Controlling The Use of Force A Role For Human Rights Norms in Contemporary Armed Conflict

Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict Author(s): Kenneth Watkin
Source: The American Journal of International Law, Vol. 98, No. 1 (Jan., 2004), pp. 1-34 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/3139252 Accessed: 31/10/2010 09:42
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CONTROLLING THE USE OF FORCE:A ROLE FOR HUMAN RIGHTS ARMED CONFLICT NORMS IN CONTEMPORARY
By Kenneth Watkin*
U.S.soldiersfiredon themwithoutprovocation, killingsevenAccordingto protesters, the to teen peopleandwoundingmorethanseventy. According the U.S.military, soldiers returnedprecisionfire on gunmen in the crowdwho were shooting at them.
-Human Rights Watch
The twenty-firstcentury has witnessed significant challenges to the traditional view that international humanitarian law exclusively regulates the use of force in armed conflict. The death and destruction caused on September 11, 2001, reflect the increasinglycomplex nature of modern conflict. Groups that rely on the benefits of globalization and technological advances to conduct operations across international borders are threatening the maintenance of international order. Their tools of violence range from conventional weapons of war to more modern weapons of mass destruction' and potentially asymmetric "cyberattacks."2 At the same time, the proliferation of internal armed conflicts points to similarlycomplex security challenges within nation-states. These conflicts have not alwaysattracted the same amount of publicity as transnational terrorism,which does not, however, make their threat to international and human securityany less real. In these situations, death and human suffering means, such as antipersonnel largely emanate from readily available,but relatively"low-tech" mines, the ubiquitous AK-47 rifle,3 and even machetes and transistor radios.4 Increasingly, the use of force during armed conflict is being assessed through the perspective of human rights law,as well as under international humanitarian law.This article explores the interface between these two normative regimes and its impact on efforts to control the use of deadly force. The analysiswill outline three waysthat these two systems of law interact. First,it demonstrates that the unique threat posed by nonstate actors, combined with the lack
*Colonel and DeputyJudge Advocate General/Operations, Canadian Forces. This article is based on a paper first presented at the New Wars, New Laws?Conference held at Cornell Law School inJune 2003 while the author was a visiting fellow in the Human Rights Program, Harvard Law School. The opinions expressed are those of the author and do not necessarily reflect the views of the government of Canada, the Canadian Forces, or the Office of the Judge Advocate General. 1 Weapons of mass destruction are identified as "achemical, biological, radiological, or nuclear weapon, or high9 (Feb. 2003), yield explosives"in the NATIONALSTRATEGYFORCOMBATINGTERRORISM at<http://www.whitehouse.gov/ news/releases/2003/02/counter_terrorism/counter_terrorism_strategy.pdf>. 2 NATIONALSTRATEGY FOR HOMELANDSECURITY (July 2002), at <http://www.whitehouse.gov/homeland/ 9 book/sect2-1 .pdf> (indicating that "[t] errorist groups are already exploiting new information technology and the Internet to plan attacks, raise funds, spread propaganda, collect information, and communicate securely"). "Asymmetric warfare"has been defined as fighting for different ends, or in different ways, or with different means from those of one's opponent. MarkClodfelter, Airpower Versus A AsymmetricEnemies:FrameworkforEvaluatingEffectiveness, 16 AIR& SPACE 37, POWERJ. 37 (2002). 3 Mass-produced weapons such as the AK-47 and similar small arms stand out as late-twentieth-century symbols of warfare by the "people." AsJohn Keegan notes, the industrialization of modern society militarized the populations of both rich and poor states.JOHNKEEGAN,A HISTORY WARFARE (Vintage Books 1994) (1993). OF 57 4 Not all killing results from modern weapons. The genocide of eight hundred thousand Rwandans was carried out largely by local populations, who were "spurred on by their radio station RTLM, spewing racist propaganda, Romeo A. Dallaire, TheEndofInnocence: Rwanda1994, exciting Hutus to kill all Tutsis as well as elements of UNAMIR"
in HARD CHOICES:MORALDILEMMAS HUMANITARIAN IN INTERVENTION 78 (Jonathan 71, Moore ed., 1998).
THE AMERICANJOURNALOF INTERNATIONALLAW
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of a consensus on the legal categorization of conflict, creates conditions in which the criminal law enforcement and armed conflict paradigms overlap. This overlap, in turn, directly affects the applicability of human rights law, which is most commonly associated with law enforcement, and humanitarian law, which applies during armed conflict. As a result, force may be used in situations where it cannot easily be delineated which of the two normative frameworks governs. Second, by highlighting areasof commonalityand difference, the two normative frameworks will be seen to share common values and a close connection to the development of the nationstate. Each regime has developed along a unique path shaped by the different roles a state performs in maintaining external and internal order. For example, the nature and scale of violence in interstate conflict has had a distinct impact on how force is controlled under international humanitarian law. In contrast, the internal use of force is normally dealt with under a human rights paradigm. Notwithstanding these differences, both normative regimes may be brought into play simultaneously because of the nature of the violence that may be encountered during armed conflict. Such interface may occur during internal armed conflict and states of emergency, belligerent occupation, and global terrorism. Third, this article examines the unique attributes that the human rights accountability framework brings to the effort to control the use of force. That highly developed system of accountability has much to offer in terms of limiting the impact of some forms of violence, especially when compared to the still evolving accountability framework under international humanitarian law. The pressure to apply human rights principles arises in particular during situations more closely associated with governance than direct combat with an enemy force. However, the successful recourse to human rights law in armed conflict is likely to require an adjustment in the application of those accountability principles. Principles developed for domestic law enforcement may not be readily applicable to the different and often more complex circumstances under which force is applied during armed conflict. It is the unique interface between these two normative frameworks that challenges the traditional idea that the use of force in armed conflict is governed exclusively by international humanitarian law. Ultimately, this article argues that the issue should not be the exclusive application of either framework but, rather, that appropriate principles should be applied to ensure that there are no gaps in humanitarian protection.
I. A COMPLEX LEGAL ENVIRONMENT
of of Categorization Conflictin the Context Terrorism The complexity of the regulation of armed conflict in the twenty-firstcentury is not always evident in the relevant terminology. For example, the normative frameworksfor regulating life and death are often discussed in terms of two distinct spheres of activity, "armed conflict"and "peace."While international humanitarian law applies to international and noninternational armed conflict and international human rights principles primarilyaffect governance in peacetime, especially law enforcement, the relationship between the two is much more complex than this simple division of responsibilities implies. For example, human rights law continues to be applicable during armed conflict, although, as the International Court ofJustice decided in the NuclearWeapons Advisory Opinion,5 whether there has been an arbitrarydeprivation of the right to life is determined by international humanitarian law acting as lex specialis.6
5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJREP.226 (July 8).
Id., para. 25.
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CONTROLLING THE USE OF FORCE:A ROLE FOR HUMAN RIGHTS NORMS
The events of September 11 have focused attention on the potential overlap between international conflict, noninternational armed conflict, and law enforcement. Further, the disturbing level of violence that nonstate actors can inflict has caused significant uncertainty about the suitability of situating criminal acts related to terrorism within the purview of law enforcement. The following discussion highlights the present lack of consensus on the categorization of contemporary nonstate violence and thus sets the scene for analyzing the areas of overlap in the normative frameworks that may govern the use of force. The point of departure for the application of international humanitarian law is whether an armed conflict exists. The traditional view of armed conflict is perhaps most clearly represented in the narrowdejure concept of "war" a conflict between states.7Since World War II, as the term "international armed conflict" has been used to describe those interstate struggles.8 Its use reflects the increasingly limited scope that has been assigned to the dejure concept of "war," although the term has recently reentered the lexicon of conflict in a de facto and often rhetoricalsense.9The immediate post-World WarII recognition of a broader concept of armed conflict is also reflected in the term "armedconflict not of an international character"found in common Article 3 of the 1949 Geneva Conventions.10 The difficulty in assessing whether attacks by nonstate actors with global reach constitute an international armed conflict can be seen in the wide varietyof opinions expressed by legal scholars on the invocation of the right to self-defense in response to the attacks of September 11. The legal interpretations of the basis for the conflict with Al Qaeda often rely on mulSome authors consider tiple interrelated rationales that add to the complexity of the analysis."1 the right of self-defense to be based on the connection between Al Qaeda and the Taliban as the de facto rulers of Afghanistan.'2 Some view Al Qaeda's actions as constituting significant attacks in their own right.13 Others look to the involvement of the Security Council to
7 SeeAntonio Cassese, Terrorism AlsoDisrupting Is SomeCrucial Law, 12 EUR.J.INT'L Legal Categories ofInternational L. 993 (2001 );Joan Fitzpatrick,Jurisdiction MilitaryCommissions theAmbiguous and Waron Terrorism, AJIL345, 96 of 348 (2002). 8 As Leslie Green notes, the classic position is that international law is concerned only with relations between states.As a result, conflict between stateswaswhat that law regulated. L. C. GREEN,THE CONTEMPORARYLAW OFARMED CONFLICT54-55 (2d ed. 2000). This view is reflected in Prosecutor v. Tadic, AppealsJudgment, No. IT-94-1-A, para. 84 (July 15, 1999) (holding that "[i] t is indisputable that an armed conflict is international if it takes place between two or more States"). Decisions of the International Criminal Tribunal for the Former Yugoslavia are available online at <http://www.un.org/icty>. 9The use of the term "armedconflict" resulted from the recognition that the application of international humanitarian law should not be dependent upon formalities associated with war. INTERNATIONAL COMMITTEE OFTHERED GENEVA CONVENTION RELATIVE THE TO PROTECTION CIVILIAN OF PERSONS TIME WAR: IN OF CROSS, COMMENTARY, Art. 2, at 17 (Jean Pictet gen. ed., 1958), availableat <http://www.icrc.org> [hereinafter ICRCCOMMENTARY]. The more limited use of the term "war" linked to efforts in the first half of the twentieth century to eliminate war as was a means to resolve disputes between states. Hence the dejure concept of war being of limited use in the discourse for regulating in belloaction. However, "characterising a conflict as war has considerable factual significance." & L.Q. 283, 294 (1987). Christopher Greenwood, The Concept Warin ModernInternationalLaw, 36 INT'L COMP. of 10Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 3, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III]. 11 For example, Sean Murphy gives six reasons for concluding that the attacks of September 11 were an "armed attack":the scale of the incidents was akin to that of a military attack; the United States immediately perceived the incidents as akin to a military attack; the U.S. interpretation was largely accepted by other nations; the incidents could properly be viewed as both a criminal act and an armed attack; there was prior state practice supporting the view that terrorist bombings could constitute an armed attack;and "the fact that the incidents were not undertaken directly by a foreign government cannot be viewed as disqualifying them from constituting an 'armed attack.' " Sean D. Murphy, Terrorism the Concept "Armed and Attack"in Article51 of the U.N. Charter, HARV. 43 INT'L of L.J. 41, 47-50 (2002). 12 THE GREAT TERRORWAR 101 (2003); Davis Brown, UseofForce RICHARD FALK, Against Terrorism After September and 11th: StateResponsibility, & L. INT'L COMP. 1, 6 (2003); Cassese, supra Self-Defense Other Responses,11 CARDOZOJ. note 7, at 999; Christopher Greenwood, InternationalLaw and the 'WarAgainst Terrorism, INT'L '78 AFF.301, 314 (2002); seealso Fitzpatrick, supranote 7, at 349 (indicating that "[t]he attacks of September 11, if attributable to a foreign state linked to Al Qaeda, clearly could give rise to an international armed conflict between the United States and the sponsor state"). 13 Murphy, supranote 11, at 47. Under the heading "Afghanistan as Self-Defense," Richard Falk also refers to Al Qaeda as having inflicted more harm and trauma than any state (Pearl Harbor is viewed as remotely comparable),
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while still others deem terrorist groups with global reach as generally provide legitimacy,14 amenable to being targeted with a military response.l5 It has also been suggested that the operations in Afghanistan constituted an intervention in an internal armed conflict16or the internationalization of a civil wAr.17 Importantly,the response to terrorismhas not been viewed solely in the context of an armed conflict. Some have found such threats to be more amenable to a law enforcement response18 and urged that, "ratherthan viewing the attacksof September 11th as acts of war, they should have been treated as international crimes for which the perpetratorsshould be apprehended, tried and, if convicted, punished."19 The threshold question of whether an act of terrorism can be understood as engagement in international armed conflict inevitablyinvolves consideration of the numerous terms relating to the use of force in the United Nations Charter:the use or threat of force, breach of the peace, act of aggression, and armed attack. However, one finds a lack of consensus on how these terms interact in determining whether an armed conflict exists.20 Similarly,determining the point at which terrorist attacks constitute an armed attack is complicated by the inability of international legal scholars to agree on the interpretation of the International Court of Activitiesin and Against Nicaragua.21 Justice's 1986 Judgment in Militaryand Paramilitary The view of the Court in the Nicaraguacase that the use of force could be divided into two categories, "most grave" (those constituting armed attacks) and "less grave,"and its finding of a distinction between armed attacksand mere frontier incidents, appear to have split writers One group sees the Court's view as narrow and unduly formalistic, so "into two camps."22
and then concludes that "[i]n such circumstances stretching the international law doctrine of self-defense to include a non-state actor seemed reasonable and necessary."FALK, supranote 12, at 102. CherifBassiouni observes that international humanitarian law is binding on both state and insurgent or revolutionary forces and then states: "AlQaeda's attacksagainst the United States on September 11 and earlier fall within this paradigm: they are subject to the strictures of international humanitarian law, regardless of the legitimacy of their perpetrators' cause." Subsequently, he goes on to discuss the role of Afghanistan as a "base of operation." M. Cherif Bassiouni, Legal Control INT'L 83, 100 (2002); seealsoBrown, supranote 43 A Assessment, HARV. of InternationalTerrorism: Policy-Oriented LJ. 12, at 24-29. 14 Cassese, STUD. and supranote 7, at 1000; seealsoLeila Nadya Sadat, Terrorism theRuleofLaw, 3 WASH. U. GLOBAL L. REV.135 (2004). 15 Brown, supranote 12, at 24-25 (stating:"Ifa non-state actor such as a terroristorganization commits aggression against a state, and the aggression is of sufficient scale and effect to amount to an armed attack, then the terrorist organization itself-notwithstanding its non-combatant status-has committed an armed attack against the state.") (footnote omitted)). 16Fitzpatrick, supranote 7, at 350. 17 According to Adam Roberts, the warin Afghanistancould best be classifiedunder the informal category of"internationalised civil war,"in which "the rules pertaining to both international and civil warsmay be applicable in differand Armed Force theLaws of War,SURVIVAL, ent aspects and phases of the conflict." Adam Roberts, Counter-Terrorism, Spring 2002, at 7, 16. 18 The Anthony Dworkin, RevisingtheLaw of WartoAccountforTerrorism: CaseAgainst UpdatingtheGenevaConvenCOMMENTARY 4,2003), HumanRights, FINDLAW'SWRIT: (Feb. tions,on theGroundThatChangesAreLikely toDamage Only at<http://writ.news.findlaw.com/commentary/20030204_dworkin.html>. Since international lawdoes not recognize war with groups like Al Qaeda, Dworkin suggests that one solution, which he admits is not likely to gain U.S. support, is to limit the notion of armed conflict to interstate and civil wars, and use law enforcement means to pursue Al Qaeda as a group of international terrorists. 19 Sadat, supra note 14, at 136. ORDER IN NEW INTERNATIONAL ANDFORCE THE in 20Rein Mullerson, Self-Defense the Contemporary World,in LAW 13, 16 (Lori Fisler Damrosch & DavidJ. Scheffer eds., 1991). Greenwood notes that "the categories of threat to the peace and armed attack are not mutually exclusive"in arguing that the characterizationof the September 11 attacks as threats to the peace and international crimes does not mean "thatthey cannot also amount to an armed attack." and Force,14 EUR.J. Greenwood, supra note 12, at 307. But seeMichael Bothe, Terrorism the Legalityof Pre-emptive INT'L 227, 229 (2003) (arguing that" 'armed attack' in the sense of Article 51 is an actual armed attack,... not L. one which is only threatened"). 21Militaryand Paramilitary Activitiesin and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJREP.14 (June 27) [hereinafter Nicaragua]. 101, para. 191 (referring to "most grave" and "less grave"forms of the use of force).
