcd thc right ol statcs to
usc lorcc in cxcrcisc ol thcir right ol individual or collcctivc sclldclcnsc.
|spcaking about !raq| Givcn thc lact that an irrational lcadcr who has a his
tory ol military lorcc and military usc and military aggrcssion and domination
may acquirc a nuclcar wcapon, thc qucstion is, should it bc thc policy ol thc
Unitcd Statcs to do nothing, and allow such a lcadcr to acquirc a wcapon that
hc could thcn usc to blackmail thc world and blackmail thc rcgion, and cvcn
usc it to harm us.
:+
TcnNational Sccurity Advisor, r. Condolcczza Ricc, similarly limitcd thc
policy, noting,
Tc numbcr ol cascs in which it might bc justicd will always bc small. !t
docs not givc a grccn light to thc Unitcd Statcs or any othcr nation to act
rst without cxhausting othcr mcans, including diplomacy. Prccmptivc action
docs not comc at thc bcginning ol a long chain ol cort. Tc thrcat must bc
vcry gravc. And thc risks ol waiting must lar outwcigh thc risks ol action.
::
!ndccd, thc 8ush Administration appcars to havc modcratcd its initial cxpansivc
claims in thc ncwly rclcascd acc6 National Sccurity Stratcgy, whilc ncvcrthc
lcss rctaining its claim ol a right to usc lorcc prccmptivcly. Although thc ncw
stratcgy proclaims that |t|hc placc ol prccmption in our national sccurity strat
cgy rcmains thc samc,
:
thc acc6 stratcgy also placcs much morc cmphasis on
altcrnativcs to military prccmption and rcliancc on multilatcral solutions. Tc
8ush Administration argucs, |t|aking action |to prcvcnt prolilcration ol wcap
ons ol mass dcstruction| nccd not involvc military lorcc. ur strong prclcrcncc
and common practicc is to addrcss prolilcration conccrns through intcrnational
diplomacy, in conccrt with kcy allics and rcgional partncrs.
:
Prccmptivc mili
tary action also appcars to bc limitcd to a hard corc ol tcrrorists, who cannot bc
dctcrrcd and thcrclorc must bc trackcd down, killcd, or capturcd.
:
Tc undcr
lying nctworks supporting thcsc tcrrorists, howcvcr, would bc dctcrrcd using a
broad rangc ol tools.
:6
Tc acc6 stratcgy providcs lurthcr support to cxpcrts, who, in thc altcrmath
ol thc war in !raq, spcculatcd that thc 8ush Administration had alrcady soltcncd
a. Ari Flcishcr, Vhitc Housc Spokcspcrson, Prcss 8ricng, ct. ., acca, http://www.
whitchousc.gov/ncws/rclcascs/acca/.c/acca.c..html.
aa Condolcczza Ricc, Scc. ol Statc, Vriston Lccturc at thc Valdorl Astoria Hotcl,
(ct. ., acca), http://www.whitchousc.gov/ncws/rclcascs/acca/.c/acca.cc.6.html.
a National Sccurity Stratcgy ol thc Unitcd Statcs at a (March acc6), at: http://www.
whitchousc.gov/nsc/nss/acc6/nssacc6.pdl.
a Id.
a Id. at .a.
a6 Id.
88 !. Michael Feisman and ndrea rmstrong
its claim to a right ol prccmption in practicc il not in policy particularly with
rcspcct to !ran and North Korca.
:
Largc scalc attacks on statcs appcar to bc lcss
lavorcd than stratcgic prccmptivc strikcs against wcapons ol mass dcstruction
or tcrrorist training camps. Tis may bc morc ol a tactical rathcr than an intcrna
tional lcgal corrcction.
III
!n thc pcriod undcr rcvicw, thc Unitcd Nations Highlcvcl Pancl on Trcats,
Challcngcs and Changc, appointcd by thc Sccrctary Gcncral, appcars to havc
sidcd with thosc lavoring a ccrtain looscning ol thc strict rcquircmcnt ol an
armcd attack lor sclldclcnsc by rcsort to unilatcral military action. Tc High
lcvcl Pancl statcd:
.. Tc languagc ol this articlc is rcstrictivc: Nothing in thc prcscnt Chartcr
shall impair thc inhcrcnt right ol individual or collcctivc scll dclcnsc il
an armcd attack occurs against a mcmbcr ol thc Unitcd Nations, until thc
Sccurity Council has takcn mcasurcs to maintain intcrnational pcacc and sccu
rity. Howcvcr, a thrcatcncd Statc, according to long cstablishcd intcrnational
law, can takc military action as long as thc thrcatcncd attack is imminent, no
othcr mcans would dccct it and thc action is proportionatc. Tc problcm
ariscs whcrc thc thrcat in qucstion is not immincnt but still claimcd to bc rcal:
lor cxamplc thc acquisition, with allcgcdly hostilc intcnt, ol nuclcar wcapons
making capability.
:8
Tc Rcd Quccn may assign whatcvcr mcaning shc wishcs to words but it is plain
to us that thc languagc ol Articlc ., whcthcr wisc or not, was not dcsigncd to
accommodatc thc Caroline principlc. Tc Pancls intcrprctation appcars to bc an
attcmpt at adjustmcnt ol thc Chartcr to mcct part ol thc Unitcd Statcs claim.
:
8ut only part ol it! Tc Highlcvcl Pancl procccdcd to makc clcar that il immi
ncnt armcd attack wcrc now brought within thc mcaning ol armcd attack and
unilatcral military action to hcad it o could now bc potcntially lawlul, prc
cmptivc sclldclcnsc could not. Tc Pancl rcjcctcd, in cxplicit tcrms, thc possi
bility that acting prcvcntivcly (against a nonimmincnt or nonproximatc onc
a, Scc, c.g., Francis Fukuyama, fter Neoconser.atism, N.Y. Ti:vs, Fcb.., acc6,
Jamcs Stcrngold, Bush Tempers rgument for Pre-empti.e strikes, S~x Fv~xcisco
Cnvoxiciv, ct.a, acc at A.c (Lcxis).
a Rcport ol thc Highlcvcl Pancl on Trcats, Challcngcs and Changc, more secure
.orld: Our Shared Fesponsibility, , U.N. oc. A//6 (cc. a, acc), at: http://
www.un.org/sccurcworld/rcport.pdl.
a Rcisman, Expanding the UN Security Council: Much do, JUR!ST, Aug. ,, acc, at:
http://jurist.law.pitt.cdu/lorumy/acc/c/cxpandingunsccuritycouncilmuch
ado.php.
89 4 Claims to Pre-empti.e Uses of Force
|thrcat|) could lall within thc conncs ol lawlul sclldclcnsc. Tc Highlcvcl
Pancl cxplaincd:
... For thosc impaticnt with such a rcsponsc, thc answcr must bc that, in a
world lull ol pcrccivcd potcntial thrcats, thc risk to thc global ordcr and thc
norm ol nonintcrvcntion on which it continucs to bc bascd is simply too
grcat lor thc lcgality ol unilatcral prcvcntivc action, as distinct lrom collcctivcly
cndorscd action, to bc acccptcd. Allowing onc to so act is to allow all.
o
Curiously, this part ol thc High Lcvcl Pancl Rcport, with its putativc cmcndation
ol thc Chartcr, has cxcitcd rclativcly littlc commcnt dcspitc its radical charactcr,
lor it would signicantly changc thc purport ol Articlc . by moving it towards
thc U.S. position. Unlcss, ol coursc, thc changc had alrcady bccn accomplishcd by
practiccs long sincc incorporatcd into customary intcrnational law.
IV
!n a scrics ol judgmcnts and advisory opinions, thc !ntcrnational Court ol Justicc
has hcwcd to a rathcr strict rcading ol Articlc . ol thc Unitcd Nations Chartcr.
Asscssing thc lcgal contcnt ol thc right to scll dclcnsc in .6, thc Court sur
vcycd trcaty law and customary intcrnational law and concludcd:
.. !n thc casc ol individual sclldclcncc, thc cxcrcisc ol this right is subjcct
to thc Statc conccrncd having bccn thc victim ol an armcd attack. Rcliancc
on collcctivc sclldclcncc ol coursc docs not rcmovc thc nccd lor this. Tcrc
appcars now to bc gcncral agrccmcnt on thc naturc ol thc acts which can bc
trcatcd as constituting armcd attacks. !n particular, it may bc considcrcd to bc
agrccd that an armcd attack must bc undcrstood as including not mcrcly action
by rcgular armcd lorccs across an intcrnational bordcr, but also thc scnding
by or on bchall ol a Statc ol armcd bands, groups, irrcgulars or mcrccnarics,
which carry out acts ol armcd lorcc against anothcr Statc ol such gravity as to
amount to (inter alia) an actual armcd attack conductcd by rcgular lorccs, or
its substantial involvcmcnt thcrcin. . . . !t is also clcar that it is thc Statc which
is thc victim ol an armcd attack which must lorm and dcclarc thc vicw that it
has bccn so attackcd. Tcrc is no rulc in customary intcrnational law pcrmit
ting anothcr Statc to cxcrcisc thc right ol collcctivc sclldclcncc on thc basis ol
its own asscssmcnt ol thc situation. Vhcrc collcctivc sclldclcncc is invokcd,
it is to bc cxpcctcd that thc Statc lor whosc bcnct this right is uscd will havc
dcclarcd itscll to bc thc victim ol an armcd attack.
+
c Id. at .
. Military and Paramilitary cti.ities in and gainst Nicaragua (Nicar. v. U.S.), .6
!.C.J. ., .cc. ( Junc a,) (Mcrits).
90 !. Michael Feisman and ndrea rmstrong
Scvcntccn ycars latcr, thc !ntcrnational Court ol Justicc applicd its intcrprctation
ol Articlc . lrom Nicaragua to U.S. claims ol sclldclcnsc in attacking !ranian oil
installations. Tc Court lurthcr cxplaincd that thc U.S. must provc not only that
it sucrcd lrom an armcd attack, but also that it must cstablish !ranian rcspon
sibility lor that attack a rcquircmcnt thc U.S. was ultimatcly unablc to satisly.
:
Tcrclorc, in ordcr to cstablish that it was lcgally justicd in attacking thc
!ranian platlorms in cxcrcisc ol thc right ol individual sclldclcncc, thc Unitcd
Statcs has to show that attacks had bccn madc upon it lor which !ran was
rcsponsiblc, and that thosc attacks wcrc ol such a naturc as to bc qualicd
as armcd attacks within thc mcaning ol that cxprcssion in Articlc . ol thc
Unitcd Nations Chartcr, and as undcrstood in customary law on thc usc ol
lorcc. As thc Court obscrvcd in thc casc conccrning Military and Paramilitary
cti.ities in and against Nicaragua, it is ncccssary to distinguish thc most gravc
lorms ol thc usc ol lorcc (thosc constituting an armcd attack) lrom othcr lcss
gravc lorms (I.C.J. Feports z,8o, p. .c., para. ..), sincc !n thc casc ol indi
vidual sclldclcncc, thc cxcrcisc ol this right is subjcct to thc Statc conccrncd
having bccn thc victim ol an armcd attack (ibid., p. .c, para. .). Tc Unitcd
Statcs must also show that its actions wcrc ncccssary and proportional to thc
armcd attack madc on it, and that thc platlorms wcrc a lcgitimatc military
targct opcn to attack in thc cxcrcisc ol sclldclcncc.
!ts most rcccnt holding in thc Case Concerning rmed cti.ities on the Territory of
the Congo, which thc cmocratic Rcpublic ol thc Congo brought against Uganda,
thc Court was rcquircd to addrcss, undcr its contcntious jurisdiction, thc issuc ol
prccmptivc sclldclcnsc.
n Scptcmbcr .., ., thc Ugandan High Command issucd a documcnt
known as Salc Havcn. Tc documcnt statcd
VHRAS lor a long timc thc RC has bccn uscd by thc cncmics ol Uganda
as a basc and launching pad lor attacks against Uganda,
AN
VHRAS thc succcssivc govcrnmcnts ol thc RC havc not bccn in ccc
tivc control ol all thc tcrritory ol thc Congo,
AN
VHRAS in May .,, on thc basis ol a mutual undcrstanding thc
Govcrnmcnt ol Uganda dcploycd UPF to jointly opcratc with thc Congolcsc
Army against Uganda cncmy lorccs in thc RC,
AN
VHRAS whcn an antiKabila rcbcllion cruptcd in thc RC thc lorccs ol
thc UPF wcrc still opcrating along sidc thc Congolcsc Army in thc RC,
against Uganda cncmy lorccs who had cd back to thc RC,
NV THRFR thc High Command sitting in Kampala this ..th day
ol Scptcmbcr, ., rcsolvcs to maintain lorccs ol thc UPF in ordcr to sccurc
Ugandas lcgitimatc sccurity intcrcsts which arc thc lollowing:
.. To dcny thc Sudan opportunity to usc thc tcrritory ol thc RC to dcsta
bilizc Uganda.
a. To cnablc UPF to ncutralizc Uganda dissidcnt groups which havc bccn
rccciving assistancc lrom thc Govcrnmcnt ol thc RC and thc Sudan.
. To cnsurc that thc political and administrativc vacuum, and instability
causcd by thc ghting bctwccn thc rcbcls and thc Congolcsc Army and
its allics do not advcrscly acct thc sccurity ol Uganda.
Legal Consequences of the Construction of a !all in the Occupied Palestinian Territory,
!.C.J. Rcports acc, para. ..
92 !. Michael Feisman and ndrea rmstrong
. To prcvcnt thc gcnocidal clcmcnts, namcly, thc !ntcrahamwc, and cx
FAR, which havc bccn launching attacks on thc pcoplc ol Uganda lrom
thc RC, lrom continuing to do so.
. To bc in position to salcguard thc tcrritory intcgrity ol Uganda against
irrcsponsiblc thrcats ol invasion lrom ccrtain lorccs.
Nonc ol thc lcgitimatc sccurity intcrcsts in thc vc points in Salc Havcn involvcs
rcsponsc to an armcd attack. ach is cithcr an action in anticipatory sclldclcnsc,
in thc scnsc ol thc Caroline doctrinc, or, insolar as thc cvcnt lor which military
action is proposcd is not immincnt, it is an action purportcdly in prccmptivc
sclldclcnsc, in thc scnsc in which thc Unitcd Statcs Administration has uscd
thc tcrm. nly !tcm a, insolar as thc lacts supportcd it, could bc charactcrizcd as
anticipatory sclldclcnsc in thc Caroline scnsc.
Tc Court rcmarkcd that thc objcctivcs ol opcration Salc Havcn, as statcd
in thc Ugandan High Command documcnt || wcrc not consonant with thc con
ccpt ol sclldclcncc as undcrstood in intcrnational law.
6
Altcr rcciting Articlc
. ol thc Chartcr, thc Court continucd:
Tc Court rccalls that Uganda has insistcd in this casc that opcration Salc
Havcn was not a usc ol lorcc against an anticipatcd attack. As was thc casc also
in thc Military and Paramilitary cti.ities in and against Nicaragua (Nicaragua
v. United States of merica) casc, rcliancc is placcd by thc Partics only on thc
right ol sclldclcncc in thc casc ol an armcd attack which has alrcady occurrcd,
and thc issuc ol thc lawlulncss ol a rcsponsc to thc immincnt thrcat ol armcd
attack has not bccn raiscd (I.C.J. Feports z,8o, p. .c, para. .). Tc Court
thcrc lound that |a|ccordingly |it| cxprcsscs no vicw on that issuc. So it is
in thc prcscnt casc. Tc Court lccls constraincd, howcvcr, to obscrvc that thc
wording ol thc Ugandan High Command documcnt on thc position rcgarding
thc prcscncc ol thc UPF in thc RC makcs no rclcrcncc whatcvcr to armcd
attacks that havc alrcady occurrcd against Uganda at thc hands ol thc RC
(or indccd by pcrsons lor whosc action thc RC is claimcd to bc rcsponsiblc).
Rathcr, thc position ol thc High Command is that it is ncccssary to sccurc
Ugandas lcgitimatc sccurity intcrcsts. Tc spccicd sccurity nccds arc csscn
tially prcvcntativc to cnsurc that thc political vacuum docs not advcrscly acct
Uganda, to prcvcnt attacks lrom gcnocidal clcmcnts, to bc in a position to
salcguard Uganda lrom irrcsponsiblc thrcats ol invasion, to dcny thc Sudan
thc opportunity to usc thc tcrritory ol thc RC to dcstabilizc Uganda. nly
onc ol thc vc listcd objcctivcs rclcrs to a rcsponsc to acts that had alrcady
Case Concerning rmed cti.ities on the Territory of the Congo (Democratic Fepublic of
the Congo .. Uganda), !ntcrnational Court ol Justicc, . cccmbcr acc, at paragraph
.c.
6 Id. at para. ...
93 4 Claims to Pre-empti.e Uses of Force
takcn placc thc ncutralization ol Uganda dissidcnt groups which havc bccn
rccciving assistancc lrom thc Govcrnmcnt ol thc RC and thc Sudan.
Tc Court also obscrvcd that Uganda had not rcportcd thc cvcnts purporting to
justily sclldclcnsc to thc Sccurity Council. Rcvcrting to thc strict contingcncy ol
Articlc ., thc Court said whilc Uganda claimcd to havc actcd in sclldclcncc, it
did not cvcr claim that it had bccn subjcctcd to armcd attack by thc armcd lorccs
ol thc RC.
8
As to whcthcr a statc is cntitlcd to takc actions in sclldclcnsc whcn it has
sucrcd an armcd attack lrom a military lorcc not aliatcd with a statc, thc
Court obscrvcd as a lactual mattcr that on thc cvidcncc bclorc it, cvcn il this
scrics ol dcplorablc attacks could bc rcgardcd as cumulativc in charactcr, thcy
still rcmaincd nonattributablc to thc RC.
. Case Concerning rmed cti.ities on the Territory of the Congo (cmocratic Rcpublic
ol thc Congo v. Uganda), !ntcrnational Court ol Justicc, . cccmbcr acc, (Scparatc
pinion ol Judgc Kooijmans at para. a6).
a Legal Consequences of the Construction of a !all in the Occupied Palestinian Territory,
!.C.J. Rcports acc at para. .
Id. at para. a.
Case Concerning rmed cti.ities on the Territory of the Congo (cmocratic Rcpublic
ol thc Congo v. Uganda), !ntcrnational Court ol Justicc, . cccmbcr acc, (Scparatc
opinion ol Judgc 8runo Simma at para. ..) (lootnotcs omittcd).
95 4 Claims to Pre-empti.e Uses of Force
V
Tc Sccurity Council has bccn skcptical ol cxplicit unilatcral claims ol prccmp
tivc scll dclcnsc. !n .., thc Sccurity Council condcmncd !sracls prccmptivc
strikc against !raq,
noting
Deeply concerned about thc dangcr to intcrnational pcacc and sccurity crcatcd
by thc prcmcditatcd !sracli air attack on !raqi nuclcar installations on , Junc
.., which could at any timc cxplodc thc situation in thc arca, with gravc con
scqucnccs lor thc vital intcrcsts ol all Statcs,
Considering that, undcr thc tcrms ol Articlc a, paragraph , ol thc Chartcr ol
thc Unitcd Nations: All Mcmbcrs shall rclrain in thcir intcrnational rclations
lrom thc thrcat or usc ol lorcc against thc tcrritorial intcgrity or political indc
pcndcncc ol any Statc, or in any othcr manncr inconsistcnt with thc purposcs
ol thc Unitcd Nations,
.. Strongly condemns thc military attack by !sracl in clcar violation ol thc
Chartcr ol thc Unitcd Nations and thc norms ol intcrnational conduct,
a. Calls upon !sracl to rclrain in thc luturc lrom any such acts or thrcats
thcrcol,
6
!n tcrms ol cxplicit collcctivc claims to prccmptivc sclldclcnsc, thc Sccurity
Council has rcmaincd rclativcly silcnt. Tc Sccurity Council has cxprcsscd nci
thcr support lor nor disapproval ol U.S. prccmptivc strikcs in !raq, a posturc
attributablc to thc lact that, as a pcrmancnt mcmbcr, thc U.S. could vcto any such
rcsolution, rathcr than to a vicw sharcd by thc othcr mcmbcrs ol thc Council on
this qucstion ol intcrnational law
VI
!n thc pcriod sincc thc Unitcd Statcs lodgcd its broadcr claim, a numbcr ol gov
crnmcnts havc opcnly dcbatcd thc qucstion ol a possiblc right ol prccmptivc
sclldclcnsc. Classicd mcmoranda and contingcncy plans may bc bascd on
othcr lcgal thcorics, but it is signicant that public documcnts arc almost always
cxprcsscd as proposing actions that arc intcrnationally lawlul. Tc lollowing dis
cussion cxamincs two groups ol statcs: thosc participating in thc U.S. coalition
cort in !raq, part ol whosc rationalc was prccmptivc sclldclcnsc, and thosc
statcs which havc rcluscd to takc part and havc bccn critical ol Unitcd Statcs
action thcrc. Vhilc any grouping is somcwhat arbitrary, an initial cxamination
rcvcals rathcr surprisingly that a statcs position on thc lawlulncss ol thc military
strikcs in !raq is not ncccssarily dctcrminativc ol its adoption ol a policy ol prc
cmption.
U.S. partners in Iraq
Unitcd Kingdom
Tc Unitcd Kingdom has not cxplicitly adoptcd thc prccmptivc sclldclcnsc
doctrinc dcscribcd in thc Unitcd Statcs National Sccurity Stratcgy acca. 8ut
various rcmarks by thc Primc Ministcr, Forcign Ministcr, clcnsc Ministcr and
Ministcr ol \ctcran Aairs comc closc to it. !n March acc, Primc Ministcr
8lair statcd:
Containmcnt will not work in thc lacc ol thc global thrcat that conlronts us.
Tc tcrrorists havc no intcntion ol bcing containcd. Tc statcs that prolilcr
atc or acquirc VM illcgally arc doing so prcciscly to avoid containmcnt.
S.C. Rcs. .6, U.N. oc. No: S/acc./.6 (Scpt. .a, acc.).
97 4 Claims to Pre-empti.e Uses of Force
mphatically ! am not saying that cvcry situation lcads to military action. 8ut
wc surcly havc a duty and a right to prcvcnt thc thrcat matcrialising.
o
!n rcaction, a Sclcct Committcc ol thc Housc ol Commons concludcd, Tc
Primc Ministcrs words appcar to support thc doctrinc ol anticipatory scll
dclcnsc.
+
Tis buttrcsscd an carlicr Housc ol Commons nding in acca, whcrc
Tc Forcign Sccrctary appcars to acccpt thc principlc ol prccmption, as sct
out in thc National Sccurity Stratcgy ol thc Unitcd Statcs. Hc told us on a
Scptcmbcr that !l any nation lccls that it is thrcatcncd in a dircct way thcn
undcr Articlc . it has an inhcrcnt right to takc action prccmptivcly. Tc
Primc Ministcr has also asscrtcd that Tc onc thing wc havc lcarncd post
.. Scptcmbcr is that to takc action in rcspcct ol a thrcat that is coming may
bc morc scnsiblc than to wait lor thc thrcat to matcrialisc and thcn to takc
action.
:
Tc primary impctus lor thc U.K.s implicit though inconsistcnt support lor thc
U.S. prccmption stratcgy is thc nccd lor an ccctivc and timcly rcsponsc to thc
ncw typc ol thrcats poscd by tcrrorism. Altcr thc attacks on Scptcmbcr .., acc.,
thc 8ritish govcrnmcnt commissioncd a ncw chaptcr to its Stratcgic clcnsc
Rcvicw, which had bccn compilcd in ..
xpcricncc shows that it is bcttcr whcrc possiblc, to cngagc an cncmy at longcr
rangc, bclorc thcy |sic| gct thc opportunity to mount an assault on thc UK. Not
only is this morc ccctivc than waiting to bc attackcd at a point and timing
ol an cncmys choosing, but it can havc a dctcrrcnt ccct. Vc must thcrclorc
continuc to bc rcady and willing to dcploy signicant lorccs ovcrscas and, whcn
lcgally justicd, to act against tcrrorists and thosc who harbour thcm.
c Primc Ministcr Tony 8lair, Primc Ministcr warns ol continuing global tcrror thrcat
(Scdgccld Constitucncy Spccch) March , acc, at: http://www.pm.gov.uk/output/
Pagc6..asp.
. Housc ol Commons, Sclcct Committcc on Forcign Aairs Scvcnth Rcport,
!ntcrnational Law and thc Var Against Tcrrorism (para ac) July a., acc, at:
http://www.publications.parliamcnt.uk/pa/cmaccc/cmsclcct/cmla/./.ac.
htm.
a Housc ol Commons, Sclcct Committcc on Forcign Aairs Sccond Rcport,
isarming !raq (para .) cccmbcr .,, acca, at: http://www.publications.par
liamcnt.uk/pa/cmaccac/cmsclcct/cmla/.6/.6c.htm=na.c (intcrnal lootnotcs
omittcd).
Ministry ol clcncc, Tc Stratcgic clcnsc Rcvicw: A Ncw Chaptcr (para ), July
acca, at: http://www.mod.uk/issucs/sdr/ncwchaptcr.htm A progrcss rcport on thc
Ncw Chaptcr statcd:
all our analysis shows that tackling thc problcm at distancc whcthcr through
prcvcntion or, whcrc justicd, prccmption, or through usc ol othcr cccts in
98 !. Michael Feisman and ndrea rmstrong
And, in any casc, all our analysis shows that tackling thc problcm whcrc pos
siblc at a distancc is prclcrablc to waiting lor problcms to comc to us: in that
scnsc opcrations ovcrscas arc oltcn thc bcst lorm ol homc dclcncc.
At thc samc timc, thc Unitcd Kingdom has approachcd thc U.S. position with cau
tion. Tc clcnsc Ministry has notcd thc importancc ol a cascbycasc approach
lor prccmptivc action.
|Administration Rcsponsc| ur initial thinking on thcsc issucs was sct out in
thc discussion papcr publishcd in Fcbruary. Vc will sct out morc dcvclopcd
thinking whcn wc publish somc conclusions. 8ut thc UN, NAT, thc U
and othcr organisations havc all playcd kcy rolcs in rcccnt months, and wc scc
thcm all playing kcy rolcs in luturc. Vc continuc to rcgard it as vital lor thc
US and its uropcan Allics to bc ablc to opcratc togcthcr (as many Allics arc
doing now in Alghanistan), and lor thc uropcans to makc improvcmcnts in
thcir capabilitics to lacilitatc that. Vc lully rccognisc that, in thc luturc as in
thc past, ccctivc coalition opcrations will normally bc thc kcy to succcss, and
that wc thcrclorc nccdcd a sharcd approach, sharcd doctrinc and intcropcrablc
capabilitics. Vc havc bccn continuing to work to thosc cnds.
Vc havc alrcady indicatcd that wc nccd to put morc cmphasis on bcing
proactivc and, whcrc possiblc and justiablc, prccmpting problcms, rathcr
than simply waiting lor problcms to comc to us. !n that, wc should usc thc
wholc rangc ol rcsponscs that thc Govcrnmcnt has at its disposal not just
military mcans.
See also Housc ol Commons, Sclcct Committcc on Forcign Aairs Scvcnth Rcport,
!ntcrnational Law and thc Var Against Tcrrorism (para. c) July a., acc, at:
http://www.publications.parliamcnt.uk/pa/cmaccc/cmsclcct/cmla/./.ac.
htm.
Tc Housc ol Commons also concludcd that:
Tc Forcign Sccrctary undcrlincd thc Govcrnmcnts advocacy ol rclorm ol
thc systcm ol intcrnational law whcn hc gavc thc Committcc cvidcncc on c
March acc. Vc prcscntcd a thcorctical situation to thc Ministcr, asking how
thc Govcrnmcnt might rcspond to cvidcncc ol an immincnt thrcat by tcrrorists
with acccss to VM, but whcn thcrc was littlc ccrtainty as to thc targct. Tc
Ministcr said:
!l it was that immincnt and country X pcrccivcd that thc thrcat could apply
to thcm, thcn ! think that thcy would bc justicd in acting in sclldclcncc
and thcrc is nothing in Articlc . which could prcvcnt that. !l it was a widcr,
morc gcncral thrcat, thcn although thcrc might not bc thc timc nor might
it bc dcsirablc to havc a public dcbatc, thcrc would almost ccrtainly bc timc
sccrctly to consult P partncrs who arc crucial to any dccision and il thcy wcrc
on board, in practicc thc Sccurity Council would bc.
, C.J. ick, Conict Studics Rcscarch Ccntrc, clcncc Acadcmy, Tc Futurc ol
Conict Looking ut to acac (= MJc) April acc p. a and ,, at: http://www.
da.mod.uk/CSRC/documcnts/Spccial/McCJ.pdl/lc_vicw. Tcir rcport notcs,
ctcrring intrastatc conict, including by prccmptivc dcploymcnts, is
thcorctically attractivc and may bccomc lashionablc but will bc lraught with
problcms ... . cspitc thc lcssons ol thc wars ol Yugoslav succcssion and,
arguably, thc longtcrm thrcat poscd by Saddams missilcs and VM, it will
bc vcry dicult to convincc many clcctoratcs that such action will bc chcapcr in
thc long run. Prccmptivc actions may also bc morally and lcgally dubious and
thcrclorc politically divisivc, both domcstically and intcrnationally (including
bctwccn allics). Prcsidcnt 8ushs stridcnt dcmands lor war to disarm !raq and
morc controvcrsially, to ccct rcgimc changc is a casc in point. (p. a)
100 !. Michael Feisman and ndrea rmstrong
Tc Ncw Chaptcr spccically notcs that prccmption is allowcd only whcn
lcgally justicd. Tc Ncw Chaptcr spccically statcs:
Vc havc madc clcar that our rcsponscs will bc proportionatc and in accord
ancc with our intcrnational lcgal obligations. 8ut wc will not lct thc lcss scru
pulous think wc do not mcan busincss, or simplily an aggrcssors calculations
by announcing how wc would rcspond in particular circumstanccs. Tc only
ccrtainty wc should ocr is that wc shall rcspond appropriatcly il wc nccd
to, using any ol thc widc rangc ol options opcn to us. !t should bc clcar that
lcgally thc right to scll dclcncc includcs thc possibility ol action in thc lacc ol
an immincnt attack.
8
8ut that, ol coursc, assumcs that prccmptivc military action may somctimcs
bc lawlul. Notc also that thc tcrm immincnt appcars to havc acquircd a ccr
tain longitudinal cxtcnsion. !ndccd, thc U.K. govcrnmcnt docs not appcar to
bclicvc that intcrnational law imposcs scvcrc limits. nc cxchangc in thc Housc
ol Commons suggcsts that thc U.K. military takcs a rathcr broad vicw ol intcr
national law in this rcgard.
!sracl has
also practiccd targctcd assassinations which might bc charactcrizcd as a lorm ol
prccmptivc sclldclcnsc.
Tc clcnsc
Ministcr has cxplicitly announccd thc right ol prccmptivc strikcs against tcrror
ists anywhcrc in thc world.
8
At thc samc timc, Russian ocials havc notcd that
thcir prccmptivc strikcs will not includc thc usc ol nuclcar wcapons.
VII
Tc initial asscrtions ol a right ol prccmptivc sclldclcnsc madc by thc 8ush
Administration in acca wcrc cast morc broadly than thosc ol his prcdcccssors.
vcn though thc broadcr claim was provokcd and was conditioncd by thc attack
ol Scptcmbcr .., acc., its opcntcxturcd lormulation could bc intcrprctcd to
includc surprisc attacks on othcr statcs. Tis is, as wc havc sccn, how somc mcm
bcrs ol thc 8ritish govcrnmcnt, which was hardly unlricndly to thc U.S. and its
military program, rcad it. Tc 8ritish rcading may not havc bccn o thc mark.
Signicant statcmcnts ol national military doctrinc arc not madc hastily. !t is
c Prcsidcnt Jacqucs Chirac, Spccch during visit to Stratcgic Air and Maritimc Forccs
at Landivisau, January a, acc6, at: http://www.clyscc.lr/clyscc/clyscc.lr/anglais/
spccchcs_and_documcnts/acc6/spccch_by_jacqucs_chirac_prcsidcnt_ol_thc_
lrcnch_rcpublic_during_his_visit_to_thc_statcgic_lorccs.,.html.
. 8ritish 8roadcasting Corporation !ntcrnational Rcports, Quotes from China, Tai.an
Press, Fcb. , acc6, (citing China Defense Daily) (Lcxis Acadcmic).
a Pcoplcs Rcpublic ol China, rdcr ol thc Prcsidcnt No., Mar. ., acc (promul
gating thc law), at: http://taiwansccurity.org/Ncws/acc/C.cc.htm (nglish
translation).
8ritish 8roadcasting Corporation, Tai.an cannot rule out pre-empti.e attacks on
mainland, ct. 6, acc (LcxisAcadcmic).
109 4 Claims to Pre-empti.e Uses of Force
possiblc that thc National Sccurity Stratcgy ol acca was alrcady in thc works and
was dcsigncd to prcparc thc world lor dircct action against !raq, onc ol whosc
justications was a prccmptivc sclldclcnsc.
Signicantly, not all statcs claims ol rights ol prccmptivc sclldclcnsc which
wc havc bccn ablc to nd appcar to contcmplatc a right to attack anothcr statc
prccmptivcly. Rathcr, thc morc common lormulation appcars to bc a right to usc
lorcc in a prccmptivc lashion against nonstatc cntitics cmploying what havc
comc to bc callcd tcrrorist mcthods. nc variation on this lcitmotil in statc
mcnts by thc U.S., Francc, and Australia, appcars to bc thc right to strikc prc
cmptivcly against statcs only whcn thcrc is a risk ol tcrrorists acquiring wcapons
ol mass dcstruction lrom a roguc statc. (Tat conclusion is pcrlorcc spcculativc,
lor wc do not havc acccss to sccrct contingcncy plans which may bc bascd on
much broadcr conccptions ol prccmptivc sclldclcnsc.) Hcncc, thc policy ol
prccmptivc strikcs ol many ol thc statcs rcvicwcd hcrc appcars morc narrowly
conncd to cascs ol .) nonstatc cntitics, such as tcrrorists who may or may not
posscss wcapons ol mass dcstruction, and a) statcs whcrc thcrc is a risk ol tcrror
ists acquiring wcapons ol mass dcstruction.
!t is also notcworthy that many govcrnmcnts havc cxplicitly rcluscd to rcc
ognizc thc U.S. claim as indicativc ol or consistcnt with intcrnational law. Tcn
Chanccllor Gcrhard Schrodcr cxplicitly statcd his disagrccmcnt with thc U.S.
claims to thc right to prccmption.
is hardly
uniquc to thc intcrnational lcgal systcm. 8ut thc unccrtainty ol prcciscly what
thc law prohibits is always an invitation to advcnturism, advcnturism with highly
dcstructivc and nondiscriminating wcapons is a particularly lrightlul prospcct.
!n any cvcnt, il onc wcrc to hazard a prcdiction in this vcry uid situation, it
would bc that a conccption ol lawlul sclldclcnsc incorporating only thc Caroline
doctrinc will continuc lor most mattcrs, having bccn rclaxcd only lor thc so
callcd war against tcrrorism.
8ut just as this broad, but ncccssarily incomplctc, survcy may havc providcd
somc comlort, incrcasing lcgal mimctic cccts may accclcratc thc drilt away
lrom thc binary lormulation ol Articlc . towards a morc vaguc, and possibly
lcss stablc, dcnition on thc right to usc lorcc. !mitation is said to bc thc highcst
complimcnt. And in this instancc, thc Unitcd Statcs has dcvclopcd somc unlikcly
and lrom its pcrspcctivc, undcsircd admircrs. Two ol thc thrcc rcmaining
axis ol cvil mcmbcrs, North Korca and !ran, quickly adoptcd thc U.S. claim
in potcntial dclcnsc ol thcir own lragilc intcrnational positions.
8
Russia spc
cically notcd that it was not thc rst govcrnmcnt to announcc a policy ol prc
cmptivc sclldclcnsc. According to clcnsc Ministcr !vanov, |w|hcthcr wc likc
it or not, thc prccmptivc usc ol lorcc in thc modcrn world is a rcality. Vhilc
, V.M. Rcisman, Foibvb Livs (.,).
Prcsidcnt Gcorgc 8ush, Statc ol thc Union Addrcss, January a, acca (noting !raq,
North Korca and !ran constitutcd an axis ol cvil), at: http://www.whitchousc.gov/
ncws/rclcascs/acca/c./accac.a...html.
111 4 Claims to Pre-empti.e Uses of Force
this principlc cxists, wc arc not going to rclinquish it voluntarily.
Tc Housc
ol Commons notcd this vcry dangcr in rcqucsting thc 8lair govcrnmcnt to assist
in dcvcloping a clcar intcrnational conscnsus on thc right to usc lorcc in scll
dclcnsc. thcrwisc, thcrc is a scrious risk that this will bc takcn as lcgitimising
thc aggrcssivc usc ol lorcc by othcr, lcss lawabiding statcs.
+oo
Primc Ministcr
Howard has rcjcctcd thcsc claims, arguing that thcrc has bccn too grcat a tcn
dcncy to imputc a gcncraliscd intcntion on thc part ol thc Unticd Statcs to adopt
what you call a prccmptivc strikc policy.
+o+
8ut in thc grip ol such mimctic cccts, thc actual policy ol thc Unitcd Statcs
bccomcs lcss important than its imputcd policy. !n its cxaminations ol cvolving
custom, intcrnational law will takc account ol thc policics and practiccs ol all
nations. Although U.S. policy may now bc morc limitcd than initially claimcd,
othcr statcs may not havc rcccivcd that mcssagc and may rcactivcly adopt cxag
gcratcd prccmption policics with rcspcct to thcir own latcnt advcrsarics, thus
skcwing asscssmcnts ol intcrnational conscnsus and practicc back toward a posi
tion which may ironically no longcr bc claimcd by major powcrs. Hcncc, what
appcars to bc a growing adoption ol claims to prccmptivc scll dclcnsc in limitcd
circumstanccs may mistakc political posturing lor intcrnational conscnsus with
gravc conscqucnccs lor both thc cxpcctation and cvcntuation ol violcncc.
Tcrc arc othcr covcrt costs to broad claims ol prccmptivc sclldclcnsc.
Although thc U.S. doctrinc not unrcasonably aims to cnhancc its own sccurity,
widcr adoption ol a lcgal policy ol prccmptivc sclldclcnsc may actually undcr
minc it. Statcs may, rightly or wrongly, appropriatc thc languagc ol prccmption
to t thcir individual sccurity conccrns csscntially lrcc ridcrs in thc intcrna
tional lcgal systcm. For cxamplc, North Korca has justicd its lurthcr dcvclop
mcnt ol nuclcar wcapons as csscntial to North Korcan sclldclcnsc against U.S.
claims ol a right to prccmptivc sclldclcnsc.
+o:
Such invocations ol U.S. policics
to justily domcstic mcasurcs is apparcnt in othcr arcas impactcd by thc war on
tcrror. Tc UN Spccial Rapportcur on !ndcpcndcncc ol thc Judiciary notcs thc
downward spiral as statcs rclashion U.S. policy lor thcir particular local circum
stanccs.
8ritish 8roadcasting Corporation !ntcrnational Monitoring, Fussia Not Planning to
Gi.e Up Fight to Pre-empti.e Strikes, ct. ac, acc (Lcxis).
.cc Housc ol Commons, Sclcct Committcc on Forcign Aairs Sccond Rcport,
Conclusions and Rccommcndations cccmbcr .,, acca, para .(r), at: http://
www.publications.parliamcnt.uk/pa/cmaccac/cmsclcct/cmla/.6/.6c.htm.
.c. John Howard, Primc Ministcr, Australia, !ntcrvicw with Lcon clancy, Radio aSM
(ct. .c, acc) See also, !heres the Fed Line?, Nvwswvvx, Fcbruary .,, acc (Lcxis).
.ca Forcign Ministry ol North Korca, Mcmorandum ol PRK Forcign Ministry,
March , acc (acccsscd via LcxisAcadmic)(stating Tcrclorc, it is quitc natural
that thc PRK has manulacturcd nukcs lor sclldclcncc and continucs to do so to
copc with thc policy ol thc 8ush administration aimcd at mounting a prccmptivc
nuclcar attack on it.).
112 !. Michael Feisman and ndrea rmstrong
8ascd on thc doctrinc ol countcrtcrrorism and somctimcs cvcn taking inspi
ration lrom thc status ol cncmy combatant, thc govcrnmcnts ol many Statcs
havc adoptcd or strcngthcncd lcgal instrumcnts giving thcm powcrs ol dctcn
tion bcyond all judicial control which, dcpcnding on thc contcxt, thcy usc to
dctain tcrrorist suspccts, political opponcnts, rclugccs or asylum scckcrs.
+o
Tcsc mimctic and lrcc riding cccts rcmaincd somcwhat mutcd during thc ini
tial itcration ol claims to a right ol prccmptivc sclldclcnsc undcr thc Rcagan
Administration. Pcrhaps this was duc to thc controls which two supcrpowcrs
in a bipolar systcm cxcrciscd ovcr thc various statcs within thcir zoncs ol inu
cncc. Tc point is not to bc nostalgic about thc Cold Var but simply to notc that
bccausc thc controls cxcrciscd by thc lormal institutions ol intcrnational law arc
not yct comparably ccctivc, thcsc implications should bc bornc in mind whcn
contcmplating thc cxpansion ol lawlul unilatcral military action.
Tc dangcrs ol lcgal mimcsis and lrccriding arc lurthcr amplicd givcn thc
diculty ol thc intcrnational community in lormulating a conscnsus on dcning
tcrrorism. cnitions cstablish a locus. cnitions ol tcrrorism arc particu
larly outcomc scnsitivc prcciscly bccausc thcy tcnd to dclimit thc rangc ol lawlul
rcsponscs to thcm.
+o
As a rcsult, intcrnational politics, in proving itscll unablc to
adopt a comprchcnsivc dcnition, may bc provoking cvcn broadcr claims to prc
cmptivc scll dclcnsc.
.c Rcport ol thc Spccial Rapportcur on thc !ndcpcndcncc ol Judgcs and Lawycrs,
Lcandro cspouy, U.N. SCR, Commn on Human Rights, 6.st Scss., para. 6,
oc. No. /CN./ acc/6c (acc).
.c For lurthcr discussion ol tcrrorism and intcrnational law, scc Rcisman, Legal Fesponses
to International Terrorism, aa Hous. J. !x:i L (.).
Chapter 5
Tc Tcmporal imcnsion ol Scllclcnsc: Anticipation,
Prccmption, Prcvcntion and !mmcdiacy
Terry D. Gill
I Introduction
Tc adoption by thc Unitcd Statcs ol a doctrinc ol prccmptivc, or cvcn prcvcn
tivc, sclldclcnsc as part ol its national sccurity stratcgy, and its partial rcliancc
upon that doctrinc to justily thc rcccnt war against !raq, has causcd a grcat dcal
ol controvcrsy at both thc diplomatic lcvcl and among intcrnational lcgal scholars
rclating to thc pcrmissibility ol anticipatory or prcvcntivc sclldclcnsc in advancc
ol an armcd attack.
+
Vhilc much lcgal opinion sccms to bc in broad agrccmcnt
that sclldclcnsc would bc pcrmissiblc in rcsponsc to an immcdiatc and mani
lcst thrcat ol an attack,
:
opinion divcrgcs sharply on whcthcr sclldclcnsc would
bc pcrmissiblc in rcsponsc to potcntial thrcats ol an attack and, morc cspccially,
whcthcr thc notion ol an immcdiatc thrcat nccds to bc rccxamincd in thc light
ol changcd circumstanccs, such as tcrrorist thrcats and thc possiblc usc ol wcap
. National Sccurity Stratcgy ol thc Unitcd Statcs at www.whitchousc.gov/nsc/nss.
html. A numbcr ol justications wcrc advanccd by thc US Govcrnmcnt lor thc usc
ol lorcc against !raq. Among thcsc wcrc rclcrcnccs to thc ncccssity ol prcvcnting
!raq lrom cngaging in an attack with wcapons ol mass dcstruction upon thc Unitcd
Statcs, US intcrcsts in thc Middlc ast, or ncighboring Statcs, as wcll as thc prolil
cration by !raq ol such wcapons to tcrrorist movcmcnts. Scc Prccmption, !raq and
!ntcrnational Law Commcnts by V.H. Talt !\ and T.F. 8uchwald in thc gora scc
tion ol , JIL (acc) 6,.
a A signicant numbcr ol scholars opposc any notion ol anticipatory or prccmptivc
sclldclcnsc prior to thc actual launching ol an armcd attack. Tcsc includc, inter
alia, !. 8rownlic, International La. and the Use of Force Bet.een States (.6), a,
,, 8othc, Tcrrorism and thc Lcgality ol Prccmptivc Forcc in . EJIL (acc)
no. , aa, and Randclzholcr, Articlc . in 8. Simma (cd.) Te Charter of the United
Nations: Commentary (a
nd
cd. acca), c. Anothcr group ol scholars takcs thc
position that anticipatory sclldclcnsc is pcrmissiblc within thc strict limits ol thc
Caroline critcria, c.g. C. Grccnwood, !ntcrnational Law and thc Prccmptivc Usc ol
Forcc in San Diego International La. Journal , (acc), . 8owctt, Self-Defense in
International La. (.) at .6, T. Franck, Fecourse to Force (acca), , et seq., and
Valdock, Tc Rcgulation ol thc Usc ol Forcc by !ndividual Statcs in !ntcrnational
Law in . FCDI (.a), . et seq. at 6a6.
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. zz-z.
114 Terry D. Gill
ons ol mass dcstruction by tcrrorist organizations and socallcd roguc rcgimcs.
thcr points ol controvcrsy includc such qucstions as what constitutcs an immc
diatc thrcat ol an armcd attack, what is thc propcr intcrprctation ol thc rclation
ship bctwccn Chartcr law and customary law rclating to sclldclcnsc, and what
is thc propcr and dcsirablc rclationship bctwccn thc right ol sclldclcnsc and thc
rcst ol thc law govcrning thc usc ol lorcc:
Tis articlc will addrcss thcsc qucstions, hopclully contributing to this top
ical dcbatc through a combination ol lcgal rcasoning and an cxamination ol
Statc practicc. Tc starting point is that sclldclcnsc is a right, groundcd in both
Chartcr and in customary law, which allows somc dcgrcc ol anticipatory action to
countcr a clcar and manilcst thrcat ol attack in thc immcdiatc, or at lcast proxi
matc, luturc, within thc conncs ol thc wcllknown and widcly acccptcd .,
Caroline incidcnt critcria, rclating to ncccssity, immcdiacy and proportionality.
Tc right ol sclldclcnsc is prcdicatcd upon thc notion that cvcry Statc has
thc inhcrcnt right to dclcnd itscll. Articlc . ol thc Chartcr was somcthing ol an
altcrthought, and did not gurc in thc original dralts ol thc Chartcr. !t was only
includcd rclativcly latc in thc tra.eaux lcading to thc Chartcrs adoption at thc
bchcst ol Latin Amcrican Statcs sccking a guarantcc ol thc lcgality ol rcgional
collcctivc sclldclcnsc arrangcmcnts, such as thc Act ol Chapaltupcc.
8
Tis col
lcctivc variant on thc right ol sclldclcnsc allows lor Statcs to assist cach othcr in
rcsponsc to an armcd attack on thc basis ol cithcr a prccxisting trcaty providing
lor mutual assistancc, or an ad-hoc rcqucst.
Vhat docs bccomc clcar, howcvcr, is that an armcd attack, howcvcr dcncd,
is a strict rcquircmcnt lor thc cxcrcisc ol sclldclcnsc. !t is submittcd that thc
Courts approach in Nicaragua and Oil Platforms is ovcrly abstract, unrcalistic and
somcwhat imbalanccd, in that it rclics too hcavily on thcorctical dcnitions ol an
armcd attack, rathcr than taking sucicnt account ol thc rclcvant circumstanccs.
Tc Court is lurthcr pronc to takc dcnials ol involvcmcnt in armcd action by thc
(allcgcd) attackcr too much at lacc valuc, whilc cxpccting thc Statc which invokcs
sclldclcnsc to providc conclusivc cvidcncc not only ol its own conduct, lack ol
altcrnativcs and motivcs, but also thosc ol thc attacking party.
!n addition to thc rcquircmcnt ol an armcd attack, or a (probablc) impcnd
ing attack, in cascs ol anticipatory sclldclcnsc, thcrc is littlc controvcrsy rcgard
ing thc lurthcr rcquircmcnts ol ncccssity and proportionality. Tcsc havc long
bccn acccptcd in customary law and arc cchocd in both ol thc abovcmcntioncd
a Scc e.g. a !LM (acc) . lor thc !CJ Judgmcnt in thc Oil Platforms casc. For thc
Courts pronounccmcnts on thc burdcn ol prool in rclation to thc cxistcncc ol an
armcd attack on thc US rcaggcd tankcr Sea Isle City by an antiship missilc allcg
cdly rcd lrom thc !ranian hcld Fao Pcninsula and a minc attack on thc US war
ship USS Samuel B. Foberts, scc paras. 6. at ., and paras. 6,. at .6c. Tc
Court indicatcd that thc cvidcncc was rcspcctivcly suggcstivc and highly suggcs
tivc in rclation to thosc two incidcnts, but insucicnt to cstablish !ranian involvc
mcnt. Tc Court did not indicatc what thc rcquisitc burdcn ol prool is to cstablish
involvcmcnt in an armcd attack. Tis and othcr aspccts ol thc Courts judgmcnt
wcrc vigorously criticiscd by a numbcr ol thc judgcs in thcir individual opinions. Scc,
e.g., Judgc Higgins, id. .6, Kooymans, id. .6,, 8ucrgcnthal, id. ...6, and
wada, id. .aa.
Tc Courts dccision was takcn by .a votcs on thc qucstion ol whcthcr thc US
action against !ranian oil platlorms was justicd undcr thc law rclating to thc usc ol
lorcc and on thc nding that thc US had not brcachcd its obligations rclating to thc
lrccdom ol commcrcc undcr a . bilatcral FCN Trcaty. 8y joining thcsc two issucs
into onc paragraph ol thc dispositief, thc optical illusion was crcatcd ol ncar unanim
ity. Tis was not thc casc. n thc othcr hand, thcrc can bc no doubt that a signicant
majority within thc Court lound thc US rcliancc on sclldclcnsc unwarrantcd.
124 Terry D. Gill
Court dccisions, although onc nds littlc indication ol what thcy mcan in prac
ticc in cithcr dccision.
Tc cxistcncc ol an armcd attack can consist, in addition to thc actual usc ol
lorcc, ol thc illcgal ongoing occupation ol tcrritory, military prcparations lor con
tinuing opcrations and so lorth. Fcasiblc altcrnativcs can includc, inter alia, thc
acccptancc ol a ccascrc, thc ncgotiatcd withdrawal ol lorccs, thc discontinu
ancc ol hostilc activity, thc adoption and implcmcntation ol ccctivc collcctivc
mcasurcs by thc Sccurity Council or, in somc cascs, thc possibility ol lorcstall
ing an incipicnt or impcnding attack by thc usc ol altcrnativc mcans, such as law
cnlorccmcnt.
Proportionality in conncction with sclldclcnsc rclatcs both to thc ovcrall
scalc and ccct ol thc attack, and to what is rcquircd undcr thc circumstanccs to
rcpcl it and put an cnd to thc thrcat ol lurthcr attacks. !l an attack is simply an
isolatcd incidcnt, rcstrictcd in scalc, localc and timc, sclldclcnsc will corrcspond
ingly bc limitcd to what is ncccssary to ward o thc attack. !l, howcvcr, an armcd
attack consists ol a scrics ol rclatcd incidcnts ovcr a pcriod ol timc, proportional
ity would allow lor a largcr scalc rcsponsc aimcd at putting an cnd to what is in
ccct a phascd attack. !n thc casc ol a largc scalc attack dcsigncd to signicantly
disrupt thc targct Statc, or takc ovcr (part ol ) its tcrritory, proportionality would
allow waging a lull scalc war in sclldclcnsc to rcducc or climinatc thc attackcrs
capacity to conduct military opcrations, or othcrwisc continuc thc attack. Tis
could ncccssitatc, in somc cascs, thc total dclcat ol an attacking Statc and thc
rcplaccmcnt ol its govcrnmcnt with onc which is rcady to mcct its intcrnational
obligations.
Tc csscntial lcaturc ol sclldclcnsc is its purposc ol cnding thc illcgal situ
ation poscd by thc armcd attack. A Statc may usc thc ncccssary countcrlorcc
to achicvc that cnd, but no morc than ncccssary undcr thc circumstanccs. Tis
is what dcncs it and distinguishcs it lrom othcr lorms ol thc usc ol lorcc, both
For thc Courts rclcrcnccs to ncccssity and proportionality in thc Nicaragua dccision,
scc op. cit. supra n. a, para. . at .c. For thc Courts rclcrcnccs to thcsc critcria in
rclation to thc Oil Platforms dccision, scc supra n. a, .6a.
Ncccssity and proportionality as critcria lor thc lcgal cxcrcisc ol thc right ol scll
dclcnsc can tracc thcir roots back to at lcast thc Caroline incidcnt (scc scc. C bclow).
For rclcrcnccs to and somc dcscription ol ncccssity in thc litcraturc scc, inter alia,
instcin, supra n. , aca, and Gray, supra n. .c, .c.
125 3 Te Temporal Dimension of Self-Defense
lcgal and illcgal. Tis has always bccn its csscntial charactcristic undcr customary
law and it rcmains so today.
C Te Carolinc Case as the Starting Point and Di.iding Line in the
Discussion of the Temporal Dimension of Self-Defense
Vhilc thcrc arc somc intcrnational lawycrs who, rclying on a litcral tcxtual intcr
prctation ol Articlc ., rcjcct thc possibility ol any lorm ol anticipatory scll
dclcnsc altogcthcr, most authoritics and Statcs arc prcparcd to conccdc thc
possibility ol somc dcgrcc ol anticipatory action within what arc lrcqucntly
rclcrrcd to as thc strict critcria ol thc Caroline casc.
6
Tc Caroline incidcnt (a
morc accuratc tcrm, sincc it ncvcr camc bclorc any court or tribunal) is gcncrally
rcgardcd as thc rclcrcncc point lor any discussion ol anticipatory sclldclcnsc, as
wcll as thc critcria govcrning thc usc ol lorcc in sclldclcnsc morc gcncrally. Tc
incidcnt has bccn commcntcd upon so lrcqucntly that it is hardly ncccssary to go
into grcat dctail about what occurrcd.
6 For cxamplc ol authors adhcring to thc strict or litcralist approach to Articlc . scc
nn. a and a, supra. xamplcs ol authors who acknowlcdgc or support a right ol antic
ipatory sclldclcnsc arc providcd in n. a supra. Anothcr authority within this group
includcs Judgc amc Rosalyn Higgins, Problems and Process: International La. and
Ho. !e Use It (.), aa.
, Scc, inter alia, M. 8ycrs, !ar La. (acc) , 8rownlic, op. cit. supra n. a, a,
instcin, supra n. , a, Franck, supra n. a, ,, etc. Tc most authoritativc articlc
on thc Caroline incidcnt rcmains without doubt that by Jcnnings, Tc Carolinc and
McLcod Cascs in a JIL (.) a et seq. Tc primary sourcc lor thc Caroline inci
dcnt is thc cxchangc ol corrcspondcncc bctwccn Vcbstcr and Fox in a BFSP, ..,
and Vcbstcr and Ashburton in c BFSP, . et seq.
Jcnnings, supra n. ,, a.
Scc n. a supra.
126 Terry D. Gill
Sincc most authoritics acccpt this as a givcn, and bccausc thcrc is no con
vincing cvidcncc that thc Caroline lramcwork ol rclcrcncc or critcria havc lallcn
into disusc or havc bccn rcplaccd by a ncw rulc ol customary or convcntional law
(sincc Articlc . ol thc Chartcr was ncvcr intcndcd to havc this ccct), wc can
salcly assumc that Caroline still lorms part ol thc customary law rclating to scll
dclcnsc.
Howcvcr, thc Caroline lramcwork and critcria havc bccn subjcctcd to rcin
tcrprctation and rcjcction on a numbcr ol othcr grounds, cspccially in light ol
rcccnt cvcnts. n thc onc hand, a group ol authors has consistcntly rcjcctcd any
lorm ol anticipatory sclldclcnsc, notwithstanding its rccognition as customary
law at thc timc thc Chartcr was bcing drawn up.
o
Anothcr group, whilc acknowl
cdging thc Caroline critcria, takcs thc position that it only would apply to incipi
cnt attacks or to thosc alrcady launchcd, but which havc yct to rcach thcir point
ol impact.
+
A third group acccpts, albcit to dicrcnt dcgrccs, thc proposition that
Caroline allows lor anticipatory action in thc lacc ol an immcdiatc, or at lcast a
rcasonably proximatc, thrcat ol attack which has not yct bccn launchcd, but is
vcry likcly to bc launchcd within thc ncar luturc.
:
Finally, a lourth group, that
has cmcrgcd sincc .. Scptcmbcr acc., argucs that thc conccpt ol immcdiacy has
to bc rcintcrprctcd in thc light ol ncw circumstanccs, such as thc thrcat poscd
by tcrrorists and roguc rcgimcs suspcctcd ol posscssing, or sccking, wcapons ol
mass dcstruction. Tis group would allow lor anticipatory action in rcsponsc to
thc hypothctical possibility that an attack may occur at somc indctcrminatc point
in thc luturc. !t is a position takcn in thc US Scptcmbcr acca National Sccurity
Stratcgy (NSS) and by thosc authors who havc comc out in support ol it.
Tc Caroline incidcnt was but part, albcit an important and at thc timc cmotivc onc,
ol a largcr sct ol issucs which complicatcd thc rclations bctwccn Grcat 8ritain and
thc Unitcd Statcs. Tcsc includc, inter alia, thc rcsolution ol a lronticr disputc dating
back to thc Amcrican Var ol !ndcpcndcncc involving thc bordcr bctwccn Amcricas
Ncw ngland Statcs and 8ritish North Amcrica. Ncithcr sidc was intcrcstcd in a
military conlrontation, although, il handlcd dicrcntly, thc Caroline incidcnt could
casily havc rcsultcd in war. Vcbstcr as Sccrctary ol Statc sought to rcsolvc thc inci
dcnt in such a way that Amcricas tcrritorial intcgrity and scnsitivitics would bc
rcspcctcd and 8ritish lrccdom ol action to intcrvcnc militarily into thc US tcrri
tory along thc long and lightly dclcndcd USCanadian bordcr would bc curtailcd
as lar as possiblc. As thc wcakcr party in thc controvcrsy, thcsc goals wcrc rccctcd
in thc vcry rcstrictivc dcnition ol sclldclcnsc uscd by Vcbstcr in his lcttcr ol a
April .. to thc 8ritish nvoy to thc Unitcd Statcs, Mr. Fox (rcpcatcd latcr in his
corrcspondcncc with Lord Ashburton). Tc rcply by Ashburton acknowlcdging thc
paramctcrs ol sclldclcnsc, whilc skilllully insisting that thc 8ritish action had mct
thc conditions sct by Vcbstcr, was intcndcd to lacilitatc an amicablc solution and
contributc to an ovcrall scttlcmcnt ol thc issucs bcsctting AngloAmcrican rclations.
Tcir mutual commitmcnt to rcstraint and thc achicvcmcnt ol a compromisc solu
tion rcsultcd in thc VcbstcrAshburton Trcaty ol .a, which ccctivcly rcsolvcd
thc outstanding controvcrsics accting thc rclations bctwccn thc two countrics. Tis
would not havc bccn possiblc without a laccsaving compromisc on thc Caroline and
McLcod issucs which satiscd thc intcrcsts ol both partics. !t should bc cmphasizcd
that whilc thc Caroline incidcnt took placc at a timc that Statcs wcrc still lcgally lrcc
to rcsort to war, thc Unitcd Statcs and Grcat 8ritain wcrc not at war whcn thc inci
dcnt took placc, nor did thcy want to go to war. Conscqucntly, Grcat 8ritain rcquircd
a lcgal justication lor taking armcd action on US tcrritory as a mcasurc short ol
war, which is thc rcason bchind thc diplomatic corrcspondcncc subscqucnt to thc
incidcnt, and, morc to thc point, why this incidcnt has had a continuing lcgal signi
cancc to thc prcscnt day in an arca whcn thc usc ol lorcc is subjcct to lcgal rcgulation.
For an authoritativc trcatmcnt ol thc diplomacy surrounding thc Caroline incidcnt
within thc contcxt ol thc ovcrall complcx disputc scc in addition to thc sourccs citcd
128 Terry D. Gill
An answcr to thcsc qucstions can only bc lound by looking morc closcly at
actual practicc rcgarding anticipatory sclldclcnsc, rathcr than simply trcating
Vcbstcrs phrascology in thc Caroline incidcnt as a sort ol mantra in support ol
any particular intcrprctation ol whcthcr anticipatory sclldclcnsc cxists or how
lar it may cxtcnd.
!n doing so, onc must bc awarc that cvcry approach has its own particular
limitations, and that intcrprctations ol historical cvcnts, both distant and rcccnt,
will incvitably vary. Ncvcrthclcss, somc attcmpt should bc madc il thc qucstion
ol what constitutcs customary law is to mcan morc than an cxcrcisc in purc scho
lasticism that trcats a particular choicc ol words as dctcrminativc.
Sincc wc arc dcaling with thc qucstion ol anticipatory sclldclcnsc in cus
tomary law, this will involvc looking morc closcly at a numbcr ol cxamplcs ol
Statc practicc in which sclldclcnsc was claimcd, or actually cxcrciscd, in advancc
ol an actual armcd attack. Tc cxamplcs choscn will includc somc which occurrcd
shortly bclorc thc Chartcr was adoptcd and somc which havc takcn placc sincc
thcn. Among thc cxamplcs arc incidcnts charactcrizcd by varying dcgrccs ol prc
cmption and in which varying dcgrccs ol rcliancc wcrc placcd upon anticipatory
sclldclcnsc as a justication. !n addition to thc cxamplcs ol actual Statc practicc,
somc discussion ol thc controvcrsy surrounding thc US NSS has bccn includcd.
Tis cxamination combincs both discussion ol how Statc practicc rclatcs to antic
ipatory sclldclcnsc and somc lcgal rcasoning ol a morc gcncral naturc. 8oth will
gurc promincntly in thc attcmpt to answcr thc qucstions rcgarding thc signi
cancc ol Caroline and its prcscnt day application to thc controvcrsy surrounding
anticipatory sclldclcnsc.
III Te Temporal imension of the Right of Self-efense I:
Te Status of Self-efense in Customary Iaw
Introductory Femarks and Methodology Employed
Vc will now turn to an cxamination ol anticipatory sclldclcnsc in Statc practicc,
covcring thc pcriod lrom .c through thc Tird Gull Var ol acc. Tis pcriod,
cxtcnding ovcr somc sixty ycars, covcrs thc immcdiatc prcChartcr pcriod, as wcll
as thc pcriod sincc thc Chartcr has comc into lorcc. xamplcs sclcctcd includc
a varicty ol situations in which anticipatory lorcc was uscd. !n cach, thc rcl
cvant lacts will bc sct out bricy and a numbcr ol qucstions will bc cxamincd:
thc dcgrcc ol immcdiacy involvcd in rclation to thc naturc and crcdibility ol
thc thrcatcncd or incipicnt attack, thc availability ol lcasiblc altcrnativcs to thc
taking ol somc lorm ol anticipatory action, thc probablc conscqucnccs ol lailing
to takc action, and thc conscqucnccs ol thc action takcn, including thc rcaction
in n. , supra, K.. Shcwmakcr (cd.), Daniel !ebster Te Completist Man (.c), ac
et seq.
129 3 Te Temporal Dimension of Self-Defense
ol thc intcrnational community. Vhcrc ncccssary, othcr rclcvant considcrations
will bc addrcsscd. Altcr this cxamination ol Statc practicc has bccn conductcd, a
numbcr ol gcncral considcrations and conclusions will bc discusscd.
B n Examination of the Exercise of nticipatory Self-Defense
in State Practice
i Tc Ncutralization ol thc Frcnch Flcct by thc Royal Navy in .c
!n thc spring ol .c, a disastcr bclcll thc Allics in Vcstcrn uropc. Tc Gcrman
!ehrmacht, cmploying a ncw conccpt ol mobilc warlarc known as Blit.krieg, suc
cccdcd in ovcrrunning thc Ncthcrlands. !t capturcd thc powcrlul 8clgian lron
ticr lortrcss ol bcn macl, quickly crushcd 8clgian rcsistancc, and bcgan to
surround thc main Allicd lorccs, which wcrc dcploycd in Northcrn Francc and
8clgium. Vithin a mattcr ol a lcw wccks, thc 8ritish xpcditionary Forcc was
cvacuatcd lrom unkirk, and thc Maginot Linc had bccn almost complctcly
cncirclcd. Paris lcll on . Junc and thc ncw Frcnch Govcrnmcnt undcr Marshal
Pctain cntcrcd into an armisticc on aa Junc .c.
Undcr thc tcrms ol thc armisticc, all ol Francc cxccpt thc Southcrn third,
minus thc Atlantic coast, camc undcr Gcrman occupation. Tat portion ol
thc country continucd to lunction as a scmiindcpcndcnt rump Statc known
as unoccupicd or \ichy Francc, so callcd bccausc its scat ol govcrnmcnt was
locatcd in thc slccpy spa town ol \ichy. !n addition to thc unoccupicd portion ol
Mctropolitan Francc, thc \ichy Govcrnmcnt maintaincd control ovcr thc cxtcn
sivc Frcnch ovcrscas cmpirc and thc powcrlul Frcnch cct, with its principal
bascs locatcd in thc Mcditcrrancan at Toulon and in Frcnch North Alrica. !n
addition, a numbcr ol Frcnch warships wcrc locatcd in Frcnch ovcrscas posscs
sions lurthcr acld and in 8ritish or 8ritish controllcd ports. Tc armisticc tcrms
lurthcr stipulatcd that part ol thc Frcnch cct would continuc to bc stationcd
in Frcnch ovcrscas posscssions to cnablc thc \ichy Govcrnmcnt to maintain
control ovcr thc Frcnch ovcrscas cmpirc. Tc bulk would rcturn to Unoccupicd
Francc and rctain its autonomy undcr Gcrman and !talian inspcction and ovcrall
supcrvision.
6
Two cxccllcnt accounts ol thc 8attlc ol Francc and thc Low Countrics can bc lound
in A. Hornc, To Lose a Battle: France z,,c (Pcnguin dition .,), a et seq., and
Vm. L. Shircr, Te Collapse of the Tird Fepublic (Hcincmann dition .,c), a et
seq.
6 Tc tcrms ol thc Armisticc Agrccmcnt arc dcalt with in Shircr, supra n. , 6a, and
V.S. Churchill, Te Second !orld !ar (abridgcd Pcnguin cdition .) .a. Tc rcl
cvant provision in rclation to thc Frcnch Flcct was Articlc , which rcad in part: Tc
Frcnch Flcct, cxccpting thc units ncccssary lor salcguarding Frcnch colonial intcr
csts shall bc collcctcd in ports to bc spccicd and thcrc dcmobilizcd and disarmcd
undcr Gcrman or !talian control (Churchill, op. cit. .). Tc word control (Fr. con
130 Terry D. Gill
uring thc ycars prcccding thc outbrcak ol war, Francc had built its cct
with thc support ol succcssivc govcrnmcnts, undcr thc guidancc and lcadcrship
ol Admiral Jcan arlan, to bccomc thc worlds lourth largcst navy. Tc cct
includcd a numbcr ol ncwlydcsigncd and constructcd battlcships, which wcrc
among thc lastcst and most powcrlul warships aoat and had bccn spccially built
to countcr thc thrcat poscd by thc ncwcst class ol Gcrman pockct battlcships.