22CHRISTINE LAWAND THE USE OF FORCE 141 (2000); see also Nicaragua, 1986 ICJ REP. at GRAY,INTERNATIONAL
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restrictivethat ultimately it "willencourage aggression of a low-keykind."23 The second group to see the principle of collective self-defense, combined with a lower threshold of appears armed attack, as a threat to world peace that could lead to "arisk of the internationalization of civil conflicts and the expansion of inter-state conflicts."24 This lack of agreement is not helpful, particularlysince the assessment of the existence of an armed conflict is increasingly being made outside the context of a state-on-state conflict. has Avery low threshold of what constitutes an armed attack25 the potential to blur the lines between armed conflict and criminal law enforcement. At the other end of the spectrum, too high a threshold may leave a state at risk, especially if there is a credible threat involving the use of weapons of mass destruction by a nonstate actor. Attacks by nonstate actors challenge the view of a neat division of armed conflict into the two spheres of international and noninternational.26 Identification of the boundaries of noninternational armed conflict has never been easy. While international humanitarian law is generally interpreted to have limited impact in situations that do not reach a level above "internal disturbances and tensions, such as riots, isolated and sporadic acts of violence,"27 the dividing line between the operation of that law and human rights law is not alwaysclear or absolute. In many respects, global terrorism seems to straddle the law enforcement and armed conflict paradigms. Engagement in criminal activityby terroristgroups, warlords,and other nonstateactorsto finance their operations adds significantlyto the perception of an overlapbetween law enforcement and the conduct of hostilities.28 the same time, efforts to position the use At of force on the scale of the events of September 11, which included an attack on the Pentagon, as an exclusively criminal matter not constituting an armed attack appear inconsistent with the verystrong international response based on the exercise of the right of self-defense.29
23 to in GRAY,supranote 22, at 141 (relying on W. Michael Reisman, Allocating Competences UseCoercion thePost-Cold WarWorld: and IN in FORCE THENEWINTERNATIONAL Practices, Conditions, Prospects, LAWAND ORDER,supranote 20, at26). 24 Id. at 141-42. 25YORAM AND SELF-DEFENCE 174 (3d ed. 2001) (describing a de minimis non curat DINSTEIN,WAR, AGGRESSION lexstandard of "armed attack"as "ause of force causing human casualties and/or serious destruction of property"). 26 Greenwood, supra note 12, at 314, states that "[f] ighting between the United States and Al-Qa'ida... appears to fit neither of these moulds." According to Fitzpatrick, supranote 7, at 348, "The September 11 attacks did not launch an internal armed conflict in the United States as understood in international humanitarian law."Derek 11 INT'L 1 (2003), suggests that the attacksby Al Qaeda on 9/11 were L. Jinks, September and theLawsof War,28 YALEJ. not an international armed conflict (because there is no conflict between states), a classic internal armed conflict (because there was no control or attempt to seek to control territory), or a so-called war of national liberation. Instead, he views the conflict as an "armed conflict not of an international character" falling under common Article 3 of the 1949 Geneva Conventions. This approach appears somewhat counterintuitive given the ability of such terrorist groups to direct significant levels of violence across international borders and even continents. However, it does reflect the challenge contemporary conflict is presenting to traditional interpretations of international humanitarian law. 27 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, openedforsignature Dec. 12,1977, Art. 1,1125 UNTS 609 [hereinafter Protocol II]; seealsoRome Statuteof the InternationalCriminalCourt,July17, 1998, Art. 8(2) (f), UN Doc. A/CONF.183/9* in (1998), reprinted 37 ILM999 (1998), corrected [hereinafter through May8, 2000, byUN Doc. CN.177.2000.TREATIES-5 ICC Statute]. 28 Bassiouni has noted that" [g] lobalization has... allowed terrorist groups to network with one another, permitting terroristgroups to develop strategic alliances with other groups engaged in transnationalcriminalityin order to develop synergetic connections and to maximize respective capabilities and effectiveness." Bassiouni, supranote K. UNHOLYWARS: AMERICAAND 13, at 88; seealsoJOHN COOLEY, INTERNATIONAL TERRORISM (2d AFGHANISTAN, 127 ed. 2000) (observing that all sides in the Afghan wars prior to September 11 "used drugs as an actual weapon and as a source of finance, [which] gave this monstrous and lucrative international business a decisive push forward"). 29Greenwood, supranote 12, at 310-11 (containing the text of the United States and United Kingdom letters to the UN Security Council outlining their reliance on the right of self-defense enshrined in Article 51 of the UN Charter); Murphy, supra note 11, at 45-51. International recognition of the exercise of the right to self-defense is reflected in Security Council Resolutions 1368 (Sept. 12, 2001), 40 ILM 1277 (2001) and 1373 (Sept. 28, 2001), 40 ILM at 1278, the invocation of Article 5 of the Washington Treaty by the North Atlantic Council, NATO Press Release (2001) 124, Statement by the North Atlantic Council (Sept. 12, 2001), 40 ILM at 1267, and the Australian/ United States invocation of Article IV of the ANZUS Treaty, Media Release, Application of ANZUS Treaty to Terrorist Attacks on the United States (Sept. 14, 2001), at <http://www.pm.gov.au/news/01_news.html>.
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Apparently, the challenge of international terrorism does not need to be dealt with exclusively under either criminal law or the law of armed conflict. Indeed, Sean Murphy has sugThe criminal nature gested that the September 11 incidents be seen in exactly this way.30 of the members of Al Qaeda is reflected in their being equated with pirates.31However, the does not change the nature categorization of groups like Al Qaeda as international criminals32 or scope of the threat they pose to their targets. Concern has been expressed, though, that shifting counterterrorism action from a crime control to an armed conflict model would "displacehuman rights norms as the primarylegal But constraint on counter-terroristtactics."33 such a shift might also be viewed as a change in In rather than a complete displacement of the lawenforcement option.34 this respect, emphasis the determination in the immediate aftermath of September 11 that the attacks triggered the right of self-defense brought with it the application of international humanitarian law.35 Some commentators, however,have not been as concerned about the threat posed byAl Qaeda and the Taliban as about how far the net of the broader "waron terrorism" may be cast.36 NonstateActors A separate, but closely linked, issue is the "nonstate"status of some of the participants in armed conflict. The term "nonstate"can be misleading, as it largely relates to "private" para ticipants37in a conflict, as opposed to those who may be irregular forces "belonging to"38 state. Categorizing these privateactors is made more difficult by the increasing use of the "terrorist"label. A definition of terrorism has yet to be agreed upon,39 and proposed versions sometimes show a preference for limiting it to the criminal sphere40or nonstate activity.41
30 Murphy, supranote 11, at 49; seealsoCassese, supranote 7, at 1000 (stating that" [i] n addition to using military accusedof thecrimes force the US should also aim at bringingthepersons Greenwood, supra note 12, at 305. tojustice"); 31Ruth 96 and Wedgwood, Al Qaeda, Terrorism, MilitaryCommissions, AJIL328, 329 (2002). 32 SeeOPPENHEIM'S INTERNATIONAL 746 (RobertJennings & Arthur Watts eds., 9th ed. 1996) (describing LAW piracy as "an 'international crime', the pirate is considered the enemy of every state"). and Law to Power:The WarAgainst Terrorism Human Rights,14 EUR.J.INT'LL. 241, 33Joan Fitzpatrick, Speaking 246 (2003). 34UN Security Council Resolution 1373, supra note 29, outlines numerous steps related to law enforcement for FOR STRATEGY COMBATING TERRORISM, note 1, at 15, supra countering terrorist acts. Similarly, the U.S. NATIONAL which describes the terrorist threat in terms of a war, outlines a multifaceted approach to that threat, including the "use of diplomatic, economic, information, law enforcement, military,financial, intelligence, and other instruments 69 of power." Seealso Michael Ignatieff, Human Rights,theLaws of Warand Terrorism, SOC.RES.1137, 1145 (2002) (suggesting that the type of law to be applied should depend on whether the action against Al Qaeda is primarily a military or a civilian police operation). 5 See supra note 29. 36Falk expressed concern over the empowerment of other states "to intensify violence against their own opponents"; the provision of support to "repressive regimes" allied in the war on terror; the potential for weakening international humanitarian law; the bypassing of the United Nations; and the potential for abuse of the just war doctrine. FALK, supranote 12, at 112-28; seealsoFitzpatrick,supranote 7, at 347; Fitzpatrick,supranote 33, at 244-45. 14 L. But seeAbraham D. Sofaer, On theNecessity ofPre-emption, EUR.J.INT'L 209,225 (2003) (stating that "[1]ooking at the 'war' on terrorism thus far, the concept of pre-emption is being applied in a responsible manner, though some statements made by the current Administration might have suggested a broader application"). 37Grotius defines war as "the condition of those contending by force," noting that the root of the word bellum The de facto concept of war was not limited to "public"war between two is derived from the "old word duellem." sovereigns. He notes that private war "is more ancient than public war and has, incontestably, the same nature as BELLI AC DEJURE public war;wherefore both should be designated by one and the same term." 2 HUGOGROTIUS, 33 LIBRI TRES (Francis W. Kelsey trans., Carnegie ed. 1925) (1646). PACIS 38Geneva Convention No. III, supranote 10, Art. 4(2). 39Cassese, supra note 7, at 994. A common thread in many definitions has been the connection with killing for politically motivated purposes. Bassiouni, supranote 13, at 84 (defining terrorism as "astrategyof violence designed to instill terror in a segment of society in order to achieve a power-outcome, propagandize a cause, or inflict harm 8-10 (1982) (distinguishing between POLITICALTERRORISM forvengeful political purposes");seealsoGRANTWARDLAW, acts of "terror,"which may be carried out by criminals, mentally unstable persons, etc., and "terrorism,"which is defined by its "high symbolic content"). 40 Philip Heymann points out that the definition of terrorism by academics often has a far more moral or criminal flavor than state definitions suggesting that terrorists are hostile forces acting for political purposes. In his
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However, it has been acknowledged that illegitimate acts of terror can occur during armed label conflict, or otherwise be carried out by and on behalf of states.42 Although the "terrorist" can express moral condemnation and focus attention on the nature of the threat posed by the criminal act,43the vagueness of the term makes it an imperfect vehicle for definitively determining if the alleged perpetrators are involved in an armed conflict. Persons with no or little connection to the armed forces of a state have regularly participated in hostilities within the context of international armed conflict.44The classic case outlining the grounds for self-defense under international law, the Caroline dispute, has become the common historical example of a cross-borderconflict between state and nonstate actors.45 Nevertheless, sorting out the statusof"nonstate"participantsin armed conflict has challenged international humanitarian law since the earliest attempts at codification. The provisions of Additional Protocol I to the 1949 Geneva Conventions, although not accepted by certain marked an important milestone by providing the qualifying armed forces significant states,46 of nonstate "national liberation movements" with combatant status.47 Still, there remains a diverse range of state and nonstate participants in international armed conflict who can be termed "unprivileged belligerents" or "unlawfulcombatants."48 These nonstate actors, who do not qualify for combatant status, often participate in hostilities on a level and at a degree of intensity equal to those of the regular armed forces and "legitimate" irregular forces. The status of participants in noninternational armed conflict is more easily discerned, thanks to the general reluctance of nation-states to accord any legitimate status to insurgent
view, violence against civilians in the context of a guerrilla war or during a war between states is "not considered terrorism in many contexts simply because it is not subject to the same remedies (which are designed for times
of peace)." PHILIPB. HEYMANN,TERRORISM AND AMERICA5 (1998). 41The U.S. government recently defined terrorism as "premeditated, politically motivated violence perpetrated
STRATEGY against noncombatant targetsby subnationalgroups or clandestine agents" (emphasis added). NATIONAL FOR COMBATING TERRORISM, supra note 1, at 1. 42 States often use a definition of terrorism that is limited to nonstate actors. However, terror in its broadest sense has been and remains a part of warfare. States engaged in armed conflict may legitimately attempt to instill fear in an opponent, but "[a] cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, openedfor Dec. 12, 1977, Art. 51(2), 1125 UNTS 3 signature [hereinafter Protocol I]. States can commit illegitimate acts of terror. SeeFALK, supra note 12, at 109; CHARLES 43Terrorism ultimately refers to acts that are already illegal under domestic and international law, including the law regulating armed conflict. TOWNSHEND, supra note 42, at 5. 44While forming only a small part of his discussion of "people in arms,"Clausewitzprovides insight into how war was changing in Europe at the beginning of the nineteenth century, including insurgent operations with all the attributes of guerrilla warfare. CARL VONCLAUSEWITZ, WAR479 (Michael Howard & Peter Paret trans. & eds., ON 1976). In the 1863 Lieber Code, armed individuals or groups participating in conflict without authorityare classified as "highwayrobbers or pirates,""armedprowlers,"or "war-rebels." War Dep't, Instructions for the Government U.S. of Armies of the United States in the Field, General Orders No. 100, Arts. 82, 84, 85 (Apr. 24, 1863), reprinted THE in OF 3 LAWS ARMEDCONFLICTS (Dietrich Schindler &Jifi Toman eds., 3d rev. ed. 1988) [hereinafter Lieber Code]. 45 SeeGreenwood, supranote 12, at 308; seealso Sofaer, supranote 36, at 209 (general discussion of the Caroline dispute). 46As of November 9, 2003, a total of 191 states were parties to the 1949 Geneva Conventions; 161 countries were parties to Protocol I; and 156 were parties to Protocol II. The 30 countries that are not parties to Protocol I include India, Indonesia, Iran, Iraq, Israel,Japan, Pakistan, and the United States. 47As Green notes, "[T] o some extent certain non-international conflicts have come under the aegis of international law since 1977 with the adoption of Article 1 (4) of Protocol I and Protocol II additional to the 1949 Geneva Conventions .. ." GREEN, supra note 8, at 55-56. On national liberation movements, see note 72 infra. 48International humanitarian law has alwaysstruggled with how to deal with and categorize persons who do not qualify for combatant status but participate directly in hostilities. They have variouslybeen termed "unlawfulbelligerents,""unlawfulcombatants,""unprivilegedbelligerents,"or simply"enemycombatants."Spies and saboteurs operating behind enemy lines out of uniform are considered to be "unprivileged belligerents" and therefore not entitled to combatantor prisoner-of-war status.RichardR Baxter,So-called and Guerrillas, Saboteurs, "Unprivieged Belligereny ":Spies, 1951 BRIT.Y.B. INT'L 323, 328 (defining unprivileged belligerents as "persons who are not entitled to treatment L. either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners of War Convention of 1949").
AVERY SHORT INTRODUCTION 6-8 (2002); WARDLAW,supra note 39, at 9. TOWNSHEND,TERRORISM:
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groups.49Thus, a state can be engaged in an "armedconflict with an insurgent or revolutionary group, irrespective of that group's legitimacy, and vice versa."50 DeadlyForce Controlling The nature of the violence that can occur during, or contemporaneously with, an armed conflict also plays a role in the determination of the applicable regime. The use of force in an armed conflict might be considered, in a traditional sense, as aggression, self-defense, humanitarian intervention, or the exercise of self-determination. However, as is evident from the obligation to maintain security in occupied territory, force may also be applied in exercising what might normally be seen as a policing function, such as maintaining public order, quelling riots and disturbances,and countering criminal acts. Notwithstanding the broad context in which the use of force might be considered, this analysis focuses on the application of "deadly force," that is, force capable of causing death or serious injury. Although this focus may appear narrow, the means for applying deadly force in contemporaryarmed conflict are exceptionally broad. Thus, an attack on the computer network controlling a water supply represents the latest ingenious means of applying force that can have a deadly effect.51Computer technology has been combined with information gathering and precision weapons to target opposing leaders in perhaps one of the most obvious and emotional manifestations of the changing circumstances in which deadly force is being used. Recent examples can be found across the broad spectrum of conflict and include the attempt the to kill President Saddam Hussein at the start of the conflict in Iraq,52 targeting of Palesand tinian resistanceleaders in the Israeli-occupiedterritories,53 the killing of suspected Qaeda terrorists in Yemen.54 Since militaryforces might be asked to participatein a wide range of operations, other, less and riot control agents, may traditionalapplicationsof force, such as less-than-lethal weapons55 enter into the equation. Despite their intended less-than-lethal effect, such options often retain and the potential for death or serious injury56 must therefore be closely controlled as well.