Somc wcrc opcrational, whilc othcrs wcrc in thc nal stagcs ol complction. !n
addition, thc Frcnch cct includcd an aircralt carricr, a sizcablc numbcr ol last
modcrn cruiscrs and a largc submarinc lorcc. Asidc lrom countcring thc thrcat
poscd by Gcrman surlacc raidcrs, its principal task in thc pcriod bctwccn thc
outbrcak ol thc war in . and thc conclusion ol thc armisticc in Junc .c had
bccn to maintain control ovcr thc Mcditcrrancan and kccp a watch on thc largc
!talian Navy.
Vith thc conclusion ol thc armisticc and thc occupation ol Frcnch Channcl
and Atlantic ports, togcthcr with thc cntry ol !taly into thc war on Gcrmanys
sidc, thc stratcgic situation and balancc ol lorccs at sca, upon which Grcat 8ritain
dcpcndcd lor its survival, shiltcd dramatically to 8ritains disadvantagc. !nstcad
ol bcing ablc to count on thc Frcnch Navy as a powcrlul ally which would assist
thc Royal Navy in maintaining control ol thc vital sca lancs, thc 8ritish wcrc
now conlrontcd by thc combincd lorcc ol thc Gcrman and !talian Navics, as
wcll as thc prospcct ol thc Frcnch cct controllcd by a nominally indcpcndcnt
but Gcrman dominatcd govcrnmcnt at bcst, and potcntially lalling undcr dircct
Gcrman and !talian control at worst.
!n thc pcriod immcdiatcly prcccding thc armisticc, Primc Ministcr Churchill
had pcrsonally sought thc assurancc ol Admiral arlan that hc would not allow
thc Frcnch cct to lall into thc hands ol thc Gcrmans. Churchill had urgcd arlan
to takc thc cct out ol rcach ol thc Axis powcrs by scnding its most powcrlul
warships to Frcnch ovcrscas posscssions in thc Vcstcrn Hcmisphcrc, a rcqucst
which arlan sccms to havc considcrcd scriously, but dccidcd against oncc thc
Armisticc Agrccmcnt was concludcd and hc was givcn thc important Ministry ol
trlc) may wcll havc partially contributcd to 8ritish anxicty in rclation to thc latc ol
thc Frcnch vcsscls. !n nglish thc tcrm dcnotcs a rcstraining powcr, authority or
govcrnmcnt, whilc in Frcnch thc tcrm dcnotcs inspcction or supcrvision, which
is how ! havc translatcd it in thc tcxt. Scc in this rcspcct Lukacs, op. cit. n. c infra,
.6..
, Tc comparativc strcngth ol thc Frcnch Flcct in rclation to othcr major naval
powcrs at thc outbrcak ol thc war is analyzcd in R.. upuy and T.N. upuy, Te
Encyclopedia of Military History (and Rcv. d. Publishcd by Jancs .6), .ca and ..a,.
A complctc dcscription ol all Frcnch war vcsscls is givcn in P. Auphan and J. Mordal,
La Marine Franaise dans la Seconde Guerre Mondiale (.6,) in Anncx ., 6c,, et seq.
For thc rolc ol thc Frcnch Navy in thc pcriod bctwccn Scptcmbcr . and Junc
.c, scc thc lattcr work, ,.. For arlans rolc in building up thc Frcnch Navy, scc
Churchill op. cit. ..
131 3 Te Temporal Dimension of Self-Defense
thc Marinc, in chargc ol both thc cct and most ol thc ovcrscas colonics.
8
nc
ol thc primc considcrations bchind Hitlcrs dccision not to occupy all ol Francc
and allow thc Frcnch to maintain control ovcr thcir ovcrscas cmpirc and cct
was prcvcnting thc Frcnch Govcrnmcnt lrom withdrawing lrom Mctropolitan
Francc and continuing to ght alongsidc Grcat 8ritain lrom its ovcrscas bascs. !t
was an cconomical way to kccp thc cct and ovcrscas cmpirc out ol 8ritish hands
and undcr Gcrman inucncc and supcrvision, il not outright control.
Although thcrc is no cvidcncc ol concrctc plans to try to takc dircct control
ol thc Frcnch cct at thc timc, this possibility was uppcrmost in Churchills mind
lrom thc momcnt thc Armisticc Agrccmcnt was concludcd, lor it brought most
ol thc cct back to Mctropolitan Francc undcr Gcrman and !talian supcrvi
sion and within striking distancc ol thc Gcrmans. Churchill harborcd no illusion
ol thc sacrosanctity ol any agrccmcnt cntcrcd into by thc Nazi lcadcrship and
was not convinccd ol thc \ichy Govcrnmcnts willingncss to vigorously rcsist
a Gcrman attcmpt to scizc thc cct, or its ability to do so cvcn il it wantcd to.
8ccausc thc Gcrmans had dcmonstratcd thcir ability to carry out daring and dil
cult lightning strikcs during thcir invasion ol Francc and thc Low Countrics,
Churchill and his cabinct had littlc doubt ol thcir ability to scizc control ol thc
Frcnch cct il thcy wishcd. Vcrc this to happcn, Grcat 8ritain would not only
havc bccn lorccd to complctcly withdraw lrom thc Mcditcrrancan, but would
havc potcntially bccn laccd with thc loss ol ovcrall naval supcriority, which would
havc incvitably rcsultcd in its dclcat.
o
Tcsc considcrations brought Churchill to what hc dcscribcd as onc ol thc
most painlul dccisions hc had to takc during thc war: thc ncutralization, or, il
ncccssary, thc dcstruction ol thc Frcnch cct in its ovcrscas bascs and in 8ritish
or 8ritish controllcd ports bclorc it could rcturn to Mctropolitan Francc out ol
rcach ol thc Royal Navy. Vhilc a signicant part ol thc Frcnch Navy was alrcady
locatcd in Francc, thc majority ol its most powcrlul vcsscls wcrc still in Frcnch
ovcrscas bascs or in 8ritish or 8ritish controllcd ports. Tc window ol opportu
nity was cxtrcmcly narrow. !l thc 8ritish wcrc going to strikc, thcy would havc
to do so quickly.
+
Churchill gavc thc ordcr to carry out Operation Catapult on July .c.
Tis cntailcd thc takcovcr ol Frcnch warships in 8ritish ports and thc ncutral
n Churchills contacts with arlan in gcncral and spccically in rclation to thc
position ol thc Frcnch Flcct in thc days immcdiatcly prcccding thc armisticc, scc id.
.. n thc probablc ccct ol arlans appointmcnt as Ministcr ol Marinc, scc id.
.. Scc also R.. Paxton, !ichy France: Old Guard and Ne. Order .c. (.,a).
Paxton, op. cit. supra, n. , ,., and Shircr, op. cit. n. , a, et seq.
c Churchill, op. cit, n. 6, .. Scc also, J. Lukacs, Te Duel: zc May-z July z,,c: Te
Eighty-Day Struggle Bet.een Churchill and Hitler (.c), .6c et seq. and upuy and
upuy, op. cit. n. ,, .c6.
. Churchill in id. .6. Churchill dcscribcd thc dccision to takc action to prcvcnt thc
Frcnch Flcct carrying out thc tcrms ol thc Armisticc as a Grcck Tragcdy.
132 Terry D. Gill
ization or, il ncccssary, dcstruction ol thosc locatcd in 8ritish and Frcnch ovcr
scas bascs. Tc rst part ol thc plan wcnt rclativcly smoothly. Vithin a mattcr
ol hours 8ritish sailors and marincs succccdcd in scizing Frcnch naval vcsscls in
8ritish ports with minimal loss ol lilc. Tc succcss ol this part ol thc opcration
only conrmcd Churchill in his conviction ol thc ncccssity ol action, lor what
thc 8ritish could do, could also bc accomplishcd by thc Gcrmans.
:
Tc ncutral
ization ol thc powcrlul Frcnch squadrons locatcd in Alcxandria and thc Frcnch
Vcst !ndics was also accomplishcd bloodlcssly, with thc local Frcnch command
crs acccpting thc 8ritish ultimatum to acccpt thc supcrviscd dcmobilization ol
thcir vcsscls in thc lacc ol ovcrwhclming 8ritish naval supcriority.
Most notcworthy lor our discussion is that no major nonbclligcrcnt nation
(othcr than \ichy Francc) condcmncd thc action as cithcr unncccssary or illcgal.
From a strictly lcgal pcrspcctivc, Grcat 8ritain had struck a major blow against a
govcrnmcnt with which it was not at war, and which until rcccntly had bccn its
ally. Francc was within its lcgal rights to scck an armisticc undcr thc bcst tcrms it
could obtain. Tc tcrms ol thc Armisticc Agrccmcnt did not providc lor a surrcn
dcr ol thc Frcnch cct to Gcrman and !talian control, which would havc madc
it a lawlul targct undcr thc laws ol war. Tcrc wcrc no concrctc indications at thc
timc, nor has any cvidcncc cmcrgcd sincc, that thc Gcrmans had any immcdiatc
plans to try and scizc dircct control ol thc Frcnch cct,
8
although that was an
option thcy could considcr. Still, this was in lcgal tcrms a casc ol prcvcntivc, or
at bcst prccmptivc, sclldclcnsc. Tcrc was ccrtainly no qucstion ol intcrccpting
a Gcrman movc to scizc thc Frcnch cct, much lcss ol an attack by that cct on
Grcat 8ritain itscll, nor ol any othcr lcgal ground othcr than (anticipatory) scll
dclcnsc, which would justily thc 8ritish action against a dclcatcd nonbclligcrcnt
Statc likc \ichy Francc.
Tis brings us to thc qucstion ol thc lcgality ol thc 8ritish action in tcrms
ol anticipatory sclldclcnsc. cspitc thc lack ol concrctc cvidcncc ol a Gcrman
invcntion to try to scizc control ol thc Frcnch cct, thcrc can bc littlc doubt that
thc thrcat to Grcat 8ritains sccurity which was poscd cvcn by that possibility
Lukacs, supra n. c, .6.
6 Ibid. Scc also Cianos Diary (Hcincmann translation .,) a, (cntry lor /,/.c).
Cianos commcnt was: For thc momcnt it provcs that thc ghting spirit ol His
8ritannic Majcstys cct is quitc alivc, and still has thc aggrcssivc ruthlcssncss ol thc
captains and piratcs ol thc scvcntccnth ccntury.
, Auphan and Mordal, op. cit. n. ,, ., quoting Cordcll Hull on thc imprcssion thc
8ritish action madc upon thc Unitcd Statcs Govcrnmcnt and public. Scc also Lukacs
in id. .6a.
A point that Churchill admits in his mcmoirs. Scc Churchill, op. cit. ..
134 Terry D. Gill
was immcdiatc. ncc thc cct had rcturncd to Mctropolitan Francc and comc
undcr Gcrman and !talian supcrvision, it would havc bccn virtually impossiblc
lor thc Royal Navy to havc rcachcd it. Tc chanccs ol succcss without thc risk ol
prohibitivc losscs in both mcn and matcrial would havc bccn virtually ncgligiblc.
As statcd carlicr, thc window ol opportunity to carry out this opcration, with
thc grcatcst chancc ol succcss and lcast prospcct ol unncccssary loss ol livcs, was
cxtrcmcly narrow. Hcncc, undcr thc spccic conditions prcvailing at thc timc, thc
potcntial thrcat ol thc Frcnch cct coming undcr Gcrman control was immcdi
atc cnough to justily anticipatory action in sclldclcnsc.
Tcrc wcrc likcwisc no lcasiblc altcrnativcs to thc coursc ol action Churchill
chosc. Tc altcrnativcs ocrcd thc Frcnch commandcrs wcrc honorablc, rcason
ablc and, in lact, thc only oncs thc 8ritish could ocr undcr thc circumstanccs.
!l thc Frcnch cct had comc undcr Gcrman control, it would havc bccn too latc,
cvcn il that only happcncd months latcr. Tc thrcat poscd by that possibility can
only bc dcscribcd as ovcrwhclming, sincc it would havc almost incvitably mcant
8ritish dclcat, cspccially in thc rst ycar lollowing thc lall ol Francc.
Tcsc lactual considcrations, applicd in contcxt with thc Caroline critcria,
justily thc 8ritish action as a lawlul cxcrcisc ol anticipatory sclldclcnsc. Tc casc
also is a clcar indication that anticipatory sclldclcnsc was acccptcd as lawlul in
principlc undcr thc customary law cxisting only a lcw ycars bclorc thc Chartcr
was adoptcd. Tcrc is no indication that thc law undcrwcnt any signicant changc
in this rcspcct prior to thc adoption ol thc Chartcr.
ii Tc Six ay Var ol .6,
!n thc latc spring ol .6,, as tcnsions mountcd stcadily in thc Middlc ast, cvcnts
movcd incxorably in thc dircction ol rcncwcd war bctwccn !sracl and its Arab
ncighbors. Tcsc includcd thc closing ol thc Straits ol Tiran to all maritimc trac
bound lor thc !sracli port ol ilat (thc Sucz Canal had long bccn closcd to trac
bound to or lrom !sracl), thc cxpulsion by gypt ol thc UN pcacckccping lorcc
(UNF!!) stationcd in thc Sinai Pcninsula along thc !sracligyptian bordcr,
and thc lormation ol a joint command bctwccn gypt and Syria. Tcsc cvcnts
wcrc accompanicd by spccchcs in which Prcsidcnt Nasscr ol gypt cxprcsscd
his dctcrmination to cnd thc prcscncc ol thc !sracli Statc oncc and lor all by
driv|ing| thc Jcws into thc sca. !n addition, thcrc was an upsurgc in fedayeen
attacks lrom across thc Sinai bordcr into gypt and thc dcploymcnt ol gyptian
troops into lorward positions along that bordcr, which had bccn vacatcd by thc
dcparting UNF troops.
n thc Six ay Var gcncrally, scc J.N. Moorc (cd.) Tc rab-Israeli Conict, \l. !!
(Rcadings) (.,) and !!! (ocumcnts) (.,,). For a concisc cvaluation ol thc cvcnts
lcading up to thc conict, scc Franck supra n. a, .c.a. For an asscssmcnt ol thc com
135 3 Te Temporal Dimension of Self-Defense
iplomatic corts by !sracl in thc Unitcd Nations and clscwhcrc to at lcast
partially rcstorc thc status quo ante wcrc unsucccsslul. Tc UN Sccrctary Gcncral
took thc position that hc had no choicc but to acccdc to thc gyptian dcmand
that UNF bc withdrawn, sincc it was dcpcndcnt upon gyptian conscnt to
carry out its lunctions. Tcrc was obviously no qucstion ol thc Sccurity Council
providing a mandatc lor UNF to carry on without gyptian conscnt undcr thc
prcvailing political conditions.
Cold Var divisions charactcrizcd thc situation. !nitiativcs aimcd at lorming
a multinational naval lorcc to rcstorc and maintain !sracls maritimc communi
cations through thc Straits ol Tiran also loundcrcd as a rcsult ol thcsc political
divisions and conccrn that a rcgional crisis might dcvclop into a broadcr ast
Vcst conlrontation.
Tc situation bccamc gravcr whcn Jordan announccd its support lor gypt
and Syria and cntcrcd into a military alliancc with thcm. Tis mcant that !sracl
was now surroundcd by potcntial advcrsarics, who togcthcr posscsscd an ovcr
whclming numcrical supcriority in numbcrs ol availablc combat troops, tanks,
armorcd vchiclcs and artillcry, including surlacctosurlacc missilcs capablc ol
striking at !sracli population ccntcrs. Tis was now compoundcd by a prccarious
gcographical position, at onc point thc !sracliJordanian bordcr along thc Vcst
8ank cxtcndcd to only twclvc milcs lrom !sracls Mcditcrrancan coastlinc, opcn
ing thc possibility that thc country could bc cut in two il thc Jordanian Army
succccdcd in driving a wcdgc bctwccn !sracls northcrn and southcrn halvcs.
6o
Although thc unlavorablc gcographical situation and numcrical inlcriority
wcrc somcwhat compcnsatcd lor by thc qualitativc supcriority ol thc !sracli Air
Forcc, !sracl was conlrontcd with a largc gyptian Air Forcc which was cquippcd
with a sizcablc numbcr ol modcrn Russian built combat aircralt. !l !sracl was
going to cnsurc a succcsslul dclcnsc, and probably its vcry survival against what
appcarcd to bc an incrcasingly likcly attack within thc ncar luturc, its bcst option
was to try to takc out thc gyptian Air Forcc on thc ground bclorc any ocnsivc
was mountcd. ncc an attack was undcrway, it would bc much morc dicult to
avoid largc scalc casualtics among thc !sracli population in vicw ol thc proximity
ol its major population ccntcrs to thc bordcrs and thc lack ol stratcgic dcpth.
!l !sracl succccdcd in gaining air supcriority by dcstroying a largc portion ol
thc gyptian Air Forcc bclorc it could attack or dispcrsc, it would havc a good
chancc ol dclcating its advcrsarics in dctail.
6+
parativc numcrical and advcrsarics, as wcll as an analysis ol thc military aspccts ol
thc conict, scc upuy and upuy supra n. ,, .ac et seq.
6c gypt and Jordan concludcd a mutual assistancc trcaty on c May .6,. An gyptian
gcncral was immcdiatcly dispatchcd to Jordan to takc command ol Arab lorccs on
thc Jordan lront, scc upuy and upuy supra n. ,, .ac et seq.
6. Id. .a..
136 Terry D. Gill
Tcsc considcrations lcd !sracl to strikc prccmptivcly in anticipatory scll
dclcnsc. n thc carly morning ol Junc, its air lorcc, ying low to avoid gyptian
radar, dcstroycd thc bulk ol gypts modcrn combat aircralt and air dclcnscs
on thc ground within a mattcr ol hours. Having cstablishcd air supcriority, thc
!sracli armcd lorccs wcrc ablc to drivc through thc gyptian positions in thc
Sinai and rcach thc Sucz Canal, whilc simultancously succcsslully taking thc
initiativc on thc Jordanian and Syrian lronts. Altcr scvcral UN Sccurity Council
rcsolutions which callcd on thc partics to acccpt a ccascrc without apportion
ing blamc on cithcr sidc had bccn ignorcd, thc partics to thc conict nally
acccptcd a unanimous call by thc Sccurity Council lor a ccascrc on thc cvcning
ol .c Junc .6,.
6:
How was thc !sracli prccmptivc strikc vicwcd at thc timc and what wcrc its
immcdiatc rcpcrcussions: Tc ovcrwhclming majority ol opinion was lavorablc
and in support ol thc !sracli action as a rcasonablc and lawlul cxcrcisc ol antici
patory sclldclcnsc. Attcmpts to havc thc !sracli prccmptivc strikc condcmncd
in both thc Sccurity Council and thc Gcncral Asscmbly lailcd by largc majori
tics.
6
!t is signicant that during thc dcbatcs, rclcrcncc was madc to thc Caroline
critcria by a numbcr ol dclcgatcs, indicating that many Statcs saw thc !sracli
action as a lawlul cxcrcisc ol anticipatory sclldclcnsc, rathcr than assuming that
it may havc had its lcgal basis on somc othcr grounds, as has bccn submittcd by
a numbcr ol authoritics sincc thcn, a qucstion wc will rcturn to prcscntly in this
discussion.
A lurthcr indication that thc !sracli action was vicwcd as lawlul at thc timc
can bc lound in thc tcrms ol thc wcll known Rcsolution aa, which was adoptcd
by thc Sccurity Council on aa Novcmbcr .6,, and is still widcly sccn as provid
ing thc lramcwork lor an ovcrall scttlcmcnt ol thc conict. Tcrc is no mcntion
ol any condcmnation ol thc !sracli action, nor cvcn a rclcrcncc to any illcgality
in !sracls occupation ol thc tcrritorics it had gaincd control ol as a rcsult ol thc
Six ay Var. !nstcad, both partics wcrc callcd upon to rcach a lasting ovcrall
scttlcmcnt on thc basis ol an acccptancc ol !sracls right to sccurity, in cxchangc
lor a rcturn ol (most ol ) thc land it had occupicd as a conscqucncc ol thc war.
Tis would sccm to bc an implicit acknowlcdgcmcnt ol thc lcgality ol !sracls
action which takcs into account thc circumstanccs which lcd to it. Rcsolution
6a Id. .aa. Scc also Franck, supra n. a, .ca.
6 Franck op. cit. supra n. a, .c, points out that thc Sovict dralt rcsolution condcmn
ing !sracl only gaincd support lrom lour ol thc Councils . mcmbcrs. Tc Spccial
mcrgcncy Scssion ol thc Gcncral Asscmbly also lailcd to adopt various dralt rcso
lutions condcmning !sracl, with a dralt submittcd by a group ol nonaligncd Statcs
(A/L/aa) rccciving votcs in lavor, 6 opposcd and ac abstcntions. !t was thcrcby
rcjcctcd sincc it lailcd to gain thc ncccssary two thirds majority votc. Scc Franck in
id. at .c. An carlicr Sovict dralt rcsolution containing strongcr condcmnatory lan
guagc had bccn rcjcctcd on July .6, by ,. votcs opposcd, aa in lavor and ac abstcn
tions. (A/L/a.). Scc United Nations Yearbook .6,, ac.
137 3 Te Temporal Dimension of Self-Defense
aa rcccivcd thc widc support ol thc intcrnational community. Had thc gcncral
opinion rcgarding thc !sracli action bccn dicrcnt, it sccms salc to say that this
rcsolution would havc bccn dicrcntly wordcd, lor cxamplc, by including sticr
languagc dircctcd at !sracl that rccctcd thc gcncral tcnurc ol Gcncral Asscmbly
rcsolutions dircctcd at !sracl. Vhatcvcr oncs vicws rcgarding thc subscqucnt
conduct ol both partics, or rcgarding !sracls policics in thc ccupicd Tcrritorics,
thcy should not lcad to ex-post asscssmcnts ol thc !sracli rccoursc to anticipatory
sclldclcnsc, or ol how thc intcrnational community vicwcd it at thc timc.
Turning to application ol thc Caroline lramcwork and critcria in thc light
ol thc rclcvant circumstanccs, thc rst qucstion to bc addrcsscd is whcthcr wc
arc dcaling with an cxamplc ol anticipatory sclldclcnsc, or whcthcr thc !sracli
action had anothcr lcgal basis which would cxplain its gcncral acccptancc. Somc
authoritics havc opincd that thc !sracli action could bc sccn as an cxcrcisc ol bcl
ligcrcnt rights in thc contcxt ol an ongoing armcd conict against Statcs with
which !sracl was in a tcchnical statc ol war. Anothcr possibility put lorward is
that !sracl rcspondcd to an actual attack which had alrcady commcnccd, rathcr
than an immcdiatc thrcat ol onc, making its action onc ol rcgular, rathcr than
anticipatory sclldclcnsc.
6
8oth ol thcsc argumcnts arc implausiblc at bcst and articial and uncon
vincing at worst. To bc surc, !sracl had bccn in a tcchnical statc ol war with its
Arab ncighbors (and still is with thc cxccptions ol gypt and Jordan which havc
sincc signcd lormal pcacc trcatics) sincc its inccption in .. Howcvcr, that docs
not changc thc lact that this tcchnical statc ol war has bccn charactcrizcd by long
pcriods in which no signicant intcrStatc hostilitics havc takcn placc, intcr
spcrscd with lour short, intcnsivc intcrnational armcd conicts. To arguc that
any ol thc rcspcctivc partics has thc right to rcopcn hostilitics at any momcnt
ol its choosing on thc basis ol bclligcrcnt rights is to y in thc lacc ol various
armisticc agrccmcnts, ccascrc ordcrs and Sccurity Council rcsolutions rcjcct
ing such claims ovcr a long pcriod. Nor docs thc abscncc ol a lormal armisticc or
ccascrc agrccmcnt providc an automatic cxccption to this, il in lact a de-facto
matcrial armisticc has bccn in ccct lor any signicant pcriod ol timc.
6
6 \arious authoritics havc opincd that thc !sracli prccmptivc strikc ol Junc .6, was
an cxcrcisc ol rcgular rathcr than anticipatory sclldclcnsc. Tcsc includc Gray, op.
cit. n. .c supra at ..a, M. Shaw, International La. (
rd
cd. ..) 6 and instcin, op.
cit. n. supra et seq.
6 n this point, ! rcspcctlully disagrcc with Prolcssor instcins vicws as sct out in
op. cit. n. supra at 6. To bc surc a ccascrc is not ncccssarily synonymous with
pcacc, nor can it on its own cnd a tcchnical statc ol war. Howcvcr, a prolongcd ccasc
rc can consolidatc into a situation ol rclativc normalcy. !t is cvcn possiblc that a
ccascrc comcs into placc by thc conduct ol thc partics, rathcr than through mutual
agrccmcnt or lormal acccptancc ol a Sccurity Council ccascrc rcsolution. !n any
casc, oncc a ccascrc has bccomc a de-facto armisticc, it is no longcr opcn to thc par
tics to rcopcn hostilitics at a momcnt ol thcir choosing.
138 Terry D. Gill
Likcwisc, thc contcntion that !sracl rcspondcd to an actual attack, rathcr
than to thc prospcct ol a probablc attack in thc ncar luturc, is to strctch thc
mcaning ol thc tcrm to thc limit. To bc surc, !sracls ncighbors wcrc cxprcss
ing hostilc intcnt by cngaging in prcparations lor an attack and dcstruction ol
!sracl as a Statc (and possibly its pcoplc), but no attack had bccn launchcd at thc
momcnt !sracl struck.
!t is also truc that by closing thc Straits ol Tiran to !sracli maritimc com
mcrcc, gypt had initiatcd a partial blockadc, or rathcr intcnsicd an cxisting
blockadc, sincc thc land bordcrs bctwccn !sracl and its Arab ncighbors, as wcll
as thc Sucz Canal, had long bccn closcd to any trac bound to or lrom !sracl.
Howcvcr, !sracls air and sca communications through thc Mcditcrrancan wcrc
still unacctcd, and !sracl was ncithcr lacing strangulation nor cconomic ruin
as a rcsult ol gypts act. Vhilc a blockadc can somctimcs bc tantamount to an
armcd attack, it is not just any blockadc that can amount to such an attack, and
particularly not onc ol a partial naturc, such as thc onc that had bccn in ccct
against !sracl sincc closurc ol thc Straits. Many cxamplcs ol partial blockadcs or
closing ol lronticrs sincc . havc not bccn sccn as constituting armcd attacks,
thcrc was no rcason to trcat this onc as a spccial casc constituting an armcd
attack. !l gypt had attcmptcd to cut !sracls sca and air communications com
plctcly, thc situation would havc bccn dicrcnt, but no such action had occurrcd
at thc timc !sracl dccidcd to takc prccmptivc action.
66
Taking thc abovc considcrations into account, thc most rcasonablc conclu
sion is that whilc thcrc wcrc clcar indications ol a probablc impcnding armcd
attack, nonc had yct bccn launchcd, or cvcn put into motion at thc timc !sracl
dccidcd to takc anticipatory action by dcstroying gypts ocnsivc capability. Tc
upsurgc in fedayeen incursions lrom across thc gyptian bordcr would havc jus
ticd a proportionatc rcsponsc dcsigncd to ncutralizc this thrcat, not a lull scalc
war.
Hcncc, !sracls prccmptivc strikc is an almost tcxtbook cxamplc ol antici
patory sclldclcnsc in thc lacc ol an immcdiatc thrcat ol an armcd attack, rathcr
than onc ol rcsponsc to an actual attack, or cvcn intcrccption ol an attack which
had alrcady bccn launchcd, but had not yct rcachcd its targct. Tc majority ol
authoritics sharc this conclusion.
6
!l !sracls action was onc ol anticipatory sclldclcnsc, thc ncxt qucstion is
how it mcasurcd up to thc Caroline lramcwork and critcria. Tc answcr is that
66 An cxamplc ol such a partial blockadc which, whilc hostilc and illcgal undcr thc
Four Powcr Agrccmcnts rclating to thc ccupation Rcgimc in Gcrmany, was not
trcatcd as an armcd attack, was thc 8crlin 8lockadc ol .. Tc action closcd o
land communications bctwccn thc Vcstcrn Zoncs ol Gcrmany and 8crlin, but lclt
thc air corridors unacctcd. Tis blockadc was lar morc scrious than thc closurc ol
thc Straits ol Tiran, but was not vicwcd as a casus belli.
6, Tis is thc vicw ol a largc numbcr ol authoritics and is bcst summcd up by Franck,
op. cit. n. a supra, .c.
139 3 Te Temporal Dimension of Self-Defense
!sracls action is an cxamplc ol a rcasonablc and justicd rccoursc to anticipa
tory sclldclcnsc undcr thc circumstanccs. Tat thc thrcat was immcdiatc would
sccm to hardly rcquirc lurthcr cxplanation. gypt, Jordan and Syria had takcn
a numbcr ol stcps which clcarly pointcd to thcir likcly intcntion and capability
to launch an attack in thc immcdiatc luturc. Vhcthcr or not thcy would havc
actually struck, or wcrc mcrcly cngaging in a dangcrous gamc ol blu and hostilc
rhctoric is irrclcvant. 8y initiating an acutc crisis and making prcparations thcy
crcatcd an immcdiatc thrcat justilying thc !sracli rcsponsc. No Statc can rcason
ably bc cxpcctcd to takc thc risk that advcrsarics which havc pronounccd thcir
intcntion to wagc a war ol annihilation, and madc corrcsponding prcparations,
arc blung.
Likcwisc, thc thrcat poscd was ccrtainly crcdiblc. Tc lormation ol a joint
command, movcmcnt ol troops into lorward positions, numcrical supcriority and
thc probability ol high civilian casualtics il thc Arab Statcs did strikc rst com
bincd to posc a thrcat which was both crcdiblc and ovcrwhclming.
!t is also clcar that !sracl had no lcasiblc altcrnativcs to taking anticipatory
military action. ncc its diplomatic corts had lailcd, it could cxpcct no ccc
tivc cort by thc UN or anyonc clsc that would havc rcsolvcd thc situation. !l it
rcstrictcd its rcsponsc to thc taking ol prcparations on its own tcrritory, it would
not bc cnsurcd ol avoiding disastcr. ncc an attack was launchcd, !sracl would bc
at a scrious disadvantagc duc to its lack ol stratcgic dcpth and lorccd to acccpt thc
prospcct ol its citics bccoming a battlcground. !n short, its options wcrc ncarly
noncxistcnt.
Finally, !sracls action was proportionatc in rclation to thc thrcat it laccd.
Tc !sracli armcd lorccs drovc back its advcrsarics to positions which cnsurcd its
sccurity against rcncwcd attack and providcd it with a lavorablc bargaining posi
tion in any subscqucnt ncgotiations. Tat this has not rcsultcd in a lasting pcacc
scttlcmcnt is irrclcvant to thc issuc at hand. !n short, thc !sracli prccmptivc
strikc ol Junc .6, was a clcar cxamplc ol justicd anticipatory sclldclcnsc.
iii Tc .. !sracli Strikc against thc sirak Nuclcar Rcactor
!n Junc .., thc !sracli Air Forcc carricd out a succcsslul surgical strikc against
an !raqi nuclcar rcactor locatcd at sirak ncar 8aghdad. Tc rcactor had bccn
purchascd lrom Francc in ., and was not yct opcrational at thc timc thc strikc.
Although, undcr thc tcrms ol thc purchasc agrccmcnt bctwccn Francc and !raq,
thc sirak lacility was subjcct to !AA inspcction in accordancc with thc .6
Nuclcar NonProlilcration Trcaty, !sracl had rcason to bclicvc that !raq had vio
latcd thc agrccmcnt and was in lact cngagcd in a program aimcd at thc produc
tion ol wcapons gradc nuclcar matcrial.
Although !sracl had protcstcd thc salc ol a nuclcar rcactor to !raq, and had
attcmptcd to dissuadc Francc lrom going through with thc agrccmcnt and madc
its conccrns known in various diplomatic lora, its corts to prcvcnt thc dcliv
140 Terry D. Gill
cry ol nuclcar tcchnology to !raq had bccn unsucccsslul. !sracl undcrstandably
rcgardcd !raq as an implacablc hostilc Statc which would posc a gravc thrcat to
its sccurity, and possibly survival, il it wcrc to acquirc nuclcar wcapons. At thc
timc, !raqs lormidablc military potcntial was growing rapidly. Morcovcr, though
its may sccm strangc today, it is worth rcmcmbcring that !raq cnjoycd a vcry
lavorablc diplomatic position at that timc, which rcndcrcd thc prospcct ol !sracl
succcsslully cnlisting ccctivc Sccurity Council support lor thc containmcnt ol
!raqs nuclcar wcapons program and rcgional powcr ambitions rcmotc.
68
Tc Unitcd Statcs vicwcd !raq as a bulwark against !ranian rcvolutionary
rcligious cxtrcmism, whilc Francc had intcnsivc commcrcial and diplomatic tics
with thc country and thc Sovict Union had long bccn a traditional ally. Finally,
!sracl almost ccrtainly must havc takcn into considcration that a succcsslul strikc
against thc sirak nuclcar lacility would bccomc innitcly morc dicult oncc
thc rcactor bccamc opcrational. From its point ol vicw, it had to prcvcnt !raq
gaining acccss to nuclcar wcapons tcchnology by any mcans, cvcn at thc cost ol
diplomatic isolation and lcgal condcmnation. !t chosc to act at what appcarcd to
bc thc most lavorablc momcnt lrom a military stratcgic pcrspcctivc bclorc thc
possibility to act unacccptably narrowcd or passcd.
6
!n thc cvcnt, thc Sccurity Council and thc intcrnational community roundly
condcmncd !sracls action. !ts invocation in thc Council ol thc right to antici
patory sclldclcnsc was unanimously rcjcctcd. !t is, howcvcr, signicant that in
doing so many dclcgatcs did not rcjcct thc conccpt ol anticipatory sclldclcnsc
per se, but rathcr !sracls rcliancc on it undcr thc circumstanccs. !sracls rcliancc
upon anticipatory sclldclcnsc was rcjcctcd cxplicitly by a numbcr, and implic
itly by a majority, ol dclcgatcs, as not mccting thc Caroline critcria ol immcdiacy
and lack ol lcasiblc altcrnativcs. Tis rcjcction can bc sccn as at lcast conditional
support lor thc conccpt ol anticipatory sclldclcnsc by a widc scgmcnt ol thc
intcrnational community, providcd thc conditions laid down in thc Caroline
lramcwork havc bccn plausibly mct.
o
At thc timc, it was clcarly thc vicw ol
thc intcrnational community that !sracl had lailcd to mcct this tcst.
+
Although
many havc modicd thcir opinion in thc light ol subscqucnt cvcnts, it rcmains an
6 !n thc altcrmath ol thc !ranian Rcvolution, thc US, whilc ocially ncutral in thc
war bctwccn !raq and !ran that had bcgun in Scptcmbcr .c whilc US diplomatic
hostagcs wcrc bcing hcld in Tchran, vicwcd !ran as thc grcatcr thrcat to Middlc
astcrn sccurity and stability. Tc USSR had a lormal trcaty ol Fricndship with !raq
and had supplicd thc bulk ol its alrcady lormidablc arscnal, whilc Francc maintaincd
closc commcrcial tics with !raq and was also a signicant supportcr ol !raqs diplo
matic position in .c., scc . Hiro, Te Longest !ar: Te Iran-Iraq Military Conict
(.), ,. et seq.
6 Franck, n. a supra, .c. Scc also A.M. Vcisburd, Use of Force: Practice of States Since
!orld !ar II (.,), a,.
,c Grccnwood, supra n. a, ..
,. S.C. Rcs. , ol ./6/. adoptcd unanimously.
141 3 Te Temporal Dimension of Self-Defense
incontrovcrtiblc lact that thc !sracli strikc against thc sirak nuclcar lacility was
dccmcd illcgal at thc timc.
Tis brings us to thc qucstion whcthcr thc !sracli action was justiablc in
lact, cithcr at thc timc or in rctrospcct, as a lawlul cxcrcisc ol anticipatory scll
dclcnsc on thc basis ol thc Caroline lramcwork and critcria. vcn il onc takcs
into account thc dicult dilcmma which !sracl laccd thc prospcct ol a hostilc
ncighbor gaining acccss to nuclcar tcchnology combincd with a rcmotc chancc
ol prcvcnting this through diplomacy within thc immcdiatc luturc it is hard to
scc how !sracls strikc can bc judgcd lawlul.
Tcrc was no cvidcncc ol an !raqi intcntion to attack !sracl in thc lorcscc
ablc luturc. Tcrc was not cvcn conclusivc cvidcncc that !raq was acquiring, much
lcss on thc point ol dcvcloping, a nuclcar wcapons capability whcn thc !sracli
action was carricd out. Tc lact that wc now know morc about !raqs ambitions
to obtain nuclcar and othcr wcapons ol mass dcstruction and about thc naturc
ol thc crstwhilc !raqi rcgimc docs not changc this, although it docs makc !sracls
action morc acccptablc in historical tcrms. Ncvcrthclcss, as has bccn pointcd out,
much ol what wc know about !raqi ambitions and its propcnsity to cngagc in
antisocial bchavior, such as invading ncighbors and massacring its own citizcns
with chcmical wcapons, had yct to bc rcvcalcd. Ncithcr thc !sracli Govcrnmcnt,
nor anyonc clsc, could lorcscc in .. what has occurrcd sincc thcn. Ex-post
asscssmcnts ol thc !raqi thrcat and thc naturc ol its govcrnmcnt do not substi
tutc lor cvaluations ol thc ncccssity ol !sracls action at thc timc. Circumstanccs
which wcrc known at thc timc must prcvail ovcr historical hindsight. Any othcr
approach would makc it virtually impossiblc to asscss thc lcgality ol a usc ol lorcc,
anticipatory or othcrwisc. n thc othcr hand, it is rcasonablc to takc subscqucnt
cvcnts into account to thc cxtcnt that thcy mitigatc thc unlawlulncss ol an act
which was rightly dctcrmincd to bc illcgal at thc timc.
!t is submittcd that this should bc thc outcomc ol an ovcrall asscssmcnt ol
!sracls strikc against thc sirak nuclcar lacility lor a numbcr ol rcasons. !sracl
kncw that !raq was an implacably hostilc advcrsary and had littlc rcason to bclicvc
that its purchasc ol a nuclcar rcactor was cconomically ncccssary, in vicw ol its
vast pctrolcum rcscrvcs, or that it would rclrain lrom producing nuclcar wcap
ons at thc rst opportunity. Tc strikc was carricd out surgically and proportion
ally, bcing dircctcd solcly at climinating thc potcntial thrcat poscd by thc rcactor.
Morcovcr, !sracl had littlc prospcct ol gaining diplomatic support in thc Sccurity
Council or clscwhcrc lor an initiativc aimcd at prcvcnting !raq lrom gaining
acccss to nuclcar tcchnology, at lcast within thc lorcsccablc luturc.
Vhilc thcsc lactors go a considcrablc way towards making !sracls action
undcrstandablc, thcy did not makc it lcgal at thc timc, nor do thcy makc it lcgal
in thc light ol what wc havc subscqucntly lcarncd. !sracl was not laccd with thrcat
ol attack by a nuclcar armcd !raq within thc short or mcdium tcrm. Conscqucntly,
!sracls action was rightly judgcd unlawlul at thc timc. !sracl did not, nor could it,
producc clcar cvidcncc ol morc than, at thc most, a potcntial thrcat to its sccurity.
142 Terry D. Gill
To thc rcst ol thc intcrnational community, !sracls action appcarcd to bc prccipi
tatc and unncccssary. vcn il thc Caroline critcria and lramcwork lor asscssmcnt
providc lor thc possibility ol anticipatory action against potcntial thrcats undcr
spccial circumstanccs, thcy cannot bc strctchcd to thc cxtcnt that thcy would
justily prcvcntivc action against thc mcrc possibility that a Statc might obtain a
nuclcar wcapon and bc in a position to usc it at somc complctcly indctcrminatc
luturc momcnt.
n thc othcr hand, !raqs conduct sincc .. should not bc ignorcd cithcr.
!l thc intcrnational community would havc known, or cvcn scriously suspcctcd,
what has comc to light, it is highly unlikcly that !sracls action would havc bccn
condcmncd, ccrtainly not as univcrsally as was thc casc at thc timc. Tis gocs a
considcrablc way towards mitigating thc illcgality ol !sracls action. !n thc prcscnt
authors vicw, !sracls action was illcgal, but both undcrstandablc and, ultimatcly,
partly justiablc in historical tcrms.
iv Tc Gull Var ol acc
Tc most rcccnt Gull Var was conductcd by thc Unitcd Statcs and thc Unitcd
Kingdom to rcmovc Saddam Husscin and his closc associatcs lrom powcr and
to cnlorcc compliancc with UN Sccurity Council rcsolutions rclating to !raqs
partial disarmamcnt. !t rcmains highly controvcrsial, and has bccn widcly com
mcntcd upon in intcrnational lcgal litcraturc. A numbcr ol possiblc lcgal justi
cations havc bccn advanccd lor thc invasion and rcsulting ovcrthrow ol Saddam
Husscins govcrnmcnt. Tcy includc as thc primary lcgal justication Sccurity
Council Rcsolutions 6,, 6, and .. and thc lailurc ol !raq to lully coopcratc
with thc Councils corts to cnsurc its disarmamcnt ovcr morc than a dccadc.
Anothcr possiblc lcgal justication put lorward is that thc Unitcd Statcs
and Unitcd Kingdom had thc right to rcopcn hostilitics against !raq on thc basis
ol thc law govcrning armisticcs and ccascrcs, containcd in thc .c, Haguc
Convcntion on Land Varlarc and customary law. Tis linc ol rcasoning vicws thc
rcccnt conict as a continuation ol thc .. conict on thc basis ol a brcach ol
thc armisticc / ccascrc tcrms by !raq. A brcach, so thc argumcnt gocs, cnablcs
thc othcr principal bclligcrcnts (thc US and thc UK) to rcopcn hostilitics. Tis
linc ol argumcnt is rclatcd to, but distinct lrom, that onc which suggcsts cxist
ing Sccurity Council rcsolutions providc a lcgal basis lor military action against
!raq, in that it rclics on a scparatc lcgal basis, thc law govcrning armisticcs and
ccascrcs, rathcr than thc rcsolutions thcmsclvcs, as a justication lor military
action.
:
,a Tc ocial argumcnts rclating to thc justication ol thc invasion ol !raq arc to bc
lound inter alia in statcmcnts by mcmbcrs ol thc US and UK Govcrnmcnts immc
diatcly prcccding and subscqucnt to thc opcning ol hostilitics in March acc. Scc e.g.
thc Advicc ol thc UK Attorncy Gcncral, Lord Goldsmith, at www.numbcr.cgov.
143 3 Te Temporal Dimension of Self-Defense
Tcrc arc rcasonablc argumcnts both lor and against thcsc two possiblc
justications. Ncithcr ol thcsc possiblc justications dircctly rclatc to thc con
ccpt ol sclldclcnsc anticipatory or othcrwisc or to thc topic ol this articlc.
Conscqucntly, thcy will rcccivc no dircct attcntion bcyond stating that, on bal
ancc, thcy do not appcar to providc a convincing lcgal basis lor thc invasion and
military occupation although admittcdly thcy arc not wholly dcvoid ol mcrit.
,6 Scc n. . supra.
,, Tc invocation ol thc right ol thc Unitcd Statcs to cxcrcisc sclldclcnsc in rcponsc
to thc attack ol .. Scptcmbcr acc. and thc cnsuing usc ol lorcc against l Qaeda
and its Taliban host and ally in Alghanistan was rccognizcd or condoncd by thc
UN Sccurity Council and a varicty ol othcr Statcs and intcrnational organizations.
Likcwisc, most intcrnational lcgal authoritics havc cxprcsscd agrccmcnt that thc
cxcrcisc ol sclldclcnsc against Alghanistan was lawlul as such, notwithstanding
148 Terry D. Gill
!n thc lormcr cxamplc, thcrc was no qucstion ol any mobilization ol thc
Frcnch Navy lor an attack on Grcat 8ritain, rathcr thc mcrc cxistcncc ol thc
Frcnch cct, combincd with thc distinct possibility that it might lall into thc
wrong hands, constitutcd immcdiacy. !n thc lattcr, thc cxistcncc ol a signicant
Al Qacda prcscncc and inlrastructurc in Alghanistan with thc knowlcdgc and
support ol thc Taliban, togcthcr with thc occurrcncc ol a scrics ol attacks in thc
past and thc likclihood ol lurthcr attacks in thc lorcsccablc luturc, mct thc immc
diacy critcrion, thcrc was no qucstion ol a convcntional mobilization ol armcd
lorccs in thc scnsc rclcrrcd to abovc. To bc surc, such a mobilization is onc way
in which immcdiacy can bc manilcstcd, as was thc casc in rclation to thc Six ay
Var. Yct it is not, nor has it cvcr bccn, a ncccssary prccondition lor thc cxcrcisc
ol anticipatory sclldclcnsc.
Tis may appcar to somc a rathcr nitpicking criticism, wcrc it not lor thc
lact that thc statcmcnt is a prcludc to a much morc scrious aw in thc rcasoning
ol thc 8ush octrinc. Tc NSS gocs on to statc that thc conccpt ol an immc
diatc thrcat nccds to bc rcdcncd to takc account ol ncw capabilitics and objcc
tivcs ol todays advcrsarics. !t lurthcr statcs that in an agc whcrc thc cncmics
ol civilization opcnly and activcly scck thc worlds most dcstructivc tcchnologics,
thc Unitcd Statcs cannot rcmain idlc whilc dangcrs gathcr.
8
Tc csscntial problcm with this rcasoning is that, takcn togcthcr and sccn
in contcxt, it not only sccms to imply that thc cxisting conccpt ol anticipatory
sclldclcnsc is inadcquatc to dcal with contcmporary thrcats, without ocring
any cvidcncc that this is so, but also sccms to rcjcct thc basis ol thc right ol scll
dclcnsc (and thc contcmporary jus ad bellum as a wholc) on thc basis ol a pcr
ccivcd, but ncvcr rcally argucd, much lcss provcn, inability to addrcss both rcal
and potcntial thrcats. Finally, thc 8ush octrincs rcasoning attcmpts to shilt
thc paramctcrs ol immcdiacy, and thc notion ol anticipatory sclldclcnsc itscll, to
dcal with a vaguc ncw conccpt ol inchoatc thrcats which could manilcst thcm
sclvcs at somc point in thc luturc, instcad ol concrctc or probablc thrcats ol attack
within thc lorcsccablc luturc. !l thc implication ol this is that thc cxisting right
ol sclldclcnsc is inhcrcntly incapablc ol dcaling with situations in which thc
Unitcd Statcs, or any othcr Statc lor that mattcr, might nd itscll in, it is bascd
on an incorrcct prcmisc and a lundamcntal misrcading ol thc scopc ol thc right
criticism ol various aspccts ol thc conduct ol thc military campaign by somc. Scc
S.C. Rcs. .6 (acc.) and ., (acc.). A signicant numbcr ol Statcs both insidc and
outsidc thc NAT alliancc havc providcd various lorms ol military, logistical and
diplomatic support to thc US cort to cradicatc l Qaedas bascs in Alghanistan. For
support in doctrinc, scc, inter alia, Grccnwood, supra n. a and thc sourccs citcd in n.
. supra. Tc USlcd campaign was both rcactivc and, at lcast to somc cxtcnt, antici
patory, in that it was dircctcd towards not only rcsponding to thc attack ol .., but
also towards lorcstalling luturc attacks. Scc in this rcspcct e.g. Grccnwood, op.cit. a.
et seq.
, NSS ocumcnt citcd in nn. . and ,a supra at .
149 3 Te Temporal Dimension of Self-Defense
ol sclldclcnsc. Sclldclcnsc, combining both Chartcr and customary law, has
long includcd thc right to takc anticipatory action against concrctc and crcd
iblc thrcats ol attack, cithcr lrom Statcs or lrom othcr sourccs, irrcspcctivc ol
thc naturc ol thc attack (convcntional, irrcgular or asymmctrical) or thc typc
ol wcapons conccrncd (VM or othcr wcapons). bviously, thc right to takc
(anticipatory) action in sclldclcnsc is not unlimitcd. !t is prcdicatcd upon thc
principlcs ol ncccssity and proportionality, intcrprctcd in rclation to thc naturc
ol thc thrcat and thc availability, or lack thcrcol, ol lcasiblc altcrnativcs which
would adcquatcly addrcss thc thrcat. Tcsc arc not outmodcd conccpts, and nccd
not bc sccn as ovcrly rcstrictivc or ncccssarily condcmning a Statc to a purcly
rcactivc posturc.
Tc prcccding cxamination ol Statc practicc dcmonstratcs that thc Caroline
critcria should not bc sccn as prcvcnting a statc lrom taking thc ncccssary action
to lorcstall concrctc and crcdiblc thrcats ol attack within thc lorcsccablc luturc.
Tc conccpts ol immcdiacy and ncccssity arc capablc ol bcing applicd cxibly
and in rclation to a widc varicty ol situations. 8ut thcy arc also lundamcntal.
Vithout thcm, thcrc would bc no limits to thc usc ol lorcc undcr thc guisc ol
sclldclcnsc.
!l, howcvcr, thc implication put lorward in thc US NSS is that sclldclcnsc
is or should bc rclcvant to situations in which only thc gcncral possibility ol attack
lrom an indctcrminatc sourcc and at somc indctcrminatc point in thc luturc
cxists, a total rcdcnition ol thc cntirc conccpt ol sclldclcnsc and thc complctc
rcplaccmcnt ol thc prcscnt lcgal systcm govcrning thc usc ol lorcc would rcsult.
Sclldclcnsc howcvcr dcncd, has always bccn linkcd to thc cxistcncc ol a con
crctc (thrcat ol an) attack within at lcast thc lorcsccablc luturc. Vhilc this is not
ncccssarily thc immcdiatc tcmporal luturc in thc scnsc ol minutcs, hours or cvcn
days, thc principlcs ol immcdiacy and ncccssity arc ccntral to thc conccpt ol scll
dclcnsc itscll and cannot bc opcn cndcd as thc NSS implics.
!t sccms clcar lrom thc lorcgoing that thc position put lorward in thc NSS
lails on at lcast two counts. Firstly, thc cxisting right ol sclldclcnsc is in lact
capablc ol bcing applicd to contcmporary thrcats and is adcquatc to countcr
such concrctc thrcats ol attack. Sccondly, sclldclcnsc is not rclcvant in situations
whcrc no such concrctc thrcat ol attack cxists.
Undcr thc contcmporary lcgal systcm, thc usc ol lorcc othcr than in scll
dclcnsc can only bc undcrtakcn by thc Sccurity Council, or by a rcgional organi
zation or a (coalition ol ) Statc(s) acting undcr thc authorization ol thc Council.
Tc Council has cxtcnsivc powcrs to takc any mcasurcs it dctcrmincs arc rcquircd,
including thc usc ol military lorcc to dcal with situations othcr than sclldclcnsc
in rcsponsc to an attack or concrctc thrcat ol attack. To bc surc, it has not always
uscd thosc powcrs ccctivcly. Room rcmains lor considcrablc improvcmcnt in
its ccctivcncss and lcgitimacy. nc possibility would bc to work towards somc
kind ol cohcrcnt intcrnational sccurity stratcgy to dcal with thc gcncral long
tcrm problcms ol thc possibility ol prolilcration ol wcapons ol mass dcstruction,
150 Terry D. Gill
intcrnational tcrrorism and thc undcrlying structural problcms which contributc
to and aggravatc thcsc phcnomcna.
Tc Unitcd Statcs and its coalition partncrs rcspondcd on ctobcr ,
th
by attacking both al Qacda and Taliban targcts in Alghanistan. Not only did
thc intcrnational community rclrain lrom condcmning pcration nduring
Frccdom (F), but many Statcs providcd vcrbal and matcrial support. Tc
Unitcd Nations and othcr intcrgovcrnmcntal organizations trcatcd thc /.. tcr
rorist strikcs as mcriting military action in sclldclcncc, cvcn as thc Unitcd Statcs
oustcd thc Taliban rcgimc, which no crcdiblc sourcc citcd as bchind thc attacks.
Tcrc is littlc qucstion but that thc intcrnational normativc undcrstandings
rcgarding thc application ol thc jus ad bellum, that componcnt ol intcrnational
law which govcrns whcn Statcs may rcsort to lorcc, had changcd dramatically.
6
Tis contribution to honour Prolcssor Yoram instcin on thc occasion ol his
,c
th
birthday cxplorcs thc rclationship bctwccn tcrrorism and intcrnational law
undcr thc jus ad bellum. !t is a particularly appositc topic, lor Prolcssor instcin
has authorcd thc scminal tcxt on thc topic, !ar, ggression and Self-Defence.
Now in its
th
cdition, it has bccomc a classic in thc ncarly two dccadcs sincc its
rclcasc.
Vith rcgard to tcrrorism, Prolcssor instcin has addcd a scparatc scction
on armcd attacks by nonStatc actors to thc currcnt cdition ol his tomc. thcr
aspccts ol thc tcxt rclcvant to tcrrorism havc also bccn rcviscd. Such rcvisions
arc lar lrom surprising. Largcscalc transnational tcrrorism compcllcd thc intcr
Military aircralt arc pcrmittcd transit passagc through intcrnational straits, i.c.,
a strait in tcrritorial watcrs (including ovcrlapping tcrritorial watcrs ol multiplc
Statcs) linking two parts ol thc high scas (or cxclusivc cconomic zoncs). Scc Tc
Commandcrs Handbook on thc Law ol Naval Varlarc (NVP ..M, MCVP
a.., CMPU8 Pcc.,) (.), at para. a.....
Tc Comptrollcr ol Ncw York City cstimatcd thc cost to thc city alonc at s billion.
Richard Vray, NY Counts Cost of ,zz, Tnv Gu~vbi~x Uxii:i:vb, Scpt. , acca,
at www.guardian.co.uk/scptcmbcr../story/c,..ac,,6a6,cc.html. Financial losscs
and thc cost to thc US govcrnmcnt dwarls that gurc.
6 For a discussion ol such issucs, scc Michacl N. Schmitt, Counter-terrorism and the Use
of Force in International La., a !sv~vi Yv~vnoox ox Hu:~x Ricn:s (acca).
, Yoram instcin, V~v, Accvvssiox ~xb Svivvvvxcv, (
th
cd., Cambridgc,
acc).
159 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
national community to discovcr a normativc architccturc govcrning thc lcgal
bascs lor countcrtcrrorism that had thcrctolorc bccn rathcr obscurc. Spccically,
although traditionally vicwcd as a mattcr lor law cnlorccmcnt, Statcs and intcr
govcrnmcntal organizations now stylc tcrrorism as justilying, with ccrtain condi
tions, thc usc ol military lorcc pursuant to thc jus ad bellum. !t is not so much that
thc law has changcd as it is that cxisting law is bcing applicd in a nasccnt contcxt.
!n law, as in all othcr aspccts ol intcrnational sccurity, what onc sccs dcpcnds on
whcrc onc stands.
I Te Jus ad Bellum Schema
Sct out in thc Unitcd Nations Chartcr, thc jus ad bellum schcma is lincar. Pursuant
to Articlc a(), Statcs Party to thc Chartcr agrcc to rclrain in thcir intcrnational
rclations lrom thc thrcat or usc ol lorcc against thc tcrritorial intcgrity or polit
ical indcpcndcncc ol any statc, or in any othcr manncr inconsistcnt with thc
Purposcs ol thc Unitcd Nations.
8
Tcrc arc two univcrsally acccptcd cxccptions
to thc prohibition.
Security Council Mandate
Tc rst occurs whcn thc Sccurity Council dctcrmincs pursuant to Articlc
that a brcach ol thc pcacc, act ol aggrcssion, or thrcat to thc pcacc cxists.
Having madc such a dctcrmination, and having attcmptcd to rcsolvc thc situ
ation through nonlorcclul mcasurcs as rcquircd by Articlc . (or dctcrmining
that thcy would provc lruitlcss),
+o
thc Council may authorizc thc usc ol lorcc
to maintain or rcstorc intcrnational pcacc and sccurity pursuant to Articlc a.
++
Such actions arc known variously as Chaptcr \!!, pcacc cnlorccmcnt, or collcc
tivc sccurity opcrations.
UN Chartcr, art. a().
UN Chartcr, art. . Tc Sccurity Council shall dctcrminc thc cxistcncc ol any
thrcat to thc pcacc, brcach ol thc pcacc, or act ol aggrcssion and shall makc rccom
mcndations, or dccidc what mcasurcs shall bc takcn in accordancc with Articlcs .
and a, to maintain or rcstorc intcrnational pcacc and sccurity.
.c UN Chartcr, art. .. Tc Sccurity Council may dccidc what mcasurcs not involving
thc usc ol armcd lorcc arc to bc cmploycd to givc ccct to its dccisions, and it may
call upon thc Mcmbcrs ol thc Unitcd Nations to apply such mcasurcs. Tcsc may
includc complctc or partial intcrruption ol cconomic rclations and ol rail, sca, air,
postal, tclcgraphic, radio, and othcr mcans ol communication, and thc scvcrancc ol
diplomatic rclations.
.. UN Chartcr, art. a. Should thc Sccurity Council considcr that mcasurcs providcd
lor in Articlc . would bc inadcquatc or havc provcd to bc inadcquatc, it may takc
such action by air, sca, or land lorccs as may bc ncccssary to maintain or rcstorc intcr
national pcacc and sccurity. Such action may includc dcmonstrations, blockadc, and
othcr opcrations by air, sca, or land lorccs ol Mcmbcrs ol thc Unitcd Nations.
160 Michael N. Schmitt
!n thc cycs ol thc Sccurity Council, intcrnational tcrrorism qualics as a thrcat
to intcrnational pcacc and sccurity. !t madc cxactly that nding thc vcry day altcr
thc attacks ol Scptcmbcr ..
th
. !n Rcsolution .6, thc Council |u|ncquivocally
condcmn|cd| in thc strongcst tcrms thc horrilying tcrrorist attacks which took
placc on .. Scptcmbcr acc. in Ncw York, Vashington, .C. and Pcnnsylvania
and regards such acts, likc any act ol intcrnational tcrrorism, as a thrcat to intcr
national pcacc and sccurity.
+:
Notc thc scopc ol thc Councils charactcrization ol any act ol intcrnational
tcrrorism as a thrcat to intcrnational pcacc and sccurity. !t did so again on a
Scptcmbcr in Rcsolution .,, which cncouragcd intcrnational coopcration in
thc ght against tcrrorism, spccically through implcmcntation ol intcrnational
convcntions.
+
Tc Rcsolution lurthcr |u|ncquivocally condcmn|cd| all acts,
mcthods and practiccs ol tcrrorism as criminal and unjustiablc, rcgardlcss ol
thcir motivation, in all thcir lorms and manilcstations, whcrcvcr and by whom
cvcr committcd, in particular thosc which could thrcatcn intcrnational pcacc and
sccurity ... .
n .a Novcmbcr, thc Council adoptcd Rcsolution .,,, to which a Ministcrial
lcvcl dcclaration on tcrrorism was attachcd. Tc dcclaration brandcd intcrna
tional tcrrorism onc ol thc most scrious thrcats to intcrnational pcacc and sccu
rity in thc twcntyrst ccntury, dcclarcd it a challcngc to all Statcs and to all
ol humanity, rcarmcd thc Councils uncquivocal condcmnation ol all acts,
mcthods and practiccs ol tcrrorism as criminal and unjustiablc, rcgardlcss ol
thcir motivation, in all thcir lorms and manilcstations, whcrcvcr and by whom
cvcr committcd, and callcd on all Statcs to intcnsily thcir corts to climinatc
thc scourgc ol intcrnational tcrrorism.
+
Sincc thcn, thc Sccurity Council has
charactcrizcd tcrrorist attacks as thrcats to intcrnational pcacc and sccurity with
.a SC Rcs. .6 (Scpt. .a, acc.).
. SC Rcs. ., (Scpt. a, acc.). Tc rcsolution rcarmcd Rcsolution .,, as wcll as
SC Rcsolution .a6 (ct. ., .), which had |u|ncquivocally condcmn|cd|all acts,
mcthods and practiccs ol tcrrorism as criminal and unjustiablc, rcgardlcss ol thcir
motivation, in all thcir lorms and manilcstations, whcrcvcr and by whomcvcr com
mittcd, in particular thosc which could thrcatcn intcrnational pcacc and sccurity.
Scc also SC Rcs. . ( Jan. .,, acc), SC Rcs. 66 (ct. , acc), SC Rcs. .a6 ( Jan.
c, acc), SC Rcs.. (Mar. a6, acc), and SC Rcs..6., ( July a, acc).
. SC Rcs. .,, (Nov. .a, acc.). !n acc, thc Council, mccting at thc Forcign Ministcr
Lcvcl, adoptcd a similar dcclaration. SC Rcs. .6 ( Jan. ac, acc). At thc acc
Sccurity Council Summit, Rcsolution .6a (Scpt. ., acc) was adoptcd, again call
ing on Mcmbcr Statcs to intcnsily thcir domcstic and intcrnational corts to combat
tcrrorism.
161 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
grcat rcgularity: 8ali (acca),
+
Moscow (acca),
+6
Kcnya (acca),
+
8ogot (acc),
+8
!stanbul (acc),
+
Madrid (acc),
:o
London (acc),
:+
and !raq (acc).
::
!t is, thcrclorc, irrclutablc that intcrnational tcrrorism constitutcs a qualily
ing condition prcccdcnt to Articlc a action. n rcpcatcd occasions, thc Council,
cxcrcising its Chaptcr \!! powcrs, has cncouragcd, and somctimcs rcquircd, Statcs
to coopcratc in combating intcrnational tcrrorism. Most notably, in Rcsolution
.,, it obligcd thcm to, inter alia, prcvcnt thc nancing ol tcrrorism, criminalizc
thc collcction ol lunds lor tcrrorist purposcs, lrcczc thc nancial asscts ol anyonc
who participatcs in, or lacilitatcs, tcrrorism, and takc any stcps ncccssary to prc
vcnt tcrrorist acts, including passing carlywarning inlormation to othcr Statcs.
rawing on thc rcccnt Taliban cxpcricncc, thc Rcsolution additionally instructcd
Statcs to |r|clrain lrom providing any lorm ol support, activc or passivc, to cnti
tics or pcrsons involvcd in tcrrorist acts, including by supprcssing rccruitmcnt
ol mcmbcrs ol tcrrorist groups and climinating thc supply ol wcapons to tcr
rorists, |d|cny salc havcn to thosc who nancc, plan, support, or commit tcr
rorist acts, or providc salc havcns, |p|rcvcnt thosc who nancc, plan, lacilitatc or
commit tcrrorist acts lrom using thcir rcspcctivc tcrritorics lor thosc purposcs
against othcr Statcs or thcir citizcns, and |c|nsurc that any pcrson who par
ticipatcs in thc nancing, planning, prcparation or pcrpctration ol tcrrorist acts
or in supporting tcrrorist acts is brought to justicc and cnsurc that, in addition
to any othcr mcasurcs against thcm, such tcrrorist acts arc cstablishcd as scrious
criminal ocnccs in domcstic laws and rcgulations and that thc punishmcnt duly
rcccts thc scriousncss ol such tcrrorist acts.
:
Although thc Sccurity Council has ncvcr cxprcssly mandatcd thc usc ol
lorcc in rcsponsc to tcrrorism, it has takcn mcasurcs short ol that rcmcdy. For
instancc, thc Council dircctcd nonlorcclul sanctions against both Libya and
Sudan during thc .cs lor thcir support ol tcrrorism.
:
And in . it imposcd
sanctions on thc Taliban bccausc, among othcr rcasons, thc rcgimc was providing
salc havcn to sama bin Ladcn and allowing him and his associatcs to opcratc a
nctwork ol tcrrorist training camps lrom Talibancontrollcd tcrritory and to usc
Alghanistan as a basc lrom which to sponsor intcrnational tcrrorist opcrations.
:
. SC Rcs. . (ct. ., acca).
.6 SC Rcs. .c (ct. a, acca).
., SC Rcs. .c (cc. ., acca).
. SC Rcs. .6 (Fcb. ., acc).
. SC Rcs. ..6 (Nov. ac, acc).
ac SC Rcs. .c (Mar..., acc).
a. SC Rcs. .6.. ( July ,, acc).
aa SC Rcs. .6., (Aug. , acc).
a SC Rcs. ., (Scpt. a, acc.).
a SC Rcs. , (Mar. ., .a) (Libya), S.C. Rcs. .c (Apr. a, .6) (Sudan).
a SC Rcs. .a6, (ct. ., .).
162 Michael N. Schmitt
Tc sanctions includcd a ban on ights to and lrom Alghanistan and an intcr
national lrcczc on Taliban asscts. Furthcr sanctions wcrc imposcd in accc and a
sanctions monitoring mcchanism was cstablishcd in acc..
:6
Fcw would contcst thc powcr ol thc Sccurity Council to takc thc lurthcr
stcp ol authorizing lorcc to countcr tcrrorism, should it so dccm ncccssary. !t
is important to undcrstand that thc Council cnjoys unconditional authority to
dctcrminc both whcn a situation constitutcs a thrcat, brcach, or act ol aggrcs
sion and whcthcr to mandatc thc usc ol lorcc in rcsponsc. ncc thc Council
grants a mandatc, it is irrcvcrsiblc cxccpt by dccision ol thc Council itscll or upon
occurrcncc ol a tcrmination condition, such as a ccssation datc, sct lorth in thc
Rcsolution in qucstion.
:
No rcvicw mcchanism cxists to ccctivcly challcngc thc
Councils dccision.
Tis bcing so, it would bc cntircly within thc Sccurity Councils prcrogativc
to dctcrminc that any tcrrorist rclatcd action amountcd to a thrcat to intcrna
tional pcacc and sccurity ncccssitating a lorcclul rcsponsc. As an cxamplc, lrom
. through acc., thc Council lrcqucntly ccnsurcd thc Taliban rcgimc ovcr tcr
rorism rclatcd issucs.
:8
At any timc during that pcriod, thc Council could havc
authorizcd thc usc ol lorcc against thc Taliban, cithcr to cocrcc thc rcgimc into
compliancc with its wishcs or to rcmovc it lrom powcr. !t clcctcd to not takc such
a dramatic stcp, cvcn altcr thc attacks ol Scptcmbcr ..
th
. 8ut thc point is that thc
Council cnjoycd thc discrction to do so and, in thc luturc, it may opt to cxcrcisc
said powcr in thc lacc ol transnational tcrrorism posing catastrophic risks to thc
global community.
B Self-Defence
Vhcn thc Unitcd Statcs, Unitcd Kingdom and othcr Statcs attackcd Alghanistan
in acc., thcy avcrrcd sclldclcncc as thc opcrations lcgal basis. Sclldclcncc con
stitutcs thc sccond cxprcss cxccption to thc Chartcr prohibition on thc usc ol
a6 SC Rcs. . (cc. ., accc), SC Rcs. .6 ( July c, acc.).
a, An cxamplc ol cxpiration involvcd thc UN Prcvcntivc cploymcnt Forcc
(UNPRP) in thc Formcr Yugoslav Rcpublic ol Maccdonia. !ts mandatc, ini
tially sct out in SC Rcs. (Mar. ., .), cxpircd on Fcbruary a, .. China
vctocd thc rcsolution sccking cxtcnsion, a movc widcly rcgardcd as rctaliation lor
Maccdonias cstablishmcnt ol diplomatic rclations with Taiwan.
A rcsolution may also lall into dcsuctudc whcn circumstanccs havc so changcd that
thc undcrlying logic and purposc ol thc rcsolution no longcr rcsonatc. Howcvcr,
abscnt that condition or a ncw rcsolution rcpudiating thc original rcsolution a prc
sumption ol continuity is plausiblc. Scc Adam Robcrts, La. and the Use of Force in
Iraq, Suvviv~i, Junc acc, at ., .
a SC Rcs. .. (Aug. a, .), SC Rcs. .a. (cc. , .), SC Rcs. .a6, (ct. ., .),
SC Rcs. . (cc. ., accc), SC Rcs. .6 ( July c, acc.).
163 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
lorcc. A lorm ol scllhclp in intcrnational law, it is a customary intcrnational law
norm codicd in Articlc . ol thc Unitcd Nations Chartcr.
Nothing in thc prcscnt Chartcr shall impair thc inhcrcnt right ol individ
ual or collcctivc sclldclcncc il an armcd attack occurs against a Mcmbcr ol
thc Unitcd Nations, until thc Sccurity Council has takcn mcasurcs ncccssary
to maintain intcrnational pcacc and sccurity. Mcasurcs takcn by Mcmbcrs in
thc cxcrcisc ol this right ol sclldclcncc shall bc immcdiatcly rcportcd to thc
Sccurity Council and shall not in any way acct thc authority and rcsponsibil
ity ol thc Sccurity Council undcr thc prcscnt Chartcr to takc at any timc such
action as it dccms ncccssary in ordcr to maintain or rcstorc intcrnational pcacc
and sccurity.
Notc that sclldclcncc may bc cxcrciscd individually or collcctivcly. Sincc not cvcry
Statc participating in F had bccn attackcd on Scptcmbcr ..
th
, thc Coalition
opcrations launchcd on ctobcr ,
th
amountcd to both collcctivc dclcncc and
individual sclldclcncc.
pcration nduring Frccdom was not thc rst instancc ol thc Unitcd Statcs
claiming sclldclcncc as a right in lorcclully countcring tcrrorism, although in
prcvious dccadcs it typically addrcsscd transnational tcrrorism through thc prism
ol law cnlorccmcnt.
:
Tc intcrnational rcaction to such asscrtion ol sclldclcncc
has cvolvcd stcadily, an cvolution that rcccts a clcar shilt in thc normativc cxpcc
tations rcgarding cxcrcisc ol thc right.
Rccall pcration l orado Canyon in .6, mcntioncd at thc outsct ol
this articlc. Following thc attack, Prcsidcnt Rcagan announccd thc Unitcd Statcs
had actcd dclcnsivcly: Sclldclcnsc is not only our right, it is our duty. !t is thc
purposc bchind thc mission undcrtakcn tonight a mission lully consistcnt with
Articlc . ol thc UN Chartcr.
o
As notcd, thc intcrnational community gcncrally
balkcd at this justication.
Tc Unitcd Statcs again claimcd thc right to rcact to tcrrorism in scll
dclcncc whcn it uncovcrcd an assassination plot against lormcr Prcsidcnt Gcorgc
a !n ., Prcsidcnt Gcorgc H.V. 8ush clcctcd not to rcspond militarily whcn tcr
rorists blcw up Pan Amcrican ight .c ovcr Lockcrbic, Scotland. a,c dicd in thc
attack. !nstcad, thc Unitcd Statcs mobilizcd intcrnational prcssurc that lcd to prosc
cution by a Scottish court sitting in thc Ncthcrlands. xtradition and criminal pros
ccution ol thosc involvcd in thc Vorld Tradc Ccntcr bombing, particularly Shcik
mar Abdcl Rahman, was thc choscn coursc ol action.
c Prcsidcnt Ronald Rcagan, Addrcss to thc Nation (Apr. ., .6), in vv~v::vx:
ov S:~:v 8uiiv:ix, Junc .6, at .a. Scc also, Vhitc Housc Statcmcnt, in
vv~v::vx: ov S:~:v 8uiiv:ix, Junc .6, at .. A suggcstion that thc motivc was
rctaliation crcatcd somc conlusion: Scvcral wccks ago in Ncw rlcans, ! warncd
Coloncl Qadha wc would hold his rcgimc accountablc lor any ncw tcrrorist attacks
launchcd against Amcrican citizcns. Morc rcccntly, ! madc it clcar wc would rcspond
as soon as wc dctcrmincd conclusivcly who was rcsponsiblc.....
164 Michael N. Schmitt
8ush in .. !n rcporting to thc Sccurity Council that US lorccs had rcplicd by
launching cruisc missilcs against !raqi intclligcncc lacilitics, Madclinc Albright,
US Ambassador to thc Unitcd Nations, statcd ! am not asking thc Council
lor any actionbut in our judgmcnt cvcry mcmbcr hcrc today would rcgard an
assassination attcmpt against its lormcr hcad ol statc as an attack against itscll
and would rcact.
+
!ntcrnational rcaction was ccrtainly morc mutcd than it had
bccn in rcsponsc to l orado Canyon, a lact no doubt inucnccd by !raqs
status as an intcrnational pariah in thc altcrmath ol cvcnts that had prccipitatcd
thc First Gull Var, as wcll as that nations noncompliancc with thc tcrms ol thc
ccascrc.
!n ., thc Unitcd Statcs again claimcd a right to usc dclcnsivc lorcc lol
lowing thc bombings ol US cmbassics in Nairobi and arcsSalaam. Albright,
now Sccrctary ol Statc, announccd that |!|l wc had not takcn this action, wc
would not havc bccn cxcrcising our right ol sclldclcnsc ... .
:
A numbcr ol Statcs,
including !ran, !raq, Libya, Pakistan, and Russia, condcmncd thc rcsponsc, which
consistcd ol cruisc missilc strikcs against tcrrorist camps in Alghanistan and a
pharmaccutical plant in Sudan allcgcdly ticd to tcrrorism.
Howcvcr, a strcam ol
criticism distinguishing bctwccn thc two targcts lorcshadowcd a shilt in intcr
national normativc cxpcctations rcgarding lorcclul Statc rcsponscs to transna
tional tcrrorism. Tc Lcaguc ol Arab Statcs, lor cxamplc, criticiscd thc strikc into
Sudan whilc ocring no commcnt on that against targcts in Alghanistan.
At
thc Unitcd Nations, Sudan, thc Group ol Alrican Statcs, thc Arab Lcaguc, and
thc Group ol !slamic Statcs askcd thc Sccurity Council to invcstigatc thc Sudan
attack, but rcmaincd silcnt ovcr thc companion opcrations against Alghanistan
bascd targcts.
Tc
Unitcd Nations Sccurity Council continucd to adopt rcsolution altcr rcsolution
rcarming thc right to sclldclcncc, thcrcby implicitly acccpting thc Coalition
opcrations as lcgitimatc and lawlul.
Tc cavcat
ol occupicd tcrritory asidc, though, tcrrorism occurring wholly within thc Statc
docs not implicatc thc right ol sclldclcncc. Rathcr, it lalls within thc purvicw ol
domcstic criminal law and, in ccrtain circumstanccs, thc law ol nonintcrnational
armcd conict.
Te Nature of an rmed ttack: !t is now clcar that tcrrorists may launch
armcd attacks as that phrasc is undcrstood in thc Articlc . contcxt. Howcvcr,
this lcavcs opcn thc qucstion ol what constitutcs an armcd attack.
Articlc a() prohibits ccrtain uscs ol lorcc, whcrcas thc Articlc . condi
tion prcccdcnt is an armcd attack. Tc distinction is constitutivcly logical. Tc
Chartcr was mcant to crcatc an organization and sct norms that would savc
succccding gcncrations lrom thc scourgc ol war.
!n acc, thc
Court, in Case Concerning Oil Platforms, rclcrrcd approvingly to thc most gravc
lorms approach.
8
Tc Nicaragua Court lound that arming gucrrillas and providing thcm
logistic support might bc a usc ol lorcc, but did not constitutc an armcd attack.
As notcd, it also statcd that armcd attacks wcrc actions ol particular scalc and
cccts, distinguishing thcm lrom mcrc lronticr incidcnts(s),
6o
a distinction
Prolcssor instcin lamously dismisscs.
|U|nlcss thc scalc and cccts arc triing, bclow thc dc minimis thrcshold, thcy
do not contributc to a dctcrmination whcthcr an armcd attack has unloldcd.
Tcrc is ccrtainly no causc to rcmovc smallscalc armcd attacks lrom thc spcc
trum ol armcd attacks.
6+
!n thc contcxt ol StatconStatc hostilitics, thcrc is much to rccommcnd Prolcssor
instcins rcjcction ol thc Courts suggcstion that violcncc must risc abovc a ccr
tain lcvcl.
6:
Yct, thc Courts scalc and cccts critcrion makcs scnsc in thc casc ol
nonStatc actors. For Statcs, thc only options in thc lacc ol attack arc sclldclcncc
(including thc collcctivc variant) and Sccurity Council cnlorccmcnt action. Sincc
thc Council has a lcss than august rccord in coming to thc rcscuc ol Statcs undcr
, Nicaragua, supra notc ., para. ...
Oil Platforms (!ran v. US), Mcrits, acc !CJ Rcp. .6., para. . (Nov. 6), a
!x:vvx~:iox~i Lvc~i M~:vvi~is, at para. ..
Nicaragua, supra notc ., para. ..
6c Id.
6. instcin, supra notc ,, at ..
6a nc wondcrs il thc criticism would havc bccn tcmpcrcd had thc Court includcd a
Statc intcnt rcquircmcnt. At thc risk ol ovcrsimplilying, an armcd attack is an intcn
tional military attack or othcr intcntional act rcsulting in, or dcsigncd to rcsult in,
immcdiatc violcnt conscqucnccs (such as a computcr nctwork attack causing physical
damagc). |For a discussion ol this point, scc Michacl N. Schmitt, Computer Net.ork
ttack and Use of Force in International La.: Toughts on a Normati.e Frame.ork, ,
Coiu:ni~ Jouvx~i ov Tv~xsx~:iox~i L~w , (.).| \icwcd in this way,
thc distinction bctwccn training gucrrillas and scnding thcm out to do oncs bid
ding makcs scnsc. !t also cxplains thc Courts rathcr curious, and ccrtainly conlus
ing, rclcrcncc to lronticr incidcnts. Fronticr incidcnts arc usually bricl cncountcrs
bctwccn lorccs lacing cach othcr across a bordcr. Tcy scldom rcprcscnt a conscious
stratcgic dccision to initiatc intcrnational armcd conict. Rathcr, thcy tcnd to bc
unplanncd or, at most, communicativc in naturc. !n thc lattcr casc, thc intcnt is oltcn
to a.oid conict by signalling thc scriousncss ol thc disputc at hand. l coursc, thc
lact that an incidcnt docs not amount to an armcd attack in thc Articlc . scnsc docs
not dcprivc thosc lacing thc violcncc ol thcir right to dclcnd thcmsclvcs in individ
ual sclldclcncc.
171 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
attack, thc notion ol limiting a Statcs rccoursc to dclcnsivc lorcc is disquicting.
8y contrast, a rathcr robust law cnlorccmcnt rcgimc cxists to dcal with minor
attacks by tcrrorists and othcr nonStatc actors. Tis bcing so, thc Courts scalc
and cccts rcquircmcnt is lar lcss worrisomc in thc casc ol tcrrorism.
Tc right to act in sclldclcncc against tcrrorists is not unlcttcrcd. All
dclcnsivc uscs ol lorcc, including thosc dircctcd against nonStatc actors, must
mcct thrcc critcria ncccssity, proportionality, and immcdiacy that dcrivc
lrom thc .
th
Ccntury Carolinc Casc and thc cnsuing cxchangc ol diplomatic
notcs bctwccn thc Unitcd Statcs and Unitcd Kingdom. Tcrc, Sccrctary ol Statc
anicl Vcbstcr opincd that dclcnsivc actions must rccct a ncccssity ol scll
dclcnsc, instant, ovcrwhclming, lcaving no momcnt lor dclibcration.
6
Tc !CJ
has rccognizcd thc applicability ol thc rst two critcria on multiplc occasions. !n
Nicaragua, thc Court conrmcd thcir status as customary intcrnational law.
6
!t
cxtcndcd thcm to Articlc . sclldclcncc in thc advisory opinion, Legality of the
Treat or Use of Nuclear !eapons.
6
Lcst thcrc bc any doubt, thc Court conrmcd
thc rcquircmcnts in its Oil Platforms judgcmcnt.
66
Te Necessity Criterion: Tc rst ol thc principlcs, ncccssity, rcquircs thcrc to
bc no viablc option othcr than lorcc to dctcr or dclcat thc armcd attack. Tis is
a critical critcrion in thc contcxt ol tcrrorism. !l lawcnlorccmcnt mcasurcs (or
othcr mcasurcs short ol sclldclcncc) will assurcdly loil a tcrrorist attack on their
o.n, lorcclul mcasurcs in sclldclcncc may not bc takcn. Tc issuc is not whcthcr
law cnlorccmcnt ocials arc likcly to bring thc tcrrorists to justicc, but instcad
whcthcr, with a rcasonablc dcgrcc ol ccrtainty, law cnlorccmcnt actions alonc will
protcct thc targct(s) ol thc tcrrorism. For instancc, il mcmbcrs ol a tcrrorist ccll
can condcntly bc arrcstcd, that action must bc takcn in licu ol a military attack
dcsigncd to kill its mcmbcrs. Factors such as risk ol thc tcrrorists cluding capturc
and thc dcgrcc ol dangcr involvcd in thc capturc arc ccrtainly rclcvant.
Not only must thcrc bc condcncc ol succcss, law cnlorccmcnt must alonc
bc capablc ol dctcrring or dclcating thc thrcat (or ongoing attack) bclorc actions
in sclldclcncc arc rulcd out. Tc attacks ol Scptcmbcr ..
th
triggcrcd thc most
intcnsivc intcrnational law cnlorccmcnt opcrations in history, largcly targctcd
at al Qacda and its aliatcs. Yct, al Qacda rcmaincd activc, launching numcr
ous spcctacular attacks in thc wakc ol /... Tis bcing so, it is plain that military
opcrations launchcd in sclldclcncc against thc organization and its opcrativcs
mct thc ncccssity critcrion.
6 c 8vi:isn a Fovvicx S:~:v P~vvvs . (.), reprinted in R.Y. Jcnnings, Te
Caroline and McLeod Cases, a A:vvic~x Jouvx~i ov !x:vvx~:iox~i L~w a,
(.).
6 Nicaragua, supra notc ., para. ..
6 Legality of the Treat or Use of Nuclear !eapons, Advisory pinion, .6 !CJ Rcp. aa6,
( July ), at para. ..
66 il Platlorms, supra notc , paras. , ,,, ,6.
172 Michael N. Schmitt
Te Proportionality Criterion: Tc proportionality critcrion addrcsscs thc
issuc ol how much lorcc is pcrmissiblc in sclldclcncc. !t is widcly misundcr
stood. Proportionality docs not rcquirc any cquivalcncy bctwccn thc attackcrs
actions and dclcndcrs rcsponsc. Such a rcquircmcnt would cvisccratc thc right ol
sclldclcncc, particularly in thc tcrrorist contcxt. For instancc, tcrrorists may con
duct a scrics ol isolatcd bombings, yct thc only way to prccludc lollowon attacks,
sincc surprisc is thcir modus operandi, would bc major air strikcs against thcir basc
camps. Surcly, it would bc absurd to suggcst that thc grcatcr usc ol lorcc by thc
victim Statc is unlawlul.
!nstcad, proportionality limits dclcnsivc lorcc to that rcquircd to rcpcl thc
attack. Tis may bc lcss or morc than uscd in thc armcd attack that actuatcd thc
right to sclldclcncc, in csscncc, thc dctcrmination is an opcrational onc. Tc
availability ol othcr options, cspccially law cnlorccmcnt, would in part dctcrminc
thc pcrmissiblc quantum and naturc ol thc lorcc cmploycd. To thc cxtcnt that law
cnlorccmcnt is likcly to prcvcnt lollowon attacks, thc acccptability ol largcscalc
military opcrations drops accordingly.
Te Immediacy Criterion: Tc third critcrion, immcdiacy, imposcs a tcmporal
limitation on sclldclcncc, both in advancc ol an attack and lollowing onc. Tc
rst issuc is whcn docs thc right to act in sclldclcncc maturc: Prolcssor instcin
has conspicuously criticizcd notions ol a right to anticipatory sclldclcncc, i.c.,
dclcnsivc actions in anticipation ol an attack. !nstcad, hc asscvcratcs that such
actions may bc intcrccptivc at most. Prolcssor instcin cxplains that an intcr
ccptivc strikc countcrs an armcd attack which is in progrcss, cvcn il it is still
incipicnt: thc blow is immincnt and practically unavoidablc.
6
Prolcssor instcins vicw ol in progrcss is markcdly broad.
Tc crux ol thc issuc, thcrclorc, is not who rcd thc rst shot but who cmbarkcd
upon an apparcntly irrcvcrsiblc coursc ol action, thcrcby crossing thc lcgal
Rubicon. Tc casting ol thc dic, rathcr than thc actual opcning ol rc, is what
starts thc armcd attack. !t would bc absurd to rcquirc that thc dclcnding Statc
should sustain and absorb a dcvastating (pcrhaps a latal) blow, only to provc
thc immaculatc conccption ol sclldclcncc.
68
!t is so broad that it cmbraccs many actions that othcr scholars might wcll labcl
anticipatory.
Asccrtaining whcn thc dic has bccn cast in instanccs ol tcrrorism will
provc lar morc challcnging than in thc casc ol attacks launchcd by Statcs. Vith
attacks by Statcs, thcrc arc oltcn transparcnt activitics ol indications and warn
ings (!V) valuc: hcightcncd political tcnsions, callup ol rcscrvc lorccs, movc
mcnt ol lorccs towards thc bordcr, standdown ol air units, warships putting to
6, instcin, supra notc ,, at ...
6 Id.
173 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
sca, ctc. Although it may bc impossiblc to know thc prccisc momcnt thc blow
will lall, thc opponcnt will usually havc a rough scnsc ol whcn thc attackcr might
cross thc Rubicon. Tis is cspccially truc in an cra ol global mass mcdia, instant
communications, and commcrcially availablc satcllitc imagcry.
Tcrrorism aords no such transparcncy. n thc contrary, a dcning char
actcristic ol tcrrorist attacks is thc abscncc ol warning. As thc targct Statc usu
ally cnjoys a dramatic advantagc in lorcc capabilitics, surprisc is typically thc
only option availablc to countcr thc tcrrorist groups asymmctrical disadvantagc.
minously, givcn growing tcrrorist acccss to wcapons ol mass dcstruction, mis
calculation as to whcn a tcrrorist group is cntcring thc Rubicons watcrs may
provc catastrophic.
Tis was a point cxprcssly madc in thc acca US National Sccurity Stratcgy.
!n that documcnt, Prcsidcnt 8ush argucd that thc conucncc ol transnational
tcrrorism and wcapons ol mass dcstruction ncccssitatcd a rcthinking ol thc con
ccpt ol anticipatory sclldclcncc
For ccnturics, intcrnational law rccognizcd that nations nccd not sucr an
attack bclorc thcy can lawlully takc action to dclcnd thcmsclvcs against lorccs
that prcscnt an immincnt dangcr ol attack. Lcgal scholars and intcrnational
jurists oltcn conditioncd thc lcgitimacy ol prccmption on thc cxistcncc ol an
immincnt thrcat most oltcn a visiblc mobilization ol armics, navics, and air
lorccs prcparing to attack.
Vc must adapt thc conccpt ol immincnt thrcat to thc capabilitics and
objcctivcs ol todays advcrsarics. Roguc statcs and tcrrorists do not scck to
attack us using convcntional mcans. Tcy know such attacks would lail. !nstcad,
thcy rcly on acts ol tcrror and, potcntially, thc usc ol wcapons ol mass dcstruc
tion wcapons that can bc casily conccalcd, dclivcrcd covcrtly, and uscd with
out warning.
.
Tc Unitcd Statcs has long maintaincd thc option ol prccmptivc actions
to countcr a sucicnt thrcat to our national sccurity. Tc grcatcr thc thrcat, thc
grcatcr is thc risk ol inaction and thc morc compclling thc casc lor taking
anticipatory action to dclcnd oursclvcs, cvcn il unccrtainty rcmains as to thc
timc and placc ol thc cncmys attack. To lorcstall or prcvcnt such hostilc acts
by our advcrsarics, thc Unitcd Statcs will, il ncccssary, act prccmptivcly.
6
As a practical mattcr, thc Prcsidcnt was, ol coursc, corrcct. !n thc uniquc circum
stanccs ol a.
st
ccntury tcrrorism, targct Statcs will scldom know whcrc and whcn
an attack is to occur until it is too latc. Yct, it would bc loolhardy to wait until thc
launch ol a particular tcrrorist strikc bclorc acting in sclldclcncc.
6 Tc Vhitc Housc, Tc National Sccurity Stratcgy ol thc Unitcd Statcs ol Amcrica
(Scpt. acca), at ..
174 Michael N. Schmitt
How, thcn, should thc lcgality ol intcrccptivc (anticipatory) countcrtcr
rorist actions bc mcasurcd: !ntcrnational law must always bc intcrprctcd in light
ol thc contcxt to which it is bcing applicd and with scnsitivity to thc undcrlying
purposc ol thc norm in qucstion. !n particular, as a lorm ol scllhclp, sclldclcncc
has to bc construcd in a way that rcndcrs it mcaninglul, scllhclp must hclp.
!n thc contcxt ol tcrrorism, it is csscntial to bcar thc vcry raison detre ol tcr
rorist groups conducting violcnt attacks on Statcs and/or socictics in mind
whcn asscssing thc propricty ol anticipatory action. vcn though thc timing and
location ol an attack may bc unccrtain, thcrc is ncar ccrtainty that an attack
will bc conductcd sincc that is thc groups vcry purposc. Tis lact distinguishcs
armcd attacks conductcd by Statcs lrom thosc mountcd by tcrrorists. Statcs pcr
lorm usclul lunctions in thc intcrnational systcm, indccd, thc global architcc
turc rclics on Statcs. Tat bcing so, a rebuttable prcsumption that Statcs will act
in accordancc with intcrnational norms, cspccially thosc govcrning thc usc ol
lorcc, attachcs hcncc thc normativc conccrns about acting prccipitously in scll
dclcncc.
Such prcsumptions cannot logically attach to tcrrorist groups. n thc con
trary, an irrebutable prcsumption that thc organization will act outsidc thc law
should bc at play. Tis rcality shapcs thc intcrprctation ol what it mcans to say a
tcrrorist group has crosscd thc Rubicon. Undcr such circumstanccs, it is rcason
ablc to charactcrizc thc convcrgcncc ol two lactors as thc launch ol a tcrrorist
attack justilying intcrccptivc (anticipatory) action: .) lormation ol a group with
an avowcd purposc ol carrying out attacks, and a) acquisition (or matcrial stcps
towards thc acquisition) ol thc mcans to carry out such an attack. A combination
ol will and capability must coincidc.
Lcst thcrc bc conccrn this standard scts thc thrcshold lor action in scll
dclcncc too low, rccall that immcdiacy is but onc ol thc thrcc critcria applica
blc in dclcnsivc actions. !n particular, ncccssity, with its rcquircmcnt that law
cnlorccmcnt not succ to prcvcnt tcrrorist acts, scrvcs as a brakc on prccipitous
actions by thc Statc. Combining thcsc rcquircmcnts, intcrccptivc (anticipatory)
sclldclcncc against tcrrorists is appropriatc and lawlul whcn a tcrrorist group
harbours both thc intcnt and mcans to carry out attacks, thcrc is no ccctivc
altcrnativc lor prcvcnting thcm, and thc Statc must act now or risk missing thc
opportunity to thwart thc attacks. !t is action during thc last viablc window ol
opportunity a Statc has to dclcnd itscll. !n thc shadowy and sccrctivc world ol
transnational tcrrorism, that window can closc long bclorc a tcrrorist strikc takcs
placc. Statcd bluntly, whcn thc opportunity prcscnts itscll, it may bc ncccssary,
and lawlul, to kill a tcrrorist that you cannot capturc, cvcn though you do not
know prcciscly whcn and whcrc hc or shc will strikc.
Tc othcr sidc ol thc coin is thc qucstion ol whcn tcrrorists may bc struck
after thcy act. Tis is an important qucry, lor, in most tcrrorist acts, thc attackcrs
cscapc. Vhcn thcy do not, as in thc casc ol suicidc bombings, thc organization ol
which thcy arc mcmbcrs livcs on.
175 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
Prolcssor instcin has sagcly contcndcd that although |w|ar may not bc
undcrtakcn in sclldclcncc long altcr an isolatcd armcd attack, a war ol scll
dclcncc docs not havc to commcncc within a lcw minutcs, or cvcn a lcw days,
lrom thc original attack.||vcn whcn thc intcrval bctwccn an armcd attack
and a rccoursc to war ol sclldclcncc is longcr than usual, thc war may still bc
lcgitimatc il thc dclay is warrantcd by thc circumstanccs.
o
!n othcr words, hc
rcasonably suggcsts a tcst ol rcasonablcncss in light ol thc circumstanccs prcvail
ing at thc timc.
8ut this is a Statcccntric analysis. !t prcsumcs that at a ccrtain point scll
dclcncc is inappropriatc bccausc Statcs should dclcr to nonlorcclul mcans ol
scttling thcir disputcs. Such a prcsumption docs not apply to cascs ol transna
tional tcrrorism, thc tcrrorist group would disband il it did not intcnd to continuc
thc violcncc. Unlikc Statcs, and by dcnition, thc mcrc cxistcncc ol thc group
mcans thc disputc bctwccn it and thc Statc(s) will rcmain violcnt. Tc onc cxccp
tion is a tcrrorist group that morphs into a political organization, as somc havc
suggcstcd (too optimistically) Hamas is doing.
Tis bcing so, it docs not makc scnsc to trcat multiplc tcrrorist strikcs by
thc samc tcrrorist organization (or nctwork such as al Qacda) as isolatcd acts to
which thc law ol sclldclcncc applics scparatcly. Rathcr, it is morc appropriatc to
charactcrizc thcm as a continuous attack, much as individual and distinct tactical
cngagcmcnts coalcscc into a military campaign. Just as thcrc arc tactical pauscs
in military campaigns, so rclatcd tcrrorist attacks arc oltcn scparatcd by pcri
ods during which thc tcrrorist rcgroup and plan thcir ncxt attack. For instancc,
cxpcrts tracc attacks by al Qacda against US asscts back at lcast to thc carly .cs.
Sadly, thcy will likcly strctch somc distancc into thc luturc.
Considcrcd in this way, thc immcdiacy critcrion applics only to thc rst in
an anticipatcd scrics ol attacks. Tc rcmaindcr comprisc a continuing tcrrorist
campaign cntitling thc Statc to an cxtcndcd pcriod ol sclldclcncc. Tc critc
ria ol ncccssity and proportionality continuc to apply, lor mcasurcs such as law
cnlorccmcnt may rcmain viablc and usclul. !n this scnsc, a dclcnsivc war against
a tcrrorist group dicrs lrom an allout war ol sclldclcncc in rcsponsc to, c.g.,
a major invasion by thc military lorccs ol a ncighbouring Statc. !n thc lattcr casc,
thc application ol thc critcria ol ncccssity and proportionality dicrs, lor ncccs
sity is scllcvidcnt oncc thc attackcr crosscs thc bordcr and conccrns about pro
portionality rcccdc as thc Statcs survival is placcd at risk.
+
,c instcin, supra notc ,, at aaa.
,. Tc !ntcrnational Court ol Justicc hintcd at this point in its Nuclcar Vcapons
Advisory pinion: |T|hc Court is lcd to obscrvc that it cannot rcach a dcnitivc
conclusion as to thc lcgality or illcgality ol thc usc ol nuclcar wcapons by a Statc
in an cxtrcmc circumstancc ol sclldclcncc, in which its vcry survival would bc at
stakc. Nuclcar Vcapons, supra notc 6, para. ,.
176 Michael N. Schmitt
Te Situs of Counter-terrorist Operations: Morc scnsitivc than thc issuc ol
whcn countcrtcrrorist opcrations may bc mountcd is that ol whcrc thcy may
occur. bviously, a Statc may conduct thcm on its own tcrritory or thc tcrritory
ol anothcr Statc that has conscntcd. Tus, lor instancc, thc acca strikc against al
Qacda opcrativcs in Ycmcn with thc conscnt and coopcration ol Ycmcni intclli
gcncc was lawlul, at lcast as to its vcnuc.
:
Countcrtcrrorist opcrations may also
occur on thc high scas, lor it is acccptcd customary intcrnational law that Statcs
may cngagc in military action bcyond thc tcrritorial watcrs ol ncutral Statcs, so
long as thcy act with duc rcgard to thc rights ol othcrs.
8ut whcn can such opcrations bc mountcd .ithout thc conscnt on thc Statc
on which thcy takc placc: Tc dilcmma is that thc qucstion involvcs two con
icting intcrnational law rights, sclldclcncc on thc part ol thc victim Statc and
thc right ol tcrritorial intcgrity cnjoycd by thc Statc on which thc tcrrorists arc
locatcd. Tcrritorial intcgrity is a corc principlc ol intcrnational law, onc cxprcssly
codicd in Articlc a()s prohibition on thc usc ol lorcc. Tc sanctity ol bordcrs
prccludcs any nonconscnsual pcnctration ol anothcr sovcrcigns tcrritory.
n
thc othcr hand, sclldclcncc is also a corc right in intcrnational law codicd in
thc Chartcr. !t is dccmcd so ccntral to thc Statcbascd paradigm that Statcs arc
allowcd to usc lorcc to ccctuatc it.
!n asscssing thcsc two rclcvant aspccts ol intcrnational law, it is usclul to
rccall that whcn intcrnational law rights collidc, onc nccd not prcvail ovcr thc
othcr. Rathcr, an accommodation should bc sought bctwccn thcm that bcst maxi
mizcs and balanccs thcir rcspcctivc undcrlying purposcs.
Assumc lor thc sakc ol analysis that thc Statc whcrc thc tcrrorists arc locatcd
is not so complicit in thc tcrrorism that it may bc trcatcd as having conductcd thc
armcd attacks itscll, an issuc that will bc dcalt with latcr. Rathcr, it cithcr lacks
thc mcans to put an cnd to thc tcrrorist activitics on its soil or docs not havc thc
will to do so. !n thc lattcr casc, thc host Statc may sympathizc with thc groups
aims, bcnct lrom its prcscncc,
involvcd cxtratcrritorial sclldclcncc. Forccs undcr 8ritish command crosscd
into Ncw York whcn 8ritish ocial protcstations that rcbcls wcrc bcing sup
portcd lrom US tcrritory during thc Mackcnzic Rcbcllion ol ., lcll on dcal
Amcrican cars. As notcd by Lord Ashburton, who was ncgotiating with US
Sccrctary ol Statc anicl Vcbstcr rcgarding thc aair,
! might salcly put it to any candid man, acquaintcd with thc cxisting statc ol
things, to say whcthcr thc military commandcr in Canada had thc rcmotcst
rcason, on thc ath day ol cccmbcr, to cxpcct to bc rclicvcd lrom this statc ol
sucring by thc protcctivc intcrvcntion ol any Amcrican authority. How long
could a Govcrnmcnt, having thc paramount duty ol protccting its own pcoplc,
bc rcasonably cxpcctcd to wait lor what thcy had thcn no rcason to cxpcct:
8
A contcmporary cxamplc ol taking thc battlc to thc cncmy in lorcign tcrri
tory without thc conscnt ol thc tcrritorial sovcrcign was, ol coursc, pcration
nduring Frccdom. For thc sakc ol analysis, put asidc thc issuc thc Talibans
involvcmcnt in thc attacks against thc Unitcd Statcs and whcthcr it justicd
military action dircctly against thc Taliban. Tat issuc will bc addrcsscd in duc
,6 instcin, supra notc ,, at a,.
,, For instancc, thc !ntcrnational Military Tribunal at Nurcmbcrg citcd thc standard
whcn rcjccting thc argumcnt that Gcrmany invadcd Norway in sclldclcncc in .c.
!ntcrnational Military Tribunal at Nurcmbcrg, Judgcmcnt (.6), . !MT .,., ac,.
, R.Y. Jcnnings, Te Caroline and McLeod Cases, a A:vvic~x Jouvx~i ov
!x:vvx~:iox~i L~w a, a (.) |quoting Lord Ashburton to Mr. Vcbstcr, July
a, .a, Parliamcntary Papcrs (.), \ol. LX!, 8ritish & Forcign Statc Papcrs, vol.
c, at .|.
178 Michael N. Schmitt
timc. !nstcad, and somcwhat articially, considcr only thc pcnctration ol Alghan
tcrritory to attack al Qacda.
Tc Sccurity Council had, on rcpcatcd occasions prior to /.., dcmandcd
that thc Taliban policc its own tcrritory. !n Rcsolution .a6, ol ctobcr ., lor
instancc, it insistcd that thc Taliban ccasc thc provision ol sanctuary and train
ing lor intcrnational tcrrorists and thcir organizations, takc appropriatc ccctivc
mcasurcs to cnsurc that thc tcrritory undcr its control is not uscd lor tcrrorist
installations and camps, or lor thc prcparation or organization ol tcrrorist acts
against othcr Statcs or thcir citizcns, and coopcratc with corts to bring indictcd
tcrrorists to justicc. !ncludcd was a spccic dcmand that thc Taliban turn ovcr
sama bin Ladcn.
c ralt Codc ol cnccs against thc Pcacc and Sccurity ol Mankind, |.| a Yv~v
8oox ov :nv !x:vvx~:iox~i L~w Co::issiox .c, UN oc. A/CN./SR.
A/./Add...
. cclaration ol Fricndly Rclations, supra notc ,.
a GA Rcs. /6c (cc. , .), anncxcd cclaration, paras. .
SC Rcs. ., (Scpt. a, acc.).
182 Michael N. Schmitt
Tus, an asscssmcnt ol thc lawlulncss ol pcnctrating bordcrs to conduct
antitcrrorism opcrations involvcs morc than a simplc balancing ol two con
icting intcrnational law rights. !t also cntails brcach (whcthcr intcntional or duc
to an inability to comply) ol a duty owcd othcr Statcs by thc Statc on whosc tcr
ritory thc tcrrorismrclatcd activitics arc occurring. Analysis will soon turn to thc
issuc ol whcn thc actions ol thc host Statc mcrit trcating that Statc as il it had
itscll conductcd an armcd attack. 8ut thc inaction ol that Statc in policing its
tcrritory is rclcvant to dctcrmining whcn its bordcrs may bc crosscd to conduct
countcrtcrrorist opcrations.
Limits on Cross-border Operations: Tc undcrstandablc hcsitancy to sanc
tion violation ol anothcr Statcs tcrritorial intcgrity must bc tcmpcrcd by thc lact
that doing so in sclldclcncc is only pcrmissiblc oncc that Statc has lailcd in its
duty to policc that tcrritory, cithcr volitionally or unavoidably. Givcn thc scrious
aront to tcrritorial intcgrity, thc right to cross thc bordcr must bc intcrprctcd
vcry narrowly. Tc victim Statc must makc a dcmand on thc host Statc to sat
islactorily curc thc situation (i.c., comply with thc duty dcscribcd abovc), and thc
lattcr must bc aordcd sucicnt opportunity to do so, at lcast to an cxtcnt con
sistcnt with thc rcalitics thc victim Statcs ccctivc dclcncc. !t may not strikc any
targcts ol thc host govcrnmcnt, nor anything clsc unconncctcd with thc tcrror
ist activity. !ndccd, il it docs so, it will havc committcd an armcd attack against
thc host Statc, which would in turn allow that Statc to lawlully usc lorcc against
thc intrudcrs in sclldclcnsc. l coursc, sincc thc Statc conducting thc opcration
is, to thc cxtcnt it rcmains within thc limitations, cxcrcising a lcgitimatc intcr
national law right, thc host Statc may not intcrlcrc with said opcrations. !l it
docs, that Statc commits an armcd attack, thcrcby pcrmitting thc countcrtcrrorist
opcration to cxpand to govcrnmcnt pcrsonncl and lacilitics constituting military
objcctivcs undcr intcrnational humanitarian law (sincc an intcrnational armcd
conict now cxists in light ol thc intcrstatc hostilitics).
Furthcr, thc intrusion must bc limitcd in timc, spacc, and purposc. As soon
as thc mcnacc has ccctivcly bccn quashcd, thc countcrtcrrorist units must with
draw. Furthcr, thc opcration must bc limitcd gcographically to thc minimum tcr
ritorial inlringcmcnt consistcnt with mission succcss. 8oth rcquircmcnts dcrivc
lrom thc principlc ol proportionality in thc law ol sclldclcncc. Finally, thc opcra
tion must bc intcndcd solcly to accomplish a countcrtcrrorist purposc. !t cannot,
lor instancc, bc a subtcrlugc dcsigncd to assist onc sidc in a civil war, intimidatc
thc host Statc, ctc. l coursc, il such a rcsult is thc concomitant conscqucncc ol
thc action, so bc it, but it cannot bc thc undcrlying purposc.
Tc Unitcd Statcs is conducting opcrations along thcsc lincs. At timcs, it
docs so with thc coopcration, or at lcast blcssing, ol thc Statc on whosc tcrri
tory thcy arc mountcd. For instancc, and as bricy mcntioncd carlicr, in acca,
a C!A opcratcd Prcdator unmanncd acrial vchiclc (UA\) launchcd a Hcllrc
missilc to dcstroy a vchiclc in which Qacd Scnyan alHarthi, a scnior alQacda
mcmbcr, was riding. AlHarthi had bccn involvcd in thc bombing ol thc USS
183 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
Colc in accc and, givcn his rolc in thc organization, was a kcy playcr in cur
rcnt and luturc opcrations.
Givcn
Ycmcni conscnt and thc clcar nccd to act dclcnsivcly, thc opcration mct thc cri
tcria outlincd abovc. AlHarthi was complicit in prcvious tcrrorist attacks and
surcly intcndcd to continuc opcrations against thc Unitcd Statcs, in that scnsc,
hc was cngagcd in an ongoing campaign, thcrcby rcndcring thc US strikc lcgiti
matc undcr thc immcdiacy critcrion. !t was ncccssary in that lcsscr altcrnativcs
such as law cnlorccmcnt wcrc not viablc at thc timc and thcrc was no ccrtainty
that latcr law cnlorccmcnt actions would havc put him bchind bars bclorc hc
could attack again. Finally, it was proportionatc, lor no lcsscr usc ol lorcc would
havc succd to kill or ncutralizc alHarti, nor was any practically possiblc in thc
circumstanccs.
Morc rcccntly, thc Unitcd Statcs conductcd air strikcs in Pakistan targcting
Ayman alZawahiri, al Qacdas sccond in command. Tc unsucccsslul January
acc6 opcrations, which killcd . civilians, sparkcd nationwidc protcsts. Pakistans
Prcsidcnt, Pcrvcz Musharral, condcmncd thc opcration, stating, !t is an issuc
ol our sovcrcignty and ol our pcoplcs scnsitiviticsVcrc against such strikcs.
Hc also dcnicd that Pakistan had providcd thc intclligcncc ncccssary to conduct
thcm.
6
Such claims must bc takcn with a grain ol salt. Musharral is conducting a
dclicatc balancing act bctwccn support lor US countcrtcrrorism corts and avoid
ancc ol domcstic unrcst and isolation in thc Muslim world. l coursc, although
Pakistans intclligcncc agcncics and military havc bccn coopcrating closcly with
thcir US countcrparts in thc war on tcrror, plausiblc dcniability is oltcn an intc
gral componcnt ol such involvcmcnt. !ndccd, rccall that Prcsidcnt 8ush visitcd
Pakistan in March, in part to dcmonstratc apprcciation lor Musharral s support.
Tis would havc bccn a strangc visit to havc madc il thc Unitcd Statcs had in lact
brazcnly violatcd Pakistani tcrritory.
Howcvcr, taking Prcsidcnt Musharral s public stancc at lacc valuc, thc
attack would ncvcrthclcss havc arguably lallcn within thc normativc lramcwork
sct lorth. Al Zawahiri is a highly clusivc linchpin in thc continuing al Qacda
campaign against thc Unitcd Statcs. pportunitics to takc him out rarcly
prcscnt thcmsclvcs, and, givcn thc rcmotcncss ol thc 8anjur rcgion, thc prospccts
ol a mounting a succcsslul opcration to capturc him wcrc slim to noncxistcnt.
Had thc Unitcd Statcs takcn thc timc to coordinatc its opcrations with Pakistan
(assuming lor thc sakc ol analysis that it did not), it would havc riskcd missing
Prole: li Qaed Senyan al-Harthi, 88C Ncws Vorld Rcport, Nov. , acca, at ncws.
bbc.co.uk/a/hi/middlc_cast/ac.stm.
Anthony workin, Te Yemen Strike, Nov. ., acca, at www.crimcsolwar/onncws/
ncwsycmcn.html.
6 Katrin 8cnnhold, Musharraf Condemns U.S. Strikes in Pakistan, !x:vvx~:iox~i
Hvv~ib Tvinuxv, Jan. a,, acc6, at ,.
184 Michael N. Schmitt
thc opportunity to act, which, apparcntly, it did in any cvcnt. Pakistans sccu
rity lorccs lackcd thc asscts to mount a timcly attack with high condcncc. As
Musharral himscll notcd whcn commcnting on thc aair: Vc cannot comparc
our capabilitics with thc U.S. Finally, thc usc ol a C!A controllcd Prcdator to
conduct thc attack was ccrtainly thc lcast invasivc option availablc.
Tat thc opcration was unsucccsslul is ol only slight rclcvancc. !n asscssing
thc lawlulncss ol military opcrations, thc crux ol thc issuc is thc rcasonablcncss ol
having actcd in thc circumstanccs bascd on inlormation rcasonably bclicvcd rcli
ablc at thc timc. Tcrc has bccn no convincing cvidcncc that thc Unitcd Statcs
bclicl that it had al Zawahiri in thc crosshairs was prccipitous or illrcasoncd. l
coursc, thcrc is thc mattcr ol thc rcsulting . civilian dcaths. Civilian dcaths arc
always tragic, but thc intcrnational humanitarian law principlc ol proportionality
acknowlcdgcs that thcy can bc unavoidablc. !n thc conduct ol hostilitics contcxt,
proportionality rcquircs that collatcral damagc to civilian objccts and incidcntal
injury to civilians causcd during military opcrations not to bc cxccssivc in rcla
tion to thc concrctc and dircct military advantagc anticipatcd to rcsult lrom thc
attack.
8
Al Zawahiri constitutcd a targct ol cnormous valuc in thc war on tcr
rorism, and although civilian dcaths arc tragic, Statc practicc has countcnanccd
lcvcls ol incidcntal injury in cxccss ol this in opcrations dircctcd against lcsscr
objcctivcs. Proportionality in this contcxt must not bc conluscd with thc jus ad
bellum principlc (discusscd abovc) that is onc critcrion lor sclldclcncc.
Critics will asscrt, lairly, that thc lramcwork suggcstcd lor crossbordcr
countcrtcrrorist opcrations is subjcctivc and, thcrclorc, ripc lor abusc. Vhilc thcy
arc corrcct, thc altcrnativc, clcvating tcrritorial intcgrity to a position ol uncon
ditioncd suprcmacy ovcr thc right to sclldclcncc, is inconsistcnt with thc rcali
tics ol a a.
st
ccntury bcsct by transnational tcrrorism in which thc prospcct ol thc
usc ol wcapons ol mass dcstruction by tcrrorists grows stcadily. Lcst it bc rcn
dcrcd obsolctc, law must bc intcrprctcd in light ol thc contcxt in which it is to bc
applicd, and with dclity to its corc purposc, in this casc global ordcr. Tc nor
mativc lramcwork outlincd abovc docs just that without unduc violcncc to thc
rcccivcd undcrstanding ol thc law ol sclldclcncc.
Operations against State-Sponsors: A morc dicult cndcavour is dctcrmining
whcn a victim Statc may trcat thc actions ol tcrrorist group as an armcd attack
not only by thc group, but also by a Statc that has it somc way providcd it sup
port. Until rcccntly, thc gcncrally citcd, albcit not univcrsally acccptcd, stand
, Carlotta Gall & ouglas Jchl, Strike imed at Qaeda Figure Stirs More Pakistan
Protests, Nvw Yovx Ti:vs, Jan .6, acc6, at .
Protocol Additional to thc Gcncva Convcntions ol .a August ., and Rclating to
thc Protcction ol \ictims ol !ntcrnational Armcd Conicts (Protocol !), Junc , .,,,
..a UNTS , at arts. ..(b) & ,.a(a)(iii).
185 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
ard was that cnunciatcd in thc Nicaragua casc.
Tc short answcr is that il thcrc arc good argumcnts lor prcvcntivc mili
tary action, with good cvidcncc to support thcm, thcy should bc put to thc
Sccurity Council, which can authorizc such action il it chooscs to. !l it docs not
so choosc, thcrc will bc, by dcnition, timc to pursuc othcr stratcgics, including
pcrsuasion, ncgotiation, dctcrrcncc and containmcnt and to visit again thc
military option.
+:+
!n othcr words, thc pancl adoptcd thc approach advanccd in this articlc.
Tcrc is onc aspcct ol thc US prccmptivc doctrinc, though, that has provcn
contcntiousthc commitmcnt to act cvcn il unccrtainty rcmains as to thc timc
and placc ol thc cncmys attack. Tc acca statcmcnt in this rcgard has bccn
rctaincd in thc currcnt vcrsion ol thc National Sccurity Stratcgy.
+::
!l thc statc
mcnt implics that thc Unitcd Statcs might act without knowing .hether a potcn
tial cncmy will strikc, thcn a proposcd action would bc prcvcntivc and, thcrclorc,
unlawlul. n thc othcr hand, il, as thc plain tcxt dcnotcs, thc Unitcd Statcs knows
thc attack is coming, but docs not know prcciscly .hen and .here, thcn thc action
.ac l coursc, thc prccmptivc action must comply with thc othcr rcquircmcnts ol scll
dclcnsc.
.a. High Lcvcl Pancl on Trcats, Challcngcs, and Changc, A Morc Sccurc Vorld: ur
Sharcd Rcsponsibility, cc. acc, UN oc. A//6, at .
.aa acc6 National Sccurity Stratcgy, supra notc .., at a.
193 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
would bc judgcd by thc critcria outlincd carlicr, particularly thosc ol acting in thc
last window ol opportunity and thc abscncc ol viablc altcrnativcs.
!t cannot bc othcrwisc in an cra ol wcapons ol mass dcstruction that can bc
unlcashcd by groups who oltcn pay no hccd to to thcir own survival. Authoritics
scldom know whcrc and whcn a tcrrorist strikc will occur. Altcr all, discovcry ol
a prospcctivc attack usually loils it. Conscqucntly, thc tcrrorist modus operandi
involvcs doing cvcrything possiblc to lostcr unccrtainty as to timc and placc. To
imposc a burdcn ol ccrtainty on a potcntial victim Statc would bc ludicrous. Tc
only bcaring that knowlcdgc as to timc and placc has on thc lawlulncss ol an
action in sclldclcnsc is in asscssing whcthcr altcrnativcs to thc usc ol military
lorcc arc availablc and whcthcr thc proposcd dclcnsivc action may bc thc last
opportunity to thwart whatcvcr attack is coming.
Tc unccrtainty rclcrcncc could also bc intcrprctcd as commcnt on thc qual
ity ol thc cvidcncc upon which action is bascd, in othcr words, as an asscrtion that
thc Unitcd Statcs will act on lcss than lully rcliablc inlormation givcn thc stakcs
involvcd with tcrrorism and VM. Tis is an incorrcct charactcrization, lor thc
unccrtainty rclcrs to timc and placc ol thc attack, not to whcthcr an attack will
occur. Howcvcr, in an abundancc ol analytical caution, lct us assumc thc lormcr
is thc casc. Sincc unccrtainty oltcn shrouds intcrnational sccurity mattcrs, how
good must thc cvidcncc bc bclorc a Statc may act in sclldclcncc:
Rccall criticism ol thc . strikc into Sudan. Also rccall thc cxtcnt to which
lailurc to discovcr thc smoking gun linking !raq to VM or tcrrorism rcsultcd
in widcsprcad criticism ol thc dccision to go to war and lclt thc 8ush administra
tion scrambling lor othcr grounds on which to dcnouncc thc !raqi rcgimc, such
as its appalling human rights rccord. 8oth incidcnts cvidcncc an opcrational codc
that rcquircs countcr tcrrorist opcrations to bc bascd on dcpcndablc cvidcncc.
Unlortunatcly, intcrnational law contains no cxprcss cvidcntiary stan
dard govcrning thc quality ol thc inlormation upon which Statcs may rcsort
to lorcc in sclldclcncc. Howcvcr, a usclul standard is that articulatcd by thc
Unitcd Statcs in its notication to thc Sccurity Council that it was acting in scll
dclcnsc whcn attacking Al Qacda and thc Taliban. !n thc lcttcr ol notication,
Ambassador John Ncgropontc statcd that my Govcrnmcnt has obtaincd clcar
and compclling inlormation that thc AlQacda organization, which is supportcd
by thc Taliban rcgimc in Alghanistan, had a ccntral rolc in thc attacks.
+:
NAT
Sccrctary Gcncral Lord Robcrtson uscd prcciscly thc samc tcrm whcn announc
ing that thc attack against thc Unitcd Statcs lcll within thc tcrms ol Articlc \
ol thc North Atlantic Trcaty.
+:
!n light ol thc ncar univcrsal charactcrization ol
.a Lcttcr datcd , ctobcr acc. lrom thc Pcrmancnt Rcprcscntativc ol thc Unitcd
Statcs ol Amcrica to thc Unitcd Nations Addrcsscd to thc Prcsidcnt ol thc Sccurity
Council, UN oc. S/acc./6 (ct. ,, acc.).
.a Statcmcnt by NAT Sccrctary Gcncral, Lord Robcrtson, NAT Hcadquartcrs
(ct. a, acc.), at www.nato.int/docu/spccch/acc./sc..ccaa.htm.
194 Michael N. Schmitt
pcration nduring Frccdom as lawlul, it appcars that thc intcrnational com
munity acccpts clcar and compclling as an appropriatc cvidcntiary standard in
sclldclcncc cascs.
Clcar and compclling is a tcrm borrowcd lrom in part lrom Amcrican juris
prudcncc, although, whcn asscssing cvidcncc, clcar and convincing is morc typi
cally cmploycd. Clcar and convincing cvidcncc is a lcvcl morc probativc ol thc
issuc at hand than prcpondcrancc ol thc cvidcncc, which simply mcans that
thc cvidcncc makcs thc mattcr morc likcly than not. !t is, on thc othcr hand, lcss
probativc than thc bcyond a rcasonablc doubt standard typically rcquircd lor a
guilty nding in a criminal casc. Uscd in thc contcxt ol justilying a usc ol lorcc,
clcar and convincing cvidcncc ol a lorthcoming armcd attack is cvidcncc that
would convincc a rcasonablc Statc to act dclcnsivcly in samc or similar circum
stanccs. Rcasonablc Statcs do not act prccipitously, nor do thcy rcmain idlc as
indications that an attack is lorthcoming bccomc dcalcning.
Sincc thc Unitcd Statcs procrcd thc phrasc in a sclldclcncc contcxt, it
is rcasonablc to imposc such a standard upon it. Tus, il thc National Sccurity
Stratcgys usc ol thc tcrm unccrtainty is intcrprctcd as alluding to thc quality ol
cvidcncc, that unccrtainty may not risc to a lcvcl that would causc thc basis lor
thc action to bc lcss than clcar and compclling.
II Conclusions
!n a scnsc, thc acc6 National Sccurity Stratcgy rcprcscnts thc maturation ol
countcrtcrrorism stratcgy and law. Tc horrcndous cvcnts ol /.. shockcd thc
intcrnational community into rcconsidcring thc normativc lramcwork govcrning
tcrrorism. Rcsultantly, thc prcmisc that tcrrorism was morc than mcrc criminal
ity, that it riscs to thc lcvcl ol armcd attack, has garncrcd widc acccptancc. Tis
acccptancc is rccctcd in thc lact that thc most powcrlul country in thc world has
choscn to makc countcrtcrrorism thc ccntcrpiccc ol its national sccurity strat
cgy.
pcration nduring Frccdom also lundamcntally altcrcd notions ol thc
sanctions to which Statcs that support tcrrorism arc subjcct. An opcrational
codc that gcncrally rcjcctcd thc usc ol lorcc against Statcs lor involvcmcnt lall
ing bclow somc dcgrcc ol control shiltcd in thc coursc ol lcss than a month to
onc pcrmitting thc lorciblc oustcr ol a rcgimc that had donc littlc morc than
allow a tcrrorist group to lrccly usc its tcrritory. Tis shilt is rccctcd brightly in
thc National Sccurity Stratcgys rclusal to distinguish bctwccn tcrrorists and thc
Statcs that support or harbor thcm.
Tc opcrational codc has cvolvcd othcr ways rcsponsivc to thc ncw con
tcxt. For instancc, immincncy can no longcr bccn sccn in purcly tcmporal tcrms,
in thc a.
st
ccntury thc issuc is opportunity, not timc. And tcrritorial sovcrcignty
has ncccssarily yicldcd a bit to thc practical nccds ol sclldclcncc. As thc di
culty ol combating a tcrritorylcss cncmy bccamc apparcnt, Statcs which cannot
195 6 Fesponding to Transnational Terrorism under the Jus ad 8cllum
or will not policc thcir own tcrritory must surrcndcr a dcgrcc ol thcir bordcrs
lcgal impcnctrability. Again, although not complctcly ncw, thcsc issucs wcrc
highlightcd by thc attacks ol /.., with translormations in thc opcrational codc
rcvcaling thcmsclvcs as thc Unitcd Statcs and its global partncrs rcspondcd to
this and subscqucnt acts ol transnational tcrrorism. Tcy arc all rccctcd in thc
National Sccurity Stratcgy.
8ut thc pcration !raqi Frccdom intcrludc dcmonstratcd that wc wcrc
witncssing an cvolution ol thc normativc lramcwork, not its dismantling. Tc
Unitcd Statcs and its allics, dcspitc thc lact that thc Sccurity Council itscll had
condcmncd !raq lor lailing to comply with its obligations rcgarding tcrrorism,
was incapablc ol making thc casc that thc situation mcritcd action in sclldclcncc
(or a Council usc ol lorcc mandatc). !n thc cnd, it rcsortcd to a lcgal justication
that, albcit appropriatc as a mattcr ol law, continucs to mystily many. Morcovcr,
thc lailurc to producc thc smoking gun, and thc ncgativc impact it (wrongly)
had on pcrccptions ol thc lcgality ol thc opcration, dcmonstratc that cvcn in cascs
ol tcrrorism, Statcs will bc hcld to high standards. 8caring this in mind, thc cur
rcnt normativc vcctor ol thc law ol countcrtcrrorism appcars sound.
Chapter 7
!s US Adhcrcncc to thc Rulc ol Law in
!ntcrnational Aairs Fcasiblc:
John F. Murphy
Yoram instcin is a scholar who has writtcn widcly and wcll on a rangc ol intcrna
tional law topics.
+
Hc has writtcn with particular cmphasis and distinction, how
cvcr, in thrcc subjcct arcas: thc jus ad bellum,
:
thc law ol rcsort to thc usc ol armcd
lorcc, thc jus in bello,
!ntcrcstingly, it is
thcsc thrcc arcas whcrc Unitcd Statcs ability (or willingncss) to adhcrc to thc rulc
ol law in intcrnational aairs has incrcasingly bccn callcd into qucstion.
A word or two about thc rulc ol law modcl. Tc prccisc mcaning ol thc tcrm
rulc ol law is unclcar and thc subjcct ol dcbatc.
6
For prcscnt purposcs, ! will
! am indcbtcd to Kristin Scaduto, a sccond ycar studcnt at thc \illanova Univcrsity
School ol Law, Jay Hall, a third ycar studcnt, and Jamic Samanns, a third ycar stu
dcnt, lor thcir cxccllcnt rcscarch assistancc. ! am also gratclul lor a summcr rcscarch
grant lrom thc \illanova Univcrsity School ol Law, which grcatly lacilitatcd my
work on this contribution.
. Yoram instcins curriculum .itae lists .. books and monographs and wcll ovcr .cc
articlcs and notcs.
a !n particular, see Yoram instcin, V~v, Accvvssiox ~xb Svivvvvxcv (th cd.
acc).
See especially, Yoram instcin, Tnv Coxbuc: ov Hos:iii:ivs uxbvv :nv L~w ov
!x:vvx~:iox~i Av:vb Coxviic: (acc).
See e.g., Yoram instcin, Human Fights: Te Quest for Concreti.ation, . !sv~vi
Yv~vnoox ov Hu:~x Ricn:s . (.,.), Yoram instcin, Human Fights:
Implementation through the UN System, Pvocvvbixcs ov :nv A:vvic~x Sociv:v
ov !x:vvx~:iox~i L~w aa, ac (.).
For a morc widc ranging considcration ol US adhcrcncc to thc rulc ol law in intcr
national aairs, see John F. Murphy, Tnv Uxi:vb S:~:vs ~xb :nv Ruiv ov L~w ix
!x:vvx~:iox~i Avv~ivs (acc). For shortcr trcatmcnts, see e.g., Robcrt V. Tuckcr
and avid C. Hcndrickson, Te Sources of merican Legitimacy, Fovvicx Avv., Nov./
cc., acc, at ., Kcnncth Jost, International La.: Should U.S. Policy gi.e it more
.eight?, CQ Rvsv~vcnvv, cc. .,, acc, at .c, Te insidious .iles of foreign inu-
ence, Tnv coxo:is:, Junc .., acc, at a.
6 !ndccd, it has bccn suggcstcd that thc mcaning ol thc rulc ol law may bc lcss
clcar than cvcr bclorc. See Richard C. Fallon, Te Fule of La. as a Concept in
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. z,,-::,.
198 John F. Murphy
usc thc tcrm in thc scnsc ol Chicl Justicc Marshalls lamous dictum in Marbury
.. Madison that Amcrican Govcrnmcnt would ccasc to dcscrvc thc namc ol a
govcrnmcnt ol laws, and not ol mcn, il its laws lurnish no rcmcdy lor thc vio
lation ol a vcstcd lcgal right.
which
rcprcscnts onc ol thc most ambitious projccts thc Council has cvcr undcrtakcn.
8y Rcsolution 6,, thc Council dccidcd, among othcr things, that !raq would
unconditionally acccpt thc dcstruction, undcr intcrnational supcrvision, ol all
its chcmical and biological wcapons and all its ballistic missilcs with a rangc
grcatcr than .c kilomctcrs, unconditionally agrcc not to acquirc or dcvclop
nuclcar wcapons or nuclcar wcapons usablc matcrial and placc all such matcrials
undcr thc cxclusivc control, lor custody and rcmoval, ol thc !ntcrnational Atomic
ncrgy Agcncy, not commit or support any act ol intcrnational tcrrorism. Upon
!raqs ocial acccptancc ol thcsc and othcr dcmands ol thc Council, Rcsolution
6, would constitutc a lormal ccascrc to thc Gull conict.
Yorams argumcnt suggcsts that a suspcnsion ol hostilitics must bc dicr
cntiatcd lrom thcir tcrmination, and that a ccascrc docs not cnd war. !n his
vicw, |t|hc hostilitics ol acc likc carlicr rounds ol hostilitics bctwccn .. and
acc (prccmincntly in . and .) did not signily thc outbrcak ol a ncw war.
Tcy wcrc only dicrcnt phascs ol thc samc Gull Var that wcnt on lrom .c
to acc ... .
As summarizcd by Yoo, |t|hc Carolinc tcst has bccn distillcd into two princi
pal rcquircmcnts. First, thc usc ol lorcc must bc ncccssary bccausc thc thrcat is
immincnt and, thus, pursuing pcacclul altcrnativcs is not an option. Sccond, thc
rcsponsc must bc proportionatc to thc thrcat.
For his part, Yoram has rcjcctcd thc doctrinc ol anticipatory sclldclcnsc
as incompatiblc with Articlc . ol thc UN Chartcr. !n his vicw an actual armcd
attack is rcquircd lor thc usc ol lorcc in sclldclcnsc.
8
!n a provocativc stcp, how
cvcr, hc has dcncd thc scopc ol an armcd attack broadly to covcr not only thc
ring ol rcarms but also ccrtain prcliminary stcps such as troop movcmcnts.
According to Yoram, |t|hc crucial qucstion is who cmbarks upon an irrcvcrsiblc
coursc ol action, thcrcby crossing thc Rubicon.
o
thcr commcntators, includ
ing this writcr, would agrcc with Yoo that Articlc . rctains thc prcChartcr right
ol anticipatory sclldclcnsc, but would disagrcc with his (arguably) ovcrly cxpan
sivc conccpts ol immincncc, ncccssity, and proportionality as applicd to thc
invasion ol !raq.
6 Id. at ,.
, Tnv N~:iox~i Svcuvi:v S:v~:vcv ov :nv Uxi:vb S:~:vs ov A:vvic~ .
(acca).
See Yoram instcin, supra notc a, at .66.
Id. at .6,. Tus, according to Yoram, oncc thc Japancsc cct sct o on its way to
attack Pcarl Harbor, it was cngagcd in an armcd attack on thc Unitcd Statcs, and thc
Unitcd Statcs would havc bccn cntitlcd to rcspond to this armcd attack by ring thc
rst shot. Id. at .,.,a.
c Id. at .,a.
209 7 US dherence to the Fule of La.
Tc dcbatc ovcr prccmptivc sclldclcnsc asidc, it is clcar that thc kcy issuc
in thc dcbatc ovcr thc lcgality ol thc invasion ol !raq rcvolvcs around thc intcr
prctation and application ol Sccurity Council rcsolutions. Tis is a highly com
plcx and closc issuc that has bccn cxplorcd in dcpth clscwhcrc.
+
For my part,
with rcgrct, bccausc ! strongly support thc policy rcasons lor invading !raq, !
nd thc US, and Yorams, argumcnts ultimatcly unpcrsuasivc.
:
!n my vicw thc
most scrious wcakncss in thc argumcnt is its rcliancc on thc proposition that
thc ccascrc in thc Gull crcatcd by Sccurity Council Rcsolution 6, bccamc
automatically nonopcrativc in thc cvcnt ol a matcrial brcach by !raq, and, as a
rcsult, thc authority to usc lorcc containcd in Rcsolution 6, rcvivcd and justi
cd thc rcncwcd usc ol lorcc against !raq. Unlikc most ccascrc arrangcmcnts,
thc ccascrc in thc Gull Var did not comc about bccausc ol an agrccmcnt
bctwccn thc warring partics. Rathcr, thc ccascrc in thc Gull was mandatcd
by thc Sccurity Council through Rcsolution 6, and lormally acccptcd by !raq.
Hcncc, thc ccascrc agrccmcnt in this casc is bctwccn thc Unitcd Nations
and !raq, not bctwccn !raq and thc coalition lorccs. Morcovcr, as pointcd out by
Scan Murphy, |n|othing in Rcsolution 6, suggcsts that thc Sccurity Council
sought to lcavc to Mcmbcr Statcs thc rolc ol monitoring thc rcsolution. !ndccd,
. For a scrics ol articlcs cxprcssing various points ol vicw, see gora: Future Implications
of the Iraq Conict, , A:. J. !x:i L. 6a (acc). A similar scrics ol articlcs may
bc lound in Symposium: Te Fule of La. in Conict and Post-Conict Situations, a,
H~vv. J. L. a Pun. Poiv 6a (acc). All ol thcsc articlcs arc worth rcading. At thc
risk ol making invidious comparisons, ! would cspccially rccommcnd, rst, as articlcs
supporting thc lcgality ol thc US usc ol lorcc: Villiam Howard Talt !\ and Todd
8uchwald, Preemption, Iraq, and International La., , A:. J. !x:i L. , (acc),
John Yoo, International La. and the !ar in Iraq, , A:. J. !x:i L. 6 (acc), Ruth
Vcdgwood, Te Fall of Saddam Hussein: Security Council Mandates and Preempti.e
Self-Defense, , A:. J. !x:i L. ,6 (acc), Richard N. Gardncr,Neither Bush Nor
the Jurisprudes, , A:. J. !x:i L. (acc), Yoram instcin, Comments on !ar, a,
H~vv. J. L. a Pun. Poiv ,, (acc), Michacl N. Schmitt, U.S. Security Strategies:
Legal ssessment, a, H~vv. J. L. a Pun. Poiv ,, (acc), Robcrt F. Turncr, Operation
Iraqi Freedom: Legal nd Policy Considerations, a, H~vv.,. L. a Pun. Poiv ,6 (acc),
Vol Hcintschcl von Hcincgg, Factors in !ar to Peace Transitions,a, H~vv. J. L. a
Pun. Poiv (acc), sccond,as articlcs challcnging thc lcgality ol thc US usc ol
lorcc: Richard A. Falk, !hat Future for the UN Charter System of !ar Pre.ention?,
, A:. J. !x:i. L. c (acc), Miriam Sapiro, Iraq: Te Shifting Sands of Preempti.e
Self-Defense, , A:. J. !x:i L. (acc), Tomas M. Franck, !hat Happens No.?
Te United Nations fter Iraq, , A:. J. !x:i L. 6c, (acc), Tom J. Farcr, Te Prospect
for International La. and Order in the !ake of Iraq, , A:. J. !x:i L. 6a. (acc). !n
addition, a tour dc lorcc ol argumcnts challcnging thc lcgality ol thc US usc ol lorcc
may bc lound in Scan Murphy, ssessing the Legality of In.ading Iraq, a Gvo.i. J. .,
(acc). For a thoughtlul cssay that rccognizcs thc closcncss ol thc qucstion ol lcgal
authority lor using lorcc in !raq, and thcn addrcsscs possiblc luturc dcvclopmcnts
in this arca ol law and practicc, see Janc . Stromscth, La. and Force fter Iraq:
Transitional Moment, , A:. J. !x:i L. 6a (acc).
a For discussion, see John F. Murphy, supra notc , at .,, .6,,.
210 John F. Murphy
thc oppositc is thc casc, in paragraph thirtylour ol thc rcsolution, thc Sccurity
Council dccidcd to rcmain scizcd ol thc mattcr and to takc such lurthcr stcps as
may bc rcquircd lor thc implcmcntation ol thc prcscnt rcsolution and to sccurc
pcacc and sccurity in thc arca.