49 Gerald L. Neuman, Humanitarian Law and Counterterrorist Force,14 EUR.J.INT'L L. 283, 297 (2003); seealso Law UnderDomestic and Transnational in Waldemar A. Solf, TheStatusof Combatants Non-InternationalArmed Conflicts Practice, 33 AM. U. L. REV. 53, 58-59
60 (2002), "Once rebels are captured, or otherwise rendered unable to continue fighting, ... they become hors and de combat are entitled to the same level of humane treatment as civilians.Their legal status nevertheless remains unchanged, exposing them to the full force of the State's criminal law." 50 Bassiouni, supranote 13, at 99. 51 Dinstein notes that "ifsuch an assaultwould cause fatalities (resulting e.g. from the shutdown of computers controlling waterworksand dams, with a consequent flooding of inhabited areas), it would qualify as armed attack." IN 20 STRATEGIC WARFARE CYBERSPACE (2001) (indicating DINSTEIN,supranote 25, at 166-67; see also GREGRATTRAY, if thatsuch a "microforce," applied to shuttingdown a nuclear plant, could be equated to a weapon of massdestruction). 52 at on RajivChandrasekaran & Thomas E. Ricks, U.S. OpensWarwithStrikes BaghdadAimed Hussein,WASH. POST, Mar. 3, 2003, at Al. 53 For a discussion of the Israeli WASH. approach to targeting, see Molly Moore, Israel'sLethal Weaponof Choice, POST, June 29, 2003, at Al. 54 A missile strike from a Predator drone aircraft in November 2002 killed six suspected members of Al Qaeda WasBasedon Rules Set out byBush, N.Y. TIMES, in Yemen. DavidJohnston & David E. Sanger, Fatal Strikein Yemen Nov. 6, 2002, atA16 (stating that "[t]he missile strike represented a tougher phase of the campaign against terror and moved the Bush administration away from the law enforcement-based tactics of arrests and detentions of Qaeda suspects that it had employed outside Afghanistan in the months since the fighting there ended"). 55In the United States, research into less-than-lethal weapons for "lawenforcement, corrections, and military personnel" has included work on blunt-traumaprojectile weapons, pepper sprayfor barricade scenarios, technology for disorienting suspects, and electric-shockweapons. Hearing of the Subcommittee on Aviationof the [House] Committee on Transportation and Infrastructure (May 2, 2002) (statement of Sarah V. Hart, director of the National Institute ofJustice), availablein LEXIS, Legis Library, Fednew File. 56For example, in October 2002, Russian Special Forces used Fentanyl, a synthetic anesthetic, in an attempt to incapacitate a Chechen rebel group that had seized a theater in Moscow, causing the death of a large number of hostages. The U.S. National Institute ofJustice has researched the use of Fentanyl drugs as nonlethal weapons, but in the form of a dart and not a gas.John Bowman, RussianKnock-out CBC News Online, Oct. 28,2002, at<http:// Gas, www.cbc.ca/news/features/knockoutgas.html>.
ARMEDCONFLICT MOIR, THE LAW OF INTERNAL (1983). As noted in LINDSAY
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Even though the approach to terrorism as solely a law enforcement responsibility is being challenged by the categorization of terroristacts as armed conflict, the change brought about by the complexity of contemporary conflict is not moving entirely in one direction. The approach to the control of force in armed conflict as the exclusive domain of international humanitarian law is facing an intensified effort to have it encompass human rights norms and their associated accountability structure. This analysis now turns to the impact of those human rights norms on regulating the use of force in contemporary conflict and their potential for regulating these complex security situations in the future. II. THE
RIGHT TO LIFE: COMMON GROUND
For some, the discussion of any killing is problematic. The "right to life" is a deeply held principle that is protected in times of both peace and war. A common starting point of both human rights and humanitarian law is respect for human values and the dignity of the human person. The two normative regimes "sharea common 'core' of fundamental standardswhich are applicable at all times, in all circumstances and to all parties, and from which no derogation is permitted."57 has been noted that "[w]hen life is deprived, it is impossible to enjoy It fundamental freedom."58 any This fundamental status makes it tempting to consider the right to life in unqualified terms. However, the absolute nature of the right is challenged by the need to maintain order in society, both domestically and internationally, which may occasionally lead to the use of deadly force. The interpretation of the right to life as absolute is often linked to pacifism,59 but, as the early Christianchurch discovered, pacifism can conflict with the obligations of governance. As a result, 'just war theory," which authorized warfare as a Christian activity,was Since the developed as that religion became "linkedwith the secular power of the Empire."6? state has the right and the duty to guarantee the security of its citizens, it may be required to use deadly force, although its power is not unlimited and its actions are "subjectto law and morality."61 Members of the armed forces and civiliansenjoy the same fundamental right to life, but that right is limited by the different societal demands according to which human rights and international humanitarian law operate. The normative frameworkof international humanitarian law differs in many respects from that of international human rights law. One fundamental difference is that humanitarianlawrequiresthe balancing of humanity62 with militarynecessity.
57Prosecutor v. Delalic, AppealsJudgment, No. IT-96-21-A, para. 149 (Feb. 20, 2001) (Celebici case); seealso Theodor Meron, TheHumanization of Humanitarian Law, 94 AJIL239, 266-67 (2000). 58 Yoram Dinstein, Terrorism an InternationalCrime,1987 ISR. as Y.B. HUM.RTS.55, 63; see also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II. 116, doc. 5, rev.1 corr., para. 81 (Oct. 22,2002), availableat<http://www.cidh.oas.org/Terrorism/Eng/part.c.htm> [hereinafter OASReport on Terrorism]. 59 Ignatieff, supranote 34, at 1144. The depth of the proscription against the taking of life among early Christians is reflected in the view that there "wasno lack of those who did not indeed disapprove of public war, but who thought that in the case of an individual self-defence was forbidden." GROTIUS, supra note 37, at 93.
CENT CIVILIANS: MORALITYKILLING WAR19-22 (2002) (indicating thatAugustine's work onjust war theory THE OF IN was partlymotivated in reaction to the leveling of blame at the pacifistchurch for the downfall of the Roman Empire). 61 OAS Report on Terrorism, supranote 58, para. 107 (quoting Neira Alegria Case, 20 Inter-Am.Ct. H.R. (ser. A) para. 75 (1995)). 62 Robin Coupland points out that there are alternative definitions of humanity, one being "the human race; mankind; human beings collectively";and another, "the character or quality of being humane; behaviour or disposition towards others such as befits a human being." Robin Coupland, Humanity:WhatIs It and HowDoesIt Influence RED CROSS, Dec. 2001, at 969,972 (quoting 7 OXFORDENGLISHDICTIONARY (2d InternationalLaw?INT'L REV. 476 ed. 1989)). Coupland makes a strong argument for viewing "humanity"in an interrelated fashion with physical security and health so as to reinforce its place in the legal dialogue of international humanitarian law. However, Green, supranote 8, at 56, notes that "the purpose of the law of armed conflict is to a great extent directed to the preservation of the principles of humanitarianism."It is in the context of principle and behavior that humanity has traditionally been balanced against military necessity.
60 THE INTERNATIONALLAWAND USE OFFORCEBYSTATES (1963); seealso COLMMCKEOGH,INNO5 IANBROWNLIE,
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A primary goal of military necessity is the submission of the enemy at the earliest possible moment with the least possible expenditure of personnel and resources. Itjustifies the application of force not prohibited by international law. Because armed conflict largely consists of the application of deadly force, this balancing with humanity forms a major and highly visible part of international humanitarian law. This aspect of international humanitarian law sometimes leaves the impression that, in contrast, human rights law is absolute in nature. However, that normative structure must also account for the taking of life so as to maintain social order. Although legally sanctioned killing is often considered in the context of the death penalty, the right to life is also limited by competing interests such as the right to self-defense, acting to defend others, the prevention of serious crimes involving a grave threat to life or serious injury,and the use of force to arrest or prevent the escape of persons presenting such threats.63 On the other hand, the use of deadly force is strictly limited by the requirement that a deprived of life.64Examples of such limitations are found in Artiperson not be "arbitrarily" cle 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the right to life is not contravened where no more force than is absolutely necessary is used "in defence of any person from unlawfulviolence," "inorder to effect a lawful arrest or to prevent escape of a person lawfullydetained," or "inaction lawfully The taken for the purpose of quelling a riot or insurrection."65 Convention also makes an exception for "deaths resulting from lawful acts of war."66 Despite the differences between international humanitarian lawand human rights law, they Human rightsnorms reflected exhibit a commonalityof content that causes them to converge.67 in the Universal Declaration of Human Rights and the other post-UN Charter human rights documents have had a significant impact, "producing a large measure of parallelismbetween norms, and a growing measure of convergence in their personal and territorialapplicability."68 Further, while international humanitarian law has attained a relativelyhigh level of codification and acceptance of customary law norms with respect to international armed conflict, it is less clearly defined with regard to internal conflicts.69This feature inevitably invites close interaction between the two normative regimes, particularlywhen nonstate actors operate within an "enemy"state, in occupied territories, or with respect to internal armed conflicts.
III. THE ROLE OF THE STATE
Even though human rightslawand the lawgoverning armed conflict share respect for human within which they traditionally values, the frameworks operate are significantlydifferent. Those
63Basic Principleson the Use of Force and FirearmsbyLawEnforcement Officials,UN Doc. A/CONF.144/28/Rev. 1, [hereinafter Basic at 112, para. 9 (1990), availableat <http://193.194.138.190/html/menu3/b/h_comp43.htm> Principles]. 64 International Covenant on Civiland Political Rights, Dec. 16, 1966, Art. 6(1), 999 UNTS 171 (providing: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarilydeprived of his life."). 65 for European Convention on the Protection of Human Rights and Fundamental Freedoms, opened signature Nov. 4, 1950, Art. 2, 213 UNTS 221. 66 Id., Art. 15(2). 67 Examples of the parallelism of content include "the right to life; the prohibition of torture and cruel, inhuman, or degrading treatment or punishment; arbitraryarrest or detention; discrimination on grounds of race, sex, language, or religion; and due process of law." Meron, supra note 57, at 266. 68Id. at Court Advisory Opinionof theInternational 245; seealsoDale Stephens, Human RightsandArmedConflict-The HUM. RTS.& DEV.LJ. 1, 3 (2001) (suggesting that "the Advisory ofJusticein the Nuclear Weapons Case,4 YALE Opinion is a significant statement on the convergence of humanitarian principles between the law of armed conflict and international human rights law"). 69 For example, common Article 3 of the four 1949 Geneva Conventions and Additional Protocol II are important in terms of providing humanitarian protection to victims of internal conflict, but they do not provide the level of detail or scope of protection afforded by the codified law governing international armed conflict.
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differences have been uniquely shaped by the role that nation-states have long performed in maintaining external and internal order. By exploring the unique nature of both interstate and intrastate conflicts, the application of human rights law in regulating armed conflict can be properly situated. Interstate Conflict The state's monopolization of violence is one context in which to analyze international humanitarian law. The existence of a single or "rightauthority" to govern conflict is closely linked to the concepts of public and privatewar70 and the rise of organized society out of the feudal structure of the Middle Ages. A key element to establishing order was controlling the ability of private individuals to engage in hostilities. The ultimate authority to use force was concentrated in the hands of a sovereign. The exclusive role of the governing authority in suppressing privatewarand waging public warcontinued as control of society proceeded from the church to the sovereign and, finally, to the nation-state with the Treaty of Westphalia in 1648.71 A continuing effect of the "right authority"principle is that the state remains the primary legitimate authority for engaging in public wars.Control over what was once termed "private" war is similarly concentrated in the hands of the state. Following World War II, the acknowledgment of a right to self-determination eventually resulted in the inclusion of national liberation movements in Additional Protocol I72as one of the "authorities" might legitimately that in public war. Even so, while interpretations as to which groups might qualify for this engage status vary, some legal scholars have noted that this provision operates as only a relatively minor change in the preexisting law.73 Analysisof the abilityof national liberation movements to fulfill the statelike role provided for in Additional Protocol I has included questions about whether guerrilla forces can realisticallybe expected to meet all the requirements of the Protocol, such as compliance with the stringent rules governing the housing and treatment of prisoners of war. However, all participantsin armed conflict remain obligated to comply with As international humanitarian law.74 a result, states remain primarilyresponsible for engaging in public war. The organization of the state, and in particular its claim to a monopoly of violence for the maintenance of external and internal order, has a direct impact on the normative regimes that govern its use of force. As Vattel indicated, war was carried on in the name of the sovereign, and individual members of the armed forces and "those bywhose agency the sovereign
70War is referred to here in a "factual"sense. Seesupra note 9. 71 BROWNLIE,supranote 60, at 3-13.
72 The term "national liberation movements" is used generically to describe "peoples [who] are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination," as provided for in Protocol I, supranote 42, Art. 1(4). 73 UnitedStatesRatificationof AdditionalProtocol to the 1949 GenevaConventions, I George H. Aldrich, Prospectsfor 85 AJIL1, 4-6 (1991); Hans-Peter Gasser, An AppealforRatification the UnitedStates,81 AJIL912, 916-17 (1987); by see alsoTheodor Meron, The TimeHas Comeforthe UnitedStatestoRatify GenevaProtocol 88 AJIL678, 683 (1994). I, There is, however, no guarantee that the scope of the provision on national liberation movements engaged in selfdetermination will be so narrowly interpreted, although it has been noted that a broader interpretation "can only occur if the practice of States in this regard undergoes considerable change." Christopher Greenwood, Terrorism and Humanitarian Law-The DebateoverAdditionalProtocol 1989 ISR. Y.B. HUM.RTS.187, 194-95. I, 74Hans-Peter Gasser, Actsof Terror, "Terrorism" InternationalHumanitarian Law, INT'L REV. RED CROSS, Sept. and 2002, at 547, 563 (stating: "Anycombatant who chooses to engage in guerrilla warfareremains bound to respect all rules on the conduct of military operations and the protection of civilians. There will be no excuse if he combines S. OF (legitimate) guerrilla warfarewith a (criminal) terrorist campaign."); seealsoHOWARD LEVIE,PRISONERS WAR ININTERNATIONALARMED 50-52 (International Law Studies No. 59, 1978); Frits Kalshoven, ThePositionof CONFLICT GuerrillaFighters Underthe Law of War,11 MIL.L. & L. WAR REV. 81-82 (1972); W. Thomas Mallison & Sally V. 55, Statusof rregular Combatants UndertheInternationalHumanitarian ofArmed Mallison, TheJuridical Law 9 Conflict, CASE W. RES.J.INT'L 39, 58-63 (1977). L.