Noncthclcss, again as pointcd out by Scan Murphy, thc dcbatc at thc Sccurity
Council rcccts a bclicl by all thc mcmbcrs (with thc cxccption ol thc Unitcd
Statcs) that thcy had, altcr intcnsivc wccks ol ncgotiation, rcachcd a conscnsus
on a twostagc proccss whcrcby, il !raq lailcd to disarm, thc Sccurity Council
would dccidc at a luturc, sccond stagc whcthcr to authorizc thc usc ol lorcc.
Morcovcr, it is doubtlul whcthcr an authorization ol thc usc ol lorcc may cvcr bc
implicit in a Sccurity Council rcsolution, and Rcsolution .. contains no cxplicit
authorization.
Assuming argucndo that Sccurity Council rcsolutions do not authorizc thc
usc ol lorcc against !raq bccausc ol its violations ol Rcsolution 6,, this should not
bc thc cnd ol thc analysis. Tcrc is considcrablc cvidcncc that, lar lrom hclping
to cnlorcc Rcsolution 6,, Francc and Russia cngagcd in dcals with thc Saddam
Husscin govcrnmcnt that undcrmincd its cnlorccmcnt.
6
Morcovcr, in rclusing
to acccpt thc US and U.K. proposal that thc Sccurity Council adopt a rcsolu
tion cxplicitly authorizing thc usc ol lorcc il !raq lailcd to lulll its obligation to
disarm lor rcasons that had littlc to do with thc mcrits ol thc mattcr
Francc,
China, and Russia arguably lailcd to lulll thcir obligation as pcrmancnt mcm
bcrs ol thc Council to allow thc Council to pcrlorm its collcctivc sccurity lunc
tions to maintain intcrnational pcacc and sccurity.
8
As dward Luck, a longtimc
obscrvcr and commcntator on thc Unitcd Nations, rcccntly notcd: Tc Unitcd
Scan Murphy, supra notc ., at acac.
See John F. Murphy, supra notc , at .6.
Scan Murphy, supra notc ., at a..
6 Tnv Co:vvvnvxsivv Rvvov: ov :nv Svvci~i Abvisov :o :nv C! ox !v~gs
VM (thc ucllcr Rcport) (Scpt. c, acc) is lull ol cxamplcs ol such actions by
thc Russian and Frcnch Govcrnmcnts.
, See Michacl J. Glcnnon, !hy the Security Council Failed, Fovvicx Avv., MayJunc
acc, at .6.
! am pursuing this thcmc in anothcr articlc, tcntativcly titlcd, nlorcing thc
Pcacc: Privilcgcs and Rcsponsibilitics ol Pcrmancnt Mcmbcrs ol thc UN Sccurity
Council.
211 7 US dherence to the Fule of La.
Nations, sadly, has driltcd lar lrom its lounding vision. !ts Chartcr ncithcr calls
lor a dcmocratic council nor rclcgatcs thc collcctivc usc ol lorcc to a last rcsort. !t
was a wartimc documcnt ol a military alliancc, not a univcrsal pcacc platlorm.
!l thc Unitcd Statcs violatcd thc UN Chartcr by its military actions in
Kosovo and !raq, it has indccd driltcd lar lrom thc rulc ol law paradigm. To bc
surc, as wc havc sccn, this proposition is dcbatablc, with Yoram in opposition
with rcgard to !raq. !n any cvcnt, thc dcbatc will not bc rcsolvcd through rclcr
cncc to a court, itscll a dcviation lrom thc rulc ol law paradigm. Somc commcn
tators havc suggcstcd that thc rcsult ol thcsc actions is that thc norms ol thc UN
Chartcr on thc usc ol lorcc arc dcad and thc Sccurity Council is clcarly unablc
to addrcss major thrcats to intcrnational pcacc and sccurity.
6o
lscwhcrc, ! and
othcrs havc attcmptcd to rclutc thc thcsis that thc law ol thc Chartcr on armcd
lorcc is dcad.
6+
Tc validity ol thc proposition that thc Sccurity Council is unablc
to addrcss major thrcats to intcrnational pcacc and sccurity rcmains to bc sccn.
6:
Michacl Rcisman has argucd that, il thc Sccurity Council lails to act in rcsponsc
to a thrcat to thc pcacc, this lailurc to lulll its rcsponsibilitics rclcascs mcmbcr
statcs lrom thc constraints on thc usc ol lorcc imposcd by Articlc a() ol thc
Chartcr.
6
Tis claim has not bccn acccptcd by most scholars or rccctcd in statc
practicc.
6
!n rcality, howcvcr, il thc Sccurity Council lails in thc luturc to lulll
its obligation to maintain intcrnational pcacc and sccurity, powcrlul statcs, likc
thc Unitcd Statcs, arc likcly to takc thc law into thcir own hands, with thc most
scrious advcrsc conscqucnccs lor thc jus ad bellum ol thc UN Chartcr.
II Jus in Bello and Alleged Violations of
International Human Rights
Tc rcstorm ol dcbatc gcncratcd by ccrtain US actions takcn as part ol thc
war on tcrrorism has bccn at lcast as hcatcd, il not morc so, than thc dcbatc
ovcr thc invasion ol !raq.
6
A promincnt cxamplc is thc chargc containcd in
dward C. Luck, Making the !orld Safe for Hypocrisy, N.Y. Ti:vs, Mar. aa, acc, at
A.., col. ..
6c Michacl J. Glcnnon, supra ,, at .6., a, Anthony Clark Arcnd, International La.
and the Preempti.e Use of Military Force, V~sn. Q., Spring acc, at , .c..
6. John F. Murphy, supra notc , at .,,.. See also, e.g., Janc . Stromscth, supra notc .,
at 6a.
6a Janc Stromscth has suggcstcd that stcps should bc takcn to rclutc thc validity ol this
proposition. Scc Janc . Stromscth, supra notc ., at 6a.
6 Michacl Rcisman, Nuiii:v Axb Rvvisiox (.,.).
6 John F. Murphy, Force and rms, in . Uxi:vb N~:ioxs Lvc~i vbvv a,, a,. (scar
Schachtcr & Christophcr C. Joyncr, cds. .).
6 To bc surc, thc 8ush administration has in part dclcndcd thc invasion ol !raq as a
componcnt ol thc war on tcrrorism, but lor purposcs ol this contribution, thcy will
bc trcatcd as scparatc issucs.
212 John F. Murphy
Amncsty !ntcrnationals acc annual rcport on thc statc ol human rights around
thc world that thc 8ush administration had condoncd atrocious human rights
violations, thcrcby diminishing its moral authority and sctting a global cxam
plc cncouraging abusc by othcr nations.
66
!n hcr lorward to thc rcport, !rcnc
Khan, Sccrctary Gcncral, Amncsty !ntcrnational, claimcd that thc dctcntion
lacility at Guantanamo 8ay had bccomc thc gulag ol our timcs, cntrcnching
thc practicc ol arbitrary and indcnitc dctcntion in violation ol intcrnational
law.
6
Ms. Khan also chargcd that thc Unitcd Statcs had gonc to grcat lcngths
to rcstrict thc application ol thc Gcncva Convcntions and to rcdcnc torturc.
!t has sought to justily thc usc ol cocrcivc intcrrogation tcchniqucs, thc practicc
ol holding ghost dctainccs (pcoplc in unacknowlcdgcd incommunicado dctcn
tion) and thc rcndcring or handing ovcr ol prisoncrs to third countrics known to
practicc torturc ... Trials by military commissions havc madc a mockcry ol justicc
and duc proccss.
68
For his part, thc cxccutivc dircctor ol Amncsty !ntcrnational in thc Unitcd
Statcs, Villiam F. Schultz, at a prcss conlcrcncc, callcd upon thc US Congrcss
to appoint a truly impartial and indcpcndcnt commission to invcstigatc thc
mastcrminds ol thc atrocious human rights violations at Abu Ghraib and othcr
dctcntion ccntcrs.
6
!n rcsponsc, Scott McClcllan, thc Vhitc Housc spokcsman,
rcportcdly said: ! think thc allcgations arc ridiculous, and unsupportcd by thc
lacts. Tc Unitcd Statcs is lcading thc way whcn it comcs to protccting human
rights and promoting human dignity. Vc havc libcratcd c million pcoplc in !raq
and Alghanistan. Vc havc workcd to advancc lrccdom and dcmocracy in thc
world so that pcoplc arc govcrncd undcr a rulc ol law, that thcrc arc protcctions
in placc lor minority rights, that womcns rights arc advanccd so that womcn can
lully participatc in socictics whcrc now thcy cannot.
o
Tcrc havc bccn a numbcr ol othcr strongly wordcd writings that havc
claimcd numcrous allcgcd US violations ol thc law ol armcd conict and intcr
national human rights arising out ol thc war on tcrrorism.
+
Spacc and timc limi
tations prccludc this contribution cxploring most ol thcsc allcgations. Rathcr,
66 See U.S. Tumbs Its Nose t Fights, mnesty Says, N.Y. Ti:vs, Junc a6, acc, at A.c.
6, !rcnc Khan, Forward, A:xvs:v !x:vvx~:iox~i Rvvov: acc, at ..
6 Id.
6 See Transcript ol Amncsty !ntcrnational Ncws Conlcrcncc, May a, acc, availablc
at 6, http://globalrcscarch.ca/articlcs/AMNcA.html.
,c U.S. Tumbs Its Nose t Fights, mnesty Says, supra notc 66.
,. See e.g., Jordan J. Paust, Executi.e Plans and uthori.ations to !iolate International
La., Coiu:. J. Tv~xsx~:i L. .. (acc), Jordan J. Paust, Post-,zz O.erreaction
and Fallacies Fegarding !ar and Defense, Guantanamo, the Status of Persons, Treatment,
Judicial Fe.ie. of Detention, and Due Process in Military Commissions, , No:vv
~:v L. Rvv. . (acc). For a usclul ovcrvicw, see Martha Minow, !hat is the
Greatest E.il?, .. H~vv. L. Rvv. a. (acc) (rcvicwing Michacl !gnatic, Tnv
Lvssvv vii: Poii:ic~i :nics ix ~x Acv ov Tvvvov (acc)).
213 7 US dherence to the Fule of La.
lor prcscnt purposcs, this contribution will bricy cxaminc thrcc issucs con
ccrning which Yorams writings havc particular rclcvancc: thc applicability ol
thc law ol armcd conict to thc war on tcrrorism, thc status ol thc dctainccs at
Guantanamo 8ay and othcr dctcntion ccntcrs outsidc ol thc Unitcd Statcs, and
command rcsponsibility lor clcar violations ol thc law ol armcd conict commit
tcd by US lorccs.
pplicability of the La. of rmed Conict
!n his trcatisc on thc law ol armcd conict, Yoram limits his discussion to thc law
ol international armcd conict and makcs no attcmpt to addrcss thc law ol intra
statc conict or civil wars.
:
Yoram also makcs it clcar that thc applicability ol
thc law ol intcrnational armcd conict rcquircs thc prcscncc ol an armcd conict
bctwccn two or morc statcs. Somc commcntators, thcrclorc, quickly concludc
that, sincc thc Scptcmbcr .. attack against thc Unitcd Statcs was not commit
tcd by a statc but rathcr by a nonStatc actor (Al Qacda), thc war on tcrrorism
is a misnomcr and intcrnational criminal law is thc appositc cld ol law.
8ut
thc war on tcrrorism would sccm to involvc both thc law ol armcd conict and
intcrnational criminal law. Tc US and UK attack on Alghanistan ncccssarily
gavc risc to an intcrstatc conict bctwccn thc Unitcd Statcs and Alghanistan.
Tc Taliban, thc de facto govcrnmcnt ol Alghanistan in control ol ovcr c ol
thc countrys tcrritory, had givcn sanctuary to Al Qacda, allowing it to usc its tcr
ritory as a basc ol opcrations, and rcluscd to surrcndcr thc lcadcrs ol Al Qacda
and closc down thcir bascs in rcsponsc to thc US ultimatum.
Although only
thrcc statcs (Pakistan, Saudi Arabia, and thc Unitcd Arab miratcs) had rccog
nizcd thc Taliban as thc govcrnmcnt ol Alghanistan, Yoram has pointcd out that
no lormal rccognition ol a particular rcgimc as thc Govcrnmcnt ol thc cncmy
Statc is ncccssary. Conscqucntly, in thc acc. hostilitics, it did not mattcr that thc
Taliban rcgimc lailcd to gain rccognition as thc Govcrnmcnt ol Alghanistan by
thc intcrnational community at largc (and spccically by thc Unitcd Statcs). Tc
lact that thc Taliban was in control ol most ol thc tcrritory ol Alghanistan mcant
that (rccognizcd or not) it was thc de facto Govcrnmcnt, and thc rcgimcs actions
had to bc trcatcd as thc actions ol thc statc ol Alghanistan.
For its part, thc Unitcd Statcs govcrnmcnt had an intcrnal dcbatc on thc
applicability ol thc Gcncva Convcntions to thc conict in Alghanistan. Tc
,a Yoram instcin, supra notc , at ..
, See Antonio Casscsc, Terrorism is lso Disrupting Some Crucial Legal Categories of
International La., .a uv. J. !x:i L. (acc.), Jordan J. Paust, !ar and Enemy
Status fter ,zz: ttacks on the La.s of !ar, a Y~iv J. !x:i L. a (acc).
, See Michacl N. Schmitt, Counter-Terrorism and the Use of Force in International La.,
in a !sv~vi Yv~vnoox ox Hu:~x Ricn:s , 6 (acca).
, Yoram instcin, supra notc , at .6.
214 John F. Murphy
cpartmcnt ol Justicc took thc position that thc Gcncva Convcntions, cspccially
thc Gcncva Convcntion Rclativc to thc Trcatmcnt ol Prisoncrs ol Var (thc Tird
Gcncva Convcntion), did not apply to thc conict in Alghanistan and thcrclorc
ncithcr thc Taliban nor Al Qacda was cntitlcd to prisoncr ol war status.
6
!n con
trast, thc cpartmcnt ol Statc was ol thc vicw that thc Gcncva Convcntions,
including thc Tird Gcncva Convcntion, applicd to thc conict and thc status ol
thc Taliban and Al Qacda should bc dctcrmincd in accordancc with thc critcria
sct lorth in thc Tird Gcncva Convcntion.
Tc blankct dccision to dcny prisoncr ol war status to all capturcd Taliban
and Al Qacda dctainccs has comc undcr sharp rc.
B Status of the Detainees at Guantanamo Bay and
other Detention Centers
Gcorgc Aldrich, a lormcr cputy Lcgal Adviscr ol thc US cpartmcnt ol Statc
and cpartmcnt ol clcnsc lawycr, has criticizcd Prcsidcnt 8ushs dccision to
dcny prisoncr ol war status to all capturcd Taliban and Al Qacda dctainccs as
contrary to thc rcquircmcnts ol thc Tird Gcncva Convcntion.
8o
Articlc ol thc
Tird Gcncva Convcntion providcs in pcrtincnt part:
A. Prisoncrs ol war, in thc scnsc ol thc prcscnt Convcntion, arc pcrsons
bclonging to onc ol lollowing catcgorics, who havc lallcn into thc powcr
ol thc cncmy:
(.) Mcmbcrs ol thc armcd lorccs ol a Party to thc conict, as wcll as
mcmbcrs ol militias or voluntccr corps lorming part ol such armcd
lorccs.
(a) Mcmbcrs ol othcr militias and mcmbcrs ol othcr voluntccr corps,
including thosc ol organizcd rcsistancc movcmcnts, bclonging to a
Party to thc conict and opcrating in or outsidc thcir own tcrritory,
cvcn il this tcrritory is occupicd, providcd that such militias or vol
untccr corps, including such organizcd rcsistancc movcmcnts, lulll
thc lollowing conditions:
(a) that ol bcing commandcd by a pcrson rcsponsiblc lor his sub
ordinatcs,
(b) that ol having a xcd distinctivc sign rccognizablc at a dis
tancc,
(c) that ol carrying arms opcnly,
(d) that ol conducting thcir opcrations in accordancc with thc
laws and customs ol war.
, Ari Flcischcr, Spccial Vhitc Housc Announccmcnt Rc: Application ol Gcncva
Convcntions in Alghanistan (Fcb. ,, acca), availablc in LX!S, Lcgis Library, Fcdncw
Filc, see also Vhitc Housc Fact Shcct: Status ol ctainccs at Guantanamo (Fcb. ,,
acca), availablc at http://www.whitchousc.gov/ncws/rclcascs/acca/ca.html.
c Gcorgc H. Aldrich, Te Taliban, l Qaeda, and the Determination of Illegal Combatants,
6 A:. J. !x:i L. . (acca).
216 John F. Murphy
Although no lormal lcgal dclcnsc ol thc Prcsidcnts dccision was publishcd, Ari
Flcischcr, thc Vhitc Housc Prcss Sccrctary, ocrcd thc lollowing cxplanation ol
that dccision:
Undcr Articlc ol thc Gcncva Convcntion...Taliban dctainccs arc not cntitlcd
to PV status. To qualily as PVs undcr Articlc , al Qacda and Taliban
dctainccs would havc to havc satiscd lour conditions: Tcy would havc to bc
part ol a military hicrarchy, thcy would havc to havc worn unilorms or othcr
distinctivc signs visiblc at a distancc, thcy would havc to havc carricd thcir
arms opcnly, and thcy would havc to havc conductcd thcir military opcrations
in accordancc with thc laws and customs ol war.
Tc Taliban havc not ccctivcly distinguishcd thcmsclvcs lrom thc
civilian population ol Alghanistan. Morcovcr, thcy havc not conductcd thcir
opcrations in accordancc with thc laws and customs ol war. !nstcad, thcy havc
knowingly adoptcd and providcd support to thc unlawlul tcrrorist objcctivcs ol
thc al Qacda.
8+
!n his commcntary, Aldrich points out that Flcischcr was summarizing thc pro
visions ol Articlc (A) (a) ol thc Tird Gcncva Convcntion. 8ut paragraph A
(a) dcals only with mcmbcrs ol militias or othcr voluntccr corps that are not
part of the armed forces of a party to the armed conict .Tc Taliban wcrc, ol coursc,
mcmbcrs ol thc armcd lorcc ol Alghanistan, a party to thc armcd conict. As
to thcm, paragraph A (.) would sccm appositc. Tc lour conditions spccicd by
Flcischcr as justilying thc Prcsidcnts dccision would appcar to apply only to thc
sccond catcgory ol PVs, and that catcgory rclatcs solcly to militias and volun
tccr corps that do not lorm part ol thc armcd lorccs ol a party to thc conict. !n
most cascs, Al Qacda dctainccs would lall into this catcgory. vcn as to thc Al
Qacda dctainccs, howcvcr, it is arguablc that somc may bc cntitlcd to prisoncr ol
war status. Tis would appcar to bc thc casc il an individual Al Qacda mcmbcr
could provc that hc was a mcmbcr ol a militia or voluntccr corps lorming part ol
thc armcd lorccs ol Alghanistan within thc mcaning ol Articlc (A) (.) ol thc
Tird Gcncva Convcntion.
Yoram supports a dicrcnt intcrprctation ol Articlc (A) (.), although thc
languagc ol that provision would appcar on its lacc to support thc Aldrich vicw.
As cxplaincd by Yoram:
. Ari Flcischcr, Spccial Vhitc Housc Announccmcnt Rc: Application ol Gcncva
Convcntions in Alghanistan (Fcb. ,, acca), a.ailable in LX!S, Lcgis Library,
Fcdncw Filc, see also Vhitc Housc Fact Shcct: Status ol ctainccs at Guantanamo
(Fcb. ,, acca), availablc at http://www.whitchousc. gov/ncws /rclcascs/acca/ca.
html.
217 7 US dherence to the Fule of La.
n thc lacc ol it, thc Gcncva Convcntions do not posc any conditions to thc cli
gibility ol rcgular lorccs to prisoncrs ol war status. Ncvcrthclcss, rcgular lorccs
arc not absolvcd lrom mccting thc cumulativc conditions binding irrcgular
lorccs. Tcrc is mcrcly a prcsumption that rcgular lorccs would, by thcir vcry
naturc, mcct thosc conditions. 8ut thc prcsumption can dcnitcly bc rcbuttcd.
Tc issuc camc to thc lorc in thc Mohamed li casc ol .6, whcrc thc Privy
Council hcld (pcr \iscount ilhornc) that it is not cnough to cstablish that a
pcrson bclongs to thc rcgular armcd lorccs, in ordcr to guarantcc to him thc
status ol a prisoncr ol war. Tc Privy Council pronounccd that cvcn mcmbcrs ol
thc armcd lorccs must obscrvc thc cumulativc conditions imposcd on irrcgular
lorccs, although this is not statcd expressis .erbis in thc Gcncva Convcntions or
in thc Haguc Rcgulations. Tc lacts ol thc casc rclatcd to !ndoncsian soldicrs
who at a timc ol a conlrontation bctwccn !ndoncsia and Malaysia plantcd
cxplosivcs in a building in Singaporc (thcn a part ol Malaysia) whilc wcaring
civilian clothcs. Tc Privy Council conrmcd thc Appcllants dcath scntcncc
lor murdcr, on thc ground that a rcgular soldicr committing an act ol sabotagc
whilc not in unilorm loscs his cntitlcmcnt to a prisoncr ol war status. Tc car
licr Quirin Judgmcnt conccrning Gcrman mcmbcrs ol thc armcd lorccs who
took o thcir unilorms on a sabotagc mission in thc Unitcd Statcs (whcrc thcy
had landcd by submarinc) is to thc samc ccct.
8:
Tus, undcr Yorams analysis ol Articlc (A)(.) and (a) ol thc Tird Gcncva
Convcntion, ncithcr thc Taliban nor Al Qacda qualily lor prisoncr ol war status
and arc rathcr unlawlul combatants.
8
8y contrast, undcr Aldrichs analysis, thc
Taliban and somc Al Qacda mcmbcrs would qualily. Yoram rccognizcs thc dicr
cncc bctwccn him and Aldrich and suggcsts Articlc , paragraph a, ol thc Tird
Gcncva Convcntion as a way to rcsolvc this dicrcncc.
8
Articlc (a) providcs:
Should any doubt arisc as to whcthcr pcrsons, having committcd a bclligcrcnt
act and having lallcn into thc hands ol thc cncmy, bclong to any ol thc cat
cgorics cnumcratcd in Articlc , such pcrsons shall cnjoy thc protcction ol thc
prcscnt Convcntion until such timc as thcir status has bccn dctcrmincd by a
compctcnt tribunal.
Yoram suggcsts that thc Unitcd Statcs might bc wcll adviscd to havc thc status
ol Taliban lorccs dctcrmincd by a compctcnt tribunal. A compctcnt tribunal lor
this purposc can bc a military commission.
8
a Yoram instcin, supra notc , at 6.
For lurthcr discussion, see id. at ,c.
Id. at .
Id.
218 John F. Murphy
A rcccnt dccision ol thc Unitcd Statcs Court ol Appcals lor thc istrict ol
Columbia Circuit has indicatcd, in dicta, that an allcgcd mcmbcr ol Al Qacda
might bc ablc to asscrt his claim to prisoncr ol war status bclorc a military com
mission. !n Hamdan v. Fumsfeld,
86
Alghani militia lorccs had capturcd Salim
Ahmcd Hamdan in Alghanistan in latc Novcmbcr acc. and turncd him ovcr to
thc Amcrican military who transportcd him to thc Guantanamo 8ay Naval 8asc
in Cuba. Hc was kcpt in dctcntion thcrc until July , acc, whcn Prcsidcnt 8ush
dctcrmincd that thcrc was rcason to bclicvc that |Hamdan | was a mcmbcr ol al
Qacda or was othcrwisc involvcd in tcrrorism dircctcd against thc Unitcd Statcs.
Tis nding brought Hamdan within thc scopc ol thc Prcsidcnts Novcmbcr .,
acc., rdcr conccrning thc Detention, Treatment, and Trial of Certain Non-citi-
.ens in the !ar gainst Terrorism,
8
and hc was dcsignatcd lor trial bclorc a mili
tary commission.
!n rcsponsc to thc U.S. Suprcmc Courts dccision in Hamdi v.Fumsfeld,
88
Hamdan rcccivcd a lormal hcaring bclorc a Combatant Status Rcvicw Tribunal.
Tc Tribunal armcd his status as an cncmy combatant, cithcr a mcmbcr ol or
aliatcd with Al Qacda, lor whom continucd dctcntion was rcquircd. !n April
acc, Hamdan lcd a pctition lor habcas corpus with thc Fcdcral istrict Court
lor thc istrict ol Columbia. n Novcmbcr , acc, thc district court grantcd
in part Hamdans pctition, holding, among othcr things, that Hamdan could not
bc tricd by a military commission unlcss a compctcnt tribunal dctcrmincd that
hc was not a prisoncr ol war undcr thc Tird Gcncva Convcntion.
8
n July
., acc, thc Court ol Appcals rcvcrscd, on a varicty ol grounds. Vith rcspcct
to Hamdans claim bascd on thc Gcncva Convcntions, thc court rulcd that thc
Tird Gcncva Convcntion did not conlcr upon Hamdan a right to cnlorcc its
provisions in U.S. courts. !n addition, Hamdan claimcd that, cvcn il thc Tird
Gcncva Convcntion was not judicially cnlorccablc, Army Rcgulation .c pro
vidcd a basis lor rclicl. Tis rcgulation implcmcnts intcrnational law, both cus
tomary and codicd, rclating to |cncmy prisoncrs ol war| ... which includcs thosc
pcrsons hcld during military opcrations othcr than war.
o
Hamdan claimcd that
Army Rcgulation .c cntitlcd him to havc a compctcnt tribunal dctcrminc
his status. Tc court cxprcsscd its bclicl that thc military commission would bc
such a tribunal and statcd: Vc thcrclorc scc no rcason why Hamdan could not
asscrt his claim to prisoncr ol war status bclorc thc military commission at thc
6 Hamdan v. Rumslcld, . F. d (.C. Cir. acc), cert. granted, , U.S. L. V. .c,
, U.S.L. V. a, , U.S. L.V. a, (U.S. Nov. ,,acc) (No. c.).
, 66 Fcd. Rcg. ,,.
a U.S. c, (acc).
Hamdan v. Rumslcld, F. Supp. ad .a (..C. acc), re.d by Hamdan v.
Rumslcld, . F. d (.C. Cir. acc), cert. granted, , U. S. L. V. .c, , U.S. L. V.
a , , U.S.L.V. a, (U.S. Nov. ,, acc) (Noc.).
c AR .c, scction ..(b).
219 7 US dherence to the Fule of La.
timc ol his trial and thcrcby rcccivc thc judgmcnt ol a compctcnt tribunal within
thc mcaning ol Army Rcgulation .c.
+
!n Khalid v. Bush,
:
lorcign nationals who wcrc capturcd abroad and dctaincd
at Guantanamo 8ay lcd individual pctitions lor writs ol habcas corpus chal
lcnging thc lcgality ol thcir dctcntion and thc conditions ol thcir conncmcnt.
Tc US istrict Court lor thc istrict ol Columbia grantcd thc govcrnmcnts
motion to dismiss. Although thc pctitioncrs asscrtcd that thcir continucd dctcn
tion violatcd thc Gcncva Convcntions, thcy latcr conccdcd at oral argumcnt
that thcsc convcntions did not apply bccausc thc pctitioncrs wcrc not capturcd
in thc zonc ol hostilitics in and around Alghanistan. Altcrnativcly, thcy argucd
that thcir living conditions constitutcd torturc and violatcd thc Convcntion
Against Torturc and thcr Crucl, !nhuman or cgrading Trcatmcnt and thc
!ntcrnational Covcnant on Civil and Political Rights. Tc court concludcd that
thcsc claims wcrc not a viablc basis in a habcas procccding to cvaluatc thc lcgality
ol thc pctitioncrs dctcntion. !t hcld that ncithcr thc Convcntion nor thc Covcnant
is a scllcxccuting trcaty, and, in such a casc, thcy can only bc cnlorccd pursuant
to lcgislation to carry thcm in ccct. No lcgislation has bccn adoptcd to implc
mcnt thc Covcnant, and thc lcgislation adoptcd to implcmcnt thc Convcntion
docs not givc thc pctitioncrs a privatc causc ol action to challcngc thc lcgality ol
thcir dctcntion.
!t is possiblc that issucs raiscd in thcsc and othcr dctaincc cascs will ulti
matcly bc rcsolvcd by thc Unitcd Statcs Suprcmc Court. !l so, it will rcmain to
bc sccn thc cxtcnt to which thc Court will rcsolvc thcsc issucs on thc basis ol
intcrnational law. Michacl Rcisman has sharply criticizcd thc Courts dccision in
Fasul .. Bush,
Tc application and
cnlorccmcnt ol intcrnational law in domcstic courts is an important componcnt
. Hamdan v. Rumslcld, supra notc 6, at .
a F. Supp. ad .. (..C. acc).
F. Supp.ad at a,. !n lootnotc a. to pagc a,, thc court notcd that |t|hc implc
mcnting lcgislation ... conlcrs standing to suc lor (.) alicns that can dcmonstratc it
is morc likcly than not that hc or shc would bc torturcd il rcmovcd to a particular
country ... and (a) victims ol torturc who scck damagcs against individuals whom
thcy allcgc subjcctcd thcm, undcr thc authority ol a lorcign nation, to torturc.
.a S. Ct. a66 (acc).
V. Michacl Rcisman, Fasul .. Bush: Failure to pply International La., a J. !x:i
Cvi:. Jus:. ,, c (acc).
220 John F. Murphy
ol thc rulc ol law modcl in intcrnational aairs. Tc lailurc ol US courts to do so
undcrmincs thc ccctivcncss ol thc rulc ol law at thc intcrnational lcvcl.
6
C Command Fesponsibility
Although thc Unitcd Statcs is not a party to thc Romc Statutc ol thc !ntcrnational
Criminal Court,
Tc invasion ol Kuwait in August .c was thc culmination ol a long rccord
ol aggrcssivc conduct by thc 8aathist !raqi lcadcrship. Tc rcgimc had prcvi
ously invadcd !ran and gasscd !raqi Kurds in thc Anlal campaign,
8
and whcn
laccd with this dismaying rccord, thc Unitcd Nations Sccurity Council rcactcd
with admirablc dispatch against !raqs invasion ol Kuwait, not lcast bccausc ol
thc additional thrcat to Saudi Arabia. To point out a lactor ol scllintcrcst in thc
worlds swilt rcaction to !raqs attcmptcd domination ol an oilrich Gull is no
insult to thc sharcd principlc that othcr countrics should not bc swallowcd up.
Tc cconomic lacts ol lilc, howcvcr, scrvc as a rcmindcr that collcctivc sccurity
mcchanisms lack any automatic supply ol policc powcr. vcn whcrc thc Sccurity
Council votcs to authorizc thc usc ol lorcc, thc cmploymcnt ol that authority
Committcc on Forcign Aairs, Vrittcn vidcncc lor thc Tcnth Rcport: Forcign
Policy Aspccts ol thc Var against Tcrrorism, July ., acc.
UN Sccurity Council Rcs. .., Nov. , acca.
6 Scc Ruth Vcdgwood, Tc Fall ol Saddam Husscin, Sccurity Council Mandatcs and
Prccmptivc Scllclcnsc, , Amcrican Journal ol !ntcrnational a, a (acc).
, Tc suggcstion has bccn madc that a matcrial brcach ol a Council rcsolution is dil
lcrcnt lrom thc matcrial brcach ol a trcaty, and may lack thc samc suspcnsivc ccct.
8ut thc Council itscll has uscd thc idca ol matcrial brcach in just this way through
out thc .aycar history ol Rcsolution 6,. Scc, c.g., statcmcnt by thc Prcsidcnt ol thc
Sccurity Council conccrning Unitcd Nations ights into !raqi tcrritory, UN oc.
S/ac. (.), quotcd in Ruth Vcdgwood, Tc nlorccmcnt ol Sccurity Council
Rcsolution 6,: Tc Trcat ol Forcc Against !raqs Vcapons ol Mass cstruction, a
Amcrican Journal ol !ntcrnational Law ,a, ,a, & accompanying notcs (.).
Scc, c.g., Human Rights Vatch, !raqs Crimc ol Gcnocidc: Tc Anlal Campaign
Against thc Kurds (Yalc Univcrsity Prcss .).
232 Futh !edg.ood
dcpcnds upon coalitions ol thc willing countrics willing to raisc and contributc
military lorccs. Council authorization may bc stymicd as wcll by thc particular
ambitions and conicting agcndas ol Council mcmbcrs. nc may notc, lor cxam
plc, thc potcntial ccct ol Chincsc cncrgy rclationships on thc Sccurity Councils
dclaycd rcsponsc to !ranian violations ol thc Nuclcar NonProlilcration Trcaty
and to Sudans gcnocidal acts in arlur.
!n August .c, thc Sccurity Council dcmandcd !raqs withdrawal lrom
Kuwait, and imposcd cconomic sanctions against thc rcgimc. Sanctions and
diplomacy wcrc givcn scvcral months to work. !n Novcmbcr .c, thc usc ol
armcd lorcc was authorizcd by Sccurity Council Rcsolution 6,, undcr Chaptcr
\!!, with a cday timc dclay to pcrmit Russian Forcign Ministcr Primakov and
othcrs to undcrtakc onc nal round ol diplomacy. Tc potcntial costs ol last
chancc diplomacy wcrc latcr shown in a dramatic discovcry madc by Unitcd
Nations wcapons inspcctors. As it turncd out, Saddam had uscd thc cday dip
lomatic intcrval in .c. to gct rcady lor battlc, producing and loading bio
logical rcagcnts into acrial bombs and warhcads.
!n othcr words, thc Commission corrcctly hcld that any ius ad bellum issucs could
not acct thc applicability ol !HL to thc conict.
C rguments under !us ad 8cllum May Not Be Used to Interpret
International Humanitarian La.
Ius ad bellum not only has no impact upon thc applicability ol !HL, but it also
may not bc uscd to intcrprct a provision ol !HL. Tus whcn balancing thc antici
patcd military advantagc ol an attack upon a military objcctivc with thc cxpcctcd
incidcntal civilian losscs in ordcr to cvaluatc whcthcr thc lattcr arc cxccssivc,
thcrcby making thc attack unlawlul
as mcm
bcrs ol thc civilian population lor thc purposcs ol classilying thcm as possiblc
victims ol a crimc against humanity, thcy arc lawlul targcts undcr !HL.
Unlortunatcly, thc highcst judicial organ ol thc Unitcd Nations, thc
!ntcrnational Court ol Justicc, could not rcach a dcnitivc conclusion as to
whcthcr thc most typical ius ad bellum argumcnt, sclldclcncc, could bc uscd to
intcrprct !HL. 8y scvcn votcs to scvcn, with thc Prcsidcnts casting thc ncccssary
ticbrcaking votc, thc Court camc to thc corrcct conclusion (in my vicw) that thc
usc ol nuclcar wcapons would gcncrally bc contrary to || thc principlcs and
rulcs ol humanitarian law.
8
Tc Court could obviously havc comc to anothcr
conclusion. qually, it could havc lound that a gcncral prohibition cxists, but that
thcrc arc also cxccptions. Undcr thc scparation bctwccn ius ad bellum and ius in
Scc Christophcr Grccnwood, Scllclcnsc, supra notc a at a,, asscrting that
thc usc ol lorcc lor humanitarian purposcs must bc limitcd to what is ncccssary
and proportionatc to achicving thc humanitarian purposcs ol thc opcration. Tis
principlc, Grccnwood argucs, ncccssarily rcstricts thc rangc ol what may bc law
lully attackcd. Scc Christophcr Grccnwood, !ntcrnational Law and thc NAT
!ntcrvcntion in Kosovo (accc) Intl . Comp. L. Q. a6 at . Critical, Andrcas
Laurscn, Nato, thc Var ovcr Kosovo, and thc !CTY !nvcstigation (acca) ., m. U.
Intl L. Fe.. ,6 at ,.
6 vc 8ring, !ntcrnational Humanitarian Law altcr Kosovo: !s Lex Lata Sucicnt:
(acca) ,. Nordic J. Intl La. at c, Michacl 8othc, Tc Protcction ol thc
Civilian Population and NAT 8ombing on Yugoslavia: Commcnts on Rcport
to thc Prosccutor ol thc !CTY (acc.) .a E.J.I.L. . at , Final Feport to the
Prosecutor by the Committee Established to Fe.ie. the NTO Bombing Campaign
gainst the Federal Fepublic of Yugosla.ia, onlinc: http://www.un.org/icty/prcssrcal/
natoc6.cc.htm at para. , |!CTY Rcport|. Richard 8. 8ildcr, Kosovo and thc
Ncw !ntcrvcntionism: Promisc or Pcril: (.) J. Transnatl L. . Pol y . at .,.
.,a, thinks that NAT practicc in thc Kosovo campaign rcvcals rathcr thc oppositc,
i.e. that in a humanitarian intcrvcntion it may bc lcgitimatc to attack additional tar
gcts to put prcssurc on thc lcadcrship.
, Final Feport of the Commission of Experts established pursuant to Security Council
Fesolution ,8c (z,,:), S/./6,, para. ,, Prosecutor .. Blaskic (accc) Casc No. !T
. (!CTY, Trial Chambcr) at para. a. and Prosecutor .. Tadic (.,) Casc No. !T
. (!CTY, Trial Chambcr, Mcrits) at para. 6c.
Legality of the Treat or Use of Nuclear !eapons, d.isory Opinion ( July , .6) |.6|
!CJ Rcp. aa6 at para. .c .
251 9 !us ad 8cllum and !us in 8cllo
bello, such cxccptions could not bc bascd upon ius ad bellum argumcnts. Yct this
is prcciscly what thc Court considcrcd possiblc whcn it wrotc: Howcvcr ||
thc Court cannot concludc dcnitcly whcthcr thc thrcat or usc ol nuclcar wcap
ons would bc lawlul or unlawlul in an cxtrcmc circumstancc ol sclldclcncc, in
which thc vcry survival ol thc Statc would bc at stakc.
Tosc who
criticizc this as law in thc scrvicc ol tcrror want to havc ius in bello bar thc rcali
zation ol ius ad bellum.
Similar objcctions must bc raiscd against thc claim madc by thc Unitcd
Statcs and somc writcrs that both sidcs, thc dclcndcr and thc attackcr, havc an
cqual rcsponsibility to protcct thc civilian population lrom thc cccts ol hostili
tics.
6
!t is truc that thc civilian population is bcst protcctcd il both sidcs takc
prccautionary mcasurcs. !n law, howcvcr, Statc practicc and thc tcxt, lcgislativc
history, and contcxt ol Protocol ! indicatc that both undcr Protocol ! and in cus
tomary intcrnational law thc main rcsponsibility is conlcrrcd upon thc attackcr.
8cyond thc absolutc prohibition to usc civilians as shiclds,
Protocol !, which
lists scvcral passivc prccautions to bc takcn by thc dclcndcr, clcarly indicatcs that
thcsc obligations arc wcakcr than thosc ol an attackcr. Tcy havc to bc takcn only
to thc maximum cxtcnt possiblc, and thc dclcndcr has only to cndcavour to
rcmovc thc civilian population and avoid locating military objcctivcs ncarby.
8
Scc Art. () ol Protocol !.
Message from the President of the United States Fegarding Protocol II dditional to the
z,,, Gene.a Con.entions, and Felating to the Protection of !ictims of Non-International
rmed Conicts, Message from the President of the United States, US Govcrnmcnt
Printing cc, .ccth Congrcss, .st scssion, Trcaty oc. .cca, Vashington .C.,
.,, ouglas J. Fcith, Law in thc Scrvicc ol Tcrror (.) Te National Interest No.
. at ,.
6 Scc thc \ictnam war Lcttcr by J. Frcd 8uzhardt, Gcncral Counscl ol thc cpartmcnt
ol clcnsc to Scnator dward Kcnncdy, Chairman ol thc Subcommittcc on Rclugccs
ol thc Committcc on thc Judiciary, rcproduccd in (.,) 6, AJ!L .aa at .a, U.S.
ir Force Pamphlet zzc-, at ., U.S. Na.al Handbook N!P , at ..., lorcclully, V.
Hays Parks, Air Var and thc Law ol Var (.c) a Te ir Force La. Fe.ie. . at
..6 with lurthcr rclcrcnccs, A.P.\. Rogcrs, La. on the Battleeld, (Manchcstcr:
Manchcstcr Univ. Prcss, .6) at ,,,, latcly, Kcnncth Andcrson, Vho wns
thc Rulcs ol Var:, Te Ne. York Times Maga.ine, . April acc, onlinc: http://
www.nytimcs.com/acc/c/./magazinc/.RULS.html. According to anicllc L.
!nlcld, PrccisionGuidcd Munitions cmonstratcd Tcir Pinpoint Accuracy in
cscrt Storm, 8ut !s a Country bligatcd to Usc Prccision Tcchnology to Minimizc
Collatcral Civilian !njury and amagc : (.a) a6 George !ashington J. Intl and
Comp. La. .c at .., thc dclcndcr cvcn has thc primary obligation.
, Scc Art. . (,) ol Protocol !.
Scc Art. ol Protocol !.
254 Marco Sassli
vcn with thosc qualications, scvcral dclcgations at thc iplomatic
Conlcrcncc strcsscd that thc provision, in particular thc obligation in rcspcct to
thc location ol military objcctivcs, may not prcvcnt a Statc lrom organizing its
national dclcncc as it considcrs ncccssary.
Ncvcrthclcss, ius ad bellum lor nonintcrnational armcd conicts docs cxist,
in national lcgislation. As thc monopoly on thc usc ol lorcc lor Statc organs is
inhcrcnt in thc vcry conccpt ol thc Vcstphalian Statc, wc may assumc that thc
national lcgislation ol all Statcs prohibits anyonc undcr thcir jurisdiction to wagc
an armcd conict against govcrnmcntal lorccs or, cxccpt Statc organs acting in
said capacity, anyonc clsc.
B International Humanitarian La. Treats Parties to a Non-
international rmed Conict Equally;
Ho.e.er, It Cannot Fequire Internal La.s to Do So
!HL ol nonintcrnational armcd conicts trcats all partics to such conicts
cqually.
6
Articlc common to thc lour Gcncva Convcntions ol . cxplicitly
prcscribcs that cach Party to such a conict has to apply its provisions. Hcrc too,
ius in bello, in thc lorm ol cithcr thc application ol this Articlc or thc conclusion
ol agrccmcnts bctwccn thc partics which bring into lorcc all or part ol !HL ol
Art. . () ol Protocol !.
Scc Mcssagc lrom thc Prcsidcnt, supra notc .
Tus cxplicitly Art. 6 () (c) ol Protocol !.
6 Statcs rcjcctcd at thc .,.,, diplomatic conlcrcncc which claboratcd Protocol !!
an cxplicit provision prcscribing such cquality (cl. Art. ol dralt Protocol !!, Draft
dditional Protocols to the Gene.a Con.entions of ugust z:, z,,, (Gcncva: !CRC, Junc
.,), but thc applicability ol thc principlc is uncontrovcrsial (scc Franois 8ugnion,
Jus ad 8cllum, Jus in 8cllo and Non!ntcrnational Armcd Conict (acc) 6
Yearbook of International Humanitarian La. |lorthcoming|, Yvcs Sandoz, Christophc
Swinarski & 8runo Zimmcrmann (cds.), Commentary on the dditional Protocols of
8 June z,,, to the Gene.a Con.entions of z: ugust z,,,, (Gcncva/ordrccht: !CRC/
Martinus Nijho Publishcrs, .,) at paras. a |!CRC Commcntary|,
Roscmary AbiSaab, Droit humanitaire et conits internes (Gcnvc/Paris, .6) at
.,., Michacl 8othc, Conits arms intcrncs ct droit intcrnational humanitairc
(.,) FGDIP a at a and ).
256 Marco Sassli
intcrnational armcd conicts,
,6 Scc Pcacc pcrations in Jcannc Mcycr and 8rian 8ill, cds., Operational La.
Handbook (:cc:) (\irginia, acca) lor thc cxpcrt on mission status ol NAT pilots
in thc cnlorccmcnt ol thc noy zonc and during thc bombardmcnt ol 8osnian
Scrb positions. Scc also Agcncc Francc Prcssc, Paris admct quc scs dcux pilotcs dis
parus cn 8osnic sont prisonnicrs, pcchc, ac Scptcmbcr ., AFP, M. Millon:
lcs dmarchcs pour librcr lcs pilotcs lranais vont sintgrcr dans lc plan dc paix,
pcchc, ac Scptcmbcr . and AFP, La CroixRougc ignorc toujours ou sont lcs
pilotcs lrancais abattus cn 8osnic, a. Scptcmbcr ., lor Franccs rcaction to its
pilots bcing hcld prisoncr and rccoursc to thc !CRC, which cmphasizcd that it was
not involvcd in ncgotiations lor rclcasc ol thc pilots.
,, Marco Sassli, Lcgislation and Maintcnancc ol Public rdcr and Civil Lilc by
ccupying Powcrs (acc) .6 EJIL 66. at 6 and 6.6.
261 9 !us ad 8cllum and !us in 8cllo
B La. Enforcement Directed at Terrorists Classied as
International rmed Conict
Two ol thc many disadvantagcs ol thc US administrations currcnt approach
towards thc war on tcrror, i.e., classilying that war as a singlc worldwidc intcr
national armcd conict, arc that thc charactcrization crcatcs a catcgory ol intcr
national armcd conicts in which !HL cannot bc applicd indcpcndcntly ol thc
conicts justication and in which !HL cannot apply cqually to both sidcs. Tc
author citcd abovc, in criticizing thc strict scparation bctwccn ius ad bellum and
ius in bello in thc contcxt ol a war on tcrror,
8
may bc corrcct in his prcmiscs,
but is wrong in thc conclusion hc draws. !t is not thc war on tcrror that dcmon
stratcs that thc scparation bctwccn ius ad bellum and ius in bello is crroncous. !t is
rathcr thc cquality ol thc bclligcrcnts bclorc !HL, rcsulting lrom that scparation,
which constitutcs an additional argumcnt that thc cntirc war on tcrror should
not bc labclcd as war.
!n thc war on tcrror, thc US and its allics arc by dcnition on thc right sidc
and thc tcrrorists arc on thc wrong onc, il only bccausc thc lattcr arc dcncd by a
mcthodology prohibitcd in !HL, tcrrorism.
Tc goal ol this articlc is to look at somc ol thc contcmporary challcngcs
lacing intcrnational humanitarian law. !n doing so this analysis will touch on thrcc
ol thc principal problcms conlronting L!AC today highlightcd by Prolcssor
instcin: pcrccptions that intcrnational humanitarian law will havc troublc dcal
ing with thc dcvclopmcnt ol ncw mcthods and mcans ol warlarc, thc intcrmin
gling ol civilians and combatants and thc cmploymcnt ol civilians as combatants,
and thc mcaninglul implcmcntation ol intcrnational humanitarian law.
8
Tc analysis is dividcd into two parts. First, thcrc is considcration ol thc
dcgrcc to which conict in thc a.
st
ccntury prcscnts ncw problcms. Tis is donc
by looking at thc typcs ol conicts, including thc war on tcrror and considcr
ing thc impact ol tcchnology on mcthods and mcans ol warlarc. Tc sccond part
ol thc articlc addrcsscs thc adcquacy ol cxisting law to mcct contcmporary chal
lcngcs, looks at thc prcscnt rcluctancc to changc that law, and outlincs a numbcr
ol thc major cracks in thc humanitarian law normativc lramcwork. Ultimatcly,
thc articlc sccks to idcntily a way ahcad in ordcr to cnsurc thc law kccps pacc
with socictal changc.
II Modern Conicts?
Tc rst issuc to bc considcrcd is whcthcr thc naturc ol conict has changcd in
thc a.
st
ccntury. Such an asscssmcnt will hclp idcntily thc dcgrcc to which chal
lcngcs to intcrnational humanitarian law arc ncw or simply old problcms lor
which incrcascd scrutiny has scrvcd to highlight controvcrsics in thc cxisting
Ibid.
Ibid.
6 Ibid. at a,.
, Ibid.
Ibid. Tc othcr problcms idcnticd by Prolcssor instcin arc: intransigcnt thcorcti
cal disagrccmcnts bctwccn thc supportcrs ol AP ! and somc kcy playcrs lcd by thc
Unitcd Statcs, and thc lcgality ol nuclcar wcapons.
267 10 21st Century Conict and International Humanitarian La.
law. !n that rcgard contcmporary conicts arc asscsscd in two oltcn intcrrclatcd
ways: thc typc ol conicts and thc mcthods and mcans ol warlarc uscd to pros
ccutc thosc conicts.
Types of Conicts
Varlarc is oltcn considcrcd within a bilurcatcd lcgal lramcwork ol intcrnational
and nonintcrnational armcd conict. !n its traditional lorm, intcrnational armcd
conict is vicwcd as a conict bctwccn statcs,
Such de facto wars havc now givcn way to thc Trcc 8lock Vars conlronting
modcrn armcd lorccs in lailcd and lailing statcs.
6
!ntcrnational laws strugglc to dcal with low lcvcl intcrnational or trans
national armcd conict is additionally rccctcd in thc controvcrsy surround
ing noncombatant cvacuation opcrations, hostagc rcscuc and intcrvcntion in
dclcncc ol nationals in lorcign tcrritory.
Noncombatant E.acuation Manual .) (Pcrsonncl may bc cvacuatcd undcr condi
tions ranging lrom civil disordcr or tcrrorist action to lullscalc combat.) (Last vis
itcd Jan. ., acc6).
Scc instcin, supra notc a, at a.
For cxamplc scc Prosccutor v. Tadic, (Appcal Chambcr) paras. 6.a (a ctobcr
.), availablc at http://www.un.org/icty/tadic/appcal/dccisionc/.cca.htm.
c JcanMaric Hcnckacrts & Louisc oswald8cck, Customary !ntcrnational
Humanitarian Law xxix (Cambridgc Univcrsity Prcss, acc). (Hcrcinaltcr thc
Customary Law Study.).
. For cxamplc, scc thc Statutc ol thc !ntcrnational Tribunal lor thc Prosccution ol
Pcrsons Rcsponsiblc lor Gcnocidc and thcr Scrious \iolations ol !ntcrnational
Humanitarian Law Committcd in thc Tcrritory ol Rwanda and Rwandan Citizcns
Rcsponsiblc lor Gcnocidc and thcr Such \iolations Committcd in thc Tcrritory
ol Ncighbouring Statcs, 8ctwccn . January . and . cccmbcr ., SC Rcs. ,
Art. .
a Romc Statutc ol thc !ntcrnational Criminal Court, July .,, ., Art. (a)(c).
Scc Prosccutor v. Tadic, (Appcal Chambcr) (a ctobcr .), supra notc .
Ibid. at para. .a,. (Tcsc rulcs wcrc idcnticd as covcring such arcas as protcction
ol civilians lrom hostilitics, in particular lrom indiscriminatc attacks, protcction ol
274 Kenneth !atkin
Vhat rcmains to bc donc is to articulatc thosc rulcs in a manncr which will
lcad to a conscnsus rcgarding thcir scopc. !l history is a good indicator, achicv
ing such a conscnsus may provc to bc onc ol thc grcatcst challcngcs in intcrna
tional humanitarian law. !n that rcgard, potcntial obstaclcs will not bc limitcd to
gaining acccptancc by statcs. As will bc discusscd, thc rcgulation ol both intcr
nal conicts and violcncc by nonstatc actors transccnding national bordcrs will
rcquirc considcration ol thc intcrlacc bctwccn intcrnational humanitarian law
and human rights norms. Rcaching conscnsus may ncccssitatc rcsolution ol thc
signicantly dicrcnt vicws ol humanitarian law and human rights law advocatcs
on how to control armcd lorcc and its cccts. Furthcr, thc lundamcntal distinc
tions bctwccn thc two normativc rcgimcs in controlling thc usc ol lorcc will havc
to bc rcconcilcd, as a human rights law rcgimc sccks to rcvicw cvcry usc ol lorcc,
whilc humanitarian law is bascd on thc prcmisc thcrc will bc killing and likcly
collatcral damagc.
B Methods and Means
Tc sccond way to asscss contcmporary conict is in rcspcct ol thc mcans and
mcthods ol warlarc. !n many conicts, thc tools ol war havc not changcd.
Varlarc continucs to bc conductcd to a largc cxtcnt by thc usc ol small arms,
artillcry and cvcn landmincs, although a signicant portion ol thc world com
munity has now banncd land minc usc.
6
vcn thc idca ol asymmctric warlarc,
which has a prcdominatc placc in thc contcmporary lcxicon, has long bccn a part
ol a mcans ol warlarc practiccd by both nonstatc
8
and statc actors.
Tc asym
civilian objccts, in particular cultural propcrty, protcction ol all thosc who do not (or
no longcr) takc activc part in hostilitics, as wcll as prohibition ol mcans ol warlarc
proscribcd in intcrnational armcd conicts and ban ol ccrtain mcthods ol conduct
ing hostilitics.).
Scc Vatkin, supra notc a, at a.
6 ., Convcntion on thc Prohibition ol thc Usc, Stockpiling, Production and Translcr
ol AntiPcrsonncl Mincs and on Tcir cstruction.
, Scc S. Mctz & .\. Johnson !!, symmetry and U.S. Military Strategy: Denition,
Background, and Strategic Concepts, Strategic Studies Institute Feport, US Army Var
Collcgc, 6 (acc.). (Acting, organizing and thinking dicrcntly than opponcnts in
ordcr to maximizc oncs own advantagcs, cxploit an opponcnts wcakncsscs, attain
thc initiativc, or gain grcatcr lrccdom ol action.).
Asymmctric attacks arc inhcrcntly part ol what John Kccgan has tcrmcd thc oricn
tal way ol war which dcscribcs a dicrcnt way ol waging war with traits ol cvasion,
dclay and indircctncss. Scc John Kccgan, History of !arfare, (\intagc 8ooks,
.).
Asymmctric warlarc can also bc conductcd by statcs. For cxamplc, thc Allics madc
cxtcnsivc usc ol spccial opcrations lorccs during Vorld Var !! to support organizcd
rcsistancc movcmcnts in occupicd tcrritorics. Such spccializcd lorccs includcd thc
Spccial pcrations xccutivcS, thc cc ol Stratcgic ScrviccsSS and thc
275 10 21st Century Conict and International Humanitarian La.
mctric usc ol military and paramilitary spccial lorccs to countcr thc thrcat ol
intcrnational tcrrorism has bccn onc ol thc hallmarks ol thc Var on Tcrror.
o
cspitc considcrablc dcbatc about thc status ol dctainccs capturcd during
opcrations lollowing thc /.. attacks, unlawlul combatants or unprivilcgcd
bclligcrcnts
+
havc cxistcd throughout history.
:
Similarly, tcrrorism is ncithcr
modcrn nor cxccptional. Tcrrorist acts prcdatc thc a.
st
ccntury usc ol thc tcrm.
Tc statc initiatcd modcrn conccpt ol thc Rcign ol Tcrror was introduccd
during thc Frcnch Rcvolution.
Russian Ccntral Sta ol thc Partisan Movcmcnt. Scc Robcrt 8. Asprcy, Var in thc
Shadows, chap. . to . (oublcday and Co. !nc., .,) No. !. Tc post Vorld Var
!! usc ol spccial lorccs is outlincd in books such as Stcphcn orril, M!6: !nsidc thc
Covcrt Vorld ol Hcr Majcstys Sccrct !ntclligcncc Scrvicc ,a (Touchstonc, acca),
John Prados, Lost Crusadcr: Tc Sccrct Vars ol C!A ircctor Villiam Colby ac,
a (xlord Univcrsity Prcss, acc) and Stcvc Coll, Ghost Vars: Tc Sccrct History
ol thc C!A, Alghanistan and 8in Ladcn, From thc Sovict !nvasion to Scptcmbcr .c,
acc. (Pcnguin 8ooks, acc).
c For an outlinc ol a.st ccntury spccial lorccs involvcmcnt scc Max 8oot, Te Struggle
to Transform the Military, For. A. .c (March/April acc), Linda Robinson,
Mastcrs ol Chaos: Tc Sccrct History ol thc Spccial Forccs ..c (Public Aairs,
acc) (outlining Unitcd Statcs Spccial Forccs opcrations in Alghanistan), Gary C.
Schrocn, First !n: An !nsidcrs Account ol How thc C!A Spcarhcadcd thc Var on
Tcrror in Alghanistan (8allcntinc, acc) and Ruth Jamicson & Kicran Mcvoy,
State Crime by Proxy and Juridical Othering, 8rit. J. Crim. L. c, c.c (acc).
. Scc Richard R. 8axtcr, So-called Unpri.ileged Belligerency: Spies, Guerrillas, and
Saboteurs, a 8rit.Y.8. !ntl L. a, a (..), whcrc unprivilcgcd bclligcrcnts arc
dcncd as pcrsons who arc not cntitlcd to trcatmcnt cithcr as pcacclul civilians or
as prisoncrs ol war by rcason ol thc lact that thcy havc cngagcd in hostilc conduct
without mccting thc qualications cstablishcd by Articlc ol thc Gcncva Prisoncrs
ol Var Convcntion ol ..
a Scc rapcr, supra notc .. Scc also Kcnncth Vatkin, !arriors !ithout Fights?
Combatants, Unpri.ileged Belligerents, nd Te Struggle O.er Legitimacy a ccasional
Papcr Scrics ,a (Program on Humanitarian Policy and Conict Rcscarch Harvard
Univcrsity, Vintcr acc) availablc at http://www.hpcr.org/pdls/ccasionalPapcra.
pdl.
Scc 8crnard Lcwis, Tc Assassins: A Radical Scct in !slam .a.c (Phocnix, .6,)
(acc), whcrc hc indicatcs thc Assassin scct ol thc mcdicval pcriod may wcll havc
bccn thc rst tcrrorists.
Charlcs Townscnd, Tcrrorism: A \cry Short !ntroduction 6, (xlord Univcrsity
Prcss, acca).
Scc J.M. Spaight, Var Rights on Land , (photo. rcprint .,) (...). (|T|hc scpara
tion ol armics and pcacclul inhabitants into two distinct classcs is pcrhaps thc grcat
cst triumph ol !ntcrnational Law.).
276 Kenneth !atkin
Tcrc has bccn considcrablc strcss placcd on longstanding intcrnational
humanitarian law principlcs. Notwithstanding thc continuing importancc ol thc
principlc ol distinction, which has bccn tcrmcd a lundamcntal and intransgrcss
iblc principlc ol customary intcrnational law, this loundational conccpt has bccn
signicantly impactcd by tcchnology.
6
!t was thc dcvastating ccct on civilians
by tcchnologically cmpowcrcd warlarc which lcd to thc commcnt at thc cnd ol
Vorld Var !! that whatcvcr may havc bccn thc original mcrits ol that distinc
tion, thc phcnomcnon ol total war has rcduccd it, in most rcspccts, to a hollow
phrasc.
!n ordcr lor thc principlc ol distinction to rcmain rclcvant to thc modcrn
battlcspacc, lundamcntal qucstions nccd to bc askcd about how military objcc
tivcs arc distinguishcd lrom civilians and civilian objccts. To this point, thc appli
cation ol thc principlc ol distinction in scparating combatants lrom uninvolvcd
civilians has largcly bccn unilorm or symbol bascd. thcr than thc marking ol
implcmcnts ol war such as tanks, trucks, ships, aircralt, ctc., thc samc symbol
bascd idcntication has not bc rcquircd lor military objccts such as bridgcs, lac
torics and oil production lacilitics.
6
As was notcd by Prolcssor Richard 8axtcr
ovcr c ycars ago, thc cmphasis on thc propcrly unilormcd bclligcrcnt may bc
only a survival lrom thc typc ol war lought by closcly groupcd ranks ol soldicrs,
in which ring upon cvcn individual dctachcd soldicrs was rcgardcd as violativc
ol intcrnational law.
arc csscntial
clcmcnts ol thc humanitarian normativc lramcwork, it is thc rich dctail ol trcaty
documcnts such as thc Tird Gcncva Convcntion which providcs thc most ccr
. Scc Kcllcnbcrgcr, supra notc ,.
a Scc instcin, supra notc , at a,.
Scc Ministry ol Forcign Aairs, Tc !ntcrnational Pcacc Conlcrcncc (Martinus
Nijho, .c,), thc principlcs ol intcrnational law dcrivcd lrom cstablishcd custom,
thc principlcs ol humanity and thc dictatcs ol public conscicncc. Scc also Antonio
Casscsc, Te Martens Clause: Half a Loaf or Simply Pie in the Sky?, .. ur. J. !ntl. L.
., (accc).
284 Kenneth !atkin
tain protcction. For that rcason, thc Tird Convcntion is hcld out as thc standard
cvcn lor thosc who do not qualily lor combatant status.
Givcn both thc changc in thc naturc ol combat and thc prcdominancc ol
intcrnal conict, it appcars incrcasingly dicult to maintain an argumcnt that
thc status quo providcs cithcr sucicnt protcction to victims or adcquatc guid
ancc lor commandcrs and thcir political lcadcrs. Tc rcsulting nccd to idcntily
and clarily thc customary lcgal rulcs govcrning contcmporary conict undcr
pinncd thc !CRCs Customary !ntcrnational Humanitarian Law Study.
or at lcast as
it is sccn to arisc.
Vhilc, sct against a broad historical contcxt, thc cvolution ol law in thc cld
may appcar rapid, thcrc arc thosc who would arguc that it is not spccdy cnough,
nor sucicntly dcnitivc and that unncccssary humanitarian risks arc thc con
scqucncc ol this hcsitancy ovcr lcgal dcvclopmcnt. Ccrtainly thcrc arc wcap
ons which attract controvcrsy but which arc not thc subjcct yct ol spccic lcgal
Tc opinions cxprcsscd in this articlc arc ocrcd in thc authors pcrsonal capac
ity, and should not bc takcn to rcprcscnt thc vicws ol thc Royal Air Forcc or ol thc
Unitcd Kingdom Ministry ol clcncc.
. St. Pctcrsburg cclaration, .6.
a .c UN Convcntion on Prohibitions or Rcstrictions on thc Usc ol Ccrtain
Convcntional Vcapons Vhich May 8c ccmcd to 8c xccssivcly !njurious or to
Havc !ndiscriminatc ccts (hcrcinaltcr rclcrrcd to as thc Convcntional Vcapons
Convcntion or CCV).
Such ncw law may takc thc lorm ol Protocols to thc Convcntion.
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. :,,-zo.
298 Bill Boothby
provision. Vhat is thc currcnt mcans whcrcby conccrn in rclation to a wcapon
is turncd into hard law: !s it adcquatc: Arc thc arrangcmcnts lor ncw law in
thc Convcntional Vcapons Convcntion (CCV) satislactory or should thcy bc
changcd: Arc altcrnativc approachcs, such as that which gavc risc to thc ttawa
Convcntion, prclcrablc: ocs thc currcnt law scrvc to protcct, or is it so limitcd
in scopc and dcpth as to bc a dcad lcttcr:
Sccking to addrcss at lcast somc ol thcsc qucstions, ! start by sctting lorth
thc lundamcntal principlcs ol thc law ol wcaponry. Tc spccic rulcs that havc
cmcrgcd govcrning particular wcapons typcs or tcchnologics will thcn bc out
lincd, as will thc rcquisitc lcgal rcvicw ol wcapons, a proccss distinguishablc
lrom thc provision ol lcgal advicc on opcrations. At that point, ! cxaminc thc
Convcntional Vcapons Convcntion (CCV) proccss, summarising what it has
produccd and whcrc it prcscntly rcsts. !ncludcd is a discussion ol thc advantagcs
and disadvantagcs ol thc CCV approach to making intcrnational law in this
cld. Finally, ! addrcss thc broad adcquacy ol currcnt wcapons law by rclcrcncc to
thc spccic issucs notcd carlicr.
II Iundamental Principles of the Iaw of Weaponry
Tc corncrstonc ol thc law ol wcaponry lics in thc principlc that thc right ol
bclligcrcnts to adopt mcans ol injuring thc cncmy is not unlimitcd. Tis princi
plc is traccd by thc authors ol thc !CRC Commcntary on Additional Protocol
! back to thc writings ol Grotius.
Tc altcrnativc to thc CCV approach was, arguably, sccn in thc ., adop
tion ol thc ttawa Convcntion on antipcrsonncl landmincs (APL). Tc ncgoti
ations in slo to producc that Convcntion wcrc rapid.
8
A high prolc campaign
supportcd by cxtcnsivc data lrom numcrous conict zoncs madc thc humanitar
ian casc. Tc cvidcncc, prcscntcd by a numbcr ol NGs and ccrtain statcs, cstab
lishcd that thc usc ol APL might givc risc to civilian casualtics long altcr thc
conclusion ol thc hostilitics in which thcy wcrc uscd.
Tcchnology limiting thc activc lilc ol such mincs to thc pcriod rcquircd by
thcir military purposc would havc signicantly addrcsscd thc important humani
tarian issuc whilc cnabling thc rctcntion ol wcapons, which havc undoubtcd mil
itary utility. Tus, thc US dclcgation proposcd to thc slo Conlcrcncc that thcrc
should bc an cxcmption lrom thc ban lor mincs thc activc livcs ol which arc lim
itcd, c.g, by sclldcstruction or sclldcactivation arrangcmcnts.
8y thc timc ol
thc Conlcrcncc in slo, howcvcr, thc prcvailing vicw was that only a total ban on
all APL would bc acccptablc, and that an cxccption availablc only to thosc statcs
with thc tcchnology to cmploy it would prcjudicc achicving this goal. !n thc
authors vicw, thc dcvclopmcnt ol an Austrian dralt tcxt, which was uscd as thc
basis lor ncgotiation ol thc ttawa Convcntion, in consultation with a limitcd
6 8ascd on thc pcrsonal knowlcdgc ol thc author as a mcmbcr ol thc UK clcgation
to thc Conlcrcncc.
, ut ol 8alancc, op. cit., scction , at pp. .a.
8ascd on pcrsonal knowlcdgc ol thc author as a mcmbcr ol thc UK dclcgation to thc
Conlcrcncc.
8ascd on pcrsonal knowlcdgc ol thc author as a mcmbcr ol thc UK dclcgation to thc
Conlcrcncc.
313 11 Te La. of !eaponry Is It dequate?
group ol likcmindcd statcs, mcant that statcs that bccamc involvcd latcr lackcd
thc traction nccdcd to proposc altcrnativc approachcs.
At thc timc ol writing, ., statcs
o
arc party to thc ttawa Convcntion. Forty
havc not bccomc party. Notablc among thcsc nonparticipants arc China, !ndia,
gypt, !ndoncsia, !ran, !raq, !sracl, Pakistan, thc Russian Fcdcration, Poland,
Syria, Ukrainc and thc Unitcd Statcs. As lar as thc author is awarc, nonc ol thcsc
statcs has any immcdiatc intcntion ol so doing. !t is an opcn qucstion whcthcr
an cxcmption ol thc sort proposcd by thc US would havc cnablcd widcr ratica
tion ol thc Convcntion. !t is also pcrhaps worthy ol notc that thc statcs party to
Amcndcd Protocol a to CCV includc China, !ndia, !sracl, Pakistan, Poland, thc
Russian Fcdcration, Ukrainc and thc Unitcd Statcs. Vhilc Amcndcd Protocol
a rcstricts rathcr than prohibits thc usc ol antipcrsonncl landmincs, its adop
tion by thcsc statcs is, at thc vcry lcast, highly signicant. !t would sccm that an
approach that sccks to includc thc vicws ol all acctcd statcs is nccdcd il broad
acccptancc by major statcs ol thc rcsulting trcaty tcxt is to bc achicvcd. Statcs arc
bound to bc suspicious il thcir vicws arc only considcrcd at a latc stagc or, worsc
still, not at all.