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Warfare is ultimately conducted as a group makes war, are only instruments in his hands."75 activity,which has become a defining principle of the modern concept of combatancy.76In addition, the pooling of the considerable technological and human resources of the state has profoundly affected warfare. It has been suggested that "modern means of death and destruction would never have been possible without the state, its ministryof defense, ... and its regular, uniformed, bureaucratically managed armed forces."77 Assessing the extent to which international humanitarian law applies to internal conflicts has also centered on the issue of the "right authority"to engage in conflict. Whether moveof ments seeking to liberate populations from the "tyranny" governments can legally fulfill that role has been widely debated, but the power to wage public war and authorize its agents to use force is solidly entrenched in positive law terms in the state.78 Interstate belligerencies differ significantly from situations of internal conflict because of the lack of a single international governing authority. Clearly,the relationships between states are not governed exclusively by resorting to the use of force,79but the "absence of both multilateraland domestic enforcement regimes... has resulted in making interstate cooperation in penal matters cumbersome, lengthy, and, more often than not, ineffective."80However, if alternativemeans of controlling terroristviolence are either ineffective or not available,the state may be driven to consider the use of military force to remove or neutralize a threat. In comparison to the power enjoyed by a state domestically, control over violent individuals or groups under the international legal regime must depend on less certain means. Although that body can become the UN SecurityCouncil arguablyoperates as a form of "rightauthority," mired in political stalemates that hinder its ability to regulate the use of force.81The decision to act collectively and individually in self-defense set out in Article 51 of the UN Charter is left to the involved states themselves, at least until the SecurityCouncil "hastaken measures necessary to maintain international peace and security." Finally,whateveradvantage technology has provided to nonstate actors, nation-statesremain the true engines of technological advancement. As a result, interstate conflict, as well as operations against nonstate actors, may bring destruction to areas previously thought safe from attack.82
DE 75EMMERICH VATTEL,THE LAWOF NATIONS,bk. III, ch. II, ?6 (Joseph Chitty ed., 1834) (Gaunt reprint 2001) (1758). Here Vattel was relying on Grotius's view that the sovereign was the principal actor and the "instruments" were men who take up arms. Seealso MCKEOGH, supra note 60, at 109. 76This theme was reflected in the writings of Jean-Jacques Rousseau where he explained that war was a relation between states rather than men. MCKEOGH, note 60, at 121. See also infranote 114 for a discussion of the group supra characteristics of combatancy. 77MARTINVAN CREVELD, THE RISEAND DECLINEOF THE STATE 249 (1999); see also WARD THOMAS,THE ETHICS 62 OFDESTRUCTION(2001 ) (discussing the link between the organization of the state and the maintenance of military forces). 78For example, MICHAEL 185-86 n.* (1977), suggests thatwar rights should attach UNJUSTWARS WALZER,JUSTAND to guerrilla forces on the basis of the degree of civiliansupport they have "whenthe people 'look after' the guerrillas." While this theory has some resonance with respect to the recognition of national liberation movements under Additional Protocol I, the state has remained the primary legitimate authority. Seesupra note 73. 79International agreements, the acceptance by states of customarynorms, the existence of the International Court ofJustice, and the creation of international criminal tribunals and courts point to the availability of alternative mechanisms to avoid and resolve disputes. For example, international and regional cooperation by states in dealing with terrorism can be effected through treaties, the implementation of extradition, mutual legal assistance, information sharing, the freezing of financial assets, immigration controls, and the prosecution and punishment of the perpetrators. OAS Report on Terrorism, supra note 58, paras. 33-35; Bassiouni, supra note 13, at 94. 80 Bassiouni, supra note 13, at 95. 81It has been suggested that the Security Council lacks the cohesion, sovereignty, and effective chain of comMORALITY mand for militaryforces necessary for the exercise of "international statecraft."JAMES TURNERJOHNSON, WARFARE 60-61 (1999). AND CONTEMPORARY 82The future holds the of
prospect global targeting by remotely piloted hypersonic aircraft capable of hitting toDevelop Hypersonic Effort targets nine thousand miles awayfrom the launching point Maxim Kniazkov,U.S.Launches News Library,Wires File. StrikeCapability, Agence-France Presse,July 2, 2003, availablein LEXIS,
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InternalConflict In contrast, states deal with internal threats in an entirely different way. Internal control is both more invasive and, to a significant degree, more subtle than the control exercised in interstate relationships. It does not depend exclusively, or even primarily,on the direct application of force.83Rather, emphasis has been placed on maintaining order through the application of the rule of law.84 The development of police and security forces is directly linked to the ascendancy of the nation-state.John Keegan observes that "[t] he civilised societies in which we best like to live are governed by law,which means that they are policed, and policing is a form of coercion."85 The development of moder police forces is related to a confluence of factors, including the threat posed by standing armies if their efforts were turned to policing; the elevation of the right to property as an inalienable law of nature; the disarming of the upper classes; and the movement of populations to cities as a consequence of industrialization.86The state has the ability to integrate itself into the lives of its citizens and control their activities, for example, by conducting electronic eavesdropping and surveillancewhere authorized. More important, the state normally maintains an effective human intelligence-gathering apparatus, operated by uniformed and nonuniformed police and domestic securityagencies. The control of internal violence is most directly associated with law enforcement. The level of state control and intervention raises significant issues of privacyand the potential for abuse. The Reign of Terror launched by the generator of the levee masse, French en the NationalAssembly,introduced the term "terror" the moder lexicon.87 is no coincidence into It that efforts to control the power of the state and its impact on individual citizens spawned human rights norms. Human rights are generally "concerned with the organization of State power vis-a-visthe individual"and, as such, "found their natural expression in domestic conThis focus on the individual in respect of power wielded by the state is funstitutional law."88 damental to international human rights law. Within states the application of human rights norms reflects the challenges associated with maintaining order. Some human rights maybe derogated from during "emergencies"to facilitate the maintenance of public order. While the exercise of such powers is controversial and by law strictly controlled, their existence demonstrates that internal threats to the security of the state can reach the level of interfering with governance.89That derogations are not
83 As Christopher Morris argues, states' reliance on force or sanctions is often exaggerated. States exert control by a varietyof behaviors, including taxes, licensing, establishing standardsfor action, and exercising the right to adjudicate. Governing by the will of the people is another obvious multiplier of the state's power to compel obedience. CHRISTOPHERW. AN THE STATE 199-204 (1998). Van Creveld, in referring to the role MORRIS, ESSAYON MODERN of the state in "disciplining the people," indicates that its "grip on society" is the product not only of the development of specialized police forces and prison systems, but also ofstate-run educational systems and social legislation governing work and health. VANCREVELD, supra note 77, at 205-24. 84 IAN THE RULEOF LAW INTERNATIONAL IN AFFAIRS 213 (1998), identifies elements of the rule of law BROWNLIE, as: the powers of officials must be based on authority conferred by law; the law must conform to standards of substantial and proceduraljustice; the powers of the executive, the legislature, and thejudicial function must be separated; thejudiciary should not be subject to the control of the executive; and all legal persons are subject to the rules of law. Seealso Reference reSecession of Quebec, [1998] 2 S.C.R. 217, 257-58. 85KEEGAN, supra note 3, at 386. 86 VAN CREVELD,supra note 77, at 206-07. 87TOWNSHEND, supra note 42, at 36-37. Between International 88 Robert Kolb, TheRelationship HumanitarianLaw and Human RightsLaw:A BriefHistory the of 1948 Universal Declaration Human Rightsand the 1949 GenevaConventions, INT'L 38 RED REV. CROSS 409, 410 (1998). of 89For example, the International Covenant on Civil and Political Rights, supra note 64, Art. 4, the European Convention for Human Rights, supranote 65, Art. 15, and the American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 UNTS 123, all provide for the suspension of certain rights in times of crisis like wars and emerSubstangencies. On the use of derogations in respect of terroristactivity,see Sabine von Schorlemer, Human Rights: tive and InstitutionalImplications the WarAgainstTerrorism, EUR.J.INT'L 265, 278-80 (2003); seealso Hernan 14 L. of withIts Obligations Under Montealegre, TheCompatibility a StateParty's of DerogationUnderHuman RightsConventions II Protocol and Common Article3, 33 AM.U. L. REV.41, 41-45 (1983).
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permitted with regard to the right to life is a strong statement of the fundamental importance of that right. At the same time, anyone interpreting the right to life must be prepared to deal with situations, such as emergencies, where a significant degree of violence is being threatened or used. As important as civilian police forces are to the maintenance of internal order, the policing of a state is not alwaysa function of civil police alone. Some states employ security forces of a paramilitary nature or legallyempower militaryforces to perform internal policing duties.90 In some cases modem terrorismhas stimulated the substantialmilitarizationof police forces. Thus, different states may use either police or military forces to perform the same function (i.e., rescuing hostages). This blurring of lines between police and militaryforces further highlights the possible heights to which violence can rise in internal conflict. The Contemporary Challenge Until recently, commentators have been reluctant to acknowledge that an international armed conflict can occur between a state and a private actor.91One impact of the September 11 attacks is that the destruction inflicted by the Qaeda terroristshas focused attention on a challenge that has more often faced states dealing with internal threats. Today a nonstate actor can attain such a level of organization and sophistication that it poses a threat comparable to that presented by military forces acting for or on behalf of a state. Such a group can field operational elements complete with a command structure and planning organization.92 The scale and effects of these attacks and their potential to be repeated or continued call for a response other than one focused exclusively on law enforcement. The phenomenon of failed or failing states, combined with the proliferation of technologically sophisticated means of inflicting violence, including weapons of mass destruction, makes the possibility that a private actor will operate outside the framework of state-based security particularly dangerous in the twenty-firstcentury.93
IV. INTERNATIONAL HUMANITARIAN LAW AND THE USE OF FORCE
To assess the degree to which international humanitarian law and human rights law are capable of converging, the different way these two normative regimes control the application
90On the role of the "third"force in counterterrorism, see WARDLAW,supranote 39, at 97-100. For example, in Canada the use of the armed forces in support of law enforcement is governed both by statutes, i.e., The Emergencies Act, R.S., ch. 22 (4th Supp. 1985), and the National Defence Act, R.S., ch. N-5 (1985), and by the exercise of the Crown prerogative, i.e., Canadian Forces Armed Assistance Directions, P.C. 1993-624 (Mar. 30, 1993); see also Fitzpatrick, supra note 33, at 244. 91Kalshoven, supra note 74, at 78, in discussing the status of the Israeli/PLO conflict, states: [I] t is neither an internal conflict, nor do the States opposing Israel refuse to admit that they are Parties to the conflict; what they refuse to acknowledge (and even on occasion strongly deny) is that the Popular Front is affiliated to them.... On the other hand, one hesitates to characterize the operations of this and the other Arab guerrilla groups as a "privatewar". Murphy, supra note 11, at 46-47, notes that Israeli operations in Lebanon in 1982, the 1985 Israeli attack on PLO headquarters in Tunisia, and the 1986 U.S. attack on Libyain response to the Berlin dance club bombings have not metwith "widespreadacceptance by the global community" that the terrorist acts that precipitated those responses constituted an "armed attack." 92 In 2002 Al Qaeda was divided into four committees: military, finance and business, fatwa and Islamic study, and media and publicity. The military committee conducted recruitment, training, procurement, transportation, and the launching of militaryoperations, as well as the development of tactics and the acquisition and manufacture of special weapons. It included an extensive network of cells and agents and an internal security service. ROHAN
GUNARATNA,INSIDEAL QAEDA57-58 (2002). 93 THE WARRIOR'SHONOR 159 (1997) (noting that a major contemporary problem is SeeMICHAELIGNATIEFF,
11-12, which aims at reducing global terrorism to, first, a regional, and then, a local threat amenable to criminal law enforcement.
FORCOMBATING borders. This approach is reflected in the U.S. NATIONALSTRATEGY TERRORISM, supra note 1, at
that some states are disintegrating and losing their monopoly on violence); seealsoVAN CREVELD, supra note 77, at 403-08. However, there is continuing reliance on the responsibility of states for activities occurring within their
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of deadly force should first be considered. A unique feature of international humanitarian law is that combatants "have the right to participate directly in hostilities."94They receive for immunityfrom prosecution, often termed as "combatimmunity," killingcarriedout in accorIn dance with the law.95 addition, civiliansare separated from combatants in accordance with the fundamental humanitarian law principle of distinction. Moreover, any use of force must be controlled to ensure that it is used intentionally only against valid militaryobjectives. The controlled application of force is often referred to in modern military terminology as "targeting." Great efforts have been made over the past quarter century to advance international humanitarian law in this regard. Notwithstanding the challenges that faced international humanitarian law during World War II, a commitment to the principle that there was still a place in war for "humanity and forbearance"was expressed at the close of the hostilities. This commitment resulted from the terrible loss of life caused by the wartime bombing campaigns,96and it meant that civilians should be protected by international law from intentional targeting.97In addition, the experiences of many of the dominant military powers following World War II, as both supporters and victims of modem warfare,prompted an international effort, ultimatelysponsored by the International Committee of the Red Cross (ICRC), to consider how to limit the tremendous This effort culminated in the creation in 1977 of destruction inflicted by moder total war.98 the two Additional Protocols to the 1949 Geneva Conventions. Although thirty countries have not ratified Additional Protocol I, the targeting provisions are largely seen as reflective of customaryinternational law." Protocol I reinforces in codified form the fundamental tenet of the obligation to distinguish between persons who take part in hostilities and those who do not. The principle of distinction is reflected not only in the definition of the two privileged classes, combatants'?? and civilians,1'0 also in the strict limbut itation of attacksto "military Such objectives, however, may include both people objectives."'02 and objects.103 Additional Protocol I was designed to limit the effects of targeting civiliansbecause of their involvement in the war effort and civiliansare considered separate from "military objectives." But even within the category of civilians, their varying degrees of connection to a state's warmakingcapabilitycan affect targeting decisions. For example, international humanitarian law has long recognized the intimate link between certain civilians and armed forces in the conduct of hostilities by providing for prisoner-of-war(POW) status for captured supply contractors, war correspondents, members of labor units, civilian crews of military and civilian
Protocol I, supra note 42, Art. 43. 37, at 654 (customaryinternational law); Solf, supranote 49, at 58 n.31 (referring to Arce v. State, 83 Tex. Crim. 292, 202 S.W. 951 (1918)). 96 AsJames Spaight indicated in his postwar assessment of the law of air warfare:
94
95 GROTIUS,supranote
It is necessary to state, or re-state, the fact that nothing that has happened in the second world war has shaken the legal objection to indiscriminate bombing.... It is at the lethal instruments, the lethal processes to be found behind the enemy's frontier that a civilised air force strikes. That is what makes it a civilised air force. AIR WAR 277 J. M. SPAIGHT, POWERAND RIGHTS (3d ed. 1947). He goes on to state: "Bombing for moral effect only remains unlawful. In that sense, attack on the civilian population is contrary to international law."Id. 97Id. 98For background, see R R Baxter, HumanitarianLaw orHumanitarianPolitics?The1974 Diplomatic on Conference Humanitarian Law, 16 HARV. INT'LLJ. 1, 4-9 (1975). Law Statusof the 1977 GenevaProtocols, HUMANITARIAN in LAW OF 9 See,e.g., Christopher Greenwood, Customary ARMED CONFLICT: CHALLENGESAHEAD102-03 (AstridJ. M. Delissen & GerardJ. Tanja eds., 1991) (discussing 93, U.S. recognition of the customary law status of some of the basic principles for the protection of civilians, including definition of military objectives and the principle of proportionality). 100 Protocol I, supra note 42, Arts. 43, 44. 10 Id., Art. 50.
102
Id., Art. 52.
57. For example, Article 57(2) states that everything feasible must be done to "verifythat the objectives to be attacked are neither civilians nor civilian objects."
'03 Id., Arts. 52(2),
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aircraft, and the crews of the merchant marine.'04The close connection between these civilians and militaryoperations, and the often consensual nature of their involvement in the form of contracts, make it difficult to argue that targeting decisions will alwaysbe significantlyinfluenced by their presence in the vicinity of the military objective. Civilianssuch as industrial workers have often prompted moral questions concerning their Additional Protocol I specifically protects them degree of contribution to the war effort.105 from intentional attack "unless and for such time as they take a direct part in hostilities."'06 The targeting of military objectives raises the issue of double effect, or what in contemporarylanguage is more generally called the "principle of proportionality."'07 According to this civilians who are protected and immune from intentional direct attack may still principle, be injured or killed if the militaryobjective is determined to be sufficiently important. Much of the discussion of targeting under international humanitarian law has traditionally concentrated on the proportionality test and potential collateral damage to civilians. The current increased scrutiny of the issue of specifically targeting individuals has resulted in questions as to the kind of action that constitutes assassinationl08 and, if legal, whether it can be considered an effective means of conducting operations.109 The outcome of that debate does not alter the fact that persons taking a direct part in hostilities are subject to being lawfully targeted by the opposing force. Under both Additional Protocols, the direct involvement of civiliansin hostilities does not affect their legal status,but it does mean that they will lose the protection of that status and could be targeted."? Consequently, the principle of distinction is perhaps more accurately described as distinguishing between combatants, legal or otherwise, and those civilians who do not take a direct part in hostilities.
104 Geneva Convention No. III, supra note 10, Arts. 4(4), (5); seealsoLieber Code, supra note 44, Art. 50; Project of an International Declaration Concerning the Laws and Customs of War (Brussels Declaration), Aug. 27, 1874, & OFARMED FOREIGN ST.PAPERS1005 (1873-74), reprinted THELAWS in Art. 34, 65 BRIT. CONFLICTS, supra note 44, at 27; Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention Respecting the Lawsand Customsof Waron Land, Oct. 18,1907, Art. 13, 36 Stat.2277,1 Bevans631 [hereinafterHague Regulations]. 105 WALZER, supranote 78, at 145-46. 106 Protocol I, supra note 42, Art. 51(3). 107 The doctrine of double effect had its genesis in the early Christian church. It is based on the argument that an act that has an "evil"consequence can be performed if the act is good, or at least indifferent; the direct effect is morally acceptable; the intention of the actor is good; and the good effect is sufficiently good to compensate for the evil effect. JOHNSON, supranote 78, at 153. The proportionality principle is supranote 81, at 131-34; WALZER, reflected in Article 51 of Protocol I, in which the actual harm prohibited is an "indiscriminate attack"when it "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, ... which would be excessive in relation to the concrete and direct military advantage anticipated." 108 Discussion of assassination from a legal perspective is complicated by the different interpretations of the term for peacetime and armed conflict, respectively. In peacetime assassination is normally associated with the illicit killing of government officials, while in armed conflict the killing is linked to treachery regardless of the status of INT'L Assassinationin Internationaland Domestic the victim. SeeMichael N. Schmitt, State-Sponsored Law, 17 YALEJ. L. 609, 633 n.120 (1992) (stating: "The peacetime prohibition serves to protect individuals involved in international affairs.... The war prohibition focuses on the method used to kill, not on the legitimacy of the target.");see Dec. 1989, at 4. Under 12333 andAssassination,ARMY alsoW. Hays Parks, Memorandum Law:ExecutiveOrder LAW., of this interpretation, therefore, the intentional killing of a civilian not taking a direct part in hostilities without any act of treachery, while illegal, would not constitute assassination. '09 long-standing debate about the effectiveness of killing enemy leaders ranges from whether it will have any A THE OF 127-29 (2003); effect to whether itwill possibly prolong the conflict. SeeBRUCE BERKOWITZ, NEWFACE WAR 167 LIBRITRES (John C. Rolfe trans.,Carnegie ed. 1933) (1612). Supportfor assassiDEIUREBELLI ALBERICOGENTILI, nation is often based on the argument that striking at those directly responsible for the conflict avoids the death of "innocents,"including members of the military.Id. at 167. On assassinationgenerally, see THOMAS, supranote 77, at 47-85. The lawful targeting of leaders can include heads of state in uniform or even a civilian commander in chief. Underthe CurrentJusin Bello, Parks, supra note 108, at 6 n.4. But see Yoram Dinstein, Legitimate MilitaryObjectives 78 INT'L STUD.139, 158 (2002) (indicating that "acivilian member of the political leadership does not become L. a military objective by himself and cannot be targeted awayfrom such objective"). In addition, targeting decisions should not depend on the constitutional arrangements of a particular country. In that respect, it is not uncommon for civilian politicians to become involved in directing military operations or selecting targets. SeeMichael Short, L. 78 AlliedForce 19, fromthePerspective theNATOAir Commander, INT'L STUD. 20, 25 (2002). In such situaof Operation tions those politicians leave themselves open to being considered as valid targets. 10 Protocol I, supra note 42, Art. 51(3); Protocol II, supra note 27, Art. 13.
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One approach to the temporal limitation found in the phrase "forsuch time as" (Art. 53(1) of Protocol I) has been to suggest that targeting civilianparticipantsshould be limited to times when they are firing weapons or otherwise posing an immediate threat. When not so engaged, these civilians would not be attacked."' While designed to maximize the protection ofuninvolved civilians,this interpretation might erode the humanitarian shield extended to civilians underAdditional Protocol I because groups could take advantage of it by planning operations when not bearing arms or overtly conducting operations. Concern has long been expressed over the idea of such a "revolvingdoor" of protection.112 Unfortunately, there is limitedjudicial guidance on this issue, as the case law has primarily dealt with the killing of persons who were hors de combat.l13 The argument that civiliansare protected unless engaged in overtlyaggressiveacts like carrying weapons may be particularly difficult to maintain where armed groups are technically accorded civilian status byvirtue of not being considered lawful combatants."14 the extent To that civilians fulfill the same function as combatants, either in the armed forces or as part of the organization of an "illegitimate"nonstate actor, they are logically subject to targeting under the same provisions of international humanitarian law. The foregoing discussion demonstrates that the principles regarding targeting in armed conflict are directly affected by the nature of interstate conflict and the group role played by the participants. In contrast, the human-rights-based normative framework focuses on the and protection of individuals"15 is predisposed to question any use of deadly force. The following review examines the manner in which human rights law regulates the use of such force.
V. HUMAN RIGHTS AND THE CONTROL OF EXTRALEGALKILLING
The human rightsframeworkemphasizes the use of reviewprocesses associatedwith the rule of law.16Its goal is strict control not only of force intended to kill, but also of any unintended
ISRAELAND OCCUPIED THE '11 STATE AND UNLAWTERRrTORIES: ASSASSINATIONSOTHER SeeAMNESTYINTERNATIONAL, FUL 29 KILLINGS (AI Index No. MDE 15/005/2001, Feb. 2001); seealsoMCKEOGH, supranote 60, at 140 (interpreting Protocol I to mean that irregular combatants could "move from the category of combatant to the category of civilian (and back again) .... permitting the same persons to be both combatant and non-combatant in the course of a day"). 112 SeeW. Hays Parks, Air Warand theLaw of War,31 A.F. L. REV.1, 118-20 (1990). 113 SeeCase 11.137,Juan Carlos Abella v. Argentina, 1997 Inter-Am.Y.B. on H.R 602 (Commission report). While dealing with the issue of direct or active participation in hostilities, the Abellacase centered to a large extent on allegations of summary executions and abuse that occurred after the participants were captured. Seealso Prosecutor v. Tadic, Opinion andJudgment, No. IT-94-1-T, para. 616 (May 7, 1997), excerpted 36 ILM 908 (1997) in (determining that the protection provided by common Article 3 should be extended to persons who were captured or detained because "[w]hatever their involvement in hostilities prior to that time,... [they] cannot be said to have been taking an active part in the hostilities"). 114 The loss of combatant privilege can result from not acting on behalf of a state or national liberation movement, or failure to comply with the group characteristicsof combatancy set out in Geneva Convention No. III, supra note 10, Art. 4(2) and Protocol I, supra note 42, Art. 43. Further, failure to meet the requirements of the second sentence of Article 44(3) of Protocol I can result in the loss of POW status, although Article 44(4) provides that such persons are to be "givenprotections equivalent in all respects to those accorded to prisoners of war."Six criteria are relevant to the determination of combatant status. It has been suggested that the first three-being organized, being under responsible command, and belonging to a party to the conflict-apply to the group and not to individuals. The remaining criteria-displaying a distinctive sign, carrying weapons openly, and complying with the customs and law of war-are both group and individual in nature. G. I. A. D. Draper, TheStatusof Combatants the and 1971 BRIT.Y.B. INT'L 173, 196-97. However, scholars have found it difficult to agree L. Question GuerrillaWarfare, of on which of the conditions are collective and which individual. According to one interpretation of Additional Protocol I, status cannot be denied on a group basis for a failure by an armed force to enforce compliance with international humanitarian law, see,e.g., MICHAEL A. NEWRULES FOR BOTHE, KARLJOSEF PARTSCH,& WALDEMAR SOLF, OF VICTIMS ARMED 238-39 (1982), but this interpretation does not appear to reflect the majorityopinion. CONFLICTS 115 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160, para. 146 (1995); see also McKerr v. United Kingdom, 34 Eur. H.R. Rep. 553,598, para. 108 (2001). See also the following three cases which differ only in relation to the facts and amount of damages awarded: HughJordan v. United Kingdom, App. No. 24746/94 (2001); Kelly and Others v. United Kingdom, App. No. 30054/96 (2001); Shanaghan v. United Kingdom, App. No. 37715/97 (2001). All these cases are available online at <http://www.echr.coe.int>. 116 SeeBROWNLE, supranote 84, at 65 (noting that "the concepts of human rights and the institutions aimed at the monitoring and enforcement of human rights constitute what is, to a certain extent, a discrete public order system").
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outcome involving deprivation of life.117 Limiting the use of force to situations of absolute necessity indicates that "a stricter and more compelling test of necessity must be employed [than] that normallyapplicable when determiningwhether State action is 'necessaryin a democratic society.'"1'8 The different context in which force is normally applied within a state is also reflected in the emphasis placed under the human rights framework on seizing an individual. For examthat "[t] he intrusiveness of a seiv. ple, the U.S. Supreme Court stated in Tennessee Garner19 zure by means of deadly force is unmatched.... The use of deadly force also frustrates the interest of the individual, and of society, injudicial determination of guilt and punishment."'20 A particular concern of supervisorybodies is that state agents will adopt or exercise a shootto-kill policy.'21All the same, the ability to seize an individual and to bring that person tojustice requires a law enforcement focus with a high level of physical control over the situation, as well as a well-developed judicial process to deal with the offender. These factors are not normally encountered in external conflicts, even when nonstate actors such as terrorists are involved. These strict human-rights-based standards of accountability find expression in the international principles on the use of force. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials require the adoption of rules and regulations on the use of force and firearms;122 encourage the development and deployment of nonprescribe clear warning on the use of firearms unless inaplethal incapacitating weapons;123 and state that firearms are to be used in a manner "likelyto decrease the risk of propriate;'24 unnecessary harm."'25 Firearmsmay be employed intentionally only "whenstrictlyunavoidable in order to protect life."'26Force, including firearms, may be used only "if other means remain ineffective or Circumstances such as political without any promise of achieving the intended result."127 instability or any other public emergency cannot be invoked to justify departing from the
The term "extralegalkilling"is used belowsynonymouslywith "extrajudicial" appearsto have killing. "Extrajudicial" its genesis in human rights documents such as the International Covenant on Civil and Political Rights, Article 6, which, in describing the right to life, specificallyqualifies it by prohibiting arbitrary deprivation of life and permitting the death penalty in certain respects. Much of the discourse of human rights emphasizes the controversial issue ofjudicially sanctioned killing. The term "extralegal"more directly reflects the scope of the authority to use force under human rights norms, including the right to act legitimately in self-defense. 117 McCann, 21 Eur. H.R. Rep. at 160, para. 148. 118 Id., para. 149. 19 490 U.S. 386 (1989), require a police v. Tennessee v. Garner, 471 U.S. 1 (1985). This case and Graham Connor, officer to have probable cause to believe a suspect poses a threat of serious physical harm, either to the officers or case sets out an objective standard of reasonableness to others, before using force to prevent escape. The Graham to consider if a suspect poses an immediate threat to the safety of police officers or others. This case law was relied on by the Department ofJustice in its review of the 1992 shooting of a suspect's wife by an FBI sniper, in which it determined that rules of engagement directing the police that "deadlyforce can and should be employed" against an adult male with a rifle if the shot could be taken without endangering any children were improper and failed to www.byington.org/Carl/ruby/ruby4.6.htm>
120
THE RUBY REVIEW REGARDING comply with constitutional standards. U.S. DEP'T OFJUSTICE,REPORTON INTERNAL RIDGE HOSTAGESITUATIONAND SHOOTINGSBYLAW ENFORCEMENT PERSONNEL, pt. IV.F.4, available at <http://
(visited Oct. 26, 2003).
L. 37 & Peter Raven-Hansen, Targeted The 667,677 (2003), Killingand Assassination: U.S.LegalFramework, U. RICH. REV. which found that "wartime [shoot-to-kill] rules are patently unconstitutional for a police action." SeealsoMcKerrv. United Kingdom, 34 Eur. H.R. Rep. 553, 595-96, para. 100 (2001) (allegations by next of kin that pattern of conduct by police authorities in using unnecessary and disproportionate force was evidence of a "shoot-to-kill"policy). 122 Basic Principles, supra note 63, paras. 1, 11.
123 124
Garner, 471 U.S. at 9. 121 in See Idahov. Hariuchi,253 F.3d 359,377, vacatedas moot,266 F.3d 979 (9th Cir. 2001), quoted William C. Banks
Id., paras. 2, 3. Id., para. 10.
Id., para. 11(b). Id., para. 9. 127 Id., para. 4.

126
125
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principles.'28Strict accountability for the use of firearms is called for by requirements to set up a system of reporting whenever law enforcement officers use such weapons and to report any incident of death or injury caused by the use of force.129 Law enforcement officers must be held accountable for the firearms and ammunition issued to them.'30 Governments, for their part, must provide adequate training and establish effective reporting and review procedures.'31In addition to making an independent administrative or prosecutorial review available, governments should enable persons affected by the use of force to access an independent process, including ajudicial process.132 Superior officers are to be held responsible if they know or "should have known" that subordinates had resorted to the unlawful use of firearms and "they did not take all measures in their power to prevent, supGovernments are to ensure that any arbitraryor abusive use of press or report such use."'33 force and firearms by law enforcement officials is punished as a criminal offense.34 Immunity shall be extended to law enforcement personnel who refuse to carry out an order contrary to these principles.'35 Finally,the defense of superior orders cannot be claimed if the order was unlawful and the officer had a "reasonable opportunity to refuse to follow it."'36 manifestly Similaraccountability requirements can be found in the Principles on the Effective PrevenThese principles tion and Investigation of Extra-Legal,Arbitraryand SummaryExecutions.137 the protection of evidence of the crime scene, including by conducting an adeemphasize Both sets of principles demonstrate the extent to which the human rights quate autopsy.138 seeks to limit the use of force and stresses accountability. process Human rights law devotes particular attention to "an effective official investigation when individuals have been killed as a result of the use of force."'39 The investigation is aimed at that domestic lawssafeguarding the right to life are properly implemented and that ensuring state agents or bodies are held accountable for "deathsoccurring under their responsibility."140 The expectation that such an investigation will result almost automaticallyfrom a use of force is reflected in the decision of the European Court of Human Rights in McKerrv.UnitedKingdom,where the Court found that this expectation was implied in the European Convention on Human Rights.l41The Court further stated that no matter what mode of investigation is employed, the authorities must act on their own initiative "once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures."'42This process involves taking reasonable steps to secure evidence, such as "eyewitness testimony, forensic evidence and, where appropriate, an autopsywhich provides a complete and accurate record of injuryand an objective analysisof clinical findings, including the cause of death."'43
128
Id., para. 8. Id., paras. 6, 11(f). 130 Id., para. 11(c). 11 Id., para. 22. 132 Id.,para. 23. 133 Id., para. 24.
129
134
135
Id., para. 7.
Id., para. 25. 136 Id., para. 26. 137 ESCRes. 1989/65, annex, 1989 UN ESCOR,Supp. No. 1, at 52, para. 1, UN Doc. E/1989/89, available at<http:// www.umn.edu/humanrts/instree/i7pepi.htm>. Exceptional circumstances such as "astate of war or threat of war, internal political instabilityor any other public emergency may not be invoked as ajustification of such executions." 138 Id., para. 9. 139 34 McKerr, Eur. H.R. Rep. 553, 599, para. 111 (2001). 140 Id. 141 Id. (citing European Convention on Human Rights, supra note 65, Arts. 1, 2).
142Id.
Id. at 599, para. 113; seeOgur v. Turkey, 31 Eur. H.R Rep. 912, 944-45, para. 91 (1999) (holding that the lack of a postmortem or other forensic examination and the failure to question personnel involved in the operation were indicative of an improper investigation); seealso Guilv. Turkey, 34 Eur. H.R Rep. 719, 744-46, paras. 88-95 (2000).
143
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An effective investigation must be "capable of leading to a determination of whether the and should be conforce used in such cases was or was notjustified in the circumstances"'44 ducted by persons independent of the state authorities implicated in the events. Moreover, the investigationshould make it possible to identify those responsible and should support their punishment.145The requirement of independence means not only a lack of "hierarchical or institutional connection but also a practical independence."'46 Further, the strict scrutiny of the use of lethal force is not limited to the actions of the state agents who "administer the force, but also all the surrounding circumstances including such matters as the planning and control of the actions under examination."147 Reviewingissues like planning and control introduces an element of overall state responsibility and inevitably takes in factors like training, orders, and rules of engagement. The reviewprocess must be reasonably expeditious and the investigation or its results must be subjected to a "sufficient element of public scrutiny... to secure accountability in pracThe tice as well as in theory."148 next of kin or the victim must be involved "tothe extent necesExamples of the mechanisms of review sary to safeguard his or her legitimate interests."'49 include police investigations, an independent prosecutor, a coroner's inquest, and criminal proceedings.'50 However, even where a multilayered process is in place, it may not meet the framestandardsof independence and transparency required under a human rightssupervisory lack of an independent police investigation, the decision of work. For example, in McKerrthe the director of public prosecutions not to explain why certain charges were not pursued, the limited role of the inquest, the nondisclosure of witness statements, the withholding of privileged information by government officials, the inabilityto compel the police officers to attend the inquest, and delays in both the police investigation and the inquest-all combined in the finding of a breach of the right to life under Article 2 of the European Convention.'51 Applied to its full effect, the human rights accountability framework demands the commitment of significant state resources and an exhaustive review of each use of deadly force. Perhaps inevitablyin the context of a systemdesigned to limit the use of force, the increased levels of violence associatedwith terrorismhave presented a special challenge to human rights supervisorybodies. The stress on the accountabilityprocess was evident in the decision of the a v. and Kingdom,'52case that involved European Court of Human Rightsin McCann Others United the IrishRepublicanArmy,a highly organized terroristgroup capable of transnationalviolence. Since the British government, using law enforcement means, albeit with militaryassistance,'53 has dealt with the IRA as a criminal organization, this European human rights case provides a useful contrastwith the assessment of the use of force in international armed conflicts. McCanninvolved the thwarting in 1988 by Gibraltarpolice and British military personnel of a planned IRAcar bomb attack against a military unit's ceremonial parade assembly area. The goal of the military'sparticipation was to assist the police in arresting an IRAActive Service Unit. As the operation unfolded, however, all three suspects were shot multiple times by members of the Special Air Service and killed. The soldiers had feared that the terroristswere going to set off the bomb by means of a push-button remote device, but when the operation was over, no weapons or detonating devices were discovered.
34 '44McKerr, Eur. H.R. Rep. at 599, para. 113. 145 Id.
146
147
Id., para. 112.
149 150
McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 161, para. 150 (1995). 148 34 McKerr, Eur. H.R. Rep. at 600, para. 115.
Id.
Id. at 603-12, paras. 124-56. 15' Id. at 612-13, paras. 157-58. 152 McCann, 21 Eur. H.R. Rep. 97 (1995).