Tc dcvclopmcnt ol ncw law is not ncccssarily thc only answcr whcn ncw
conccrns arc raiscd in rclation to particular wcapons. Political statcmcnts, unilat
cral moratoria, cxport controls and othcr mcasurcs not involving thc conclusion
ol trcatics may all havc a rolc to play. Tc bcauty ol law, howcvcr, is that it lacili
tatcs thc dcvclopmcnt ol battlccld norms that, in turn and in timc, will dircctly
inucncc thc bchaviour at thc root ol thc problcm. ctcrmining thc adcquacy ol
that law, howcvcr, involvcs dctcrmining how lar statcs rccognisc and implcmcnt
thosc norms.
Pcrhaps a ncw, rationalist approach to thc cvolution ol ncw wcapons law
is nccdcd. !ntcrcstingly, statcs involvcd in thc CCV proccss havc applicd such
an approach whcn considcring thc apparcntly linkcd issucs ol cxplosivc rcmnants
ol war (RV) and clustcr munitions. Following thc conclusion ol Protocol \ to
CCV, thc qucstion thc CCV mcmbcr statcs wcrc considcring was what lurthcr
stcps should bc takcn to addrcss thc RV problcm.
+
!n a papcr datcd March
c Tc statistics and data in this paragraph arc takcn lrom thc www.icbl.org and www.
icrc.org wcbsitcs rcvicwcd on . cc. acc.
. Tc mandatc, as dccidcd by thc a,a Novcmbcr acc mccting ol Statcs Party to
CCV in paragraph a6 ol CCV/MSP/acc/, statcs: To continuc to considcr thc
implcmcntation ol cxisting principlcs ol !ntcrnational Humanitarian Law and to
lurthcr study, on an opcncndcd basis, and initially with particular cmphasis on
mcctings ol military and tcchnical cxpcrts, possiblc prcvcntivc mcasurcs aimcd at
improving thc dcsign ol ccrtain spccic typcs ol munitions, including submuni
tions, with a vicw to minimizc thc humanitarian risk ol thcsc munitions bccoming
cxplosivc rcmnants ol war. xchangc ol inlormation, assistancc and coopcration
would bc part ol this work. iscussions havc continucd on thc basis ol a broadly
similar mandatc as rcportcd in UN C/a, datcd .a Aug. acc.
314 Bill Boothby
acc, thc Coordinator suggcstcd a thrccstcp approach. Stcps onc and two con
sistcd ol idcntilying rclcvant principlcs ol intcrnational humanitarian law and
cstablishing thc status ol thcir implcmcntation by statcs.
A group ol cight statcs
:
in association with thc !ntcrnational Committcc
ol thc Rcd Cross thcn dcvclopcd a qucstionnairc.
!n thc opinion ol thc author, and givcn that intcrnational law is and will
rcmain a mattcr lor statcs to agrcc upon and implcmcnt, it will always bc ncccs
sary to balancc military rcquircmcnts with humanitarian conccrns. Law which
lails to do so is likcly to bc, and rcmain, inccctivc. Tc CCV proccss ocrs thc
bcst approach yct dcvclopcd lor achicving this goal.
V Conclusion
Among thc conclusions that sccm to cmcrgc lrom thc lorcgoing discussion arc:
that gcncral principlcs ol cxisting law placc limits on thc harm that can
lcgitimatcly bc inictcd on advcrsarics and on thc cnvironmcnt,
that particular tcchnologics lound to bc ol conccrn arc subjcct to intcrna
tional law prohibitions or rcstrictions on usc,
that cxisting law rcquircs statcs to considcr thc applicablc law whcn acquir
ing ncw wcapons,
that a trcaty rcgimc cxists which lacilitatcs thc making ol ncw wcapons
rclatcd intcrnational law il this is nccdcd,
that this rcgimc rcquircs conscnsus bclorc any substantivc dcvclopmcnt ol
thc Convcntion or ol its protocols can takc placc. Vhilc this rcquircmcnt
may impcdc dcvclopmcnt ol thc law, it has thc mcrit that all statcs rcmain
in control ol thc wcapons law making proccss,
that nonconscnsus approachcs can producc ncw law quickly, but thc potcn
tial alicnation ol somc spccially acctcd statcs may diminish thc valuc ol
such a proccss, crodc adhcrcncc to its product and limit thc accomplishmcnt
in lact ol thc intcndcd humanitarian aims,
that an analytic approach to wcapons issucs ought to producc logical solu
tions. Conscnsus in lavour ol such solutions cannot bc guarantccd, but an
approach bascd on logical analysis is morc likcly, givcn timc, to gain widc
sprcad intcrnational support.
Tc body ol law rclating to wcapons has cxpandcd markcdly sincc thc adoption
ol CCV with its Protocols. Statcs havc dcmonstratcd a willingncss to considcr
humanitarian conccrns and, whcrc vcricd to thcir collcctivc satislaction, to act
consistcntly with thc rcquircmcnts ol military ncccssity. Vhilc thc inability to
achicvc conscnsus in lavour ol lurthcr and rapid progrcss in CCV in Novcmbcr
acc may causc somc to bclicvc that progrcss on wcaponry in that lorum has sud
dcnly bccomc impossiblc, it is thc authors vicw that this is lar lrom thc casc.
ut ol 8alancc, op. cit.
316 Bill Boothby
Rathcr, dcvcloping cxpcricncc shows that proposals lor ncw law in thc
wcapons cld must bc supportcd by rigorous and objcctivc justication. Tc sug
gcstcd action must adcquatcly and obscrvably rccognisc thc csscntial dclcncc
nccds ol statcs, and, thus, must pass thc will it work and makc a dicrcncc tcst.
Vhilc wcapons law cannot hopc to obviatc sucring on thc battlccld (indccd,
that is not its purposc), it docs providc an ccctivc mcans ol rcducing thc miscry
to a minimum lcvcl practically achicvablc by statcs. cvclopmcnt ol thc law is a
continuing proccss, and as ncw humanitarian conccrns cmcrgc and arc acccptcd
by statcs, lurthcr changcs in thc law can bc cxpcctcd. Vhcthcr thc spccd ol that
proccss will satisly all conccrncd rcmains to bc sccn. !t is, howcvcr, important in
thc vicw ol thc author that statcs rcmain in control ol thc proccss.
Chapter 12
Combatants Substancc or Scmantics:
Charles H.B. Garra.ay
Vhcn ! usc a word, Humpty umpty said in a rathcr scornlul tonc, it mcans
just what ! choosc it to mcan nothing morc nor lcss.
+
Prolcssor Yoram instcin is a giant in thc cld ol intcrnational law. ! am just onc
ol thc many who havc bcnctcd ovcr thc ycars lrom his wisdom and kindncss. Tc
sign ol truc grcatncss is ncvcr to bc alraid ol argumcnt or disscnt. Yoram instcin
ncvcr is and ncvcr has bccn. !ndccd hc cncouragcs it! nc ol my rst major
Conlcrcncc prcscntations lound mc on thc samc pancl as Prolcssor instcin on a
subjcct on which wc took opposcd vicws. To assist mc in my prcscntation, hc had
scnt mc copics ol somc ol his publishcd and unpublishcd matcrial so that !
could dcvclop my argumcnt. Hc thcn publishcd my papcr in thc !sracl Ycarbook
on Human Rights.
:
vcr thc ycars, wc havc continucd thc dialoguc and although
! initially dcscribcd thc gap bctwccn us as thc Atlantic ividc, hc soon taught
mc that in lact thc dividc is small in practicc and comcs down in somc rcspccts to
scmantics. !n rcality, our scparatc roads lcad to much thc samc cnd rcsult.
Far bc it lrom mc to accusc Prolcssor instcin ol any rcscmblancc to
Humpty umpty or any ol thc othcr charactcrs in Lcwis Carrolls storics.
Howcvcr, scmantics arc important and pcrhaps nowhcrc morc so than in thc
study ol law, whcthcr domcstic or intcrnational. Vords arc thc tools ol thc law
ycrs tradc and thcrclorc it is important that thcrc is somc agrccmcnt as to thc
mcaning to bc ascribcd to words that arc important in thc lcgal lcxicon. Courts
dcnc words and scck to dissuadc thc Humpty umptys ol this world lrom thcir
attcmpts to introducc anarchy into thc usc ol words. !n thc intcrnational cld,
thcrc arc lcwcr opportunitics lor such dccisions and grcatcr cmphasis pcrhaps on
principlcs. Tis is particularly so in thc cld ol intcrnational humanitarian law,
thc law ol armcd conict as it is known in thc military, whcrc thc law is bascd
. Alicc Trough thc Looking Glass, Lcwis Carroll, Valkcr 8ooks, London acc at
p..a.
a !ntcropcrability and thc Atlantic ividc A 8ridgc ovcr Troublcd Vatcrs, !sracl
Ycarbook on Human Rights (acc), at p..c.a.
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. z,-,.
318 Charles H.B. Garra.ay
on trcatics, oltcn containing compromisc wording ol which Humpty umpty
would bc proud.
And yct still words mattcr. Tc soldicr, sailor, airman or marinc is not intcr
cstcd in philosophy or principlcs. Hc or shc wants to know what hc or shc can or
cannot do. His or hcr ordcrs nccd to bc clcar and concisc. Tcrc is no room lor
ambiguity hcrc. nc ol thc tasks ol military lawycrs is to assist in that proccss ol
intcrprctation so that thc raw matcrial containcd in thc trcaty tcxts comcs out at
thc cnd ol thc proccss as clcar instructions, which thc lowcst scrviccman can thcn
undcrstand and implcmcnt.
!t is lor that rcason that ! wish hcrc to rcturn to my original disagrccmcnt
with Prolcssor instcin and scc whcrc wc havc movcd and whcncc wc arc moving.
Tc word that is thc subjcct ol so much controvcrsy is combatant. ! dclibcratcly
lcavc thc word in its unvarnishcd statc. Vhatcvcr adjcctivc somc may wish to usc
to dcscribc any particular catcgory illcgal, unlawlul, unprivilcgcd or just
plain cncmy thc corc ol thc problcm ol intcrprctation lics in thc noun itscll.
Vhat docs it mcan and, pcrhaps morc importantly, what should it mcan:
Somc ycars ago, ! was rcvicwing thc matcrial uscd at thc 8ritish Joint
Scrviccs Command and Sta Collcgc in thcir Foundation Studics Phasc. !n
that phasc, !ntcrnational Law and thics wcrc taught in thc samc packagc. Tc
csscntial rcading listcd consistcd ol a papcr by Christophcr Grccnwood,
a chap
tcr lrom a book by Pctcr Rowc
Tc problcm was that two wcrc by cmincnt scholars in intcrnational humanitar
ian law and onc by an cqually cmincnt scholar in thc cld ol cthics. No attcmpt
had bccn madc, so lar as ! could nd, to chcck lor consistcncy.
Grccnwood, in his papcr, outlincd in traditional tcrms that a ccntral lcaturc
ol thc laws ol armcd conict cvcr sincc thc cightccnth ccntury has bccn thc dis
tinction bctwccn combatants and civilians.
6
Hc wcnt on to dcal with thc dc
nition ol combatants undcr thc trcaty law, ranging lrom thc Haguc Rcgulations
Command and thc Laws ol Armcd Conict, Christophcr Grccnwood, Stratcgic
Combat Studics !nstitutc ccasional Papcr No., Cambcrlcy, . (Grccnwood).
Chaptcr , Tc Gcncva Convcntions and Additional Protocols, in clcncc: Tc
Lcgal !mplications: Military Law and thc Laws ol Var, Pctcr Rowc, 8rasscys, .,
(Rowc).
Chaptcr , Var, in thics and !ntcrnational Rclations, Gordon Graham, xlord,
8lackwclls, .6 (Graham).
6 Grccnwood, lootnotc abovc, at p...
319 12 Combatants Substance or Semantics?
ol .c,,
Tis is a clcar rcvcrsal lrom thc carlicr Haguc Rcgulations in which mcmbcrs ol
thc armcd lorccs could bc combatants or noncombatants, bascd on thcir activi
tics. Now all mcmbcrs ol thc armcd lorccs, othcr than mcdical pcrsonncl and
chaplains, arc combatants rcgardlcss ol whcthcr thcy arc activcly cngagcd in thc
conduct ol hostilitics. vcn military lawycrs arc now combatants! Tc dcnition
hcrc is undoubtcdly bascd on status rathcr than conduct.
8ut Additional Protocol ! gocs lurthcr. !t sccks to closc anothcr gap by pro
viding a dcnition ol civilian. Tis is to bc lound in Articlc c(.) which statcs:
A civilian is any pcrson who docs not bclong to onc ol thc catcgorics ol pcrsons
rclcrrcd to in Articlc (A) (.), (a), () and (6) ol thc Tird Convcntion and in
Articlc ol this Protocol. !n casc ol doubt whcthcr a pcrson is a civilian, that
pcrson shall bc considcrcd to bc a civilian.
From this, it will bc sccn that unlcss somconc is a mcmbcr ol thc armcd lorccs
ol a Party to thc conict, as dcncd in Articlc , or altcrnativcly within thosc
catcgory ol bclligcrcnts cntitlcd to prisoncrolwar status undcr Articlc A ol
thc Tird Gcncva Convcntion, that pcrson is a civilian. Tis includcs thosc cat
cgorics ol pcrson containcd in Articlc A() and (), such as civilians accompa
nying thc armcd lorccs, who might othcrwisc qualily as combatants undcr thc
Graham tcst as outlincd carlicr.
!t is somctimcs claimcd that in lact Additional Protocol ! gocs cvcn lurthcr
than this in cxtcnding thc dcnition ol combatant to includc tcrrorists.
Tc
authority lor this is claimcd to bc Articlc which statcs:
.. Any combatant, as dcncd in Articlc , who lalls into thc powcr ol an
advcrsc Party shall bc a prisoncr ol war.
a. Vhilc all combatants arc obligcd to comply with thc rulcs ol intcrna
tional law applicablc in armcd conict, violations ol thcsc rulcs shall not
Robcrts and Gucl, lootnotc ,, at p..
Ibid, at p..
Scc, lor cxamplc, ouglas Fcith, Law in thc Scrvicc ol Tcrror Tc Strangc Casc ol
thc Additional Protocol, Tc National !ntcrcst, Fall ., at p.6.
326 Charles H.B. Garra.ay
dcprivc a combatant ol his right to bc a combatant or, il hc lalls into thc
powcr ol an advcrsc Party, ol his right to bc a prisoncr ol war, cxccpt as
providcd in paragraphs and .
. !n ordcr to promotc thc protcction ol thc civilian population lrom thc
cccts ol hostilitics, combatants arc obligcd to distinguish thcmsclvcs
lrom thc civilian population whilc thcy arc cngagcd in an attack or in a
military opcration prcparatory to an attack. Rccognizing, howcvcr, that
thcrc arc situations in armcd conicts whcrc, owing to thc naturc ol thc
hostilitics an armcd combatant cannot so distinguish himscll, hc shall
rctain his status as a combatant, providcd that, in such situations, hc car
rics his arms opcnly:
(a) during cach military cngagcmcnt, and
(b) during such timc as hc is visiblc to thc advcrsary whilc hc is cngagcd
in a military dcploymcnt prcccding thc launching ol an attack in
which hc is to participatc.
Acts which comply with thc rcquircmcnts ol this paragraph shall not bc
considcrcd as pcrdious within thc mcaning ol Articlc ,, paragraph .
(c).
. A combatant who lalls into thc powcr ol an advcrsc Party whilc lailing
to mcct thc rcquircmcnts sct lorth in thc sccond scntcncc ol paragraph
shall lorlcit his right to bc a prisoncr ol war, but hc shall, ncvcrthclcss, bc
givcn protcctions cquivalcnt in all rcspccts to thosc accordcd to prison
crs ol war by thc Tird Convcntion and by this Protocol. Tis protcction
includcs protcctions cquivalcnt to thosc accordcd to prisoncrs ol war by
thc Tird Convcntion in thc casc whcrc such a pcrson is tricd and pun
ishcd lor any ocnccs hc has committcd.
. Any combatant who lalls into thc powcr ol an advcrsc Party whilc not
cngagcd in an attack or in a military opcration prcparatory to an attack
shall not lorlcit his rights to bc a combatant and a prisoncr ol war by
virtuc ol his prior activitics.
6. Tis Articlc is without prcjudicc to thc right ol any pcrson to bc a pris
oncr ol war pursuant to Articlc ol thc Tird Convcntion.
,. Tis Articlc is not intcndcd to changc thc gcncrally acccptcd practicc ol
Statcs with rcspcct to thc wcaring ol thc unilorm by combatants assigncd
to thc rcgular, unilormcd armcd units ol a Party to thc conict.
. !n addition to thc catcgorics ol pcrsons mcntioncd in Articlc . ol thc
First and Sccond Convcntions, all mcmbcrs ol thc armcd lorccs ol a Party
to thc conict, as dcncd in Articlc ol this Protocol, shall bc cntitlcd to
protcction undcr thosc Convcntions il thcy arc woundcd or sick or, in thc
casc ol thc Sccond Convcntion, shipwrcckcd at sca or in othcr watcrs.
6
6 Robcrts and Gucl, lootnotc ,, at p..
327 12 Combatants Substance or Semantics?
Howcvcr, what is oltcn ovcrlookcd is thc opcning phrasc, any combatant, as
dcncd in Articlc . Tcrcaltcr, whcrcvcr thc word combatant is uscd, it must
also rclcr back to Articlc . Tus, Articlc docs not cxtcnd thc dcnition ol
combatant but pcrmits ccrtain activitics to thosc who arc alrcady combatants.
!t sccms thcrclorc that thc whccl has now turncd lull circlc. Vhcrcas in
.c,, mcmbcrs ol thc armcd lorccs had thc status ol bclligcrcnts and by thcir
conduct wcrc classcd as combatants or noncombatants, thc status is now that ol
combatant. Tis brings thc argumcnt back to thc position ol thosc who do not
qualily lor thc status ol combatant but takc part in hostilitics ncvcrthclcss. o
thcy bccomc combatants by thcir actions or do thcy lall within somc othcr cat
cgory: !l onc adopts thc conduct dcnition ol combatant, thcn it makcs scnsc
to say that thcy do indccd bccomc combatants, though unlawlul oncs. Howcvcr,
it is hard to rcconcilc this with thc languagc ol Additional Protocol !, cithcr in
its dcnition ol combatant or that ol civilian. n thc othcr hand, il a status
dcnition ol combatant is acccptcd, thcn such pcoplc cannot bccomc combat
ants purcly by action. Tus, to usc thc tcrm combatant in such circumstanccs,
whcthcr lawlul or unlawlul, is conlusing. An unlawlul combatant can only
mcan somcbody cntitlcd to thc status ol combatant but who acts outsidc thc
rulcs govcrning that status, thus dcpriving himscll ol thc privilcgcs that would
normally bclong to somconc with combatant status.
To thcn usc thc tcrm cncmy combatant, particularly il it is not clcarly
dcncd,
Vhat
is morc important is thc cxtcnt ol thc loss ol protcction. Tc scction rclcrrcd to
in Articlc .() is Scction ! ol Part !\ which dcals with thc Gcncral Protcction
Against ccts ol Hostilitics ol thc civilian population. !t runs lrom Articlc
to 6, and much is dircctcd spccically to thc protcction ol civilians lrom attack,
particularly thc principlc ol distinction. !t is argucd, with somc lorcc thcrclorc,
that whcrc a civilian chooscs to takc a dircct part in hostilitics, hc or shc loscs his
protcction against attack but rctains his othcr privilcgcs, including his rights
undcr thc Fourth Convcntion. Yct, docs this makc scnsc in thc light ol thc ovcrall
purposc ol Additional Protocol ! to draw a distinction bctwccn thosc who choosc
to takc a dircct part in hostilitics and thosc who dont:
As has bccn pointcd out abovc, thc Fourth Gcncva Convcntion is pri
marily dcsigncd to protcct cncmy civilians lrom an opposing bclligcrcnt. Tc
Convcntion was draltcd on thc basis that such protcction was nccdcd as civil
ians wcrc, in principlc, innoccnt victims ol war, not conducting bclligcrcnt acts. !t
was rccognizcd that, in particular in occupicd tcrritory, civilians might cngagc in
activitics hostilc to thc sccurity ol thc bclligcrcnt powcr, including spying and
6 Scc lootnotc .
, Art.(a), Additional Protocol !, Robcrts and Gucl, lootnotc ,, at p..
Art..(), ibid, at p..
Rcports can bc lound on thc Asscr !nstitutc wcbsitc at http://www.wihl.nl/ and
on thc !CRC wcbsitc at http://www.icrc.org/Vcb/ng/sitccngc.nsl/iwpList,/
8cFF,c.,6FC.a6cc,aAA.
330 Charles H.B. Garra.ay
sabotagc.
o
Howcvcr, that is dicrcnt lrom thc situation lound today whcrc, in
many conicts, it is dicult to asccrtain thosc who arc thc rcgular bclligcrcnts
and thosc who do not cvcn bcgin to mcct thc critcria laid down in thc trcatics lor
bclligcrcnt, or lor that mattcr combatant status. Such pcoplc arc thc gcnuinc
unlawlul bclligcrcnts in that thcy arc taking a dircct and continuous part in hos
tilitics but lailing to comply with thc rcquircmcnts lor lawlully taking such part.
Tis is not thc casc ol thc civilian who takcs up arms bricy or cvcn thc larmcr
by day, ghtcr by night situation. Many ol thcsc pcoplc arc indistinguishablc in
thcir conduct lrom armcd lorccs.
At prcscnt, it is argucd that il capturcd, thcy arc cithcr prisoncrs ol war
undcr thc Tird Convcntion, or civilians who arc cntitlcd to trcatmcnt as civil
ian intcrnccs undcr thc Fourth, assuming that thcy qualily within thc nationality
critcria.
+
Howcvcr, il thcy do not qualily undcr thc dcnition ol prisoncrs ol war,
is it right that thcy should thcn bc trcatcd in accordancc with thc civilian status
that thcy hold undcr thc ncgativc dcnition ol civilian to bc lound in Articlc c
ol Additional Protocol !: Tis statcs that:
A civilian is any pcrson who docs not bclong to onc ol thc catcgorics ol pcrsons
rclcrrcd to in Articlc (A) (.), (a), () and (6) ol thc Tird Convcntion and in
Articlc ol this Protocol. !n casc ol doubt whcthcr a pcrson is a civilian, that
pcrson shall bc considcrcd to bc a civilian.
:
ocs this cntitlc thcm to thc protcctions ol thc Fourth Convcntion, cvcn il by
thcir conduct, thcy havc lost protcction undcr thc rclcvant Scction ol thc Protocol
itscll: !l that is so, thcn thc unprivilcgcd bclligcrcnt rcccivcs ccrtain privilcgcs
that thc privilcgcd bclligcrcnt, as a prisoncr ol war, docs not. For cxamplc, thc
privilcgcd bclligcrcnt can bc incarccratcd as a prisoncr ol war simply bccausc ol
who hc is.
Vhilst this may, in thc casc ol thc unprivilcgcd bclligcrcnt, sccm a compara
tivcly simplc hurdlc to cross in thc light ol his actions, it rcquircs continuous
c Art Gcncva Convcntion !\, Robcrts and Gucl, lootnotc ,, at p.c.
. Scc Knut ormann, Tc Lcgal Situation ol Unlawlul/Unprivilcgcd Combatants,
!ntcrnational Rcvicw ol thc Rcd Cross,\ol., No. (March acc) at p..
a Art.c(.), Additional Protocol !, Robcrts and Gucl, lootnotc ,, at p..
Art.a., Gcncva Convcntion !!!, ibid, at p.a.
Art.a, Gcncva Convcntion !\, ibid, at p...
331 12 Combatants Substance or Semantics?
rcvicw. A prisoncr ol war can bc hcld, on thc basis ol his status alonc, until thc
ccssation ol activc hostilitics.
Such a provision docs not appcar in thc Tird Convcntion lor obvious rcasons.
!t would bc clcarly impracticablc to imposc a rcquircmcnt to pcrmit lamily visits
whcrc such would rcquirc allowing alicns to cross cncmy lincs to visit prisoncr ol
war camps. 8ut, il it is acccptcd that prisoncrs ol war privilcgcd bclligcrcnts
cannot bc allowcd such visits as a mattcr ol right, thcn why, subjcct to Articlc ,
8
should thcir unprivilcgcd countcrparts:
!t is corrcct that unprivilcgcd bclligcrcnts can bc prosccutcd lor thcir bcl
ligcrcnt acts as thcy havc no combatant immunity, but thcn privilcgcd bclligcr
cnts arc also liablc to prosccution il thcy act outsidc thc scopc ol thcir privilcgc,
i.c., in brcach ol thc laws ol armcd conict. Tc dicrcncc is in what thcy arc pcr
mittcd to do, not in any immunity lrom prosccution. Furthcrmorc, thc shccr num
bcrs ol unprivilcgcd bclligcrcnts now appcaring in modcrn day conict makcs it
impossiblc to dcal with thc problcm by way ol criminal procccdings. Tis is cxac
crbatcd by thc incrcasing inucncc ol human rights law. Tc burdcn ol proving,
Art..., Gcncva Convcntion !!!, ibid, at p.a.
6 Art., Gcncva Convcntion !\, ibid, at p...
, Art...6, Gcncva Convcntion !\, ibid, at p...
Art., Gcncva Convcntion !\, ibid, at p.c.
332 Charles H.B. Garra.ay
to a criminal standard, acts ol bclligcrcncy (including complying with modcrn day
cvidcntial rulcs) may bc too cxacting and again would put thc unprivilcgcd bcl
ligcrcnt in a strongcr position than his privilcgcd countcrpart.
Tc law ol armcd conict has always bccn pragmatic. !t has to bc bccausc it
rccognizcs thc rcality ol armcd conict in a way that human rights law was ncvcr
dcsigncd to do. !t is this rccognition that cnablcs thc statcmcnt to bc madc that
military ncccssity cannot justily a brcach ol thc laws bccausc thc laws arc draltcd
with military ncccssity in mind.
Vhilc prisoncrs ol war may not bc tricd lor lawlul acts ol war, thcy may
bc criminally prosccutcd lor war crimcs or othcr criminal acts committcd bclorc
or during intcrnmcnt. Tc Tird Gcncva Convcntion providcs that trial will bc
in thc samc courts, using thc samc proccdurc, as lor mcmbcrs ol thc armcd lorccs
ol thc ctaining Powcr.
Te Meaning of Unla.ful Combatant
Tc issuc ol who is an unlawlul combatant nccds to bc cxamincd in rclation to
thc rulcs govcrning both thc conduct ol hostilitics and thc trcatmcnt ol pcrsons
in thc powcr ol thc advcrsary. Tc lormcr dcnc a civilian as any pcrson who
docs not bclong to onc ol thc catcgorics ol pcrsons rclcrrcd to in Articlc A .),
a), ) and 6) ol thc Tird Convcntion and in Articlc ol thc First Additional
Protocol to thc Gcncva Convcntions.
8
8ascd on thc plain languagc ol thc tcxt,
which is gcncrally considcrcd to rccct customary intcrnational law, it may bc
said that thcrc arc no gaps in protcction as rcgards who may and who may not
bc attackcd. Simply put, combatants may bc targctcd, whilc civilians may not.
Pursuant to both trcaty and customary law, thc civilian population and indi
vidual civilians cnjoy gcncral protcction against dangcrs arising lrom military
opcrations. Tis mcans, inter alia, that thc civilian population and individual
civilians may not bc thc objcct ol attack, that indiscriminatc attacks (including
thosc that would violatc thc rulc ol proportionality) arc prohibitcd, and that civil
ians may not bc uscd to shicld military objcctivcs or to shicld, lavour or impcdc
military opcrations.
Tc onc cxccption to civilian immunity lrom dircct attack involvcs civil
ian participation in hostilitics. According to Articlc . () ol thc First Additional
Protocol to thc Gcncva Convcntions (and Articlc . () ol thc Sccond Additional
Protocol in thc casc ol nonintcrnational armcd conict), civilians cnjoy gcncral
protcction against thc cccts ol hostilitics, i.c. protcction lrom dircct attacks,
unlcss and lor such timc as thcy takc a dircct part in hostilitics.
+o
Two points
arc worth noting.
First, thcrc is insucicnt agrccmcnt among military and lcgal cxpcrts about
what acts may bc said to constitutc dircct participation and how thc tcmporal
aspcct (lor such timc as) should bc intcrprctcd. Givcn thc vcry gravc consc
qucncc ol targctability, thc notion ol dircct participation warrants comprchcnsivc
cxamination. Tis is all thc morc important having in mind that civilians par
ticipatc in hostilitics in both intcrnational and nonintcrnational armcd conicts
, Unitcd Statcs, Army, Navy, Air Forcc and Marinc Corps, ncmy Prisoncrs ol
Var, Rctaincd Pcrsonncl, Civilian !ntcrnccs and thcr ctainccs (AR .c,
PNA\!NST 6..6, AFJ! .c, MC 6...) (ct. ., .,), at http://ncds.daps.
dla.mil/ircctivcs/6._6.pdl.
AP !, articlc c (.).
!bid, articlc c (a), (), (), (,).
.c !bid, articlc . ().
338 Jelena Pejic
and that thcy contributc to thc asymmctrical naturc ol somc ongoing armcd con
icts.
++
Tc sccond point to bc cmphasizcd is that civilians who takc a dircct part
in hostilitics may bc prosccutcd undcr thc domcstic law ol thc ctaining Powcr
lor having takcn a dircct part in hostilitics, as wcll as lor any war crimcs thcy may
havc committcd. !n othcr words, thcy do not cnjoy a combatants immunity lrom
criminal prosccution lor lawlul acts ol war. !t must also bc notcd, howcvcr, that
intcrnational humanitarian law docs not prohibit civilians lrom taking up arms,
as cvidcnccd by thc lact that participation in hostilitics is not a violation ol intcr
national humanitarian law and thcrclorc not a war crimc per se.
Civilians who takc a dircct part in hostilitics in intcrnational armcd con
ict arc oltcn rclcrrcd to as unlawlul combatants, unprivilcgcd combatants
or unprivilcgcd bclligcrcnts, cvcn though thcsc tcrms arc not lound in intcrna
tional humanitarian law trcatics. Along with civilians who participatc dircctly in
hostilitics, thc tcrm unlawlul combatants also cncompasscs mcmbcrs ol militias
and ol othcr voluntccr corps, including thosc ol organizcd rcsistancc movcmcnts,
who bclong to a party to an intcrnational armcd conict, but who lail to lull
thc conditions laid down in Articlc A (a) ol thc Tird Convcntion. As summcd
up by onc lcgal commcntator, whosc dcnition will also bc uscd lor thc purposcs
ol this papcr, thc tcrm unlawlul combatant is undcrstood as dcscribing all pcr
sons taking a dircct part in hostilitics without bcing cntitlcd to do so and who
thcrclorc cannot bc classicd as prisoncrs ol war on lalling into thc powcr ol thc
cncmy.
+:
B Te Legal Status of Unla.ful Combatants
As alrcady mcntioncd, unlawlul combatants may bc subjcct to dircct attack whilc
dircctly participating in hostilitics. Tcy may also bc prosccutcd undcr domcstic
law lor acts that would othcrwisc bc lawlul undcr intcrnational humanitarian law.
!t is thc spccic status and scopc ol protcction undcr intcrnational humanitarian
law ol unlawlul combatants who havc lallcn into thc hands ol thc advcrsc party
that continucs to gcncratc controvcrsy among lcgal practitioncrs and scholars.
At onc cnd ol thc spcctrum arc thosc, a minority admittcdly, who asscrt that
unlawlul combatants arc outsidc any intcrnational humanitarian law protcc
.. Tc !CRC and thc TMC Asscr !nstitutc havc hcld thrcc !nlormal xpcrt Mcctings
in Tc Haguc and Gcncva in acc, acc and acc locuscd on thc lcgal and prac
tical implications ol dircct participation in hostilitics by civilians. Tc summary
rcports ol thc xpcrt Mcctings may bc lound on thc !CRCs wcbsitc at www.icrc.org.
A lourth xpcrt Mccting, at which possiblc intcrprctivc guidancc on thc notion ol
dircct participation will bc discusscd will takc placc in acc6.
.a Knut ocrmann, Tc Lcgal Situation ol Unlawlul/Unprivilcgcd Combatants,
!ntcrnational Rcvicw ol thc Rcd Cross, March acc, \ol. , No. , at p. 6.
339 1l Unla.fulEnemy Combatants: Interpretations and Consequences
tion.
+
Tc middlc ground is hcld by thosc who bclicvc that unlawlul combat
ants arc covcrcd only by Articlc common to thc Gcncva Convcntions and/or
by Articlc , ol thc First Additional Protocol to thc Convcntions.
+
8oth Articlc
and Articlc , contain salcty nct provisions which, bccausc ol thcir lundamcntal
naturc, must bc obscrvcd at all timcs.
+
Tc two articlcs do not, howcvcr, providc
any guidancc on many substantivc and proccdural lcgal issucs, nor on how to
rcsolvc practical qucstions, that arisc in rclation to capturcd unlawlul combat
ants.
At thc othcr cnd ol thc spcctrum arc thosc, including thc author, who arguc
that unlawlul combatants who lull thc nationality critcria providcd lor in thc
Fourth Gcncva Convcntion rcmain protcctcd pcrsons undcr that Convcntion.
Unlawlul combatants who do not lull thc nationality critcria arc covcrcd by
Articlc , and othcr rulcs ol customary intcrnational humanitarian law.
Tc position that civilians who havc takcn a dircct part in hostilitics arc
covcrcd by thc Fourth Convcntion is bascd on thc plain languagc ol Articlc ol
that Convcntion:
Pcrsons protcctcd by thc Convcntion arc thosc who, at a givcn momcnt and
in any manncr whatsocvcr, nd thcmsclvcs, in casc ol a conict or occupation,
in thc hands ol a Party to thc conict or ccupying Powcr ol which thcy arc
not nationals.
Vhilc thc scopc ol pcrsonal application is thus lormulatcd in thc most com
prchcnsivc way, it is subjcct to limitations providcd lor in thc ncxt paragraph ol
Articlc :
Nationals ol a Statc which is not bound by thc Convcntion arc not protcctcd
by it. Nationals ol a ncutral Statc who nd thcmsclvcs in thc tcrritory ol a bcl
ligcrcnt Statc, and nationals ol a cobclligcrcnt statc, shall not bc rcgardcd as
. Scc !ngrid cttcr, Tc Law ol Var, Cambridgc Univcrsity Prcss, accc, at p. .6.
. Scc Yoram instcin, Tc Conduct ol Hostilitics undcr thc Law ol !ntcrnational
Armcd Conict, Cambridgc Univcrsity Prcss, acc, at pp. a. Scc also Adam
Robcrts, Tc Laws ol Var in thc Var on Tcrror, in Tcrrorism and thc Military,
!ntcrnational Lcgal !mplications, Vybo P. Hccrc (cd.), TMC Asscr Prcss, acc, pp.
6a.
. For thc customary law status ol AP !, articlc , scc, inter alia, Rcmarks ol Michacl
J. Mathcson, cputy Lcgal Adviscr, US cpartmcnt ol Statc, Tc Sixth Annual
Amcrican Rcd CrossVashington Collcgc ol Law Conlcrcncc on !ntcrnational
Humanitarian Law: A Vorkshop on Customary !ntcrnational law and thc .,,
Protocols Additional to thc . Gcncva Convcntions, Tc Amcrican Univcrsity
Journal ol !ntcrnational Law and Policy, \ol. a, .,, at pp. a,a.
340 Jelena Pejic
protcctcd pcrsons whilc thc Statc ol which thcy arc nationals has normal dip
lomatic rcprcscntation in thc Statc in whosc hands thcy arc.
Vhilc thc sccond scntcncc is somcwhat conlusing, thc !CRC Commcntary clar
ics that on thc tcrritory ol bclligcrcnt statcs protcction is accordcd to pcrsons ol
lorcign nationality and thosc without nationality. Tc cxccption rclcrs to nation
als ol a ncutral or cobclligcrcnt statc, who arc unprotcctcd so long as thc Statc
in qucstion has normal diplomatic rcprcscntation in thc Statc in whosc tcrritory
thcy arc locatcd. !n occupicd tcrritorics, protcction is accordcd to all pcrsons who
arc not ol thc nationality ol thc ccupying Powcr. Tc solc cxccption arc nation
als ol a cobclligcrcnt statc whcn that Statc has normal diplomatic rcprcscntation
in thc occupying Statc.
+6
Finally, according to thc lourth paragraph ol Articlc , pcrsons covcrcd by
thc First, Sccond or Tird Gcncva Convcntion arc not considcrcd protcctcd pcr
sons within thc mcaning ol thc Fourth Convcntion.
Tc position that civilians who may havc takcn a dircct part in hostilitics
rcmain covcrcd by thc Fourth Convcntion il thcy lull thc nationality critc
rion is also bornc out by thc dcrogation clauscs ol that trcaty. Articlc , which
allows lor thc withdrawal ol ccrtain rights and privilcgcs to a pcrson dcnitcly
suspcctcd ol or cngagcd in activitics hostilc to thc sccurity ol thc Statc who is
dctaincd in thc tcrritory ol a Party to thc conict, cxprcssly uscs thc tcrm indi
vidual protcctcd pcrson.
+
Likcwisc, Articlc spcaks ol an individual protcctcd
pcrson whcn it providcs that rights ol communication undcr thc Convcntion
may bc dcnicd thosc dctaincd as spics, sabotcurs or pcrsons undcr dcnitc suspi
cion ol activity hostilc to thc ccupying Powcrs sccurity in occupicd tcrritory.
+8
Logically, acts ol sabotagc and cngaging in an activity hostilc to thc sccurity ol
thc Statc or ccupying Powcr includc dircct participation in hostilitics by civil
ians, thus unlawlul combatants who mcct thc nationality critcria arc protcctcd
pcrsons undcr thc Convcntion.
Articlc () ol thc First Additional Protocol lurthcr buttrcsscs this vicw:
Any pcrson who has takcn part in hostilitics, who is not cntitlcd to prisoncr
olwar status and who docs not bcnct lrom morc lavourablc trcatmcnt in
accordancc with thc Fourth Convcntion shall havc thc right at all timcs to thc
protcction ol Articlc , ol this Protocol. !n occupicd tcrritory, any such pcrson,
unlcss hc is hcld as a spy, shall also bc cntitlcd, notwithstanding Articlc ol thc
Fourth Convcntion, to his rights ol communication undcr that Convcntion.
.6 Jcan Pictct (cd.), Commcntary, !\ Gcncva Convcntion rclativc to thc Protcction
ol Civilian Pcrsons in Timc ol Var, !CRC, Gcncva, . (hcrcinaltcr Commcntary
!\), at p. 6.
., GC !\, articlc (.).
. !bid, articlc (a).
341 1l Unla.fulEnemy Combatants: Interpretations and Consequences
Tc any pcrson who has takcn part in hostilitics, and who docs not bcnct lrom
morc lavourablc trcatmcnt wording dcmonstratcs that thc Protocol rccognizcs
thc applicability ol thc Fourth Convcntion to ccrtain catcgorics ol unlawlul
combatants. thcrwisc its rclcrcncc to that Convcntion would bc supcruous. A
similar conclusion may bc drawn lrom thc sccond scntcncc ol thc samc articlc, in
which thc draltcrs clcarly assumcd that ccrtain catcgorics ol unlawlul combat
ants in occupicd tcrritory arc covcrcd by thc Fourth Convcntion. !l that wcrc not
thc casc, thcrc would bc no basis lor thc spccic limitation introduccd in rcspcct
ol Articlc ol thc Fourth Convcntion.
Tc vicw that somc unlawlul combatants arc covcrcd by thc Fourth Gcncva
Convcntion is also cnunciatcd in ccrtain military manuals. !n a scction dcaling
with Pcrsons Committing Hostilc Acts Not ntitlcd To 8c Trcatcd as Prisoncrs
ol Var, thc .6 US Army Manual providcs that: !l a pcrson is dctcrmincd by
a compctcnt tribunal, acting in conlormity with Articlc (GC !!!) not to lall
within any ol thc catcgorics listcd in Articlc (GC !!!), hc is not cntitlcd to bc
trcatcd as a prisoncr ol war. Hc is, howcvcr, a protcctcd pcrson within thc mcan
ing ol Articlc (GC !\).
+
!t has alrcady bccn submittcd that an unlawlul combatant who docs not
lull thc nationality critcria ol Articlc ol thc Fourth Gcncva Convcntion is, at
a minimum, covcrcd by thc provisions ol Articlc , ol Additional Protocol !
:o
and
othcr rulcs ol customary intcrnational law. Tc pcrsonal scopc ol application ol
thc Fundamcntal Guarantccs provisions is lormulatcd to cnsurc that no indi
vidual in thc powcr ol a party lalls outsidc intcrnational humanitarian law pro
tcction. Tc wording cxprcssly cncompasscs all pcrsons who arc not othcrwisc
covcrcd by thc Gcncva Convcntions and thc Protocol:
.. !n so lar as thcy arc acctcd by a situation rclcrrcd to in Articlc . ol this
Protocol, pcrsons who arc in thc powcr ol a Party to thc conict and who
do not bcnct lrom morc lavourablc trcatmcnt undcr thc Convcntions
or undcr this Protocol shall bc trcatcd humancly in all circumstanccs and
shall cnjoy, as a minimum, thc protcction providcd by this Articlc with
out any advcrsc distinction bascd on ().
Tc discussion abovc has not dcalt with thc substantivc protcctions providcd to
unlawlul combatants undcr intcrnational humanitarian law.
:+
Rathcr, thc aim
was to dcmonstratc that unprivilcgcd bclligcrcncy is a rcgular lcaturc ol intcr
national armcd conicts and that humanitarian law rcgulatcs thc practicc, cvcn
though grcatcr spccicity would bc wclcomc. Tus, civilians who takc a dircct
. US Army Manual FM a,.c, Tc Law ol Land Varlarc, .6, at pp. ., ct scq.
ac For thc customary law status ol AP !, Articlc , scc notc . abovc.
a. For an cxccllcnt ovcrvicw ol this issuc scc Knut ocrmann, notc .a abovc, pp. 6c
,c.
342 Jelena Pejic
part in hostilitics losc protcction lrom attack during such participation and arc,
upon capturc, cithcr protcctcd by thc Fourth Gcncva Convcntion il thcy lull thc
nationality critcria or, at a minimum, covcrcd by Articlc , ol Additional Protocol
! il thcy do not.
Tc vicw that thcrc is an intcrmcdiatc catcgory ol pcrsons who arc ncithcr
combatants nor civilians and arc thcrclorc outsidc humanitarian law covcragc is
not bornc out by thc languagc ol thc rclcvant trcaty tcxts.
::
Tis position can also
bc qucstioncd lrom thc pcrspcctivc ol thc logic and spirit that undcrlic thc rulcs.
Unlcss onc is advocating a complctc dcparturc lrom thc valucs that undcr
pin intcrnational humanitarian law, it is dicult to scc why thc currcnt rulcs,
inadcquatc in somc aspccts as thcy may bc, prcscnt an obstaclc to dcaling with
civilians who havc takcn a dircct part in hostilitics. Civilians may bc targctcd
during dircct participation and may bc prosccutcd undcr domcstic law lor having
donc so. Tcy may bc intcrncd lor thc duration ol hostilitics and, whilc in dctcn
tion, may bc dcnicd ccrtain rights and privilcgcs. !t has yct to bc cxplaincd what
additional mcasurcs could bc implcmcntcd with rcspcct to unlawlul combat
ants that would not run thc risk ol lcading to violations ol thc right to lilc, physi
cal intcgrity and human dignity that lic at thc corc ol humanitarian law.
II Te Notion of Inemy Combatant
n its lacc, thc tcrm cncmy combatant has no spccic lcgal mcaning. !t is a
colloquial phrasc ol widc ambit that may bc uscd to dcscribc a pcrson ghting
on thc cncmy sidc in an intcrnational armcd conict, whcthcr as a mcmbcr ol
thc advcrsarys armcd lorccs (lawlul or privilcgcd combatant) or as a pcrson
dircctly participating in hostilitics without bcing cntitlcd to do so (unlawlul
combatant or unprivilcgcd bclligcrcnt). !n lcgal litcraturc, thc tcrm has most
oltcn bccn uscd in thc lattcr scnsc.
:
Shortly altcr thc launch ol thc global war on tcrrorism and lor somc timc
thcrcaltcr, unlawlul combatant
:
was thc gcncric tcrm domcstically uscd to
cncompass pcrsons dctaincd by thc Unitcd Statcs as part ol that war. Sincc
thcn, thc tcrm unlawlul combatant has bccn almost cntircly rcplaccd with thc
tcrm cncmy combatant in public discoursc, it has also bccn givcn a morc spccic
mcaning. For thc purposcs ol this papcr, thc dcnition containcd in thc ralt
aa Kcnncth Vatkin, Combatants, Unprivilcgcd 8clligcrcnts and Conicts in thc
a.st Ccntury, !ntcrnational Humanitarian Law Rcscarch !nitiativc, Program on
Humanitarian Policy and Conict Rcscarch, at p. . (www.hsph.harvard.cdu/hpcr):
Ultimatcly, thc qucstion may not bc il thcrc is a third catcgory, but rathcr whcthcr
intcrnational humanitarian law has lully and rcalistically accountcd lor thc civilian
who docs takc a part in hostilitics.
a !bid, p. .
a Vhitc Housc Fact Shcct, Status ol ctainccs at Guantanamo (Fcbruary ,, acca), at
www.whitchousc.gov/ncws/rclcascs/acca/ca/accacac,..html.
343 1l Unla.fulEnemy Combatants: Interpretations and Consequences
Joint octrinc lor ctaincc pcrations ol March acc
:
will bc uscd. Vhilc it
is probablc that thc nal tcxt ol thc Joint octrinc will dicr grcatly lrom thc
ralt, thc dcnition is usclul bccausc ol its comprchcnsivcncss. !t is, thcrclorc,
not bcing rclcrrcd to as a dcnition sct in stonc, but simply as a rcprcscntativc
illustration ol thc clcmcnts ol notion itscll.
According to thc ralt Joint octrinc, cncmy combatant is a dctaincc
classication additional to thosc ol thc Gcncva Convcntion: ncmy Prisoncr
ol Var, Civilian !ntcrnccs, Rctaincd Pcrsonncl and thcr ctainccs. Tc
ralt octrinc dcnition providcs:
.. ncmy Combatant (C). Although thcy do not lall undcr thc provisions
ol thc Gcncva Convcntion, thcy arc still cntitlcd to bc trcatcd humancly,
subjcct to military ncccssity, consistcnt with thc principlcs ol GC, and
without any advcrsc distinction bascd on racc, color, rcligion, gcndcr, birth,
wcalth or any similar critcria, and aordcd adcquatc lood, drinking watcr,
shcltcr, clothing, and mcdical trcatmcnt, allowcd thc lrcc cxcrcisc ol rcli
gion consistcnt with thc rcquircmcnts ol such dctcntion. Tcrc is a com
prchcnsivc list ol tcrrorists and tcrrorist groups idcnticd undcr xccutivc
rdcr .aa, locatcd at http://www.trcas.gov/olac/. Anyonc dctaincd that is
aliatcd with thcsc organizations will bc classicd as C. Furthcrmorc,
thcrc arc individuals that may not bc aliatcd with thc listcd organi
zations that may bc classicd as an C. n thcsc spccic individuals,
guidancc should bc obtaincd lrom highcr hcadquartcrs. As dcncd by
thc cputy Sccrctary ol clcnsc, an C is dcncd as: Any pcrson that
US or allicd lorccs could propcrly dctain undcr thc laws and customs ol
war. For purposcs ol thc war on tcrror an cncmy combatant includcs, but
is not ncccssarily limitcd to, a mcmbcr or agcnt ol Al Qacda, Taliban, or
anothcr intcrnational tcrrorist organization against which Unitcd Statcs
is cngagcd in an armcd conict. Tis may includc thosc individuals or
cntitics dcsignatcd in accordancc with rclcrcnccs or G, as idcnticd
in applicablc xccutivc rdcrs approvcd by thc Sccrctary ol clcnsc.
(cputy Sccrctary ol clcnsc global scrccning critcria, Fcb ac, acc).
Rclcrcncc Comprchcnsivc List ol Tcrrorists and Tcrrorist Groups
!dcnticd Undcr xccutivc rdcr .aa (updatcs at http://www.trcas.
gov/olac/).
Rclcrcncc G Pattcrns ol Global Tcrrorism. cpartmcnt ol Statc, acca
(updatcs at http://www.statc.gov/s/ct/rls/pgtrpt/).
:6
a ralt Joint octrinc lor ctaincc pcrations, Joint Publication 6, Final
Coordination, a March acc, at http://hrw.org/campaigns/torturc/jointdoctrinc/
jointdoctrinccc,c.pdl.
a6 !bid, at pp. !.. and !.a.
344 Jelena Pejic
Tis dcnition is bascd on thc prcmisc that thc war on tcrror is an armcd con
ict and that an cncmy combatant is any pcrson whom US or allicd lorccs
could propcrly dctain undcr thc laws and customs ol war. Tc classication
includcs both individuals and groups listcd as tcrrorist, as wcll as individuals
who may not bc aliatcd with any ol thc listcd organizations.
!t must bc notcd that nonc ol thc clcmcnts ol thc dcnition arc particularly
ncw. Tcrc has, sincc Scptcmbcr .., acc., bccn an prolusion ol prcss rclcascs, lcgal
mcmoranda and scholarly articlcs cxamining thc various aspccts ol thc dcni
tion.
:
Tcrclorc, a bricl analysis ol thc rcspcctivc clcmcnts bascd on dicrcnt
lcgal intcrprctations is usclul.
Te !ar on Terrorism as an rmed Conict
Tc dcnition ol cncmy combatant is linkcd to thc cxistcncc ol an armcd con
ict. Tc positcd armcd conict involvcs Al Qacda, thc Taliban or anothcr
intcrnational tcrrorist organization. Givcn that, to thc authors knowlcdgc, no
ocial or agcncy ol thc Unitcd Statcs has suggcstcd that thc war on tcrrorism
is a nonintcrnational armcd conict, it must bc concludcd that thc war is to bc
qualicd as a global intcrnational armcd conict. Tis approach may bc qucs
tioncd on both lcgal and practical grounds.
Vhilc thc tcrm war on tcrrorism has vcry much bccomc part ol daily par
lancc, onc nccds to cxaminc, bascd on thc rulcs ol humanitarian law, whcthcr
thc ght against tcrrorism may bc charactcrizcd as an armcd conict in thc lcgal
scnsc. Tc answcr is multilaycrcd. !t is submittcd that thc war on tcrrorism may
in somc situations bc an intcrnational armcd conict, in othcr instanccs a non
intcrnational armcd conict, and in still othcr cascs not an armcd conict in thc
lcgal scnsc at all.
Undcr thc Gcncva Convcntions, intcrnational armcd conicts arc thosc
lought bctwccn statcs. Tus, thc acc. war bctwccn thc USlcd coalition and
Alghanistan, wagcd as part ol thc war on tcrrorism, was initially an intcrna
tional armcd conict.
:8
Humanitarian law docs not cnvisagc an intcrnational
a, Scc, lor cxamplc, Michacl Ncwton, Unlawlul 8clligcrcncy Altcr Scptcmbcr ..:
History Rcvisitcd and Law Rcvisitcd in Ncw Vars, Ncw Laws: Applying thc Laws
ol Var in a.
st
Ccntury Conicts, avid Vippman and Matthcw vangclista (cds.),
Transnational Publishcrs, acc, pp. ,..c.
a Tc lact that thc thcn govcrnmcnt ol Alghanistan, thc Taliban rcgimc, was not
intcrnationally rccognizcd has no bcaring on thc applicability ol thc Gcncva
Convcntions. Tcir applicability to armcd conicts involving a party whosc govcrn
mcnt is not rccognizcd is cxplicitly providcd lor in thc Tird Gcncva Convcntion,
according to which prisoncr ol war status shall bc grantcd to Mcmbcrs ol rcgular
armcd lorccs who prolcss allcgiancc to a govcrnmcnt or authority not rccognizcd
by thc ctaining Powcr (Articlc (A) ()). Altcr Junc acca thc hostilitics taking
placc in various parts ol Alghanistan can bc qualicd as a nonintcrnational armcd
conict, as cxplaincd lurthcr bclow. Tc samc rcasoning may bc applicd to thc war
345 1l Unla.fulEnemy Combatants: Interpretations and Consequences
armcd conict bctwccn statcs and nonstatc armcd groups bccausc statcs havc
not bccn willing to accord nonstatc armcd groups thc privilcgcs cnjoycd by
mcmbcrs ol rcgular armcd lorccs. Tc cxccption is an armcd conict providcd lor
in Articlc .() ol thc First Additional Protocol. Howcvcr, as is wcll known, thc
inclusion ol such conicts in thc Protocol is onc rcason why somc countrics havc
not raticd that trcaty.
To say that onc is witncssing a global, intcrnational war against groups such
as Al Qacda would mcan that undcr thc laws ol war thcir lollowcrs could and
should bc considcrcd cqual in rights and obligations to mcmbcrs ol armcd
lorccs, i.c. lawlul combatants. !t was alrcady clcar in . that no nation would
contcmplatc cxcmpting mcmbcrs ol nonstatc armcd groups lrom criminal pros
ccution undcr domcstic law lor acts that arc lawlul undcr intcrnational humani
tarian law. Tis immunity is, as prcviously notcd, thc crux ol combatant/prisoncr
ol war status. Tc draltcrs ol thc Gcncva Convcntions, which grant combatant
and prisoncr ol war status undcr strictly spccicd conditions, wcrc lully awarc ol
thc political and practical rcalitics ol intcrnational armcd conict and craltcd thc
trcaty provisions accordingly.
Tc war on tcrrorism can also takc thc lorm ol a nonintcrnational armcd
conict, such as thc onc taking placc in parts ol Alghanistan sincc thc convcn
ing ol thc Loya Jirga and thc cstablishmcnt ol thc ncw intcrnationally rccognizcd
Alghan govcrnmcnt in Junc acca. Tis conict, involving thc Alghan authori
tics supportcd by a coalition ol allicd Statcs against a varicty ol nonstatc armcd
groups (among thcm rcmnants ol thc Taliban and Al Qacda), is nonintcrna
tional in charactcr bccausc it is bcing wagcd with thc conscnt and support ol thc
Alghan govcrnmcnt and docs not involvc two opposing Statcs.
Tc ongoing hostilitics in Alghanistan arc thus govcrncd by humanitarian
law rulcs applicablc to nonintcrnational armcd conicts, lound in both trcaty law
(only Articlc common to thc Gcncva Convcntions sincc ncithcr Alghanistan
nor thc US arc party to Additional Protocol !!) and customary humanitarian law.
Tis body ol rulcs would apply in othcr situations whcrc a dcnablc nonstatc
armcd actor (or scvcral ol thcm) is party to an armcd conict and in which thc
lcvcl ol violcncc has rcachcd that ol an armcd conict.
Tc qucstion rcmains ol whcthcr thc totality ol tcrrorist acts carricd out in
various parts ol thc world (outsidc situations ol armcd conict such as Alghanistan
or !raq) constitutc onc and thc samc armcd conict in thc lcgal scnsc. Can it bc
said, in othcr words, that thc bombings in Madrid, London, 8ali, Ncw clhi, and
in !raq, which was initially an intcrnational armcd conict (March acc), but can
bc qualicd as a nonintcrnational armcd conict altcr thc Junc acc UN Sccurity
Council rcsolution which dctcrmincd that intcrnational lorccs wcrc continuing
to opcratc in !raq with thc conscnt ol thc !raqi authoritics. Scc Sccurity Council
Rcsolution .6 (acc), S/RS/.6 (acc). Scc also Knut ocrmann and Laurcnt
Colassis, !ntcrnational Humanitarian Law in thc !raq Conict, Gcrman Ycarbook
ol !ntcrnational Law, \olumc ,, acc, pp. aa.
346 Jelena Pejic
othcr locations arc attributablc to onc and thc samc party: Can it, in addition, bc
claimcd that thc lcvcl ol violcncc involvcd in cach incidcnt has rcachcd that ol an
armcd conict: n both counts, it would appcar not.
As rcgards thc cxistcncc ol a party to thc conict, it is dicult to scc how a
looscly conncctcd, clandcstinc nctwork ol cclls, and cvcn morc so scparatc groups
with no link to othcr groups cxccpt pcrhaps a sharcd idcology, could qualily as a
party to an armcd conict in thc law ol war scnsc. 8oth lcgally and in practicc,
partics to an armcd conict arc armcd lorccs or armcd groups with a ccrtain lcvcl
ol organization, command structurc and capacity to implcmcnt humanitarian
law rulcs. 8ascd on availablc lactual cvidcncc, it is submittcd that thc tcrrorist
acts bcing pcrpctratcd at gcographically distant points across thc globc cannot bc
attributcd to a party as a mattcr ol law.
:
Rcgarding thc rcquisitc lcvcl ol violcncc, it is similarly dicult to scc how
thc violcncc, which has bccn pcrpctratcd scparatcly, could bc considcrcd to havc
lactually rcachcd thc thrcshold ol an armcd conict. Morcovcr, thc way in
which thc authoritics in thc various victim Statcs dcalt with thc rcspcctivc situ
ations showcd that thcy did not considcr thcmsclvcs to bc in an armcd conict,
cithcr de jure or de facto.
8y way ol cxamplc, thc Spanish authoritics did not apply conduct ol hos
tilitics rulcs in dcaling with thc Madrid train bombing suspccts in March acc,
which thcy would havc bccn cntitlcd to do il thcy had implcmcntcd an armcd
conict paradigm. Humanitarian law rulcs would havc pcrmittcd thcm to dircctly
targct thc suspccts (who had holcd up in a rcsidcntial building on thc outskirts ol
thc city), and cvcn to causc collatcral damagc to civilians and civilian objccts in
thc proccss as long as thc incidcntal damagc was not cxccssivc in rclation to thc
valuc ol thc suspccts as military objcctivcs. !nstcad, thcy applicd law cnlorcc
mcnt rulcs and proccdurcs. Tcy attcmptcd to capturc thc suspccts lor latcr trial
and took carc to cvacuatc ncarby buildings in ordcr to avoid harm to pcrsons
living ncarby and to ncighboring buildings and objccts.
o
thcr Statcs havc dcalt
with tcrrorist acts in a similar manncr and will likcly continuc to do so.
To summarizc, cvcry situation ol organizcd armcd violcncc arising lrom or
in rcsponsc to tcrrorism must bc cxamincd on a cascbycasc basis. Tc circum
a An unnamcd scnior Vcstcrn ocial who monitors thc activity ol tcrrorist groups
told thc Ncw York Timcs that thc thrcads bctwccn thc London, Madrid and 8ali
attacks wcrc not organizational. Tcy arc thrcads ol thc mind. Quotcd lrom
Raymond 8onncr, No Qacda Link Sccn in 8ali Suicidc 8ombings, Ncw York
Timcs, ctobcr ,, acc, at www.nytimcs.com/acc/.c/c,/intcrnational/asia/c,bali.
html. 8onncrs lcad rcads: !ndoncsias countcrtcrrorism lorccs say thc suspcctcd sui
cidc bombcrs who carricd out thc attack in 8ali last Saturday appcar to havc bccn
a small group with no prior criminal rccord or link to a largc organization likc Al
Qacda, giving thc casc cchocs ol thc London subway bombings in July.
c Scc 88C Ncws Madrid Suspccts Killcd in 8last at: www.ncws.bbc.co.uk/!/hi/
world/curopc/,.stm.
347 1l Unla.fulEnemy Combatants: Interpretations and Consequences
stanccs ol cach will dctcrminc whcthcr it lcgally and lactually mccts thc qualily
ing conditions as an armcd conict (intcrnational or nonintcrnational). No onc
sizc ts all lcgal approach to tcrrorism, particularly as to thc juridical naturc ol
thc situation and thc classication ol suspcctcd tcrrorists, is, or has provcn to bc,
lcasiblc in practicc.
An additional point in rclation to thc lcgal qualication ol thc war on tcr
rorism is that it has bccn suggcstcd in public discoursc, as wcll as in lcgal writing,
that this war is a ncw typc ol intcrnational armcd conict, govcrncd not by
thc rulcs ol intcrnational humanitarian law, but by thc principlcs ol thc Gcncva
Convcntions or by customary intcrnational law.
+
Tis analysis poscs gravc risks lor all thosc potcntially involvcd in, as wcll
as lor thosc acctcd by, acts ol tcrrorist violcncc. Tc Gcncva Convcntions arc
among thc most widcly raticd intcrnational trcatics (.a partics to datc) and arc
thcmsclvcs considcrcd largcly to rccct customary law. To maintain that thc war
on tcrrorism is govcrncd by principlcs or customary law rulcs which arc ncc
cssarily rathcr broad in lormulation and about which thcrc is disagrccmcnt is to
introducc a lcvcl ol unccrtainty about thc applicablc lcgal lramcwork that cannot
bc dccmcd acccptablc lrom a practical or humanitarian point ol vicw.
vcn il, lor thc sakc ol argumcnt, onc tricd to cnvisagc thc principlcs or
rulcs that would govcrn a nontrcaty intcrnational war, thcy could not bc dicr
cnt lrom thc currcnt humanitarian law rcgimc unlcss onc wcrc prcparcd to coun
tcnancc a rcturn to what would csscntially bc lawlcssncss. Tcrclorc, thc principlc
ol distinction and othcr rulcs on thc conduct ol hostilitics would havc to bc
rcspcctcd, as would many alrcady cxisting intcrnational humanitarian law trcaty
standards on thc rights and trcatmcnt ol pcrsons in thc hands ol thc advcrsary.
B Detention under the La.s and Customs of !ar
Tc sccond componcnt ol thc dcnition ol cncmy combatant is that it pcrtains
to pcrsons who could propcrly bc dctaincd undcr thc laws and customs ol war.
Tis bcgs thc qucstion ol what is thc scopc and contcnt ol thc cxprcssion laws
and customs ol war.
Vhatcvcr scopc and contcnt wcrc intcndcd, thc application ol thc laws and
customs ol war to thc dctcntion ol cncmy combatants is prcmiscd on a lcgal
. Scc Villiam K. Lictzau, Combating Tcrrorism: Law nlorccmcnt or Var: in
Tcrrorism and !ntcrnational Law, Challcngcs and Rcsponscs, Michacl N. Schmitt
and Gian Luca 8cruto (cds.), !ntcrnational !nstitutc ol Humanitarian Law and
Gcorgc C. Marshall uropcan Ccntcr lor Sccurity Studics, acc, at p. c. (!n making
thcsc and rclatcd dccisions about thc trcatmcnt accordcd our tcrrorist cncmics, wc
arc rcmindcd daily that thc currcnt intcrnational law tcmplatcs do not providc guid
ancc clcarly applicablc to prcscnt circumstancc. Simply put, wc arc opcrating in arcas
not addrcsscd by applicablc trcatics and thus arc participating in thc dcvclopmcnt ol
customary intcrnational law.).
348 Jelena Pejic
intcrprctation according to which thc totality ol thc war on tcrrorism is an
armcd conict in thc lcgal scnsc. As suggcstcd abovc, thc war on tcrrorism can
involvc intcrnational and/or nonintcrnational armcd conict or countcrtcrror
ism mcasurcs that lall outsidc armcd conict as such. !t is submittcd that thc
status and rights ol dctainccs capturcd in thc ght against tcrrorism should bc
dctcrmincd accordingly.
Detention in international armed conict. As notcd, thc dctcntion ol prisoncrs ol
war undcr thc rclcvant rulcs ol intcrnational humanitarian law docs not rcquirc
administrativc or judicial rcvicw whilc thc intcrnational armcd conict in rclation
to which thcy wcrc dctaincd is ongoing. Prisoncrs ol war may bc dctaincd until
thc cnd ol activc hostilitics in an intcrnational armcd conict, but arc thcn cnti
tlcd to rclcasc,
:
cxccpt lor thosc against whom criminal procccdings arc pcnd
ing.
!n thc lattcr casc, a prisoncr ol war may bc hcld through complction ol thc
criminal procccdings and, il applicablc, until any scntcncc has bccn scrvcd.
Undcr thc rclcvant provisions ol thc Fourth Gcncva Convcntion, protcctcd
pcrsons undcr that Convcntion may bc subjcct to intcrnmcnt (or assigncd rcsi
dcncc) only il thc sccurity ol thc ctaining Powcr makcs it absolutcly ncc
cssary.
A protcctcd pcrson who has bccn intcrncd is cntitlcd to havc his or hcr
intcrnmcnt rcconsidcrcd as soon as possiblc by an appropriatc court or admin
istrativc board.
8
!l thc intcrnmcnt is maintaincd, thc court or board shall pcri
odically, and at lcast twicc ycarly, rcvicw thc casc with a vicw to lavourablc
amcndmcnt ol thc initial dccision il circumstanccs pcrmit.
!t should bc strcsscd that thc automatic pcriodic rcvicw rclcrrcd to in thc
Fourth Convcntion is intcndcd to providc an additional salcguard lor pcrsons
intcrncd oncc thcir initial rcqucst lor rclcasc considcration has bccn rcjcctcd. !t
assumcs that, as conrmcd by thc Fundamcntal Guarantccs provisions ol Articlc
, () ol thc First Additional Protocol, thc pcrson has bccn inlormcd ol thc rca
sons lor intcrnmcnt
o
and has bccn aordcd a right to rcqucst rcconsidcration.
a GC !!!, articlc ...
GC !!!, articlc ...
!bid.
GC !\, articlcs . and a. !n occupicd tcrritory intcrnmcnt is govcrncd by GC !\,
Articlc ,.
6 GC !\, articlc .a.
, GC !\, articlc ..
GC !\, articlc .
!bid.
c AP !, articlc , ().
349 1l Unla.fulEnemy Combatants: Interpretations and Consequences
!n any casc, thc proccdurc providcd lor is a minimum, it will advantagcous il
bcttcr salcguards, such as cxamination ol cascs at morc lrcqucnt intcrvals or thc
sctting up ol a highcr appcals court, arc providcd lor by thc ctaining Powcr.
+
nc such salcguard not mcntioncd in thc Convcntion would bc thc provision ol
lcgal counscl to pcrsons appcaling thc original intcrnmcnt dccision or undcrgo
ing pcriodic rcvicw.
Pcrsons who may bc intcrncd pursuant to thc Fourth Gcncva Convcntion
lor rcasons ol sccurity cncompass, as notcd abovc, bclligcrcnts who do not qualily
lor prisoncr ol war status, as wcll as civilians intcrncd bccausc thcy arc dccmcd to
posc a sccurity risk. Tcsc includc pcrsons who havc dircctly participatcd in hos
tilitics without bcing authorizcd to do so (unlawlul combatants), providcd thcy
lull thc nationality critcria ol thc Fourth Convcntion.
:
Undcr dcncd con
ditions, somc ol thc rights and privilcgcs ol such pcrsons may bc curtailcd il
thcir cxcrcisc would bc prcjudicial to thc ctaining Powcrs sccurity,
but thcy
rcmain, in all circumstanccs, protcctcd by thc Fundamcntal Guarantccs provi
sions ol Additional Protocol ! as a mattcr ol customary law,
as wcll as by othcr
rulcs ol customary law.