153
149 (1990). TERRORISM G. DAVIDSONSMITH, COMBATING
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A badly divided court (10-9) agreed that the actions of the soldiers in shooting to kill did not violate the right to life, as they had honestly believed it necessary to use lethal force "in order to safeguard innocent lives."'54 the Court disagreed on whether the operation was Yet controlled and organized in a manner consistent with Article 2 of the European Convention. The decision to allow the suspects into Gibraltarwas seen by the Court as a serious miscalculation. It also determined that the authorities had failed to make allowances for alternative assumptions about the threat posed by the terrorists.155 Further, the majority ruled that the soldiers' reflex action in shooting to kill "lacksthe degree of caution ... to be expected from law enforcement personnel in a democratic society."156 contrast, the minority believed that In assessments of the situation should avoid "the temptations offered by the benefit of hindthat the authorities had been forced to plan and act on the basis of incomplete inforsight,"'57 In mation, and that the soldiers had faced a potentially devastating threat.'58 addition, the sus"had chosen to place themselves in a situation where there was a grave danger" that the pects soldiers' obligations to protect the lives of the suspects as well as civilians and military might conflict.159 Finally,the minority found strong evidence of a major terroristattack in the works and observed that simply stopping the terrorists at the border would have increased the risk that the IRA "could successfully mount a renewed terrorist attack on Gibraltar."160 Significantly, a key element of the disagreement within the Court concerned the issue of control. The majoritythought the situation should be controlled by keeping the terroristsout of the jurisdiction, largely because of the danger they posed to the citizens of Gibraltar.That consideration, in the Court's view, outweighed whether there would have been sufficient evidence to detain and arrestthe suspects at the border.161 Unfortunately, the majoritydid not consider the severity of the ongoing threat posed by the terrorists. The minority appears to have concluded that control was best exercised by allowing the terrorists to enter the jurisdiction. They could then be stopped when a sufficient basis to take action against them was established. This course exposed innocent civilians in Gibraltarto greater risk and increased the likelihood that deadly force would be used. These different approaches highlight the traditional domestic focus of law enforcement and thejurisdictional limitations associated with most criminal law. However, in the contemporarysituation of externally based terroristgroups willing to use weapons of mass destruction, the options of keeping them outside thejurisdiction or allowing them to enter both introduce a measurablyhigher risk.Ultimately, neither option may appear attractivefrom a securityperspective. As a result, the state would inevitablybe placed in the position of relying on another state to remove the terroristthreat (assumingthat the latter state is willing or capable of acting) or of exercising self-help either individually or collectively with other states in that regard.'62
McCann, 21 Eur. H.R. Rep. at 173, para. 200; id. at 179, para. 5 (joint dissenting op.). The majority deter154 mined that where a decision by security forces to use lethal force is based "on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken,"it could bejustified under the European Convention on Human Rights. 155Id. at 174, 176-77, paras. 205, 213. 156 Id. at 176, para. 212. 157Id. at 180, para. 8. 158Id. at 180-81, para. 9. 159Id. at 181. 60 Id. at 182, para. 11. 161 Id. at 174, para. 205. 162The issue of control is raised in the following quote by a senior Israeli official regarding the policy of "targeted killing": "Targetedkilling is not only veryvaluable,"Maj.Gen. Giora Eiland, chief of planning and policy in the Israeli militaryand one [of] its most senior officers, said in a recent interview."Ifwe could not use this method in areas like Gaza, where we do not control the territory ... we could not fight effectively against terrorist groups." Moore, supra note 53.
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The limitations of the McCanncase are not pointed out here to suggest that militaryforces employed in a domestic law enforcement role should not be subjected to a human-rightsbased accountabilityframework,but simply that the nature of the threat and the resulting circumstances within which force is applied will ultimately govern the choice of that framework. A threatened use of weapons of mass destruction by a transnational terrorist group may not be amenable to a human-rights-based review process. For example, when the violence used by terroristsreaches the level inflicted byAl Qaeda on September 11, 2001, state action under human rights principles will find itself less applicable than it was in McCann. Proponents of the view that terrorism is best dealt with as a law enforcement matter may have to be prepared to consider shooting down a hijacked civilian plane. Factors to be taken into account would inevitablyinclude the damage the plane might inflict on its intended target. Such an analysiswould also have to weigh the relative importance of both objects (either state or private property) and people (military or civilian). Finally, a proportionality assessment would have to be made regarding the number of innocent civilianswho would be killed if the plane were shot down. State authorities would probablybe under pressure to reach a decision with little time for reflection and limited information about the intentions and motivations of the hijackers. Anyone considering such a scenario in terms of a human-rights-based accountability process would in effect have to apply armed conflict targeting principles. Thus do acts of terrorism on the scale now threatened bring new challenges to the traditional human rights concepts regarding the use of force. Moreover, the attempt to apply human rights standards to a situation of armed conflict could have an adverse impact on the integrity and strength of 63 peacetime norms. Rather than attempt to extend human rights norms to an armed conflict scenario, the appropriate approach is to apply the lex specialisof humanitarian law. Force applied in accordance with humanitarian law could not result in extralegal killing since it would not constitute an arbitrarydeprivation of life. Domestic courts and review bodies are capable of applying these humanitarian law criteria;however, it will require a wayof thinking about both the threat and the state's reaction to it that differs from traditional law enforcement approaches.
VI. ACCOUNTABILITYAND CONFLICT
Like the human rights framework governing the use of force, international humanitarian law has an accountability structure. The principle of criminal responsibility, including command responsibility,is well established under international humanitarian law.64The doctrine are of superior orders and the obligation to disobey manifestly illegal orders165 also fundamental tenets of the lawregulatingarmed conflict.A condition precedent for attainingcombatant status is the existence of a responsible command and a disciplinary system that enforces In compliance with the rules of internationallawin hostilities.'66 addition, statescommonly issue and mission-specificrules of engagement to govern the use of force during operations. standing Significant efforts have been made to establish an international legal frameworkof individual criminal responsibility through the definition of international crimes and the creation of ad hoc and permanent international criminal courts. In addition, the International Court ofJustice remains available, subject to specialjurisdictional limitations, to deal with disputes between states. Additional Protocol I to the 1949 Geneva Conventions makes provision for an
163 91 MichaelJ. Matheson, The Opinionsof theInternationalCourtofJusticeon the Threator Useof Nuclear Weapons, AJIL417, 423 (1997). 164 Protocol I, supra note 42, Arts. 86, 87; see also Prosecutor v. Delalid, supra note 57, paras. 182-99. 165 ICC Statute, supranote 27, Art. 33; seealsoProsecutorv. Erdemovid, SentencingJudgment, No. IT-96-22-Tbis (Mar. 5, 1998). 166Protocol I, supra note 42, Art. 43.
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International Fact-Finding Commission.'67States can also attempt to use traditional means of enforcing compliance with international humanitarian law, such as reprisals,although the ability to engage in reprisals has been significantly limited by developments in international The accountability structure can be enhanced by the development of humanitarian law.'68 of neutral claims commissions to deal with claims arisingfrom "violations international humanitarianlaw,including the 1949 Geneva Conventions, or other violationsof internationallaw."'69 The effort to enhance the accountability framework under international humanitarian law has not been limited to situations of international armed conflict. The Appeals Chamber's decision in Prosecutorv. Tadic, 70the Statute of the International Criminal Tribunal for and the Rome Statute of the International Criminal Courtl72 Rwanda,'71 recognize the need to expand the reach of the accountability process under humanitarian law to internal conflicts. Nevertheless, within the international humanitarian law normative framework,there is no body like "the European Commission of Human Rights or the Human Rights Committee, capable of making objective determinations of fact."173 International and regional human rights bodies have begun to fill this void with respect to both international and noninternational armed conflict by venturing into what has traditionally been viewed as the separate and discrete area of international humanitarian law.74 Commission on Human Rights decided that it was competent For example, the Inter-American to apply international humanitarian law in cases like Abellav. Argentina'75 Coard United and v. The Abellacase involved the 1989 seizure of a military barracks by forty-twoarmed States.176 attackers during an abortive coup attempt in Argentina, and the Coard case dealt with a challenge by seven persons who were detained by the United States during the 1983 militaryoperation in Grenada. The decision by the Commission in Abellahas been the subject of critical case to the competence of the Commiscomment.'77The United States objected in the Coard sion to apply international humanitarian law.178 The United States has similarly challenged the Commission's authority to issue precautionary measures, asking that the legal status of Qaeda and Taliban detainees at Guantanamo Baybe determined by a competent tribunal.179 This position is based in part on the argument that "the Commission lacks thejurisdictional competence to apply international humanitarian law."'80
167 Id., Art. 90. For a general discussion of the means available to prevent breaches of international humanitarian law and supervise the conduct of the parties to a conflict, see GREEN, supra note 8, ch. 17. 168 For assessments of the limitations on the use of reprisalsunder international humanitarian law, see Christopher in Greenwood, Reprisalsand Reciprocity theNew Law of ArmedConflict,in ARMEDCONFLICTAND THE NEWLAW 227 (Michael A. Meyer ed., 1989); Meron, supra note 57, at 247-51. 169 Agreement Between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Dec. 12, 2000, Art. 5, 40 ILM 260 (2001). 170 Prosecutor v. Tadic, supranote 8, paras. 96-127. 171 Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian LawCommitted in the Territoryof Rwandaand RwandanCitizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1January 1994 and 31 December 1994, SC Res. 955, Art. 4 (Nov. 8, 1994), 33 ILM 1598 (1994). 172ICC Statute, supranote 27, Art. 8(2) (e). 173 Law in InternalConflicts, ARMEDCONFLICT THENEW in AND Francoise Hampson, HumanRightsand Humanitarian LAW,supranote 168, at 55, 71. 174For an outline of the increasing involvement of various UN and regional bodies in referring to international humanitarian law norms, see Meron, supra note 57, at 266-75. 175Abella,supra note 113. 176 Case 10.951, Coard and Others v. United States, 123 ILR 156 (Inter-Am. Commission report 1999); see also Case 10.573, Salas and Others v. United States, 123 ILR 118 (Inter-Am. Commission report 1993). Liesbeth Zegveld, TheInter-American Commission HumanRightsand International on '77 HumanitarianLaw:A Comment on theTablada Case,38 INT'L REDCROSS 505 (1998). REV. 178 Coard,123 ILR at 169, para. 38. 179Inter-American Commission on Human Rights, Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba) (Mar. 12, 2002), 41 ILM 532 (2002). 180 Response of the United States to Request for Precautionary Measures-Detainees in Guantanamo Bay, Cuba (Apr. 15, 2002), 41 ILM 1015, 1019 (2002).
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In contrast, the European Court of Human Rights has made some limited direct use of the international humanitarian law. For example, in Ergiv. Turkey181 Court looked at whether gendarmes had failed to take "allfeasible precautions in the choice of means and methods of a security operation" involving the placement of an ambush.'82This use of the language of international humanitarian law resulted from the direct interface that can occur between that v. law and human rights norms when dealing with terroristactivity.More recently, in Bankovic a and Others,183 group of Yugoslavcitizens challenged NATO's bombing of the Serbian Belgium radio station during the 1999 Kosovo campaign. The government respondents argued, inter alia, that international humanitarian law, the International Criminal Court for the Former Yugoslavia, and the International Criminal Court were created to deal with the conduct of states engaged in military action;'84but the Court did not rule on that issue, as it ultimately found it did not have jurisdiction on other grounds. Despite ongoing controversyover the involvement of human rights bodies in applying international humanitarian law, it has been said to "fillan institutional gap and give international This is a "gap"in which humanitarian law an even more pro-human-rights orientation."185 human rights nongovernmental organizations (NGOs) and the media are taking increasing interest. The resulting public scrutiny and movement by states to address that concern have considerably influenced the way modern military forces conduct hostilities.'86 Given the degree of interaction between international human rights law and humanitarian law, and their sharing of many principles, it may become more and more difficult to suggest that human rights bodies should not apply principles of international humanitarian law. While there is force to the argument that international humanitarian law consists of a discrete body of law for the governance of most interstate conflict, this view must inevitably be reconciled with situations where a state continues to exercise forms of internal governance during armed conflict. Although the Martens clause might be interpreted as denying the existence of a gap in the applicationof humanitarianprinciples during armed conflict, such an approach does not address what "the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience"187 actually means when dealing with situations more commonly associated with such internal governance. As noted above, the two normative frameworksmay interact directly in noninternational armed conflict, the governance of occupied territories, and countering the contemporary threat of international terroristsoperating within a state. The long-term solution to this issue may not be to "barthe door" to human rights principles and their advocates but, rather, to ensure that human rights accountabilitymechanisms take into consideration both the nature of warfareand the unique aspects of international humanitarian law.
VII. THE DIRECT INTERFACE
The direct interface between humanitarian law and human rights law with respect to internal governance can be seen in the potential involvement of law enforcement authorities in countering violence that reaches a level bordering on armed conflict. One waythe division between the two normative legal regimes is effected is by attempting to separate police forces from forces with the status of combatants. For example, Article 43(3) of Additional
181 182
Ergi v. Turkey, 32 Eur. H.R. Rep. 388 (1998).
Id. at 431, para. 79. 183Bankovic v. Belgium and Others, 123 ILR 94 (2001).
105, para. 43. Meron, supra note 57, at 247. 186 See,e.g., Sarah Sewall, An Empty to TIMES,Mar. 21,2003, atA19 (noting that public concern Pledge Civilians?N.Y. over civiliancasualtiesin Iraq prompted the U.S. militaryto publicize its significanteffortsto limit "collateraldamage"). 187 Hague Regulations, supra note 104, pmbl.
184 Id. at
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or Protocol I provides for the incorporation of a "paramilitary armed lawenforcement agency" into the armed forces of a party to the conflict. Police personnel not incorporated into the armed forces would remain focused on lawenforcement functions. In dealing with civildefense, Additional Protocol I contemplates the deployment of lightly armed personnel (including members of military units) who are not considered part of the armed forces, but are tasked with "emergencyassistancein the restoration and maintenance of order in distressed areas."'88 Similarly, with regard to occupied territories, Article 54 of the Fourth Geneva Convention stipulates that public officials, which includes police officers, shall maintain their status after occupation has commenced. Nevertheless, the potential remains for a significant interface between ordinary law enforcement and actual armed conflict. The type of conflict most often referred to as one where human rights law and humanitarian law interact is noninternational armed conflict. Common Article 3 of the 1949 Geneva Conventions has been described as a "Convention in miniature."'89 establishes minimum It standardsof humane treatment for internal armed conflicts. In addition, a person can benefit from international humanitarian law because it "does not permit derogation on grounds of emergency, a rule that was developed precisely for situations of the highest emergency."'90 Similarly,Theodor Meron has noted that because "human rights law, or at a minimum its nonderogable core, continues to apply in times of armed conflict, gaps in protection under the law of war can be filled in some circumstances."'9' The exact nature and extent of this interface is not alwaysclear. Common Article 3 does not provide guidance as to the level of conflict that is required before it can be invoked. In contrast, Additional Protocol II, which supplements common Article 3, applies when dissident armed forces or other organized groups under responsible command exercise "such control over a part of [a contracting party's] territoryas to enable them to carryout sustained and concerted militaryoperations,"192 although the Protocol does not apply "to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature."'93 general, one finds a reluctance to extend this minimum In standard to the application of common Article 3 of the Geneva Conventions, probably out of concern that it would adversely affect efforts to extend humanitarian protection to victims of an internal armed conflict.'94 There is an ongoing tension between efforts to incorporate humanitarian standards into noninternational armed conflicts and the view of states that such conflicts involve the legitimate suppression of criminal activity.Common Article 3 acknowledges that the legal status of the parties is not affected by its provisions, and Additional Protocol II confirms the role of the state in using legitimate means to maintain or reestablish "lawand order" or to defend
188 Protocol I, supranote 42, Art. 61 (1) (k). These civil defense personnel lose their protected status if they perform acts harmful to the enemy. Militarypersonnel serving in civil defense organizations are prisoners of war. Id., Arts. 65(1), 67(2). 189 ICRC COMMENTARY, note 9, Art. 3, at 34, 41. supra 190 Meron, supra note 57, at 267. 191 seealso in Id.; Asbj0rn Eide, Allan Rosas, & Theodor Meron, CombatingLawlessness GrayZoneConflicts Through Minimum Humanitarian Standards,89 AJIL215 (1995). 192 Protocol II, supra note 27, Art. 1. '93 Id., Art. 2. The declaration of the United Kingdom, made at the time it signed Additional Protocol I, states that the level of intensity of military operations that must be present before the Protocol or the Conventions apply "cannot be less than that required for the application of Protocol II... to internal conflicts." United Kingdom, Declaration, para. (a), 1125 UNTS 432, 432, availableat <http://www.icrc.org/ihl>. 194In Abella, supra note 113, at 681-84, paras. 152-53, the Inter-American Commission on Human Rights was of the view that common Article 3 did not extend to "riots, mere acts of banditry or an unorganizedand short-lived rebellion"; however, the Commission also acknowledged that the line separating an especially violent incident of international disturbances from the application of international humanitarian law principles "maysometimes be blurred and, thus, not easily determined." See also Hampson, supranote 173, at 67-68, for a discussion of the scope of common Article 3 of the 1949 Geneva Conventions.
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national unity and territorial integrity.'95 Nevertheless, principles of customary international law have been recognized as applicable to noninternational armed conflict196 and it is open to the parties to negotiate special arrangements to bring the remainder of each Convention into force. This approach has been used to obtain prisoner-of-war treatment for captured In personnel.197 addition, as noted, Additional Protocol II does provide for the protection of civilians"unlessand for such time as they take a direct part in hostilities." a result, in making As decisions on targeting, attacks on persons must be limited to those participating directly in the conflict. The introduction of international humanitarian law norms into internal conflicts requires the consideration of "twolegal systems-the national and the international-which have not The lack of a clear line of demarcation between states of been harmonized, side by side."'98 emergency and the point at which an armed conflict starts makes it difficult to assess when consideration of human rights norms should end and the application of international humanitarian law norms should begin. Criteria such as levels of violence and a state's ability to exercise normal control, particularly over territory, offer some guidance.l99 In Abella Inter-AmericanCommission on Human Rights relied on the "concerted nature the of the hostile acts undertaken by the attackers,the direct involvement of governmental armed forces, and the nature and level of the violence" in deciding that international humanitarian law applied.200 However, the involvement of military forces cannot be understood as autothe maticallydetermining that an armed conflict exists. In McCann European Court of Human was careful to note that the use of the specialized military forces was only natural "in Rights order to deal with the threat in the safest and most informed manner possible."20' Ultimately, care may need to be taken to avoid rushing to a determination that international humanitarian law applies since that law introduces broader authority to use force, including the targeting of individuals. Another challenge in trying to ascertain when law enforcement rules end and those governing armed conflict begin ariseswith respect to occupied territory.The development of the Fourth Geneva Convention constituted one of the most noteworthy advances in international humanitarian law of the twentieth century. The Convention operates as part of the lexspecialis It of international law, but it also incorporates many human rights principles.202 clarifies the role of the occupier regarding civilians falling under itsjurisdiction and requires the maintenance, with some exceptions, of the penal laws, tribunals,judges, and public officials of The the occupied territories.203 occupier becomes responsible for maintaining law and order
Protocol II, supra note 27, Art. 3(1). Prosecutor v. Tadic, supra note 8, paras. 96-127. 197 Neither common Article 3 of the 1949 Geneva Conventions norAdditional Protocol II refers to "combatants." An example of a special agreement extending "treatment"as POWs to combatants can be found in the Bosnia and Herzegovina Agreement No. 1, which states, "Captured combatants shall enjoy the treatment provided for by the Third Geneva Convention." Agreement No. 1, May 22, 1992, Bosn.-Herz., ?2.4, reprintedin MARCO SASSOLI& PROTECT WAR?1112, 1115 (1999). IN A. LAW ANTOINE BOUVIER, HOWDOES 198 and InternationalLaw (IV), INT'L REV. REDCROSS,Jan.1968, at 7, 12. Movements W.J. Ford, Resistance 199However, as Meron notes: "There is no agreed-upon mechanism for definitively characterizing situations of violence." Meron, supranote 57, at 261. 200 Abella,supra note 113, at 684, para. 155. 201McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 168, para. 183 (1995); see also MOIR, supra note 49, at 39. 1998 and Human RightsRegimes Regimes Belligerent Between 202JochenAbr. Frowein, TheRelationship Occupation, of Y.B. HUM.RTS.1. In assessing the interface between the two normative regimes, Frowein concludes that the ISR. law of belligerent occupation has a limited specific jurisdiction over everyone under itsjurisdiction. "Thatmeans," he states, "that the obligations under the human rights conventions do apply. However, the specific rules of the Fourth Geneva Convention take precedence regarding specific measures which arejustified on the basis of these provisions." Id. at 11. 203 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. 54, 64, 6 UST 3516, 75 UNTS 287.
195 196
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in occupied territories.204 These requirements, in turn, point to a human rights regime of to govern the law enforcement activities of security officials. accountability In some respects the role performed by the occupier resembles governance during noninternational armed conflicts, as the task can range from ordinary policing to direct participation in combat. It has been indicated that a human rights framework may be applied as a matter of law to areas of occupation because of the nature of the control exercised by the the occupying authorities. In Bankovic European Court of Human Rights indicated thatwhere "effective control" is exercised by the state over territory and its inhabitants abroad, it may result in the extraterritorial application of the human rights regime. However, the Courtwas also careful to note that the Convention is a constitutional document operating in a regional context and "wasnot designed to be applied throughout the world, even in respect of the conduct of Contracting States."205 In Coard Inter-American Commission on Human Rights interpreted itsjurisdiction as the to areas where "the person concerned is present in the territory of one State, but extending subjectto the control of another State-usually through the actsof the latter'sagents abroad."206 Similarly,Professor Meron has argued that the International Covenant on Civiland Political However, even if it were Rights should be construed as having extraterritorial application.207 determined that a human rights system of accountability did not apply as a matter of law to occupied territory, it would ordinarily be logical as a matter of policy to apply human rights norms to an occupier's policing function. The use of force in occupied territory will not alwaysbe amenable to the supervision of a human rights framework. The Fourth Geneva Convention has to be read with the understanding that it focuses on the protection of civilians. Neither that Convention nor the provisions of the 1907 Hague Conventions on occupation encompass all aspects of international humanitarian lawapplicable to occupied territory.While arrest and prosecution are an available option for dealing with threats to security, the Geneva Convention does not give any concrete directions on how to confront resistance movements militarily. An occupying power is going to face situations of common criminal activity that are more suitable for a human rights regime of accountability. Such situations could involve the operations of the civilian police force of the occupied territory, as well as the security forces of the occupying power. At the same time, an armed conflict may be continuing and the hostilities may involve the direct participation of both combatants and civilians. The term used by Francis Lieber for resisters in occupied territorywas "war-rebel," which meant one who "return[s] to war after been conquered."208 After a limited attempt to extend prisoner-of-warstatus to memhaving bers of organized resistance movements in the Third Geneva Convention, Additional Protocol I now provides less stringent criteria for them to gain combatant status.209 Operations against those combatants are covered by international humanitarian law.A similarconclusion can be reached about resistance movements whose members are unprivileged belligerents. While their crimes are considered domestic in nature, unprivileged belligerents can pose the same threat as combatants. Their resistance thus falls within the category of armed conflict, as would operations by groups that use terrorist tactics in conducting their resistance.
204 note 104,Art.43. Hague Regulations, supra v. and Bankovic Belgium Others,123ILR discussion the territorial on 94,116,para.80 (2001).Forfurther scope of human rightsprotection,see Fitzpatrick, note 33, at 252-55. supra 206 Coardand Othersv. United States,123 ILR156, 168,para.37 (Commission report1999). 207 Theodor Meron,Extraterritoriality 89 Treaties, AJIL 78-79 (1995). 78, ofHuman Rights 208Francis Parties Considered Reference theLawsand Usages War, with to in Lieber, Guerrilla reprinted RICHARD of SHELLY HARTIGAN,LIEBER'SCODE AND THE LAWOF WAR 31, 37 (1983). 209 The expansionof Article4(2) of GenevaConventionNo. 3, supranote 10, to includeorganizedresistance movements widelyseen asan ineffectualattemptto providePOWstatusto irregular is forcescarrying indirect out warfare occupied territory, it still requiredthe wearingof a fixed, distinctive in as sign. SeealsoProtocolI, supra note 42, Arts.43, 44.
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The challenge lies in separating incidents that are simply criminal in nature from those that form part of the armed conflict. The difficulty of separating civil unrest from ongoing armed resistance has been graphically illustrated in the attacks on forces of the United Kingdom and the United States following the cessation of major combat operations in Iraq on Criteria not that dissimilar to those used to identify noninternational armed May 1, 2003.210 conflicts might be employed, including the nature of the opposing force (i.e., Is the group organized to conduct hostilities?), the level of violence used by the group, and the degree of freedom of the group in terms of operating outside the occupying power's control. Situations involving lengthy periods of occupation, such as in the Middle East, further complicate attempts to resolve the interface between human rights law and international humanitarianlaw.211 Long-termgovernance might inevitablycreate the expectation that international human rights norms associated with peaceful governance will apply.Yet even in the Israeli/Palestinian conflict it is widely recognized that international humanitarian law applies As in the occupied territories.212 a result, in addition to the provisions protecting persons in territories found in the 1907 Hague Regulations and the Fourth Geneva Convenoccupied tion, the rules on the methods and means of warfarewill be applicable. International humanitarian law would therefore govern the use of force relating to the conduct of hostilities. The question is not necessarily whether individuals will be targeted but, rather, whether the targeted person is "taking a direct part in hostilities" and whether operations are conducted according to the laws governing armed conflict.21 The third situation involving a direct interface between human rights law and international humanitarian law arises in the context of the post-September 11 domestic operations conducted as part of the "waron terrorism."Many countries have been engaged in an international armed conflict in Afghanistan and elsewhere, such as on the high seas. Even though the acts of terrorismbeing defended against are instigated and planned offshore, they can manifest themselves as concrete threats arising from within the state. As President George W. Bush has noted in respect of the United States, "[T] he front of the new war is here in America."214 In this conflict the law enforcement apparatus of the state plays the leading role in counHomeland tering the terroristthreat domestically. In the United States the NationalStrategyfor mission areas:intelligence and warning, border and transportaidentifies six critical Security tion security,domestic counterterrorism,protecting criticalinfrastructure,defending against The Department of catastrophic terrorism, and emergency preparedness and response.215
COMP. 210 Address to the Nation [by President George W. Bush] from the U.S.S. Abraham Lincoln, 39 WEEKLY Doc. 516 (May 5, 2003). However, this did not mean that all combat operations had ended. Amy Waldman, PRES. N.Y. TIMES,July 4, 2003, at Al. U.S. 'Stillat War,'General Declares, Afterthe War:Combat; The Territories For a discussion of this interface, see Adam Roberts, Prolonged 211 MilitaryOccupation: Israeli-Occupied Since 1967, 84 AJIL44, 97 (1990). 212 Israel claims that the Fourth Geneva Convention does not apply as a matter of conventional law to its control of the "occupied territories," although the government has indicated its willingness to follow the humanitarian provisions of the Convention. The Israeli government has not contested the application of the 1907 Hague RegulaTHE OCCUPATION 32-34 (2002); see also MICHAELJ. KELLY, tions to those areas. DAVID KRETZMER, OFJUSTICE 156-59 (1999). As Adam Roberts notes, the IN PEACEOPERATIONS AND ORDER COMPLEX RESTORING MAINTAINING majority of the international community, and of international legal opinion, has not accepted that the Fourth ? Geneva Convention is not formally applicable in that case. Adam Roberts, WhatIs a MilitaryOccupation 1984 BRIT. Y.B. INT'L L. 249, 282. Recognition of the application of international humanitarian law is reflected in the 2002 United Nations report on events inJenin and other Palestinian cities. Report of the Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/10, UN Doc. A/ES-10/186, at 5, paras. 11-13; seealso AMNESTY AND IDF FROM SCRUTINY: VIOLATIONS SHIELDED TERRITORIES: OCCUPIED ISRAEL THE INTERNATIONAL, AND INJENIN RIGHTS IDF 14 NABLUS60-65 (AI Index No. MDE 15/143/2002, Nov. 2002) ;JENIN: MILITARYOPERATIONS, HUMAN WATCH, ISRAEL, NO. 3(E), May 2002, at 10-11, availableat <http://hrw.org/reports/2002>. 213 SeeAMNESTYINTERNATIONAL, supranote 212, at 62 (indicating that "persons who take direct part in hostilities may temporarily lose their status as protected persons, but they do so only for such time as they take direct part in hostilities"). But seeParks, supra note 112, at 118-20. DOC.2090, COMP. 214 Remarks on Signing the Homeland Security Act of 2002 (Nov. 25, 2002), 38 WEEKLY PRES. 2090 (Dec. 2, 2002). 215 NATIONALSTRATEGY FORHOMELANDSECURITY, supra note 2, at viii.
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Justice and the Federal Bureau of Investigation remain the leading law enforcement agencies for countering the terroristthreat.216 Similarly,in Canada the RoyalCanadian Mounted Police, the Canadian Security Intelligence Service, and other nonmilitary forces are the primaryreOverall, the mobilization of national policing sponders to threats presented byAl Qaeda.217 assets represents a new form of participation in "conflict"that is significantly different from that taken in World War II. It is also an approach that appears to run counter to the humanitarian law attempt in Additional Protocol I to separate armed forces from the exercise of the policing function.218 The law enforcement focus of the response to international terrorism emanates directly from the nature of the threat. Terrorist groups like Al Qaeda are private nonstate actors who carryout part of their operations within the state. They rely on concealment within the population both for protection and for carryingout their terroristacts. In international humanitarian law terms, their status is that of unprivileged belligerents and it does not change whether they are operating outside or inside a state. Where necessary, Al Qaeda has been targeted internationally under the governing framework of international humanitarian law. However, despite being carried out in the context of an armed conflict, the terroristacts themselves contravene the domestic laws of the state in which they are performed. The internal law enforcement response is consistent with the nature of the threat and the control exercised by the state domestically. Further, it directly reflects the effectiveness of internal state mechanisms in dealing with criminal activitywithin national borders. The use of domestic police and counterintelligence agencies also offers the potential to minimize violence and therefore enhance political acceptability, particularly in democracies. While the militaryhas a role to play in domestic law enforcement, in many states it does not normallyrepresent the most effective means of countering the threat. This limitation does not mean there will be no need for a militaryresponse. As was evidenced on September 11, 2001, the violence inflicted by international terrorismcan quicklyreach the level of an armed attack as contemplated in Article 51 of the United Nations Charter. However, in practical terms, the training and type of operations law enforcement personnel would be involved in to counter the new terrorist threat would usually bring the governance of the use of force comfortablywithin the human-rights-basedstructure.Still, assessingwhen the threat canjustify the use of force remains a challenge under international humanitarian law and, like deciding to use armed force internationally, appears to be primarily an executive function based on the distribution of authority under domestic constitutional arrangements.219 The thresholds to be applied in deciding how to counter domestic threats posed by international terrorist groups like Al Qaeda are not dissimilar to the types of decisions that must be made for noninternational armed conflicts and occupied territories. The transition to a response governed by international humanitarian law is linked directly to the nature of the threat and the level of violence. The state's response would be controlled in practical
Id. at 25-28; U.S. Dep't of Homeland Security, Organization of the Department of Homeland Security, at <http://www.whitehouse.gov/deptofhomeland/sect2.html> (visitedOct. 26,2003). The response designed to secure the United States from terrorist attacks has included the reorganization of government departments into a Department of Homeland Security. 217 Dep't of Foreign Aff. & Int'l Trade, Canada'sActions AgainstTerrorism Since September 11th-Backgrounder, at<http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=l &cat= &did=1250> (last modified Oct. 30, 2002); Royal Can. Mounted Police, Post-September 11th-The Fight Against Terrorism, at <http://www.rcmpgrc.gc.ca/security/index_e.htm> (last modified Dec. 23, 2003); Can. Security& Intelligence Serv.,Counter-Terrorism (Aug. 9, 2002), at <http://www.csis-scrs.gc.ca/eng/operat/ct_e.html>. 218 Protocol I, supra note 42, Art. 43. 219For example, the United States has a well-developed legal framework governing the use of its armed forces for homeland defense. A study by Paul Schott Stevens concludes that the constitutional grants of power in combination "establish the considerable range of a president's lawful prerogatives in answering the needs of the nation, most especially in times of grave crisis," and that "the president has ample legal authority to call upon the armed forces to defend American territoryin the event of a sustained or catastrophic terroristattack."PAUL SCHOTr STEVENS,
U.S. ARMEDFORCESAND HOMELANDDEFENSE:THE LEGALFRAMEWORK (2001). 6
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terms by rules of engagement. Certainly, a state exercising effective control over its territory, and equipped with a well-functioning lawenforcement apparatus, could normally deal forcefullywith international terroristswithin the more restrictivehuman rights framework.Thus, the deadly force against those terroristswould not be used under international humanitarian law unless they threatened to wreakviolence on a par with the events of September 11, 2001. These three scenarios highlight areas of interface between international human rights law and international humanitarian law. Each scenario involves the state as the "rightauthority" dealing with activities that primarilyfall within domestic criminal activitybut are carried out in the context of an armed conflict. In these situations the nature of the threat and the ability of the state to employ normal mechanisms of control associated with law enforcement and peaceful governance directly affect the response available to it. A major advantage of using force in accordance with human rights norms is that the overall level of violence is lowered.