Tosc who do not mcct thc Fourth Gcncva Convcntions nationality cri
tcria arc, at a minimum, cntitlcd to thc Fundamcntal Guarantccs ol Additional
Protocol !
and to thc protcction ol othcr rulcs ol customary intcrnational law.
Vhilc thc proccdurc govcrning thc intcrnmcnt ol this catcgory ol pcrsons is not
spccicd in thc rclcvant trcatics, a corc ol proccdural principlcs and salcguards
that govcrn thc intcrnmcnt ol this and othcr catcgorics ol pcrsons cxists.
6
!t is almost supcruous to rcitcratc that pcrsons who takc a dircct part in
hostilitics without bcing cntitlcd to do so may bc criminally chargcd and tricd
undcr thc domcstic law ol thc dctaining statc lor such participation. Provisions
rcgulating thc lair trial rights ol intcrnccs subjcct to criminal procccdings arc laid
out in thc Fourth Gcncva Convcntion,
Vhcthcr a dcprivation ol libcrty is lawlul or not must bc judgcd on thc basis ol
thc grounds lor thc dctcntion and on thc proccdurc lollowcd. A valid rcason lor
thc dcprivation ol libcrty must cxist with rcgard to both thc initial dcprivation
and its continuation.
Vhcn a pcrson is intcrncd in rclation to a nonintcrnational armcd con
ict, hc or shc must, as a minimum, bc inlormcd promptly, in a languagc hc
or shc undcrstands, ol thc rcasons lor which thc mcasurc was takcn.
o
!n addi
tion, intcrnmcnt should bc subjcct to thc ccctivc control ol an indcpcndcnt and
impartial judicial body bclorc which intcrnccs may, in particular, challcngc thc
lawlulncss ol thcir intcrnmcnt and obtain rclcasc il lound unlawlul.
+
Tc right to challcngc thc lawlulncss ol oncs dctcntion (habcas corpus)
is rccognizcd in most, il not all, domcstic lcgal systcms and considcrcd to bc
nondcrogablc as a mattcr ol human rights jurisprudcncc.
:
Furthcr, intcrnational
human rights instrumcnts and jurisprudcncc providc lor thc right to lcgal assist
Tus, unlawlul conncmcnt ol civilians is a gravc brcach ol thc Fourth Gcncva
Convcntion (articlc .,). Tc lcmcnts ol Crimcs lor thc !ntcrnational Criminal
Court statc that unlawlul conncmcnt may bc in rclation to any pcrson protcctcd
undcr onc ol thc Gcncva Convcntions and not only in rclation to civilians (lcmcnts
ol Crimcs ol articlc (a)(a)(vii)). Tc right to libcrty and sccurity ol pcrson is a lun
damcntal right providcd lor in articlc ol thc !ntcrnational Covcnant on Civil and
Political Rights (!CCPR), and is also guarantccd by thc rcgional human rights trca
tics.
c Inter alia !CCPR, articlc (a), 8ody ol Principlcs lor thc Protcction ol All Pcrsons
undcr Any Form ol ctcntion or !mprisonmcnt, Principlcs .c and . (UN GA rcs.
/., ol cccmbcr .). (Hcrcinaltcr 8oP).
. Inter alia !CCPR, articlc (), 8oP, Principlc a. Also, UN Human Rights
Committcc, Gcncral Commcnt No. a, Statcs ol mcrgcncy (Articlc ), CCPR/
C/a./Rcv../Add..., . August acc., para. .6.
a !bid.
351 1l Unla.fulEnemy Combatants: Interpretations and Consequences
ancc in any procccdings involving thc lawlulncss ol dcprivation ol libcrty.
Tc
right to counscl is particularly csscntial in circumstanccs ol prolongcd or incom
municado dctcntion.
Although intcrnational humanitarian law trcatics do not spccily thc pcr
missiblc duration ol intcrnmcnt during nonintcrnational armcd conict,
somc inlcrcnccs bascd on thc provisions outlincd abovc may bc madc. Givcn
that intcrnmcnt is a mcasurc takcn lor sccurity rcasons, thcrc is an cxpcctation,
cxprcsscd in thc Sccond Additional Protocol,
Lcst it bc assumcd that thcsc individuals arc salcly dcploycd bchind thc
lront lincs and that thc activitics thcy cngagc in do not involvc thcir dircct par
ticipation in hostilitics, it should bc pointcd out that, irrcspcctivc ol thc tcrms ol
thcir contracts, somc individual contractors arc pcrlorming csscntial lront linc
rolcs in military opcrations,
a Scc Anthony workin, Sccurity contractors in !raq: armcd guards or privatc sol
dicrs, Crimcs ol Var Projcct, ac April acc, http://www.crimcsolwar.org/onncws/
ncwssccurity.html, Pctcr 8rownlcld, Military contractors shouldcr hcavy burdcn
in !raq, Fox Ncws, . April acc, http://www.loxncws.com/story/c,a,..,a,cc.
html, Avant, ibid, ana Pricst and Mary Pat Flahcrty, Undcr rc, sccurity rms
lorm an alliancc, Te !ashington Post, April acc, http://www.inlormationclcar
inghousc.inlo/articlc6ca6.htm, Matthcw Quirk, Privatc military contractors: A
buycrs guidc, Te tlantic Monthly, Scptcmbcr acc, http://www.thcatlantic.com/
doc/prcm/accc/quirk, Mcrccnary strcngth rcachcs high in !raq, UP!, April
acc, http://ncwsminc.org/archivc/warontcrror/unitcdstatcs/privatcarmy/mcr
ccnarystrcngthrcachcshighiniraq.txt.
Traynor, supra n. .. !n 8osnia,thc ratio ol contractors to Amcrican soldicrs has
rangcd lrom onc in .c to ncarly onctoonc, according to various dclcnsc analysts,
Laura Pctcrson, Privatizing combat, thc ncw world ordcr, Tc Ccntcr lor Public
!ntcgrity, Vashington .C., . May acc, http://www.publicintcgrity.org/bow/
rcport.aspx:aid-.. Scc also avid !scnbcrg, Corporatc Mcrccnarics, Part .: Prot
comcs at a pricc, Asia Timcs onlinc, . May acc, http://www.atimcs.com/atimcs/
Middlc_ast/F.Akc..html, cborah Avant, Vhat arc thosc contractors doing
in !raq: Te !ashington Post, May acc, http://www.cmjournal.pwp.blucyondcr.
co.uk/aamayc.c.html.
Scc Lourdcs A. Castillo, Vaging war with civilians: Asking thc unanswcrcd qucs
tions, erospace Po.er Journal (Fall accc), http://www.airpowcr.maxwcll.al.mil/air
chroniclcs/apj/apjcc/lalcc/castillo.htm, cborah Avant, Tc Risc ol thc Privatc
Sccurity Companics, Foreign Policy, . Junc acc, http://www.corpwatch.org/articlc.
php:id-.a.
Scc P.V. Singcr, Corporate !arriers: Te Fise of the Pri.ated Military Industry (!thaca
and London, Corncll Univcrsity Prcss acc) pp. ., cborah Avant, supra n. ., pp.
.6aa.
359 14 Some Legal Issues Concerning US Military Contractors in Iraq
Tc individual contractors working in !raq lor thc Coalition Forccs arc
not cmploycd dircctly by thcm but arc cngagcd on shorttcrm contracts by a
host ol companics, including largc, divcrsicd, multinational corporations such
as Haliburton, and its subsidiary Kcllogg, 8rown, and Root, \inncll, 8cchtcl
Corporation, ynCorp, Global Risk Managcmcnt, Military Prolcssional
Rcsourccs !nc. (MPR!), 8lackwatcr Sccurity Consulting, CAC! !nc., Titan, and
rinys !ntcrnational. !t is cstimatcd that thcrc arc wcll ovcr .cc contractor com
panics in !raq
6
ocring a widc rangc ol scrviccs to both statc and nonstatc clicnts.
Tc scrviccs thcy arc contractcd to providc and thc activitics thcy actually cngagc
in vary widcly: providing pcrsonal sccurity |among othcrs lor thc lormcr Hcad
ol thc Coalition Provisional Authority (CPA) L.P. 8rcmcr
applics as thc lex specialis. Part !.A bclow providcs a bricl discus
sion rcgarding what parts ol thc LAC can bc considcrcd to bc applicablc.
thcr aspccts ol intcrnational law may likcwisc bc rclcvant, lor cxamplc, thc rulcs
prohibiting mcrccnary activitics. !n thc contcxt ol thc discussion ol contractor
liability lor wrongdoing, intcrnational criminal law and thc domcstic criminal
laws ol thc US and !raq constitutc thc applicablc law. Givcn that intcrnational
civil law hardly cxists outsidc ol statc rcsponsibility law, thc civil liability ol indi
vidual contractors and contractor companics shall bc asscsscd by rclcrcncc to
national civil law. Finally, thc law ol statc rcsponsibility is rclcvant in thc contcxt
ol thc discussion whcthcr statcs can bc hcld as rcsponsiblc lor thc wronglul acts
ol contractor individuals or companics.
Te Nature of the Conict in Iraq and the pplicable LOC
From thc momcnt ol thc rst air strikcs against !raq by thc US and its coali
tion partncrs on ac March acc, thc law applicablc in intcrnational armcd con
ict applicd, thc conict bcing an intcrnational armcd conict bctwccn two or
morc statcs.
ccupation law,
o
namcly, thc rclcvant parts ol thc Haguc Rcgulations
anncxcd to thc Fourth Haguc Convcntion ol .c, and thc Fourth Gcncva
Convcntion ol ., bccamc applicablc as thc US stcadily gaincd ccctivc con
trol ovcr thc tcrritory ol !raq.
+
Michacl Kclly, who scrvcd in thc cc ol thc
Gcncral Counscl ol thc CPA, has opincd that thc law ol occupation was in
ccct throughout !raq by thc cnd ol April acc.
:
Michacl Schmitt and Charlcs
Garraway havc notcd that somc rcsistancc continucd altcr thc lall ol thc Saddam
Husscin rcgimc on April, but that on .6 April, Coalition Commandcr, Gcncral
Franks, issucd a Mcssagc ol Frccdom to thc !raqi Pcoplc. Tc CPA gcncrally uscs
this datc in its policy instrumcnts as a rclcrcncc point lor countrywidc occupa
a,. ct scq.
6 Rcprintcd in Adam Robcrts and Richard Gucl, Documents on the La.s of !ar, a
nd
cdn. (xlord, Clarcndon Prcss .) p. .
, !bid., at p. .
!bid., at p. a,a.
Tc !CRCs rcccntly publishcd study on Customary !ntcrnational Humanitarian
Law idcntics a grcat numbcr ol customary rulcs, particularly conccrning thc con
duct ol hostilitics, applicablc in both intcrnational and nonintcrnational armcd
conict. JcanMaric Hcnckacrts and Louisc oswald8cck, Customary International
Humanitarian La., \olumc !: Rulcs (Gcncva, !CRC/Cambridgc, Cambridgc
Univcrsity Prcss acc) (hcrcaltcr, C!HL). Scc also JcanMaric Hcnckacrts, Study
on customary intcrnational humanitarian law: A contribution to thc undcrstanding
and rcspcct lor thc rulc ol law in armcd conict, International Fe.ie. of the Fed
Cross No. ,, p. .,.
c Articlc a ol thc Haguc Rcgulations anncxcd to thc Fourth Haguc Convcntion ol
.c, providcs that: Tcrritory is considcrcd occupicd whcn it is actually placcd undcr
thc authority ol thc hostilc army. Tc occupation only cxtcnds to thc tcrritory whcrc
such authority has bccn cstablishcd and can bc cxcrciscd.
. Michacl Kclly has notcd that: Tis is a law that cbbs and ows in thc cddics ol thc
battlc spacc. !ts application crccps lorward as thc lorward cdgc ol thc battlc (hcrcal
tcr, F8A) movcs lorward. Vhilc thc law docs not apply in thc F8A, it comcs to
lruition as a lorcc acquircs or dcvclops thc capacity to cxcrcisc control ol capturcd
tcrritory away lrom thc combat action and thcrclorc it may bc dcscribcd as thc law
ol thc sccond cchclon. Michacl J. Kclly, !raq and thc law ol occupation: ncw tcsts
lor an old law, 6 YIHL (acc) pp. .a, at .a.
a !bid., at p. .c.
365 14 Some Legal Issues Concerning US Military Contractors in Iraq
tion.
Two wccks latcr, on . May, Prcsidcnt 8ush dcclarcd that major combat
opcrations in !raq havc cndcd.
For our purposcs, thc two main qucstions arc (.) whcn did thc occupation
cnd, and (a) whcn did thc intcrnational armcd conict cnd : !l onc or both is now
cndcd, thcn only Articlc common to thc Gcncva Convcntions and customary
humanitarian law applicablc in nonintcrnational armcd conicts applics, as nci
thcr !raq nor thc US is a party to Additional Protocol !!.
Ncithcr Haguc nor Gcncva Law is cntircly clcar rcgarding whcn an occupa
tion cnds. Tc Haguc Rcgulations say nothing on thc qucstion, whilc Articlc 6 ol
thc Fourth Gcncva Convcntion is addrcsscd to whcn thc Convcntion ccascs to
apply, providing that: !n casc ol occupicd tcrritory, thc application ol thc prcscnt
Convcntion shall ccasc onc ycar altcr thc gcncral closc ol military opcrations.
Articlc (b) ol Additional Protocol ! is not much morc hclplul, stating simply
that thc application ol thc Convcntions and thc Protocol ccascs, in thc casc ol
occupicd tcrritorics, upon thc tcrmination ol thc occupation.
sscntially, an occupation cnds whcn thc ccupying Powcr no longcr cxcr
ciscs military or administrativc control ovcr thc occupicd tcrritory or whcn a
national authority is rcstorcd. According to thc 8ritish Military Manual:
ccupation ccascs as soon as thc occupying powcr is drivcn out or cvacuatcs
thc arca. ccupation will also ccasc whcn ccctivc control translcrs to a dicr
cnt authority, such that thc tcrritory ccascs to bc undcr thc authority ol cxtcrnal
military lorccs.
cially, thc !raq occupation cndcd on c Junc acc with thc handovcr
ol authority lrom thc CPA to thc !ntcrim !raqi Govcrnmcnt,
6
cvcn though
thcrc was no withdrawal ol Coalition Forccs at that timc. !ndccd, ccctivc mili
tary control ovcr thc country was still bcing cxcrciscd by thc Coalition Forccs at
thc timc ol writing (cccmbcr acc). !l onc acccpts that !raqi sovcrcignty was
rcstorcd with thc clcction ol an intcrim !raqi govcrnmcnt on c Junc acc, thcn
thc US and thc UK no longcr constitutcd ccupying Powcrs lrom this datc as
thcy rcmaincd in !raq with thc agrccmcnt ol thc !raqi !ntcrim Govcrnmcnt.
Rcgarding thc ccssation ol thc intcrnational armcd conict, although !raq
was almost lully undcr occupation by .6 April or at thc latcst . May acc, thc
intcrnational armcd conict continucd, albcit at a lowcr lcvcl, altcr this datc and
lor thc duration ol thc occupation as thc country was not cntircly pacicd and
Michacl N. Schmitt and Charlcs H.8. Garraway, ccupation policy in !raq and
intcrnational law, International Peacekeeping (acc) pp. a, at a.
Gcorgc V. 8ush, Rcmarks lrom thc USS braham Lincoln, . May acc, http://www.
whitchousc.gov/ncws/rclcascs/acc/c/iraq/accc...htm.
Te Manual of the La. of rmed Conict, UK Ministry ol clcncc (xlord, xlord
Univcrsity Prcss acc) p. a,,, part ...,.
6 As agrccd in thc Agrccmcnt ol . Novcmbcr acc bctwccn thc Govcrning Council
and thc CPA on thc Timeline to a So.ereign, Democratic and Secure Iraq, http://iraq
coalition.org/govcrnmcnt/AgrccmcntNov..pdl.
366 .ril McDonald
thc coalition sought to quash thc rcmaining pockcts ol rcsistancc. Tcrclorc, mil
itary opcrations conductcd within thc contcxt ol thc intcrnational armcd conict
and thc occupation would havc coincidcd, as would thc ccssation ol both thc
intcrnational armcd conict and thc occupation.
Tc gcncral vicw is that thc closc ol military opcrations signals a com
plctc ccssation ol hostilitics. Tc Rapportcur ol Committcc !!! at thc Gcncva
iplomatic Conlcrcncc ol . statcd that thc gcncral closc ol military opcrations
was whcn thc last shot has bccn rcd.
As national pridc and thc dcsirc ol statcs to discouragc dcpcndcncc on privatc
military lorccs grcw, so too did thc willingncss ol nationals to ght on bchall ol
thcir statc lor littlc rcward othcr than lovc ol country and glory. Conscript and
prolcssional armics grcw to rcplacc thc dcpcndcncc on hircd guns.
!t was only in .,, with Additional Protocol ! to thc Gcncva Convcntions
that statcs movcd to criminalisc mcrccnarism undcr thc law ol armcd conict.
Subscqucntly, in ., an !ntcrnational Convcntion was adoptcd to ban thc prac
ticc.
Tc samc
is truc lor logistics.
individuals or any othcr cntity with lull or limitcd intcrnational lcgal pcrsonality.
As yct, thcrc is no rcgulation ol PMCs at thc intcrnational lcvcl, and thcrc sccms
to bc nothing in intcrnational law or indccd thc domcstic law ol most statcs to
prohibit thc cstablishmcnt ol privatc military or sccurity companics per se.
For thc most part, PMCs arc companics rcgistcrcd undcr thc applicablc
domcstic company law. As PMCs arc incorporatcd in statcs, thcy arc subjcct to
all ol thc rclcvant national law (company law, tax law, contract law, ctc.) rathcr
than intcrnational law. Howcvcr, this docs not mcan that thcir activitics and thc
actions ol thosc thcy cmploy cannot bc subjcct to intcrnational law whcrc rcl
cvant. For cxamplc, in statcs that arc partics to thc Mcrccnarics Convcntion or
Additional Protocol !, activitics ol PMCs that could bc dccmcd mcrccnary would
bc prohibitcd.
B Te Legal Status of the Contractor Personnel
Tcrc arc two principal qucstions, which shall bc considcrcd in thc lollowing scc
tion: (.) Vhat is thc lcgal status ol contractor pcrsonncl: Arc thcy combatants or
noncombatants (civilians): (a) !l thcy arc thc lattcr, in what circumstanccs and
lor how long might thcy losc thc immunity lrom attack which all civilians arc
prcsumcd to cnjoy: Tc qucstion ol whcthcr contractors arc mcrccnarics shall bc
considcrcd latcr.
i Arc !ndividual Contractors Combatants or Noncombatants:
!n ordcr to dctcrminc whcthcr contractors (including but not only thosc who
takc a dircct part in hostilitics) arc combatants or civilians it is ncccssary to rst
considcr whcthcr thcy arc mcmbcrs ol thc armcd lorccs ol a party to thc con
ict,
8
in this casc, thc US. !l so, thcy can bc considcrcd combatants undcr thc
,, Privatc military companics arc not and could ncvcr bc considcrcd intcrnational
organisations, as that tcrm is currcntly undcrstood. Tcy lack thc two kcy charactcr
istics ol intcrnational organisations, namcly, an association ol statcs and thc ability to
cxcrcisc lcgal powcrs on thc intcrnational planc. Scc !an 8rownlic, Principles of Public
International La.,
th
cdn. (xlord, xlord Univcrsity Prcss .) pp. 6,6c.
, According to Articlc (.) ol .,, Additional Protocol !:
Tc armcd lorccs ol a Party to a conict consist ol all organizcd armcd lorccs,
groups and units which arc undcr a command rcsponsiblc to that Party lor thc
conduct ol its subordinatcs, cvcn il that Party is rcprcscntcd by a govcrnmcnt
374 .ril McDonald
dcnition providcd lor in Articlc ol Additional Protocol !, pursuant to which
all mcmbcrs ol thc armcd lorccs with thc cxccption ol chaplains and mcdical
pcrsonncl arc combatants,
Rathcr than vicwing contractors (or at lcast thosc who takc a dircct part in
hostilitics) as lunctional mcmbcrs ol thc armcd lorccs, as mcmbcrs ol paramili
. Philip Cartcr, Hircd guns: what to do about military contractors run amok, Slatc,
April acc, http://www.slatc.com/id/ac,./, Michacl uy, Vhcn privatc armics
takc to thc lront lincs, Timc magazinc onlinc, http://www.sandlinc.com/hotlinks/
TimcPrivatc_armics.html.
a US Army Ficld Manual .cca., Contractors on thc 8attlccld, a6 March accc,
dcncs thrcc conditions that must bc mct bclorc contractor pcrsonncl can carry rc
arms. nc, thc rclcvant commandcr in thc arca ol opcrations must givc his approval.
Two, thc contractor company policy must pcrmit its cmployccs to carry arms, and
thrcc, thc individual contractor cmploycc must agrcc to carry a rcarm. Availablc
at http://www.gcocitics.com/tominclpaso/armymanual.htm. Scc Lcslic Vaync,
Amcricas lorprot sccrct army, Te Ne. York Times, . ctobcr acca, http://www.
commondrcams.org/hcadlincsca/.c.c..htm. According to onc sourcc, only about
6,ccc ol thc privatc sccurity contractors in !raq arc armcd, and thcn only with small
arms. Vilson, supra n. 66, Pricst and Flahcrty, supra n. a, Mary Pat Flahcrty and
ana Pricst, Morc limits sought lor privatc sccurity rms, Te !ashington Post, .
April acc, http://www.washingtonpost.com/aca/wpdyn/A66.aaccApr.a:langu
agc-printcr.
Scc Singcr, supra n. ...
Scc 8arstow, supra n. .
!n any cvcnt, thc !CRC Commcntary notcs that it would bc dcsirablc lor thc vari
ous Partics to a conict to inlorm cach othcr complctcly rcgarding thc composition
ol thcir rcspcctivc armcd lorccs, cvcn il this wcrc only donc through thc communica
tion ol thc laws and rcgulations which thcy havc had to adopt to cnsurc compliancc
with thc Protocol, as providcd lor in Articlc (Fules of application). Supra n. , p.
.6.
379 14 Some Legal Issues Concerning US Military Contractors in Iraq
tary or othcr armcd groups or as voluntccrs ghting on bchall ol a party, any ol
which would makc thcm combatants, it sccms prclcrablc to considcr privatc indi
viduals cmploycd undcr contract by privatc military and sccurity companics and
contractcd out to thc military, rcgardlcss ol thc activitics thcy arc hircd to pcr
lorm and actually cngagc in, as othcr than combatants. Arguably, thcy could not
bccomc combatants without bcing lormally incorporatcd into thc armcd lorccs or
somc auxiliary lorcc. National law ol thc statc cmploying thcm and not humani
tarian law would sccm to bc thc control as lar as mcmbcrship ol thc armcd lorccs
is conccrncd. Tus, contractors must bc considcrcd noncombatants (civilians)
undcr humanitarian law. Tis conclusion is supportcd by rclcrcncc to humanitar
ian law itscll, which cxplicitly alludcs to thc lcgal status ol contractors. According
to both Haguc
6
and Gcncva law,
I ening the ebate
As an cntirc book could casily bc writtcn on thc conduct and lcgality ol dctcntion
opcrations during pcration !raqi Frccdom, thc scopc ol this articlc must ncccs
sarily bc rcncd and limitcd.
Occupation, Post-Transfer of So.ereignty, or the Transitional Period?
As this articlc is bcing writtcn in latc acc, thc situation in !raq continucs to
cvolvc lrom a wartimc purcly law ol armcd conict paradigm to onc ol pcacctimc
law cnlorccmcnt. Tc lcgal basis and implcmcntation ol dctcntion opcrations in
8radlcy Graham, U.S to Expand Prison Facilities in Iraq, V~snixc:ox Pos:, May
.c, acc, at A..
Scc, c.g., Scan . Murphy, Contemporary Practice of the United States Felating to
International La.: Executi.e Branch Memoranda on Status and Permissible Treatment
of Detainees, A:vvic~x Jouvx~i ov !x:vvx~:iox~i L~w ac (ctobcr, acc),
Final Feport of the Independent Panel to Fe.ie. DoD Detention Operations (Aug. a,
acc) |hcrcinaltcr Schlcsingcr Rcport|, Major Gcncral Fay, !nvcstigating ccr, F
z-o In.estigation of the bu Ghraib Prison and :c
th
Military Intelligence Brigade (Aug.
a, acc) |hcrcinaltcr Fay Rcport|, Major Gcncral Taguba, AR .6 !nvcstigation ol
thc cc
th
Military Policc 8rigadc (a, May acc) |hcrcinaltcr Taguba Rcport|. Tc
Schlcsingcr and Fay rcports arc availablc on thc US cpartmcnt ol clcnsc wcbsitc
at http://www.dclcnsclink.mil, whilc vcrsions (rcdactcd, classicd, and dcclassicd)
ol thc Taguba Rcport arc availablc on numcrous othcr !ntcrnct wcbsitcs.
415 16 Ci.ilian Detentions in Iraq
!raq will bc considcrcd in two phascs: thc occupation and thc transitional pcriod.
Tcsc pcriods cncompass thc lall ol Husscins govcrnmcnt in April acc to thc
translcr ol govcrning authority lrom thc Coalition Provisional Authority (CPA)
to thc !raqi !ntcrim Govcrnmcnt (!!G) on Junc a, acc, and thcn lrom Junc a,
acc to cccmbcr acc whcn !raqs ncw parliamcnt was clcctcd, rcspcctivcly.
6
B !ho re Coalition Forces?
Vhilc thc Unitcd Statcs lcd thc invasion to topplc Saddam Husscin and install
dcmocracy in !raq, dozcns ol othcr countrics contributcd ground lorccs to thc
cort. As such, prcss rclcascs, ocial pronounccmcnts, and military ordcrs all
rclcrrcd to thc collcctivc Coalition Forccs. Altcr thc translcr ol sovcrcignty in
Junc acc, Coalition Forccs includcd mcmbcrs ol thc !raqi sccurity apparatus
local and national policc and thc !raqi National Guard. Vhilc thc political bcn
ct ol thc Amcrican dccision to rclcr to all opcrations in !raq undcr thc collcctivc
Coalition Forccs is apparcnt, thc cmbracc ol that tcrm by this author is solcly lor
rcasons ol simplicity and clarity.
Tc Combincd Forcc Land Componcnt Commandcr (CFLCC) lcd coali
tion ground lorccs during thc invasion ol !raq through Junc acc, whcn it was
rcplaccd by thc Combincd Joint Task Forcc , (CJTF,), which was in turn
succccdcd by thc MultiNational Forcc !raq (MNF!) prior to thc translcr
ol sovcrcignty in Junc acc. As thcy compriscd thc ovcrwhclming majority ol
Coalition Forccs, Amcrican soldicrs and Marincs capturcd thc vast majority ol
dctainccs, howcvcr, othcr Coalition Forccs also dctaincd !raqis and, il warrantcd
undcr applicablc rcgulations, translcrrcd thc dctainccs to a Coalition Tcatcr
!ntcrnmcnt Facility. As such, whcn this papcr addrcsscs thc lcgal basis and
implcmcnting policics lor dctaincc opcrations by Coalition Forccs, it is rclcrring
to opcrations conductcd undcr thc command and control ol CFLCC, CJTF,
or MNF!. Any rcstrictions placcd on individual Coalition Forcc mcmbcrs by
thcir countrys law or rcgulations, or any policics applicablc to lorccs not undcr
thc command and control ol CFLCC, CJTF, or MNF!, arc bcyond thc pur
vicw ol this articlc.
As an intcrcsting asidc, in Junc acc US govcrnmcnt and MNF! ocials and
documcntation spokc ol thc translcr ol sovcrcignty lrom thc Coalition Provisional
Authority to thc !raqi !ntcrim Govcrnmcnt. Morc rcccntly, US ocials spcak and
writc ol thc cvcnt as a transition ol govcrnancc authority. Tis rcvision in tcrmi
nology was intcndcd to cmphasisc that Coalition Forccs had no dcsigns ol owncr
ship upon !raq and wcrc simply carctakcrs, viccsovcrcigns, in bctwccn thc lall ol
Husscin and cstablishmcnt ol a ncw !raqi govcrnmcnt.
6 Altcrnativcly, thcsc pcriods could bc vicwcd as occupation and postoccupation, but
sincc thc USlcd coalition in !raq rcluscd to uttcr thc word occupation, its argu
ably lcgally obtusc but nonocnding and politically corrcct phrascology will bc
cmploycd hcrc.
416 ndru E. !all
C Combatants and EP!s
Tc right ol armics to capturc and hold cncmy combatants as prisoncrs ol war
until thc tcrmination ol activc hostilitics is wcll cstablishcd. Tis right is groundcd
in customary intcrnational law and codicd in thc Gcncva Convcntion Rclativc
to thc Trcatmcnt ol Prisoncrs ol Var ol August .a, . (GC !!!).
n thc rarc
occasions altcr thc lall ol Saddam Husscin whcn capturcd individuals invokcd
thcir right to trcatmcnt as an cncmy prisoncr ol war (PV), Coalition Forccs
conductcd a tribunal in accordancc with thc provisions ol Articlc ol GC !!!.
Altcr thc translcr ol sovcrcignty, Coalition Forccs rctaincd vcry lcw PVs in
thcir custody. PVs wcrc cithcr rclcascd, translcrrcd to thc lcgal custody ol thc
!raqi !ntcrim Govcrnmcnt (!!G) lor prosccution lor criminal ocnscs unrclatcd
to thcir combatant status, or hcld as sccurity intcrnccs il indcpcndcnt lacts cstab
lishcd thc individual poscd a thrcat to thc sccurity ol Coalition Forccs. !l a lormcr
mcmbcr ol thc !raqi Army, including a lormcr prisoncr ol war who had bccn
rclcascd, was dctaincd lor acts against thc sccurity ol Coalition Forccs, hc was
trcatcd as a sccurity intcrncc including potcntial criminal prosccution by thc
Ccntral Criminal Court ol !raq.
8
D Former Fegime Elite, EP!s or !ar Criminals?
Tc dctaincd lormcr highranking mcmbcrs ol Saddam Husscins rcgimc wcrc
gcncrally classicd as cithcr cncmy prisoncrs ol war or suspcctcd war criminals:
thc lormcr il thcy scrvcd in thc !raqi armcd lorccs or in thc military chain
olcommand, and thc lattcr il thcy wcrc outsidc thc military command struc
turc but noncthclcss suspcctcd ol gravc brcachcs ol thc Gcncva Convcntions
or crimcs against humanity. Tc Gcncva Convcntions and customary intcrna
tional law providcd thc basis lor thcsc dctcntions. All statc partics to thc Gcncva
Convcntions arc obligatcd to scarch lor pcrsons allcgcd to havc committcd, or
to havc ordcrcd to bc committcd, gravc brcachcs ol thc Gcncva Convcntions
and shall prosccutc such individuals in thcir own courts or hand thcm ovcr to
, Prisoncrs ol war shall bc rclcascd and rcpatriatcd without dclay altcr thc ccssation
ol activc hostilitics. Gcncva Convcntion Rclativc to thc Trcatmcnt ol Prisoncrs ol
Var, Aug. .a, . |hcrcinaltcr GC !!!|, , U.N.T.S. ., ocu:vx:s ox :nv L~ws
ov V~v a, a (Adam Robcrts & Richard Gucl cds., d cd., accc).
Tis practicc was consistcnt with customary intcrnational law, which providcs that
whcn an ccupying Powcr disbands or dcmobilizcs thc military ol thc occupicd
country, lormcr mcmbcrs ol that military, including rclcascd prisoncrs ol war, arc
convcrtcd to civilian status and arc not thcrcaltcr gcncrally cntitlcd to trcatmcnt as
prisoncrs ol war. Howard S. Lcvic, Pvisoxvvs ov V~v ix !x:vvx~:iox~i Av:vb
Coxviic: 66 (.,)(\ol. , US Naval Var Collcgc !ntcrnational Law Studics).
Tis issuc was raiscd at thc . iplomatic Conlcrcncc, which only wcnt so lar as
to cxtcnd continucd cntitlcmcnt to prisoncr ol war status il thc statc was not com
plctcly occupicd. Scc Articlc (8)(.), GC !!!, supra notc ,.
417 16 Ci.ilian Detentions in Iraq
thc courts ol anothcr High Contracting Party lor prosccution.
Customary intcr
national law long ago outlawcd crimcs against humanity, which wcrc dcncd
by thc Nurcmbcrg Tribunal in .
+o
and morc rcccntly in thc statutc ol thc
!ntcrnational Criminal Court.
++
Altcr thc translcr ol sovcrcignty, thcsc individu
als wcrc translcrrcd to thc lcgal custody ol thc !!G and hcld undcr !raqi indict
mcnt as criminal suspccts.
E Legal Custody .. Physical Control
!n an attcmpt to guarantcc sccurity and cnsurc accountability whilc simultanc
ously assisting thc !!G in rccstablishing thc rulc ol law in !raq, thc U.S. national
contingcnt ol Multinational Forcc!raq (USMNF!) cxccutcd a Mcmorandum
ol Undcrstanding (MU) with thc Ministry ol Justicc ol thc !!G rcgarding
Custodial Support For Criminal Suspccts in Junc acc. Tis MU invokcd
thc nccd to hold individuals suspcctcd ol committing atrocitics and war crimcs
accountablc as mandatcd in Unitcd Nations Sccurity Council Rcsolution .6
(acc). Tc partics agrccd that thc !!G and any succcssor would havc lcgal
authority ovcr criminal suspccts awaiting trial who wcrc placcd undcr thc phys
ical custody ol USMNF! undcr thc tcrms ol thc MU. !n othcr words, indi
viduals suspcctcd ol war crimcs, crimcs against humanity, or othcr atrocitics wcrc
GC !!! Art. .a, .c, supra notc ,, and Articlc .6 ol Gcncva Convcntion Rclativc to
thc Protcction ol Civilian Pcrsons in Timc ol Var, Aug. .a, . |hcrcinaltcr GC !\|,
Robcrts & Gucl, supra notc ,, at c., 6. GC !\ Articlc ., rcads: Gravc brcachcs
to which thc prcccding Articlc rclatcs shall bc thosc involving any ol thc lollowing
acts, il committcd against pcrsons or propcrty protcctcd by thc prcscnt Convcntion:
willlul killing, torturc or inhuman trcatmcnt, including biological cxpcrimcnts, will
lully causing grcat sucring or scrious injury to body or hcalth, unlawlul dcportation
or translcr or unlawlul conncmcnt ol a protcctcd pcrson, compclling a protcctcd
pcrson to scrvc in thc lorccs ol a hostilc Powcr, or willlully dcpriving a protcctcd
pcrson ol thc rights ol lair and rcgular trial prcscribcd in thc prcscnt Convcntion,
taking ol hostagcs and cxtcnsivc dcstruction and appropriation ol propcrty, not justi
cd by military ncccssity and carricd out unlawlully and wantonly.
.c |M|urdcr, cxtcrmination, cnslavcmcnt, dcportation, and othcr inhumanc acts com
mittcd against a civilian population, bclorc or during thc war, or pcrsccutions on
political, racial or rcligious grounds in cxccution ol or in conncction with any crimc
within thc jurisdiction ol thc Tribunal, whcthcr or not in violation ol thc domcs
tic law ol thc country whcrc pcrpctratcd. Tvi~i ov :nv M~,ov V~v Cvi:ix~is
nvvovv :nv !x:vvx~:iox~i Miii:~vv Tvinux~i, Nurcmbcrg, vol. XX!!, !MT
Sccrctariat, Nurcmbcrg, . pp. ... For a discussion ol whcthcr thc Nurcmbcrg
war conncction rcquircmcnt rcmains in customary intcrnational law, scc M.
Chcril 8assioni, Te Normati.e Frame.ork of International Humanitarian La. .,
(Michacl N. Schmitt, cd., accc)(\ol. ,, US Naval Var Collcgc !ntcrnational Law
Studics).
.. Articlc , ol thc Romc Statutc ol thc !ntcrnational Criminal Court (.), reprinted
in Robcrts & Gucl, supra notc ,, at 66,, 6,.
418 ndru E. !all
translcrrcd to thc lcgal control ol thc !raqis whilc rcmaining undcr thc physical
control ol US lorccs.
Tis MU crcatcd morc than a lcgal ction, howcvcr, as it rcquircd thc !!G
to prcscnt MNF! with writtcn rcqucsts and arrcst warrants lor all individu
als translcrrcd undcr thc MU. Tc primary rolc rctaincd by MNF! includcd
cxclusivc discrction rcgarding all mattcrs ol sccurity, cnsuring that criminal
suspccts rcprcscntcd by counscl wcrc not qucstioncd without thcir counscl bcing
prcscnt, and providing acccss and coopcration to thc !ntcrnational Committcc
ol thc Rcd Cross. Signicantly, thc MU providcd:
8oth partics hcrcby acknowlcdgc that thc translcr to !raqi criminal jurisdic
tion ol a dctaincc who had prcviously bccn hcld in prisoncr ol war captivity by
MNF!, shall constitutc rclcasc lrom prisoncr ol war captivity and tcrmination
ol prisoncr ol war status, notwithstanding thc lact that MNF! maintains cus
tody ol thc dctaincc at thc rcqucst ol thc MJ in accordancc with this MU.
Tus, with a strokc ol thc pcn and cxchangc ol papcrwork, lormcr rcgimc clitc
mcmbcrs hcld in thc custody ol Coalition Forccs mutatcd lrom cncmy prison
crs ol war or war crimcs dctainccs to criminal suspccts in thc lcgal custody ol thc
!raqi govcrnmcnt.
+:
F Ci.ilians, Illegal Combatants, Security Internees or Detainees?
Vhat do you call somconc who takcs up arms in an intcrnational conict with
out complying with thc customary prcrcquisitcs lor bclligcrcnt immunity: Morc
importantly, is this pcrson a combatant undcr thc Tird Gcncva Convcntion, a
civilian undcr thc Fourth Gcncva Convcntion, or do thcy lall into a lcgal lacuna
bctwccn thc two: Tcsc qucstions rcmain at thc hcart ol a lundamcntal and con
tinuing dcbatc ovcr thc applicability ol thc intcrnational law ol armcd conict
to thc global war on tcrror. !t also cxposcs considcrablc dicrcnccs bctwccn thc
Unitcd Statcs and many ol its allics in thc global war on tcrror, not to mcntion
sparking passionatc dcbatcs among acadcmics and practitioncrs ol intcrnational
humanitarian law. A considcrablc numbcr ol law rcvicw articlcs havc dcbatcd
thcsc qucstions.
+
.a Tis cnsurcd compliancc with GC !!!, which rcquircs rclcasc ol prisoncrs ol war
altcr thc closc ol hostilitics (Art. ..) unlcss thcy havc bccn indictcd lor criminal
ocnscs (Art. ..).
. See, c.g., Murphy, supra notc , Yoram instcin, Unla.ful Combatancy, a !sv~vi
Yv~vnoox ov Hu:~x Ricn:s a,,c (acca), Yoram instcin, Jus in Bello Issues
rising in the Hostilities in Iraq in :cc, !sv~vi Yv~vnoox ov Hu:~x Ricn:s ..
(acc), Silvia 8orclli, Casting light on the legal black hole: International la. and deten-
tions abroad in the .ar on terror, , !x:vvx~:iox~i Rvvivw ov :nv Rvb Cvoss
(acc), and Michacl H. Homan, Fescuing the La. of !ar: !ay For.ard in an Era
419 16 Ci.ilian Detentions in Iraq
Tc position ol thc Unitcd Statcs is, quitc simply, that customary intcrna
tional law rcquircs compliancc with thc lour critcria codicd in thc .c, Haguc
Convcntion !\ on Land Varlarc and Articlc ol GC !!! in ordcr lor thc indi
vidual to carn thc privilcgcs ol a lawlul bclligcrcnt, most importantly combatant
immunity and cntitlcmcnt to prisoncr ol war status. !l an individual takcs up
arms without complying with thcsc rcquircmcnts lor lawlul bclligcrcncy (othcr
than in rarc cxccptions such as a le.ee en masse), thcn that pcrson is not cntitlcd
to thc protcctions ol GC !!!. !n othcr words, il an individual wants thc privilcgcs
ol combatant immunity and prisoncr ol war status, hc must comply with thc lour
rcquircmcnts, which arc intcndcd to protcct civilians and minimizc unncccssary
sucring. Howcvcr, il thc individual partook in an intcrnational armcd conict,
hc cannot bc dccmcd a civilian (a protcctcd pcrson) in thc scnsc ol GC !\
cspccially sincc GC !\ aords, in somc rcspccts, cvcn morc rights than thosc
aordcd to prisoncrs ol war undcr GC !!! (c.g., a PV may bc hcld until thc
cnd ol thc conict, whilc a civilian may only bc hcld il and lor as long as hc is a
sccurity thrcat).
+
of Global Terrorism, P~v~:v:vvs . (US Army Var Collcgc Quartcrly)(Summcr
acc).
. See Murphy, supra notc . Vhilc thc dcbatc ovcr thc applicability ol GC !\ is
somcwhat undcrstandablc, thc argumcnt that GC !!! should apply irrcspcctivc ol
compliancc with thc lour critcria is bcwildcring as it is contrary to thc historic undcr
standing and application ol thc laws ol war. Scc, e.g., Richard R. 8axtcr, Unpri.ileged
Belligerency, a 8vi:isn Yv~vnoox ov !x:vvx~:iox~i L~w a (..), and Richard
R. 8axtcr, Te La. of !ar, Rv~bixcs ix !x:vvx~:iox~i L~w vvo: :nv N~v~i
V~v Coiivcv Rvvivw ac, a.6, (Richard 8. Lillich & John Norton Moorc, cds.,
.c)(\ol. 6a, US Naval Var Collcgc !ntcrnational Law Studics):
Tc rcquircmcnt ol trcating individuals in arms as prisoncrs ol war applics
only to mcmbcrs ol thc rcgular armcd lorccs and to mcmbcrs ol rcsistancc
movcmcnts who arc commandcd by a rcsponsiblc pcrson, wcar a xcd
distinctivc sign, carry arms opcnly, and conduct thcir opcrations in accordancc
with thc law ol war.
Just as thc US position is not ncw, ncithcr is (or was) it uniquc to thc Unitcd Statcs.
Scc, e.g., thc 8ritish Armys manual Tnv L~w ov V~v ox L~xb (.). Courts in
Singaporc, Malaysia, and !sracl, to providc just thrcc cxamplcs, havc applicd thc lour
critcria to thc qucstion ol whcthcr irrcgular bclligcrcnts arc cntitlcd to trcatmcnt as
prisoncrs ol war undcr GC !!!. Scc Stanislaus Krolan & Aor. \. Public Prosccutor
(Singaporc Fcdcral Court, ct. .66), .c Miii:~vv L~w Rvvivw 6 (.6),
Public Prosccutor v. ic Hcc Koi (Privy Council, cc. .6,), a !x:vvx~:iox~i
L~w Rvvivw . (.,.) |thc Privy Council ol thc 8ritish Housc ol Lords was thc
court ol last rcsort ol thc Fcdcration ol Malaysia|, and Tc Military Prosccutor v.
mar Mahmud Kasscm and thcrs (!sracli Military Court, Ramallah, . April
.6), , !x:vvx~:iox~i L~w Rvvivw ,c (.,.). Tc 8ritish manual and rclcvant
cxccrpts ol thcsc cascs arc also rcprintcd in ocu:vx:s ox Pvisoxvvs ov V~v
6 (Howard S. Lcvic, cd., .,)(\ol. 6c, US Naval Var Collcgc !ntcrnational
Law Studics).
420 ndru E. !all
Tc argumcnt against thc US position is simply that thcrc cannot bc a gap
in covcragc bctwccn GC !!! and GC !\: you arc cithcr a combatant undcr GC
!!! or a civilian undcr GC !\.
+
To arguc, howcvcr, that rclusal to apply cithcr
GC !!! or GC !\ as a mattcr ol law lcavcs thc pcrson without lcgal protcction,
cxposcs a prolound misundcrstanding ol thc laws ol war. Customary intcrna
tional law, cpitomizcd by thc socallcd Martcns Clausc, still applics thcrc is no
arca outsidc thc purvicw ol thc humanitarian dictatcs ol customary intcrnational
law.
+6
Vhat arc strippcd away by thc inapplicability ol GC !!! and GC !\ arc
many ol thc lormalistic, anachronistic rcquircmcnts that had as thcir inspiration
world war bctwccn Vcstcrn powcrs.
!n any cvcnt, during thc pcriods at issuc hcrc, thc ovcrwhclming major
ity ol individuals dctaincd by Coalition Forccs wcrc not privilcgcd combatants
cntitlcd to protcction as prisoncrs ol war undcr GC !!!. Vhilc thc US govcrn
mcnt prcscrvcd its lcgal right (cxcrciscd rarcly) to hold an Articlc tribunal and
dctcrminc an individual was an illcgal combatant, thc gcncral policy and prac
ticc was to trcat all dctainccs as sccurity intcrnccs undcr GC !\.
+
As such, thc
tcrms sccurity intcrncc or dctaincc will bc uscd intcrchangcably hcrc and thc
usc ol thc tcrms should not bc intcrprctcd as an asscrtion or implication that
thc individual was not cngagcd in hostilc acts against Coalition Forccs. Tc usc
ol thc tcrms civilian dctcntion or civilian dctaincc simply mcans thc dctaincc
. . Uhlcr and H. Coursicr (cds.), Gvxvv~ Coxvvx:iox vvi~:ivv :o :nv
Pvo:vc:iox ov Civiii~x Pvvsoxs ix Ti:v ov V~v: Co::vx:~vv . (!CRC,
Gcncva)(.c), Prosecutor .. Delalic et al, Judgmcnt ol thc !CTY, !T6a.T, para.
a,. (.6 Novcmbcr .). Scc also Silvia 8orclli, Casting light on the legal black hole:
international la. and detentions abroad in the .ar on terror, supra, notc ..
.6 !van Shcarcr, Fules of Conduct During Humanitarian Inter.ention, Lvc~i ~xb
:nic~i Lvssoxs ov NATs Kosovo C~:v~icx ,., ,a (Andru . Vall, cd.,
acca)(\ol. ,, US Naval Var Collcgc !ntcrnational Law Studics). Vhat has comc
to bc known as thc Martcns Clausc rst appcarcd in thc Prcamblc to thc . Haguc
Convcntion !! on land warlarc:
Until a morc complctc codc ol thc laws ol war is issucd, thc high contracting
Partics think it right to dcclarc that in cascs not includcd in thc Rcgulations
adoptcd by thcm, populations and bclligcrcnts rcmain undcr thc protcction
and cmpirc ol thc principlcs ol intcrnational law, as thcy rcsult lrom thc usagcs
cstablishcd bctwccn civilizcd nations, lrom thc laws ol humanity, and thc
rcquircmcnts ol thc public conscicncc.
Robcrts & Gucl, supra notc ,, at . Tc .c, Haguc convcntions, cach ol thc lour
Gcncva Convcntions ol ., as wcll as thc .,, Additional Protocol ! to thc Gcncva
Convcntions also includc this clausc.
., Tis was a policy dccision and was not madc out ol scnsc ol lcgal obligation. Lcgally,
Coalition Forccs (or at lcast thc US clcmcnt) bclicvcd illcgal combatants wcrc not
cntitlcd to thc protcctions ol cithcr GC !!! or GC !\, howcvcr, to prcvcnt thc opcr
ational complcxity ol dicrcnt duc proccss systcms lor dicrcnt catcgorics ol dctain
ccs, thc policy dccision was madc to providc all dctainccs wcrc thc lcvcl ol rcvicw
rcquircd by GC !\.
421 16 Ci.ilian Detentions in Iraq
was not cntitlcd to thc protcctions ol GC !!! and, as such, thc lcgal standards or
principlcs applicd by Coalition Forccs wcrc containcd in GC !\ and customary
intcrnational law.
G International or Non-International Conict?
According to thc !ntcrnational Committcc ol thc Rcd Cross (!CRC), thc trans
lcr ol sovcrcignty to thc !raqi !ntcrim Govcrnmcnt on Junc a, acc cndcd thc
statc ol intcrnational armcd conict that cxistcd bctwccn Coalition Forccs and
!raq.
+8
Tus, thc translcr ol sovcrcignty also shiltcd thc controlling body ol law
lrom thc intcrnational law ol armcd conict to thc law govcrning nonintcrna
tional armcd conicts. Tc position ol MNF! was that no such shilt in control
ling norms occurrcd.
+
Common Articlc a ol thc lour Gcncva convcntions ol . providcs that it
applics to all cascs ol armcd conict bctwccn two or morc partics. Tc !CRCs
ocial commcntary on this articlc statcs: |a|ny dicrcncc bctwccn two Statcs
and lcading to thc intcrvcntion ol mcmbcrs ol thc armcd lorccs is an armcd con
ict within thc mcaning ol Articlc a.
:o
vcn Protocol !! limits nonintcrnational
armcd conicts to thosc that takc placc in thc tcrritory ol a High Contracting
Party bctwccn its armcd lorccs and dissidcnt armcd lorccs.
:+
Tc !CRCs coun
tcrargumcnt is that whcn thc lorcign troops arc prcscnt with thc pcrmission ol
thc host statc and subjcct to its control (charactcristics applicablc to Coalition
Forccs altcr thc translcr ol sovcrcignty), thcn thcy arc agcnts ol thc host statc and
thc intcrnational charactcr ol thc conict is crascd.
Notwithstanding thc translcr ol complctc sovcrcignty lrom thc Coalition
Provisional Authority to thc !raqi !ntcrim Govcrnmcnt and subscqucntly to thc
!raqi Transitional Govcrnmcnt (altcr thc clcctions in January acc), Coalition
. Scc Iraq post :8 June :cc,: protecting persons depri.ed of freedom remains a priority,
!CRC. Availablc at thc !CRC wcbsitc, http://www.icrc.org/Vcb/ng/sitccngc.nsl/
html/6KKJ (visitcd in cccmbcr acc).
. Furthcrmorc, it is US policy to apply thc intcrnational law ol armcd conict to non
intcrnational armcd conicts as a mattcr ol policy (in othcr words, lor rcasons ol
ccacy, not out ol a scnsc ol lcgal obligation). o ircctivc .cc.,,, o L~w ov
V~v Pvocv~:, para. . ( July .c, .,), Tnv Co::~xbvvs H~xbnoox ox :nv
L~w ov N~v~i vvv~:ioxs, para. 6...a (.).
ac Pictct (cd.), Co::vx:~vv ox :nv . Gvxvv~ Coxvvx:iox Rvi~:ivv :o :nv
Tvv~::vx: ov Pvisoxvvs ov V~v aaa (.6c).
a. Protocol Additional to thc Gcncva Convcntions ol .a August ., and Rclating
to thc Protcction ol \ictims ol Non!ntcrnational Armcd Conicts (Protocol !!),
Robcrts & Gucl, supra notc ,, at , . MNF!s position is also strcngthcncd
considcrably by thc lact that it is statcs that crcatc customary intcrnational law
not nongovcrnmcntal organizations. So il cvcn this issuc is a gray arca in thc law,
MNF! can point to its statc practicc as cvidcncc ol, at a minimum, a dcvcloping
customary norm.
422 ndru E. !all
Forccs continucd to carry out major combat opcrations in !raq against insurgcnts
and tcrrorists, including socallcd lorcign ghtcrs.
::
Activc hostilitics continucd
into acc6. Lcavc it to lawycrs to arguc that thc prcscncc ol ovcr .6c,ccc lorcign
troops carrying out major combat opcrations in a country is somcthing othcr
than an intcrnational armcd conict. Vhilc it is dicult to conccivc a brightlinc
shilt lrom intcrnational to nonintcrnational armcd conict, at a minimum onc
would cxpcct ccssation ol activc or ocnsivc hostilitics and that lorcign troops, il
prcscnt at all, would scrvc littlc morc than minor supporting rolcs ccrtainly that
thcy would bc outnumbcrcd by thc host countrys own lorccs. !n thc abscncc ol a
clcar shilt and thc prcscncc ol statc practicc to thc contrary, this papcr will apply
thc norms ol thc intcrnational law ol armcd conict to its analysis ol dctcntion
opcrations in !raq, as thcsc wcrc thc norms applicd by Coalition Forccs.
:
II Civilian etentions during the Occupation of Iraq
Tc vast majority ol individuals dctaincd by Coalition Forccs during pcration
!raqi Frccdom wcrc not cncmy prisoncrs ol war. !n lact, by May acc, no morc
than a lcw hundrcd PVs rcmaincd in thc custody ol Coalition Forccs.
:
Most
dctainccs wcrc only hcld in thc cld lor a lcw hours or days, but by thc cnd ol thc
occupation, Coalition Forccs hcld ovcr ,ccc dctainccs.
aa Tc tcrm lorcign ghtcrs was uscd by Coalition Forccs to dcscribc individuals lrom
countrics outsidc !raq who illcgally cntcrcd !raq lor thc purposc ol waging jihad
against Coalition Forccs, to includc !raqi sccurity lorccs. Tc vast majority ol thcsc
lorcign ghtcrs wcrc lrom Syria, Saudi Arabia and northcrn Alrica.
a Tc !CRC post rclcrcnccd in notc . statcs that a shilt lrom intcrnational to non
intcrnational armcd conict would rcquirc that pcrsons arrcstcd bclorc a Junc
|acc| and currcntly intcrncd by thc MNF! should cithcr bc rclcascd, chargcd and
tricd or placcd within anothcr lcgal lramcwork that rcgulatcs thcir continucd intcrn
mcnt. Howcvcr, thc law ol nonintcrnational armcd conicts rcmains rclativcly
undcvclopcd, rclying primarily on common Articlc ol thc Gcncva Convcntions and
customary intcrnational law. Tc rcspcctcd !ntcrnational !nstitutc ol Humanitarian
Law in San Rcmo, !taly publishcd a proposcd Cobv ov Coxbuc: vov Miii:~vv
vvv~:ioxs buvixc Nox!x:vvx~:iox~i Av:vb Coxviic:, which rccognizcd
thc right to intcrn or dctain pcrsons lor rcasons rclatcd to thc hostilitics. Vhilc thc
Codc docs not purport to bc a complctc rcstatcmcnt ol thc law ol nonintcrnational
armcd conict, it docs asscrt thc bclicl that it rcccts thc kcy principlcs ol that body
ol law. Tc Codc is availablc onlinc at http://www.michaclschmitt.com (acccsscd in
cccmbcr acc).
a Fay Rcport, supra notc , at .
423 16 Ci.ilian Detentions in Iraq
Te Legal Basis for Detention
i Sccurity !ntcrnccs undcr GC !\
As a gcncral rulc, civilians may not bc intcrncd during intcrnational armcd con
icts.
:
GC !\ providcs cxccptions to this rulc whcn dctcntion ol civilians is
mandatcd by thc sccurity nccds ol thc ctaining Powcr or whcn ncccssary to
protcct thc individual.
:6
GC !\ attcmpts to strikc a balancc bctwccn a civil
ians civil libcrtics and an armys nccd to occasionally control civilian movcmcnt.
Articlc . providcs that il lcsscr mcans ol control arc inadcquatc, thcn a civil
ian may bc intcrncd.
:
!n nonoccupicd arcas, intcrnmcnt is only pcrmissiblc il
thc sccurity ol thc ctaining Powcr makcs it absolutely necessary.
:8
ccupying
powcrs may intcrn civilians lor imperati.e reasons of security.
:
GC !\ also imposcs slightly dicrcnt standards ol rcvicw dcpcnding on
whcthcr thc intcrnmcnt is conductcd by a ctaining Powcr undcr Articlcs .
or by an ccupying Powcr undcr Articlc ,. Articlc , simply mandatcs that
ccupying Powcrs makc dccisions rcgarding intcrnmcnt according to a rcgular
proccdurc, which includcs a right ol appcal and pcriodic rcvicw (il possiblc
cvcry six months) by a compctcnt body sct up by said Powcr. Articlcs .
arc somcwhat morc spccic in rcquiring that thc basis lor thc intcrnmcnt by
ctaining Powcrs bc rcvicwcd both initially (as soon as possiblc) and at lcast
cvcry six months thcrcaltcr. Such rcvicws must bc conductcd by an appropriatc
court or administrativc board dcsignatcd by thc ctaining Powcr lor thc pur
posc. !l intcrnmcnt is maintaincd, thc rcvicwing authority shall pcriodically,
and at lcast twicc ycarly, givc considcration to his or hcr casc, with a vicw to thc
lavorablc amcndmcnt ol thc initial dccision, il circumstanccs pcrmit. GC !\
rcquircs that individuals dctaincd by an ccupying Powcr bc rclcascd as soon as
possiblc altcr thc closc ol hostilitics, howcvcr, GC !\ continucs to apply so long
as thcy rcmain dctaincd.
o
a GC !\ Art. ,, Robcrts & Gucl, supra notc ,, at a,.
a6 Articlc allows lor thc dcrogation ol protcctions whcn thc individual is suspcctcd
ol acts hostilc to thc sccurity ol thc Statc, Articlc a, includcs a gcncral rccognition
ol thc right ol partics to takc control and sccurity mcasurcs ovcr protcctcd pcrsons
as ncccssitatcd by thc conict, Articlcs . allow lor intcrnmcnt whcn absolutcly
ncccssary lor rcasons ol sccurity or control, Articlc 6 allows lor thc intcrnmcnt or
imprisonmcnt ol pcrsons who commit ocnscs intcndcd to harm thc ccupying
Powcr, and Articlc , rccognizcs thc right ol ccupying Powcrs to intcrn protcctcd
pcrsons lor impcrativc rcasons ol sccurity. Id.
a, Id. at ..
a Articlc a, Id., at . (cmphasis addcd).
a Articlc ,, Id. at a, (cmphasis addcd).
c Articlc ., Id. at ,.
424 ndru E. !all
Vhilc Articlcs . sccm to sct a somcwhat highcr standard lor intcrn
mcnt than that applicablc to ccupying Powcrs, including a rcquircmcnt to look
lor lavorablc amcndmcnt to thc intcrnmcnt dccision, thc standards lor rcvicw
cstablishcd by Coalition Forccs during thc occupation appcar dcsigncd to cnsurc
compliancc with this highcr standard. 8ccausc ol thc logistical and proccdural
challcngcs inhcrcnt in maintaining numcrous classcs ol dctaincd individuals,
Coalition Forccs gcncrally applicd GC !\ to all dctainccs as a mattcr ol policy
(cxccpt prisoncrs ol war and criminal suspccts). !t must bc undcrstood that this
dccision was lor policy rcasons and not out ol any scnsc ol lcgal obligation.
+
ii ccupation Law
Prior to thc translcr ol govcrning authority to thc !!G on Junc a, acc, Coalition
Forccs wcrc rcquircd by thc .c, Haguc Convcntion !\ on thc Laws ol Land
Varlarc to takc all thc mcasurcs in |thcir| powcr to rcstorc, and cnsurc, as lar
as possiblc, public ordcr and salcty, whilc rcspccting, unlcss absolutcly prcvcntcd,
thc laws in lorcc in thc country.
:
Tis provision, as a principlc ol customary
intcrnational law, providcd additional justication lor thc dctcntion ol civilians
who poscd a thrcat to thc sccurity ol Coalition Forccs.
Tc
rcsolution anncxcd two lcttcrs lrom US Sccrctary ol Statc Colin Powcll and thc
Prcsidcnt ol thc !raqi !ntcrim Govcrnmcnt, r. Ayad Allawi.
Tc pcrsistcnt ncccssity lor civilian intcrnmcnts was cxprcssly asscrtcd in
Sccrctary Powclls lcttcr to thc Prcsidcnt ol thc Sccurity Council, which statcd
that MNF! would:
|C|ontinuc to undcrtakc a broad rangc ol tasks to contributc to thc maintc
nancc ol sccurity and to cnsurc lorcc protcction. Tcsc includc activitics ncccs
sary to countcr ongoing sccurity thrcats poscd by lorccs sccking to inucncc
!raqs political luturc through violcncc. Tis will includc combat opcrations
against mcmbcrs ol thcsc groups, internment .here this is necessary for impera-
6 See, gcncrally, Schlcsingcr Rcport, supra notc . Tc invasion plan did not cvcn call
lor thc military policc unit that was assigncd primary rcsponsibility lor dctcntion
opcrations to arrivc in thcatcr until about thirty days altcr thc invasion.
, Unitcd Nations Sccurity Council Rcsolution .6 (acc).
429 16 Ci.ilian Detentions in Iraq
ti.e reasons of security, and thc continucd scarch lor and sccuring ol wcapons
that thrcatcn !raqs sccurity |cmphasis addcd|.
Prcsidcnt Allawis lcttcr rcqucstcd a Sccurity Council mandatc lor MNF! that
includcd thc tasks and arrangcmcnts sct out in thc lcttcr lrom Sccrctary ol Statc
Colin Powcll to thc Prcsidcnt ol thc Sccurity Council.
8
!n Rcsolution .6, thc
Sccurity Council grantcd thc rcqucstcd mandatc and spccically dccidcd that
thc multinational lorcc shall havc thc authority to takc all ncccssary mcasurcs to
contributc to thc maintcnancc ol sccurity and stability in !raq in accordancc with
thc lcttcrs anncxcd to this rcsolution.
th
cdn. (Cambridgc: Cambridgc Univcrsity Prcss, acc), pp. ,c, c. and ..
441 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
any individual casc ol intcrvcntion would nccd to bc bascd on vcry carclul con
sidcration ol thc particular lactual situation and thc lcgal issucs involvcd.
Modcrn translormativc
occupations arc distinct lrom post-debellatio occupation, but thcy do bcar ccrtain
similaritics to it. !n thc pcriod sincc . scvcral occupations havc cndurcd long
altcr thc hostilitics that causcd thcm: thc !sraclioccupicd tcrritorics, northcrn
Cyprus and !raq arc cascs in point. Tis phcnomcnon has givcn risc to thought
lul considcration by somc writcrs as to whcthcr occupation law laccs a crisis ol
rclcvancc. At thc most gcncral lcvcl, thc qucstion has bccn raiscd as to whcthcr
occupation law should bc vicwcd as coming undcr a ncw umbrclla labcllcd jus
post bellum, but such suggcstion is tcmpcrcd by awarcncss ol thc importancc ol
ccctivc implcmcntation ol thc cxisting body ol occupation law, which is sccn as
rcmaining rclcvant to many problcms raiscd in modcrn occupations.
Prohibition of nnexation
Tc rulc ol intcrnational customary law that prohibits unilatcral anncxation ol
tcrritory, at lcast whilc a conict is still continuing, is a ncccssary loundation lor
thc wholc idca that occupation is subjcct to a distinct rcgulatory lramcwork. Tc
rulc is a rcmindcr ol thc limits imposcd on an occupying powcr limits that
might also havc implications lor translormativc occupations. Although anncxa
tion and translormation arc conccptually and lcgally vcry dicrcnt, thcy do havc
Adam Robcrts, Vhat is a Military ccupation:, British Year Book of International
La. z,8,, p. a, at p. a6,.
anicl Turcr and Malcolm MacLarcn, !us Post 8cllum in !raq: A Challcngc
to thc Applicability and Rclcvancc ol !ntcrnational Humanitarian Law:, in Klaus
ickc et al. (cds.), !eltinnenrecht: Liber amicorum Jost Delbruck (8crlin: unckcr &
Humblot, acc), pp. ,a.
443 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
onc thing in common thcy tcnd to involvc cxtcnding to thc occupicd tcrritory
thc typc ol political systcm to which thc occupying powcr adhcrcs.
Many acts ol anncxation havc bccn dclcndcd by usc ol thc rhctoric ol trans
lormation. Tus, whcn in Scptcmbcr ... !taly prcscntcd an ultimatum to thc
ttoman Govcrnmcnt, it complaincd that Tripoli and Cyrcnaica had bccn lclt
in a statc ol disordcr and ncglcct, insisting that thcsc rcgions should bc allowcd
to cnjoy thc samc progrcss as that attaincd by othcr parts ol Northcrn Alrica.
Tis translormation, which is rcquircd by thc gcncral cxigcncics ol civilization,
constitutcs, so lar as !taly is conccrncd, a vital intcrcst !n Novcmbcr ... !taly
dccrccd that Tripolitana and Cyrcnaica wcrc undcr complctc !talian sovcrcignty.
Many saw this anncxation as illcgal. As Sir Tomas 8arclay wrotc, shortly altcr:
!l anncxation could bc dccrccd by an invadcr without thc conscnt ol thc
invadcd Powcr thc wholc population ol thc anncxcd tcrritory might at oncc bc
madc to pass undcr thc allcgiancc ol thc invading sovcrcign, its lcgitimatc acts
ol dclcncc bc madc rcbcllious and punishablc as such and thc troops opposcd
to thc invadcr bc madc to lorlcit thcir right to bc trcatcd as bclligcrcnt. Tis is
a reductio ad absurdum ol any such proposition.
6
Modcrn practicc, which nds cxprcssion in scvcral intcrnational agrccmcnts,
dcnics thc right in most circumstanccs to unilatcrally anncx occupicd tcrritory
i.c. to changc its lcgal status to that ol a componcnt part ol thc occupants sov
crcign statc. vcn il thc wholc country is occupicd, and thc lcgitimatc govcrn
mcnt gocs into cxilc and docs not participatc activcly in military opcrations, thc
occupant docs not havc any right to anncxation.
!l thc ccupying Powcr docs (illcgally) anncx thc wholc or part ol thc occu
picd tcrritory, thc population must not by that act bc dcprivcd ol thc bcncts ol
thc . Gcncva Convcntion !\.
8
Kuwait providcs an cxamplc ol thc intcrna
tional community obscrving this principlc in rcsponsc to an attcmptcd anncxa
tion. n a August .c !raq occupicd Kuwait. n thc samc day thc UN Sccurity
Council dcmandcd that !raq withdraw immcdiatcly and unconditionally, and
6 Sir Tomas 8arclay, Te Turco-Italian !ar and its Problems (London: Constablc,
..a), p. . n thc strong intcrnational Muslim lccling about this conqucst scc thc
additional chaptcr by thc Rt. Hon. Amccr Ali at pp..c.. Tcxts ol !talys ultima
tum ol a6 Scptcmbcr ... and its ccrcc ol Anncxation ol Novcmbcr ... arc at pp.
.c.. and ....
, Tc prohibition on anncxations is part ol customary law, and nds cxprcssion in thc
UN Chartcr, Art. a(), and in thc cclaration on Principlcs ol !ntcrnational Law
conccrning Fricndly Rclations and Coopcration among Statcs in accordancc with
thc Chartcr ol thc Unitcd Nations, approvcd in GA Rcs. a6a (XX\) ol a ct. .,c.
Scc also Gcorg Schwarzcnbcrgcr, Tc Law ol 8clligcrcnt ccupation: 8asic !ssucs,
Nordisk Tidsskrift for International Fet z,oc, p. .c, at pp. .a..
. Gcncva Conv. !\, Art. ,.
444 dam Foberts
on 6 August, dcclaring itscll dctcrmincd to bring thc invasion and occupation
ol Kuwait by !raq to an cnd, it imposcd cconomic sanctions on !raq.
n
August Saddam Husscin announccd thc mcrgcr ol Kuwait with !raq i.c. anncx
ation. n thc lollowing day thc UN Sccurity Council dccidcd that anncxation
ol Kuwait by !raq undcr any lorm and whatcvcr prctcxt has no lcgal validity, and
is considcrcd null and void.