VIII. A ROLE FOR HUMAN RIGHTS IN CONTEMPORARYCONFLICT
The question remains as to how the human rights and humanitarian legal regimes can interact. A particular strength of the human rights process has been the development of a strict accountability framework. The present interest expressed by human rights bodies in international humanitarian law may force the generation of a stronger process of accountability than is currently available. For example, use might be made of the International FactFinding Commission provided for under Additional Protocol I.220 As human rights organizations increasingly become involved in issues pertaining to international humanitarian law, two main areas may have to be addressed:clarificationof the roles performed by various mechanisms of accountability and adjustment of accountability principles to reflect the nature of the armed conflict in question. The human rights framework does operate in accordance with certain traditionallimits that may bear on the role it can play in governing armed conflict. For example, the fact that human rights law is designed to function in peacetime, contains no rules governing the methods and means of warfare,and applies only to one party to a conflict led at least one human rights nongovernmental organization to look to international humanitarian law to provide a "methodological basis for dealing with the problematic issue of civiliancasualtiesand tojudge objectivelythe conduct of military operations by the respective parties."221 case, the Inter-AmericanCommission on Objectivityis particularlyimportant. In the Abella Human Rights declined to assess the petitioners' motives for taking up arms because "asa rule, itsjurisdiction does not extend to the conduct of private actors which is not imputable It to the State."222 has been noted that the "[a]pplication to only one party to the conflict, the State, may be considered as contradicting a basic principle of humanitarian law, according If to which both parties to the conflict have equal rights and duties."223 a human rights body does not also direct its attention to the actions of a nonstate actor in terms of compliance with international humanitarian law, it may leave the perception of not being evenhanded. The body may even come to be seen as a tool for restrictingthe activitiesof one party to a conflict.
220 Protocol I, supranote 42, Art. 90. Human rights principles emphasize transparency in the conduct of investigations. For example, in respect of Iraq, U.S. authorities have been called upon byAmnesty International to establish "athorough, independent and public investigation" into deaths and injuries resulting from the use of lethal force during demonstrations by Iraqicivilians.Amnesty International, Press Release, Iraq:Death of CivilianDemonstrators Must Be Investigated (Apr. 30, 2003) (AI Index No. MDE 14/103/2003). However, the abilityof the parties to a conflict to limit public disclosure of the findings of the Fact-Finding Commission could hamper its effectiveness. Protocol I, supra,Art. 90(5) (c). 221 Robert Kogod Goldman, International in Humanitarian Law: AmericasWatch's Experience MonitoringInternal L. 9 ArmedConflicts, AM.U.J. INT'L & POL'Y49, 51 (1993). 222 Abella,supranote 113, at 698, para. 175. 223 Zegveld, supranote 177, at 511 n.21.
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Other human rights bodies that may perform an investigatory role regarding the international humanitarian law regime are the ICRCand NGOs. While the ICRCis essential to maintaining standards of humanity in the midst of armed conflict, its focus on the victims of conflict and the need to maintain confidentiality with the parties to the conflict limit the degree to which it can publicize breaches of the Geneva Conventions.224 Human rights NGOs are an increasinglyimportant and effective part in pressuringfor compliance with internaplaying tional humanitarian law. However, they mayfind that their effect is limited, like that of human rights supervisorybodies, if they maintain a traditional human rights focus directed solely at the actions of the state. In a positive development, NGOs are devoting more and more attention in their reports to the actions of all groups involved in a conflict.225 Notwithstandingthis change in approach by human rightsbodies, a report by Human Rights Watch on two shootings of Iraqisby United States militaryforces in Fallujain late April 2003 highlights the challenges that face NGOs in addressing alleged human rights abuses in the context of international armed conflict.226 The report manifests considerable effort to paint a broad background, including interviewsof both U.S. militarypersonnel and local citizens. Ultimately, Human Rights Watch recommends a further "full, independent and impartial Its investigation."227 report also reflects traditional human rights goals in seeking to hold people accountable under international humanitarian law. It recommends evaluating the crowd control measures used by United States forces, assessing ways to avoid violence and minimize civiliancasualties,determining whether the lawenforcement training of the soldiers meets the standards of international humanitarian law, and making the findings of the investigation public.228 What the report does not fully resolve is the impact of ongoing combat operations at the time of the incidents and the "possible" activitiesof members of the Iraqi resistance who were to have fired at the troops and fled.29 The report appears premised on the conclusion alleged that the occupying power had entered a postconflict stage and that the military personnel were operating exclusivelyin a lawenforcement role, despite having acknowledged the possible In presence of armed resistance forces within the town and the crowd itself.230 this incident
224 to the Law ofArmedConFrancoise Hampson, UsingInternationalHuman RightsMachinery Enforce International REV.119, 137 (1992). flicts, 31 MIL.L. & L. WAR 225 WITHOUT DISTINCTIONSee,e.g.,AMNESTYINTERNATIONAL, note 212, at 67; AMNESTY INTERNATIONAL, supra ON BYPALESTINIANARMED (AI Index No. MDE 02/003/2002,July 2002); seealsoCRISIS ATTACKS CIVILIANS GROUPS THE AND OFIMPUNITY: ROLE INFUELINGTHE WAR CIVIL RUSSIA, IRAN RIGHTS OFPAKISTAN, 18-22, 13 HUMAN WATCH, No. AFGHANISTAN, 3 (C) ,July 2001, availableat <http://www.hrw.org/reports/2001> (outlining the international humanitarian law violations by both the Taliban and the United Front during the Afghan civil war). 226 THE IN RESPONSE: U.S. ARMY AL-FALLUJA, HUMAN 15 VIOLENT RIGHTS WATCH, NO. 7 (E), June 2003, IRAQ, availableat <http://www.hrw.org/reports/2003> [hereinafter FALLUJA The REPORT]. quotation that appears as the epigraph to this article is taken from page 1 of the report. 227 Id. at 2. 228 Id. at 2-3. The recommendations refer to standards of international humanitarian law. The link to human rights norms appears to arise in the context of the occupying power's obligation to restore and ensure public order and safety, found in Article 43 of the Hague Regulations, supranote 104. The report states that "[a]chieving security must however be in conformity with international humanitarian law and human rights standards."Id. at 3. As noted, it is not universallyaccepted that human rights norms apply as a matter of law, although logic points to their application as a matter of policy, morality, and practicality. 229 Regarding the involvement of possible members of an organized resistance, the report quotes the mayor of Falluja (who was not present at the time of the shooting but had collected information in the town) as stating: Some of the bad people from the remains of the previous regime, on the day of Saddam's birthday,some people in the cover of the demonstration, some Islamic extremists and also some believers in Saddam, wanted to create problems between Islamic extremists and American troops... Some of Saddam's people carrying his picture and some weapons like Kalashnikovs were benefiting from the slogans. They started to shoot at the school... They left immediately and ran away. The Islamists remained in the street. The response [of U.S. soldiers] was intensive and heavy. Id. at 13. 230 The declaration of the close of major combat operations had not been made until May 1, 2003, and even then that declaration did not mean that the armed conflict was over. Seesupra note 210 and corresponding text.
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and other situations of occupation, the separation between a law enforcement role and operations in armed conflict may not lend itself to being neatly drawnas the occupying power struggles to bring order out of chaos. Over the short term, the taskcan be complicated by such factors as operations against resistance members integrated into the ordinary civilian population; the need for the occupying power to exert control over territory that may not previously have been the scene of fighting; the potential for significant levels of violence, particularlythe use of firearms;and the continuing need to maintain operational securityand force protection.23 Furthermore, the presence, or even the potential presence, of firearms within a crowd can call into question the application of many means of crowd control. In this regard traditional human rights norms may not be readily adaptable to the complicated security situations that occur during international armed conflict. For example, the use of riot control agents as a lessthan-lethal means of law enforcement in the midst of an ongoing armed conflict must be These complicating reconciled with the prohibition on their use as "amethod ofwarfare."232 factors present a formidable challenge to occupying forces in establishing a secure environment and to human rights NGOs in reviewing the use of force. An analysis that considered the interface between human rights and humanitarian law case233sugbefore the International Court issued its advisoryopinion in the NuclearWeapons was the death or injury gested that since the concern of human rights supervisorymechanisms rather than its cause, "the humanitarian lawyerwill have to engage in intellectual gymnastics"to apply international human rights to targeting issues.234 Thejudicial acknowledgment that international humanitarian law constitutes an integral, but separate, part of the "right to life" frameworkmeans that such machinations should not now be necessary. International humanitarian law has its own standards for assessing the legality of using lethal force, so that human rights advocates will have to become more comfortable with both the scope of that The positive effect that human rights norms can bring law and its application to conflict.235 to international humanitarian law in respect of targeting will be directly related to how successfully the emphasis on accountability accommodates the differences between the two normative frameworks. An important distinction between human rights law and humanitarian law in terms of controlling the use of force is that the former seeks review of every use of lethal force by agents of the state, while the latter is based on the premise that force will be used and humans intentionally killed. In practical terms, a human rights supervisory framework works to limit the development and use of a shoot-to-kill policy, whereas international humanitarian law is directed toward controlling how such a policy is implemented. These differences are reflected in the respective applications of the principle of proportionality. In the domestic context, the force used must be strictlyproportionate to the aim to
REPORT,supra note 226, at 13, highlights the "law Notwithstanding the ongoing military operations, the FALLUJA enforcement" role of U.S. forces: "[T]he presence of provocateurs in the crowd does not negate the responsibility of U.S. soldiers to prevent civilian casualties to the greatest extent possible, and to ensure that their response when carrying out law enforcement functions is proportionate and discriminate." 231BASRA:CRIMEAND SECURITYUNDER BRITISHOCCUPATION,15 HUMAN RIGHTSWATCH, IRAQ,NO. 6 (E),June 2003, at 19, availableat <http://www.hrw.org/reports/2003> (noting that "byall accounts, the focus of coalition forces was on force protection, .... responding robustly to any use of weapons, while essentially ignoring other incidents of lawlessness and looting"). 232 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Compare No. Weapons and on Their Destruction,Jan. 13, 1993, Art. 1(5), S. TREATYDOC. 21, 103d Cong. (1993), 32 ILM 800 (1993) ("EachState Partyundertakes not to use riot control agents as a method of warfare."), withid., Art. II (9) (d) aw (among purposes not prohibitedby the Convention are "[1] enforcement including domestic riot control purposes"). 233 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJREP.226 (July 8). 234 Hampson, supra note 224, at 127. 235It has been noted that the Court's AdvisoryOpinion cannot be generalized reasoning in the NuclearWeapons with regard to human rights law, as it was specifically directed toward the right to life. Thus, human rights treaties in general would not have to be interpreted in light of international humanitarian law. Frowein, supranote 202, at 12.
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CONTROLLING THE USE OF FORCE:A ROLE FOR.HUMAN RIGHTS NORMS
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be achieved.36 Under international humanitarian law, the use of force against valid targets such as combatants and civilians directly participating in hostilities is not directly governed by proportionality. Although the methods and means of using force are not unlimited, emIn phasis is placed on prohibiting "superfluousinjuryor unnecessary suffering."237 the context of an armed conflict, proportionality is used to assess the potential for collateral damage to uninvolved civilians and civilian objects.238 As a result, force under international humanitarian law presents a significantly different legal and moral challenge. Everyhuman life remains precious, but assessingwhen the taking of life may bejustified is rarely undertaken on a scale of one or two victims. This assessment must often be carried out by weighing the relative importance of protecting or destroying objects or achieving political objectives. The significance of this challenge emerges when an attempt is made to establish criteria for instituting a supervisoryframework on the use of force in armed conflict. The human rights approach of automaticallyinvestigating every use of force by agents of the state is not feasible. Moreover, any system requiring that the state automatically investigate each use of force or account for all armaments that are expended is clearly not alwayspractical. What, then, are the correct criteria?Is an investigation warrantedwhen one, ten, or one hundred civiliansare killed? Since the conduct of hostilities by its very nature often involves the wide-scale application of lethal force, not every death can or should be subject to the exhaustive review process normally associated with the application of peacetime human rights norms. These obstacles, however, do not mean that criteria cannot be established.239 Thus, those whether a killing is extralegal should first acknowledge what body of law the state analyzing or group using force is applying to the situation. Second, mistakesin targeting and the failure of weapons to hit their targets or operate properly should obviously trigger an investigation. Third, an element of accountability could be introduced by requiring authorities to explain the basisfor an intentional killing that prima facie does not indicate that the target was lawful. Such an explanation could include confirmation of the criteria that are applied to the targeting of unprivileged belligerents or others who, on the basis of publicly available information, do not appear to be directly participating in hostilities. For example, asking authorities to establish how a leader is linked to the operations of a nonstate actor could contribute effectively to the accountability process. Finally, inquiries might be made when the state has used deadly force in a situation where it exercised sufficient control that detention and arrest of terroristsappeared feasible. This latter step might be especially appropriate in cases of a direct interface between domestic policing functions and an ongoing armed conflict.240 The public nature of the human rights accountabilityprocess is an effective tool in helping to ensure that a state's use of force is justified. Yet the level of transparency sought in the human rights process may not be achievable in all instances of force in armed conflicts. National security concerns, such as the potential impact on ongoing operations and international relations, disclosure of the capabilities of weapons systems, and the need to protect intelligence assets, may adversely affect public reporting on the findings of any investigation.
McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160-61, para. 149 (1995). Protocol I, supra note 42, Art. 35(2). 238 Id., Art. 51 (5) (b). 239 In calling for a process for analyzing the impact of targeting decisions, Sarah Sewall has suggested that a "complete collateral damage assessment would include fully investigating serious incidents during the conflict and following up with a public postwar survey of the campaign's impact on civilians."That process would involve the integration of a civilian collateral damage assessment into the formal lessons-learned process. Sewall, supranote 186. The challenge would remain, however, of determining what would make an incident serious enough to warrant its inclusion in such an assessment. 240 However, as Hays Parks notes, there is no obligation to attempt to capture rather than attack an enemy in cases of armed conflict. Parks, supra note 108, at 7 n.6. Here, a distinction has to be made between making a policy choice of seeking to arrest an enemy combatant (perhaps for intelligence purposes) and the issue of the legal authority to use lethal force.
236 237
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Further, those concerns may also erode the usual level of institutional separation between the authorities using force and the investigatory bodies. Still, a worthwhile investigation can be conducted and an enhanced level of objectivity injected through the participation of persons from outside the chain of command or even the military.The accountability framework must simply reflect the universe within which the use of force is being applied. Finally,should the victims or their relativesbe involved in any accountabilityprocess?Their involvement in the domestically focused human rights endeavor is undoubtedly rooted in the political responsibilityand accountability of the state to all its citizens. The same sense of These responsibilityor accountabilitymay not extend to foreign victims of the use of force.241 factors, combined with the potential for any investigation to become politically charged by the issues that prompted the armed conflict in the first place, may ultimately operate to limit the involvement of victims in an accountability process. But challenges in establishing the scope and nature of such a process should not prevent the making of attempts to do so or to enhance the existing process. IX. CONCLUSION The intentional taking of human life is and should be an emotional issue, as humanity maintains the protection of the right to life as a fundamental tenet in both peace and war. Thus, any decision to take a life should be subjected to a clear normative framework and, where appropriate, the strictest scrutiny. However, the right to life is not absolute under the norms of either international human rights or humanitarian law. The maintenance of social order both internationally and domestically inevitably leads to conflict and, periodically, the necessity of exercising the right to self-defense and of acting in the defense of others. The organization of society into nation-states has directly affected the normative frameworks governing the use of lethal force. Since its inception, the state has held the primary responsibilityof controllingviolence within its borders. The degree of control that a state exercises internally because of its monopolization of violence has also allowed for a much more invasiveprocess to regulate the use of force domestically than that availableto regulate interstate armed conflict. Nowadays,however, nonstate actors have enhanced ability to engage in conflict on an international level. This reintroduction of a form of privatewar challenges the state-based international regime for the maintenance of order in new and significant ways. To enable international humanitarian law to regulate contemporary armed conflict effectively, it must set forth realistic rules governing the use of deadly force that reflect the levels of violence and the nature of the threat posed to society. At the same time, armed conflict does not occur in isolation. Society will still have to be governed according to human rights norms. The resulting interface between the two normativestructuresis most graphicallyrepresented in noninternational armed conflict, situations of occupation, and the contemporary war on terrorism. Both areas of law have important and constructive contributions to make so as to establish a secure environment for the enjoyment of fundamental rights. In particular,incorporation of human rights principles of accountabilitycan have a positive impact on the regulation of the use offorce during armed conflict. Given the close interface between these two normative frameworksin some types of armed conflict, their mechanisms of accountabilitywill inevitablyneed to be reconciled; but systemsof accountabilitydeveloped to regulate the use of force domestically cannot simply be transferred to the international humanitarian lawcontext. Consequently, both states and human rightssupervisorybodies may have to readjust their understanding of the role human rights law can play in enhancing the accountabilityframeworkregarding the use of deadly force in armed conflict. No gaps in the effort to apply appropriate norms of humanity can be allowed.
241 This broader sense of responsibility appears unlikely to occur unless there develops a more global sense of supra note 12, at 144-46. community, such as the "cosmopolitan patriotism" suggested by FALK,

Controlling The Use of Force A Role For Human Rights Norms in Contemporary Armed Conflict

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Controlling The Use of Force A Role For Human Rights Norms in Contemporary Armed Conflict

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Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict Author(s): Kenneth Watkin

THE AMERICANJOURNALOF INTERNATIONALLAW

Id., para. 25.