+o
Tc Council subscqucntly statcd cxplicitly that thc
Fourth Gcncva Convcntion applics to Kuwait.
++
Tus, in this casc at lcast, thc
most drastic lorm ol translormation ol a tcrritory and its political ordcr namcly
incorporation into anothcr statc was vicwcd as clcarly contrary to intcrnational
law and thc rulcs govcrning occupations rcmaincd a valid bcnchmark by which
thc actions ol an occupant wcrc to bc judgcd.
thcr cascs ol anncxation or quasianncxation dcmonstratc that thc pro
hibition ol anncxations, whilc crystal clcar in thcory, is by no mcans as straight
lorward in practicc. A principal problcm is that many cascs ol anncxation or
attcmptcd anncxation havc bccn in circumstanccs whcrc thc original status ol thc
anncxcd tcrritory was itscll lcss than onc ol lull sovcrcignty. Tc Chincsc invasion
ol Tibct (.c), thc !ndian invasion ol Goa (.6a), and thc !ndoncsian invasion ol
ast Timor (.,) arc all cascs in point. nly thc last ol thcsc thrcc actions was
cvcntually rcvcrscd, in .acca.
Anncxation has oltcn bccn sccn, quitc naturally, as linkcd to aggrcssion.
Many intcrnational lawycrs havc propoundcd thc principlc that unilatcral acts
inconsistcnt with lundamcntal rulcs ol intcrnational law should bc vicwcd as null
and void, and no prcscriptivc rights should cvolvc in lavour ol thc aggrcssor. Tus,
anncxation rcsulting lrom aggrcssion should not bc rccognizcd. Yoram instcin
raiscs thc intcrcsting qucstion ol how ccctivc thc lcgal principlc ol nonrccog
nition can bc in thc long tcrm. !l thc de facto control ol thc tcrritory anncxcd by
thc aggrcssor continucs unintcrruptcd lor gcncrations, thc nonprcscription rulc
may havc to givc way in thc cnd. !ntcrnational law must not bc divorccd lrom
rcality.
+:
Vhat il an occupation ariscs, not lrom an act ol aggrcssion, but lollowing
a dclcnsivc war, in which a statc dclcnding its tcrritory occupics ncighbouring
lands: Tis is onc lactually wcllgroundcd vicw ol thc position ol !sracl in rcspcct
ol thc tcrritorics occupicd sincc .6,. !n ccrtain parts ol thcsc tcrritorics (thc
Golan Hcights, and ast Jcrusalcm with cxtcndcd boundarics) thcrc havc bccn
subscqucnt acts ol anncxation or quasianncxation, taking mainly thc lorm ol
SC Rcs. 66c ol a Aug. .c, and SC Rcs. 66. ol 6 Aug. .c. Tc tcxts ol thcsc
and all othcr Sccurity Council and ccrtain Gcncral Asscmbly rcsolutions and othcr
UN documcnts mcntioncd in this survcy arc availablc at http://www.un.org/docu
mcnts~.
.c SC Rcs. 66a ol Aug. .c.
.. SC Rcs. 6,c ol a Scpt. .c, and SC Rcs. 6, ol a ct. .c
.a Yoram instcin, !ar, ggression and Self-Defence, th cdn. (supra notc a), p. .,..
445 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
applying !sracli law to thcm. Tc ovcrwhclming tcndcncy ol statcs and intcrna
tional bodics has bccn not to rccognisc thcsc purportcd anncxations, but rathcr to
vicw thc law on occupation as rcmaining applicablc to thc situation. Tc gcncral
prohibition on anncxation, in othcr words, continucs to bc sccn as a kcy principlc,
cvcn il it is undcr prcssurc.
!mportant as thc problcm ol anncxation is, it is by no mcans thc only way
in which lundamcntal and lasting changc may bc brought about in a tcrritory.
nc ol thc common ways in which occupying lorccs changc thc political ordcr
in occupicd tcrritory is whcn thcy attcmpt, not an act ol anncxation, but othcr
changcs: lor cxamplc, in thc composition ol thc govcrnmcnt, and in thc constitu
tional or lcgal systcm. Such changcs may bc aimcd at achicving what is in ccct
thc oppositc ol anncxation: thc lull rcsumption ol sovcrcignty by thc tcrritory
conccrncd. Tcrc is nothing ncw about such practiccs. As Sharon Korman has
writtcn in hcr study ol Te Fight of Conquest, thc Frcnch rcvolutionarics post.,
bclicvcd that thcy had rcplaccd thc oldlashioncd right ol conqucst with a ncw
principlc thc right ol pcoplcs to dctcrminc lrccly thcir political aliations:
Tus, in accordancc with thc principlc ol no conqucsts which it had pro
claimcd in .,c, rcvolutionary Francc dcclincd to invokc thc right ol conqucst
in thc countrics to which its arms wcrc supposcdly bringing libcrty. 8ut il it
no longcr substitutcd its own sovcrcignty directly in thc occupicd tcrritorics, it
did so in an indirect manncr. Judging that thc pcoplc wcrc thc solc sovcrcign, it
ovcrthrcw thc ancicnt sovcrcignty ol usurpcr kings, only to cstablish in thcir
placc popular authoritics which it placcd undcr thc rcvolutionary guidancc ol
Francc.
+
Tis cpisodc scrvcs as a usclul rcmindcr that translormativc occupations havc a
long history. Tcy arc, arguably, an outgrowth ol thc disapproval ol anncxations,
but thcy arc not in all rcspccts thcir oppositcs. !ndccd, in many cascs, lrom thc
Frcnch Rcvolution down to Gcrmany, Japan, and twcntyrst ccntury !raq, trans
lormativc occupation may bc considcrcd to havc cmcrgcd as a morc honourablc,
but still dccply controvcrsial, succcssor to thc discrcditcd notion ol anncxation.
B Te Occupants Structure of uthority
Tc occupant, including such occupying lorccs or occrs as arc mcntioncd in thc
convcntions, usually cxcrciscs authority by virtuc ol its ccctivc lactual control,
. Sharon Korman, Te Fight of Conquest: Te cquisition of Territory by Force in
International La. and Practice (xlord: xlord Univcrsity Prcss, .6), p. .aa. For
a historical pcrspcctivc on translormativc occupations scc also Nchal 8huta, Tc
Antinomics ol Translormativc ccupation, European Journal of International La.,
vol. .6, no. (Scptcmbcr acc), pp. ,a.c.
446 dam Foberts
rathcr than by virtuc ol any lcgal cntitlcmcnt. Tat lactual authority is accordcd
a dcgrcc ol rccognition in thc convcntions, which rccct thc assumption that thc
occupant has a structurc ol authority and cxtcnsivc rcsponsibilitics in thc occu
picd tcrritory. Translormation, which ncccssarily involvcs handing ovcr powcr to
authoritics coming lrom within thc tcrritory, thrcatcns this assumption.
Vhat is an occupation administration supposcd to look likc: Tc .c, Haguc
Rcgulations rclcr variously to thc hostilc army, thc occupant, a commandcr
inchicl , thc commandcr in thc locality occupicd, an army ol occupation, and
thc occupying Statc as thc cntitics cxcrcising authority in occupicd tcrritory.
+
Tcrc is a clcar implication ol a wcll ordcrcd chain ol military command and lcgal
rcsponsibility coming down lrom thc govcrnmcnt ol thc occupying statc: and
indccd most occupation administrations havc had such a charactcr.
Tc . Gcncva Convcntion !\ rclcrs throughout to thc ccupying Powcr
as thc body with authority in occupicd tcrritory.
+
Tis tcrm applics csscntially to
thc ccntral govcrnmcnt ol thc statc whosc lorccs havc carricd out thc invasion
and occupation. Nothing is said in this Convcntion about thc prccisc adminis
trativc lorm ol thc occupation rcgimc. Tc .,, Additional Protocol ! also uscs
thc tcrm ccupying Powcr without dcning it or suggcsting thc administra
tivc lorms it might assumc.
+6
Tus thc Gcncva strcam ol law cstablishcs that thc
govcrnmcnt ol thc occupying statc bcars rcsponsibility lor thc action takcn in
occupicd tcrritory, but it docs not claboratc on thc bricl rclcrcnccs in thc Haguc
Rcgulations as to who cxcrts this authority on thc spot.
Many writcrs, propcrly strcssing thc idca ol tcmporary trustccship which is
at thc hcart ol much occupation law, havc indicatcd that thcrc arc limits to thc
constitutional changcs which an occupying powcr may bring about. Pictct, com
mcnting on . Gcncva Convcntion !\, Articlc ,, has cxprcsscd this vicw:
uring thc Sccond Vorld Var ccupying Powcrs intcrvcncd in thc occupicd
countrics on numcrous occasions and in a grcat varicty ol ways, dcpcnding on
thc political aim pursucd, cxamplcs arc changcs in constitutional lorms or in
thc lorm ol govcrnmcnt, thc cstablishmcnt ol ncw military or political organi
zations, thc dissolution ol thc Statc, or thc lormation ol ncw political cntitics.
!ntcrnational law prohibits such actions, which arc bascd solcly on thc
military strcngth ol thc ccupying Powcr and not on a sovcrcign dccision
by thc occupicd Statc. l coursc thc ccupying Powcr usually tricd to givc
somc colour ol lcgality and indcpcndcncc to thc ncw organizations, which
. . and .c, Haguc Rcgs., Arts. a, , , , ., a, , and .
. !n . Gcncva Conv. !\ thc tcrm ccupying Powcr appcars in Arts. 6, c, ,6.,
6, ,c,, , and .. A continuing rolc lor thc authoritics ol thc occupicd tcrrito
rics is implicitly cnvisagcd in Arts. 6 and ,.
.6 !n .,, Additional Prot. !, thc tcrm ccupying Powcr appcars in Arts. ., ., 6, 6,
6, and . Tc samc tcrm is uscd in thc . Cultural Propcrty Conv., Art. .
447 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
wcrc lormcd in thc majority ol cascs with thc coopcration ol ccrtain clcmcnts
among thc population ol thc occupicd country, but it was obvious that thcy
wcrc in lact always subscrvicnt to thc will ol thc ccupying Powcr. Such prac
ticcs wcrc incompatiblc with thc traditional conccpt ol occupation (as dcncd
in Articlc ol thc Haguc Rcgulations ol .c,) according to which thc occu
pying authority was to bc considcrcd as mcrcly bcing a de facto administra
tor.
+
Pictcts undcrlying idca, that thc occupying powcr normally has thc rolc ol de
facto administrator, is indccd justicd. Howcvcr, in thc swccping lorm in which
it is prcscntcd, his condcmnation ol political intcrvcntions by occupying powcrs
is opcn to challcngc. ccupants oltcn attcmpt to disguisc or limit thcir own rolc
by opcrating indircctly: by sctting up somc kind ol quasiindcpcndcnt puppct
rcgimc, by opcrating through thc cxisting systcm ol govcrnmcnt, which rcmains
in post within occupicd tcrritory, by cstablishing an intcrnational administra
tion ol thc tcrritory, or by introducing a ncw constitutional systcm. Somctimcs
thcy may scck to justily such actions as stcps towards crcating a ncw dcmocratic
systcm ol govcrnmcnt in thc occupicd tcrritory. Tcrc can bc particularly strong
rcasons lor doing so il a war is concludcd and thcrc is no prospcct ol thc tcrritory
simply rcvcrting to its lormcr rulcrs.
+8
Although many ol thc widc varicty ol govcrnmcntal arrangcmcnts imposcd
by occupying powcrs undoubtcdly dicr lrom what is cnvisagcd in thc Haguc
Rcgulations and Gcncva Convcntion !\, statcs havc bccn rcluctant to concludc
that in cvcry casc such practiccs arc unlawlul. Tcrc is particular rcluctancc to
condcmn in principlc thc introduction ol constitutional dcmocracy in thc occu
picd tcrritory. Howcvcr, thc cmcrgcncc ol a lcgitimatc govcrnmcnt incvitably
modics thc rcsponsibilitics and structurc ol authority ol thc occupant.
C Existing Legislation of the Occupied Territory
Vhat arc thc rulcs undcr occupation law that govcrn thc naturc and cxtcnt ol
changcs that can bc introduccd within occupicd tcrritory: n thc lacc ol it, thcy
arc straightlorward. Tcir basics arc cnshrincd in thc muchquotcd words ol thc
.c, Haguc Rcgulations:
., Jcan Pictct, Commentary on Gene.a Con.ention I! (Gcncva: !CRC, .), p. a,.
Availablc at http://www.icrc.org/ihl~.
. Tus in rcgard to !sracls rolc in thc Vcst 8ank, thc tcrm trustcc occupation was
proposcd by Allan Gcrson in .,. Hc suggcstcd that sincc this occupation had ccr
tain spccial lcaturcs, not all thc provisions ol thc law on occupations nccd ncccssarily
apply. Hc himscll conccdcd that !sracl had not in thc cnd assumcd thc rolc ol trustcc
occupant. Allan Gcrson, Israel, Te !est Bank and International La. (London: Frank
Cass, .,), pp. ,6a.
448 dam Foberts
rticle ,
Tc authority ol thc lcgitimatc powcr having in lact passcd into thc hands ol
thc occupant, thc lattcr shall takc all thc mcasurcs in his powcr to rcstorc, and
cnsurc, as lar as possiblc, public ordcr and salcty, whilc rcspccting, unlcss abso
lutcly prcvcntcd, thc laws in lorcc in thc country.
+
Tis articlc prcscnts somc problcms. Tc assumption that thc prcvious rulcr ol a
tcrritory was a lcgitimatc powcr is not casy to squarc with U.S. or indccd many
othcr vicws ol Adoll Hitlcr or Saddam Husscin. Tc articlcs implication that thc
laws in lorcc in thc country wcrc basically satislactory has oltcn bccn callcd into
qucstion by cvcnts. Tc lctout clausc, unlcss absolutcly prcvcntcd, has providcd
a basis lor introducing ccrtain changcs to thc laws ol occupicd tcrritorics.
Tc basic rcquircmcnt to rcspcct thc cxisting lcgal lramcwork ol a tcrritory
has long bccn undcr prcssurc, lor a varicty ol rcasons. Tis apparcntly straightlor
ward rulc nccds intcrprctation in light ol thc particular lacts ol a situation, and
thc particular naturc ol ccrtain laws. !n practicc, ccrtain typcs ol law (c.g. laws
rclating to military conscription, or to national clcctions) arc oltcn suspcndcd
during occupations.
:o
Morcovcr, in occupations ol countrics that had bccn undcr
dictatorial or cxtrcmist rulc, numcrous othcr laws may bc suspcndcd. !n thc Allicd
occupation ol parts ol !taly and Gcrmany towards thc cnd ol thc Sccond Vorld
Var, thc Allics abolishcd Fascist laws. Tcy did so right lrom thc start, during thc
bclligcrcnt occupation phasc bclorc thc !talian armisticc and thc Gcrman sur
rcndcr. Tis might havc appcarcd to transgrcss thc lcttcr ol Articlc . Howcvcr,
many writcrs indicatcd that thc naturc ol thc Axis rcgimcs and thcir laws was
such as to absolutcly prcvcnt thc Allics lrom acccpting thcir continuation.
:+
Against this background, in thc ncgotiations lcading to thc . Gcncva
Civilians Convcntion thcrc was naturally discussion about thc cxtcnt to which an
. . and .c, Haguc Rcgs., Art. . Scc also .c, Rcgs., Art. a(h). For a usclul dis
cussion ol Articlc and its cxibility in practicc scc Marco Sassli, Lcgislation
and Maintcnancc ol Public rdcr and Civil Lilc by ccupicrs, European Journal of
International La., vol. .6, no. (Scptcmbcr acc), pp. 66..
ac Unitcd Statcs, cpartmcnt ol thc Army, Te La. of Land !arfare, Ficld Manual No.
a,.c (Vashington C: . July .6), p. ., Unitcd Kingdom, Var cc, Manual
of Military La., Part !!!, Te La. of !ar on Land (London: HMS, .), p. .. !ts
succcssor, thc UK triscrvicc manual publishcd in acc, statcs that thc occupant may
suspcnd or amcnd cxisting laws ol thc occupicd tcrritory in ccrtain dcncd circum
stanccs. UK Ministry ol clcncc, Te Manual of the La. of rmed Conict (xlord:
xlord Univcrsity Prcss, acc), pp. a, and a.
a. C.R.S. Harris, llied Military dministration of Italy z,,z,, (London: HMS,
.,), p. ., F.S.\. onnison, Ci.il airs and Military Go.ernment: North-!est
Europe z,,,,o (London: HMS, .6.), pp. .a and ,,, and L. ppcnhcim,
International La.: Treatise, vol. a, Disputes, !ar and Neutrality, ,th cdn., cd. H.
Lautcrpacht (London: Longmans Grccn, .a), pp. 6,, UK, Manual of Military
La.: La. of !ar on Land, p. ..
449 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
occupying powcr can lcgitimatcly altcr thc laws in lorcc in occupicd tcrritory. Tc
statcs conccrncd cvcntually agrccd on a modcst modication ol Articlc ol thc
Haguc Rcgulations, allowing a littlc morc scopc lor changcs to thc cxisting local
laws. Tis is Articlc 6 ol thc Civilians Convcntion:
Tc pcnal laws ol thc occupicd tcrritory shall rcmain in lorcc, with thc cxccption
that thcy may bc rcpcalcd or suspcndcd by thc ccupying Powcr in cascs whcrc
thcy constitutc a thrcat to its sccurity or an obstaclc to thc application ol thc
prcscnt Convcntion. Subjcct to thc lattcr considcration and to thc ncccssity lor
cnsuring thc ccctivc administration ol justicc, thc tribunals ol thc occupicd tcr
ritory shall continuc to lunction in rcspcct ol all ocnccs covcrcd by thc said laws.
Tc ccupying Powcr may, howcvcr, subjcct thc population ol thc occu
picd tcrritory to provisions which arc csscntial to cnablc thc ccupying Powcr
to lull its obligations undcr thc prcscnt Convcntion, to maintain thc ordcrly
govcrnmcnt ol thc tcrritory, and to cnsurc thc sccurity ol thc ccupying Powcr,
ol thc mcmbcrs and propcrty ol thc occupying lorccs or administration, and
likcwisc ol thc cstablishmcnts and lincs ol communication uscd by thcm.
::
Tc ncgotiation in . that prcccdcd this tcxt includcd a numbcr ol proposals
that would havc acknowlcdgcd morc cxplicitly thc right ol thc occupying powcr
to changc thc laws. Tc US dclcgatc, Mr Ginnanc, proposcd rcplacing thc dralt
ol what bccamc thc abovcquotcd Articlc 6 with a much shortcr, simplcr and
(lor thc occupying powcr) morc pcrmissivc tcxt:
Until changcd by thc ccupying Powcr thc pcnal laws ol thc occupicd tcrri
tory shall rcmain in lorcc and thc tribunals thcrcol shall continuc to lunction
in rcspcct ol all ocnccs covcrcd by thc said laws.
:
Tc Sovict dclcgatc, Mr Morosov, spottcd thc obvious problcm with this proposal,
that it gavc thc ccupying Powcr an absolutc right to modily thc pcnal lcgisla
tion ol thc occupicd tcrritory. Such a right grcatly cxcccdcd thc limitcd right laid
aa . Gcncva Conv. !\, Art. 6. !n thc . UK Manual it was implicd that an occu
pant may also rcpcal or suspcnd laws il in thc occupicd tcrritory thcrc is no adcquatc
lcgal systcm in conlormity with gcncrally rccognizcd principlcs ol law. UK, Manual
of Military La.: La. of !ar on Land, p. .. !n similar spirit, its acc succcssor statcs:
Tc occupying powcr should makc no morc changcs to thc law than arc absolutcly
ncccssary, particularly whcrc thc occupicd tcrritory alrcady has an adcquatc lcgal
systcm. UK, Manual of the La. of rmed Conict, p. a.
a Final Fecord of the Diplomatic Conference of Gene.a of z,,, (8crnc: Fcdcral Political
cpartmcnt, n.d.), vol. !!A, p. 6,c and vol. !!!, p. ., Amcndmcnt a. Tc dralt tcxt
ol Art. that thc U.S. sought to rcplacc is in vol. !!A, p. . A usclul rcport on Art.
appcars on p. . Tcsc ncgotiations on thc tcxt ol thc Civilians Convcntion wcrc
conductcd in thc conlcrcnccs Committcc !!!.
450 dam Foberts
down in thc Haguc Rcgulations .
:
Lcss powcrlul but no lcss pcrccptivc, thc
distinguishcd Frcnch intcrnational lawycr Mr. dc Gcourc dc la Pradcllc, rcprc
scnting Monaco, suggcstcd that, in thc particular casc ol occupicd Gcrmany altcr
thc Sccond Vorld Var, U.S. modication ol thc laws ol thc country was acccpt
ablc, but such modication did not providc thc basis lor a gcncral rulc:
Vhat would bc thc position in thc oppositc casc, that ol an invadcr othcr
than a dcmocratic Powcr, who cxcrciscd that right: Undcr thc Unitcd Statcs
amcndmcnt thc invadcr could changc thc pcnal lcgislation ol thc occupicd tcr
ritory. Tc Committcc should think vcry carclully bclorc amcnding thc word
ing ol thc Convcntion in thc way suggcstcd.
:
!n thc discussion that lollowcd, Mcxico suggcstcd thc adoption ol a wording to
thc ccct that thc ccupying Powcr could only modily thc lcgislation ol an occu
picd tcrritory il thc lcgislation in qucstion violatcd thc principlcs ol thc Univcrsal
cclaration ol thc Rights ol Man .
:6
Tis solitary rclcrcncc to a human rights
bcnchmark was not lollowcd up at thc conlcrcncc.
:
Yct in thc long run, thc issuc
ol human rights was to havc a prolound ccct on thc rulcs govcrning occupa
tions. !t was to providc onc basis lor altcring thc laws ol thc occupicd tcrritory.
vcrall, thc rulc that thc laws in lorcc in thc country should bc rcspcctcd
continucs to providc an important bcnchmark lor occupants. Howcvcr, thcrc
havc bccn many cascs in which occupants, lor a widc varicty ol rcasons, havc
changcd laws in thc occupicd tcrritory without incurring intcrnational criti
cism. Translormativc occupations incrcasc thc prcssurc lor changing thosc laws.
As a rcsult, il Articlc 6 ol . Gcncva Convcntion !\ wcrc bcing rcwrittcn
today thcrc would bc prcssurc to providc lor laws ol thc occupicd tcrritory to bc
rcpcalcd or suspcndcd in two additional typcs ol circumstancc whcrc thcy arc
an obstaclc to thc cxcrcisc by thc inhabitants ol lundamcntal human rights, and
to thc implcmcntation ol translormativc purposcs approvcd by thc UN Sccurity
Council.
!n thc Civilians Convcntion, onc othcr provision might at rst sight sccm
rclcvant to translormativc occupations, but actually illustratcs a lailurc to gct to
grips with thcm. !n Articlc 6, which addrcsscs occupations that continuc lor
morc than a ycar altcr thc cnd ol a war, and cnvisagcs an occupant progrcssivcly
handing ovcr thc lunctions ol govcrnmcnt, it is statcd:
a Final Fecord, vol. !!A, p. 6,c.
a Final Fecord, vol. !!A, p. 6,..
a6 Final Fecord, vol. !!A, p. 6,..
a, Scc thc lurthcr discussion, Final Fecord, vol. !!A, p. 6,a, and thc rcport back lrom thc
ralting Committcc, p. ,,.. !n thc indcx ol contcnts ol thc lour volumcs ol thc Final
Fecord thcrc is no cntry lor human rights or lor Univcrsal cclaration.
451 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
!n thc casc ol occupicd tcrritory, thc application ol thc prcscnt Convcntion
shall ccasc onc ycar altcr thc gcncral closc ol military opcrations, howcvcr, thc
ccupying Powcr shall bc bound, lor thc duration ol thc occupation, to thc
cxtcnt that such Powcr cxcrciscs thc lunctions ol govcrnmcnt in such tcrritory,
by thc provisions ol thc lollowing Articlcs ol thc prcscnt Convcntion: . to .a,
a,, a to , ,, , ., a, , , 6. to ,,, ..
:8
Tis indicatcs that il thc occupant is still in chargc onc ycar altcr a war, Articlc
6 with its modcratc conscrvationist thrust is among thc many that would still
apply. Howcvcr, Articlc 6 providcs no othcr guidancc on thc cxtcnt to which an
occupant pursuing longtcrm translormativc goals may makc changcs to cxisting
lcgislation. !n any casc thc onc ycar altcr rulc is widcly sccn as ol littlc or no rcl
cvancc to actual occupations, and it has bccn ccctivcly rcscindcd by a provision
ol .,, Additional Protocol !, as bctwccn statcs partics to thc lattcr.
:
cspitc its
limitations, Articlc 6 is a rcmindcr ol thc old and important lact that not all occu
pations can bc subjcct to cxactly thc samc rulcs.
II Te International Iaw of Human Rights
Traditionally, thc laws ol war rulcs havc bccn sccn as thc main cvcn thc only
branch ol intcrnational law applicablc to occupations. Howcvcr, thcrc is no a
priori rcason why multilatcral convcntions on othcr mattcrs should not bc appli
cablc to occupicd tcrritorics. Tcrc is incrcasing cvidcncc that onc othcr body ol
law may bc cspccially rclcvant: human rights law. Sctting out as it docs to spcll out
ccrtain lundamcntal human rights, it is not spccically tailorcd to thc situation
considcrcd hcrc military occupation. Likc thc law on crimcs against humanity,
its scopc ol application is widcr than thc laws ol war: it applics in pcacctimc, and
it applics within statcs, accting lor cxamplc thc rclations bctwccn govcrnmcnts
and thcir own subjccts.
Human rights law dcvclopcd lrom custom ovcr a long pcriod. A kcy docu
mcnt in its codication was thc . Univcrsal cclaration ol Human Rights.
Adoptcd by thc UN Gcncral Asscmbly, this did not takc thc lorm ol a lcgally bind
ing instrumcnt, and thcrc is not thc normal machincry whcrcby statcs can bccomc
partics to it. Rathcr, it has thc status ol an authoritativc guidc to thc rclcvant parts
ol thc UN Chartcr. Vhatcvcr its prccisc status, it was lollowcd by thc conclusion
ol a largc numbcr ol human rights trcatics, lour lcading cxamplcs ol which arc:
.c uropcan Convcntion on Human Rights
.66 !ntcrnational Covcnant on Civil and Political Rights
.66 !ntcrnational Covcnant on conomic, Social and Cultural Rights
. UN Convcntion on Torturc.
a . Gcncva Conv. !\, Articlc 6().
a .,, Additional Prot. !, Articlc (b).
452 dam Foberts
Somc havc vicwcd such instrumcnts as thc . Univcrsal cclaration and thc
two .66 covcnants as togcthcr constituting an !ntcrnational 8ill ol Human
Rights which is an authoritativc intcrprctation ol thc UN Chartcrs human rights
clauscs and is hcncc binding on all statcs, cstablishing a human rights standard ol
univcrsal applicability.
o
Tis vicw, as indicatcd bclow, is contcstcd.
Tc application ol intcrnational human rights law has bccn urgcd in rcspcct ol
scvcral occupations sincc thc mid.6cs. Howcvcr, cxpcricncc has shown that thcrc
can bc considcrablc problcms rcgarding thc application ol intcrnational human
rights law in this way. 8clorc ccrtain grounds lor caution arc addrcsscd, thc ovcrall
rclationship bctwccn this branch ol law and thc laws ol war nccds to bc cxamincd.
Felationship bet.een Human Fights La. and the La.s of !ar
!ntcrnational human rights law is in somc rcspccts a ncw body ol law, which has
bccn cvolving quitc rapidly sincc thc cnd ol thc Sccond Vorld Var. !t is thcrc
lorc not surprising that thc rclationship ol human rights law to armcd conict in
gcncral, or to occupations in particular, should bc still in nccd ol cxploration.
+
Tat thcrc is indccd somc conncction bctwccn human rights law on thc onc
hand, and thc problcm ol war and military occupation on thc othcr, is indicatcd
by thc origins ol thc modcrn movcmcnt lor human rights law. !t can bc said to
havc bcgun with thc intcrnational conccrn about thc disrcgard lor human rights
shown in many occupicd countrics, as wcll as in thc tcrritory ol Gcrmany itscll
and that ol its allics, during thc Sccond Vorld Var. As Villiam 8ishop wrotc:
Tc grcatcst impctus lor Unitcd Nations action lor intcrnational protcction ol
human rights grcw out ol thc almost univcrsal rcaction against thc Gcrman
Nazi opprcssions ol pcrsons in Gcrmany and in thc tcrritorics occupicd by
Gcrmany during Vorld Var !!.
:
Tis conccrn not only contributcd to thc dcvclopmcnt ol thc human rights body
ol law, but also had its ccct on intcrnational agrccmcnts on thc laws ol war.
Tis is cvidcnt in thc tcrms ol thc lour . Gcncva Convcntions. As ictrich
Schindlcr has writtcn, with that tingc ol optimism that occasionally marks his
commcntary on thc convcntions:
c Frank C. Ncwman, Tc !ntcrnational 8ill ol Human Rights: ocs it xist:, in
Antonio Casscsc (cd.), Current Problems of International La.: Essays on UN La. and
on the La. of rmed Conict (Milan: Giur, .,), pp. .c,.6.
. Many works on human rights law makc littlc or no rclcrcncc to thc problcms ol
armcd conict and military occupation. Scc, c.g., Paul Sicghart, Te La.ful Fights of
Mankind: n Introduction to the International Legal Code of Human Fights (xlord:
xlord Univcrsity Prcss, .).
a Villiam V. 8ishop Jr., International La.: Cases and Materials, rd cdn. (8oston:
Littlc 8rown, .,.), p. ,c.
453 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
A tcndcncy may bc dctcctcd in thc Gcncva Convcntions ol . lor thcir pro
visions to bc considcrcd not only as obligations to bc dischargcd by thc High
Contracting Partics but as individual rights ol thc protcctcd pcrsons.
Vritcrs on thc law ol armcd conict wcrc not all cqually alcrt to thc pos
siblc signicancc ol human rights law in occupicd tcrritorics. Truc, in . rnst
Fracnkcl, in Military Occupation and the Fule of La., did urgc that an intcrna
tional bill ol rights should apply to an occupation rcgimc at lcast altcr thc purcly
military phasc ol thc occupation has cndcd.
6
Howcvcr, in works publishcd in thc
.cs thc wholc qucstion rcccivcd only modcst attcntion. Tcrc was no spccic
rclcrcncc to human rights law in Gcrhard von Glahns Te Occupation of Enemy
ictrich Schindlcr, Tc !ntcrnational Committcc ol thc Rcd Cross and Human
Rights, International Fe.ie. of the Fed Cross, no. ac, Jan.Fcb. .,, p. , at p. ,.
n thc various lactors lcading to thc ncgotiations which wcrc ultimatcly to rcsult
in .,, Gcncva Prots. ! and !!, scc particularly Frits Kalshovcn, Rcarmation and
cvclopmcnt ol !ntcrnational Humanitarian Law Applicablc in Armcd Conicts:
Tc Conlcrcncc ol Govcrnmcnt xpcrts, a May .a Junc .,., Netherlands Yearbook
of International La. z,,z, pp. 6c.
Scc c.g. thc twovolumc survcy prcparcd by thc UN Sccrctariat, Fespect for Human
Fights in rmed Conicts: Existing Fules of International La. Concerning the
Prohibition or Festriction of Use of Specic !eapons, UN oc.A/a., , Nov. .,.
6 rnst Fracnkcl, Military Occupation and the Fule of La. (Ncw York: xlord
Univcrsity Prcss, .), pp. ac6.
454 dam Foberts
Territory, publishcd in .,.
Martin and Joan Kyrc, in a study ol US policy on military occupations publishcd
in .6 notcd thc signicancc ol thc Univcrsal cclaration ol Human Rights lor
military occupations, but rcgrcttcd a shilt in mood within thc Unitcd Statcs away
lrom intcrnationalism which had rcstrictcd thc U.S. rolc in hclping to dcvclop
thc intcrnational law ol human rights.
o
Tc rclation bctwccn human rights law and thc laws ol war bcgan to attract
intcrnational attcntion in thc latc .6cs and carly .,cs. Tis was duc in part to
thc adoption ol thc two intcrnational human rights covcnants in .66, to intcr
national conccrn ovcr various wars ol thc pcriod, including in \ictnam, and to
thc !sracli occupation ol ccrtain Arab tcrritorics in thc .6, war. Many writcrs
indicatcd that thcrc is a rclationship bctwccn thc two bodics ol law, cvcn il it is
not a simplc onc. G.!.A.. rapcr wrotc in .,.:
Human Rights do not dissolvc in timc ol war or public cmcrgcncy accting
thc lilc ol thc nation, but arc subjcct to a controllcd and limitcd dcrogation
lrom spccic Human Rights to bc justicd by thc cxtcnt ol that cmcrgcncy.
Tc prccisc rclation bctwccn thc law ol war and thc rcgimcs ol Human
Rights has not yct bccn claboratcd.
+
Prolcssor rapcr also said, in an articlc publishcd in .,. in thc Israel Yearbook on
Human Fights:
, Howcvcr, scc von Glahns articlc, Tc Protcction ol Human Rights in Timc ol
Armcd Conicts, Israel Yearbook on Human Fights z,,z, vol. ., p. ac, at pp. a..,
whcrc hc acccpts thc applicability, in timc ol armcd conicts, ol lundamcntal human
rights.
UK, Manual of Military La.: La. Of !ar On Land, p. .. !ts acc succcssor
includcs rclcrcncc to thc applicability ol human rights law. Manual of the La. of
rmed Conict, p. aa.
Morris Grccnspan, Te Modern La. of Land !arfare (8crkclcy: Univcrsity ol
Calilornia Prcss, .), lootnotcs on pp. .6., a,, ac and c. Scc also Grccnspan,
Tc Protcction ol Human Rights in Timc ol Varlarc, Israel Yearbook on Human
Fights z,,z, vol. ., p. aa, at p. aa, whcrc hc statcs that human rights instrumcnts
apply in war as wcll as in pcacc.
c Martin and Joan Kyrc, Military Occupation and National Security (Vashington C:
Public Aairs Prcss, .6), p. ,.
. G.!.A.. rapcr, Tc Status ol Combatants and thc Qucstion ol Gucrilla Varlarc,
British Year Book of International La. z,,z, p. .,, at p. a..
455 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
Tc csscntial ncxus bctwccn thc law ol war and thc rcgimc ol human rights has
bccn madc in thcory, viz., that thc lormcr is an csscntial part ol thc lattcr. Tc
law ol war is a dcrogation lrom thc normal rcgimc ol human rights ...
:
Tc idca that thc law ol war could bc sccn, in largc mcasurc, as onc impor
tant body ol rulcs and principlcs lor salcguarding human rights in situations ol
armcd conict and occupation was supportcd by many othcr writcrs. instcin,
in an articlc in .,, also in thc Israel Yearbook, cntitlcd Tc !ntcrnational Law ol
8clligcrcnt ccupation and Human Rights, actually wrotc almost cntircly about
thc rulcs laid down in thc laws ol war. Tis approach lollowcd quitc naturally
lrom thc lact that hc was prcoccupicd with thc problcm ol bclligcrcnt occupa
tion, cspccially that ol thc !sraclioccupicd tcrritorics, and not with translorma
tivc occupation, as thc lollowing passagc indicatcs:
Tc govcrnmcnt ol an occupicd tcrritory by thc occupant is not thc samc as a
Statcs ordinary govcrnmcnt ol its own tcrritory: a military occupation is not
tantamount to a dcmocratic rcgimc and its objcctivc is not thc wcllarc ol thc
local population. Most pcacctimc human rights arc suspcndcd in timc ol bcl
ligcrcnt occupation.
!n a . study spcci
cally dcvotcd to military occupations, yal 8cnvcnisti rcachcd a morc nuanccd
conclusion, which is ol considcrablc rclcvancc to cascs ol translormativc occupa
tions:
!n thc intcrplay bctwccn thc conicting intcrcsts, thc law ol occupation con
ccdcs that ccrtain civil and political rights will lrom timc to timc bc subjcctcd
to othcr conccrns. Ultimatcly, as in othcr cascs, thc occupant is rcquircd to bal
ancc its intcrcsts against thosc ol thc occupicd community. Tus, as hostilitics
subsidc, and sccurity intcrcsts can pcrmit, thc occupant could bc cxpcctcd to
a G.!.A.. rapcr, Tc Rclationship 8ctwccn thc Human Rights Rcgimc and thc
Law ol Armcd Conicts, Israel Yearbook on Human Fights z,,z, vol. ., p. .., at p.
ac6.
Yoram instcin, Tc !ntcrnational Law ol 8clligcrcnt ccupation and Human
Rights, Israel Yearbook on Human Fights z,,8, vol. , p. .c, at p. ..6. Scc also instcin,
Human Rights in Armcd Conict: !ntcrnational Humanitarian Law, in Tcodor
Mcron (cd.), Human Fights and International La.: Legal and Policy Issues (xlord:
Clarcndon Prcss, .), pp. 6.
Aristidis S. CalogcropoulosStratis, Droit Humanitaire et Droits de l Homme: La
Protection de la Personne en Periode de Conit rme (Gcncva: !nstitut Univcrsitairc dc
Hautcs tudcs !ntcrnationalcs, .c).
456 dam Foberts
rcstorc civil and political rights. Undcr such circumstanccs, thc human rights
documcnts may wcll scrvc as guidancc lor rccstablishing civil and political
rights in thc occupicd tcrritory.
!n acc Kcnncth Vatkin suggcstcd that, in gcncral, thc usc ol lorcc in armcd
conict is incrcasingly asscsscd through human rights law as wcll as intcrnational
humanitarian law. !n bricy considcring thc spccic casc ol military occupation
hc indicatcd that both normativc rcgimcs may comc into play, but that thc usc ol
lorcc within occupicd tcrritory (lor cxamplc against an insurgcncy) is not always
amcnablc to a human rights lramcwork.
6
n spccic issucs, cspccially thosc rclating to individual libcrty and politi
cal lrccdoms, thcrc is an clcmcnt ol tcnsion bctwccn human rights law and thc
law on occupations. For cxamplc, thc .66 !ntcrnational Covcnant on Civil and
Political Rights, Articlc , prohibits arbitrary dctcntion, and rcquircs that anyonc
who is arrcstcd shall bc promptly inlormcd ol any chargcs against him. 8y
contrast, thc . Gcncva Convcntion !\, Articlc ,, paragraph ., says: !l thc
ccupying Powcr considcrs it ncccssary, lor impcrativc rcasons ol sccurity, to
takc salcty mcasurcs conccrning protcctcd pcrsons, it may, at thc most, subjcct
thcm to assigncd rcsidcncc or to intcrnmcnt. vcn though such mcasurcs must
bc madc according to a rcgular proccdurc, this is morc draconian than thc .66
Covcnants provisions. Tc tcnsion bctwccn thcsc two approachcs is mitigatcd by
thc lact that, in timc ol public cmcrgcncy thrcatcning thc lilc ol thc nation, statcs
may dcrogatc lrom ccrtain obligations undcr thc .66 Covcnant, whcrcas thc
Gcncva Convcntion !\ has to bc considcrcd thc lex specialis lor occupations.
!n many occupations onc basis lor asscrting thc applicability ol human
rights law may bc its ncarunivcrsal charactcr, as a body ol law subscribcd to
cqually by thc occupying statc and by thc occupicd statc. Howcvcr, in a numbcr
ol occupations thc qucstion has ariscn as to whcthcr ccrtain spccic obligations
undcr human rights law ol thc occupying powcr cxtcnd to tcrritorics that it occu
pics. An cxamplc is thc application ol thc .c uropcan Convcntion on Human
Rights (which ocrs not mcrcly a statcmcnt ol principlcs, but also an unusually
strong lcgal proccdurc lor obtaining rcdrcss) in tcrritorics outsidc thosc ol statcs
partics to thc Convcntion.
Tc ovcrall qucstion ol whcthcr human rights trcatics apply cxtratcrritori
ally is still contcstcd. Michacl cnnis ol thc US Statc cpartmcnt, in a gcncral
survcy ol thc subjcct, gocs so lar as to concludc:
yal 8cnvcnisti, Te International La. of Occupation (Princcton, Ncw Jcrscy:
Princcton Univcrsity Prcss, .), p. ..
6 Kcnncth Vatkin (cputy Judgc Advocatc Gcncral/pcrations, Canadian Forccs),
Controlling thc Usc ol Forcc: A Rolc lor Human Rights Norms in Contcmporary
Armcd Conict, merican Journal of International La., vol. , no. . ( January acc),
p. ., at pp. .a, a6.
457 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
Tc obligations assumcd by statcs undcr thc main intcrnational human rights
instrumcnts wcrc ncvcr intcndcd to apply cxtratcrritorially during pcriods ol
armcd conict. Nor wcrc thcy intcndcd to rcplacc thc lex specialis ol intcrna
tional humanitarian law. xtcnding thc protcctions providcd undcr intcrna
tional human rights instrumcnts to situations ol intcrnational armcd conict
and military occupation ocrs a dubious routc toward incrcascd statc compli
ancc with intcrnational norms.
!t has
also donc so, not always with pcrlcct cvcnhandcdncss, in rcspcct ol particular
occupations. Tc occupation which has had most attcntion lrom thc Gcncral
Asscmbly, both in gcncral and as rcgards thc application ol human rights, is
Scc c.g. GA Rcs. a (XX!!!) ol . cc. .6 (adoptcd unanimously), Rcspcct lor
Human Rights in Armcd Conicts.
459 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
!sracls ol thc tcrritorics takcn ovcr in .6,: thc application ol human rights law to
thc tcrritorics occupicd by !sracl has bccn urgcd in numcrous UN rcsolutions.
o
Although thc UN Sccurity Council has lrcqucntly urgcd rcspcct lor human
rights in armcd conict gcncrally, lor a long timc it did not addrcss thc morc
spccic issuc ol human rights in occupations to thc samc cxtcnt as thc Gcncral
Asscmbly. Tis has bcgun to changc. Vhcrc UN bodics cstablishcd by thc
Sccurity Council havc had a major rolc in administcring postconict tcrritorics,
as in Kosovo and ast Timor (situations in somc ways comparablc to occupa
tions), thcsc bodics havc placcd cmphasis on human rights law, whilc kccping
silcnt about thc application ol thc laws ol war.
+
Following thc commcnccmcnt
ol thc USlcd occupation ol !raq in acc thc Sccurity Council cmphasizcd thc
importancc ol human rights law as wcll as thc laws ol war.
:
ii Namibia: .,. !CJ Advisory pinion
Scvcral occupicd tcrritorics havc bccn vicwcd by intcrnational tribunals as sub
jcct to human rights law. Vith rcspcct to Namibia, it may havc bccn partly with
human rights law in mind (as wcll as thc humanitarian laws ol war) that thc
!ntcrnational Court ol Justicc, in its .,. Advisory pinion, pointcd to thc appli
cability ol ccrtain gcncral convcntions such as thosc ol a humanitarian charac
tcr.
!n thc latc .,cs and .cs, human rights law providcd onc lramcwork lor dia
loguc both within castcrn uropcan statcs and bctwccn thcm and thc Vcst.
Tc ., Hclsinki Final Act ol thc Conlcrcncc on Sccurity and Coopcration
in uropc (not a lcgally binding documcnt as such), and thc diplomatic procc
durcs cstablishcd undcr it playcd a part in this proccss. Tosc involvcd in rcsisting
thc occupation ol Czcchoslovakia and its conscqucnccs wcrc lclt with no doubt
about thc signicancc ol human rights principlcs.
iv Northcrn Cyprus sincc .,: Rolc ol thc uropcan Convcntion
Rcgarding thc arcas ol northcrn Cyprus occupicd by thc armcd lorccs ol Turkcy
in .,, thc uropcan Commission ol Human Rights and thc uropcan Court
ol Human Rights havc conrmcd thc gcncral principlc ol thc applicability ol
human rights law. !n thrcc dccisions in .,, ., and .6 in cascs brought by
Cyprus against Turkcy, thc Commission rulcd applications by thc Govcrnmcnt
ol Cyprus in rcspcct ol thc Turkish occupation admissiblc.
Tc cascs conccrncd
\ladimir Kusin, From Dubcek to Charter ,,: Study of Normalisation in C.echoslo.akia
z,o8,8 (dinburgh: Q Prcss, .,), p. c. n thc rolc ol human rights accords in
thc Chartcr ,, movcmcnt scc also \aclav Havcl et al., Te Po.er of the Po.erless
(London: Hutchinson, .), pp. 6,. Tc tcxt ol thc original Chartcr ,, dcclara
tion, publishcd at thc bcginning ol January .,,, and rclcrring cxtcnsivcly to intcrna
tional human rights agrccmcnts, is at pp. a.,a..
ur. Comm. Human Rights, Decisions and Feports, vol. a, p. .a (Casc No. 6,c/,
and 6c/,, ccision ol a6 May .,), Decisions and Feports, vol. ., p. (Casc No.
cc,/,,, ccision ol .c July .,), and Decisions and Feports, vol. 6A, p. .c (Casc
No. a,./, ccision ol a Junc .6).
461 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
thc application ol thc uropcan Convcntion on Human Rights, Articlc . ol
which statcs that thc High Contracting Partics shall sccurc ccrtain rights and
lrccdoms to cvcryonc within thcir jurisdiction. Tc Commission lound (in thc
words ol its dccision in thc sccond casc): Tis tcrm is not cquivalcnt to or lim
itcd to within thc national tcrritory ol thc High Contracting Party conccrncd
... thc High Contracting Partics arc bound to sccurc thc said rights and lrccdoms
to all pcrsons undcr thcir actual authority and rcsponsibility, not only whcn that
authority is cxcrciscd within thcir own tcrritory but also whcn it is cxcrciscd
abroad.
6
!n thc third ol thcsc cascs arising lrom northcrn Cyprus, and thc rst
ol thcm to bc rclcrrcd to thc uropcan Court ol Human Rights, thc Court rcal
rmcd carlicr dccisions ol thc Commission, and indicatcd that Turkcy has cxtcn
sivc rcsponsibilitics arising lrom thc uropcan Convcntion on Human Rights.
Tis also conrmcd thc Courts carlicr dccisions in thc Loi.idou .. Turkey casc.
Tcsc conclusions did not mcan that thc law ol armcd conict was sup
plantcd by human rights law. n thc contrary, whcn in thc rst ol thcsc cascs a
qucstion arosc conccrning thc dctcntion ol Grcck military pcrsonncl in Turkcy,
thc uropcan Commission ol Human Rights rulcd that thc spccic law rclat
ing to prisoncrs ol war, . Gcncva Convcntion !!!, was applicablc, and thcrc
lorc thcy did not nccd to cxaminc thc qucstion ol a brcach ol Articlc ol thc
uropcan Convcntion on Human Rights with rcgard to pcrsons accordcd thc
status ol prisoncrs ol war.
8
v !sraclioccupicd tcrritorics:
acc !CJ Advisory pinion in thc Vall casc
Tc application ol human rights norms to thc !sraclioccupicd tcrritorics is a
muchcontcstcd mattcr. !n a numbcr ol statcmcnts thc !sracli authoritics havc
dcnicd that human rights law is lormally applicablc to thc tcrritorics occupicd
sincc .6,. Tc qucstion has bccn cxplorcd in dcpth in many writings, and in
dccisions ol thc Suprcmc Court ol !sracl.
!ndccd, somc
human rights agrccmcnts lor cxamplc thc .66 Covcnant on conomic,
Social and Cultural Rights havc morc thc charactcr ol a programmc than
a binding sct ol dctailcd rulcs. No human rights agrccmcnt draws distinc
tions bctwccn dicrcnt catcgorics ol individuals in thc way that thc laws ol
war do.
(e) vcr a widc rangc ol issucs, thc laws ol war rulcs rcgarding military occupa
tions, as laid down in thc Haguc Rcgulations and thc Gcncva Convcntions,
may ocr morc cxtcnsivc, dctailcd and rclcvant guidancc than can thc gcn
cral human rights trcatics, and thcir supcrvisory machincry, although allow
ing lcss room lor lcgal rcdrcss than do somc human rights trcatics, may bc
morc appropriatc to thc circumstanccs.
ol occupation is cnnis, Application ol Human Rights Trcatics xtratcrritorially
(supra notc ,), pp. ....
,. Figurcs ol statcs partics to Gcncva Convcntions lrom !CRC at http://www.icrc.
org~ (visitcd a. July acc6).
,a Figurcs ol statcs partics to human rights trcatics lrom UN at http://untrcaty.
un.org/nglish/acccss.asp~ (visitcd a May acc6).
, Schindlcr, !ntcrnational Committcc ol thc Rcd Cross and Human Rights,
International Fe.ie. of Te Fed Cross, Jan.Fcb. ., (supra notc ), p. ,.
466 dam Foberts
cspitc thcsc considcrations, human rights trcatics can bc important in
somc situations that cithcr constitutc occupations, or closcly rcscmblc occupa
tions in ccrtain kcy rcspccts. Tcy may imposc lormal obligations on partics,
bc important in political dcbatc, as a basis lor asscssing thc actions ol cxtcrnal
powcrs and local actors, providc lcgal proccdurcs lor taking action, or providc onc
basis lor pursuing translormativc goals. Tcsc trcatics can bc particularly rclcvant
in thc lollowing instanccs:
z. !t is claimcd lor cxamplc on thc basis ol a statusollorccs agrccmcnt, a
purportcd mandatc to act as libcrator, and thc cxistcncc ol an indigcnous
govcrnmcnt that thcrc is no occupation at all. Tis could wcll bc thc casc
with somc translormativc projccts in thc wakc ol military intcrvcntions.
Vhcthcr or not such a dcnial ol thc cxistcncc ol occupation is lcgally dclcn
siblc in thc circumstanccs, it may suggcst that human rights law is thc most
usclul sct ol standards to which to appcal.
:. vcn il an occupation is dccmcd to continuc in somc lorm, an indigcnous
govcrnmcnt is in post, and problcms rcvolvc around thc rclations bctwccn
individual citizcns and thcir own govcrnmcnt. !n such a casc many issucs
conccrning thc rclations bctwccn inhabitants and thcir own govcrnmcntal
authoritics could propcrly bc considcrcd as human rights mattcrs.
. Tc provisions ol a human rights instrumcnt havc bccn incorporatcd into
thc domcstic law ol thc occupicd tcrritory and/or ol thc occupying powcr.
,. Somc individuals or groups ol pcoplc in occupicd tcrritory (c.g. ccrtain tcr
rorist suspccts) arc considcrcd by thc dctaining powcr not to lall within thc
various broad catcgorics ol protcctcd pcrsons as laid down in, say, thc lour
. Gcncva Convcntions and thc .,, Protocols, but thcrc may bc human
rights protcctions that rclatc to thcir situation.
. Somc human rights instrumcnts dcal with subjcctmattcr that lls gaps in
thc laws ol war provisions on occupations c.g. importing ol cducational
matcrials. Partly bccausc ol thc broad subjcctmattcr covcragc, thcy may bc
citcd particularly oltcn in occupations which continuc lor a long timc, cvcn
into somcthing approximating to pcacctimc, and which prcscnt problcms
dicrcnt lrom thosc addrcsscd in thc laws ol war.
o. Human rights agrccmcnts contain proccdurcs lor dcaling with an issuc, lor
cxamplc cnabling individuals to raisc a mattcr dircctly with somc outsidc
institution. Tc rolc ol thc uropcan Court ol Human Rights in a numbcr
ol situations involving thc usc ol lorcc is cvidcncc ol possibilitics in this
rcgard.
,. A spccic issuc arising in an occupation conccrns violations ol thosc parts
ol human rights law which arc not dcrogablc in timc ol crisis.
r, altcrna
, Nondcrogablc provisions includc: .c uropcan Conv. on Human Rights, Arts. a,
, (.) and ,, and .66 !ntcrnational Covcnant on Civil and Political Rights, Arts. 6,
,, (.) and (a), .., ., .6 and ..
467 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
tivcly, thc powcr against which a claim is madc has not madc a dcrogation
in rcspcct ol thc occupation.
A curious aspcct ol thc lcgal arrangcmcnts lor thc postSccond Vorld Var occu
pations was Articlc .c, ol thc UN Chartcr. !t statcd, in lull:
Nothing in thc prcscnt Chartcr shall invalidatc or prccludc action, in rclation
to any statc which during thc Sccond Vorld Var has bccn an cncmy ol any
signatory to thc prcscnt Chartcr, takcn or authorizcd as a rcsult ol that war by
thc Govcrnmcnts having rcsponsibility lor such action.
Articlc .c, can bc sccn as a way ol kccping thc Allicd occupations ol Gcrmany
and Japan outsidc thc control ol thc UN Sccurity Council. !t was also a spiritual
prccursor ol an approach which has somctimcs surlaccd in thc thinking ol thc
, R.Y. Jcnnings, Govcrnmcnt in Commission, British Year Book of International La.
z,,o, p. ..a, at p. .6.
, Vollgang Fricdmann, Te llied Military Go.ernment of Germany (London: Stcvcns,
.,), pp. 6 and 6,.
470 dam Foberts
US govcrnmcnt, which sccs ccrtain govcrnmcnts (and particularly that ol thc
USA) as cntitlcd to takc action intcrnationally with only a rcstrictcd rolc lor thc
UN Sccurity Council. Following thc acc UN Vorld Summit, Articlc .c, may
bc in proccss ol bcing consigncd to lcgal oblivion, but its unilatcralist spirit is not
cntircly dcad.
8o
Altcr thc cntry into lorcc ol thc . Gcncva Convcntions, it bccamc
doubtlul whcthcr a claim could cvcr again bc madc that an occupation was out
sidc thc lramcwork ol thc laws ol war, or could complctcly ignorc ccrtain conscr
vationist provisions. Tc scopc ol application ol thc Convcntions, as outlincd in
common Articlc a, was to all cascs ol partial or total occupation ol thc tcrritory
ol a High Contracting Party. Although thc . Civilians Convcntion, Articlc 6,
did allow lor thc ccssation ol ccrtain rulcs onc ycar altcr thc gcncral closc ol mili
tary opcrations, thc occupant (il still cxcrcising govcrnmcntal lunctions) would
havc rcmaincd bound by many conscrvationist rulcs.
8+
B International Military ctions since the End of the Cold !ar
Sincc thc cnd ol thc Cold Var, intcrnational circumstanccs havc crcatcd strong
prcssurcs, and also opportunitics, lor military action to hclp bring about changc
in ccrtain statcs. Tc intcrnational problcms that havc lcd to this tcndcncy havc
includcd:
!ntcrnal rcprcssion within statcs, in many cascs lcading to largc numbcrs ol
intcrnally displaccd pcrsons and rclugccs.
Civil wars within statcs. Tcsc may causc conccrn on humanitarian grounds,
bccausc ol thcir capacity to sprcad, and also bccausc ol thcir tcndcncy to
causc rclugcc ows.
Tolcration by ccrtain statcs ol tcrrorist activitics aimcd at targcts abroad.
Tcsc problcms arc scrious, and a complctc rclusal by thc intcrnational commu
nity to tacklc thcm is not an option. l thc many cccts ol intcrnational intcr
vcntions sincc ., onc ol thc most striking is thc tcndcncy to rcsult in thc rcturn
ol rclugccs in largc numbcrs. Anothcr is thc attcmpt madc to bring about politi
cal changc in thc tcrritory conccrncd not always with succcss.
Tcrc has bccn a strong tcndcncy in many postCold Var military actions
to avoid vicwing thcm as occupations, or cvcn thinking about thc application ol
occupation law in thcsc cascs. A possiblc rationalc lor this approach is that in
most cascs in which thcrc has bccn a lorcign military prcscncc with a translorma
c !n thc UN Vorld Summit utcomc documcnt ol .6 Scpt. acc, para. .,,, thc UNs
mcmbcr statcs dcclarcd that wc rcsolvc to dclctc rclcrcnccs to cncmy statcs in
Articlcs , ,, and .c, ol thc Chartcr. UN doc. A/RS/6c/. ol a ct. acc, p. .
. . Gcncva Conv. !\, Arts. a and 6. n thc mcaning and status ol Art. 6, scc supra
tcxt at notcs a and a.
471 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
tivc purposc and somc involvcmcnt in govcrnmcntal lunctions, its prcscncc in thc
country conccrncd has bccn with a dcgrcc ol lormal conscnt lrom thc govcrn
mcnt ol that country. xamplcs ol such lorcign prcscncc with conscnt includc:
.. Haiti (.accc and lrom acc onwards)
a. 8osnia and Hcrzcgovina (lrom cccmbcr . onwards)
. Albania (MarchJunc .,)
. Kosovo (lrom Junc . onwards)
. ast Timor (ctobcr .May acca)
6. Alghanistan (lrom cccmbcr acc. onwards)
Furthcr lactors in all thcsc cascs wcrc that thcrc was (although not always lrom
thc start) lormal UN Sccurity Council authorization lor thc lorcign military prcs
cncc in thc tcrritory conccrncd, that thc lorcign prcscncc had a multinational
charactcr, that thc intcrvcntion was prcccdcd by UN Sccurity Council cxprcs
sions ol conccrn ovcr thc humanitarian situation in thc tcrritory, and that human
rights wcrc cmphasizcd as onc kcy conccrn ol thc intcrvcning lorccs.
Ncithcr thc lact ol lormal conscnt ol thc govcrnmcnt ol thc country, nor
lormal UN authorization, makcs it impossiblc lor thc law on occupations to bc
considcrcd applicablc to thcsc cascs. Vhcn troops lrom abroad intcract with thc
population ol anothcr country, thcrc must always bc a strong casc lor vicwing thc
law on occupations as a ncccssary salctynct. Howcvcr, it is cvidcnt that thc law
on occupations is not thc only lcns through which onc can cxaminc this widc
rangc ol intcrvcntionist activity.
8:
l thcsc six cascs, thc onc most similar to !raq postacc is thc U.S.lcd
cxtcrnal involvcmcnt in Alghanistan. !n Alghanistan thc Unitcd Statcs had a clcar
translormativc purposc, thcrc, as in !raq, thc major U.S.lcd military action was
cxplicitly to dcposc thc ruling rcgimc ol thc country, and thc dcposition did not
cnd all armcd opposition. A main dicrcncc is that in Alghanistan thcrc was no
ncccssity to cstablish a lorcign military occupation rcgimc. Altcr thc lall ol thc
Taliban rcgimc and thc acccssion to powcr ol thc Alghan !ntcrim Authority on aa
cccmbcr acc., thc coalitions rolc was csscntially that ol aiding thc govcrnmcnt.
C Iraq since :cc
Tcrc was a prcccdcnt, ol sorts, in !raq: thc salc havcn cstablishcd in north
crn !raq in ... Tc USlcd military intcrvcntion that bcgan on ., April ..,
rcsulting in thc cstablishmcnt ol thc zonc, did not havc spccic authorization
ol thc UN Sccurity Council, nor, initially, thc conscnt ol thc !raqi govcrnmcnt,
whosc lorccs had only a lcw months bclorc bccn rcpulscd lrom Kuwait. Altcr
a A usclul study ol cascs ol intcrnational administration sincc . is Richard Caplan,
International Go.ernance of !ar-Torn Territories: Fule and Feconstruction (xlord:
xlord Univcrsity Prcss, acc).
472 dam Foberts
thc initial phasc, northcrn !raq was protcctcd lrom !raqi govcrnmcnt incursions
almost cntircly through thc cstablishmcnt ol a USinitiatcd air cxclusion zonc.
Tc history ol this protcctcd zonc illustratcs ccrtain translormativc possibilitics
ol lorcign military involvcmcnt. Howcvcr, thc zonc ncvcr assumcd thc charac
tcr ol anything approaching a lull occupation rcgimc. !nitiatcd to cnablc largc
numbcrs ol rclugccs lrom thc rcgion to rcturn homc, it rcsultcd in thc applica
tion ol cnough coalition military prcssurc to kccp Saddam Husscins lorccs out
ol northcrn !raq, thcrcby cnabling thc !raqi Kurds to dcvclop thcir own admin
istrativc structurcs in thc rcgion. Hcrc indccd was a translormation lacilitatcd by
a lorcign military rolc: but that rolc assumcd thc lorm ol a shorttcrm military
prcscncc on thc ground, lollowcd by a morc rcmotc onc in thc air that could not
bc vicwcd as an occupation.
i Translormation as nc 8asis ol thc ccision to Usc Forcc in !raq
Tc military opcrations which wcrc launchcd in !raq on .ac March acc raiscd
numcrous issucs rclating to thc jus ad bellum. Tcsc arc not rcvicwcd hcrc, partly
bccausc ol thc lamiliar principlc that thc laws ol war apply irrcspcctivc ol thc
lcgality or othcrwisc ol an original rcsort to lorcc. Howcvcr, onc qucstion must
bc bricy addrcsscd. !s translormation a lcgitimatc rcason lor rcsorting to lorcc:
Tis is distinct lrom thc qucstion as to whcthcr translormation is a lcgitimatc
goal oncc lorcc has (lor whatcvcr rcason) bccn uscd.
Tc casc ol !raq conrms that thcrc may bc a complcx mixturc ol politi
cal motivcs lor intcrvcning, and a no lcss complicatcd mixturc ol lcgal and othcr
justications. Tc U.S.lcd invasion lollowcd a prolongcd and conluscd lcgal
cumpolitical dcbatc, in which thc statcd purposcs ol intcrvcntion varicd not just
ovcr timc, but also within and bctwccn dicrcnt US agcncics and participating
statcs.
n ac March acc thc Unitcd Statcs madc a statcmcnt to thc UN sccking
to justily thc military opcrations that had just commcnccd. Tc purposc ol thc
military action was spccicd vcry prcciscly: Tcsc opcrations arc ncccssary in
vicw ol !raqs continucd matcrial brcachcs ol its disarmamcnt obligations undcr
rclcvant Sccurity Council rcsolutions, including Rcsolution .. (acca). Tc
opcrations arc substantial and will sccurc compliancc with thosc obligations. As
to thc basis ol authority to usc lorcc, thc statcmcnt madc a claim ol continuing
or rcvivcd authority on thc basis ol carlicr rcsolutions: Tc actions bcing takcn
arc authorizcd undcr cxisting Council rcsolutions, including its rcsolutions 6,
(.c) and 6, (..).
8
Tcrc was no mcntion at all ol a politically translormativc
purposc, nor ol thc prcvcntion ol tcrrorism.
Lcttcr datcd ac March acc lrom thc Pcrmancnt Rcprcscntativc ol thc USA to thc
UN addrcsscd to thc Prcsidcnt ol thc Sccurity Council. UN doc. S/acc/. ol a.
March acc.
473 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
!n rcality, thc idca ol political translormation had long bccn onc signicant
clcmcnt in US dcbatcs about !raq. As carly as ., thc joint houscs ol thc U.S.
Congrcss, in passing thc !raq Libcration Act, had callcd lor thc US to support
corts to rcmovc thc rcgimc hcadcd by Saddam Husscin lrom powcr in !raq and
to promotc thc cmcrgcncc ol a dcmocratic govcrnmcnt to rcplacc that rcgimc.
Howcvcr, this clarion call lor translormation did not cxist in a vacuum, sincc
it was bascd on complaints about !raqs conduct, including violations ol intcr
national rulcs. Tc Act citcd !raqs conduct in thc war against !ran .c, its
invasion and occupation ol Kuwait .c., its orchcstration ol a lailcd plot to
assassinatc Prcsidcnt Gcorgc H. V. 8ush in ., its rcprcssion ol thc Kurds, its
violation ol thc disarmamcnt conditions ol thc .. ccascrc, and its dcnial ol
dcmocracy.
8
!n subscqucnt U.S. dcbatcs and dccisionmaking, rcgimc changc
lcaturcd not simply as a likcly conscqucncc ol intcrvcntion, but a principal pur
posc ol it. !t was claimcd that cnlorccd rcgimc changc would lcad to substantial
bcnccial conscqucnccs both within !raq and in thc rcgion gcncrally.
!n 8ritain thcrc was no signicant body ol opinion that supportcd thc idca
that translormation howcvcr dcsirablc in principlc it might bc was in itscll a
justication lor going to war in !raq. !n April acca, whcn hc mct with Prcsidcnt
8ush at Crawlord, Tcxas, Primc Ministcr 8lair said that thc UK would support
military action to bring about rcgimc changc, providcd that ccrtain conditions
wcrc mct: corts had bccn madc to construct a coalition/shapc public opinion,
thc !sracl/Palcstinc Crisis was quicsccnt, and thc options lor action to climi
natc !raqs VM through thc UN wcapons inspcctors had bccn cxhaustcd. Tc
mcmorandum ol a. July acca which rccordcd this also statcd: US vicws ol intcr
national law vary lrom that ol thc UK and thc intcrnational community. Rcgimc
changc per se is not a propcr basis lor military action undcr intcrnational law. 8ut
rcgimc changc could rcsult lrom action that is othcrwisc lawlul.
8
Tony 8lair
subscqucntly statcd that rcgimc changc and wcapons ol mass dcstruction wcrc
linkcd in thc scnsc that it was thc rcgimc that was producing thc VM.
86
!n thc
Housc ol Commons dcbatc just bclorc thc war hc statcd: ! havc ncvcr put thc
justication lor action as rcgimc changc. Vc havc to act within thc tcrms sct out
in Rcsolution .. that is our lcgal basc. 8ut it is thc rcason why ! say lrankly
Rcsolution ol thc two houscs ol thc U.S. Congrcss (H.R. 6), passcd by thc Housc
ol Rcprcscntativcs on ct. . and thc Scnatc on , ct. ..
Conditions lor Military Action, Sccrct Cabinct cc papcr, a. July acca. Partially
lcakcd in Sunday Times, London, . May acc, and publishcd in lull in thc Sunday
Times, London, .a Junc acc. Availablc at http://www.downingstrcctmcmo.com/
cabinctocctcxt.html~.
6 Sccrct owning Strcct mcmo ol thc Primc Ministcrs mccting, a July acca, rcl. S
./ca. Publishcd in thc Sunday Times, London, . May acc. Availablc at http://
www.inlormationclcaringhousc.inlo/articlc,c.htm~.
474 dam Foberts
that il wc do act, wc should do so with a clcar conscicncc and a strong hcart.
8
Tc main thrust ol public prcscntations ol govcrnmcnt policy was about allcgcd
!raqi noncompliancc with disarmamcnt obligations. !n a sccrct mcmorandum to
thc Primc Ministcr on thc lcgality ol military action against !raq, datcd , March
acc, thc Attorncy Gcncral, Lord Goldsmith, dcvclopcd thc argumcnt that a
violation ol !raqs obligations undcr rcsolution 6, which is sucicntly scrious to
undcrminc thc basis ol thc ccascrc can rcvivc thc authorisation to usc lorcc in
rcsolution 6,. Tc nal paragraph ol thc mcmorandum cxprcsscd ncrvousncss
about political translormation as a rationalc lor thc usc ol lorcc. !t did so in thc
contcxt ol a discussion ol proportionality which, lamously, is a mattcr that con
stitutcs a link bctwccn jus ad bellum and jus in bello. Tc paragraph rcads:
Proportionality
6. Finally, ! must strcss that thc lawlulncss ol military action dcpcnds not only
on thc cxistcncc ol a lcgal basis, but also on thc qucstion ol proportionality.
Any lorcc uscd pursuant to thc authorisation in rcsolution 6, (whcthcr or not
thcrc is a sccond rcsolution):
must havc as its objcctivc thc cnlorccmcnt |ol | thc tcrms ol thc ccascrc
containcd in rcsolution 6, (.c) and subscqucnt rclcvant rcsolutions,
bc limitcd to what is ncccssary to achicvc that objcctivc, and
must bc a proportionatc rcsponsc to that objcctivc, i.c. sccuring compli
ancc with !raqs disarmamcnt obligations.
Tat is not to say that action may not bc takcn to rcmovc Saddam Husscin
lrom powcr il it can bc dcmonstratcd that such action is a ncccssary and pro
portionatc mcasurc to sccurc thc disarmamcnt ol !raq. 8ut rcgimc changc
cannot bc thc objcctivc ol military action. Tis should bc bornc in mind in
considcring thc list ol military targcts and in making public statcmcnts about
any campaign.
88
instcin dcvclopcd a justication lor thc usc ol lorcc against !raq that was simi
lar to that ol Lord Goldsmith, but with ccrtain dicrcnccs. cploring thc conlu
sion in rationalcs lor thc !raq action, and noting that thc political considcrations
rcsulting in intcrvcntion wcrc broadcr than thc lcgal oncs, instcin sought to
rcducc thc chaos ol argumcnts about thc lcgal basis ol thc acc action against
!raq to somc kind ol ordcr. Hc argucd that thc original .. coalition usc ol
lorcc ovcr Kuwait had bccn lawlul not only bccausc it had bccn authoriscd in
, Tony 8lair, statcmcnt opcning thc dcbatc on !raq, Hansard, Housc ol Commons,
. March acc, col. ,,a. Availablc at http://www.parliamcnt.uk/hansard/hansard.
clm~.
Lord Goldsmith, Attorncy Gcncral, !raq: Rcsolution .., Sccrct Mcmorandum
to thc Primc Ministcr, , March acc. Rclcascd on a April acc, paras. , and 6, at
http://www.numbcr.c.gov.uk/lcs/pdl/!raqacRcsolutionac...pdl~.
475 17 Transformati.e Military Occupation: pplying the La.s of !ar and HF
Sccurity Council Rcsolution 6, ol a Novcmbcr .c, but also bccausc it was
a lawlul cxcrcisc ol collcctivc sclldclcncc lollowing thc attack on Kuwait. Hc
thcn wcnt on to suggcst that thc lcgal basis ol thc acc hostilitics was a rcvival
ol thc Coalitions right to usc lorcc against !raq conscqucnt upon thc !raqi matc
rial brcach ol thc ccascrc that had bccn concludcd bctwccn !raq and thc coali
tion in ...
8
Hc did not dcvotc attcntion to thc US cmphasis on rcgimc changc
as a rcason lor usc ol lorcc, but was critical ol US notions ol prcvcntivc scll
dclcncc. Comparcd with Goldsmiths argumcnt, this analysis was lcss dcpcndcnt
on Sccurity Council rcsolutions, and put morc cmphasis on a continuing right ol
sclldclcncc as a basis lor rcsponding to violations ol thc .. ccascrc tcrms.
Tc lcgal justications ol thc acc !raq intcrvcntion advanccd by Goldsmith
and instcin arc strongcr than most. Howcvcr, likc all vicws ol thc !raq intcr
vcntion, thcy arc by no mcans lrcc ol problcms. 8oth ol thcsc justications rclicd
hcavily on thc propositions that !raq had cngagcd in major violations ol thc
ccascrc tcrms, and that thcsc had bccomc vcry scrious by acc, and that thc
crisis was so scvcrc as to justily thc latclul stcp ol invasion and rcgimc changc, as
distinct lrom continuing and adapting thc policy ol containmcnt.
Tcrc wcrc, and arc, many grounds lor rcscrvations ovcr thc Coalition gov
crnmcnts asscssmcnts in acca ol cvidcncc ol !raqi brcachcs ol thc ccascrc
tcrms. !t is truc that thcsc asscssmcnts wcrc largcly sharcd by othcr govcrnmcnts
and thcir intclligcncc scrviccs. Yct it was not, and is not, obvious that thcrc was a
crisis ovcr !raqi wcapons in March acc ol such gravity as to justily withdrawing
thc inspcctors and rcsorting to lullscalc invasion. Hans 8lix, chargcd with thc
task ol inspccting in !raq, had doubts about thc asscssmcnts madc about !raq in
Vashington and London in March acc.
o
Tc dcbatc about !raq in thc ycars bclorc thc outbrcak ol war in March acc
rcvcalcd a dicrcncc ol vicw bctwccn thc UK and thc US about whcthcr thc
political translormation ol !raq, or ol thc rcgion morc broadly, could bc a rcason
lor intcrvcntion. Tc UK had a strongcr scnsc that, on its own, rcgimc changc
was an insucicnt rcason in intcrnational law. Tc projcct ol political translor
mation ol !raq, and ol thc Arab world morc gcncrally, was particularly strong in
thc USA lor ycars bclorc acc to thc point whcrc it constitutcd a signicant part
ol thc rationalc lor intcrvcntion pcrhaps morc important in thc minds ol somc
policymakcrs than thc disarmamcnt issuc. To many advocatcs ol translormativc
intcrvcntion, thcrc was somcthing articial about a situation in which thc law is
such that a rcal rcason lor intcrvcntion turning a dictatorship into a dcmocracy
could play at bcst a minimal part in thc dcbatc about thc lcgal justication ol
military action.
Yoram instcin, Tc Gull Var, .cacc (and Still Counting), Israel Yearbook on
Human Fights :cc, vol. , p. ., at p. .
c Hans 8lix, Disarming Iraq: Te Search for !eapons of Mass Destruction (London:
8loomsbury, acc).
476 dam Foberts
ii Translormativc ccupation ol !raq lrom April acc
Sincc thc initial USlcd invasion and subscqucnt military prcscncc was obviously
without thc agrccmcnt ol thc govcrnmcnt ol Saddam Husscin, and involvcd
dircct rcsponsibility lor running thc country, thc rcsulting situation was much
closcr to a military occupation than in most cascs ol lorcign military prcscncc in
countrics sincc thc cnd ol thc Cold Var. Naturally, a widc rangc ol laws ol war
issucs arosc, in light ol which thc policics ol thc coalition authoritics wcrc thc
subjcct ol cxtcnsivc justication and critical scrutiny.
+
Tc occupation ol !raq was not wcll planncd. As carly as July acca a UK
govcrnmcnt mcmorandum had notcd: Tcrc was littlc discussion in Vashington
ol thc altcrmath altcr military action.
:
Somc scnior occrs in thc Pcntagon
with lcgal cxpcrtisc wcrc told not to bothcr thcmsclvcs with plans lor thc occu
pation, and a Statc cpartmcnt study prcparatory to thc occupation was ignorcd.
Tcrc was also conccptual conlusion, cspccially in thc Unitcd Statcs. !n thc public
dcbatc on thc mattcr in Vashington C in thc rst lcw months ol acc, somc
policymakcrs madc thc basic crror ol asscrting that, bccausc this was a libcration
ol !raq, it was not an occupation at all. A typical commcnt was that by Mr Paul
Vollowitz, cputy US Sccrctary ol clcnsc and a lcading advocatc ol thc intcr
vcntion. !n Fcbruary acc, shortly bclorc thc military action, hc said: Vcrc not
talking about thc occupation ol !raq. Vcrc talking about thc libcration ol !raq ...
Tcrclorc, whcn that rcgimc is rcmovcd, wc will nd thc |!raqi population| basi
cally wclcoming us as libcrators.
!t was undcrstandablc that, in thc Middlc ast whcrc conccrn about thc !sracli
occupicd tcrritorics is widcsprcad, thc US should wish to avoid thc odium accom
panying thc tcrm occupation. Howcvcr, it was a lcgal and political mistakc to
countcrposc libcration and occupation as oppositcs, and thcrcby to imply that
thc law govcrning occupations was ol littlc rclcvancc. !t would havc bccn lcgally
soundcr, and havc clicitcd lcss political scorn, to havc statcd lrom thc start that
thc Unitcd Statcs, whilc its intcntion was to libcratc !raq, acccptcd that onc main
body ol intcrnational rulcs that should govcrn thc conduct ol thcir lorccs was
that pcrtaining to occupations. vcntually, altcr thc main combat phasc in !raq
was ovcr, thc Unitcd Statcs and its coalition partncrs did adopt this position.
UN Sccurity Council Rcsolution . ol aa May acc, mcntioncd lurthcr bclow,
markcd thcir acccptancc that occupation law applicd to thcir prcscncc in !raq,
whilc at thc samc timc rcccting thcir intcntion to achicvc a lundamcntal trans
lormation ol thc constitution and laws ol thc country.
Vhilc thc intcrvcntion was still in its major combat opcrations phasc, thcrc
wcrc conccrns in somc parts ol thc coalition govcrnmcnts that thc translorma
tivc projcct lor !raq might violatc thc lcgal norms govcrning occupations. n a6
March acc, in a dctailcd mcmorandum spclling out his advicc to thc 8ritish
Cabinct on thc samc day, Lord Goldsmith, thc UK Attorncy Gcncral, statcd:
!n short, my vicw is that a lurthcr Sccurity Council rcsolution is nccdcd to
authorisc imposing rclorm and rcstructuring ol !raq and its Govcrnmcnt. !n
thc abscncc ol a lurthcr rcsolution, thc UK (and U.S.) would bc bound by thc
provisions ol intcrnational law govcrning bclligcrcnt occupation, notably thc
Fourth Gcncva Convcntion and thc .c, Haguc Rcgulations.
Tc Attorncy Gcncral wcnt on to notc in particular that thc imposition ol major
structural cconomic rclorms would not bc authoriscd by intcrnational law. n
a scparatc point, hc statcd that a lurthcr complicating lactor lor thc Unitcd
Kingdom is thc cxtcnt to which thc CHR |uropcan Convcntion on Human
Rights| and othcr intcrnational human rights instrumcnts arc likcly to apply to
!ntcrnational Law & Policy Group, and thc Ccntury Foundation, May acc, 6 pp.
Availablc at http://www.pilpg.org~.
Yoram instcin, Jus in Bello !ssucs Arising in thc Hostilitics in !raq in acc, Israel
Yearbook on Human Fights :cc,, vol. , p. ., at p. .a.
478 dam Foberts
any tcrritory ol which thc UK is thc ccupying Powcr. ! am advising thc Ministry
ol clcncc scparatcly on thc cxtcnt ol our CHR obligations in !raq.
6
Following this mcmorandum, thc UK govcrnmcnt did publicly cmphasisc thc
lramcwork ol Haguc and Gcncva law. !n a statcmcnt in thc Housc ol Commons
on . April acc outlining plans lor !raqs rcconstruction, Primc Ministcr 8lair
said: !n thc rst phasc, thc coalition and thc cc ol Rcconstruction and
Humanitarian Assistancc will havc rcsponsibility undcr thc Gcncva and Haguc
convcntions lor cnsuring that !raqs immcdiatc sccurity and humanitarian nccds
arc mct. Hc also strcsscd that thc UN would havc a vital rolc. Hc did not usc
thc tcrm occupation: instcad, hc said, optimistically: !raq is a nation with a crca
tivc pcoplc, potcntially wcalthy, with a dynamic and prospcrous luturc ahcad ol
it. Tcy do not nccd to bc run lrom thc outsidc by thc US, thc UK or thc UN,
and thcy will not bc.
Tc occupation had alrcady bcgun during thc coursc ol thc ghting, whcn
progrcssivcly morc arcas ol !raq camc undcr coalition control. Although in par
ticular placcs and phascs it could bc dicult to dctcrminc cxactly whcn occupa
tion bcgan, thcrc appcars to havc bccn no disputc in principlc about thc status
ol thcsc arcas as occupicd tcrritory. Tc usc ol this tcrm in a Sccurity Council
rcsolution ol a March conrmcd this.
8
Tc countrywidc occupation administration is dcscribcd in somc ocial
documcnts as having bcgun on .6 April acc. Tis was onc day altcr a mccting
ol various !raqi lactions, hcld at a makcshilt US air basc ncar Ur, which agrccd a
.point plan (including as Point .c thc dissolution ol thc 8aath Party) lor stccr
ing !raq to a dcmocratic luturc.
De jure sovcrcignty rcsts with thc rcspcctivc statc whosc tcrritory has bccn
occupicd. uring this transitional pcriod, rulcs issucd by thc occupant arc mcant
to strikc a balancc bctwccn thc sccurity intcrcsts ol thc occupying powcr and thc
prcsumcd intcrcsts ol thc occupicd statcs population by prcscrving thc status quo
ante with rcgard to thc unity ol thc rcspcctivc statc and maintcnancc ol its cxist
ing lcgal ordcr. !ntcrnational law, in principlc, docs not lcgitimizc thc introduc
. Yoram instcin touchcs on this qucstion in Lcgislation undcr articlc ol thc
Haguc Rcgulations: 8clligcrcnt ccupation and Pcaccbuilding, ccasional Papcr
Scrics No ., Fall acc, Program on Humanitarian Policy and Conict Rcscarch,
Harvard Univcrsity. Scc also . 8cnvcnisti, Tc !ntcrnational Law ol ccupation,
., a.a ct scq.
a Scc Tc Manual ol thc Law ol Armcd Conict, UK Ministry ol clcncc, acc,
a, ct scq., A. Robcrts, Vhat is a Military ccupation:, 8Y!L (.), a ct
scq., C. McCarthy, Tc Paradox ol thc !ntcrnational Law ol Military ccupation:
Sovcrcignty and thc Rclormation ol !raq, Journal ol Conict & Sccurity Law .c
(acc), ct scq. (). n bclligcrcnt occupation, scc in gcncral . 8cnvcnisti, Tc
Sccurity Council and thc Law on ccupation: Rcsolution . on !sracl in Historical
Pcrspcctivc, !sracl clcnsc Forccs Law Rcvicw . (acc), . ct scq.
Tis point is cmphasizcd by Yoram instcin. Scc Jus in bcllo issucs arising in thc
hostilitics in !raq acc, !sracl Ycarbook on Human Rights, , .. at .. Hc also
cmphasizcs that thc coalition lorccs arc bound by thc rulcs ol occupation cvcn il thcy
claim to bc libcrators.
M.N. Schmitt and J. Pejic (eds.), International La. and rmed Conict: Exploring the Faultlines
C :cc, Koninklijke Brill B!. Printed in Te Netherlands. ISBN ,,8 ,cc,z, :8 . pp. ,,,-c8.
498 Fudiger !olfrum
tion ol lundamcntal political changcs going bcyond this pcriod.
Such changcs
in rcspcct ol thc occupicd Statc arc rcscrvcd to a luturc govcrnmcnt rcprcscnting
thc rcspcctivc population. Yoram instcin, to whom this contribution is dcdi
catcd, has pointcd out that in cascs ol prolongcd occupation it may bc ncccssary
to rcconsidcr thc lunctions to bc cxcrciscd by thc occupant.
II Belligerent Occupation
pplicable La.
Tc intcrnational law govcrning bclligcrcnt occupation is codicd in Articlcs a
6 ol thc .c, Haguc Rcgulations,
8
thc Fourth Gcncva Convcntion, particularly
instcin, (notc ) at .a., rightly points out that in thc casc ol Gcrmany altcr thc
Sccond Vorld Var, thc Gcncva Convcntion had not yct bccn produccd.
Notc . at .
6 !t should bc that with rcgard to !raq, thc Coalition Provisional Authority had
dcncd its task: Tc ultimatc goal lor !raq is a durablc pcacc lor unicd and stablc,
dcmocratic !raq that is undcrpinncd by ncw and protcctcd lrccdoms and a grow
ing markct cconomy. Coalition Provisional Authority, An Historic Rcvicw ol CPA
Accomplishmcnts, , at http://www.cpairaq.org (availability cndcd in Junc acc).
, Tcsc qucstions havc bccn raiscd in particular by Grcgory H. Fox, Tc ccupation
ol !raq, 6 Gcorgctown Journal ol !ntcrnational Law (acc), . ct scq.
Anncx to thc Convcntion Rcspccting thc Laws and Customs ol Var on Land ol
. ctobcr .c, (authcntic tcxt Frcnch), rcprintcd in: . Schindlcr/J. Toman, Tc
Laws ol Armcd Conicts, ., 6 ct scq. Tc !ntcrnational Military Tribunal ol
Nurcmbcrg statcd that thc Haguc Rcgulations constitutcd customary intcrnational
law, cl. Trial ol thc Major Var Criminals bclorc thc !ntcrnational Military Tribunal,
Nurcmbcrg, \ol. XX!!, ,.
499 18 Te dequacy of IHL Fules on Belligerent Occupation
Articlcs a, and ,,,
Morc rcccntly, scvcral suggcstions havc bccn madc to bring intcrnational
humanitarian law in linc with thc goal ol making possiblc sustainablc pcacc by
changing thc political structurc ol a statc. Tcy rangc lrom charactcrizing intcr
national humanitarian law as obsolctc, to rcintcrprcting thc rulcs ol bclligcrcnt
!CRC Commcntary, !\ Gcncva Convcntion, at a,.
Grccnspan (notc ) a.,.
J.J. Paust, Tc Unitcd Statcs as ccupying Powcr ovcr Portions ol !raq and Spccial
Rcsponsibilitics undcr thc Laws ol Var, Suolk Transnational Law Rcvicw .,
(acc), . (.6 ct scq.). Scc also H.H. Pcrritt, Jr., Structurcs and Standards lor Political
Trustccship, Univcrsity ol Calilornia !ntcrnational Law and Forcign Aairs
(acc), ct scq. ( ct scq.), who argucs that thc Allicd ccupation ol Gcrmany
and ol Japan was bascd on a political trustccship cquivalcnt to thc mandatc or thc
trustccship systcm ol thc Lcaguc ol Nations and thc Unitcd Nation, rcspcctivcly.
Howcvcr, this is not thc placc to dcal with thc military administration ol Gcrmany
and Japan.
505 18 Te dequacy of IHL Fules on Belligerent Occupation
occupation on thc basis ol ncccssity
6
or human rights.
D Security Council Fesolution z,8 and Its Impact on the Fole of the
Coalition Forces as Belligerent Occupants
!t has bccn argucd that thc Sccurity Council has no lcgislativc powcr and cannot,
thcrclorc, modily cxisting or prcscribc intcrnational law. Rcality indicatcs othcr
wisc. Tc Sccurity Council has on scvcral occasions assumcd lcgislativc lunctions
to which Statcs, including thc Unitcd Statcs, havc conscntcd.
o
Primc cxamplcs
includc thc Sccurity Council Rcsolutions against tcrrorism and thc prolilcration
ol wcapons ol mass dcstruction.
+
Sccurity Council Rcsolution . is thc product ol corts by thc Unitcd
Statcs and thc Unitcd Kingdom to acquirc intcrnational lcgitimization lor thcir
intcrim administration ol !raq, a point apparcnt in thc May acc lcttcr ol thc
two countrics to thc Sccurity Council.
:
8cyond sccking lcgitimacy lor thcir bcl
ligcrcnt occupation ol !raq, thcy sought to sccurc thc authority to govcrn and
administcr !raq lor an cxtcndcd pcriod ol timc, rcconstruct it politically and cco
nomically, lilt thc cconomic sanctions, and tcrminatc thc il lor Food Program.
Tc two govcrnmcnts achicvcd somc, pcrhaps most, but not all ol thcsc
objcctivcs. thcr mcmbcrs ol thc Sccurity Council wcrc particularly carclul to
avoid providing lor an ex post lcgitimization ol thc invasion. Tcy also rclraincd
6 Mcmorandum lrom thc Right Hon. Lord Goldsmith, QC, to thc Primc Ministcr,
rcprintcd in John Kamplncr, 8lair Told !t Vould 8c !llcgal to ccupy !raq, Ncw
Statcsman, May a6, acc, .6.,.
, Tis sccms to bc thc dominant argumcnt advanccd by Fox (notc ,) at aa ct scq.
qually, thc contribution will not dcal with thc qucstion whcthcr thc !raqi !ntcrim
Govcrnmcnt conscntcd to thc introduccd changcs, scc on this Fox (notc ,) at a, ct
scq.
Zimmcrmann/lbcrling, Grcnzcn dcr Lcgislativbclugnissc dcs Sichcrhcitsratcs,
\N acc, ,. ct scq.
c For dctails, scc Rudigcr Vollrum, cr Kampl gcgcn cinc \crbrcitung von Masscn
vcrnichtungswacn: inc ncuc Rollc lur dcn Sichcrhcitsrat, Libcr Amicorum Jost
clbruck, acc, 6 ct scq.
. S/RS/.c (acc), a April acc.
a oc. S/acc/.
506 Fudiger !olfrum
lrom giving thc Coalition a totally lrcc hand in thc rcorganization ol !raq.
Rcsolution ., abovc all, lcavcs room lor intcrprctation.
Tc rcsolution givcs thc Coalition thc mandatc to administcr !raq and work
towards its political and cconomic rcorganization.
III Conclusion
Sccurity Council Rcsolution . modicd thc intcrnational humanitarian law
on bclligcrcnt occupation applicablc in !raq by lcgalizing thc Coalitions corts
to rcstructurc !raq politically. oing so is in accordancc with Articlc .c ol thc
UN Chartcr.
o
Tc Councils authority to modily intcrnational humanitarian law
dcrivcs lrom its powcrs undcr Chaptcr \!! ol thc Chartcr.
Apart lrom thc importancc ol thc modication ol intcrnational humanitar
ian law in this particular casc, it would appcar that thc Sccurity Council has now
produccd a modcl lor luturc bclligcrcnt occupations. !t is a main lcaturc ol this
modcl to cntrust particular statcs with postconict managcmcnt rcsponsibilitics.
Tus, in principlc, it adopts thc coalition ol thc willing systcm uscd during thc
.. war against !raq that was mandatcd by Sccurity Council Rcsolution 6, ol
a Novcmbcr .c.
+
Tis modcl appcars quitc promising as an attcmpt to rcdcnc thc cxist
ing rulcs ol intcrnational humanitarian law. !t should not bc ignorcd that thcsc
rulcs arc mcant to protcct thc rcspcctivc population against an occupying powcr
that might act in its own national intcrcst whilc claiming to act in thc intcrcst
ol intcrnationally cndorscd principlcs, such as thc protcction ol human rights,
dcmocracy or thc libcralization ol tradc. Tc involvcmcnt ol thc Sccurity Council
or a rcgional intcrnational organization is morc ccctivc in prcvcnting thc abusc
ol such powcrs than a watcrcddown intcrnational humanitarian law that mcrcly
cxpands thc discrctionary powcrs ol a bclligcrcnt occupant.
For dctails scc Vollrum (notc .), at aa.
c Scc .J. Schccr, 8cyond ccupation Law, AJ!L , (acc), a ( ct scq.).
Articlc .c ol thc UN Chartcr constitutcs a conict ol laws rulc rathcr than a hicr
archy. Scc R. 8crnhardt, Art. .c, margin notc 6, in: 8. Simma (cd.), Tc Chartcr ol
thc Unitcd Nations, a
nd
cdition, acca.
. pcrativc para. a rclcrs to McmbcrStatcs coopcrating with thc Govcrnmcnt ol
Kuwait.
Chapter 19
Tc Scparation Fcncc in thc !ntcrnational Court ol Justicc
and thc High Court ol Justicc:
Commonalitics, icrcnccs and Spccics
Fania Domb
Introduction
Tc lcgality ol thc scparation lcncc (also callcd barricr and wall
+
) constructcd
by !sracl on thc Vcst 8ank as a mcans ol prcvcnting tcrrorist acts committcd by
thc Palcstinians has bccn cxamincd by two dicrcnt Courts. Trcc dicrcnt dcci
sions havc bccn dclivcrcd in rcgard to it:
a) thc Advisory pinion dclivcrcd by thc !ntcrnational Court ol Justicc (!CJ)
on July , acc, at thc rcqucst ol thc UN Gcncral Asscmbly,
:
on thc qucstion
ol thc lcgal conscqucnccs arising lrom thc construction ol thc wall bcing
built by !sracl, thc occupying Powcr, in thc ccupicd Palcstinian Tcrritory,
including in and around ast Jcrusalcm (hcrcinaltcr: ICJ),
b) thc dccision in thc Beit Surik Case, dclivcrcd on Junc c, acc, by thc Suprcmc
Court ol !sracl sitting as thc High Court ol Justicc (HCJ) (hcrcinaltcr: Beit
Surik),
c) thc dccision in thc lfei Menashe Case, also dclivcrcd by thc HCJ, on
Scptcmbcr ., acc (hcrcinaltcr: lfei Menashe).
According to gcncral
intcrnational law, anncxation can only takc placc by conclusion ol a pcacc trcaty
which providcs lor thc ccssion ol an occupicd tcrritory to thc occupying Statc, or
as a rcsult ol debellatio
6
, i.c. thc disintcgration ol an cncmy Statc.
!n contrast to thc rulc on thc illcgality ol unilatcral anncxation, thc rulc on
thc inadmissibility ol acquisition ol tcrritory by mcans ol war, invokcd by thc !CJ,
cmcrgcd in thc wakc ol thc prohibition ol thc thrcat or usc ol lorcc in intcrna
tional rclations as lormulatcd in Articlc a() ol thc UN Chartcr. !t was bascd on
thc principlc ex injuria jus non oritur, mcaning that hc who acts contrary to thc
law cannot acquirc rights as a rcsult ol his transgrcssion.
8
!n thc contcxt ol acqui
sition ol tcrritory through war, this principlc rcquircs a distinction bctwccn thc
aggrcssor Statc (acting contrary to thc law) and thc Statc which was thc victim
ol aggrcssion. Vhilc thc rst may not acquirc tcrritory as thc rcsult ol its viola
tion ol thc law, thc sccond may do so bccausc it was cngagcd in a lawlul war ol
rcsponsc to aggrcssion. Tis distinction, lavorcd by scholars,
Prolcssor
instcin notcd its implication lor anncxation ol occupicd tcrritory in acc., whcn
hc opincd that il thc local pcoplc is truly at libcrty to dctcrminc its political
status, a postdebellatio anncxation by thc victorious Statc must clcarly bc prc
cludcd.
!t lollows that both Courts arc in complctc agrccmcnt as to thc applicability
ol thc Haguc Rcgulations to that bclligcrcnt occupation.
ii Tc . Fourth Gcncva Convcntion
From .6,, !sracl has takcn thc position that it docs not rccognizc thc de jure
applicability ol thc Fourth Gcncva Convcntion to thc Vcst 8ank (bccausc it has
M. 8othc, ccupation, 8clligcrcnt, Encyclopedia of Public International La. ,6
(.,).
a U.N.T.S. ac.
c instcin, supra notc 6, at ...
. H.C. 6c6/,, (a) P.D. .., summary in Isr. Y.B. Hum. Fts. , (.,).
a Y. instcin, Tc Judgmcnt in thc Pithat Raah Casc, Tel .i. Uni.. L. Fe.. ,
(Hcbrcw, .,,).
As rulcd by thc HCJ in C.A. ,ca/, dclson Casc, .(.) P.D. 6a, 6c, by rcliancc
on instcin, supra notc .a.
See thc trcatisc ol . Krctzmcr, Te Occupation of Justice, Te Supreme Court of Israel
and the Occupied Territories (acca).
520 Fania Domb
ncvcr rccognizcd thc rights ol Jordan to any part ol Palcstinc
). Howcvcr, !sracl
has ocially dcclarcd that it will act de facto in accordancc with thc humanitarian
provisions ol thc Convcntion.
6
Tis position has bccn criticizcd by thc UN, thc
!CRC, Statcs and scholars.
Tc !CJ joincd this gcncral linc ol opposition to thc !sracli position by unc
quivocally stating:
thc Fourth Gcncva Convcntion is applicablc in thc Palcstinian tcrritorics
which bclorc thc .6, conict lay to thc cast ol thc Grccn Linc and which,
during that conict, wcrc occupicd by !sracl, thcrc bcing no nccd lor any
cnquiry into thc prccisc prior status ol thosc tcrritorics (para. .c.).
Tc Court rcasoncd that both !sracl and Jordan had raticd thc Fourth Gcncva
Convcntion and arc contracting Partics thcrcto and that, according to thc rst
paragraph ol Articlc a, thc Convcntion applics whcn two conditions arc lulllcd,
namcly that an armcd conict cxists (whcthcr or not a statc ol war has bccn
rccognizcd), and that thc conict has ariscn bctwccn two contracting partics. Tc
!CJ notcd that this intcrprctation rccctcd thc draltcrs intcntion to protcct civil
ians who nd thcmsclvcs, in whatcvcr way, in thc hands ol an occupying Powcr,
rcgardlcss ol thc status ol thc occupicd tcrritorics, that thc Convcntions tra.aux
preparatoires conrm it, and that it was approvcd by thc Statcs partics to thc
Fourth Gcncva Convcntion at thcir Conlcrcncc on . July ., as wcll as by thc
!CRC, thc UN, Gcncral Asscmbly and Sccurity Council.
Tc HCJ statcd in lfei Menashe that thc qucstion ol thc Fourth Gcncva
Convcntions applicability did not arisc in Beit Sourik duc to thc Statcs con
scnt to de facto application ol thc humanitarian provisions ol thc Convcntion.
Rcsponding to thc !CJs conclusion on this issuc, thc HCJ notcd:
Vc arc awarc that thc Advisory pinion ol thc !ntcrnational Court ol Justicc
dctcrmincd that thc Fourth Gcncva Convcntion applics in thc Judca and
Samaria Arca, and that its application is not conditional upon thc willing
ncss ol thc Statc ol !sracl to uphold its provisions. As mcntioncd, sincc thc
Govcrnmcnt ol !sracl acccpts that thc humanitarian aspccts ol thc Fourth
See . 8cnvcnisti, Te International La. of Occupation .c.c (.).
6 For this dcclaration, madc by thc AttorncyGcncral in .,., at a Symposium on
Human Rights hcld at Tcl Aviv Univcrsity, see M. Shamgar, Tc bscrvancc ol
!ntcrnational Law in thc Administcrcd Tcrritorics, . Isr. Y.B. Hum. Fts. a6a, a66
(.,.).
, 8cnvcnisti, supra notc 6, at .c..c. Prol. instcin asscrts that this position is bascd
on dubious lcgal grounds, considcring that thc Fourth Convcntion docs not makc
its applicability conditional on rccognition ol titlcs, Y. instcin, Tc !ntcrnational
Law ol 8clligcrcnt ccupation and Human Rights, Isr. Y.B. Hum. Fts. .c, .c,
(.,).
521 19 Te Separation Fence in the ICJ and the HCJ
Gcncva Convcntion apply in thc arca, wc arc not ol thc opinion that wc must
takc a stand on that issuc in thc pctition bclorc us.
Prolcssor instcin cxamincd thc application ol thc Fourth Gcncva Convcntion
to thc Vcst 8ank in ., lormulating lourtccn points.
8
Apart lrom thosc alrcady
mcntioncd (that thc Convcntion is lully binding on !sracl bccausc it is a con
tracting party and, although dcnying its de jure applicability, !sracl has dccidcd to
act de facto in accordancc with its humanitarian provisions), Prolcssor instcin
adds that:
(iv) Sincc cvcry provision ol thc Convcntion is by dcnition humanitarian
(thc cntirc Convcntion lorming part ol what is usually callcd humanitar
ian law
arc applicablc to thc Vcst 8ank (paras. .....). Howcvcr, thc !CJs rcasoning
with rcgard to application ol thcsc instrumcnts is problcmatic.
As lor thc !CCPR, thc !CJ hcld that it is applicablc in rcspcct ol acts donc
by a Statc in thc cxcrcisc ol its jurisdiction outsidc its own tcrritory, basing its
,a instcin, supra notc ac, at .
, . Krctzmcr, Tc Advisory pinion: Tc Light Trcatmcnt ol !ntcrnational
Humanitarian Law, .J.I.L. , ., n. a (acc).
, instcin, supra notc ac, at .
, a I.L.M. ., (.).
526 Fania Domb
conclusion on Articlc a(.) ol thc !CCPR, according to which cach Statc Party
undcrtakcs to rcspcct and to cnsurc to all individuals within its tcrritory and
subjcct to its jurisdiction thc rights rccognizcd in thc Covcnant. Although
thc ordinary mcaning ol Articlc a(.) indicatcs, prima facie, that a Statc Party is
rcquircd to cnsurc thc rights ol thc Covcnant only to individuals who arc both
within its tcrritory and subjcct to its jurisdiction, thc !CJ rclicd on thc intcrprcta
tion ol this Articlc adoptcd by thc Human Rights Committcc in cascs involving
arrcsts carricd out by Uruguayan agcnts in 8razil or Argcntina
6
and conscation
ol a passport by an Uruguayan consulatc in Gcrmany.
As lor thc !CSCR, thc !CJ hcld that in thc cxcrcisc ol thc powcrs ol an
occupying Statc, !sracl is bound by its provisions and undcr an obligation not to
raisc any obstaclc to thc cxcrcisc ol such rights in thosc clds whcrc compctcncc
has bccn translcrrcd to Palcstinian authoritics (para. ..a).
Givcn that thc !CSCR contains no provision on thc scopc ol its appli
cation, this issuc must bc rcsolvcd by rccoursc to customary law as rccctcd in
Articlc a ol thc \icnna Convcntion on thc Law ol Trcatics: unlcss a dicrcnt
,6 Casc No. a/,, Lpcz 8urgos v. Uruguay, Casc No. 6/,, Cclibcrti dc Casaricgo v.
Uruguay.
,, Casc No. .c6/., Montcro v. Uruguay.
, See M.J. cnnis, Application ol Human Rights Trcatics xtratcrritorially in Timcs
ol Armcd Conict and Military ccupation, .J.I.L. .., .aa.a, (acc).
, Ibid., .a.a.
527 19 Te Separation Fence in the ICJ and the HCJ
intcntion appcars lrom thc trcaty or is othcrwisc cstablishcd, a trcaty is bind
ing upon cach party in rcspcct ol its cntirc tcrritory. Howcvcr, thc !CJ con
cludcd that thc Covcnant applics cxtratcrritorially to thc Vcst 8ank by rclying
on Articlc ., which providcs lor transitional mcasurcs in cascs whcrc a Statc,
whcn bccoming a Party, has not bccn ablc to sccurc in its mctropolitan tcr
ritory or othcr tcrritorics undcr its jurisdiction compulsory primary cducation,
lrcc ol chargc. Yct, it lollows lrom thc tra.aux preparatoires that this Articlc
was intcndcd to cnsurc application ol thc Covcnant to dcpcndcnt tcrritorics ovcr
which thc contracting Statcs cxcrciscd sovcrcignty
8o
and obviously not to arcas
undcr military occupation, ovcr which thc occupying Statc docs not posscss cvcn
onc atom ol sovcrcignty.
8+
!n its conclusion, on application ol thc !CRC to thc ccupicd Palcstinian
Tcrritory, thc !CJ rclicd only on Articlc a, which obligatcs Statcs Partics to
rcspcct and cnsurc thc rights sct lorth in thc Convcntion to cach child within
thcir jurisdiction. Howcvcr, Articlc ol thc !CRC
8:
obligatcs Statcs to cnsurc
thc application ol rulcs ol intcrnational humanitarian law which arc rclcvant to
thc child in accordancc with thcir obligations undcr intcrnational humanitarian
law to protcct thc civilian population in armcd conict. Tus, thc !CRC obvi
ously applics to thc civilian population in thc tcrritory ol thc Statc Party.
8
ii Tc HCJ
As mcntioncd, in lfei Menashe thc HCJ agrccd with thc !CJ on thc applicabil
ity ol human rights convcntions to thc Vcst 8ank (in addition to thc Haguc
Rcgulations and thc Fourth Gcncva Convcntion). Latcr, thc HCJ hcld that it
did not nccd to takc a position on thc issuc ol applicability ol thcsc convcntions
in thc Arca (nor on thc issuc ol thc rclationship bctwccn intcrnational humani
tarian and human rights law) to rcspond to thc pctition bclorc it. All it statcd
on this issuc was that thc military commandcrs authority to cnsurc thc public
ordcr and salcty must bc cxcrciscd taking into account considcrations ol Statc
sccurity, sccurity ol thc army, and thc pcrsonal sccurity ol thosc who arc prcscnt
in thc Arca on thc onc hand, and thc human rights ol thc local Arab population,
on thc othcr (para. a,).
!t lollows that whilc thc !CJ concludcd that human rights convcntions to
which !sracl is a party arc applicablc to thc Vcst 8ank, thc HCJ is prcparcd to
apply thcm only as part ol thc law ol bclligcrcnt occupation, not as an indcpcnd
cnt body ol intcrnational law. Such an approach makcs thc application ol thc
c Ibid., .a.
. As statcd by ppcnhcim, quotcd in instcin, supra notc ac, at .c6.
a n Articlc , see J. Frowcin, Tc Rclationship 8ctwccn Human Rights Rcgimcs
and Rcgimcs ol 8clligcrcnt ccupation, a Isr. Y.B. Hum. Fts. ., ,, n. . (.).
cnnis, supra notc ,, at .a.
528 Fania Domb
human rights rccognizcd thcrcin subjcct to thc rcstriction ol military ncccssity, to
which most humanitarian norms arc subjcct.
8
Howcvcr, in thc accc Kt.iot
8
and
Marab cases
86
thc HCJ cxamincd thc lawlulncss ol thc conditions and pcriods ol
administrativc dctcntion ol Palcstinians during pcration clcnsivc Shicld in
light ol Articlcs .c, and . ol thc !CCPR, in addition to intcrnational humani
tarian law.
iii Commcnts
!t sccms that thc !CJs conclusion on thc applicability ol thc Covcnants and
!CRC to !sracli conduct in thc Vcst 8ank is primarily bascd on thc unusual
circumstanccs ol !sracls prolongcd occupation, as thc !CJ itscll obscrvcd that
thc tcrritorics occupicd by !sracl havc lor ovcr , ycars bccn subjcct to its tcr
ritorial jurisdiction as thc occupying Powcr (para. ..a). !ndccd, application ol
human rights convcntions to thc tcrritorics occupicd by !sracl had prcviously
bccn suggcstcd by 8cnvcnisti,
8
Mcron
88
and Robcrts.
8
Howcvcr, thcsc asscrtions
wcrc raiscd bclorc thc slo proccss, during which !sracl translcrrcd most ol its
powcrs and rcsponsibilitics to thc Palcstinian Authority.
o
!n all mattcrs which
camc undcr thc control ol thc Palcstinian Authority, it is thc Authority which
bcars rcsponsibility lor obscrvancc ol intcrnational human rights, although obvi
ously only thosc rccognizcd undcr customary intcrnational law.
+
E !iolation of Specic Fights of the Palestinians
Tc HCJ notcd in lfei Menashe that both Courts lound that construction ol
thc lcncc rcsultcd in thc inlringcmcnt ol a numbcr ol rights ol thc Palcstinian
inhabitants (para. ,). Howcvcr, whilc thc !CJ invokcd spccic rights undcr intcr
national humanitarian law and thc human rights convcntions, thc HCJ did not
spccily which rights had bccn violatcd.
Y. instcin, Military Ncccssity, Encyclopedia of Public International La. (R.
8crnhardt cd., .,).
H.C. ./ca, ,(.) P.D. c, summary in Isr. Y.B. Hum. Fts. cc (acc).
6 H.C. a/ca, ,(a) P.D. , summary ibid., c,.
, . 8cnvcnisti, Tc Applicability ol Human Rights Convcntions to !sracl and to thc
ccupicd Tcrritorics, a6 Isr. L. Fe.. a, (.a).
T. Mcron, Vcst 8ank and Gaza: Human Rights and Humanitarian Law in thc
Pcriod ol Transition, Isr. Y.B. Hum. Fts. .c6, .. (.,).
Robcrts, supra notc ., at ,a,.
c See instcin, supra notc ac, at et seq.
. F. omb, Tc Gaza and Jcricho Autonomy and Human Rights, a Isr. Y.B. Hum.
Fts. a., a et seq. (.).
529 19 Te Separation Fence in the ICJ and the HCJ
i Tc !CJ
As discusscd, thc !CJ concludcd that thc lcnccs construction violatcd scvcral
spccic provisions ol intcrnational humanitarian law (mainly Articlcs 6 and a
ol thc Haguc Rcgulations and Articlc ol thc Fourth Gcncva Convcntion).
8ascd on its nding rcgarding thc applicability ol human rights convcntions
to thc Vcst 8ank, thc !CJ spccicd thc rights that had bccn violatcd by construc
tion ol thc lcncc (in paras. .a.., and .):
.) !CCPR
:
thc right to privacy (Articlc .,(.)) and thc right to lrccdom ol
movcmcnt (Articlc .a(.)).
a) !CSCR
Tc !CJ obscrvcd that thc routc ol thc lcncc includcd thc grcat major
ity ol thc !sracli scttlcmcnts in thc ccupicd Palcstinian Tcrritory (including
ast Jcrusalcm) (para. ..). As rcgards thcsc scttlcmcnts, thc Court notcd that
Articlc (6) ol thc Fourth Gcncva Convcntion providcs that thc ccupying
Powcr shall not dcport or translcr parts ol its own civilian population into thc
tcrritory it occupics. Tc !CJ intcrprctcd this provision as prohibiting not only
Prol. Lapidoth opincs that as thc !CJ rulcd that all thc scgmcnts ol thc lcncc situatcd
on thc tcrritorics occupicd by !sracl in .6, arc illcgal, without making a distinction
bctwccn thosc that protcct !sracl propcr and thosc that protcct thc scttlcmcnts, thc
discussion ol thc lcgality ol thc scttlcmcnts was not ncccssary, and thus is only an
obiter dictum. See R. Lapidoth, Tc Advisory pinion and thc Jcwish Scttlcmcnts,
Isr. L. Fe.. aa, a (acc).
531 19 Te Separation Fence in the ICJ and the HCJ
dcportations or lorccd translcrs ol populations such as thosc carricd out during
thc Sccond Vorld Var, but any mcasurcs takcn by an occupying Powcr to organ
izc or cncouragc translcrs ol parts ol its own population into thc occupicd tcrri
tory.
6
!t thcn concludcd that thc !sracli scttlcmcnts in thc ccupicd Palcstinian
Tcrritory (including ast Jcrusalcm) havc bccn cstablishcd in brcach ol intcrna
tional law. Tc !CJ also notcd that thc routc choscn lor thc wall givcs cxprcssion
in loco to thc illcgal mcasurcs takcn by !sracl with rcgard to Jcrusalcm and thc
scttlcmcnts, and that thc dcparturc ol Palcstinians lrom thc wcstcrn arcas ol thc
lcncc, couplcd with thc cstablishmcnt ol !sracli scttlcmcnts, tcndcd to altcr thc
dcmographic composition ol thc Vcst 8ank (paras. .aa and .). Tc conclusion
rclatcd to dcmographic changcs is rcgardcd by scholars as thc main rcason lor thc
Courts opinion on thc illcgality ol !sracli scttlcmcnts.
Vith this conclusion, thc !CJ joincd thc position ol ccrtain intcrnational
bodics, Statcs partics to thc . Gcncva Convcntions and many acadcmic writ
crs on thc illcgality ol !sracli scttlcmcnts.
8
ii Rcsponsc ol thc HCJ
!n lfei Menashe, thc HCJ rcspondcd to thc !CJs ruling on thc illcgality ol !sracli
scttlcmcnts and thc construction ol thc lcncc (insolar as thcy wcrc aimcd at pro
tcction ol thc scttlcrs), by making thc lollowing points:
a) Tc military commandcrs authority to cnsurc public ordcr and salcty pur
suant to Articlc ol thc Haguc Rcgulations is dircctcd towards thc pro
tcction ol thc lilc and salcty ol all pcrsons in thc arca undcr bclligcrcnt
occupation.
b) Tcrclorc, thc military commandcr is authorizcd to construct a scparation
lcncc in thc arca lor thc purposc ol dclcnding thc lilc and salcty ol cvcry
pcrson crcatcd in Gods imagc (para. .).
c) vcn il a pcrsons prcscncc in thc arca is illcgal, hc is not outlawcd. Tcrclorc,
it is unncccssary to cxaminc whcthcr !sracli scttlcmcnts arc lcgal or illcgal
undcr intcrnational law.
d) vcn il thc military commandcr actcd contrary to thc law ol bclligcrcnt
occupation whcn hc agrccd to thc cstablishmcnt ol thc scttlcmcnts (an issuc
which is not bclorc thc Court and on which it cxprcsscs no opinion), thc
commandcr is not rclcascd lrom his duty undcr thc law ol bclligcrcnt occu
pation to prcscrvc thc lilc, salcty, and dignity ol cvcry !sracli scttlcr.
6 For a criticism ol this intcrprctation, as contrary to thc wholc spirit ol Articlc ,
dcaling with dcportations and translcr within thc mcaning ol nonvoluntary movc
mcnt ol pcoplc, see Lapidoth, ibid., aa6.
, See Lapidoth, ibid., a, see also Krctzmcr, supra notc ,, at .
Ibid., .
532 Fania Domb
c) !sraclis living in thc arca arc !sracli citizcns, and thc Statc ol !sracl has a
duty to protcct thcir livcs, salcty, and wcll bcing. Tc constitutional rights
which thc !sracli lcgal systcm grants cvcry pcrson in !sracl arc also cnjoycd
by !sraclis living in a tcrritory undcr !sracli bclligcrcnt occupation. Tis is
cspccially truc whcn many ol thosc living in thc arca do so with thc cncour
agcmcnt and blcssing ol thc !sracli govcrnmcnt.
Tc HCJ lurthcr obscrvcd that according to thc . !ntcrim Agrccmcnt thc
qucstion ol thc !sracli scttlcmcnts in thc Arca will bc discusscd in nal status
ncgotiations and that, in thc mcantimc, !sracl bcars rcsponsibility lor thc ovcrall
sccurity ol !sraclis and ol thc scttlcmcnts.
rccmcrgcd
whcn thc US adoptcd thc Ncutrality Act ol ..
8
Undcr thc Act, US allics wcrc
cntitlcd to acquirc important goods on a cashandcarry basis, whilc Gcrmany
and hcr allics wcrc dcnicd that right. Subscqucntly, i.c. bclorc its ocial cntry
into thc Sccond Vorld Var, thc US
Tc uropcan Communitics
had also imposcd an arms cmbargo on !ran in April .c. Tc cmbargo was
rcscindcd altcr thc rclcasc ol thc Amcrican hostagcs.
vcn though it had dcclarcd it was ncutral in thc conict, thc lormcr Sovict
Union rcsumcd arms cxports to !raq altcr a lutilc attcmpt to normalizc rclations
with Tchran.
Howcvcr, in . !raq acquircd matc
rial lor chcmical dclcnsc lrom thc UK. !ranian allcgations that thc UK had also
dclivcrcd chcmical wcapons wcrc strongly rcjcctcd by thc 8ritish Govcrnmcnt.
8
!n ctobcr . thc 8ritish Govcrnmcnt publishcd guidclincs lor cxports to !ran
and to !raq. vcn though it maintaincd thc prohibition on lcthal cquipmcnt,
thc Govcrnmcnt statcd it would ncvcrthclcss attcmpt to lulll cxisting contracts
and obligations. !t addcd that it would not approvc ol ordcrs lor any dclcncc
cquipmcnt which in HM Govcrnmcnts vicw, would signicantly cnhancc thc
capability ol cithcr sidc to prolong or cxaccrbatc thc conict.
Vith rcgard to an
cxport crcdits agrccmcnt signcd on Scptcmbcr a, .,, thc 8ritish Govcrnmcnt
statcd that it would not contributc to !raqs war cort as it only covcrcd cngincs,
scrviccs, mcdical and othcr humanitarian goods.
o
uring thc Falklands/Malvinas conict, thc US did not charactcrizc its
position as nonbclligcrcnt. Altcr US Sccrctary ol Statc Haig tricd in vain to
mcdiatc bctwccn thc Unitcd Kingdom and Argcntina, thc US Administration
announccd it would assist Grcat 8ritain cconomically and militarily.
+
n April
a, .a, thc Scnatc dcclarcd that thc Unitcd Statcs cannot stay ncutral. n
Tc Rcagan Administration also issucd a liccnsc pcrmitting thc cxport ol six Lockheed
L-zcc aircralt and, latcr, ol six small jcts. Cl. F.. Boyle (supra notc a), at , ct scq.
B.. Boc.ek (supra notc a) at a6, F.. Boyle (supra notc a), at ,c ct scq.
Cl. S!PR! Ycarbook, at a, ct scq. (Stockholm .,).
6 M.H. m.acost, U.S. Sovict Rclations: Tcsting Gorbachcvs Ncw Tinking, ,
cpt. ol Statc 8ullctin 6 ct scq., (Scptcmbcr .,).
, Cl. a 8ritish Ycar 8ook ol !ntcrnational Law ac (..), , (.a), , (.),
, , (.), 6, (.), ,, 6 (.6), , 6 (.,).
Cl. 8ritish Ycar 8ook ol !ntcrnational Law (.).
Cl. 6 8ritish Ycar 8ook ol !ntcrnational Law (.), ,, 6 (.6), , 6
(.,).
c Cl. . GioiaN. Fon.itti (supra notc a), at ac, n. ,.
. Cl. H.S. Le.ie (supra notc a) at , ct scq.
551 20 Bene.olent Tird States in International rmed Conicts
May , .a, thc Housc ol Rcprcscntativcs issucd a similar dcclaration and assurcd
Grcat 8ritain ol lull diplomatic support |...| in its cort to uphold thc rulc ol
law. Grcat 8ritain rcccivcd logistical and opcrational assistancc lrom thc US
during thc conict. Although thc 8ritish Govcrnmcnt rcjcctcd Argcntinc allc
gations that 8ritains victory was duc mainly to massivc military assistancc,
:
it is
bcyond doubt that US assistancc compriscd:
!t also madc
KC-z acrial tankcrs availablc to 8ritain, cvcn though thcsc wcrc ncvcr scnt
to thc South Atlantic. !nstcad, thc RAF uscd its own KC-zs lor midair
rclucling of !ulcan bombcrs making thc ,ccmilc trip lrom Asccnsion to
thc Falklands, whilc US plancs in uropc wcrc rcassigncd to 8ritish NAT
dutics.
mmunition. Tc US sold an unspccicd quantity ol acmm shclls and sup
plicd sonarcquippcd buoys lor usc in antisubmarinc warlarc. !t is not, how
cvcr, clcar whcthcr any ol this cquipmcnt was cvcr uscd on thc islands.
Missiles. Tc US sold about zcc IM-,L Side.inder missilcs. l thc a,
Side.inders rcd lrom Harriers during thc war, a scorcd hits. Tcsc, how
cvcr, wcrc probably 8ritish missilcs, thc U.S. supplicd Side.inders wcrc
apparcntly uscd only to rcplcnish invcntorics in 8ritain. Highly ccctivc
lascr targct indicators lor 8ritish ground lorccs and a radar systcm lor thc
Royal Navys Sea.olf SAMs wcrc also supplicd.
Intelligence and Communications. As a NAT ally, 8ritain always had rcgu
lar acccss to thc U.S. built clcnsc Satcllitc Communications Systcm that
rclays cncryptcd mcssagcs around thc world. Routinc inlormation lrom US
mctcorological satcllitcs was also availablc, although thc satcllitcs ccctivc
ncss was scvcrcly limitcd by bad wcathcr ovcr thc South Atlantic.
cspitc thc assistancc, a 8ritish rcqucst lor an undiscloscd numbcr ol US
AVACSs was rcjcctcd on thc grounds that Amcrican scrviccmcn, who would
havc had to man thc aircralt, should not gct involvcd in thc conict.
!t should also bc notcd that thc . Gcncva Convcntions and thc .,, First
Additional Protocol makc a distinction bctwccn ncutral and Statcs not partics
a According to Time Maga.ine a 8ritish ocial statcd: All thcsc claims that U.S.
tcchnology won thc Falklands war lor 8ritain arc nonscnsc. !t playcd a part, and wc
arc gratclul lor that, but it was not thc dccisivc clcmcnt in our victory. Scc Time
Maga.ine ol Junc a, .a, Spccial Scction: Just How Much id thc U.S. hclp:.
Ibid.
Tc usc ol thc air basc had bccn agrccd on in thc trcaty ol August a, .6a on
thc Usc ol Vidcawakc Aircld in Asccnsion !sland by Unitcd Kingdom Military
Aircralt (. UST ..,, T!AS ., UNTS .,,).
552 !ol Heintschel .on Heinegg
to thc conict.
!l Statcs arc cntitlcd to militarily assist a victim ol aggrcssion by activcly joining
in thc hostilitics, thcn a fortiori thcy must bc cntitlcd to distinguish bctwccn thc
aggrcssor and assist thc allcgcd victim by mcans short ol war.
Somc authors rclusc to rccognizc thc conccpt ol nonbclligcrcncy by
maintaining that, undcr thc UN systcm, Statcs arc not cntitlcd to autonomously
dctcrminc that aggrcssion has occurrcd.
8
Howcvcr, thc Sccurity Councils rcspon
sibility lor intcrnational pcacc and sccurity docs not cxcludc mcmbcr Statcs right
to indcpcndcntly cvaluatc thc lcgality ol usc ol lorcc il thc Council is unablc
to act undcr Chaptcr \!!.
Statc practicc sincc . thus cannot bc rclicd on to |provc| that a ncw statc
ol nonbclligcrcncy has cmcrgcd as a conccpt ol law. !t would bc all too casy to
avoid dutics ol ncutrality by just dcclaring a dicrcnt status.
!t is not surprising
that thcy havc rcpcatcdly tricd to avoid or ignorc thc law ol ncutrality or to jus
tily thcir conduct by rclcrcncc to a status ol nonbclligcrcncy.
6o
!l, howcvcr, as
thc casc ol thc Arab Statcs dcmonstratcs,
6+
thc aggricvcd bclligcrcnt disposcs ol
thc ncccssary military or cconomic mcans to cnlorcc traditional ncutrality rulcs,
nonbclligcrcnts will most oltcn rcturn to strict ncutrality.
6:
!n thc rcmaining
cascs thc bcncvolcnt ncutrals wcrc simply lucky that thcir violations ol thc law
wcnt unpunishcd.
!n contrast to thc cra in which a gcncrally unlimitcd right to rcsort to war
cxistcd, today it is morc dicult to accommodatc thc dichotomy ol bclligcrcncy
, San Rcmo Manual on !ntcrnational Law Applicablc to Armcd Conicts at Sca,
availablc at: http://www.icrc.org. Scc also San Rcmo Manual on !ntcrnational Law
Applicablc to Armcd Conict at Sca (cd. by L. Dos.ald-Beck, Cambridgc .).
ICFC, Commcntary on thc Additional Protocols ol Junc z,,, to thc Gcncva
Convcntions ol .a August ., MN . ct scq. (Gcncva .,), M. 8othc, Ncutrality
in Naval Varlarc, in: Humanitarian Law ol Armcd Conict Challcngcs Ahcad,
ssays in Honour ol Frits Kalshovcn, ,c, at c ct scq. (cd. by A.!.M. clisscn/
G.J. Tanja, ordrccht. ..).
Castren statcs: !t is advantagcous lor third Statcs not to bc lorccd to apply rulcs ol
ncutrality, which only scrvc to rcstrict commcrcial rclations bctwccn thcsc Statcs and
thcir citizcns on thc onc hand and conicting Statcs and othcr ncutral Statcs on thc
othcr, without, howcvcr, conlcrring any rcal additional bcncts, E. Castren (supra
notc c), at .
6c Cl. P.M. Norton (supra notc a, at a ct scq., scc also K. Zemanek, Tc Chaotic
Status ol thc Laws ol Ncutrality, in: !m icnst an dcr Gcmcinschalt, Fcstschrilt lur
Dietrich Schindler zum 6, Gcburtstag, , at 6 (cd. by !. Haller. Kol.G.
MullerD. Turer, 8ascl/Franklurt .).
6. Cl. P.M. Norton (supra notc a), at c,.
6a uring thc Yom Kippur Var (.,) many Vcstcrn uropcan Statcs dcnicd thc U.S.
usc ol its military bascs lor thc purposc ol assisting !sracl by air, as wcll as usc ol
thcir national airspacc. n ctobcr a6, ., thc !sracli mcrchant vcsscl Palmah had
to lcavc thc Gcrman port ol 8rcmcrhavcn without thc military cquipmcnt ol U.S.
origin it was to takc to !sracl. Cl. F Ottmuller (supra notc a), at a ct scq., P.M.
Norton (supra notc a), at a ct scq.
555 20 Bene.olent Tird States in International rmed Conicts
and ncutrality.
6
Undcr thc UN Chartcr, violations ol thc law ol ncutrality cannot,
in principlc, bc countcrcd by rcsort to armcd lorcc unlcss thc violations constitutc
armcd attacks within thc mcaning ol Articlc .. !t may bc said that thc modcrn
jus ad bellum which govcrns thc rclationship bctwccn bclligcrcnts and Statcs not
participating in a conict has contributcd to third Statc rcadincss to assist onc
ol thc partics as il thcrc wcrc no armcd conict at all. cspitc thc impaticncc
that thc intcrnational customary lawmaking proccss sccms to gcncratc, such
acts should not bc hastily takcn as sucicnt cvidcncc ol a corrcsponding rulc ol
customary intcrnational law. Tcy should, instcad, bc charactcrizcd as what thcy
arc: violations ol thc law ol ncutrality. Hcncc, as a mattcr ol lcgal principlc and
in vicw ol Statc practicc, a lcgal status ol nonbclligcrcncy has to bc rcjcctcd.
6
8riggss opinion, cnunciatcd morc than sixty ycars ago, still holds truc:
!ntcrnational law rccognizcs no such thing as thc socallcd status ol nonbcl
ligcrcncy. Nonbclligcrcncy is in rcality only a cuphcmism dcsigncd to covcr
violations ol intcrnational law in thc cld ol ncutral obligations.
6
!t should bc cmphasizcd that proponcnts ol nonbclligcrcncy rccognizc that
thcir position prcscnts considcrablc dicultics lor adhcring Statcs.
66
Vhilc a
bcncvolcnt Statc may justily dcviating lrom thc law ol ncutrality by claiming
to cnjoy a spccial lcgal status, thc aggricvcd bclligcrcnt is not obligcd to rccognizc
6 Cl. Ph.C. Jessup, AJ!L .c, at .cc (.), Q. !right, AJ!L, .., at ca
(.c).
6 Many intcrnational lawycrs considcr nonbclligcrcncy to bc a mcrcly political
status. Cl. H. Meyro.it., Lc principc dc lgalit dcs bclligrants dcvant lc droit
dc la gucrrc, at p. 6 ct scq. (Paris .,c), F.L. Bindschedler, ic Ncutralitat im
modcrncn \olkcrrccht, in ., Zcitschrilt lur auslandischcs ocntlichcs Rccht und
\olkcrrccht .,, at a6 (.6/,), F. Dek, Ncutrality Rcvisitcd, in: Transnational Law
in a Changing Socicty, ssays in Honour ol Philip C. Jessup, .,., at . (Ncw
York .,a), !. Seidl-Hohen.eldern (supra notc ), at 6ca ct scq., M.-F. FuretL.-C.
Martine.H. Dorandeu, La gucrrc ct lc droit, at (Paris .,).
6 H.!. Briggs (supra notc .a), AJ!L 6,, 6 n. a (.c). Scc also Bothe who
statcs: Unncutral support lor a bclligcrcnt party has bccn and still is a violation ol
thc law ol ncutrality. !t givcs risc to a right ol rcprisal lor thc bclligcrcnt which is
acctcd by this violation, M. Bothe (supra notc ), at ac,.
66 . Gioia (supra notc ac), at .cc admits: !ndccd, cvcn il an attitudc ol nonbcllig
crcncy is not considcrcd as constituting, per se, a violation ol intcrnational law, thc
aggricvcd bclligcrcnt might pcrccivc thc bchaviour ol a nonbclligcrcnt Statc as
amounting, in ccrtain circumstanccs, to complicity with thc aggrcssor: this may bc
thc casc, in particular, whcrc a nonbclligcrcnt Statc supplics thc cncmy with arms
or war matcrials, or whcrc it grants loans or subsidics to thc cncmy. O. Bring (supra
notc ac), at a, adds: Sincc nonbclligcrcnts could bc cxpcctcd to dcviatc lrom thc
law ol ncutrality, thcy cannot rcasonably cxpcct to rcccivc all thc protcction that
ows lrom it.
556 !ol Heintschel .on Heinegg
it.
6
Tc aggricvcd bclligcrcnt will havc good rcason to claim that thc bcncvo
lcnt ncutral did not comply with thc dutics ol a ncutral and will bc cntitlcd to
rcsort to countcrmcasurcs. As thcrc is no duty ol acquicsccncc by thc aggricvcd
bclligcrcnt, thc dicrcncc bctwccn bcncvolcnt and strict ncutrals is countcr
productivc. Tc rclationship bctwccn a bcncvolcnt ncutral and an aggricvcd
bclligcrcnt rcmains govcrncd by thc law ol ncutrality il thcrc is no authorita
tivc dctcrmination ol rcsponsibility lor aggrcssion by thc Sccurity Council. Tus,
along with thc jus ad bellum, it is also thc law ol ncutrality that dctcrmincs thc
mcasurcs that may bc takcn by thc bclligcrcnt or thc ncutral. As statcd by a com
mcntator: although thc nonbclligcrcnt may discriminatc opcnly against onc
ol thc bclligcrcnts (and thcrcby lurnish thc lattcr with adcquatc causc lor taking
rcprisals), it ncvcrthclcss rctains a ncutral status so long as it docs not cntcr into
thc hostilitics.
68
II Iaw of Neutrality: Applicability
Although thc law ol ncutrality has not bccn dcrogatcd or supplcmcntcd by an
intcrmcdiatc lcgal status, its scopc ol applicability is lar lrom scttlcd. Vhilc
somc maintain that ncutral obligations arisc only in a statc ol war, othcrs claim
that applicability dcpcnds on a lormal dcclaration by a ncutral Statc. Still othcrs
bclicvc that ncutrality law is applicablc in cvcry intcrnational armcd conict, at
lcast whcn thc conict is charactcrizcd by intcnsc hostilitics ol a ccrtain dura
tion.
No Derogation of the La. of Neutrality
Tcrc is widcsprcad agrccmcnt that thcrc is no longcr room lor application ol
ncutrality law il thc Sccurity Council, acting undcr Chaptcr \!! ol thc Chartcr,
has authoritativcly idcnticd an aggrcssor Statc.
6
Vhilc thc prcscnt author
6, F.!. Tucker (supra notc 6), at . n. : !n lact, it would sccm that what writcrs
actually havc in mind whcn thcy dcclarc that thc traditional law docs not rccognizc
a condition ol nonbclligcrcncy is that this law docs not grant ncutral statcs a right
to dcpart lrom thc dutics othcrwisc imposcd upon nonparticipants, a right in thc
scnsc that thc injurcd bclligcrcnt is obligcd to pcrmit thcsc acts and to rclrain lrom
taking rcprisals.
6 Ibid. at . n. and a.
6 IL, Hclsinki Principlcs on thc Law ol Maritimc Ncutrality (supra notc 6), Principlc
..a: || !n particular, no Statc may rcly upon thc Principlcs statcd hcrcin in ordcr
to cvadc obligations laid upon it in pursuancc ol a binding dccision ol thc Sccurity
Council. San Rcmo Manual (supra notc ,), para. ,: Notwithstanding any rulc in
this documcnt or clscwhcrc on thc law ol ncutrality, whcrc thc Sccurity Council,
acting in accordancc with its powcrs undcr Chaptcr \!! ol thc Chartcr ol thc Unitcd
Nations, has idcnticd onc or morc partics to an armcd conict as rcsponsiblc lor
rcsorting to lorcc in violation ol intcrnational law, ncutral Statcs: (a) arc bound not
557 20 Bene.olent Tird States in International rmed Conicts
sharcs this vicw, it should not bc ovcrlookcd that thc Council rclcrs to thc con
ditions laid down in Chartcr Articlc only in thc most gcncral tcrms. \cry
oltcn it will just statc that it is acting undcr Chaptcr \!!. !n vicw ol thc cnsu
ing lack ol authoritativc dctcrmination ol thc aggrcssor/wrongdocr it may not
bc clcar which party to an intcrnational armcd conict rcsortcd to usc ol lorcc
in violation ol thc jus ad bellum, particularly il both sidcs claim to bc acting in
sclldclcnsc.
o
Tc unccrtainty will bc cvcn grcatcr whcrc thc Sccurity Council is
inactivc, which, as is gcncrally known, happcns lrom timc to timc. Hcncc, thc law
ol ncutrality may havc bccn modicd by thc UN Chartcr, but it has ccrtainly not
bccomc obsolctc. A UN mcmbcr Statc is prohibitcd lrom taking a ncutral stancc
only il thc Sccurity Council has authoritativcly idcnticd thc aggrcssor or il it
has dccidcd on cnlorccmcnt mcasurcs undcr Chaptcr \!!.
+
8ut cvcn thcn thc
Sccurity Council may, in thcory at lcast, absolvc a mcmbcr Statc lrom its dutics
undcr thc Chartcr.
:
Post., third Statcs havc rclraincd in practicc lrom charactcrizing onc ol
thc partics to an intcrnational armcd conict as an aggrcssor.
B pplicability Rationc Matcriac ct Tcmporis
Vhilc Statc practicc indircctly provcs thc continuing validity ol thc law ol ncu
trality, thcrc is no conscnsus as to whcn that body ol law applics. Not surprisingly,
thc law ol ncutrality is paid lip scrvicc in situations that qualily as a statc ol war.
No onc sccms to doubt that in a war strictu sensu all nonbclligcrcnt Statcs arc
automatically bound by thc dutics ol abstcntion and impartiality providcd lor in
Haguc Convcntions \ and X!!! ol .c, and thc corrcsponding principlcs and
rulcs ol customary intcrnational law.
paragraph ..
ol which rcads:
!n considcring thc rulcs sct out in this chaptcr, it is ncccssary to bcar in mind
at all timcs onc point ol ccntral importancc, namcly that thc conduct ol armcd
conict at sca is subjcct to thc limitations imposcd by thc UN Chartcr on all
usc ol lorcc. nc particularly important aspcct ol thosc limitations is that cvcn
whcn rcsort to lorcc is justicd, it should not cxcccd what is ncccssary and pro
portionatc to thc achicvcmcnt ol thc goal lor which lorcc may bc uscd. !n a
conict ol limitcd scopc, this may mcan that a bclligcrcnt statc is constraincd,
to a grcatcr cxtcnt than thc rulcs sct out in thc prcscnt chaptcr might suggcst,
in thc action that it may lawlully takc against thc shipping or aircralt ol statcs
not involvcd in thc conict.
!l thc UK position corrcctly rcccts customary intcrnational law, thc admissibil
ity ol bclligcrcnt intcrlcrcncc with ncutral tradc would havc to bc cvaluatcd pri
marily in light ol thc right ol sclldclcnsc and only sccondarily in light ol thc law
ol ncutrality. Vhilc somc may considcr thc 8ritish position attractivc bccausc it
scts up an additional lcgal rcquircmcnt,